Wan Dan Nei and Another v. Dragages et Travaux Publics and Penta-Ocean Construction Co. Ltd.

HCPI 588/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES LIST NO. 588 OF 1999

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ASSESSMENT OF DAMAGES

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1. Tam Wai Shing David was one of six men who died on 6th June 1996 when the Rambler Channel Ridge on which they were working collapsed. This action is brought on behalf of the estate under LARCO and on behalf of the dependants under the Fatal Accidents Ordinance. Interlocutory judgment was entered on 21st December 1999, and the Notice of Appointment of Assessment Damages issued on 6th January 2000, with the date fixed for 30th May 2000.

2. At the assessment, the plaintiff gave evidence and her witness statement was admitted into evidence. Evidence was also given by Chui Mang Hin Henry, Shuen Ka Hung, Lee Kam Ki Danny, Wong Ho Ching, Tang Kam Wah Barry, and their statements were admitted into evidence. I accept the witnesses as truthful.

3. The deceased was aged 40 at the time of the accident. He received his secondary education in the UK, and furthered his engineering studies at the University of Dundee in the years 1982 to 1986. His resume at pages 778 onwards sets out his work experience, which shows that the deceased had been working in the engineering field in Hong Kong for more than ten years prior to the accident, with a period in Canada between January 1991 and December 1993 when he was self employed in basement construction and renovation services. On his return to Hong Kong, he commenced work with VSL in January 1994 and remained with that company until his death.

LOSS OF DEPENDENCY UNDER FAO

Earnings at the date of the accident

4. As to whether the deceased was employed as a senior project engineer or as a project engineer at the junior grade, the plaintiff's evidence is that her husband told her that he was the senior project engineer of the project at that time and he showed her a copy organization chart of the project which shows him to be the senior project engineer, and produce at page 71 of the bundle, and at page 563, being a copy produced by VSL. In their letter of 26th February 2000, VSL states that the deceased was employed as a project engineer under junior grade, and that the job title shown on the project organization chart is for submission and reference only. I am satisfied that the deceased was described by the company as a Senior Project Engineer to show the main contractor the hierarchical structure of the personnel employed on the project, and that he was paid as a project engineer under the junior grade.

5. As to the deceased's earnings at the date of death, there is no dispute since the documents produced clearly specify that these were $34,696, which includes a sum of $1,650 for the Provident Fund ('PF') contribution. After deduction of income tax and the PF Fund contribution, there would remain a sum of $31,215 as his take home pay.

Notional Income at the Date of the Assessment

6. The plaintiff submits that the notional earnings of a project engineer would be $47,945, based on the figures set out in VSL's letter of 7th April 2000, being the salary and entitlement benefits for a junior grade engineer at the time of the accident. This is a 35.3% increase over the period and produces a take home pay of $43,739 (after deduction of the PF contribution and tax). The defendant submits the figure should be $46,839 ($34,696 x 1.35), producing a median of $40,767. I prefer and accept the plaintiff's calculation of this figure, made up as follows:-

Basic salary	$37,206
Site allowance bonus	$3,721
12 days annual leave (pro-rata)	$1,592
Year end bonus (pro-rata)	$5,426
Total	$47,945
Less: deduction for Provident Fund
(5% of Basic salary)	$2,397
Total	$45,548

7. The plaintiff submits that by the year 2005 at the latest the deceased would have been promoted to a higher rank, earning a salary comparable with a Civil Engineer with the Government at no less than $65,000, which would give a monthly earnings of $56,739 after deduction of the PF contribution and tax. This is based on the figures from the Census and Statistics Department at page 659 of the bundle. These figures (again after deduction of tax and provident fund contribution) would produce a median of $50,239 (($43,739 + $56,739)/2), which should be used in the calculation of loss of earnings.

8. As to the promotion of the deceased, there is the letter dated 7th May 1990 from Gammon to Ove Arup at page 786 of the bundle, which encloses the deceased's application for the post of design engineer and the letter of recommendation dated 27th June 1990 which states that the deceased had decided to further his career with a consulting engineer and stating that Gammon have no hesitation in recommending him to any future employer. In their letter of 31st October 1990, MAA Engineering Consultants (HK) Ltd., MAA states that the deceased was employed with MAA as a geotechnical engineer from 1st August 1990 and will leave on 31st October 1990 to emigrate to Canada and that during this period his performance is satisfactory.

9. The defendant submits that the deceased worked for Gammon for four years from October 1986 to October 1990, and only worked for the consultants firm of MAA for three months, but there is no evidence to show that MAA is a consultancy firm of the kind which would give the deceased the necessary experience. The evidence is clear that the deceased wanted to work for a consultancy firm but he did not do so, and when he did get such a post, he left to go to Canada. Gammon's letter of 7th May states that employment in a design office provides the necessary experience to join the professional associations. The deceased went to Canada in October 1990 and returned to Hong Kong and joined VSL in January 1994, and he was with VSL for about two and a half years prior to the accident.

