KONG MIU LIN AND OTHERS v. TONG WING TAT AND ANOTHER

1984, No. 3660

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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ASSESSMENT OF DAMAGES

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1. Cheung Yau Hei was killed in a motor accident on the 2nd July 1981. Proceedings were commenced by a writ issued on the 31st May 1984 and interlocutory judgment was entered on the 26th July 1984. At the time of her death, the deceased was age 47 years and was employed as an assistant in a market stall selling vegetables. She had been in Hong Kong for about one year at the time of her death.

2. She left surviving her husband Mr Kong Lo Kau and 5 daughters Kong Miu Lin; Kong Yuk Chun; Kwong Yuk Ming; Kwong Yuk Ho and Kwong Yuk Ping.

3. The defendants agreed that the award for loss of expectation of life should be $20,000 and that for funeral expenses $1,900 as claimed. The only dispute between the parties was in relation to the LARCO award and FAO award.

4. In this particular case it is quite clear that the LARCO award and FAO award merged. It is therefore a question of assessing the “lost years” claim.

5. The evidence of Kong Miu Lin was that her mother lived with her along with another sister Kong Yuk Chun. They lived in a wooden but in Kwun Tong where the mother occupied a bed space. According to the evidence the mother had only very occasional meals at home. She paid the witness $500 per month to cover the cost of maintaining Kong Yuk Chun. The witness was adamant that this payment related only to her sister and was not to cover expenses for the mother. This evidence was not challenged in cross-examination. The witness said her mother was employed by a Mr Tong to assist with the operation of his vegetable stall and she understood from a comment that her mother once made that her income was approximately $2,000 per month. She also gave evidence of her mother remitting money to China as well as other goods such as furniture and electrical appliances.

6. Evidence was also adduced on behalf of the plaintiff by a Miss Lo, a statistician of the Department of Census & Statistics. She said that no direct statistics were kept to cover people in employment the same as the deceased. However, she was able to give figures that she felt would be comparable to the type of work carried out by the deceased. The first related to shop assistants in supermarkets and department stores and similar establishments. Her evidence was that in 1982 when they started their survey the income would be $2,069 per month whereas in June of this year it would be $2,585. The other comparative figures she advised was for workers in the wholesale vegetable business where the figure in March 1982 was $2616 and in June of this year $2,856.

7. The further witness called for the plaintiff was Mr Tong Cheong who owned the store where the deceased worked prior to her death. He confirmed that her income at the time of her death was $1,800 per month. He further stated that the deceased would receive a bonus towards the end of the Lunar year in the sum of between $600 and $700. He added further that he provided the deceased with her lunch each day at no cost to her. He said that occasionally she took vegetables array for her own dinner and that she did not have to pay for these vegetables. He went on and said that if he was still employing the deceased today, with her years of service, he would expect her to be earning $2,600 per month as a basic income.

8. A number of documents were adduced pursuant to Notices under section 47 and 49 of the Evidence Ordinance and Order 38 of the Rules of Supreme Court. They were receipts relating to the funeral expenses; furniture ordering forms for furniture sent to China by the deceased; and a number of letters from the deceased's family to her and a later one from the deceased's husband to the Director of Legal Aid. The notice was not challenged and the letters are especially revealing because they showed that the deceased did forward money, bicycles, furniture, electrical appliances and clothes to her family member in China.

9. The defendant adduced no evidence.

10. Against the background of this evidence Mrs Barnes submitted that it was quite clear that the deceased was uncommonly frugal. She submitted that on the evidence it would be reasonable to accept that the deceased only expended $300 per month on herself so that the rest of her income will be available as free balance. She submitted that the median income figure between the date of death and trial should be $2,250 per month. She based this calculation on a figure of $1,800 per month at the time of death and $2,600 per month at the time of the assessment. To this she added an amount that allowed for an annual bonus of $700. From this she submitted should be deducted the $300 the deceased would expend on herself giving a multiplicand of $1,950 and a multiplier of 39 being the number of months since the death of the deceased. This gave a pre-trial loss of $76,050.

