WAN LAI FONG, ADMINISTRATRIX OF THE ESTATE OF KWOK TAK CHUNG, DECEASED v. WONG SHIU KEI t/a WAN MEI ENGINEERING COMPANY

HCPI 508/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 508 OF 2013

BY ORIGINAL WRIT AND BY ORDER TO CARRY ON PROCEEDINGS, DATED 8 MARCH 2013

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ASSESSMENT  OF  DAMAGES

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1.  The deceased was employed by the defendant and died as a result of accident during employment on 28 November 2007. Interlocutory judgment has been entered and this is an assessment of damages.

I.  Background of the proceedings

2.  The defendant was adjudicated bankrupt but the plaintiff was granted leave to proceed.

3.  The defendant has no Employees’ Compensation Policy.  The plaintiff has invited the Employees Compensation Assistance Fund Board (“ECAS”) to join the present proceedings but ECAS has indicated that they would not apply to intervene.

4.  As such, I am glad that counsel for the plaintiff, Mr Wong Chi-kwong, has informed the court that both he and those instructing him were doing the damages assessment on a “pro bono” basis so that no legal costs would be taken from the damages awarded to the family.

II.  PSLA

5.  The deceased fell from a height of 2 metres and sustained a fractured skull.  He was unconscious on admission to hospital.  An urgent operation was performed but he died 5 days later having not regained consciousness.

6.  Taking into account of the similar situation in the case of Wang Chin Ying v Lam Ping Fung [1999] 3 HKLRD 190, and with a reasonable estimation of inflation since then, I think an award of HK$40,000 is reasonable in this head of claim.

III.  Claims under Fatal Accidents Ordinance (“FAO”)

Bereavement

7.  The deceased wife is entitled to claim HK$150,000 under section 4 of the FAO.

Earnings of the deceased

8.  The deceased’s income at the time of death was assessed to be HK$12,150 per month in the related Employees’ Compensation claim (DCEC 730/2008).  I have perused the relevant documents and calculation and see no reason to disturb the learned judge’s findings.

9.  According to the Statistical Table produced by the government’s Census and Statistics Department, the deceased’s wage, as a glazier, would have on average increased by 30.75% from January 2008 to July 2013.  These data are not taken on the exact dates of accident and trials but are the closest available ones so I would accept it.

10.  The notional monthly wage of the deceased should therefore be HK$15,886 by July 2013.  And I would further accept the plaintiff’s proposal to take a median figure between this and HK$12,150, that is, HK$14,018 as his average pre-trial wages.

Multiplier

11.  The deceased was 44 at the time of death.  I accept that he could have worked until 65 and I accept the multiplier of 15.98 according to Table 9 of Hong Kong Personal Injury Tables 2013.

12.  I will also accept the pre-trial period taken as 79 months and the balance of post-trial period should therefore be 116.76 months.

Dependence

13.  There are 4 dependents: deceased’s mother, wife, daughter and son, and at the time of death of the deceased, they were respectively, 77, 43, 13 and 10 years of age.

14.  I have perused the calculation and accept the plaintiff’s claimed apportionment for each dependents loss of dependency based upon each of their monthly expenses.  These are 31.9% to the wife, 20.2% to the daughter, 15% to the son and 8.2% to the mother.  The overall loss of dependency comes to 75.3% of the deceased’s income, which is reasonable.

Pre-trial loss of dependence

15.  For the wife:

  HK$14,018 x 31.9% x 79 months = HK$353,268

16.  For the daughter:

  HK$14,018 x 20.2% x 79 months = HK$223,670

17.  For the son:

  HK$14,018 x 15% x 79 months = HK$166,114

18.  For the mother:

  HK$14,018 x 8.2% x 79 months = HK$90,809

19.  Total pre-trial loss of dependency is therefore HK$833,861.

Post-trial loss of dependency

20.  I accept that the deceased’s monthly wages should be HK$15,886 based on the government statistics mentioned above.

21.  I would also agree to the plaintiff’s proposed percentage of loss of dependency percentage, ie 75% of the Deceased’s income, based upon the practice stated in Fung Suen Sim v Liu Chun Pong & Anor HCPI 896 of 2007 and Harris v Empress Motors [1984] 1 WLR 212.

22.  As for the multiplier, Mr Wong proposed that the court should look at the observations made by Bharwaney J in Fung Suen Sim v Liu Chun Pong & Anor HCPI 896/2007.

23.  Conventionally, the calculation of multiplier loss of dependency is from the date of death, and if the period exceeds the pre-trial period, then the balance of the multiplier should be used for the claim for post-trial calculation: Prichard v. J.H. Cobden Ltd [1998] Fam 22, Corbett v Barking Havering and Brentwood Health Authority [1991] 2 QB 408 etc.

