LAM PAK HAY v. MANFELD BUILDING CONTRACTORS LTD AND OTHERS

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES LIST

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ASSESSMENT OF DAMAGES

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1. This action arose out of an industrial accident on 27^th June 1994. The deceased. Lam Kit Chung, was working in a construction site at Sea Crest Garden, Phase 3, Lot No. 211 in D.D. 387, Sham Tseng, New Territories, Hong Kong, when a pile of marble sheets fell against him causing him to be crushed against a wall. As a result, the deceased suffered fatal injuries and died on the same day.

2. The Writ was filed on 29th April 1997. By consent, interlocutory judgment on the basis of 70% of liability and with damages to be assessed was entered by the Plaintiff against the Defendants on 12th June 1998, and this is the assessment of the damages in relation to the Plaintiff's claim under the Fatal Accidents Ordinance, Cap. 22 ('the FAO') and Law Amendment and Reform (Consolidation) Ordinance, Cap. 23 ('the LARCO').

CLAIM UNDER THE FAO

(i) Pre-trial Loss of Dependency

3. It is not disputed that the deceased, prior to his death, made contributions to support the following dependants within the meanings of the FAO:

(i)	Lam Deed-hoi, father of the deceased, who was born on 20th September 1929 and aged 64 at the time of the accident;
(ii)	Chan Shu-ling, mother of the deceased, who was born on 22nd June 1930 and died on 16th August 1996;
(iii)	Lam Kiu-chin, brother of the deceased, who was born on 20th September 1964 and aged 29 at the date of the accident;
(iv)	Lam Siu-ming, nephew of the deceased, who was born on 29th July 1991 and aged 2 at the date of the accident;
(v)	Lam Siu-yuen, nephew of the deceased, who was born on 17th January 1994 and aged 5 months at the date of the accident; and
(vi)	Lam Pak-sai, sister of the deceased, who was born on 16th June 1962 and aged 32 at the time of the accident.

At the time of the deceased's death, all the said dependants lived together in the same household in the Mainland. However some time after the accident, the deceased's sister Lam Pak-sai got married and lived apart from the said dependants.

4. Undoubtedly, the quantum for the loss of dependency depends very much on the income that would have been earned by the deceased but for the accident. Hence one of the important issues between the parties in the present case is the amount of the notional income that can be earned by the deceased at the date of the assessment had he not been killed in the accident ('the Notional Income').

5. It is not disputed that, at the time of the accident, the deceased was working as a marble worker earning about $13,000 a month ($500 x 26 days). It is the Plaintiff's case that the Notional Income now is about $862 a day. In support of such contention, the Plaintiff has produced the following statistics:

(i)	Statistics of Average Daily Wages of Workers engaged in Government Building and Construction Projects prepared by the Census and Statistics Department ('the Government Statistics'), which show that the average daily wage of 'rubble mason, splitting mason and ashlar mason' was $862.4 in September 1998; and
(ii)	similar statistics supplied by the Hong Kong Construction Industry Employees General Union ('the Union Statistics'), which, with a handwritten note, show that the average daily wage of marble worker was $800 in 1997.

6. On the other hand, the Defence has called one witness Mr. Ho Kok-chun ('DW') to testify in the assessment. According to his evidence:

(i)	he has been working as a marble worker in construction sites for about 12 years;
(ii)	at the time of the accident, he was working as a marble worker with the deceased at the site in issue. By that time, his monthly income was about $13,000 ($500 x 26 days);
(iii)	he and the deceased do not fall into the category of 'rubble mason, splitting mason or ashlar mason' as stated in the Government Statistics; and
(iv)	the average daily wage of marble worker now is about $650 to $700 and there is only enough work in the market for such kind of worker to work about 22 to 23 days a month.

Based on his evidence, the Defence says that the monthly Notional Income should be about $14,625 ($650 x 22.5 days).

