PANG CHING FA AND OTHERS v. LEE CHI KEUNG

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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ASSESSMENT OF DAMAGES

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1. The particulars of the accident giving rise to this action emerge from the Statement of Claim.

2. On the 2nd August 1983 at about 7 a.m. the deceased was walking along the pavement of Kwai Fuk Road, near Chung Shing Industry Estate, Block 1, Kwai Chung, when he was struck and knocked down by a private motor car, registration number BT 3352 driven by the defendant along Kwai Fuk Road in the direction of Kwai Chung.

3. Liability was resisted by the defendant until the action was placed in the warned list and then, by consent, interlocutory judgment with damages to be assessed, was entered on the 11th April 1986.

4. The evidence was taken before me on 28th May 1986 and the assessment was reserved.

5. At the assessment certain items were agreed.

6. Damages for loss of expectation of life were agreed at $20,000.

7. Damages for funeral expenses were agreed at $5,200. An additional amount of $3,500 was subsequently proved and it is convenient here to add this to the agreed amount making a total of $8,700 which need not be referred to again, save in the summary.

8. A multiplier of 13 was also agreed.

9. At the time of his death the deceased was employed by China Light & Power Co. Ltd. as an electrician.

10. His emoluments comprised three distinct parts - i.e. basic salary, annual bonus of one month's salary and overtime.

11. Page 1 and 2 of the agreed bundle contained details of the deceased's earnings at the time of his death.

12. I use the word "agreed" guardedly as it transpired that the agreement was illusory. Both Mr. Lavington and I assumed that it was agreed that the contents of the bundle were true. Apparently not, and I was urged that an anomaly arising or the face of page l and 2 should be resolved in favour of the defendant.

13. The author of the document on page 2 was not called, and the employee of China Light and Power who was called was not able to explain the anamoly between the figures in para.2 of page l and those in para (i) on page 2.

14. Had the bundle been the subject of a hearsay notice I would have unhesitatingly accepted the figures on page 2. However in the circumstances Miss Lau is right and the anomaly must be resolved in the favour of the defendant. This means using a lower figure of earnings of the deceased when calculating the pre-trial loss of earnings. This I now do.

Pre-trial loss of earnings

15. Mr. Thomas Chong of China Light and Power testified regarding page 1 of the bundle.

16. That showed that the deceased earned, in rounded up figures, during his last 6 months, $2,370 per month inclusive of his annual bonus. In addition, he worked overtime which represented as a percentage of his wages varied.

17. In respect of pre-trial lose of earnings I am going to take overtime as being 10% of basic wages i.e. excluding bonus.

18. There were annual revisions in 1984 of 10.16% and in 1985 of 11.01% as can be seen from page 2 of the bundle at para. (iii).

19. In January 1986 the deceased would have expected promotion to C2 electrician at a monthly rate of $3,298 + bonus of $275 + overtime of $330 = $3,903 per month.

20. Thus loss of earnings from the date of the accident to the date of the assessment can be calculated as:-

Loss of future earnings

21. The agreed multiplier was 13 years or 156 months. Deducting the 34 month pre-trial loss leaves 122.

22. The post-trial multiplicannd is:-

23. Mr. Chong gave evidence that the current rate of overtime varies between 7% and 10%. I have accordingly selected 8% bearing in mind the exemplary nature of the employer and the employee in this present case.

The Free Balance

24. The deceased was clearly a person who had pulled himself up  by his bootstraps. He has been variously described as an odd job man and a plumber.

25. However he was capable of obtaining and retaining a job as an electrician with a prestigious company such as China Light & Power. His record with them was "clean" i.e. he had no disciplinary matters recorded to his detriment. One can conclude also that his technical skill gave no rise to complaint.

26. His wages were put into the bank.  He withdrew for necessary monthly expenses.   He withdrew for expenses related to travel to China to marry his present wife and bring her to Hong Kong. Consumer items had to be procured and given to persons in China to secure her permission to travel to Hong Kong.

27. He smoked but did not drink alcohol or gamble. His wife was pregnant when he was tragically killed. A child was born post humously to the marriage.

28. A point strongly made by Mr. Lavington, and I accept it, is that, irrespective of the ins and outs of the deceased's bank account the deceased did in fact save a considerable amount of his earnings over a lengthy period prior to the preparations for his wife's move to  Hong Kong.

29. In my view this is one of the rare cases where the free balance is a reality rather than an actuarial fiction.

30. On the basis that I do not propose to make a separate assessment for savings I adopt a free balance of 65%.

Loss of Retirement Benefit

31. China Light & Power are what would be described in current jargon as a "caring" employer.

32. If an employee stays in their employ for a substantial period of time he is rewarded. This is appreciated apparently because many employees do remain with them.

33. There is an element of consensus that the deceased could reasonably have expected to work in his present employment for 20 years. To avoid contention I accept that, and in any event I believe the period to be a realistic one.

34. According to page 2 of Exhibit 2 that could provide for him 1.6 months wages for each completed year of service.

35. Taking his monthly wages to be $3,298 the benefit can be calculated as follows:

36. 3,298 x 20 x 1.6 = 105,536. Against this, credit must be given for the death gratuity paid in lieu of the retirement benefit.

Summary

37. There will be interest on the award for loss of expectation of life at 2% from the date of the issue of the writ and on the pre-trial loss and funeral expenses at 4% from the date of the accident, both to the date of this assessment.

38. The costs of this assessment shall be to the plaintiff, to be taxed if not agreed,and the plaintiff's own costs to be taxed in accordance with the Legal Aid Regulations.