24.  This method of apportioning the multiplier is different from, for example, the calculation of a claim of loss of income in case of an injured, but living, plaintiff.  In such a case, the multiplier is calculated from the age of the plaintiff at the date of trial for his future loss of earnings claim, and his pre-trial loss of earnings claim is calculated from the date of accident to the date of trial.  There is no apportioning of the multiplier.

25.  Of course, the reasoning behind the multiplier based on a discount rate is that if the award is received now, and if this award is reasonably invested, the award and its eventual investment return should be equivalent, as far as possible, to the loss due to the relevant injury.

26.  This would make perfect sense in the claim for future loss of earnings or future medical expenses: the Plaintiff received a lump sum up front and on assumption that this is reasonably invested, the sum and investment return should equate the future loss or covers the future expenses.

27.  However, in loss of dependency claim, the multiplier is traditionally calculated from the date of death.  Of course, the plaintiff would not have received the award (and therefore invested it) at the date of death. Consequently, in this traditional method of calculation, the plaintiff would lose out on the expected return of investment of the award during the pre-trial period. At first glance, this does not make much sense.

28.  However, this reasons for the difference in calculation for dependency was explained by Purchas LJ in the Corbett case:

“With respect to counsel, some confusion and difficulty may have arisen over the encapsulation of the competing arguments into two phase: “assessment of multiplier from the date of death” and “assessment of multiplier from the date of trial”…  In every assessment of damages “in futuro” to be compensated by an immediate payment there are at least five essential elements: (1) the likelihood of the provider of the support continuing to exist; (2) the likelihood of the dependent being alive to benefit from that support; (3) the possibility of the providing capacity of the provider being affected by the changes and chances of life either in a positive or negative manner; (4) the possibility of the needs of the dependant being altered by the changes and chances of life, again in a positive or negative manner; and (5) an actuarial discount to compensate (a) for the immediate receipt of compensatory damages in advance of the date when the loss would in fact have been incurred, and (b) the requirement that the capital should be exhausted at the end of the period of dependency.”

29.  Purchas LJ then quoted Lord Bridge’s judgment in Graham v Dodds [1983] 1 WLR 808:

“But in a fatal accident case the multiplier must be selected once and for all as at the date of death because everything that might have happened to the deceased after that date remains uncertain.”

30.  I would put it simply as such: the contrast between a fatal accident case and a personal injury claim by a living injured plaintiff is that the former has more variables and uncertainties regarding the loss of dependency claim: the circumstances which may affect the deceased earning capacity and the circumstances which may affect the dependents’ needs.

31.  In contrast, for a claim of loss of earnings, the plaintiff is alive and can provide documents showing his post-accident income, give evidence in court and be cross-examined. His capacity to work and earn can be assessed by medical experts who can also opine, if needed, on his prognosis in life.

32.  Similarly, in a claim for medical expenses, the plaintiff can provide receipts for past expenses and the medical experts can opine on future needs after examining the plaintiff, and such evidence can be tested in court.

33.  In short, the difference between a loss of dependency claim in fatal accidents and a claim by a living plaintiff is that there is a lot more “crystal-ball gazing” for the court in the former.  Thus, the traditional way is that the multiplier should be set at the date of death in the former which is the one certainty available in such cases.

34.  As such, I see no reason to make any change to this tradition in this case: the multiplier should be apportioned accordingly as stated in paragraph 12 above.

35.  The total future loss of dependency should be:

  HK$15,886 x 75% x 112.76 = HK$1,343,479

36.  The plaintiff did not provide an apportionment of this claim between the dependents so I would direct that the plaintiff should file memorandum of apportionment of post-trial loss of dependency between the wife, daughter, son and mother within 28 days.

IV.  Claims under the Law Amendment and Reform (Consolidation) Ordinance

37.  The deceased’s income should fall into a low income bracket and it is likely that the family leads a hand to mouth existence so the prospect of wealth accumulation is unlikely.  Mr Wong accepted that if the court allows 75% of the deceased’s income as loss of dependency, the court may not award under this claim.

38.  I would accept this and no award is allowed under this head of claim.

Loss of Service

39.  I would allow a nominal HK$500 per month for a period of 10 years, or HK$60,000 under this head of claim.

V.  Special damages

40.  I would allow HK$500 as medical expenses and HK$79,040 as funeral expenses.

VI.  Summary

41.  I summarise the above awards as follows:

	HK$
PSLA	40,000
Bereavement	150,000
Pre-trial loss of dependency	833,861
Future loss of earnings and MPF	1,343,479
Loss of service	60,000
Medical expenses	500
Funeral expenses	79,040
Subtotal (excluding interest)	2,506,880
Minus Employees Compensation	(764,000)
Total:	1,742,800

Interest

42.  Interest on bereavement award be at 2% per annum from the date of death to date of assessment.

43.  Interest for pre-trial loss of dependency, medical and funeral expenses be at half judgment rate from date of death to date of assessment.

Representation: