LEE HANG KUEN v. CHAN HONG AND ANOTHER

HCPI 548/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 548 OF 2002

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J U D G M E N T

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1. This is a fatal accident claim, brought by Madam Lee Hang Kuen, the mother and administratrix of the estate of the deceased, Mr Yim Ngai Ho, who died on 19 February 2000, aged 21 years.  Mr Yim was employed as a construction site worker by the 1^st defendant, Chan Hong, at a building site at Siu Sai Wan of which the 2^nd defendant was the main contractor.  He was struck on the head by oxy-acetylene cylinders, which fell from a chain sling while they were being lifted by a crane.

2. Against the 1^st defendant, the plaintiff pleads negligence and breach of statutory duty, in particular the common duty of care under the Occupiers’ Liability Ordinance, Cap.314 and the duty to ensure, so far as reasonably practical, the health and safety of the deceased, under section 6(1) of the Occupational Safety and Health Ordinance, Cap.509.

3. In particular it is pleaded that the 1^st defendant failed to provide a safe system of work for the transportation of the oxy-acetylene cylinders across the site.  It is said that the 1^st defendant caused or permitted the deceased to attach the cylinders to the chain sling but failed to provide specific training or instruction as to how this could be safely undertaken; failed to instruct, warn and supervise the deceased; failed to provide a cage for safe transportation of the cylinders, and failed to inspect the cylinders to as to ensure they had been safely attached to the chain sling.

4. Against the 2^nd defendant the plaintiff repeats the same allegations and in addition, failure to comply with section 7J(1) of the Factories and Industrial Undertakings (Lifting Appliances and Lifting Gear) Regulations, Cap.59J, as well as failure, so far as reasonably practicable, to ensure that premises, access and egress and plant were kept safe and without risks to health, contrary to section 7(1) of the Occupational Safety and Health Ordinance.

5. The defendants’ defence is that safety training had been provided by both defendants and cages were provided for the transportation of the cylinders.  The deceased himself, during a tea-break and alone, called the crane operator, by “walkie-talkie” radio, and instructed him to transport the cylinders.  The crane operator could not see what was being transported and had to rely on the instructions given by radio.  The deceased rigged the cylinders for lifting by himself, using chain slings instead of a cage, but told the crane operator that they had been properly rigged in a cage.  He instructed the crane operator to lift the cylinders, but it was later found that they had slipped out of the slings.  Accordingly, the accident was caused or contributed to by the deceased’s own negligence.

6. Following the accident, the 1^st defendant was convicted of an offence contrary to section 6A(1), 6A(2)(a), (b), and (c) and 6A(3) of the Factories and Industrial Undertakings Ordinance and the 2^nd defendant was convicted of an offence contrary to Regulation 7J(1)(b) of the Factories and Industrial Undertakings (Lifting Appliances and Lifting Gear) Regulations.  The plaintiff relies on the convictions as evidence of negligence; the defendants say that they are irrelevant.

Issues on liability

7. The plaintiff’s case is primarily that no safe system of work was provided by either defendant for the safe transport of the cylinders across the site.  Ingredients of the safe system would include the provision of a cage and specific instruction on how to move use it to transport the cylinders.  It is the plaintiff’s case that no cage and no specific instruction, training, supervision and so on were provided.

8. It is the defendants’ case that a cage was provided and that the deceased had been given specific instruction on its use.  In other words, there was a safe system.  However the deceased, in spite of instructions, undertook the job on his own, used his own system with the chain slings and even deceived the crane operator by saying that he was using a cage.  He also got under the load.  The defendants say that the accident was caused entirely by the fault of the deceased.  In particular it is said that the 2^nd defendant should not be liable because it did not know that the deceased was using an unsafe system.  If, however, the defendants are found to be liable, the deceased should be held at least two thirds to blame.

9. The first issue, then, is whether a safe system of work was provided, with particular reference to the use of a cage and the provision of specific instruction.  If the lack of safe system is proved the defendants will be liable and then the question will be whether, and to what extent, the deceased contributed to the cause of the accident.

The statutory provisions

10. The plaintiff pleads breaches of statutory duties under the Occupational Safety and Health Ordinance.  Section 6(1) of the Ordinance provides :

“Every employer must, so far as reasonably practicable, ensure the safety and health at work of all the employer’s employees.”

11. This has to be read in conjunction with subsection (2), the relevant parts of which provide :

“(2)     The cases in which an employer fails to comply with subsection (1) include (but are not limited to) the following :–

(a)   a failure to provide or maintain plant and systems of work that are, so far as reasonably practicable, safe and without risks to health;

(b)   a failure to make arrangements for ensuring, so far as reasonably practicable, safety and absence of risks to health in connection with the use, handling, storage or transport of plant or substances;

(c)   a failure to provide such information, instruction, training and supervision as may be necessary to ensure, so far as reasonably practicable, the safety and health at work of the employer’s employees.”

Section (7)(1) of the same Ordinance provides :

“(1)     If an employee’s workplace is located on premises that are not under the control of the employee’s employer, the occupier of the premises must ensure that—

(a)      the premises; and

(b)     the means of access to and egress from the premises; and

(c)      any plant or substances kept at the premises,

are, so far as reasonably practicable, safe and without risks to health.”