7. After hearing the evidence, I do not accept that the daily Notional Income would be as high as $862 as submitted by the Plaintiff's Counsel. Firstly I myself have some reservation as to the accuracy of the handwritten figure of $800 as stated in the Union Statistics. It is not clear who has written such figure in the table of statistics and so, in my judgment, the Court should not attach too much weight to this figure as truly reflecting the average daily wage of marble worker. Further, even if I were to accept the Union Statistics as accurate, such statistics show that the daily wage of such kind of worker was $620 at the time of the accident, which was much high than the amount of daily wage actually earned by the deceased at that time. This shows that the actual income of the deceased was much less than the figures shown in the Union Statistics.

8. On the other hand, I accept DW to be an honest witness. However, one must bear in mind that he is only a member of the trade, and his evidence may not reflect the general trend of wage increase in such trade. As an alternative approach, I take that the income of the deceased would have been increased by 10% per annum over the past 4 and a half year. This '10% notional annual increase' approach has been adopted quite often by the Court in the past, and to a certain extent can be supported by the general trend of wage increase as shown in the Government Statistics and the Union Statistics. Hence the daily Notional Income can be assessed as follows:

9. $500 x 110% x 110% x 110% x 110% x 105% x = $769

I, however, accept DW's evidence that there is now only enough work for a marble worker to work 22 to 23 days a month, and so the monthly Notional Income is therefore $17,303 ($769 x 22.5 days).

10. It is not disputed that the deceased made the following annual contributions to his dependants in the Mainland prior to his death:

(i)	4 to 5 trips by the deceased bringing with him $6,000 each trip (4.5 x 6,000)	$27,000
(ii)	2 visits by PW1 and his brother each bringing $2,000	$ 4,000
(iii)	3 occasions of $1000 to $2,000 sent home by relatives (3 x $1,500)	$ 4,500

11. The parties, however, dispute the amount of contribution specifically made to the deceased's brother and sister. In this regard, there is some inconsistency between the evidence given by PW2 Lam Deed-hoi, the father of the deceased, in his witness statement and in the hearing itself. In the witness statement, PW2 mentioned that the sum of $6,000 contributed by the deceased each time he visited his family was inclusive of the amount of $2,000 given to his brother and sister. Apart from the aforesaid, the deceased gave $200 to $300 each to his brother and sister each time of his visit. However in the hearing, PW2 testified that the sum of $6,000 did not include the amount of $2,000 made to the deceased's brother and sister.

12. According to PW2, he himself had to pay monthly expenses of the household in the amount of $2,500 a month. If what PW2 said in his witness statement were true, then the contributions made by the deceased would not even have been enough for the payment of the household expenses. In such circumstances, I accept that PW2 made a genuine mistake in his witness statement and find that the sum of $6,000 was not inclusive of the amount of $2,000 made specifically to the deceased's brother and sister.

13. The deceased's mother passed away on 16th August 1996 and his sister Lam Pak-sai ceased to live in the household after her marriage. Despite the aforesaid, I accept that the deceased, but for the accident, would not have reduced his contributions to his family after the death of his mother and the marriage of his sister. My reasons are as follows:

(i)	the deceased was, according to his father, a loyal son, and the deceased's sense of responsibility to his family can also be reflected by the fact that he had taken out an insurance policy for himself;
(ii)	the contributions that the deceased made to his dependants were quite modest;
(iii)	there were a lot of dependants living in the Mainland relying on the maintenance of the deceased; and
(iv)	most of the household expenses could not have been reduced even if there was one or two persons less living in the household.

14. However as the deceased did not make any contribution to his other married sister, I expect that the deceased, likewise, would not have made any further contribution to his sister Lam Pak-sai after her marriage. Unfortunately, PW2 cannot recall the time when her daughter Lam Pak-sai got married, and so I can only allow her to claim, say, one more year of loss of dependency after the accident.

15. By reason of my aforesaid analysis, the contributions made by the deceased to his dependants, excluding the contributions made specifically to the deceased's sister, can be assessed as follows:

(i)	the undisputed items of contributions ($27,000 + $4,500 + $4,000)	$35,500
(ii)	the contributions specifically made to the deceased's brother ($1,250 x 4.5)	$5,625
	annual contribution:	$41,125
	monthly contribution:	$3,427

The sum of $3,427 accounts for about 26.4% of the deceased's income at the time of his death. I accept that had the deceased remained alive, his contribution would have increased in line with his own wage increases.

