CHAN CHEUK HING AND ANOTHER v. ATTORNEY GENERAL AND OTHERS

LU/RD/LA 255/81 MKT/H (PIL)

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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ASSESSMENT OF DAMAGES

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1. The plaintiff is the father and administrator of the estate of the deceased. Miss Chan was killed on 23rd August 1981 when the ambulance in which she was travelling along the Tuen Mun Highway collided head on with a Kowloon Motor Bus. At the time of her death she was aged 20 and was employed by the Medical and Health Department as a Student Nurse (Psychiatric). There is a claim under the Law Amendment Reform and Consolidation Ordinance in respect of the estate of Miss Chan from which her father and mother can be expected to benefit and a claim under the Fatal Accidents Ordinance in respect of the dependency of Miss Chan's father, mother, brothers and sisters. It is common ground that the Fatal Accidents Claim of her father and mother merge with the larger L.A.R.C.O. claim leaving an F.A.O. claim for the brothers and sisters only.

2. Six witnesses were called for the plaintiff. The plaintiff himself gave evidence and told me that at the time of her death his daughter did not live at home but lived in quarters provided by her employer at Princess Margaret Hospital and out of her monthly salary of $1,800 she gave $1,000 per month to her mother. He described this contribution as being for family expenses including the cost of education of her brothers and sister. He also told me that at festival times she would give further sums of money to the family. He told me that she had savings of $600-$700. He described her as a rather unsophisticated girl whose off duty interests were being with her family, reading and listening to music.

3. The second witness was CHAN Shun Lin, the deceased's sister. She told me that she was now studying at the Polytechnic for a Diploma in Social Welfare, the course lasting 2 years. After that she wished to study further at a University for 3 years but if she failed to gain a University place she would do field work for 2 years and then 2 years study and obtain a degree at the end of that period. Her current fees are $2,600 per annum with books estimated at $2,000-$3,000 p.a. She expected to have to pay higher fees next year. She told me that she and her sister had been very close and that her sister had said she would give more money to the family when she qualified and would continue to support the education of her brothers and sister. She disclosed that her sister said she would contribute $3,000 - $4,000 p.m. to the family when she became a registered nurse. She also gave evidence of other payments, $100 to her mother and father on their birthdays and $400-$500 at other times of the year.

4. The next witness was CHAN SHUN SENG, one of the deceased's brothers. He told me that just before his sister's death he had finished a diploma in Electronic Engineering. As a result of her death he had to cancel plans to study abroad and spent some 4-5 months on self-study I and then obtained a job as electronic engineer. He now contributes substantially to the family.

5. The 4th witness was the deceased's other brother CHAN SHUN CHEONG. At the time of his sister's death he had been a Form 3 student but had had to leave school and had joined the Attorney General's Department as a messenger. In September 1982 after receipt of the Employee's Compensation award he returned to school and is now studying for higher level examinations and hopes to gain entry to the Chinese University for a 4 year course. He told me that his fees on return to school were $21 per month for two years and that his current school $410 p.m. He estimated that but for his sister's death he would have been dependent on the family for a further 7-8 years assuming he went to University.

6. The next witness was Mr Raffel Chan the Head of the Government Teaching Department for Psychiatric Nurses. He told me that the deceased had passed all her hospital examinations but had to complete her 3 years training period and sit for the statutory examination in February, 1982. From his knowledge of her he considered it quite reasonable to believe she would pass that examination. Mr Chan also said that he could think of no reason why Miss Chan would not have been promoted to Nursing Officer II although the factors governing such promotion were qualifications, experience, ability and lastly seniority. He could not say when promotion would take place as that would depend on vacancies but he did say that promotion to Nursing Officer II was reasonably automatic. Sofar as further promotion to Nursing Officer I was concerned he said that leadership levels were required and it was difficult to say what qualities the deceased would have shown in a few years time.

7. The final witness was CHAN SUI YEE, a former room-mate of the deceased for part of their period of training. Apart from observations on the character of the deceased she was able to say that about $200 p.m. was spent on meals at the hospital.