12. The plaintiff also pleads breach of statutory duty by the 2^nd defendant of section 7J(1) of the Factories and Industrial Undertakings (Lifting Appliances and Lifting Gear) Regulations which provides :

“The owner of a lifting appliance shall, before it is used, ensure that every part of any load to be raised or lowered by the lifting appliance is—

(a)    securely suspended or supported; and

(b)    adequately secured so as to prevent danger arising to persons or property as a result of the slipping or displacement of any part of the load.

The effect of the convictions on the burden of proof

13. The plaintiff relies on the 2^nd defendant’s conviction for breach of sub-regulation (1)(b) of the above regulation.  Against the 1^st defendant it relies on his conviction under section 6A of the Factories and Industrial Undertakings Ordinance, which provides :

“(1)      It shall be the duty of every proprietor of an industrial undertaking to ensure, so far as is reasonably practicable, the health and safety at work of all persons employed by him at the industrial undertaking.

(2)       Without prejudice to the generality of a proprietor’s duty under subsection (1), the matters to which that duty extends include in particular—

(a)   the provision and maintenance of plant and systems of work that are, so far as is reasonably practicable, safe and without risks to health;

(b)   arrangements for ensuring, so far as is reasonably practicable, safety and absence of risks to health in connection with the use, handling, storage and transport of articles and substances;

(c)   the provision of such information, instruction, training and supervision as is necessary to ensure, so far as is reasonably practicable, the health and safety at work of all persons employed by him at the industrial undertaking;

(d)   so far as is reasonably practicable as regards any part of the industrial undertaking under the proprietor’s control, the maintenance of it in a condition that is safe and without risks to health and the provision and maintenance of means of access to and egress from it that are safe and without such risks; and

(f)    the provision and maintenance of a working environment for all persons employed by him at the industrial undertaking that is, so far as is reasonably practicable, safe, and without risks to health.

(3)       Subject to subsection (4), a proprietor of an industrial undertaking who contravenes this section commits an offence and is liable to a fine of $500000.”

14. In fact the 1^st defendant was convicted on an amended summons which alleged breaches of the provisions of section 6A(1), 6A(2)(a), (b), and (c) and 6A(3), all arising out of the one incident.

15. Counsel for the plaintiff opened by saying that the plaintiff would rely on these convictions to establish that the fatal accident was caused by the negligence and breach of statutory duties of the defendants.

16. Section 62(2) of the Evidence Ordinance, Cap.8, provides :

“In any civil proceedings in which by virtue of this section a person is proved to have been convicted of an offence by or before any court in Hong Kong—

(a)     he shall be taken to have committed that offence, unless the contrary is proved; and

(b)    without prejudice to the reception of any other admissible evidence for the purpose of identifying the facts on which the conviction was based, the contents of any document which is admissible as evidence of the conviction, and the contents of the information, complaint, indictment or charge on which the person in question was convicted, shall be admissible in evidence for that purpose.”

17. In closing, Ms Leong for the plaintiff accepted the point raised by Mr Wong for the defendant that by section 19 of the Factories and Industrial Undertakings Ordinance, that Ordinance does not confer any right of action in civil proceedings in respect of a failure to comply with section 6A; but, she said, the evidence showed that the accident resulted from the negligence and/or breach of statutory duty on the part of the 1^st defendant in any event.

18. In fact, I do not see that section 19 comes into the picture.  The plaintiff is not claiming any right of action in respect of the 1^st defendant’s contravention of section 6A.  He is claiming it in respect of contravention of section 6(1) of the Occupational Safety and Health Ordinance.

19. The effect of the above-noted provision of the Evidence Ordinance is that, once there is a conviction, the person is taken to have committed the offence unless the contrary is proved.  This means that the facts on which the conviction is based are taken as proved, unless the contrary is proved.  The facts on which the 1^st defendant’s conviction are based are set out in the amended summons and they are that he :

“(1)  failed to provide and maintain a safe system of work in relation to the transportation of an oxy-acetylene gas cutting set that was, so far as was reasonably practicable, safe and without risks to health,

(2)  failed to arrange for ensuring, so far as was reasonably practical, safety and absence of risks to health in connection with the transport of an article, namely the oxy-acetylene gas cutting set, and

(3)  failed to provide information, instruction, training and supervision as was necessary to ensure, so far as reasonably practicable, the health and safety at work of all persons employed by him at the industrial undertaking.”

20. Those facts obviously also come within the cases set out in section 6(2) (a), (b) and (c) of the Occupational Safety and Health Ordinance.

21. The facts proved against the 1^st defendant in the criminal proceedings are the same facts which would give rise to civil liability, i.e. the failure to provide a safe system of work, including the provision of a cage and specific instruction on its use.  The onus therefore shifts to the 1^st defendant to disprove those facts and if he cannot he must be found liable for negligence and breach of statutory duty under section 6(1).

22. The facts proved against the 2^nd defendant, on a strict liability offence, go to prove breach of statutory duty and the defendant will only be able to escape that, and the concomitant liability, if it can prove on the balance of probabilities that it believed for good and sufficient reason, if erroneously, that the provision had been complied with.  This is relevant to the question of whether the deceased deceived the crane operator.  The onus lies on the 2^nd defendant to prove that.

Evidence on liability

23. There is, unfortunately, a dearth of direct evidence.  The only witness called by the plaintiff on liability is the Occupational Safety Officer, Mr Kwok Tik Wai, who made a fatal accident report following the accident.  He relied on what various persons told him, but those persons have not been called, and what they told him is hearsay.  No witnesses were called for the defendants.  Transcripts of the coroner’s inquest and the trial at Eastern Magistracy, which resulted in the convictions mentioned above, are before the courts, but what the witnesses said there is also hearsay.  Such hearsay is, of course, admissible, but it has to be regarded in the light of the considerations relevant to the weighing of hearsay evidence set out in section 49 of the Evidence Ordinance, Cap.8.

