TSANG YUK PO v. WONG FOOK AND OTHERS

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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ASSESSMENT OF DAMAGES

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1. On the 27th of July 1981 the deceased Tai Yuen Ting was killed in a motor vehicle accident while she was crossing Tai Po Road near the North Kowloon Magistracy. At the date of the accident Madam Tai was aged 37 years and was employed as a clerical worker by Paramount Advertising Company.

2. The first defendant has taken no steps whatsoever in this action and interlocutory judgment was entered against him on the 28th July 1983. The 2nd Defendant was represented and filed a defence alleging contributory negligence. However, on the 23rd of March 1984, the Director of Legal Aid discharged his certificate in relation to the 2nd Defendant and thereafter she took no steps whatsoever in the matter. On the application of the Plaintiff, whilst the 2nd Defendant was still represented, it was ordered that the action was to be tried before a judge as between the Plaintiff and the 2nd Defendant limited to the issue of liability with damages to be assessed by a master. As I said earlier after that the Legal Aid Certificate for the 2nd Defendant was discharged and when the matter came on for hearing before Deputy Judge Corcoran to determine the question of liability between the Plaintiff and the 2nd Defendant, the 2nd Defendant was unrepresented and did not attend. However, following a hearing, Deputy Judge Corcoran determined that the Plaintiff was 70% to blame for the accident and the 1st Defendant was 30% to blame. Following this interlocutory judgment was entered in these terms. The two interlocutory judgments did give me some concern and at the conclusion of the hearing of the assessment I invited Miss Bridges to make written submissions on them. This is the reason for the delay in delivering this assessment. This is a matter I will deal with later in this assessment.

3. On the 24th of July 1984 the writ of summons was amended to add the 3rd Defendant. However, it appears no further steps whatever have been taken in relation to the 3rd Defendant.

4. At the commencement of the hearing Miss Bridges sought to make certain amendments to the Statement of Claim. She wished to amend paragraph 6 by adding the following particulars:-

"If the deceased had been alive today she would now be earning $3,000 per month and would have received double pay at Chinese New Year. She used to receive $2,000 per month on average from her family in Indonesia which went towards paying the family expenses."

She also sought to add to para. 7 the following:-

"In addition, the deceased used to pay the rent of the family flat in the sum of $1,200 per month."

She also sought to amend paragraph 5(v) and prayer 7(ii) by deleting $10,000 and replacing with $4,960.

5. I gave leave for all these amendments and dispensed with service.

6. Miss Bridges called three witnesses, the Plaintiff himself, an officer of the Chartered Bank and finally the deceased's former employer. As well she handed in a bundle of document which were produced pursuant to the necessary hearsay notice.

7. Of these documents Items 1 to 11 relating to rent receipts. The first group relating to a property at 2A Tai Wai, Flat B, 5/F, Shatin. The second group relating to 331 Pok Mun Street. The third group to Lun Chung Street and the final group of rent receipts relating to 182 Kowloon City Road.

8. There was also Inland Revenue Department documentation for the Plaintiff's own business for the period of 1978 to 1982.

9. Item 32 of the bundle was a receipt for funeral expenses. Item 36 was from Paramount Advertising Agency, the deceased's employer. Item 37 to 39 dealt with the deceased's Chartered Bank Account from the 14th December 1979 to the 28th of July 1981. The first witness called was Mr Kwok Tin Che who was the Managing Director of Paramount Advertising Agency. He stated that the deceased had been working for his firm for a period of about two months before her untimely death. She started on probation as a filing clerk and was paid $1,200 per month. He said that after she had worked for the firm for 1 year she would then have received the normal Chinese New Year extra month's bonus payment. Further he said that after her probation period of three months her salary would have increased from $1,200 per month to $1,500 per month. He said her duties consisted of filing media records and taking the phone calls. He said after her death her position was filled by another person who was currently earning $3,000 per month. He said that if the deceased had still been working for his company she would have been earning at least that much and perhaps a little more as she would had been working longer for his company. He said he had no doubt that if she had wished to the deceased would have continued to work for his company as she was particularly competent and hard working.

10. The next witness was Mr Michael Wong who works in the Chartered Bank Savings Department. He assisted the Court with an analysis of the deceased's savings account. In the course of this he identified various remittances that were received to the credit of the deceased's account from Jakarta.

11. Finally the Plaintiff gave evidence. He said he was now aged 52 years and working as a cleaner in a restaurant. He gave evidence that at the date of his wife's death they resided in a flat at Tai Wai with a rent of $1,200 per month. He said the out-goings were electricity $50 per month; water charges $10 per month; telephone $30 per month; fuel $40 per month; food $750 per month; clothing $200 per month and lunches, travelling and general expenses $500 per month. He said his wife gave him $1000 per month towards family expenses and as well she paid the rent of $1,200 per month. He gave evidence that at the time of his wife's death he was engaged in his own import and export business. He said the success of this business fluctuated but after his wife's death it was in a state of continual decline until he was forced to close the business in 1984. Following that he was employed for a period as an electronics worker at $68 per day and now he was employed as a dish washer in a restaurant earning $1,900 per month. He also gave evidence of the various places where he had lived since the death of his wife. For a start he continued to live in the premises at Tai Wai at $1,200 per month but his evidence showed that after that the standard of his accommodation declined as did the rent. Initially he moved to premises at 331 Pok Mun Street where the rent was $550 a month then to premises at Lung Chung Street where the rent was $350 per month and since a year or so ago he shifted to Kowloon City where he presently paid $490 per month for a small room.

12. He stated that his wife had not been employed until she went to work for Paramount Advertising Agency and she did this because they needed the money. He agreed that at the date of his wife's death the total expenditure of the family was greater than the income. He said this was covered by regular remittances from his wife's family in Indonesia. He gave evidence of a number of visits from various members of his wife's family and he stated that there were remittances to the bank account and also sums of cash were paid over when family members visited Hong Kong and stayed with them in Shatin.

13. He confirmed since his wife's death no remittances had been received from the family and he further stated that his wife seemed very happy working in Paramount Advertising Agency and in his view she would have continued working there.

Loss of expectation of life

14. Miss Bridges submitted that the appropriate award was the present conventional figure of $20,000. The submission was accepted and the sum of $20,000 is awarded.

Funeral expenses

15. Miss Bridges said that there should be awarded $4,960 as this was supported by a receipt. This is so and I award $4,960.

Lost years

16. It is quite clear in this case that the FAO award and the LARCO award will merge. Miss Bridges referred me to the useful table in Martin & Rhodes and also various cases in the Hong Kong Law Reports and submitted that the appropriate multiplier in the case of a 37 year old married woman was 13 years. I accept this as correct and the multiplier to be applied is 13. This means that the pre-trial loss period is 34.75 months and the balance was 121.25 months.

17. Miss Bridges also submitted that the regular remittances received from the deceased's family should be treated as the wife's income. She said that this had happened regularly over a long period of time and an analysis of the amount received showed that on average about $2,000 per month or slightly in excess there of was remitted. I accept that submission and consider that it should be added to the wife's income. Miss Bridges further submitted that the wife's living expenses amounted to the $500 per month she kept for herself; she further submitted that items such as rent and electricity did not form part of the personal living expenses of the deceased. She submitted they were communal expenditure and it was expenditure which was as much for the dependent's benefit as the deceased's benefit. I accepted this submission. This proposition finds support at para. 21-003 of Kemp and Kemp. Miss Bridges went on to submit that if one analyses the figure it showed that the deceased's living expenses amounted to approximately 30% of her total income, (i.e. her income from Paramount Agency plus the average monthly remittances from Indonesia). Whilst I accepted that the deceased was unusually frugal I think a figure of 30% is on the low side taking into account all the circumstances and the evidence before me I am satisfied that the free balance available would be 65% which means that deceased's expenditure on herself was 35% of her total income. I stress that I do not advance this percentage in any sense as a conventional percentage. I arrive at it after considering the evidence there is of free balance. The quality of that evidence is such that I find it impossible to do an exact mathematical calculation of the deceased's expenditure but there is clear evidence of the approximate amount of that expenditure and that supports a figure of approximately 35% of the deceased's expenditure.

18. The deceased's pre-trial monthly income was $3,300 allowing for her wages from Paramount Agency including the Chinese New Year double pay and the $2000 remittances from Indonesia. This multiplied by 34.75 months (being the pre-trial period) gives total loss of income of $114,675.00. I award $74,538.75 being 65%.

19. The post-trial loss is $5,250 per month taking her income at Paramount Agency at $3,000 per month plus the Chinese New Year double pay and plus the $2,000 remittances from Indonesia multiplied by 121.25 months (the post trial balance of the multiplier) giving $636,562.50. Allowing a free balance as calculated previously at 65% of this the award is $413,765.62.

Summary

20. There will be interest on the special damages of 5.75% from the date of the service of the writ to trial and on the award for pre-trial loss at the rate of 2% per annum from the date of the service of the writ until trial. The defendants will pay the plaintiff's costs to be taxed failing agreement. The plaintiff's own costs, on a common fund basis, to be taxed in accordance with the Legal Aid Regulations.

21. As I indicated earlier interlocutory judgment in default was entered against the 1st defendant and interlocutory judgment, following trial, but in the absence of the 2nd defendant, was entered against the 2nd defendant on the basis of the deceased being 70% to blame and the 1st defendant being 30% to blame for the accident. This caused me some concern and I have considered in detail the written submissions of Miss Bridges. However, on reflection it seems not proper for me to comment on this matter. If it causes difficulties in relation to the question of the award, or the enforcement thereof, that is a matter for the plaintiff and his advisers.

22. I record my indebtedness to Miss Bridges for her able and thoroughly prepared agruments, both at the assessment, and in her written submission.