LEE CHING HA AND OTHERS v. KIT MAN AND ANOTHER

1989 No. A1540

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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ASSESSMENT OF DAMAGES

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1. The deceased was a passenger on board a vehicle owned and driven by the Defendant. On 19.12.87 defendant drove the vehicle at a speed and in a manner which caused the car to cross the central dividing parapet and collide with an oncoming vehicle. Deceased died on the 20.12.87 as a result of multiple injuries sustained in the accident. The deceased was survived by his wife, two sons and mother.

2. The Writ and Statement of Claim was issued on 22 March 1988. There was a delay in the Acknowledgment of Service as the Defendant bad died on the 12 April 1988, as the result of another motor accident. An application was made on 13.6.89 to have defendant's father appointed to represent defendant's estate. On 4.9.89 an Acknowledgement of Service was filed. Interlocutory judgment was entered for the Plaintiff, by consent, on the 11 October 1989, with damages to he assessed and costs to be taxed.

3. At the assessment Counsel for the Plaintiff produced a bundle containing copies of the identity cards of the deceased and his dependants; copies of the sons' birth certificates; a receipt for funeral expenses; a letter from deceased's penultimate employer about his earnings; copies of entries in deceased's savings and current accounts; copies of rental receipts; copy of marriage certificate and a copy of a letter relating to school fees. The claim for damages was under the Law Amendment and Peform (Consolidation) Ordinance, Cap. 23, provisions operative since November 1989 and the Fatal Accidents Ordinance, Cap. 22.

4. Counsel for the parties advised the court from the outset of the assessment that certain matters were agreed. The matters were as follows:-

(a) The deceased contributed $6,000.00 per month to support his family in Hong Kong as under:-

Common Pool

(b)     A post trial multiplier of 13 months was agreed for the elder son Yam Chi Wai.

(c)     A post trial multiplier of 12 months was agreed for deceased's mother.

(d)     It was agreed that the younger son was not entitled to any award for post trial dependency, that younger son being self-supporting.

5. The major items remaining in dispute were the amount of the deceased's earnings at the date of his death; his likely future earrings, the degree of dependency and whether an award for accumulation of wealth was justified. Oral evidence was given by the plaintiff and the deceased's employer at the date of death.

6. The plaintiff was not able to give any pertinent information about deceased's earnings and disclaimed any knowledge of his finances. She confirmed that prior to death her husband had given her $6,000.00 per month for housekeeping and that her husband's contribution to the housekeeping had increased over the years of their marriage from around $750.00 to $6,000.00 per month. She gave evidence that her husband's contribution to his mother in China was $500.00 per month and that this sum was taken into China by deceased's brother-in-law, whose wife and family resided there. When cross-examined to the effect that she did not really know what the amount was, she was adamant that the minimum sum would be $500.00.

7. I was satisfied that $500.00 was the amount paid by deceased to his mother each month. Deceased had a well paid job and was an only son. The arrangement was accepted as a regular one by the wife who said that each time deceased's brother-in-law returned to China he would come for a meal and collect the money to take it back. The widow referred to this occurring at one or two monthly intervals - this would be consistent with the $500.00 or $1,000.00 payments referred to by the plaintiff. I accept the widow's evidence on this point and awarded $500.00 as the pre-trial amount payable to Chan Yam Kam, aged 70 years.

8. Mr. Leung Kam Wah of Yee Tak Engineering Ltd. said he had employed deceased on his construction site for about a month prior to his death. His duties as supervisor were to plan and execute all aspects of a $20 million project from its initiation. Deceased's salary was $12,000.00 a month and Mr. Leung gave it as his opinion that if in the same post now, deceased would have commanded earnings of over $20,000.00 per month. He said that after deceased's death he had to engage two men to do the work of deceased; one as a surveyor, the other as a foreman, with combined salaries of $15,000.00 per month. He said that there were few people who combined deceased's experience and that such were in short supply.

9. In respect of deceased's penultimate job with Hung Yee Construction a conflict of evidence arose as to the amount of deceased's wages. He was employed as a site Foreman from 1.1.86 to 30.11.87. A letter from the firm dated 14.11.88 stated that deceased's salary for the period was $8,000.00 made up of $6,000.00 and $2,000.00 as allowance. This letter was signed by Mr. Chuk, a director of the company. Another director, Mr. Tan Chi Keung, was called by the defendant and he stated that deceased had been paid $12,000.00 per month with $8,000.00 as salary and $4,000.00 as travelling allowances. Such allowance being given because the job on which deceased was employed was at Mui Wo, on Lantau Island. This analysis of deceased's salary was not supported by any documentary evidence. Mr. Tan was unable to say why the letter from Mr. Chuk was so different in content from what he stated, although he did say that he thought it might have been a mistake on the part of his co-director.

