LAM FONG AND OTHERS v. LEE SIK TONG

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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Assessment of Damages

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1. This action arises out of an accident which occurred on the 25th November 1982, when Mr. Wong Kan Wan, in the course of his employment as an electrician on a construction site, was struck in the head by a concrete rivet fired from a cartridge gun operated by the 1st defendant, the employee of the 2nd defendant. Mr. Wong sustained injuries from which he died the same day, and this action was commenced by the administrator of his estate on 15th February 1985.

2. The issue as to liability was tried before Deputy High Court Judge Scriven on 16th April 1986 when judgment was given for the plaintiff against both defendants for damages to be assessed.

3. A bundle of documents was submitted by the plaintiff, notice of which had been served on the defendants pursuant to Order 38 of the Rules of the Supreme Court, and no counter-notice having been served, these were admitted into evidence.

4. Five witnesses were called on behalf of the plaintiff, Madam Wong Lai Ping, the aunt of the deceased, with whom he lived prior to his death, was the first.

5. Madam Wong said that the deceased came to Hong Kong when he was about 20 years old although she admitted that her memory was not good and this was an estimate. As the deceased was certainly 21 years old when he died and had been in Hong Kong for at least 2 years prior to that, I consider that he was in fact either 18 or 19 when he first came here.

6. The deceased was a bachelor at the date of his death with apparently no plans to marry. He was employed as an electrician involved in electrical installations on construction sites. His employer at the date of his death was Mr. Ho Kam Bun, who gave evidence and said that in November 1982 he was engaged in sub-contracting work at the City Garden development and he had employed the deceased for some 6 days prior to the accident, and was paying him $120.00 per day.

7. He went on to say that as there was a degree of urgency in completing the project it was not expected that the deceased would take any days off until it was completed, and he had not done so prior to the accident.

8. The deceased's level of earnings was further corrobrated by Mr. Wong Shu Fai, who gave evidence that he had been a friend of the deceased since childhood, and was working on the same development at City Garden. He too was an electrician and was also receiving a daily wage of $120.00.

9. Mr Chan Yuk Pui also confirmed the rate of pay, and said that he too was an electrician earning the same wages, and had worked with the deceased on another project in Tai Po from April to August 1982, when they had been again earning the same amount.

10. As to the average number of days worked by the deceased the witnesses agreed that the number of days worked would depend on the project they were engaged on, and the speed that was necessary for its completion, and I am satisfied from their evidence that the deceased would expect to work not less than 28 days per month. Indeed it is apparent from the evidence I have heard that the deceased was extremely hardworking and would not wish to work a lesser number of days.

11. His earnings therefore at the date of his death from his employment as an electrician was an average of $3,360.00 per month.

12. In addition to this employment Madam Wong gave evidence that the deceased on 8 - 10 nights a month did a right time job at a plastics factory for which he earned $30 - $40 a night.

13. Although there is no other evidence of his employment by way of wage slips or any other witness, I accept Madam Wong as a truthful witness and I am satisfied that the deceased did indeed have the extra employment, and far the purposes of this assessment propose to assume an average additional wage from this employment of $320.00 a month, giving a total income for the deceased At the date of death of $3,680.00.

14. Madam Wong and her husband, who has himself since died, were the deceased's only family in Hong Kong, the rest of his family residing in China. They comprise his father, Madam Wong's elder brother, his mother, his grandmother, and two brothers and two sisters all younger than the deceased.

15. At the date of the deceased's accident none of these family members was working. His parents through ill health, his grandmother through her advanced age, and his brothers and sisters because they were still studying at school, the eldest then being 14 and the youngest 9.

16. No evidence was adduced as to what if any support this family received from the state, but there is ample evidence from Adam Wong as well as from the deceased's friend Mr. Wong Shu Fai that the deceased was making substantial payments of money to his family in China as well as buying a number of items for them, and that if he was not solely responsible for their maintenance, they were at least largely dependent on him.

17. It appears from the evidence that not only would he return to China himself taking money and gifts but he would also call upon the services of Madam Wong and his friend Wong Shu Fai when they returned to China, to take money on his behalf.

18. I accept their evidence as to the amounts taken to China and also the declaration made by the deceased's father Wong Kai Chung, dated the 8th April 1983, in which he set out in detail everything received from his son from 1980 up to the date of the deceased's death in 1982, and indeed the last payment was made by Madam Wong after the deceased's death.

19. In assessing the amount of the deceased's contributions to his family Mr. Fan on behalf of the plaintiff has asked me to take into account the value of a number of gifts made by the deceased to his family. As these items could all be described as necessities I am prepared to accept this, and therefore the total value of the deceased's contributions I accept as set out in Wong Kai Chung's declaration. Briefly this amounts to $5,700.00 for the year 1980, $10,500.00 the year 1981 and $10,900.00 the year 1982, the deceased's contributions clearly rising as he became established in Hong Kong with correspondingly greater degree of earning power.

20. The only other witness called was Mr. Law Yu Wing who confirmed the evidence also given by Mr. Ho Kam Bun that if the deceasad were alive and working today in the same occupation, he could expect to earn $170.00 - $180.00 per day; and I therefore propose to assume for the purposes of the post-trial calculations that the current wage is $170.00 per day, giving a monthly total for a 28 day month of $4,760.00.

21. I therefore calculate the average pre-trial earnings at $4,060.00 per month (i.e. $3,360.00 + $4,760.00 ÷ 2) in respect of the degonsed's principal employment, to which I shall add the sum of $320.00 for his additional employment giving a total of $4,380.00 per month. I make no deductions for tax as I consider this would be negligible.

