HO WUN CHAU AND ANOTHER v. CHAN CHUK MUI

IN THE HIGH COURT OF HONG KONG

COURT OF FIRST INSTANCE

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ASSESSMENT OF DAMAGES

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1. This is an Action by the Administrators of the the deceased on behalf of his estate under Section 10 of the Law Amendment and Reform (Consolidation) Ordinance (Cap. 23) and for the benefit of his dependants under the Fatal Accidents Ordinance (Cap. 22). The deceased died as a result of an accident which occurred on 5th December 1987 in the course of his employment. The deceased had driven a motor truck from Hong Kong to the Tai Zhi Shan Quarry, Baoan County, Guangdong Province, where he was loading stone onto the truck by means of the crane on the truck when the crane began to malfunction. The deceased crawled under the truck to find out what was causing the malfunction, when he became entangled in the drive mechanism and suffered multiple injuries to his head and body.

2. On the failure of the defendant to comply with an unless order to serve and file her list of documents, interlocutory judgment for damages to be assessed was entered against the defendant on 3rd May 1996. On 30th January, 1997, leave was given to set down the assessment for a one day hearing, with the usual directions being given. A notice under sections 47 and 49 and O.38 of the RSC, dated 6th June 1997, relating to the statment of Chan ming por, was filed. On 25th July 1997 the notice of appointment for assessment of damages issued, fixing the 30th September 1997 for the assessment of damages, and an affidavit of service of the notice of appointment was filed on 29th July 1997.

3. At the assessment I directed that the witness statements of Chan ming por, the younger brother of the deceased, and of Ho wun chau, the plaintiff and widow of the deceased, do stand as evidence in chief, in accordance with the directions given on 30th January 1997. The defendant was absent.

4. At the date of the accident, the deceased was aged 34.

UNDER FAO

Loss of Dependency

5. The claim for loss of dependency under the Fatal Accident Ordinance, Cap.22, is on behalf of the following dependants, with their ages at the time of the accident -

The widow, Ho wun chau, aged 37

Chan ying kit, aged 11

Chan kit leung, aged 8

Chan ying chun, aged 5

The parents, Chan sing and Wong liss, aged 59 and 58 respectively

The sister, aged 40

The brother, aged 24

6. At the time of the accident, the parents, the brother and sister all resided in China. At present, the parents live in Hong Kong, the brother is working in Australia, while the sister remains in China.

7. The deceased was employed as a truck driver/crane operator by the defendant, earning about $6,000 per month at the time of his death. He lived in Hong Kong with his wife and three children whom he supported. He also contributed various sums to his parents, his sister and younger brother, all living in China. Counsel submitted that, had it not been for the accident, it was expected that his income would increase by at least 10% per annum and that his contribution to his dependants would have increased rateably, and that 10% was a very reasonable estimate, averaged over the period and taking into account the lower wage increases in the last year or so.

8. The deceased gave about $4,000 per month to his wife for the maintenance of his immediate family in Hong Kong. In her statement, the widow says that at the time of the accident she worked as a cleaner, earning about $1,100 per month, which was used for pocket money for herself and the children, with the family's living expenses coming from the deceased. The deceased's family expenses amounted to approximately $3,590 per month at the time of the accident. Of this amount, about $2,000 was spent on food and the deceased's share was therefore in the region of $400. Thus the average monthly value of each dependency at the time of his death was ($3,590 - $400)/4 = $797.50 per person or $9,570 per annum. With regard to the calculation of these figures, Counsel referred to the authority of Hav v. Hughes. (1975) QB 790, where in relation to general family expenditure, it was said that "..since the children had enjoyed a home consisting of the whole house, there was no error in principle in assessing their loss as the loss of the whole house in which they had lived with their parents."

9. In his statement, the brother, Chan ming por, says that the deceased would make payments to his parents over the year amounting to about $600-700 per month, while the deceased would give him about $500 per month and his sister about $1,000 per. annum. In her statement, the widow makes no mention of these payments, Counsel submitting that the widow was not aware of the provisions the deceased made for his family in China. I accept Chan ming por's evidence as to these payments. In her submission, Counsel calculated these dependencies on the average figures of $650 per month for the parents, $500 per month for the brother, and $1,000 per year for the sister.