10. The plaintiff's case is that the deceased would be promoted to a civil engineer, including the possibility of becoming a chartered engineer by 2005, by which time he would have about 15 years experience and be aged about 50. A civil engineer is defined as one who possesses a degree in civil/structural engineering with at least three years experience in the field and/or an equivalent professional qualification, e.g. Corporate Membership of the Hong Kong Institution of Engineers (Civil Discipline). The plaintiff points to the evidence of the four chartered engineers as to the deceased's capability and competency for becoming a Civil Engineer and attaining the post of construction or project manager at the latest by the year 2005. It is in fact not necessary to be chartered for promotion to construction or project manager in the private sector. Even without being chartered, the deceased would have been promoted to a higher rank and Lewis Wong, the construction manager, remarked that he could be promoted provided he could improve his English.

11. The defence says that clearly the scales are tipped against the likelihood of the deceased becoming a chartered engineer since experience in a consultancy firm to obtain design experience is practically a necessary step for qualification. The defence referred to the evidence of Henry Chui (PW 2), Wong Ho Ching (PW 5) and Barry Tang (PW 6), and submits that the evidence shows no more than that the deceased wanted to obtain chartered membership but that there is little evidence relating to the deceased's working experience, such as in the design field, which might have improved his chances of obtaining the qualification of a chartered engineer. The deceased never worked with a consultancy firm except for the three months with MAA. The evidence shows that he spoke of his wish to become a chartered engineer and he asked his friends for information about the admission procedure, but there is not a single document in evidence to show his interest in obtaining the qualification. There is no evidence that on his return from Canada to suggest that he sought jobs in consultancy firms. He joined VSL and remained with them until his death.

12. I am satisfied on the evidence that the plaintiff would have been promoted at VSL, without being chartered. He was a conscientious worker and had been with VSL for two and a half years and his report from Lewis Wong show that he was well regarded by the company.

13. I am further satisfied that on the evidence there is every likelihood that he would have become a chartered engineer. He was 40 at the time of the accident and was well established and well regarded by his employer. Because he had difficulty in finding engineering work in Canada, his engineering career suffered a hiatus between about November 1990 until his return to Hong Kong in 1993. He was a responsible and able man as can be seen by his achievements in the past and I am satisfied that, having established himself once again in the engineering field in Hong Kong on his return from Canada, which he had clearly done at the time of his death, the likelihood was that his next step would be to pursue his desire to be a chartered engineer. On the family front, he was establishing his family, with the birth of the family's first child in Canada, and the birth of the second child imminent at the time of his death. I am entirely satisfied that, finding himself settled both in work and in his family, he would at the comparatively young age of 40 or 41, have turned his attention to the achievement of his desire to be a chartered engineer.

14. The defendant submitted that I should make the inference that being unable to secure a job with a consultancy on his return from Canada, the plaintiff joined VSL, which would not meet his needs for the kind of experience he required to obtain his chartered status, and that no evidence is adduced to suggest that he was going to hunt for jobs with consultancy firms. It must be taken that the deceased would have continued to work with VSL for the foreseeable future and that anything beyond that is necessarily speculative. I find that there is no basis for me to draw such an inference. The fact that the deceased joined VSL does not mean that he could not secure a job with a consultancy firm and, further, it is speculative either way to say that he would or would not have continued his employment with VSL.

15. In Corbett v. Barking Health Authority (CA) (1991) 2 QB at page 429, there is a useful consideration of the evaluation of the chance of a future event happening or not, where Purchas LJ quotes from the speech of Lord Reid in Davies v. Taylor (1974) AC 207, at page 212-213:-

'... You can prove that a past even happened, but you cannot prove that a future event will happen and I do not think that the law is so foolish as to suppose that you can. All that you can do is to evaluate the chance. Sometimes it is virtually 100 per cent; sometimes virtually nil. But often it is somewhere in between. And if it is somewhere in between I do not see much difference between a probability of 52 per cent and a probability of 49 per cent .... So I can see no merit in adopting here the test used for proving whether a fact did not did not happen. There it must be all or nothing. If the balance of probability were the proper test what is to happen in the two cases which I have supposed of a 60 per cent and a 40 per cent probability. The 40 per cent case will get nothing but what about the 60 per cent case. Is it to get a full award on the basis that it has been proved that the wife would have returned to her husband? That would be the logical result. I can see no ground at all for saying that the 40 per cent case fails altogether but the 60 per cent case gets 100 per cent. But it would be almost absurd to say that the 40 per cent case gets nothing while the 60 per cent case award is scaled down to that proportion of what the award would have been if the spouses had been living together. That would be applying two different rules to the two cases. So I reject the balance of probability test in this case.'