24. The defendants have called no witnesses at all.  In effect what they have tried to do is to rely on those parts of the evidence given before the Coroner and the Magistrate, and disbelieved by the latter, to prove those matters which, following the convictions, it is incumbent on them to prove, and to prove negligence on the part of the deceased.

25. There is, I think, no dispute on the following matters which appear from the report of Mr Kwok.  The deceased had, on the morning of 19 February 2000, been instructed to cut reinforcing bars with an oxy-acetylene cutting set on the 3^rd floor podium level of the site.  Later, the site foreman told him to cut some other reinforcing bars about 120 metres away from that point.

26. During the afternoon tea break, the deceased set out to transport the oxy-acetylene cutting set from a location near Block 1 of the site to a location near Block 3 on the same floor level.  The cutting set consisted of two cylinders, of different sizes, with flexible tubes running from the cylinders to the cutting torch.  The deceased himself used lifting gear, consisting of chains with self-locking shackles, which were wrapped round the cylinders and attached to the hook of a tower crane, which was owned by the 2^nd defendant and operated by its employee, Mr Tang Chi Man.  The deceased used a radio to call Mr Tang and ask him to move the load.  Mr Tang could not see the load from his crane cab.  The deceased directed him by radio to lift and move the load, which had to be lifted over some buildings, and then to lower it.  As the load was being lowered, the cylinders became disengaged from the chains and fell, hitting the deceased on the head and causing fatal injuries to him.

27. It is also not in dispute that the correct way to move the cylinders with a tower crane was by putting them in a lifting cage, and attaching the four corners of the cage by chain slings to the crane hook.  A cage, or cages were available on site; they were kept at the machine room which was also the 1^st defendant’s office, on the ground floor of the building.  A cage could have been transported from the machine room by using an excavator and/or by lifting it through an open space in the flooring, using one of the tower cranes, so as to get it to the original position of the cylinders.

28. It is not clear why the chains were being lowered at the place where the accident happened.  As appears from Mr Kwok’s plan, Appendix 1, that place was quite close to the original position of the cylinders and quite far away from the place to which, according to his information, the cylinders had to be moved.

29. It is also not clear what caused the cylinders to come loose.  A photograph taken by Mr Kwok at the scene shows the chains hanging loose from the crane hook.  Mr Kwok says that the spring-operated self-locking shackles would have been forced open during transportation.  There is no evidence as to how the chains were wrapped round the cylinders, but from his evidence, and from the photographs, it can be seen that there is a release button on the shackle.  If the chains were wrapped round the cylinders in such a way that a loop of chain pressed on the release button or buttons, that could have caused the shackles to open.

30. In fact, how the cylinders came loose does not matter.  Perhaps a spring shackle opened.  Perhaps the cylinders, if not slung at the centre of gravity, dropped to one side and slipped out of the looped chains.  That they came loose at all indicates that they were not adequately secured.

Was a safe system provided?

31. Mr Kwok says in his report that there was no system of work in relation to transportation by tower crane.  No safe rigger procedure was formulated; and no cage was provided.  There was no system for the crane operator to follow; he was not required to ensure that the load was securely fixed, and that there was a competent signaller before commencing the lift.

32. He also says that in connection with the transportation by crane, Chan Hong and the foreman, Fung Wai Fung, who was the deceased’s direct supervisor, gave verbal instruction and training to the deceased.  However, there was no specific training on the safe lifting operation, including the slinging method.  There were no written rules and procedures.  In the morning of the day of the accident, Fung had told the deceased to use a metal cage to transport the cutting set.  At the material time, the deceased worked alone.  There was no supervision provided to ensure that he did the transportation safely.

33. Mr Kwok also says that while cages were available at the engine room, when he asked for one to be brought up, it took the workers about half an hour to bring it.  With regard to the instructions and training given, he says that Chan Hong told him about this; the instructions and training given had been general, non-specific and not directed particularly to lifting.  Mr Kwok, however, was told that the 2^nd defendant’s site foreman, Mr Leung, told the deceased in the morning to use a cage to transport the cylinders.

34. Mr Kwok’s evidence relies on what various workers told him.  Evidence was also given by some workers in the inquest and the criminal proceedings, and the transcripts are before me.  I do not need to go into them in detail.  I am not re-trying the case on the transcripts.  The point is that, so far as I can see, various different people could simply call up the crane operator by radio, tell him to move a load, and act as signaller, directing him where to move it.  Although Regulation 7J laid on the 2^nd defendant a duty to ensure that any load was adequately secured, there was no specifically designated rigger required to do that.  Although Regulation 15 requires the provision of a signaller when the crane operator does not have a clear view, there is nothing to indicate how signallers were selected or what training they had; there is only vagueness, such as, for instance, the evidence of the 2^nd defendant’s foreman, Mr Leung, at the inquest; he said that he thought the deceased had done a signaller’s course, but did not know; he assumed that the deceased had been trained because he had a radio; and he did not ask, because the deceased belonged to the 1^st defendant.

35. The defendants rely on the fact that cages were available at the engine room where the 1^st defendant had its office.  The deceased knew the cages were there, and he had been told to use one.  Also, it is said that he had been given instructions about the use of cages, at a seminar run by a Ms Wong, and employee of the 1^st defendant, on 26 December 1999.  He had signed an attendance paper, and written guidelines had been handed out.

36. There was evidence before the Magistrate that a cage could have been lifted from the ground floor, through one of the voids in the building.  It took, in Mr Kwok’s experience, half an hour to get one to the scene of the accident.  According to the site foreman, Mr Leung, it would have taken 15 minutes.  I do not think that matters.  The point is that a safe system requires more, particularly in the context of the provision of a heavy piece of equipment, than putting it somewhere where a worker can get it, if he wants to, and telling him to use it.  In fact the learned Magistrate did not accept the evidence of Mr Leung, the 2^nd defendant’s foreman, that he told the deceased in the morning to use a cage.

37. As to the instructions given at the seminar, it is notable that the evidence of this, and the written guidelines on which the defendants rely only surfaced at the trial.  Mr Kwok was told nothing about them, when he investigated.  The learned Magistrate in his verdict said that he rejected the evidence given with regard to the trainings sessions evidenced by the exhibits before him.  Of course it is true that I am not bound by the Magistrate’s findings; but he did convict on the basis, inter alia, of the 1^st defendant’s failure to provide information, instruction and training.  I have dealt with the onus of proof above.  I have heard nothing from the 1^st defendant in this trial to discharge that onus, and I do not accept that proper training and instruction was given.

38. Counsel for the defendants relies on the fact of the deceased’s having worked for his father in the same trade for some years, before starting with the 1^st defendant, to indicate that he must have got some training, somewhere along the line, on the moving of oxy-acetylene cutting gear with a crane.  Also the brother-in-law, Mr Shek, was cross-examined at some length on the deceased’s propensity to go off and work on his own.  Now maybe the deceased had had some training.  There is evidence that on the day of the accident he was told to use a cage.  But all this does not supply the deficiency in, or indeed the complete lack of any proper system, provided by the employer or the main contractor, for the moving of equipment.

39. I accept the evidence of Mr Kwok that there was no system.  Overall, so far as I can see from the evidence before the Coroner and the Magistrate, as well as Mr Kwok’s investigations, the system was simply to let the individual worker make his own arrangements for transporting the cylinders by crane on the site.  I have certainly heard nothing from either defendant, in this trial, to indicate that there was any other system.  I do not see that letting the worker make his own arrangements can be dignified with the name of a system; or if it can, it was certainly not a safe system.

40. It is argued for the defendants that the deceased was an experienced worker and must have known how to transport the cylinders safely.  He decided to transport the cylinders alone, during the tea break, without asking for assistance or informing his superior; he decided not to use a cage, and in particular he misled the crane operator, telling him that a cage was being used.  Such deliberate acts were out of any reasonable expectation of either defendant, and therefore they should not be liable.  This argument, of course, also relies on the existence of a safe system and proper instruction and training, which I have found did not exist.

41. As to the evidence of misleading Mr Tang, the crane operator, it seems to me that the 2^nd defendant, having been convicted under the Regulation, would have to prove this, so as to show that it thought that all necessary steps had been taken to fulfil its duty.

42. Mr Tang gave evidence before the Coroner and the Magistrate.  Before the Coroner, he said that the deceased, known as Ho Chai, had called him on the radio and asked him to move a load.  He knew Ho Chai, but not well, and recognised his voice.  He knew that Ho Chai was a signaller.  He told Ho Chai to direct him, which Ho Chai did; but then the directions stopped and only when he called another crane operator was he told that someone was lying on the surface where the load had been moved.  It does not appear from the evidence at the inquest that Mr Tang was ever told what load he had to move.  He only asked if it was secure, and Ho Chai told him it was.

43. Before the Magistrate, however, Mr Tang said that the load “seemed to be oxy-acetylene” because Ho Chai had told him so.  He had asked “Should I lift it with an oxy-acetylene cage?” and Ho Chai had said “yes”.

44. Mr Tang has not given evidence before me.  All I have from him is two pieces of inconsistent hearsay.  There is simply insufficient evidence from which I could be satisfied that the deceased misled him.

45. The defendants also argue that since there is no evidence of the length of the tubes from the cylinders to the cutting torch, there is no evidence as to whether it was really necessary for the deceased to move the cylinders by using the crane.  I do not think there is anything in this, because Mr Kwok dismissed the suggestion that the tubes could be as long as the 120 metres which separated the two places where the torch had to be used.  Granted that photographs are often not reliable, the tubes shown in the photographs do not appear to be so long.  120 metres is a very great length of tubing, and I would have thought it unlikely that tubes of such length would be used anyway, because it would probably be much easier to move the cylinders than to try to manoeuvre 120 metres of tubing around and over the obstacles to be found on a building site.  In fact in this instance the obstacle was part of the building, over which the cylinders had to be lifted.

46. If there had been a safe system of work for transporting the cylinders across the site by means of a crane, the deceased would have been able to use it.  But for the lack of a system, there would have been no accident.  It cannot be said that the accident was caused entirely by the fault of the deceased himself.  The defendants cannot escape liability.

Contributory negligence

47. I accept that cages were available at the engine room, which is where the 1^st defendant’s office was, so the deceased must have known that they were available.  I accept that he had been working for his father, in the same field, for some four years before he went to work for the 1^st defendant.  His brother-in-law, Mr Shek, with whom he previously worked, said that he had seen the deceased move cylinders around, using a handcart welded into a kind of cage.  He had not needed to use a crane when doing that work, but I think it is reasonable to infer that the deceased had some idea that safe transportation of the cylinders by crane would involve using a cage.

48. I think that is about as far as the evidence goes, concerning what the deceased knew.  As I have indicated, the learned Magistrate did not accept that Mr Leung the foreman had told the deceased in the morning to use a cage.  Nor did he accept the evidence of instructions given at a safety seminar.  It is true that Mr Tang said, in evidence before the Coroner, that the deceased had previously given signals to him; but the 1^st defendant’s foreman, Mr Fung, said that the deceased had never worked as a signaller, so the evidence on this is contradictory hearsay.  I have heard no evidence from either defendant on any of these matters.

49. No safe system was provided for the deceased.  He could, perhaps, have set it up himself, by finding a cage, and getting someone with more experience as a rigger and signaller to help, but he did not.  He was a diligent worker and he elected to do the job himself, in his tea break.  I do not see that the defendants can now hold that diligence against him.

50. What the deceased did, however, was inherently somewhat risky.  It does not take much imagination to see that.  Unlike a rope, which can be made into a noose which will tighten on the cylinders, the chains will only tighten so far and there is always a risk of slippage; so if one end of a cylinder goes down, it might slip out of the chain.  The load can never be entirely secure.  An ordinary person with no expertise should be able to foresee that.  Also, he stood underneath the load, which again is a risky thing to do, unless one knows that the load is securely slung.  So clearly he failed to take the care which a reasonable man should take for his own safety and so contributed to the causation of the accident.

51. Where the defendant is charged with the breach of a statutory duty, the standard by which the plaintiff’s contributory negligence is judged is sometimes less exacting than that used for ordinary negligence.  See Clerk and Lindsell on Torts, 18^th Edition, paragraphs 3-38 where the learned authors quote which passage by Lord Tucker in Staveley Iron & Chemical Co. v. Jones [1956] AC 627 at 648 :

“This is not so illogical as may appear at first sight when it is remembered that contributory negligence is not founded on breach of duty, although it generally involves a breach of duty, and that in Factory Act cases the purpose of imposing the absolute obligation is to protect the workmen against those very acts of inattention which are sometimes relied upon as contributory negligence so that too strict a standard would defeat the object of the statute.”

52. This was followed by the Court of Appeal in Li Man Yuen v. Li Ching I [1991] 2 HKC 230.  Having regard to this principle and bearing in mind that there is no evidence that the deceased had any particular experience of slinging cylinders, I do not think the standard by which he is to be judged is a high one.  I also take into account that it was his diligence in carrying out his duties that led him to take the risk.  I assess his contributory negligence at 20%.

Quantum

53. The deceased was born on 11 August 1978 and was 21 years old at the date of the accident.  He was employed by the 1^st defendant and earning $600 per day.  It is claimed that he worked for 30 days and earned $18,000 per month.  It is further claimed that he would have taken an electrician’s course and been promoted in about 2004 to earn $800 per day, or $24,000 per month.

54. The major issues on quantum are whether the payments made by way of “death benefits” to the family fall to be deducted from the bereavement claim; what the deceased could have expected to earn in the future, with particular reference to whether or not he would have taken an electrician’s course or been able to go into management; and whether, at the time of his death, he had an outstanding debt of $180,000, which would have affected both his ability to support his parents and his prospects of accumulation of wealth.  There are also issues on the degree of dependency of the parents.

The claim for bereavement

55. This is a claim under the Fatal Accidents Ordinance.  It is agreed that the plaintiff is entitled to $150,000 under this head.  She says in her witness statement that she has already received $75,000 from each defendant as a “death benefit”, so the defendants argue that she should give credit for the total.

56. Mr Shek gave evidence that there were two payments, one of $70,000 and one of $80,000.  He produces a document dated 23 February 2000, signed by the 1^st defendant, a representative of the 2^nd defendant, and the deceased’s sister (Mr Shek’s wife) for the family.  It is also signed by representatives of a trade union and an employers’ organisation.  The agreement provides for $70,000 to be paid by the 1^st defendant, which is non-deductible; and for the 2^nd defendant to pay $20,000 per month for 24 months as living expenses.  This is deductible, and repayable from the “fatal compensation”; I am told it has been repaid from the employee’s compensation payment.  There is no documentary evidence regarding the other $80,000.  Mr Shek says that it was paid on the day of the agreement, and there was verbal agreement that it too would not be deductible.  The $70,000 was included in the written agreement because it was to be paid later.

57. I accept that Mr Shek’s explanation is not particularly good.  However, it is not entirely incredible, and there is simply no evidence to contradict it, so I will accept it.  I find that the whole sum paid is non-deductible and award $150,000 for bereavement.

The deceased’s earnings

58. The plaintiff claims that the deceased had enrolled in a course on electrical work, but met with his accident before he attended any lesson.  If he had completed the course, it is said, he would have been promoted and earned $800 per day.

59. According to the plaintiff, the deceased went to work for his father in the latter’s Ngai Yip Engineering Company.  He got to know Shek Yau Tong at work.  Previously he had been a poor student, even at a special school, but under Mr Shek’s influence he became hard-working and responsible.  In about September 1999, a limited company, Ngai Yip Steel Work Engineering Ltd was set up for the father’s business, but no work came in, and that was why the deceased went to work for the 1^st defendant, who was an old friend of his father.  The 1^st defendant, according to the plaintiff, thought that the deceased was a good worker and intended to train him and ultimately, if he got a licence, put him in charge of a site.  So his future lay in management.

