KONG YUK KING v. WONG YIU WING

HCPI713/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES NO. 713 OF 1998

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J U D G M E N T

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1. This is a fatal accident claim brought by the Plaintiff, the administratrix of the Deceased, Lau Pik-yan ("the Deceased"). The Plaintiff was also the mother of the Deceased.

2. In the very early hours of 17th November 1996, the Deceased, then aged 21, was a rear seat passenger sitting in a private car driven by the Defendant. Inside the same car at the time was a front seat passenger and two other rear seat passengers. The Deceased was sitting in the middle of the rear seat. During the journey along Tuen Mun Road, the Defendant lost control of the car which hit the barriers dividing the carriageway, spun, hit the lamp-post, overturned and caught fire. The Deceased and the other two rear seat passengers were thrown out of the car at some stage during this accident and the Deceased suffered injuries from which she died shortly afterwards that same morning. In his statement to the police after the accident, the Defendant admitted that he was travelling at 120 kph immediately before the accident along Tuen Mun Road. He also admitted that there was a 70 kph speed limit along that part of Tuen Mun Road. In that statement, he further explained that he had lost control of the car because he had to swerve right and brake at the same time when another vehicle, travelling on the slow lane, cut into his path on his left hand side.

3. As a result of this accident, the Defendant was charged with reckless driving causing death. He was acquitted of this charge but found guilty after trial in the Magistrate's Court of careless driving.

4. The pleaded case for the Defendant not only denied liability at all times but also pleaded contributory negligence on the part of the Deceased in failing to wear a seat belt.

5. At the start of this trial, Counsel for the Defendant conceded negligence on the part of the Defendant but at the same time indicated that contributory negligence of the Deceased was still a live issue. After the Plaintiff had closed the Plaintiff's case, Counsel for the Defendant indicated to this Court that the defence will not be calling any evidence and that they would not pursue the issue of contributory negligence but concede to full liability in the matter.

6. In view of the conviction of the Defendant for careless driving resulting from this accident, which conviction is admitted by the Defendant in his Defence, the onus is upon the Defendant to disprove negligence. No evidence had been adduced by the Defendant on liability or on contributory negligence, and in the light of the Defendant's concession to full liability, there will be judgment for the Plaintiff for full liability.

7. In the circumstances, I have only to assess quantum - a matter which could well have been dealt with by a Master had these concessions by the Defendant been made at an earlier time thereby saving unnecessary costs.

Quantum

8. In so far as quantum is concerned, evidence was given by the Plaintiff herself, Lau Chee San, the father of the Deceased and Lau Pik Chi, the younger sister of the Deceased. All three gave evidence relating to their dependency. Their evidence went unchallenged. I have no hesitation in accepting their evidence in total, finding all of them to be honest and truthful witnesses. From their evidence, I find the following facts in relation to quantum.

9. The Deceased received education up to Form 5 level. She then came out to work. She was 18 or 19 when she started work. She had changed jobs about two or three times up to the time of the accident. At the time of her death, she was earning $6,500 per month as an accounts clerk. She was single.

10. The Deceased's parents had separated in 1988 and a decree absolute for divorce was granted them in 1995. Thereafter the Deceased, together with her younger sister, lived with the father (custody having been granted to him) in Tai Po. The mother lived apart in Yuen Long. At the time of the accident, the father was aged 50, the mother 43 and the younger sister 17.

11. From her earnings of $6,500 per month, the Deceased contributed $2,800 to the family expenses, i.e. the family consisting herself, her younger sister and her father. Additionally, she gave $600 per month to her father and gave $1,000 per month to her mother to support the mother's living. From her contribution of $2,800 to the family expenses, which was paid over to the younger sister who was responsible for the family expenses, the younger sister would use a part of that money for her own travelling and daytime meal expenses. The remaining would be pooled together with the contribution from the father for general household expenses. The father contributed $1,750 per month for this purpose. The father was also responsible for paying the tuition fees of the younger sister who was then a student. At the time of the accident, the father was working and earning between $12,000 and $13,000 per month. In August 1998, the father lost his job and since then became unemployed.

