YEUNG YUET MEI v. WONG YAU MING AND ANOTHER

HCPI 77/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES LIST NO.77 OF 1998

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REASONS FOR JUDGMENT

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1. This action is brought by the plaintiff as the administratrix of the estate of Yeung Yue Sun, deceased ("the deceased") on behalf of the estate and the deceased's dependants under the provisions of the Fatal Accidents Ordinance, Cap.22 and the Law Amendment and Reform (Consolidation) Ordinance, Cap.23. At the conclusion of the trial, I gave judgment for the plaintiff against the 1st defendant. My reasons appear below.

Background

2. In February 1995, the deceased commenced partnership with Mr Mak Chi Keung and Mr Yau Tak Hing to operate a plastic material recycling factory in Lau Fau Shan, Yuen Long. To facilitate the recycling business, the partnership purchased from the 1st defendant a granulator for the purpose of grinding plastic items into plastic granules, which would be sold to factories in Hong Kong and the Mainland. The machine was manufactured in the Mainland and was delivered to Hong Kong in three parts. It was assembled on the deceased's factory premises by the 2nd defendant, who was an employee of the 1st defendant. On 18 February 1995, electricity supply was connected to the machine. After about 10 minutes of operation, the feeder hopper of the machine became detached from the machine and crushed against the lower part of the deceased, who was working nearby the machine. The deceased was certified dead shortly after arrival at the hospital.

3. The accident was investigated by the Labour Department. The factory inspector found that the accident was probably due to the bolts of the rotary knife of the machine not being tightened or had become loosened in the course of transportation and/or the fixed knife of the machine had become loosened. As a result of one or more of these causes, the rotary knife and the fixed knife hit against each other, thus pushed up the feeding hopper and caused it to become detached.

4. Letters of Administration was granted to the plaintiff, who was the wife of the deceased, on 2 December 1997. On 23 January 1998, the Writ herein was issued. In it, the plaintiff claims against the 1st and 2nd defendants for damages in negligence in the assembling of the machine, and also against the 1st defendant in vicarious liability.

5. Both defendants were initially legally represented and defence denying negligence was filed. After the action was set down, the defendants gave notice to act in person on 28 November 2000. A few days before the trial originally scheduled on 11 December 2000, the 2nd defendant applied for legal aid and the action was stayed. The legal aid application was unsuccessful.

6. At the re-scheduled trial, the 1st defendant continues to act in person. The 2nd defendant was absent. The 1st defendant informed the court that he had died of cancer lately. This is confirmed by an urgent search conducted by the Legal Aid Department for the plaintiff, which reveals the 2nd defendant to have died on 23 January 2001. Consequently, the plaintiff applied, and was granted, leave to stay the proceedings against the 2nd defendant with liberty to apply. The trial therefore only proceeded against the 1st defendant.

7. Having been explained counsel's opening submissions and after leave to stay the proceedings against the 2nd defendant was granted, the 1st defendant indicated that he admitted liability. As to quantum, he also indicated that he did not wish to contest it but would leave it to the court to assess the amount. The plaintiff therefore proceeded to prove her case on damages. Mr Yau, one of the deceased's partners, and the plaintiff were called as witnesses. Their evidence was not disputed by the 1st defendant.

Damages under the Fatal Accidents Ordinance

8. The deceased was 41 years old at the time of the accident. He came to Hong Kong from the Mainland in 1978. Before he joined the partnership business in 1995, he was a lorry driver and his average monthly income was $14,138. The deceased was married with three children. All of them were wholly dependent on him. The eldest son, Kwok Hung, was 21 years old in February 1995. He was a post-secondary school student in the Mainland. He graduated in September 1995. He started to work not long after and ceased to be a dependant. The second son, Kwok Fai, was a 19 years old high school student when his father died. He also lives in the Mainland. He graduated from university in September 1998 and ceased to be a dependant since. The youngest daughter, Kwok Mui, was a Form 3 student at the time of the accident. She finished her secondary school education and continued to receive an one year full-time accounting studies. She started to work in August 1998 and is no longer a dependant. The plaintiff was 41 years old when she lost her husband. She together with the daughter emigrated to Hong Kong from the Mainland in 1993. She was a housewife and depended wholly on the deceased. She has not worked since the deceased's death.

9. Initially, the plaintiff also included the plaintiff's father and uncle, both living in the Mainland, as the dependants of the deceased. Mr Lam who appears for the plaintiff, quite fairly and properly, acknowledges that they are not within the categories of dependants under the Fatal Accidents Ordinance. Their claims of dependency are therefore not pursued.

10. The evidence shows that Kwok Hung's monthly living expenses and tuition fees in 1995 was between RMB1,500 and 2,000, giving a median figure of RMB1,750. At the conversion rate of 1.1, his monthly dependency is therefore HK$1,750. As for Kwok Fai, his annual tuition fees was RMB10,000 and his monthly expenses was RMB2,000. Hence, his monthly dependency was RMB$2,833 (i.e. RMB10,000 x 1/12 + RMB$2,000), equivalent to HK$2,833. Kwok Mui's monthly tuition fees, expenses for lunch and travelling and pocket money came up to approximately HK$1,000 in 1994 to 1995. In September 1995, it was increased to HK$2,000, which was further increased to HK$5,000 in September 1997 when she undertook the accounting studies.

11. The evidence also shows that in February 1995, the deceased was contributing to the monthly household expenses of about HK$6,130. The expenses were shared between the deceased, the plaintiff and Kwok Mui, giving HK$2,043 per share. The plaintiff argues, and I accept, that after the children graduated and became independent in 1998, the deceased would have more income at his disposal. He would probably have used part of the extra money to improve on the living of the plaintiff and himself, apart from saving up the surplus, a matter that I shall return to deal with later. The extra sum available was in the region of $10,150. The plaintiff considers, and I agree, that half of that should be reckoned as the increment in the plaintiff's share of dependency. The plaintiff's dependency by September 1998 is therefore $7,794 (i.e. $2,043 x 1.1 x 1.1 x 1.1 + $5,075).

12. The plaintiff has claimed a notional increase of 10% p.a. in the deceased's income from 1995 to 1998. No increase was claimed for the period after 1998 in recognition of the economic downturn. The plaintiff has adduced the Government's Half-Yearly Reports of Wage Statistics for March 1995 and March 1998 which show an over 30% increase in the income of a lorry driver. Additionally, there is the evidence of Mr Yau that as at January 1995 and before the deceased was admitted as a partner, the recycling business was producing a net profit of over $60,000 every month, so that he and Mr Mak's share was some $30,000. This was expected to rise after the deceased joined as the business turnover was likely to increase with additional resources both in terms of labour and financial input. It is therefore probable that the deceased would earn much more than the $14,000 monthly salary he was making in January 1995. I am therefore of the view it is appropriate to adopt a 10% annual increase when projecting the deceased's income up to 1998, but to allow no inflation thereafter.

13. The accrued loss of dependency is therefore made up as follows :

(1)		Yeung Kwok Hung	HK$ 13,125.00
		$1,750 x 7.5 months
(2)		Yeung Kwok Fai		43,631.00
		1/2 x ($2,833 + $2,833 x 1.1 x 1.1 x 1.1) x 43.5 months
(3)		Yeung Kwok Mui		213,107.00
	(a)	February - August 1995
		($2,043 + $1,000) x 6.5 months	$19,779.50
	(b)	September 1995 - August 1997
		[1/2 x ($2,043 + $2,043 x 1.1 x 1.1) + $2,000] x 24 months	$102,180.00
	(c)	September 1997 - August 1998
		($2,043 x 1.1 x 1.1 x 1.05 + $5,000) x 12 months	$91,147.50
(4)		Yeung Yuet Mui		358,399.50
	(a)	February 1995 - August 1998
		1/2 x ($2,043 + $2,043 x 1.1 x 1.1 x 1.1) x 42.5 months	$101,197.50
	(b)	September 1998 - May 2001
		$7,794 x 33 months	$257,202.00	_________
			HK$728,172.50

14. As for future loss of dependency, only the plaintiff is eligible for it. The deceased and the plaintiff were both 41 years old in February 1995. I agree that a multiplier of 14 is appropriate. The amount to be awarded for future loss of dependency for the plaintiff is therefore $724,842 (i.e. $7,794 x (12 x 14 - 75) months).

15. The plaintiff is further entitled to damages for bereavement in the sum of $70,000.

Damages under the Law Amendment and Reform (Consolidation) Ordinance

16. The deceased maintained several bank accounts. At the time of his death, he had some $50,000 in his bank accounts. Further, shortly before his death, he had contributed $150,000 to the partnership capital. At the same time, the deceased had also by 1993 acquired 6 properties in the Mainland, one of which was however lost as a result of the Mainland developer going into liquidation. According to the plaintiff, the deceased had spent no less than HK$1.2 million on these Mainland properties.

17. The bank account records of the deceased do not show a systematic savings pattern. On the other hand, the evidence of the plaintiff shows the deceased to be a frugal and hardworking man. The fact that he had accumulated some $200,000 cash not long before his death and had also throughout the years managed to purchase six landed properties are clear indications that the deceased did have a saving habit. There is a high probability that he would have accumulated wealth on his notional death. This is particularly so having regard to the fact that the three children all ceased to be financially dependent on him after 1998 so that there would be extra money for saving up. Given that the evidence does not reveal a regular savings pattern, it will not be possible to quantify mathematically the loss of accumulation. The making of a global award is therefore a more appropriate approach. Considering that in the 18 years after he came to Hong Kong, he was able to accumulate wealth in the region of some $1.4 million. I agree that $500,000 would be an appropriate amount for this head.

18. The plaintiff also claims funeral expenses in the sum of $75,000, which was supported by documentary evidence. The claim is to be allowed.

Interest

19. There will be interest on the accrued loss of dependency and funeral expenses at 6.04% p.a. from the date of accident to the date of judgment. The bereavement award will also carry interest at judgment rate from the date of the deceased's death to the date of judgment.

Conclusion

20. The total sum awarded is therefore HK$2,098,014.50, the breakdown of which appears as follows :

(1) Accrued loss of dependency	HK$728,172.50
(2) Future loss of dependency	724,842.00
(3) Bereavement	70,000.00
(4) Loss of accumulation of wealth	500,000.00
(5) Funeral expenses	75,000.00
	HK$2,098,014.50

21. The orders that I made are as follows :

(1) The action herein be stayed as against the 2nd defendant with liberty to restore.

(2) There be judgment for the plaintiff against the 1st defendant for the sum of $2,098,014.50 together with interest on $803,172.50 at 6.04% p.a. from 18 February 1995 to 4 June 2001 and on $70,000 at 12.08% from 18 February 1995 to 4 June 2001.

(3) The plaintiff's costs of the action be borne by the 1st defendant, to be taxed if not agreed.

(4) The plaintiff's own costs be taxed under the Legal Aid Regulations.