60. As to the electrician’s course, this was at an establishment in Morrison Hill.  It does not appear that the deceased had commenced the course.  After the accident a letter was sent to the deceased to register for the course, but the plaintiff had destroyed the letter because it was useless.

61. Mr Shek’s evidence was also that the deceased had, in effect, grown up and become responsible and had gained some ambition to better himself and get promoted.  According to Mr Shek’s witness statement, the deceased had enrolled in a programme offered by the Vocational Training Council at Aberdeen.  However, in oral evidence Mr Shek said that he had meant to say that he had encouraged the deceased to do this.  Perhaps he had made a mistake.  Later, the plaintiff had told him that the application was to the Morrison Hill establishment.  He denied changing his evidence to suit.

62. Counsel for the defendants argues that Mr Shek’s evidence is incredible because he changed it.  It is also said that the defendants’ solicitors had asked for documentary proof of the application, which was never forthcoming; and it should have been easy enough to find out the establishment concerned, and obtain confirmation from it.

63. It is also noted that, even if the deceased had completed the course, it is unlikely that the 1^st defendant would have kept him on and promoted him.  In fact the 1^st defendant suffered a stroke in 1999, and later closed his business and retired.  Although the plaintiff understood that the 1^st defendant would have put the deceased in charge of a site, she agreed that she knew that the 1^st defendant was to retire.

64. The evidence about the proposed course is rather sketchy.  The plaintiff herself seemed believable enough, and Mr Shek could have made a mistake.  I accept that the deceased had put his name down for a course, but he had not yet started it.  If he had finished the course successfully, it is unlikely that the 1^st defendant would have continued to employ him in any event.  However, he would probably have found work as an electrician elsewhere.  The Government statistics in the trial bundle show a figure of around $750 per day for electricians by the middle of 2005.

65. If the deceased had not obtained an electrician’s licence, he could have carried on with the work he was doing, which, although he is said to have been a mechanic, was metalwork.  By the middle of 2004 such workers earned about $850 per day.

66. As to whether the deceased would have gone into management, this too seems to be conjectural.  If the new limited company which the father had set up was not getting any business, there would be nothing there to manage, and even if the 1^st defendant had been well-disposed to the deceased, once his business finished, the deceased would have had to seek employment elsewhere.  He had no qualifications, so it is unlikely that he would have been able find a management post.

67. It seems likely, therefore, that if the deceased had lived, he would have qualified and found work as an electrician, or gone on working as a metalworker.  Either way, by the date of trial he would have been earning about $800 per day.

68. A further problem is that, as Mr Wong points out, the construction industry was depressed after 1997 and only started to recover in about 2004.  It is suggested that the estimate of 30 days worked each month is unrealistic, for this reason.  Counsel refers to the case of Lai Kwan Ming v. Lee Ying Hing t/a King Yip Co. & Anor, HCPI 765 of 2000, where the court accepted 22 days per month as a reasonable estimate for a carpenter’s work.

69. The 1^st defendant’s own list of earnings shows that the deceased worked 30 days and earned $18,000 in January 2000, which was the only full month he worked.  The Form 2 shows this as the monthly earnings.  This was in the middle of the economic downturn.  There is no evidence from the defendants that conditions got any worse.  In the circumstances I will take it that the deceased would have been able to continue to work for 30 days per month.  By the date of trial he would have been earning $24,000 per month.  The median figure between the date of death and the date of trial would therefore be $21,000 per month.

The loan of $180,000

70. This arises from the social investigation report of Ms Wong Yin Ha dated 28 September 2001 in which she says that the plaintiff received $270,000 from the deceased’s insurance compensation, but it was mainly used to cover “the debt of the deceased of $180,000”.

71. This was not covered in any witness statement of the plaintiff.  Her oral evidence was that the debt was not owed by the deceased but by his father, Mr Yim, who had borrowed the money from her sister-in-law, Ms Ko Yuk Ha, to pay off creditors of his business.  Ms Ko was called and she confirmed this.  But the social work assistant, Ms Wong, was also called, and she confirmed that she had been told that it was the deceased’s debt.  In cross-examination, she said that the plaintiff told her that, from the insurance payment, $180,000 had been used to pay a debt owed by the deceased, and the rest had been used to pay Mr Yim’s business debts.

72. Mr Wong, counsel for the defendants, strongly attacks the truthfulness of both the plaintiff and Ms Ko.  In brief the argument is that Mr Yim had plenty of money, and did not like to be in debt, so he would not have borrowed in any event.  Ms Ko, on the other hand, admitted to losing money in her business.  She was heavily overdrawn.  She would not have lent from her overdraft account.  If she did, there was no evidence that the overdraft was covered by her fixed deposit; and so on.  It is also said that Ms Ko was inconsistent as between her statement and her oral evidence.

73. This is all very well, but it does not necessarily follow that a person who has money will not borrow from a relative to cover cash flow, which is how the plaintiff explained it; nor does it follow that someone who is overdrawn by $2 million will not overdraw another $180,000 to help a relative.  Overall I did not get the impression that the plaintiff or Madam Ko were evasive or otherwise suspect.  They were giving evidence on matters which happened long ago, and in the plaintiff’s case, matters which did not affect her directly; a lot of them affected her husband rather than herself.  Some uncertainty and inconsistency is to be expected.

74. At the same time, Ms Wong gave the impression of being an honest and independent witness.  It is difficult to see how she could have been mistaken as to whether the debt was owed by the deceased (Ngai Ho) or the company (Ngai Yip).  Further, she says that she explained her report to the plaintiff, who did most of the talking at the interviews, and the plaintiff did not correct anything.  However, Ms Wong was also giving evidence of matters which happened long ago, and on a point she did not inquire into because she thought it was unimportant.

75. The problem with this allegation of a debt is that Ms Wong’s report of what the plaintiff told her is hearsay, relied on by the defendants to prove the truth of what was said.  Of course hearsay is admissible in civil proceedings subject to considerations of its weight.  The plaintiff denies either saying what is reported as hearsay, or the truth of what is reported.

76. If the plaintiff is disbelieved, and I find that she did tell Ms Wong that her son owed $180,000, there will still be a question mark over the truth of what was said.  But the matter does not end there; the plaintiff does not have to prove her case beyond reasonable doubt, i.e. to negative the reasonable possibility that the deceased owed a lot of money.

77. Of course if the plaintiff untruthfully denies saying the words, that suggests that the words must have been true, otherwise she would not deny saying them.  At the same time, however, this is hearsay evidence and in estimating the weight to be given to it, I must have regard to circumstances from which any inference can reasonably be drawn as to the reliability or otherwise of the evidence.  See section 49 of the Evidence Ordinance, Cap.8.

78. There is no extrinsic evidence or admission that the deceased either owed money, or lived in such a way as to indicate that he might have borrowed or needed to borrow money.  Mr Shek said he did not know of any debts.  So did his wife, the deceased’s sister, at the inquest.  All the plaintiff’s evidence and that of Mr Shek went to show that the deceased was a young man who lived quietly with his family and had no particular outside interests.  He used to go home and watch video recordings with his family.  The biggest expense we know about is his gift of a watch worth $15,000 to his sister.  None of this evidence was challenged and there is no reason to disbelieve it.  All this suggests that there was no reason for the plaintiff to tell Ms Wong that the deceased owed money, and that Ms Wong could be mistaken on this point.  Alternatively, I note that, according to Ms Wong, both the plaintiff and her husband were “very sad”, as they would have been.  This also raises the possibility of confusion on the part of her informants, if they were in a depressed emotional state.

79. Ultimately, the issue is whether the deceased was heavily in debt, so as to affect his ability to contribute to the family income and to save money for his own accumulation of wealth.  On the evidence as a whole, it seems most unlikely that he was.  The only indicator of debt is the denied hearsay that there was a debt, when there seems to have been no reason for the debt to exist.  I accept the evidence of the plaintiff’s witnesses that the deceased was not heavily in debt.

Pre-trial dependency

80. I have adopted, above, a median income figure of $21,000.  At the time of death the deceased was contributing two-third of his income.  I will take the median contribution as being the same percentage, i.e. $14,000.

81. The deceased lived with his parents.  The total household expenditure was about $32,650; this is the figure appearing in the original Statement of Damages, and confirmed by the plaintiff in cross-examination.

82. The plaintiff’s dependency claim as set out by Ms Leong in her written opening was based on a net contribution which took into account some of the household expenses as being referable to the deceased’s own upkeep, but not al of them.  For instance, the mortgage payments of $15,000 were not included.  Counsel relied on the judgment of Seagroatt J in Tsang Me Ying v. Lam Pak Chiu [1999] 3 HKC 59 as authority for this approach.  I do not quite understand this, because in the course of his exposition of the “principles in relation to assessment of dependency” Seagroatt J said that many items of dependency were common to the family, and that examples of these were rent, utilities and other fixed payments.

83. It seems that the mortgage payments must have been in part for the benefit of the deceased, for he lived with his parents, and the plaintiff said that they were a traditional family and would have gone on living together even if he had later married.  The same would apply to the utility charges.  He ate at home so would have shared in the benefit of the food bills.  I have some difficulty with understanding why clothing should be a common item, because one would expect a young man to buy his own clothes, and the same goes for medical expenses, family savings and “other expenses”.  I will therefore take it that, of the items listed, the first seven, which amount to $23,050 per month, should be regarded as common.

84. Taking a mean contribution of $12,000, minus one-third of $23,050, i.e. $7,683, this would mean that the parents were dependent on the deceased at the time of his death for $4,317 which is 24% of his income.  Applying this to the mean income of $21,000 produces a figure of $5,760 which falls to be divided equally, so that the multiplicand for each parent is $2,880.  Mr Yip, the father, died in February 2004, i.e. after 33 months.  The trial took place in January 2006, after 56 months.  The pre-trial dependency figures are therefore :

The father: $2,880 x 33 =	$95,040
The plaintiff: $2,880 x 56 =	$161,280
Total :	$256,320

Post-trial dependency

85. But for the accident, the deceased would now be 27 years old.  The plaintiff is now 56 years old.  The plaintiff pleads in the Revised Statement of Damages that the deceased would probably have married by about 2010 and would then give her less support.  Calculations are made up to 2020.

86. Now the plaintiff is seeking a multiplier of 12, following on Kong Yuk King v. Wong Yiu Wing, HCPI 713 of 1998 where this was allowed for the father of the deceased, aged 50 at the time of the accident.  At the time of the accident, the plaintiff herself was aged 50.  The defendant argues for a post-trial multiplier of 6, which amounts to the same thing and that is what I will apply.

87. I will take the deceased’s notional earnings at the date of trial as $24,000 per month.  The plaintiff’s dependency would probably have increased on the death of her husband.  She never worked and the deceased would have had to support her.  The rent and utility bills would have remained the same; the food would be less.  I will apply a multiplicand of $5,000 per month.

88. The plaintiff pleads that the deceased would have married in about 2010, at which time her dependency would decrease to a figure of about $1,500 per month.

89. The figure for 2006-2010 will therefore be $5,000 x 4 x 12 = $240,000 and the figure for the remaining two years will be $1,500 x 2 x 12 = $36,000.  The post-trial dependency figure is therefore $276,000.

LARCO – Loss of Accumulation of Wealth

90. The plaintiff needs to show a pattern of savings from which may be inferred a likelihood of future savings, or, if there is no pattern of savings, a probability of future accumulation of wealth.  See Kwan Lai Kuen v. National Insurance Co. Ltd [1998] 1 HKC 98.  There is no evidence that the deceased had any pattern of savings.  Establishing such a pattern is not a pre-condition of making an award.  See Lam Pak Chiu & Anor v. Tsang Mei Ying & Anor [2001] 2 HKC 1 (CFA).  However, I have not accepted that he was in debt.  The evidence is that he lived quietly.  It seems likely therefore that he could have saved some of what remained to him after contributing to the family.

91. The plaintiff pleaded in the Statement of Damages that the deceased could have saved $4,000 per month from the $6,000 which remained after contributing.  That seems optimistic.  In the Revised Statement this goes down to a figure of $2,500 from $7,000 remaining.  In fact, in the first year, he would have been earning $18,000 and keeping $6,000 and there would have been no MPF contribution; the scheme commenced in December 2000.  I will allow a figure for the first year of $2,500 x 12 = $30,000.

92. From December 2000 to the date of trial i.e. 62 months, the calculations must be based on the mean figure of $21,000 arrived at above.  I do not see why the deceased could not have saved $2,500 as well as paying his MPF contributions which would have been $1,000.  So for this period I will allow for savings of $2,500 x 62 = $155,000.  In addition the deceased would have to be credited with his own and his employer’s MPF contributions of $1,000 per month each, i.e. $62,000 x 2 = $124,000.  So the total accumulated wealth pre-trial would be $279,000.

Post-trial loss of accumulation of wealth

93. By this time the plaintiff would have been earning say $24,000 per month.  His savings should have increased in proportion to about $3,300 per month.  He was 21 at the date of the accident.  The plaintiff’s calculations are based on a post-accident multiplier of 20.  The defendants accept that a post-trial multiplier of 16, which is actually greater, would be reasonable, and I will adopt that figure.  The savings figure would therefore be $3,300 x 16 x 12 = $663,600.  The MPF figure for the same period would be $1,000 per month for the deceased and the employer, i.e. $384,000.  The total savings figure is therefore $1,047,000.

94. The defendants refer to the court’s duty under section 20(2)(b)(iii) of the LARCO to make such deduction as is considered just on account of accumulation of wealth and in order to avoid over-compensation.  Reference is made to the cases of Chow Ling Hung & Anor v. Lui Suet Hing & Ors, HCPI 332 of 1997, and Yu Shuk Ying & Anor v. Proficiency Industrial Products Ltd & Ors, HCPI 1019 of 1997.  In both cases a discount of 50% was applied.

95. In calculating the award the court is concerned with what would have passed to the deceased’s estate at the end of his notional full life.  The calculation has to take into account the possibility of diminution of savings by their being spent in retirement and so on.  See Lam Pak Chiu, above.  This deceased was only 21.  He probably had a life expectancy in excess of fifty more years, and a working life expectancy of 45 years if 65 continues to be regarded as the normal retirement age.  The multiplier already takes into account the normal risks and uncertainties of life, and acceleration of receipt.  I do not see that any further discount is appropriate here.

96. I will therefore allow a total figure for loss of accumulation of wealth of $279,000 + $1,047,000 = $1,605,000.

Loss of service

97. The plaintiff’s claim is for $2,000 per year for 20 years for do-it-yourself work which the deceased would have performed.  It is suggested that this claim is not genuine because it was not included in the first witness statement.  Also, it is said, the plaintiff accepted that she did not have such expenses any more because her daughter, with whom she now lives, pays for them.  Of course that is irrelevant.  If she had been in her own house, with her son, he would naturally have fixed the leaking taps and the like.  I will allow the figure of $24,000 claimed.

Funeral expenses

98. The claim is for $165,281.  Ms Leong in opening adopted a figure of $150,000 which is what the defendants accept.  However there is in the bundle a schedule of receipts for a total figure of $165,281 and that is what I will allow.

Summary of Awards

There will accordingly be judgment in favour of the plaintiff for $325,949.

Interest

100. This would normally be awarded at half the judgment rate on the awards for pre-trial loss of dependency and funeral expenses from the date of the Writ, but since the EC award was made on 30 April 2002, which is earlier, no award is appropriate.  As to the award for bereavement, Mr Wong says that interest should be 2%.  However in Kwan Lai Kuen, above, Keith J considered the law and awarded interest on the award for bereavement at the prevailing rate of interest payable on suitors’ funds from the date of the deceased’s death.  I will make the same award of interest here.

Costs

101. The costs of the action are awarded (nisi) to the plaintiff, to be taxed if not agreed.  The plaintiff’s own costs are to be taxed in accordance with the Legal Aid Regulations.