12. The younger sister of the Deceased was at the time of the accident a student, 17 years old. She was then undergoing a clerical course at the Kwun Tong Technical Institute. She completed this course in July 1997. Her evidence, which I accept, was that but for the death of the Deceased, she would have continued her studies in computer and language courses as she was too young to start work. Because of the accident resulting in the Deceased's death and also because of her father's unemployment (which was later in time, in August 1998), she decided to look for a job herself. The younger sister was looking for work between July 1997 and August 1998 and found a job in August 1998. She is now, at the time of trial, in gainful employment earning $6,500 per month.

13. The Plaintiff was unemployed at the time of accident. She was paid $1,000 per month by the Deceased and had been so paid by the Deceased continuously for some three years before the accident. She relied upon this money for her living expenses. After the death of the Deceased, she found work in December 1997 and is now earning $6,200 per month.

Lost of dependency under the Fatal Accidents Ordinance

(A) Pre-trial loss

14. 35 months have elapsed from the date of the accident to trial. From the evidence before me, it is likely that the Deceased would have some salary increase since the time of the accident. Despite the poor economy in the market in the past two years, I note that the accident took place in November 1996, about a year before the downturn in the economy came about. It would therefore not be unreasonable to expect her salary to have increased since the time of the accident by about 15% at the time of the trial. This gives a figure of $7,475.00. The median for her salary for the pre-trial period would come to $6,987.00.

15. In so far as the Plaintiff, the mother of the Deceased, is concerned, she was paid $1,000 by the Deceased at the time of the accident. Had it not been for the death of the Deceased, I have little doubt this payment would have continued. Although the mother is now earning some salary, I accept that she was forced into finding work because of the Deceased's death. With the notional increase in the Deceased's salary for the pre-trial period, I would expect the Deceased to have had no difficulty increasing slightly the payment to her mother for this period. I assess the mother's loss of pre-trial dependency to be :

$1,200 x 35 months = $42,000.

16. As for the father, in view of his losing his job in August 1998, I would also expect the Deceased to have increased slightly the $600 that was paid to him at the time of the accident. Moreover, he would receive a share of the Deceased's contribution to the household expenses. From the $2,800, I assess that about $700 would go to pay for the younger sister's travelling and day-time meals while she remained a student. The remaining $2,100 would be equally shared between the three of them, each getting $700 out of it. I therefore assess his pre-trial loss of dependency to be as follows :-

(i)	From the allowance paid to him by the Deceased
	$700 x 35 = $24,500.
(ii)	From his share of the household expenses paid by the Deceased
	$700 x 35 = $24,500.

Totally the father's pre-trial loss of dependency comes to $49,000.

17. In the case of the younger sister, I do not expect that her share of the pre-trial dependency would have increased in any significant amount over this pre-trial period of 35 months than what it was at the time of the accident. I therefore assess her pre-trial loss of dependency as follows :-

(i)	Her travelling and meal money from the household expenses
	$700 x 35 = $24,500.
(ii)	Her share of the general household expenses
	$700 x 35 = $24,500.

Totally, the younger sister's pre-trial loss of dependency comes to $49,000.

(B) Post-trial loss

18. For the calculation of post-trial loss of dependency, I will adopt the notional increase in the salary of the Deceased to be $7,475 as being the salary of the Deceased at the time of the trial.

19. In the case of the Plaintiff, being the mother of the Deceased, in view of the fact that she is divorced from the Deceased's father and living apart from them, I would expect that the payments by the Deceased to her would be the first thing that would be increased with an increase in salary of the Deceased. Accordingly, I would adopt a multiplicand of $1,400. As for the multiplier, the mother was 43 at the time of the accident. It is not unreasonable to expect the Deceased to continue supporting her mother without the mother having to come out to work. I shall therefore use a multiplier of 14. On this basis, the mother's loss of post-trial dependency comes to :-

$1,400 x (168 - 35 months) = $186,200.

