LEE SIU CHUN AND OTHERS v. CHINA STATE CONSTRUCTION ENGINEERING CORPORATION

1990 No. A4704

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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ASSESSMENT OF DAMAGES

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1. These proceedings arise out of an accident on a building site on 26th March 1988 when Mr. Po Jum Pui, the husband of the 1st named Plaintiff, fell from the 23rd floor on a building site and suffered multiple injuries from which he died on the same day.

2. Proceedings were commenced on 14th July 1990 and judgment for damages to be assessed was entered on 27th November 1990.

3. The Plaintiffs' claim in these proceedings is for damages under the Fatal Accidents Ordinance (Cap. 22) on behalf of the dependants of the deceased, and under the Law Amendment and Reform (Consolidation) Ordinance (Cap. 23) on behalf of the deceased's estate.

4. In accordance with the usual practice there has been filed on behalf of the Plaintiffs a schedule of the claim in these proceedings and it is apparent from the submissions from both parties that a number of matters in that schedule are agreed. In particular the Defendant does not dispute the funeral and burial expenses of $31,281.00, the award for damages for bereavement is agreed at $70,000.00, and the relevant multiplier to be used for calculation of the continuing loss to the estate and the widow is agreed at 14.

5. This leaves as matters in dispute the earnings of the deceased prior to accident, and what such earnings would have been today, the loss of accumulation of wealth, if any, of the deceased, and the level of each dependant's share of the deceased's contribution to the family had he lived.

6. The only witness to be called by the Plaintiffs was the widow Madam Leung Siu Chun who is now aged 32 and was aged 29 at the date of the accident, her husband the deceased, then being aged 34.

7. Madam Leung gave evidence that at that time she had 3 children - a daughter born in 1981 and two sons born in 1983 and 1986. Not long after the accident she gave birth to a third son.

8. Madam Leung had little knowledge of the details of her husband's work. She knew that he worked as a scaffolder and she said that he went out to work every day except Sunday afternoons when he returned home early to spend some time with his family. She knew that he had a firm called Wing Shing Scaffolding Company and that sometimes he did work as a sub-contractor in the name of his company and sometimes he was employed by others and paid wages, but she did not know what proportion of each sort of work he did at any given time.

9. The family lived in a property owned by Madam Leung's mother, who also lived with them and, as well as receiving rent of $2,000.00 per month, was also dependant upon the deceased.

10. The contribution the deceased made to the family was given by Madam Leung as a total of $10,000.00 per month although she was unsure of the exact amounts saying that two payments a month were made to her, sometimes between $4,000.00 and $5,000.00 and sometimes between $5,000.00 and $6,000.00. From these she said she paid all the household expenses including school fees and utility bills. She said that the fourth child that was born after her husband's death would, and did, add about $1,000.00 per month to expenses, and her husband would have given her that sum in addition to assist.

11. The deceased was apparently a good family man who cared for his wife and children and worked very hard to maintain them. He apparently had no vices such as drinking or smoking and seldom gambled. Madam Leung had little information about his personal expenses except that he had at least one and sometimes two meals out each day but she did not know what he spent on clothes or on the expenses for his car.

12. From the various documents put in evidence by the Plaintiff under the provisions of the Evidence Ordinance and in particular the bank statements of Wing Shing Scaffolding Works, the deceased's company, it is apparent that he had a successful business, whether he was doing it on behalf of his own company, or as an employee as a scaffolder, and considerable sums of money passed through this account in the year prior to the accident.

13. Mr. Yu on behalf of the Defendant has submitted that the figure of earnings of $13,500.00 at the date of death, as set out in the Employees' Compensation Form II and based on 30 days work a month at $450.00 a day, is not to be regarded as a reliable figure for the deceased's earnings pre-accident as it is only evidence of what he was earning that month.

14. However, I consider that that figure is if anything something of an under-estimate of his earnings. From what I have said above, it is clear that his business was very successful with a large amount of money passing through his bank account. His widow's evidence that he went out to work every day except Sunday afternoons supports the view that he worked regularly, and most the days of the month. Madam Leung's evidence that she received about $10,000.00 per month as his contribution to the household expenses supports an income of that level, as if it were less, it is unlikely he would have sufficient for his own expenses of food, clothing and the not inconsiderable expenses of running his car. And lastly I have to say that the Defendant had produced no evidence to contradict the statement that such were the proper earnings for a scaffolder at that time. I therefore accept the contention on behalf of the Plaintiff that the deceased was earning at least $13,500.00 a month at the date of the accident.

15. Miss Pinto goes on to say that were it not for the accident the deceased would now be earning $15,864.00 a month. She calculates this figure by taking the daily rate for a scaffolder in the February 1991 statistics in respect of wages of workers engaged in Government Building and Construction projects issued by the Census and Statistics Department, which gives a daily wage of $528.80. She multiplies this by 30 days to arrive at the figure she maintains is correct for present monthly earnings.

