LEE SHING CHOU AND ANOTHER v. CHOW HO MING

1988 No. A5594

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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ASSESSMENT OF DAMAGES

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1. The deceased, Lee Fuk Chuen, was killed in a traffic accident in Shatin on 8th February 1986 whilst riding as a passenger in a vehicle owned and driven by the Defendant. Interlocutory judgment for damages to be assessed and costs was entered by consent on 13th October 1988, two months after the commencement of the proceedings by the father as administrator on 12th August 1988. Notice of Appointment of Assessment was issued on 20th March 1989. Particulars of Plaintiff's claim was filed on 18th May 1989.

2. The Plaintiff called a total of 3 witnesses, being the parents of the deceased and the personnel manager of the deceased's employer (P.W.1). The. Defendant called no evidence.

3. The deceased was aged 17 years and 3 months at the time of his death. He suffered multiple injuries and died prior to arrival at hospital. He was second of a total of 5 siblings. He and his father were the only providers for the family. His father was then working, and still works, at the container terminal. He was an unskilled worker in the production section of International Fan Manufacturing Co. Ltd. His monthly wages for January 1986 and bonus for 1985/86 were stated to be $2,845.56 and $1,496.70 respectively in a letter dated 30th December 1987 from the said employer (page 15 of Plaintiff's Bundle). The figures were further clarified by the personnel manager, one Cheung Yiu Chuen, in evidence. The said sum of $2,845.56 was made up as to $1,701.00 being basic wages, as to $720.56 being overtime pay, as to $224 being meals and travelling allowances, as to $100.00 being attendance bonus and $100.00 being unspecified special allowance. He used to contribute about $1,500.00 per month towards the family pool. The father was then earning about $3,750.00 a month and contributed about $2,500.00 to the family. Of the $4,000.00 in the pool, the mother said $1,102.00 went towards the personal expenses of the deceased's brothers and sisters (for their schooling, lunches and travelling etc.) About $1,985.00 went to specified common household expenses such as rent, ultilities and dinners. Lunch expenses for the mother and the youngest child cost another $180.00. Total expenses accounted for by specific evidence amounted to $3,267.00. No specific figures were given for other expenses such as breakfasts (apart from the father's), sundry and miscellaneous expenses. However, the mother did say nothing would be left from the $4,000.00 at the end of the month.

LARCO CLAIM

4. Miss Yuen for the Plaintiff invited the court to accept $2,845.56 as the monthly wages of the deceased at the time of his death. She said a further sum of $136.50 representing the monthly apportionment of the annual bonus should be added to the said wages ($63.00 per day x 26 days 12 months). Mr. Bharwaney asked the attendance bonus ($100.00) and special allowance ($100.00) to be deducted on the basis that there is no evidence as to whether such sums represented monthly or yearly bonus/allowance. On a balance of probabilities, I am satisfied that such sums are unlikely to be annual bonus/allowance in view of the smallness of the amount. There could hardly be any incentive if they were annual sums. Mr. Bharwaney also asked that the actual annual bonus for the year in the sum of $1,496.70 be taken as, the basis. I accent that to be the proper basis. Adoption of a notional annual bonus instead of the actual amount paid cannot be justified on any basis. In the premises, I find the monthly income of the deceased at the time of his death to be in the sum of $2,970.30 ($2,845.56 + 124.73).

5. P.W.1 said the deceased ought to be earning around $3,800.00 per month at the time of the assessment had he not died. He based his opinion on the earnings of 2 workers whom he said are in similar position to that of the deceased. He said the earnings would depend on the length of service and performance of the individual worker. It transpired when P.W.1 was recalled at the adjourned hearing that, Ho Man Lung (one of the 2 said workers), who was earning basic wages of $3,667.00 for the 3 months preceding the hearing, only joined the company in 1988. The other worker, Chung Kam Mui, joined at about the same year as the deceased and was making $3,948.00 for the same period as Ho. It is unclear if the figure of $3,800.00 quoted by P.W.1 was inclusive of overtime, bonus and/or allowances. P.W.l said generally speaking the deceased's employer was paying lower than average wages for similar workers in the Tuen Mun district. I am satisfied on the evidence that $3,800.00 is already a conservative figure in view of Chung's present basic wages of $3,948.00, and is to be accepted as the would-be earnings of the deceased. The median figure is thus $3,385.15 ($2,970.30 + $3,800.00 ÷ 2). There is unlikely to be any tax liability.

6. The Plaintiff urged the court to adopt a free-balance of 47.3% on the basis that a 10% notional savings be added to the free-balance. The deceased was a young bachelor in his teens. There is no evidence he had any savings or even a savings account with a bank. There is an absolute lacuna of evidence as to his lifestyle and pattern of expenditure. In fact, we know little about him. I do not find the application of the notional savings of 10% to be appropriate in the light of the present circumstances. I am satisfied that the deceased spent the rest of his income, apart from the contribution to the family pool, i.e. $1,470.30 on himself personally. It is interesting to note that the father said he spent about $50.00 per day on himself in February 1986, i.e. $1,500.00 a month. I accept the evidence of the mother that the whole of the $4,000.00 would have been used up every month. I find that apart from the $1,102.00 personal expenses of the deceased's brothers and sisters and the $180.00 lunch expenses for the mother and the youngest child, the rest of the $4,000.00 would be common household expenses. The deceased's share in the family expenditure is thus $388.30 ($4,000.00 - $1,102.00 - $180.00 ÷7). Thus the free-balance is 37.43% ($2,970.30 - $1,470.30 - $388.30 ÷ $2,970.30 x 100%).

7. The pre-assessment loss would thus be $54,483.65 ($3,385.15 x 37.43% x 43 months) for the period February 1986 to September 1989.

8. The Plaintiff asked for a multiplier of 17. The Defendant urged the court to adopt a lesser multiplier to counter-balance the "windfall" effect arising from some dependants not being beneficiaries in the deceased's estate. I cannot find any judicial justification to reduce the proper multiplier in order to counter-balance the "windfall" effect. I shall apply the multiplier of 17. The post-assessment loss is thus in the sum of $228,996.74 ($3,800.00 x 37.43% x 161 months).

9. Loss of expectation of life in the sum of $30,000.00 is also to be awarded. Funeral expenses in the total sum of $8,094.00 has not been challenged. Total award under LARCO is to be in the sum of $321,574.39 ($54,483.65 + $228,996.74 + $30,000.00 + $8,094.00).

FAO CLAIM

10. The deceased died unmarried and intestate leaving surviving him his parents and 4 siblings. The parents are the sole beneficiaries under the deceased's estate and no claim is thus made on their behalf under this head. Any such claim by the parents would be reduced totally by the award under LARCO. Mr. Bharwaney though conceding that the authorities are against him for any request to merge the siblings' claim under this head with the LARCO claim, asked the court to adopt some of the ways which some English courts have adopted to reduce the claim (under the equivalent provisions to LARCO) to avoid the injustice caused by such inability to merge. Though recognising the inequity that may be created by such. "windfall", I find myself unable to justify the said various English decisions that had been cited to me on any legal grounds. I will not go in depth into the said line of cases, which tried to achieve an equitable result subsequent to the House of Lords decision in Gammell v. Wilson [1981] 2 WLR 248 but prior to the amendment to the legislation, suffice it for me to say that I am unable to associate myself with any of the various ways of handling the situation adopted in them. I refer to the reasons I have given on 30th May 1989 in Wong Yin Ping, deceased v. Wong Hau On and another, H.C.A. No. A5590 of 1988, for following the obiter of our former Chief Justice in Wong Sai Chuen, deceased v. Tam Mei Chun [1983] HKLR 331 at 339.

11. The Defendant did not challenge the actual quantification of the dependencies of the siblings. However, in view of the slight difference in the amount of each member's share in the household expenses as quantified by Miss Yuen with that of the preceding finding, and oversight on some expenses; the award to be made is not the same as prayed and is as follows:-

(a)	The sum of $4,681.35 ($388.30 + 652.00 x	1,500	x 12
		4,000

month's) to Lee Wai Man who became financially independent one year after the death of the deceased;

(b)	The sums of $9,486.34 ($388.30 + 200.00 x	1,500	x 43
		4,000

months) as pre-assessment dependency and $4,242.94
($388.30 + 200.00 + 166.00 x	1,500	x 15 months) as
	4,000

post-assessment dependency for Lee Kam Fuk who is almost 18 and is still a student;

(c)	The sums of $9,486.34 ($388.30 + 200.00 x	1,500	x 43
		4,000

months) as pre-assessment dependency and $5,735.93
($388.30 + 200.00 x	1,500	x 26 months) as
	4,000

post-assessment dependency for Lee Lai Yee who is almost 16 and is still a student; and

(d)	The sums of $8,518.84 ($388.30 + 50.00 +	180.00	x	1,500
		2		4,000

x 43) as pre-assessment dependency and. $44,490.73
($388.30 +	230.00	+ 200.00 x 71 months) as
	6
post-assessment dependency for Lee Yip Chuen who is aged 12 and is still a student.'

12. I have included the additional sum of $166.00 as school fees for Lee Kam Fuk; and $90.00 ($180.00 ÷ 2) as pre-assessment lunch expenses, $388.30 as share in the household expenses, $38.33 ($230.00 ÷ 6) for stationeries and $200.00 as lunch/travelling expenses for Lee Yip Chuen. These expenses had not been included in Miss Yuen's calculations. As the Plaintiff has not sought to increase the rate of dependency for the post-assessment period, and there being insufficient evidence as to the household expenses as at the time of the assessment, no such increase has been taken into account. The total dependency claim is thus in the sum of $86,642.47.

13. Total damages are awarded in the sum of $408,216.86 with interest on the sums of pre-assessment loss, dependencies and funeral expenses at the rate of 4% per annum from the date of death to the date of assessment, and on the sum for loss of expectation of life at the rate of 2% per annum from the date of writ to the date of assessment. There will be an order nisi for costs of the assessment to the Plaintiff with certificate for counsel.

14. Dated this 5th day of September, 1989.