16. I have found that the deceased would have been promoted and further that there was a likelihood of his becoming chartered. As to the figures to be used for the calculation of loss. The plaintiff submits the figure of $65,300, which is the average figure for a Civil Engineer as at June 1999, while the defendant submits the figure of $58,600 which is the average figure for a Project Manager at that date.

17. On this issue, the defence suggests that none of the witnesses called on behalf of the plaintiff disclosed their salaries and submits that the only inference is that their incomes would not support the plaintiff's claim of $65,300, and that the plaintiff carries the burden of adducing sufficient evidence to support their claim and in the absence of such evidence, I must be left with only one conclusion. The plaintiff points to the fact that one witness is a dentist, the second is a public servant in Macau, the third is working in Canada, so their salaries would be irrelevant. Of the two remaining witnesses, they are quite senior in their field and more advanced than the deceased and their salaries would again be irrelevant. It is quite unjustified to draw the inference that their salaries are lower than the figure contended for and, in any event, the statistics speak for themselves. On this point, I accept that details of the earnings of the witnesses would be irrelevant to the plaintiff's claim and the evidence adduced by the plaintiff, being the statistics and the details of earnings from VSL, are the appropriate bases for deciding the question of the deceased's earnings in the future.

18. The defendant submits that if I were to find that there would have been a promotion in 2005, it is simpler to assess the loss on the basis of an average between $46,839 and $58,600, which is $52,720, so that I can take the promoted figure and the figure at assessment for the post trial period, since it is the plaintiff's case that promotion would not occur until 2005.

19. I find that the plaintiff's calculation based on the adoption of a median for post trial between the earning of a project engineer and that of a civil engineer to take into account promotion prospects is a balanced and fair method in the calculation of the post trial loss. On that calculation the notional earnings would be $50,239 (($43,739 + $56,739)/2).

Household Expenses

20. I accept the plaintiff's evidence as to the family expenses - Litton VP cautioned of the danger of treating assessments for pecuniary loss as a 'mere matter of mathematics' - Chan Pui Ki v. Leung On (1996) 2 HKLR 401 at 411 and see also Rogers JA in Tang Mei Ying v. Lam Pak Chu (CACV 319 of 1999 at page 4).

21. The plaintiff submits that I adopt a conventional percentage of the income of the deceased as dependency. Such a conventional percentage approach finds authority in Harris v. Empress Motors (1984) 1 WLR 212 at 216-217, where it was said that where there were children then the percentage should be 75%. In Ho Pang Lin v. Ho Shui On (1994) 2 HKLR 313 at 318-320, Deputy Judge Jones followed this authority and applied a percentage of 75% notional median earnings.

22. However, in Tsang Mei Ying v. Lam Pak Chui (1999) 2 HKLRD 807 at 811, Seagroatt J. in considering the principles in relation to the assessment of dependency, approved the calculation of common items of dependency, but did not approve the use of a conventional percentage. He said that

'many items of dependency are common to the family whether there are children or not, and, if there are, when they leave home and the picture of dependency in other respects changes. The common items remain part of the dependency picture. Examples of these are rent, utilities (though these may vary according to exceptional use) and other fixed payments. Moreover as some dependants cease to be such, the dependency of those remaining in the household often increases. The modern practice is to deduct a percentage from the net income of the deceased to represent what he would have spent on himself. These percentages tend to be used 'unless there is striking evidence to make the conventional figure inappropriate because there is no departure from the principle that each case must be decided on its own facts' (per O'Connor LJ in Harris v. Empress Motors ... ... The flexibility of the approach and the need to have regard to the facts of the case and the evidence adduced in relation to dependency was illustrated by Beldam LJ in Owen v. Martin (1992) PIQR Q 151:

'No doubt there will be many claims under the Fatal Accidents Acts where parties agree that a conventional proportion is appropriate. I do not, of course, suggest that in arriving at the extent of the financial provision made by the deceased the court is bound to base its assessment precisely on the percentage of net earnings disclosed by sums spent for the benefit of dependants but the court is not entitled to cast aside altogether evidence which shows the proportion of the deceased's income actually spent for the dependants' benefit during his lifetime and to substitute a figure however conventional or appropriate in other cases.'

It is not appropriate to calculate dependency on a simple equal mathematical division amongst all dependants of the sum given by the husband to his wife for the upkeep of the family home, its outgoings, and the general necessities of life. This is a wholly artificial approach and is a practice to be deprecated. It is not conducive to a calculation which is fair to either party.'