10. I accept the evidence as to the dependency of each of the family members.

11. At an annual rate of increase of 10%, the monthly value of each dependency on 30.9.97 would be-

For the wife and each child-

$797.50+10%+10%+10%+10%+10%+10%+10%+10%+10%+10%

=$2,068.50 (ie, an increase of 159%)

For the parents

$650+159%

=$1,683.50

For the brother

$$500+159%

=$1,295

For the sister

$1,000+159%

=$2,590

The median for each pre-trial dependency would be-

12. I accept the annual rate of increase of 10% for each of the dependants and the median for each of the pre-trial dependencies.

13. As to the multipliers, Counsel submitted that I should adopt the following-

the widow - aged 37 - a multiplier of 14

Ying kit - aged 11, a multiplier of 6

Kit leung - aged 8, a multiplier of 6 years 8 months

Ying chun - aged 5, a multiplier to age 18

the parents - aged 59 and 58, a multiplier of 12

the brother - aged 40, a multiplier of 10

the sister - aged 24, a multiplier of 14

14. Ying kit and kit leung both started work before 18, and the multipliers take that into account. However, ying chun is now aged 15, is still at school and is doing well, and Counsel submitted that a multiplier to age 18 is appropriate in his case. The parents are both well.

15. In support of the multipliers suggested, Counsel referred to two authorities-

16. In the case of Lau suk fong v. Wong fat kwong, (1995) 3 HKC 395, Master O'Donnell accepted the following multipliers-

A widow aged 35 at the date of death, 15 years

A child aged 9, a multiplier of 9 years

A child aged 5, a multiplier of 13 years

A mother aged 78, a multiplier of 2 years

A mother-in-law aged 62, a multiplier of 8 years

17. Counsel noted that for the children, Master O'Donnell used the age of 18 years as the appropriate basis for deciding the multiplier. For the mother and mother-in-law, he used the ages of 80 and 70 respectively. In the present case, 10 years have elapsed since the accident with some loss of dependency, since the 12 year multiplier for the parents results in a projection of only two years into the future, acceleration being taken into account.

18. In Leung siu chun v. China State Construction Engineering Corp, HCA No. A 4704 of 1990, Master Woolley accepted the following multipliers-

A widow aged 32 at the date of death, 14 years

A child aged 7, 11 years

A child aged 5, 12 years

A child aged 2, 15 years

A child born after the accident, 16 years

19. Having considered the case law referred to, I accept the multipliers as submitted by Counsel.

Pre-trial loss of dependency

20. Adopting these figures, the resulting pre-trial loss of dependency from the 5.12.87 to 30.9.97 would be as follows-

Ho wun chau, the widow

$1,433 x 9 years 9 months = $167,661.00

Chan ying kit, the eldest son who started working in December 1993

$1,433x6 years = $103,176.00

Chan kit leung, the second son who started working in August 1994

$1,433 x 6 years 8 months = $114,640.00

Chan ying chun, the youngest son who is a student

$1,433 x 9 years 9 months = $167,661.00

The parents (together)

$1,166.75 x 9 years 9 months = $136,509.75

The brother

$897.50 x 9 years 9 months = $105,007.50

The sister

$1,795 x 9.75 years = $17,501.25

21. I award the statutory bereavement sum of $40,000 as claimed.

LARCO

Loss of Accumulation of Wealth

22. As to this claim, Counsel submitted that the deceased would have achieved an accumulation of wealth of at least 10% of his income by the time of death had he lived out the natural course of his life.

23. Although the deceased had no savings at the time of his death, it can be assumed that as his children grew independent, he would have been able to achieve some savings. The eldest son started working in December 1993 and the second son in August 1994, so that the burden of maintaining the family would have been reduced by about 50% on the deceased attaining the age of 40 to 41. At the time of his death, the widow was working and earning about $1,100 per month, used for pocket money for herself and the children. With the independence of the children, the wife's earnings would have been available to the household. The deceased was a diligent and industrious man, and on the children attaining independence, he would have been able to accumulate the surplus funds for his retirement. On his death in the natural course of time, some of those savings would have remained for his estate.

24. Counsel submitted that if 10% is accepted then, using a multiplier of 14, the loss of accumulation of wealth to the estate would be - $6,000 x 10% x 168 months =$100,800.

25. The issue of accumulation of wealth has been considered in three authorities, two of recent date - Chan yuk ying v. Chan cheung wan. No. A 7911 of 1988, Chan sim lan v. Shun Shing Engineering Co., No. A749 of 1992 and Ho pang lin & Wong hop hing v. Ho Shui on & Tsuen Lee Metals & Plastic Toys Co. Ltd., No. A4450 of 1993.

26. The deceased in this case falls under the third of the three categories defined by Deputy Judge Jones in the case of Ho pang lin and Wong hop hing, that is, a deceased without any identifiable savings pattern, but one whose habits and lifestyle indicate a probability that he would accumulate wealth. As stated in that case, the court must avoid speculation. Deputy Judge Jones then went on to say "However, if thrift, frugality, responsibility and perhaps good employment prospects clearly emerge from the evidence, then an award should be made even if the contemporary income is fully utilised, for example on maintaining a young family." Deputy Judge Jones went on to list the dependents, and then said "With those responsibilities, understandably he had no savings pattern. He was however a man whose life style was settled, who exhibited patterns of thrift and responsibility, and who appeared to have good prospects in his business.... In all these circumstances I find it more probable than not that the deceased would have accumulated wealth by his retirement..... I therefore find it also probable that the deceased would have retained an accumulation of wealth by the date of his death from natural causes."

27. In case before him, Deputy Judge Jones made a global award of $100,000 for loss of accumulation of wealth, commenting that this necessarily had an arbitrary element, but no more so than the 10% factor adopted in other cases.

28. As to the multiplier of 14 submitted by Counsel, she referred to several cases-

29. In the case of Chong choi woon v. Whampoa Marine Terminals Ltd., HCA No. 1492 of 1987, Master Perrior accepted a muliplier of 13 in the case of a 40 year old at date of death.

30. In Siu Lin v. Yeung sai chow, HCA No. 2103 of 1983, Master Woolley applied a multiplier of 14 to a 45 year old at the date of death.

31. In Tsang yuk po v. Wong fook & others, HCA No. 2078 of 1983, Master Hansen applied a multiplier of 13 to the case of a 37 year old at the date of death.

32. In the case of Lau suk fong referred to above, Master O'Donnell, while saying that it "may be generous for the deceased", accepted a multiplier 12 for a man aged 41 years at death, when calculating the loss of accumulation of wealth. On the accumulation of wealth issue, Master O'Donnell only allowed a notional accumulation of wealth at 5%, commenting that the deceased was a gambler both on racehorses and at the casino in Macau, and 10% would be unrealistic.

33. In the case of Leung siu chun, also referred to above, Master Woolley adopted a multiplier of 14 in calculating the loss to the estate and to the widow. When it came to damages for accumulation of wealth, Master Woolley used the figure of 10% of the deceased's net earnings as the notional savings when calculating this figure. Master Woolley commented that "In assessing the deceased's likely future savings the evidence as a whole, in particular the sort of man he was, his attitude to family, work and earning money would be taken into account. The deceased was likely to provide not only for current needs but also for the future of himself and his wife as his means improved and he could afford it. Although the family expenses at the date of the accident made saving difficult the family were comfortably off and savings would be made in the future."

34. In this case, due to the lapse of time, I have the evidence before me that the two sons have become independent at young ages, when their father would only have been aged 40/41. The deceased was a responsible and steady worker in regular and remunerative employment at the time of his death. He had a wife and three children to support. Additionally, he gave financial assistance to his elderly parents, a brother and a sister. With such family responsibilities, he had no savings pattern. He was a man of settled life style, who was a steady and responsible worker, and who appeared to have good prospects of continuing employment, who would have worked on well into his sixties, during which working life he would have been expected to prosper accordingly. In the circumstances, I find it more probable than not that the deceased would have accumulated wealth by his retirement, and I find it probable that he would have retained an accumulation of wealth by the date of his death from natural causes. Taking into account the deceased's life style and habits, I am satisfied that there is sufficient evidence before me in this case to apply the 10% factor in assessing the accumulation of wealth, as submitted by Counsel. Further, having considered the cases referred to by Counsel, I am satisfied that a multiplier of 14 as submitted by Counsel is appropriate. As a result, I make an award in the sum of $100,800 suggested by Counsel under the head of loss of accumulation of wealth.

Funeral Expenses

35. As to funeral expenses, the plaintiff claims $4,000, but she was unable to produce a receipt. However, I accept counsel's submission that this is a reasonable amount to claim under this head, and I make an award of $4,000.

SUMMARY

36. I therefore assess damages in this case, as follows-

37. The pre-trial loss of dependency and the funeral expenses will carry interest at half judgment rate from the date of the accident until the date of judgment. The statutory bereavement sum will carry interest at 2% per annum from the date of service of the Writ until the date of judgment. Thereafter, the awards will carry interest at judgment rate until payment.

38. I order that the costs of the assessment be paid by the defendant to the plaintiff, with Certificate for Counsel, to be taxed if not agreed. The plaintiff's own costs to be taxed in accordance with Legal Aid Regulations.