11. In relation for post-trial loss she submitted that the income should be $2,650 per month allowing for the bonus less 20% of that being what the deceased would have expended on herself today. This gave a multiplicand of $2,120. She submitted that the appropriate multiplier in this case should be 12 years and in support of this submission she referred me to the decision of Fuad, J. in YAU CHI YUEN v. LAM WAI CHUNG HCA 1910/80 where a multiplier of 10 years was applied to a 45 years old married woman. She submitted in that case the woman was involved in heavier work than the deceased and given that Mr Tong the employer, said that he believe that the deceased could have worked to age 70, the appropriate multiplier in this case was 12 years. Deducting from this the 39 months pretrial gave a balance of 105 months and accordingly his Barnes submitted the post-trial loss should be $2,650- $350 (i.e. 20% of the income) = $2,120 × 105 = $220,600.

12. On the other hand Mr Yung considered that although the deceased was obviously extremely frugal she was not as frugal as she might have been. He referred me to the decision in Lau Kam Fook v. Ho Hon Por and Wong Cho Yin 9802 of 1982 where the free balance of a single girl was $1,250. He said this was 37% of her income and that should be used as a start point. He also referred me to the case of Peter Zee & Tung Bean v. Yau Yast Shing CA 59/83 where personal expenses rare taken at 45% of income. It is quite clear that, despite the many references in decisions in Fatal Accident cases, there is no such thing as a conventional percentage to be deducted. This can easily be seen by reference to the recent decision of the Court of Appeal in Wong Shu Wan v. Wu Kwok Yau CA 97/84. In the particular case before me there is clear evidence that there was a free balance. This can be seen by the $500 per month expended on the daughter in Hong Kong and the many gifts of cash and goods that were forwarded to the family in China. However, the evidence is of insufficient quality for one to be able to do a precise and exact calculation. I accept without hesitation that the deceased in this case was uncommonly frugal and indeed this has been conceded by the defence. Mrs Barnes suggested that the figure should be as low as 20% but it seems to me that this is much too low a figure to expect even the most frugal of people to expend on their own living expenses. In a somewhat novel approach Mr Yung suggested two different percentages based on what multiplicand was used. He suggested that firstly one should take the figure earned at death and then increase it annually by 10% to allow for inflation. If this was done he submitted an appropriate amount that the deceased would have expended on herself would be 30% of her income. However, he said that if the evidence of Mr Tong was accepted that the deceased would be earning $2,600 today, the appropriate percentage would rise to 35%. I am not quite sure why this should be so.

13. The appropriate starting point for post-trial income must be the $2,600 per month that the deceased's former employer said that she would be earning. Despite cross-examination this was not really challenged in any way. To this must be added $50 per month to allow for the Lunar New Year bonus. This give a figure of $2,650 per month. As stated before, and as has been conceded, the deceased was unusually frugal. However, there was no evidence as to the exact amount she spent on bus fares; the amount spent on her evening meals; the amount spent on clothings (despite the fact that there was some evidence to indicate that the clothing she purchased was of a vary cheap nature), and looking at the matter at its totality it is impossible to arrive at a suitable monetary figure to deduct. Looking at the matter in the round I am satisfied that given her frugality the deceased would have expended 1/3 of her income on herself. This means that the appropriate deduction would be $883.33. This would give a multiplicand of $1,766.67 per month rounded up to $1,770.00.

14. Mr Yung said that he disagreed with Mrs Barnes submission in relation to a multiplier. He accepted a 10 year multiplier but said that the 12 year that Mrs Barnes sought to apply was wrong. He said that there was nothing abnormal in this case to suggest that a longer multiplier than was commonly applied should be applied here. I accept that. The deceased was ate 47 at the time of her death. One must make allowance for the vicissitudes of life and the fact that the compensation would be payable in a lump sum. A 12 year multiplier is too long in the circumstances and I consider the appropriate multiplier to be 10 year. Accordingly, the award for post trial loss will be: -

15. $1,770 × 81 (120 months - 39 months) = $143,370

Summary

16. There will be interest on the General Damages at the rate of 2% per annum from the date of the issue of the Writ until judgment and on the Special Damages at the rate of 6.5% per annum from the date of accident until judgment. There will be no award of interest on the award for Loss of Future Earnings.

17. There will be costs to the plaintiff to be taxed failing agreement. The plaintiff's own costs to be taxed in accordance with the Legal Aid Regulations. There will be a certificate for counsel.

18. Dated this day of November, 1984.