8. Unlike most of the cases which come before the Courts where there is a paucity of evidence on the future prospects of the deceased, in this case the Government pay scales show in detail what she could have expected to have received. I have had produced to me the pay scales for a Registered Nurse and the two promotion posts of Nursing Officer II and Nursing Officer I. Mr Mills-Owen had submitted projections of the deceased's income calculated on those scales which Mr Graham accepts are mathematically correct. Mr Mills-Owen submitted that it is proper when assessing the deceased's future prospects to take into account the probability of her promotion. Written evidence from the Medical and Health Department showed that between 1971 and 1983 it took on average 9.4 years for a Registered Nurse to be promoted to Nursing Officer II and for promotion to Nursing Officer I an average of 18.2 years. Mr Mills-Oven argues that as the Court is only concerned with probabilities any calculation of the deceased's future earnings can be based on the assumption of promotion at the end of these periods. With regard to promotion to Nursing Officer I I cannot agree. The evidence of Mr Raffel Chan was that promotion to Nursing Officer I requires leadership qualities and it was too early to say whether the deceased possessed them. With regard to promotion to Nursing Officer II the evidence of Mr Chan was that promotion to Nursing Officer II to date would reasonably be automatic. He agreed that he could not say with any degree of accuracy that the deceased would have been promoted to Nursing Officer II in any particular year and it would further depend upon vacancies and expansion of the service. In the light of this evidence I accept Mr Mills-Owen's submission and find that it was probable that the deceased would have been promoted to Nursing Officer II 9.5 years after first appointment as a Student Nurse.

9. I now turn to the issue of the free balance. The evidence in my view points to the deceased being a hardworking person with a well-developed sense of responsibility towards her family. There is evidence from her sister that she was contemplating a substantial increase in her contribution to the family to the extent of $3,000-$4,000 p.m. out of an increase in salary of $4,870 p.m. I consider that this can be regarded as no more than an indication of what she had in mind. I have to bear in mind that after qualification she would be living at home and would be paying her parents for her own upkeep. Doing the best I can I assess her likely expenditure on herself as 35% of her income. On the question of the multiplier Mr Mills-Owen urges me to adopt the multiplier of 18. Mr Graham, who concedes that the deceased should be treated no differently from a man of her age, suggests a more realistic figure is 15 or 16. I propose to adopt the multiplier of 16 from the date of the death. On the basis that the deceased would have been promoted to Nursing Officer II 9.5 years after starting as a Student Nurse, her total post trial earnings for 155 months would have been $1,436,490.00. The free balance would have been 65% of that figure namely $933,718.00. This sum is awarded less tax at the agreed rate of 10%.

Pre-trial loss

10. The earnings of the deceased for this period were agreed at $174,960. Applying the free balance of 65% 1 award $113,724,00 subject to tax at the agreed figure at 10%.

Loss of Expectation of life

I award the conventional sum of $20,000,00.

Fatal Accidents Ordinance Claim

11. From the evidence that I have heard I propose to take the sum of $3,000 p.m. as the deceased's likely contribution to the family, excluding herself as at the date of the trial. With 5 members of the family supported by her that gives a dependency of $600 per person. For the dependency at the date of death I accept Mr Mills-Owen's figure of $1,066 giving a dependency per person for six persons of $177. The average figure for the dependency to the date of trial is therefore $388. Turning to the individual dependant, the evidence is clear that the dependency of the elder brother CHAN SHUN SENG would have been short, 6 months at most. I therefore award him $388 x 6 = $2,328.

12. Sofar as CHAN SHUN CHEONG is concerned his pre-trial dependency is 27 months x 388 = $10,476. For the purposes of his post-trial dependency I propose to take a multiplier of 4 years. On the assumption that the deceased would have continued her support to the family at approximately the same level as that prior to her death I propose to take the total of her earnings for the period of the multiplier after trial and to divide that sum by the number of dependants. I assess her total earnings for 4 years following the date of trial based on the pay scales of a Registered Psychiatric nurse as a total of $329,130. Taking 60% of that a sum of $197,478 is arrived at dividing that by the number of dependants in the family gives a total of $39,495. I award the sum together with $10,476 1 have referred to earlier.

13. I then turn to the dependency of CHAN SHUN LIN. Her pre-trial loss of dependency I assess at $388 x 37 months = $14,356. Sofar as her post-trial dependency is concerned I propose to adopt the same method of calculation as in respect of CHAN SHUN CHEONG with a multiplier of 3 years. The total earnings for the period of the multiplier among $240,540 taking 60% of that amounts to $144,324 divided by 5 = $28,864 and I award that sum for the post-trial loss of dependency. The total award to CHAN SHUN LIN in respect of her pre and post trial dependency amounts to $43,220. From this sum must be deducted a total of $30,000 which was awarded to her in Employee Compensation Proceedings. The total therefore awarded to Miss Chan is $13,220.

Summary

(1) LARCO Claim

(2) FAO Claim

14. There will be interest on the general damages at the rate of 2% p.a. from the date of service of writ until judgment. There will be no interest on the assessment for the lost years.

15. There will be an order for payment of the plaintiffs cost by the 1st Defendant and for the plaintiff's own cost to be taxed under Legal Aid Regulations. There will be a certificate for 2 Counsel.