23. The plaintiff submitted that based on the family expenditure pattern deposed to by the plaintiff, the deceased's own share of the family expenses was $3,000. At the time of the accident, the plaintiff herself worked as an accounts clerk earning $11,500 per month and she contributed $8,500 to the monthly household expenses. The monthly household expenses at the time of the accident was $33,562 (including an additional sum of $3,000 after the birth of Venice). Out of that there would be spent for Venice $2,900, for Vanessa $3,000, for the mother $3,000. The net household expenses enjoyed by the family members (including the deceased) was $24,662 ($33,562 - $2,900 - $3,000 - $3,000). The common household expenses to be shared among Venice, Vanessa and the mother in law would be $13,162 ($24,662 - $8,500 - $3,000), which would produce a figure of $4,387 each for Venice, Vanessa and the mother in law ($13,162/3). The deceased's own contribution to the family would then be $22,062 ($33,562 - $8,500 - $3,000). The percentage of income contributed by the deceased to his family was therefore 71% ($22,062/$31,215 (i.e. take home pay) x 100%).

24. The value of the dependency before the discharge of the mortgage would be 33% for Venice, 34% for Vanessa, 14% for the mother and 19% for the mother in law. The plaintiff was not dependent as her contribution exceeded her notional share of family expenses. The value of the dependency after the discharge of the mortgage in November 1997 would be for Venice and Vanessa 40% each and for the mother and mother in law 10% each. The pre-trial dependency from June 1996 to June 2000 would amount to $1,277,216.

25. The defendant submits that the family expenses were $30,562. Deducted from that sum should be the $3,000 for the mother in law funded solely by the deceased, which leaves $27,562 funded jointly. The plaintiff contributed $9,000 (not $8,500), so that the deceased contribution amounts to $18,562. The common items of expenses (items 1-13) amounted to $24,662, with each member share being $4,932 ($24,662/5). Further since the widow's contribution exceeded her own share of $4,932, she provided partial dependency to her parents and elder daughter in the sum of $4,068 ($9,000 - $4,932). There is no justification for assuming the deceased share of family expenses at $3,000, the appropriate course being to take the common items of expenditure and divide by the number of family members and there is no evidence to warrant treating the deceased's share differently.

26. Taking the family pool at $27,562 and deducting the shares of the widow and the deceased there remains a net pool of $17,698 for the parents in law and the elder daughter - ($27,562 - $9,864 = $17,698). The deceased contributed $18,562 to the family pool and deducting his own share of expenses, leaves a net contribution to the pool of $13,630 ($18,562 - $4,932), which is 77% of the net pool of $17,698.

27. The plaintiff's net contribution to the net pool was 23% ($9,000 - $4,932 = $4,068).

28. The elder daughter's partial dependency on the deceased was $6,030 (expenses of $7,832 ($2,900 + $4,932) x 77%), so that the elder daughter's dependency on the deceased was 17.4% ($6,030/$34,696 x 100%). By the same method, the defendant calculates the dependency of the mother in law at 11%, the father in law at 11%.

29. As to the younger daughter born on 28th August 1996, it is submitted that with the death of the father in law on 26th January 1997, the father in law's dependency of 11% should be transferred to the younger daughter, so that the $1,500 additional expenses incurred for the new born younger daughter is treated as wholly funded by the deceased.

30. As to the mother of the deceased, the defendant submits that the evidence suggest that she was self sufficient, since she was a nurse for over 40 years and has substantial savings. If I accept that $3,000 was the dependency of the mother, then it would be 8.6% ($3,000/$34,696 x 100%).

31. The plaintiff submits that it is difficult to expect the plaintiff to account for every detail as to the contribution made to the mother. There would be times when the contribution was paid directly by the deceased to his mother, especially before the plaintiff returned to Hong Kong in 1994. It should not be overlooked that the mother lived with the deceased's sister whose husband was in ill health, so that the sister's financial burden was heavy. The deceased's parents were divorced so much of the financial support while he was being educated probably fell to the mother, as well as perhaps the deceased's upbringing itself. The evidence of the plaintiff and the documents produced generally corroborated a contribution of $3,000 per month. It would be unrealistic to expect receipts or bank draft applications since it is a domestic and not a commercial arrangement. There is no challenge to the figure of $3,000 per month to the mother in the revised Answer to the Statement of Damages. Based on the calculation the overall percentage is a reasonable one. There is no need to show that the financial support to the mother was a matter of necessity. It does not matter that the mother might have savings or other support.

32. The defendant submitted that the plaintiff's figures produce an aggregate dependency of 55.5%.

33. A calculation of the tax payable for 1996 and 1997 would be $1,857 per month, so that the surplus available each month for the deceased would be $12,777 ($34,696 - $18,562 - $1,500 - $1,857). Estimating personal expenses and expenses for family entertainment at $7,777, would leave $5,000 surplus for saving inclusive of the provident fund contribution of $1,656, which is about 14.5% of income.