10. Defence counsel endeavoured to show that various cheques paid into deceased's bank account might support the salary and allowance claimed by Mr. Tan as having been paid to deceased, but no attempt was made to call Mr. Chuk who, as the writer of the letter and the man in charge of accounts, might have been able to explain the alleged error. No time sheets or wages slips were referred to. Mr. Tan made it quite clear that he was not the person concerned with such matters and it was difficult to discern why he was called at all. It was advanced that he was an independent witness on this matter and I was prepared to accept him as such. He was also a fairly useless witness for the purposes of the defence case. Mr. Tan did give his opinion as to the level of wages deceased might receive now, but the value of this assessment was somewhat dimmed when he revealed that he had not been actively involved in the construction industry for 2 years. Mr. Leung for the same period, although involved only with small projects which had not involved his hiring a works supervisor, had a more informed view of the general increases in wage rates in the building industry and of current wage levels.

11. The other witness whose evidence fell to be assessed was the statistician from Census and Statistics department.

12. This evidence was informative but not particularly relevant except as a very general guide. First, the level of wages recorded was not sufficiently up to date and did not cover a sufficiently wide sample of employees to be authoritative. The figures confirmed a general increase in wage levels over the period in question, but did not reflect adequately the very high level of wages received at present by unskilled labourers, or the shortage of labour both skilled and unskilled. The other difficulty with these figures is that the job categories did not allow a straight comparison to be made in cases where, as in this case, the employee because of his skills (which may not necessarily be formally recognised by diploma or certificate), performs more than one skilled task for his employer. Here deceased was recognised as having some skill in surveying, although there was no evidence given that he had formal training. His wife referred to his dealing with blueprints at home; Mr. Leung says he employed him, at least in part, for that skill and that he had to be replaced by a surveyor after his death.

13. Having considered the evidence available on those points I accepted that in the period prior to his death deceased was earning $8,000.00 per month and that at the date of his death he was earning a monthly salary of $12,000.00. I took this latter figure in assessing pre-trial dependency.

Future Earnings

14. In assessing future earnings I took into account the following matters: deceased's age, experience and work skills; that his job prior to death brought him into the lower range of managerial jobs; the general increase in wages in the building industry; the scarcity of employees of deceased's calibre; the nature of deceased's work which made it likely that he could continue to work rather longer than a manual worker of the same age; that the nature of the Hong Kong building industry was such that lack of formal qualifications would not prevent deceased from progressing in his field.

15. Although the project on which deceased was engaged at the time of his death was not of the first magnitude, it was nevertheless a substantial one which lasted from December 1987 to December 1988. Deceased went from the job as site foreman to the job as site supervisor without a break and it is reasonable to assume that after that job he would have been able to go immediately to another project at, given the wage trends, a higher salary. Mr. Yeung stated that deceased would be able to command more than twenty thousand dollars at the present time for similar work. It is on this basis that I considered it reasonable to assess the figure for future earnings at $20,000.00.

F.A.O. Award

(1)     Danages for bereavement to the first-named Plaintiff under S.4(2)(a) $40,000.00

(2)     Loss of Dependency

16. At the time deceased earned $8,000.00 p.m. his family was dependent on him in the following proportions - the same having been agreed by the parties:

17. The post with Yee Tak Co. brought a 50% increase in salary - thus in January 1988 the dependencies would be upgraded by the same percentage:

Pre Trial Median Earnings

18. The median is taken of the $12,000.00 p.m. earned at the time of death and the $20,000.00 assessed as post trial earning, which is $16,000.00, representing a 33.33% increase in the dependencies. The time between death and trial is 28.5 months.

Post Trial Earnings

19. The post-trial earnings were assessed at $20,000.00 which represented a 25% increase over the pre-trial median earnings.

20. The pre-trial median dependencies were upgraded by 25% to the nearer whole dollar and multiplied with the appropriate multipliers.

The LARCO Award

Funeral Expenses

21. Originally the Plaintiff had claimed $30,000.00 in respect of funeral expenses. The only receipt put forward showed that the sum of $7,700.00 had been paid to the funeral home. Counsel for the Plaintiff conceded that the sum of $30,000.00 as claimed could not be sustantiated. Accordingly, I allowed the sum of $7,700.00 in total, for funeral expenses.

