Wong Po Lin and Another v. Dragages et Travaux Publics and Penta-Ocean Construction Co. Ltd.

HCPI 593/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES LIST NO. 593 OF 1999

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ASSESSMENT OF DAMAGES

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1. Law Tai Yau was one of six men who died on 6th June 1996 when the Rambler Channel Bridge on which they were working collapsed. This action is brought on behalf of the estate under LARCO and on behalf of the dependants under the Fatal Accidents Ordinance. Interlocutory judgment was entered on 21st December 1999, and the Notice of Appointment of Assessment Damages issued on 6th January 2000, with the date fixed for 30th May 2000.

2. At the assessment, the four witness statement so Madam Wong were admitted into evidence.

3. Her husband was born on 2nd July 1959 and was 36 years and 11 months old at the time of the accident. He had worked at the construction site for only 6 days earning a total of $4,800, that is, $800 per day. According to the Form 2 filled in by the defendants, he would work 26 days per month and on average would be able to earn $20,800 per month. He worked for 30 days per month and worked overtime 5 days per week. Taking into account his overtime, his daily wage would be $1,000. She does not know where her husband worked prior to his job with P.I.C. He did work on a bridge, but she does not know the name. Madam Wong was referred to the Social Investigation Report dated 26th August 1997, where it is stated that the deceased earned $20,800, but she says that she cannot recall that.

4. Her husband would leave for work as early as 5 am and would normally return home some time after 7 pm, but when he worked overtime he would return at about 11 pm or even midnight. When he worked on the sites, he was seldom at home. She does not accept that he sometimes worked 26 days per month. He worked public holidays and Sundays if required to do so, but she agrees that he did not do that every month.

5. Prior to the Rambler Channel Bridge project, the worked on another bridge but she cannot recall the name. On both projects, the work was on an urgent basis. Her husband had to work overtime. He worked one week on day shift and one week on night shift, and for the night shift he received $1,200 per night.

6. Although she has not basis for saying it, she knows that her husband earned $30,000 per month, and she does not accept that it was less than that. She does not know and does not accept that her husband was a casual daily worker and not a monthly employee.

7. Madam Wong accepts that sometimes he had no construction work, but this was infrequent, and on those occasions he would go to the Mainland as an employed fisherman working for others. Since he changed to a construction site worker in 1985, he has followed this practice. The fishing work would be for periods of about one week usually, but occasionally for longer periods of about 2, 3 or even 4 weeks. He would then return to Hong Kong and sell the fish. Although he made good money as a fisherman, he could earn more on the construction sites and the hours and the income were more stable. She could not give an average monthly figure for his earnings as a fisherman because sometimes he could earn $100,00 for a week's fishing, but that was not possible every week, it was not regular. She found it difficult to give an annual figure.

8. Her husband would give her $17,000 a month. She would give $1,000 per month to her mother in law and $500 per month to her own parents. That left $15,500 for the household expenses.

9. At the time of the accident, the rent paid for the family flat, which had three bedrooms, was $5,650 but her brother and his wife and child occupied one room, and her brother paid $2,000 per month towards the rent, with no contribution towards food or utilities.

10. They used private doctors, and the medical expenses were $1,000 per month, each visit costing approximately $190, with the children attending the doctor the most, about two or three times a month. Her daughter was aged 11 and her son 7 at the date of the accident. Throughout those 11 years, the monthly costs of medical care varied, now she spends less on the children - they are growing up and growing stronger - but she herself sees the doctor more.

11. The school fees of $1,000 per month and clothing of $500 per month relate to both children, as do the $300 for books and stationery and $600 for pocket money.

12. The tuition fees of $2,000 is for the children. Initially Madam Wong said that the $1,000 provided two hours of tuition, but clarified later that the tuition fee for the secondary level is $100 per hour and that her daughter usually had 11/2 hours per night for 3 to 4 nights a week, but when the examinations are close she would have tuition a further two nights. She did not agree that the tuition claim was set at $2,000 per month because at the time of the accident, i.e. May/June, extra tuition was taken because of the imminence of the examinations.

13. As to the travelling expenses of her daughter, she may have been mistaken in claiming this since her daughter's school was nearby. The funeral expenses of $200,00 included the graveyard and tombstone expenses.

14. All the bank statements were lost or destroyed and she instructed her solicitors to write to the banks for the records and she has produced what was received from the banks. The money deposited in the accounts with the National Commercial Bank, the Standard Chartered Bank and the Hong Kong Back, being $50,000, $150,000 and $200,000 respectively, totalling $400,000, was given to her by her husband for saving purposes to meet the future needs of the family. She was a full time housewife without any income.