34. The dependency and accumulation percentages total 70%, which is a wholly logical and reasonable figure. On that percentage the pre-trial loss of dependencies would be $1,086,032 ($40,767 x 48 x 55.5%) and the pre-trial loss of accumulation of wealth $283,738 ($40,767 x 48 x 14.5%). This result is logical and compatible with the savings that the deceased had accumulated over the six years employment prior to the accident.

35. The defence further submitted that on the assumption that I accept that there would have been a promotion in 2005, then, for the sake of simplicity and instead of applying a split multiplier, the post-trial dependency and loss of accumulation of wealth should be assessed on the basis of the average between $46,839 and $58,600, being $52,719. These figures would produce a loss of future dependencies of $1,755,542 and loss of future accumulation of wealth $458,655 inclusive of the employee provident fund contribution and savings.

36. The defence further submitted that this is a suitable case for taking an aggregate percentage multiplicand and overall average multiplier to produce a reasonable result. The plaintiff's quantification leads to an absurd result in that the total of the dependency and loss of accumulation of wealth amounts to $7,436,240 which is around 75% of the deceased's total earnings and would represent 16.53 years earnings for a deceased with 20 years working life remaining - $7,436,240 / (50,000 x 75% = $37,500) / 12 = 16.53 years. It is clear that the quantification is excessive and takes no account of a reduction for accelerated receipt and the vicissitudes of life.

37. The plaintiff submits that there is a difference between the parties as to the dependency claim. The approach taken in Harris v. Empress Motors and Tsang Mei Yin should be adopted. Items which are common in the household are not counted as the deceased's own share and they continue to be applicable to the dependency calculation. Further, the deceased was a very frugal man who had accumulated quite exceptional savings during the period after he returned to Hong Kong. That is the period which should be adopted in making the calculation for accumulation of wealth. At the time he emigrated to Canada, the evidence shows that he only left a nominal sum in his bank account. When he returned to Hong Kong in January 1994 he started to deposit money in his bank accounts and these show a considerable accumulation during that period - Hang Seng $46,293 and $2,805; Standard Chartered Bank $103,837 and $1,000; Hang Seng Bank Canadian Currency $31,472 (= HK$170,000), which is more than HK$10,000 per month during the two and a half year period. It may be that with the arrival of the younger daughter, expenses might increase and not so much could be saved. However, by working back over that period, it can be assumed that the deceased spent about $3,000 per month on himself and that in the light of the evidence his share of household expenses was another $3,000. Applying the approach of Harris v. Empress Motors, the balance will be either dependency or savings. The $6,000 represents about 13%, leaving a balance of 87% to account for dependency and accumulation of wealth which should be the benchmark rather than 75%.

38. The defence adopts the average of $34,696 and $65,000 in their calculation. It would be necessary however to distinguish between the pre-trial and post-trial period. Adopting the plaintiff's approach and using a multiplier of 14, there is nothing wrong with the calculations.

39. In the calculation of dependency, I accept and follow the method used by the plaintiff on the authority of Harris v. Empress Motors and Tsang Mei Ying v. Lam Pak Chui. I accept the use of the net income after tax. There should be a distinction between the earnings pre-trial and post-trial for this calculation. I accept also that the deceased was a frugal man and had a steady pattern of savings, and that the relevant period for the assessment of a savings pattern is the period from January 1994 when he returned from Canada. I also accept that he had a strong sense of filial duty towards his mother since she had provided financial support to him during his education, and I am satisfied that he assisted her to the extent of $3,000 per month. I find that the figure contributed by the plaintiff to the family expenses to be $8,500 per month.

The Multipliers

40. The defendant submits that the deceased was 40 years at the time of the accident and he would have retired at age 60 so that he had 20 years working life remaining. Since his children are very young at the time of the accident, their dependencies would have continued to near the time of his retirement. The dependencies of the mother and mother in law would have ceased earlier with more money becoming available, and then the dependencies of the children would have increased over time. The defence submitted that this is a case where an overall average multiplier would be appropriate for both dependency and loss of accumulation of wealth and a multiplier of 9 for all dependencies is suggested.

41. The plaintiff submits that a multiplier of 14 for the deceased and for the two children is appropriate with a multiplier of 9 for the mother in law and 5 for the mother. The mother is still living and is in good health. On the authority of Corbett v. Barking Health Authority (1991) 2 QB 408, I should take into account the continued survival of the mother. A multiplier of 4 is not justified since it is a fact that the mother has survived beyond 4 years. The dependency claim of the mother has been consistent as can be seen from the Social Welfare Report.

42. I find that a multiplier of 14 should be applied for the deceased and the two children, with 9 for the mother in law and 5 for the mother - I follow the authority of Corbett v. Barking Health Authority. Venice is performing well at school, ranking 5th in her class in her K2 examination and 4th in her class in her K3 examination. Vanessa is very young, but she is scoring grade 'A' or 'B' in her school assessment.