LARCO

22. In assessing the deceased's "free balance" from his earnings for the purposes of calculating the award to the estate under the Law Administration and Reform (Consolidation) Ordinance, I am unable in this case to make the usual calculation of personal expenses, to be deducted from the total income to arrive at a percentage, as the only evidence available is that of Madam Wong that the deceased paid her $300.00 per month for his keep and smoked about I pack of cigarettes per day. Clearly these could not be his only expenses, and it would be a matter of guesswork to try to assess a realistic figure.

23. I accordingly propose to approach from the other direction, as evidence is available both of his contributions to his family and of his savings.

24. Among the documents produced to me was a copy of the deceased's savings book with The China State Bank, Ltd. showing a total balance at the date his death of $7,821.00 which appeared to have been saved by him over the previous 9 months. In addition to this sum I accept the evidence of Madam Wong that among the deceased's belonging after his death she discovered a further sum of $1,500.00 in cash. This gives a total sum of savings of $9,321.90, which on the evidence had been saved over a period of 9 months, giving an average monthly figure for savings of $1,036.00.

25. Upon adding to this sum an average monthly contribution to the deceased's family of $903.00 (i.e. $10,900.00 ÷ 12) it produces a total figure of $1,944.00. This is 52.8% of the deceased's earning at the date his death and I propose to round this up to 53% in order to calculate the loss to the estate.

26. The pre-trial loss is accordingly assessed at $4,380.00 x 45 months x 53% = $104,463.00.

27. I accept Mr. Fan's submission that a proper multiplier in this case taking into account the deceased's ace of 21 years is 16, and as I see no reason to assume that the deceased's habit of saving and contributions to his family would decrease, I propose to take the same percentage of 53% for the free balance post-trial. This is accordingly calculated at monthly earnings of $5,080.00 (i.e. $170.00 per day x 28 + $320.00) x 147 months x 53% = $395,782.80.

28. I award the conventional sum of $20,000.00 for loss of expectation r of life, and funeral expenses of $4,250.00, receipts for which are included in the plaintiff's bundle of documents.

FAO

29. I now come to question of the award under the Fatal Accidents Ordinance, and the extent to which this should merge with the amount already awarded under LARCO.

30. The general rule as stated in The Personal Representatives of the Estate of Wong Sai Chuan, deceased v. Tam Mei Chun & another, 1983 HKLR 331 following Davies v. Powell Duffryn Associated Collieries Ltd. [1942] Ac 601 is that a FAO award to any individual dependant must be reduced to the extent of any LARCO award from which that dependant also benefits.

31. As the deceased in this case died intestate, under the Intestates Estate Ordinance, Cap. 73, the only persons to benefit from the LARCO award are those who will inherit his estate under that Ordinance, namely his parents. I accordingly now have to consider the sum to be awarded under the Fatal Accidents Crdinance to the other dependants of the deceased who do not benefit from the LARCO award, narely his grandmother, and his two brothers and two sisters, and whose award under this head consequently does not merge with LARCC.

32. I have already found that at the date of his death the deceased was contributing an annual sum of $10,900.00 altogether to his family which consisted of 7 parsons. The simpliest calculation I can make is therefore to divide that sum by 7 and arrive at a monthly figure of $130.00 per person as the value of each person's dependency upon the deceased.

33. I accept Mr. Fan's submission that this is a case where a separate multiplier must be adopted for each dependant, taking into account their respective ages at the date of death.

34. The deceased's grandmother Yip Moon Wo was then 79 years old, and of the brothers and sisters, the eldest, Wong Yuen Tai was 14, the next Wong Kan Woon was 13, Wong Fan Chong was 11 and Wong Yuen Tong was 9.

35. As nearly 4 years have already passed since the date of death of the deceased I consider that an appropriate multiplier in respect of the grandmother would be 5 and in respect of the brothers and sisters starting with the eldest 4, 5, 7 and 9 respectively.

36. I accordingly award at total of $46,800.00 under the provision of the FAO being apportioned as to $7,800.00 to Yip Moon Wo, $6,240.00 to Wong Yuen Tai, $7,800.00 to Wong Kan Moon, $10,920.00 to Wong Kan Chong, and $14,040.00 to Wong Yuen Tong.

Employees Compensation

37. As this is a case where compensation in the sum of $56,000.00 has already been awarded against, and paid by, the deceased's employer, under the provision of the Employees' Compensation Ordinance Cap. 282, the proviso to S. 25(1)(a) of that ordinance applies.

38. I have been urged by Mr. Fan to say that, as the employer has as yet made no claim against these defendants for the sum paid by him, no deduction in respect thereof should be made.

39. I regret that I am unable to concur with this view. The proviso requires me to "have regard to the amount which, by virtue of paragraph (b), has become or is likely to become payable to the employer by the third party;".

40. Although the employer has made no claim, there is no evidence before me that he does not intend to do so. I am bound therefore to take the sum paid by him into account and I do so by ordering that it be deducted, in order to simplify the calculations, from the LARCO award.

Summary

Interest

41. There will be interest on the award for loss of expectation of life at 2% from date of issue of the writ, and on the funeral expenses, LARCO pre-trial loss and FAO pre-trial total at 3.5% from the date of the accident, both to the date hereof.

42. It has been submitted by Mr. Fan that the rate of interest should be higher to take account of the higher fluctuating rates since the date of the accident. However, I do not consider it appropriate in this case to depart from the usual practice of this Court.

43. There will be no interest on the post-trial LARCO and FAO awards.

44. The plaintiff's costs are to be taxed and paid by the defendants and the plaintiff's own costs are to be taxed in accordance with the Legal Aid Regulations. There will be a certificate for Counsel.