16. In the premises, I can assess the pre-trial loss of dependency as follows:

          ($13,000 + $17,303) x 26.4% x 54 months = $216,000

          plus:

the contribution made specifically to Lam Pak-sai for 1 year after the accident $1,250x4.5	= $ 5, 625
total :	$221, 625

17. I now turn to the assessment of post-trial loss of dependency. The deceased was aged 34 at the time of the accident having been born on 15^th August 1959, Having considered the cases of Ho Wun-chau & Anor V. Chan Chuk-mui PI No. 595 of 1995, Mak Yiu-keung (1995) HKLJ 423 Kwan Wing-sang (1997) HKLJ 436, and Kwan Yau-tai & Anor V. Eng Kong Container Services Ltd. & Anor PI No. 1238 of 1996, I consider that a multiplier of 14 to be appropriate in the case of the deceased.

18. As the deceased was a loyal and responsible son and his contributions to his dependants were quite modest, I accept that that the deceased, but for the accident, would have continued to maintain his father, brother and nephews for the rest of his working life. Further save as the contributions made specifically to the deceased's sister Lam Pak-sai, I also accept that the deceased would have maintained the same level of contributions to his dependants despite the death of his mother and the marriage of his sister. Hence in my judgment, a multiplier of 8 should be applied in the case of the deceased's father and 14 for the deceased's brother and nephews. Adopting the approach of Deputy Judge Jones in the case of Ho Pang-lin & Anor (Co-administrators of the estate of Wong Hup-lim) v. Ho Shui-on & Anor [1994] 3 HKC 294, I adopt an overall multiplier of 12 for all the dependants. In such circumstances, the post-trial loss of dependency can be assessed as follows:

$17,303 x 26.4% x (12 - 4.5) x 12 = 411,120

(ii) Damages for Bereavement

19. The parties agree that the dependants of the deceased are entitled to claim the statutory sum of $70,000 as damages for bereavement.

CLAIM UNDER THE LARCO

(i) Loss of Accumulation of Wealth

20. It has been agreed by the parties that the deceased's estate is entitled to claim 10% of the income that would have been earned by the deceased, had he not been killed in the accident, as the loss of accumulation of wealth. In such circumstances, I can assess the award under this head of damages as follows:

Pre-trial loss

          ($13,000 - $17,303) /2 x 10% x 54 months = $81,818

Post-trial loss

$17,303 x 10% x (14-4.5) x 12 =$197,254

(ii) Funeral Expenses and Loss of Personal Properties

21. The parties agree the sums of $6,000 and $500 for funeral expenses and loss of personal properties respectively.

CONCLUSION

22. My assessment can therefore be summarised as follows:

FAO Claim

(i)	loss of dependency
	pre-trial	: $221, 625
	post-trial	: $411, 120
(ii)	damages for bereavement	: $70, 000

LARCO Claim

(i)	loss of accumulation of wealth
	pre-trial	: $81, 818
	post-trial	: $197, 254
(ii)	funeral expenses	: $ 6, 000
	loss of personal properties	: $ 500
	Sub-total	: $988, 317
	Less 30%	: $691, 822
	Less employees' compensation payment ('EC payment') of $530,000 and interest

23. As the dependants of the deceased have already received the sum of $530,000 as EC payment, all the damages I award in this assessment should be apportioned to the claim under the LARCO. Further the parties are requested to supply me with the amount of interest relating to the EC payment within 14 days so that I can certify the final amount for the assessment of damages.

24. As agreed by the parties, there will be interest on pre-trial loss of dependency and special damages at the rate of $6.54 p,a., being half the judgment rate at the hearing date, and interest on damages for bereavement at the prevailing rate of interest payable on suitors' funds both from the date of the accident to the date of the assessment.

25. I further make an order nisi that the Plaintiff shall have the costs of the assessment to be taxed if not agreed and the Plaintiff's own costs to be taxed in accordance with the Legal Aid Regulations. The order nisi is to be made absolute after the expiration of 14 days from the date of the handling down of this assessment.

26. Lastly I would like to express my gratitude to both Counsel for the assistance that they have rendered to this Court.