20. As for the Deceased's father, I would also expect some slight increase in the payment that the Deceased made to her father, particularly in view of the fact that he had lost his job in August 1998. It would not be unreasonable to expect the payment to the father to have been increased from the $600 at the time of the accident to $800 at the time of trial. Possibly her contribution to the household expenses would not have increased in any significant way over these three years. Thus the father's share of the household expenses would still come to $700 per month. As for the multiplier, the father was 50 at the time of the accident. A multiplier of 12 would be appropriate. On this basis, the father's post-trial loss of dependency comes to :-

($800 + $700) x (144 - 35 months) = $163,500.

21. Turning now to the younger sister, had the accident not happened to the Deceased, I accept her evidence that she would probably have continued in her studies for a few more years until she was of working age. It would not be unreasonable to have expected her to remain a student until about 22 or 23 years of age. I will therefore use a multiplier of 5 in the case of the younger sister. As for the multiplicand, I will use the same multiplicand as used to calculate the pre-trial loss of dependency. There is nothing to suggest that the Deceased's support for her younger sister as a student necessitated any increase over these three years. On that basis, the younger sister's loss of post-trial dependency comes to :-

($700 + $700) x (60 - 35 months) = $35,000.

22. The total amount of post-trial loss of dependency therefore comes to $384,700.

Loss under the Law Amendment and Reform (Consolidation) Ordinance

23. At the time of her death in November 1996, the Deceased's estate consisted of several bank accounts which totalled $2,926.95. This was the value of her estate for estate duty purposes. This is hardly surprising since the Deceased had only started work about three years before the accident. From her income of $6,500 at the time of the accident, $4,400 was used by her to contribute to the household expenses as well as supporting both her parents. This leaves $2,100 per month for the Deceased's own use. However, taking into account the increase in salary for the pre-trial period of 35 months, it is still possible that there will be some savings by the Deceased. The evidence given by all the witnesses called by the Plaintiff, which I accept, is that the Deceased was a frugal and hardworking person. For pre-trial loss under this head, I am of the view that $500 per month savings is not unreasonable. This works out as :-

$500 x 35 = $17,500.

24. As for post-trial, I take into consideration the possibility that after the younger sister secures a job, the Deceased's burden towards the family will have eased off somewhat, and with her increased salary, there is to be expected an increase in savings. I will use the usual 10% of her salary at the time of trial as the multiplicand. As for the multiplier, the Deceased was 21 at the time of her death, this calls for a ceiling figure of 20 as the appropriate multiplier. Thus the post-trial loss of accumulation of wealth comes to :-

$747.50 x (240 - 35 months) = $153,237.50.

25. The total damages under this head therefore comes to $170,737.50.

Bereavement

26. The usual statutory sum of $70,000 will be awarded under this head. This is not disputed.

Funeral and special damages

27. The amount claimed of $38,395 under this head is admitted by the Defendant and will be awarded.

Interest

28. There will be interest awarded at the full judgment rate of 11.26% per annum on bereavement award from the date of death to the date of judgment (see Khan v. Duncan, Kemp & Kemp, The Quantum of Damages, Vol.1 para.16-031/2; also Chu Kang Yee v. Giant Ocean Ltd. [1996] 1 HKC 284 at 299), and at 5.63% per annum on pre-trial awards under Fatal Accidents Ordinance and Law Amendment and Reform (Consolidation) Ordinance as well as on special damages and funeral expenses from date of accident to the date of judgment. Thereafter all damages to carry interest at judgment rate of 11.26% per annum until payment.

Costs

29. There will be the usual costs order nisi that the Defendant do pay the Plaintiff's cost of this action, to be taxed if not agreed. The Plaintiff's own costs to be taxed in accordance with Legal Aid Regulations.