43. The multiplier tables from the Hong Kong Law Journal for the years 1990 to 2000 were before me. I find support for a multiplier of 14 in two cases - Tsang Mei Ying v. Lam Pak Chiu (PI No. 544 of 1998) where in April 1999, Seagroatt J. applied a multiplier of 13 to a 42 year old man - Chow Lin Hung v. Lui Suet Hing where in June 1998 Beeson J. applied a multiplier of 14 to a 40 year old woman.

44. On those findings, I calculate the loss of dependency in accordance with the plaintiff's method, as follows:-

FAO

Earning at death:

$34,696 (including a sum of $1,650 which was contributed to the Provident Fund. The after tax income would be $32,865. After deducting the contribution to Provident Fund, the take-home pay would be $31,215.

Earnings at date of assessment (adopting a median for post-trial calculation between the earning of a project engineer and that of a Civil Engineer to take into account of promotion prospect):

(a) $47,945 (which is arrived at by applying a 35.3% increase). The after tax income would be $45,599. After deducting the Provident Fund contribution of $1,860, the take-home pay would be $43,739.

(b) $65,300 (see the figure from Census & Statistics Department). The after tax income would be $60,004. After deducting a sum of $3,265 as contribution to the Provident Fund, the take-home pay would be $56,739.

Median for post-trial calculation is therefore: ($43,739 + $56,739) / 2 = $50,239.

Plaintiff's earning at the time of accident was $11,500 per month and she contributed $8,500 to the household expenses.

Monthly family expenses (after the birth of Tam Wing Yee Vanessa) is $33,562 out of which, the following sums would be spent:

- Venice's own share: $2,900

- Venessa's own share: $3,000

- Leung Wai Hing's (mother) own share: $3,000

The net household expenses enjoyed by all family members (including the deceased):

$33,562 - $2,900 - $3,000 - $3,000 = $24,662

The common household expenses (after deducting $8,500 contributed by wife) to be shared among Venice, Venessa and Sy Shuet Ying (mother in law):

$24,662 - $8,500 - $3,000 (the deceased's own share) = 13,162

$13,162 / 3 = $4,387 each

The deceased's own contribution to the dependants (including common household expenses and others) was $22,062. Therefore, the percentage of income as contribution to family:

$22,062 / $31,215 x 100% = 71%

Loss of dependency

Vale of dependency before the discharge of mortgage:

a.	Tam Wing See Venice:
	$4,387 + $2,900 = $7,287
	($7,287 / $22,062) x 100% = 33%
b.	Tam Wing Yee Vanessa:
	$4,387 + $3,000 $7,387
	($7,387 / $22,062) x 100% = 34%
c.	Leung Wai Hing: $3,000
	($3000 / $22,062) x 100% = 14%
d.	Sy Yuet Ying: $4,387
	($4,387 / 22,062) x 100% = 19%

The Plaintiff was not a dependent as her contribution ($8,500) exceeded her notional share of family expenses ($24,662 / 6 = $4,110)

Value of dependency after the discharge of mortgage in November 1997:

a. Venice:	40%
b. Venessa:	40%
c. Sy Yuet Ying:	10%
d. Leung Wai Hing:	10%

Pre-trial dependency

Median take-home income: ($31,215 + $43,739) / 2 = $37,477

Pre-trial dependency (from June 96 to November 97 - total 17 months)

Total for the period: $34,477 x 71% x 17 months = $452,347

Apportionment:

a.	Venice:
	$37,477 x 71% x 33% x 17 months = $149,275
b.	Vanessa:
	$37,477 x 71% x 34% x 17 months = $153,798
c.	Sy Yuet Ying:
	$37,477 x 71% x 19% x 17 months = $85,946
d.	Leung Wai Hing:
	$37,477 x 71% x 14% x 17 months = $63,329

Pre-trial dependency (between November 97 to June 2000 - total 31 months)

Total for the period: $34,477 per month x 71% x 31 months = $824,869

Apportionment:

a.	Venice:
	$824,869 x 40% = $329,948
b.	Vanessa:
	$824,869 x 40% = $329,948
c.	Sy Yuet Ying:
	$824,869 x 10% = $82,487
d.	Leung Wai Hing:
	$824,869 x 10% = $82,487

Total pre-trial loss of dependency:

$452,347 + $824,869 = $1,277,216

Post-trial dependency

The multiplicand for the future loss of dependency:

$50,239 x 71% = $35,670

The post-trial dependency of the dependants:

a.	Venice:
	$35,670 x 40% x (14 - 4) x 12 = $1,712,160
b.	Venessa:
	$35,670 x 40% x (14 - 4) x 12 = $1,712,160
c.	Leung Wai Hing:
	$35,670 x 10% x (5 - 4) x 12 = $42,804
d.	Sy Yuet Ying:
	$35,670 x 10% x (9 - 4) x 12 = $214,020

The total post-trial loss of dependency:

$1,712,160 + $1,712,160 + $42,804 + $214,020 = $3,681,144

Grand total of dependency: $4,958,360

Loss of Accumulation of Wealth

45. The issue under this head of damages is to the accumulation of wealth, which the deceased would have achieved 'by the time he would otherwise have died' - section 20(2)(b)(iii) of LARCO - in other words by the time of his natural death.

46. The defendant submits that the aggregate of past and future accumulation of wealth and provident fund would be $1,733,475, of which the plaintiff has received $756,522.93.

47. As to the deceased's life expectancy, he would be 45 now if he had lived, which would give him an expectancy of 33.52 years, with an expectation of living to 78 but for the accident, which means that he would have 18 years retirement. During those years of retirement he would have used the whole or part of his accumulation of wealth by the time of his natural death and that the final savings in his hands would have been the sum of $756,522.93 which has been received by the plaintiff, or such sum to be found by the court to be probable.

48. The plaintiff accepts that principle that at the time of his natural death, the deceased's savings would be depleted. I should not ignore the fact that savings can be invested to generate income returns of a recurrent nature during the deceased's working life. This would be further enhanced by the fact that there would be the lump sum available to the deceased from the MPF. Although in Dall v. Choy Ying Wai (1997) 2 HKC, Cheung J. held that actuarial evidence is not admissible in calculating the quantum of loss attributable to the MPF, he did not decide that the court should ignore the fact that the MPF would generate more than the aggregate of savings by the time of retirement.

49. On the plaintiff's figures the accumulation of wealth would be $240,000 per-trial, $1,428,000 post-trial and $809,880 for the provident fund contributions, the total being $2,477,880.

50. I have already referred to the savings pattern to the deceased when considering the dependency claim, and simply repeat that the deceased savings since his return to Hong Kong in 1994 show not only a clear and obvious propensity to save but also to save a substantial portion of his income. I have also considered the defendant's argument that the quantification is excessive on both loss of dependency and accumulation of wealth since it results in a 75% award, i.e. $37,500 per month, for a period of 16.53 years. However, the choice of multiplier between the parties makes a considerable difference to the calculation. I accept the multiplier submitted by the plaintiff. I further accept the method of calculation of dependency on the basis of the net income.

51. I calculate the loss of accumulation of wealth in accordance with the plaintiff's method, incorporating as it does, the cessation of the dependency of the mother and mother in law, and setting out separately the savings based on the provident fund contributions, with the exception that I have made a reduction in the monthly savings of the deceased. I am satisfied that a multiplier of 14 should be adopted for this calculation, and I set out the calculation as follows:-

Loss of accumulation of wealth

52. During the pre-trial period, the deceased would have $7,868 (i.e. $37,477 x 29% - $3,000) for his own use after deducting his monthly contribution to his family. Out of that sum, he would be able to save $4,000 each month.

53. During the post-trial period, the deceased would have at least $10,069 (i.e. $50,239 x 29% - $4,500) for his own use after contributing to his family. Out of this sum, the deceased should have been able to save $6,000 per month.

54. The deceased would also have more money for savings after Leung Wai Hing (mother) ($3,662) and Sy Yuet Ying (mother in law) ($3,662) cease their dependency.

(a)	Pre-trial loss
	$4,000 x 4 x 12 = $192,000
(b)	Post-trial loss
	(i)	For the 1st year:
		$6,000 x 1 x 12 = $72,000
	(ii)	For the period when Leung Wai Hing ceased her dependency and Sy Yuet Ying remains a dependant:
		($6,000 + $3,500) x 4 x 12 = $456,000
	(iii)	For the period when Sy Yuet Ying ceases to be a dependent:
		($6,000 + $3,500 + $3,500) x (14 - 9) x 12 = $780,000

Sub-total: $72,000 + $456,000 + $780,000 = $1,308,000

(c)	Contribution of provident fund to loss of accumulation of wealth:
	(i)	But for the accident, the deceased would have contributed $1,755 each month as provident fund contribution [i.e. ($1,650 + $1,860) / 2] during the pre-trial period. At the time of accident, the employer's contribution to provident fund was $2,750 (i.e. $27,500 x 10%). The employer's contribution at the time of assessment is the same as the employee's, i.e. $1,860.
Pre-trial
(ii)	The deceased's contribution:
	$1,755 x 48 months = $84,240
(iii)	The employer's contribution:
	($2,750 + $1,860) / 2 x 48 months = $110,640
Sub-total: $84,240 + $110,640 = $194,880
Post-trial
(iv)	The deceased's contribution:
	[($1,860 + $3,265) / 2] x (14 - 4) x 12 = $307,500
(v)	The employer's contribution:
	[($1,860 + $3,265) / 2] x (14 - 4) x 12 = $307,500