16. Mr. Yu has no argument with the daily figure of $528.80 but says that this should be mutiplied by 26 days a month as the usual working month and that it is unreasonable to expect a man such as the deceased to have worked 30 days every month.

17. However, having accepted as I have the figure of $13,500.00 as the deceased's earnings at the date of the accident, if I accept Mr. Yu's contention, then the deceased's earnings-would have increased only to $13,748.80 between 1988 and now, an increase of less than 2% over 3 years. I do not regard this as sensible in the circumstances given the current rate of inflation.

18. I also take into account the obvious fact that the deceased was not just limited to the daily wages of a scaffolding worker as envisaged by the statistics, but also was in receipt of probably higher profits as proprietor of his own scaffolding company.

19. Although the information is regrettably somewhat limited, I take the plaintiff's own figure of $15,864.00 as being a reasonable increase over 3 years from the $13,500.00 per month the deceased was earning at the date of his death, and I also therefore accept the plaintiff's figure of a median monthly income for the period from the date of death until date of trial of $14,682.00 per month.

20. Miss Pinto has submitted that the dependency of each member of the household should be calculated by dividing the contribution of the deceased by the number of that household. Realistically taking the number at 7, as it was only three months after the deceased's death that the fourth child Po Pak King was born, and taking the total contribution of the deceased at $11,000.00 per month, as I find it would have been upon the birth of the fourth child, this gives a dependency for each family member of $1,571.00. As I also find that this dependency would increase in line with the deceased's increase in income, namely 17½% between the date of death and date of trial, the dependency would to-date be $1,846.00 per month, giving a median for the period pre-trial of $1,708.50.

21. Under the Fatal Accidents Ordinance therefore the award for each of the dependants for the 39 months pre-trial, except for Po Pak King, will be $66,631.50. In respect of Po Pak King the period of course is only 36 months giving a sum of $61,506.00. The total under the Fatal Accidents Ordinance pre-trial is accordingly $394,663.50.

22. The continuing loss of dependency under the FAO is of course at the present rate according to my calculations of $1,846.00 per month for each dependant.

23. Mr. Yu had no disputes with the multipliers submitted by Miss Pinto for the dependants namely 129 months for Madam Leung, 93 months for Po Man Oi, 105 months for Po Pak Hong, 141 months for Po Pak Kin, 156 months for Po Pak King and 33 months for Madam Lee Lai King, giving figures of $238,134.00, $I71,678.00, $193,830.00, $260,286.00, $297,976.00, $60,918.00 respectively, and a total under FAO for the continuing loss of $1,212,822.00.

24. I now come to the claim under the Law Amendment and Reform (Consolidation) Ordinance (LARCO), in respect of the loss to the estate of the accumulation of wealth of the deceased had he not died in this accident.

25. It is submitted by Mr. Yu that there is no evidence of probability that savings would have been made by the deceased.

26. I have been referred by Miss Pinto on behalf of the Plaintiff to the judgment of Mr. Justice Nazareth in High Court Action No. A7911 of 1988 Chan Yuk Yin & Another v. Chan Cheung Wan. That case is similar to this in that there was no pattern of savings. Although the deceased here had credit balances in his saving accounts and in his business current account, and also owned a car, there is no obvious method of setting money aside month by month. Indeed from the evidence I have heard it is unlikely that at this stage and with his family as young as they were, that he had a great deal of available money each month to allow for regular savings.

27. I also agree, however, that it would be wrong merely because the deceased had shown no pattern of regular or organised saving to make no award for loss of wealth at all. I believe I am entitled to look at the evidence as a whole, at sort of man the deceased was, his attitude to his family and his attitude to his work and earning money to draw a conclusion as to his likely savings in the future.

28. From the evidence it is clear that he did have credit balances in his account inspite of the high expenses of his young family. I accept the evidence of Madam Leung that her husband was a man of sober and frugal habits who worked extremely hard to support his family. I also accept that he was a good husband and a family man and I would expect such a man to provide, not only for his children's current needs, but for the future of himself and his wife at an increasing rate as his means improved and as he could afford it.

29. The deceased was comparatively successful in his business and there is no reason why he should not continue to be so successful. Although the expenses of his family would make saving difficult at the date of his death they were clearly comfortably off and I would anticipate that savings would be made in the future by a man who had shown the responsibility that the deceased had done.

30. I propose therefore to adopt the same approach of Mr. Justice Nazareth in the case above and adopt the figure of 10% of the deceased's net earnings as his notional savings.

31. For the pre-trial period of loss under this head therefore, adopting the median earnings that I have already found of $14,682.00 per month, 10% of those earnings over the 39 months would produce a figure of $57,260.00.

32. The continuing loss post-trial again taking the agreed multiplier of 14 years or 168 months, produces a figure of $204,646.00 being 10% of the balance of 129 months' earnings at a figure of $15,864.00.

Summary

FAO

LARCO

33. I will hear counsel on the question of costs and interest.