Claim under Section 20(2)(b)(iii) of the Law Amendment and Before (Consolidation) Ordinance Cap.23

22. The last head of claim was for accumulated wealth. The section requires that the court must be satisfied ... that the deceased would have achieved an accumulation of wealth by the time he would otherwise have died. There was no help to he gained from the Plaintiff or the bank accounts in determining any savings pattern. Counsel for the Plaintiff argued that although there was no evidence to substantiate a savings pattern that this should not preclude the court from considering the point by looking at likely changes in the factors that govern the accumulation of wealth, namely, income, personal expenditure and financial contribution to dependants. It was conceded that the rise in income over the years would not of itself be likely to lead to any savings being made as deceased's expenditure would rise as his expectations increased. For was his personal expenditure likely to decrease.

23. What would change, argued counsel, was the amount of deceased's contribution to his dependants. Given deceased's age, the group of dependants was unlikely to increase in number. Deceased's mother was 74 and unlikely to require support at a much greater level than she was already receiving, even if she survived for a longer period than was countenanced by the multiplier that had been agreed for her. The younger son was already supporting himself and the elder son almost in a position to become self-sufficient. It was conceivable therefore that at some stage in the next few years deceased would have surplus income over and above his needs which would enable him to save for his retirement.

24. Counsel for the Respondent aroued that the lack of an established savings pattern meant that any award would be based or speculation only and that no award should be made for accumulated wealth. The court was referred to the case of Wai Kang Kwan the Administrator of the estate of Wai Sau Lai deceased and Wong Wing Fong A1803/89, where it was stated that the court must not speculate beyond such future probabilities as may be reasonably inferred from the present facts. That case was rather different on its facts from the imstant one. It involved a young, unmarried girl who had a very short working history. The court declined to make an award for accumulated wealth in that case, despite the fact that the girl made a major contribution to her family, because the court considered that the assumptions that the court was required to make had little foundation in reality.

25. I was aware in considering the facts of the instant case that it would be inappropriate to make an award under this head that was purely speculative. Nevertheless, I considered that there was sufficient information before me to make an award under this head. Deceased was a man of mature years, entering the peak years of his working life in terms of his earning capacity and his experience.

26. There was no indication that he was a spendthrift or a wastrel. His wife confirmed that he had regularly supported the family with housekeeping money that had increased over the years in line with his earnings. In the next few years with both sons being self supporting, even if they were not contributing to household expenses the deceased would have surplus income. Accepting, as I did, that deceased's future earnings would be at a fairly high level I considered that it was more likely than not that deceased would endeavour to make provision for his retirement by accumulating savings. He was unlikely to have further children, nor was there any indication on the evidence that the elder son was likely to proceed further with his education to tertiary level. He did not contribute to any pension scheme nor did the evidence show that he had had his wherewithal earlier to make such provision. It was therefore probable that he would endeavour to save an amount roughly equivalent to what be formerly expended on his dependants.

27. Accordingly after considering the evidence and the submission, made by counsel on this point, I was prepared to make an award under this head in the sums urged by counsel for the Plaintiff insofar as the amounts formerly expended on his two sons were concerned. I did not included the amount that would, in theory, be released by the expiry of the mother's dependency. It was not improbable that she would require to have been supported by deceased for another 10 years or more - no evidence had been given as to her state of health - and, in the absence of a savings pattern, to allow this amount did in my view, amount to speculation.

The LARCO Award

(1)	Funeral Expenses	$7,700.00
(2)	Loss of Accumulation of Wealth under S.20(2)(b)(iii)
	Yam Chi Ho gains independence $3,508.91 x 125% x 79.5 months	$348,697.93
	Yam Chi Wai becomes independent $4,871.13 x 65.5 months	$323,930.14
		$680,328.07

28. Interest on the funeral expenses and pre-assessment loss will be at judgment rate from the date of death to the date of this assessment.

29. No interest will be allowed on the award for future loss of earnings.

30. Costs of this assessment be to the Plaintiffs to be taxed on a party and party basis if not agreed and in accordance with Legal Aid Regulations.

31. As Yam Chi Bo and Yam Chi Wai are minors their shares will be invested for their benefit with the Registrar, Supreme Court, until their majority.

32. Certificate for counsel granted.