Sub-total: $307,500 + $307,500 = $615,000

Grand total for provident fund contribution:

$194,880 + $615,000 = $809,880

Total loss of accumulation of wealth:

(a) + (b) + (c) = $192,000 + 1,308,000 + $809,880 = $2,309,880

55. In deciding whether that accumulation of wealth would be depleted in part or in whole at the time of the deceased's natural death, I accept the plaintiff's submissions that I can take into account the fact that the deceased's MPF fund would be available to him at his retirement and the fact that savings over the years of his working life would earn interest. Having taken those matters into account, I find that there would be the sum of $1,800,000 in the deceased's estate at the end of his natural life span. It is agreed by the parties that the plaintiff has already received the sum of $756,522.93 and this should be deducted from this head of damage.

56. In considering the amount of loss of accumulation of wealth that would be remaining at the date of the deceased's natural death, I have applied a deduction of about 22%. In Tsang Mei Ying, Seagroatt J. applied a deduction of approximately 5% to a figure of $336,000. I am dealing with a much larger figure under this head of damages. I have taken the view that the more you have in your retirement fund, the more you will be likely to spend during the years of retirement, while leaving you with sufficient financial security.

Bereavement

57. The claim for bereavement is not in dispute and I allow this at $70,000.

Funeral Expenses

58. There is clear authority that the expenses of the funeral meal are not allowed - Wong Sau Wah v. Leung Kam Cheuk (1982) HKC 333, Lee Ping Tim v. Wong Kin Foon (1978) HKLR 347, and Loong Cho Hing v. Yam Kit Ying (1987) 2 HKC 482.

59. It has been held that it was not unreasonable to hold a buddhist service - see Wong Sau Wah v. Leung Kam Cheuk.

60. Amounts have been allowed for the coffin, a tourist car hired for the funeral, a tomb stone, undertakers, a priest and two pieces of while cloth (valued at $80) - see Lee Ping Tim v. Wong Kin Foon.

61. Reasonable expenses of burial of the dead were recoverable and the expenses for two different funeral ceremonies held with a substantial interval of time between them was allowed - see Loong Choi Hing v. Yam Kit Ying.

62. In Lau Tak Ling v. Ngan Guen Min (1998) 2 HKC 75, it was held that the expenses of burial ceremonies were recoverable if it was reasonable in all the circumstances to hold the ceremonies. The status, financial position of the deceased and of his family and also their religious belief had to be considered. In that case the Deputy Judge held that the ceremony performed must have accorded with customary rites and religion of the descendants of the deceased and thus the expenses were reasonable in the circumstances, save for several small items.

63. The costs of a resting place for the urn in the sum of $23,700 was allowed in Hung Oi Mui v. Lam Kwok Leung, HCPI 205/1998 (unreported).

64. In this case the funeral expenses are claimed at $397,400, and receipts were produced.

65. As to the items for the funeral ceremony in the sum of $106,727, I allow that. As to the cost of the graveyard in the sum of $221,600, I allow this at $150,000. As to the cost of the tombstone in the sum of $45,000, I allow that.

66. I disallow the sum of $13,142 for the lunch and dinner after the funeral.

67. I allow the $2,220 for transportation. I disallow the sum of $6,196 for advertisement charges.

68. I allow the total sum of $378,062 under this head. Although a high award, the circumstances of the death were tragic with considerable public interest. Added to the tragedy in this case was the expected birth of the second child, who was born less than three months after the death of her father. I am satisfied that it was important for the widow and the immediate family to have the comfort of a funeral in accordance with their wishes at such a time.

Deduction

69. The employees compensation of $1,169,353 will be deducted from the damages.

70. The payment of $756,522.93 will be deducted from the loss of accumulation of wealth.

Interest

71. I award interest at the full judgment rate on the bereavement award from the date of death to the date of judgment - Kong Yuk King v. Wong Yiu Wing (HCPI 713 of 1998)

72. I award interest on the loss of accumulation of wealth at judgment rate from the date of judgment until payment - Court of Appeal in Hsu Li Lun v. Incorporated Owners of Yuen Fat Building (2000) 2 HKC page 365.

73. I award interest at half the judgment rate on the pre-trial loss of dependency and on the funeral expenses from the date of the accident until the date of judgment.

74. Thereafter all damages to carry interest at the judgment rate until payment.

75. The award for post-trial loss of dependency does not attract interest.

76. I leave the parties to calculate the actual interest.

Costs

77. I make an order nisi that the plaintiff shall have the costs of the assessment, to be taxed if not agreed, with the plaintiff's own costs to be taxed in accordance with the Legal Aid Regulations. The costs order to be made absolute after the expiration of 14 days from the handing down of the judgment.

Summary

FAO