LILY TSE LAI YIN AND OTHERS v. THE INCORPORATED OWNERS OF ALBERT HOUSE AND OTHERS

HCPI 828/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES LIST NO.828 OF 1997

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ASSESSMENT OF DAMAGES OF THE 7TH PLAINTIFF

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1. The 7th plaintiff brings this claim on behalf of the estate of her deceased mother, Mo Yee ("the deceased"), who died as a result of the collapse of a canopy at Albert House on 1 August 1994 ("the accident"). The claim is brought on behalf of the estate of the deceased as well as the dependents of the deceased, namely the husband of the deceased now aged 85 and the son of the deceased now aged 38 who had previously suffered an accident at work resulting in head injuries and thereafter became partially dependent upon the deceased and was so at the time of the accident.

2. Liability has already been determined against all the defendants. This is now the assessment of damages. At the assessment hearing, the 2nd and 5th defendants appeared by counsel. The other defendants did not see fit to appear either in person or by counsel.

3. There is no dispute that at the time of the accident the deceased was tending the newspaper stall operated by her daughter, the 2nd plaintiff herein, which was situated outside the entrance of the New Best Restaurant on the pavement immediately below the canopy which collapsed. The deceased was buried under the concrete canopy when it collapsed and was certified dead upon arrival at Queen Mary Hospital. There can be little doubt that her death was caused by the collapse of the canopy.

4. There is also no dispute that prior to the accident the deceased's husband, who was then aged 76 (now aged 85) was wholly dependent on the deceased for his living. It is also not in dispute that Tsui Yau, a son of the deceased who was aged 31 at the time of the accident was partially dependent upon the deceased for his living due to the fact that about one year before the accident, he had suffered a serious head injury involving the fracture of the base of his skull while at work.

5. The deceased was a retired civil servant and at the time of the accident she was in receipt of a monthly pension of $2,454.80. She also received an old age allowance from the Government of $550. She operated her own newspaper stall and earned about $3,000 per month from it. Additionally she was paid $2,400 by her daughter, the 2nd plaintiff, for assisting in looking after the 2nd plaintiff's newspaper stall. Totally therefore the deceased had a monthly income of $8,404.80. There is also evidence in the form of correspondence with the Treasury which shows that by August 1998 the pension and the social welfare allowances which the deceased was receiving would have increased to $3,229 and $705 respectively.

6. The evidence which was not challenged at the hearing showed that the deceased lived with her husband and her son Tsui Yau in a public housing unit. The deceased paid all the outgoing including rent $1,043, utilities $610 and food $2,500 monthly from her earnings. The total household expenses therefore came to $4,153.

7. The evidence further showed that the deceased's husband was retired and in receipt of a pension as well as social welfare which he spent entirely upon himself. He was fond of gambling on cards and horses. At the time of the accident he was no longer working but depended upon the deceased to support him. In addition to paying the household expenses, the deceased also gave to her husband $2,000 each month.

8. As for the deceased's son, although he had suffered the severe head injury mentioned above, he was still able to earn a living. However, the deceased nonetheless gave him $1,000 each month. To that extent he was partially dependent upon the deceased.

9. At the time of her death, the deceased was physically in possession of $20,000. In addition her banking documents shows that she had savings of over $100,000 and joint savings of over $50,000. Her daughter, the 2nd plaintiff, gave evidence that the deceased was a hard-working, responsible and fungal person who had saved over the years.

THE FAO CLAIM FOR LOSS OF DEPENDENCIES

10. Past loss of dependency is claimed for a period of 48 months in the pre-trial period until about August 1998 when the deceased would have reached eighty years of age. The 2nd and 5th defendants concede in their Answer to the Update Statement of Damages that the deceased would probably have worked until she was eighty.

11. From the evidence adduced, the total income of the deceased came to $8,404.80. Taking into account the increases to the pension and social welfare allowances of the deceased by August 1998, even assuming that her income from her own newspaper stall and from what her daughter paid to her remained the same, the total income of the deceased would have increased to $9,334 per month. Therefore her median income comes to $8,869 per month.

12. I also accept the evidence that the deceased paid $4,153 per month in household expenses. From this amount would be deducted the sum of $1,833 being that of the deceased's own share of the food expenses as well as $500 being medical bills of the deceased and a further $500 being the expenses for clothes of the deceased. To that is added on the $2,000 and $1,000 paid to the husband and son of the deceased respectively. This therefore gives the total dependency of $6,320 at the time of the accident which is 75% of the deceased's income at the time of the accident. This I find to be the level of the dependency at the time of accident.

13. Given that the median income of the deceased I have found to be $8,869 the rate of the dependency being at 75% for 48 months would give the total past loss of dependency to be $319,284. The interest on that amount at half judgment rate from accident to judgment would give $130,172. Together they add up to $449,456.

14. From the evidence I further find that although the son, Tsui Yau, was partially dependent upon the deceased, it is more likely that a larger proportion of the dependency would be to the husband of the deceased whose old age and infirm health would have made greater demands on the deceased. I would therefore apportion the loss of dependency as to 80% being to the husband of the deceased and 20% to Tsui Yau, the son of the deceased. This gives the figure of $359,565 and $89,891 respectively to them.

15. Apart from the 48 months loss of dependency, no further claim is made for loss of dependency by the 7th plaintiff.

BEREAVEMENT

16. The statutory amount of $70,000 will be awarded under this head and interest thereon will be awarded at the Suitors Fund Rate of 4.5% from accident until judgment giving an amount of $21,262.

THE LARCO CLAIM

17. The 2nd and 5th defendants have conceded $30,023.52 as the loss of accumulation of wealth for the remaining four years of the working life of the deceased. This amount is accepted by the 7th plaintiff as being a reasonable amount for damages under this head and the same will be awarded. Nor other claim is made in respect of loss of accumulation of wealth.

18. As for funeral expenses the 2nd and 5th defendants have conceded that a sum of $131,732.50 was reasonably expended for funeral expenses. Despite a slightly higher amount is claimed by the 7th plaintiff under this head of damage, the 7th plaintiff is prepared to accept such concession by the 2nd and 5th defendants. Accordingly this amount would be awarded under this head. Interest would be awarded upon the sum (at 10.96%) from the day of the accident.

SUMMARY

19. The total damages including interests is therefore assessed at $800,000 in respect of the claim by the 7th plaintiff.

COSTS

20. There will be the usual costs order nisi that the costs of this assessment be borne by all the defendants in favour of the 7th plaintiff to be taxed on party and party basis if not agreed and that the 7th plaintiff's own costs be taxed in accordance with the Legal Aid Regulations.