15. As to the Hong Kong and Shanghai Bank Fixed Deposit of $200,000 as at 20th March 1996, she cannot explain the deposits and withdrawals shown in the savings account history, except to say that they would withdraw some money when it was needed for her husband's fishing trips to the Mainland. For the year 1993 as a whole, the moneys in the account came from her husband's work as a construction site worker and fishing. The large deposit of $192,590 on 13th May 1994 came from the fishing and on 16th March 1994 $200,000 was placed on the Fixed Deposit. There were no substantial deposits for 1994. There were hardly any deposits in 1995.

16. As to the National Commercial Bank Account time deposit of $50,000 on 12th October 1995, this was money given to her by her husband.

17. The Standard Chartered Bank Account shows an opening deposit of $150,000 on 19th December 1994, also given to her by her husband. Madam Wong is referred to the abbreviation '(Tfr)', but she does not know whether it was a transfer from the Hong Kong Bank Account. She cannot remember whether there were any other credit balances in the account.

18. These sums of money were saved after their marriage and her husband gave her the $150,000 and the $200,000 around 1985. She cannot remember if any of it was given to her in cash or by cheque. There moneys were liable to be drawn out for operating the fishing business.

19. The total sum in the bank under her name at the time of the accident was about $400,000, and this represented the residue of her husband's profit when he was engaged in the fishing business and working as a construction worker.

20. Her husband never paid tax. He did not maintain a business account in the 1990s. Her husband had no documents relating to the fishing business and neither does she. Her husband's fishing work was very profitable, but he did not want to leave the family at home. Her husband gave her money for the household expenses when he got paid. As to his earnings for 1993, 1994 and 1995 she cannot recollect details of her husband's earnings for those years or where they came from, the construction work or the fishing.

21. Miss Wendy Ng gave evidence for the defendant. She is the Senior Personnel Manager of Dragages et Travaux Publics (HK) Ltd. (Dragages). Her witness statement was admitted into evidence. In a joint venture, Dragages and Penta Ocean Construction Co. Ltd. carried out the construction work on the Rambler Bridge which was part of the new airport project. The deceased was recruited through Takamura as a rigger. After the accident, she received wages information from Takamura Ltd, and was informed that the deceased was paid $800 per day and that he had worked for six days only. Based on that information, she put down $800 per day as the deceased's wage in the Form 2. There was a wage increase of between 6 - 7.5% in January 1998, but there have not been any increase since then due to negative economic factors. She produced, inter alia, documents relating to the records of two riggers employed by Dragages on a monthly basis since 1998, which show that no increases have taken place since 1998. They work 26 days per month. The records show basic wages of $10,700 and $11,600 respectively, and together with their overtime records, their average monthly totals for 1998 are respectively $17,860 and $18,921, and for 1999, they are respectively $16,398 and $17,882. It appeared that the deceased was employed on a casual basis. Over the last two to three years, she believed that there has been a reduction in the number of working days for casual construction site workers or in difficult times no work at all. Construction workers employed by companies such as Dragages would enjoy stable employment and income. Given the state of the economy since 1998, it is probable that income on a monthly employed basis would be higher than that on a casual basis, or more or less the same. She also produced a record of the wages of the only rigger employed between June and November 1995.

22. Dragages employs some riggers on a monthly salaried basis and at the time of the accident their salary was $15,680 per month, and she was told that the daily rate was $800. She was referred to page 201 of the documents bundle, which relates to employee No. 13364, with a position as a rigger, dated 21st (or 27th) May 1994, which shows his salary/wages as $15,680. Because Dragages would not have enough employed riggers for a job, it is the common practice to subcontract part of a project out, and recruit workers in this way.

23. As to the Watson Wyatt report for 1999, Watson Wyatt are consultants and she was not involved in the preparation of this report, although Dragages participated in supplying data, which was analysed by the consultants. As to paragraph 7 of her statement, she confirms that there was an increase of wages between 6% - 7.5% in January 1998. Wages were increased in January 1997 but she does not have the figures with her today. It is correct to say that a number of riggers make substantial amounts by way of overtime allowances, the overtime rate is 1.3 times the normal hourly rate. At present, Dragages has two monthly salaried riggers, and from 1996 to now, Dragages would not have employed more then five riggers, although about ten have recently joined. They are paid on a daily rate of $380. Daily workers have overtime on many occasions. The take home pay of either a monthly or daily rigger would be about the same.

LOSS OF DEPENDENCY UNDER FAO

Earnings at the date of the accident

24. The plaintiff argues that the earnings were $30,000 per month ($1,000 per day for 30 days). The defendant says that at best the earnings were $20,800 ($800 per day x 26 days), but that on the evidence of the family expenditure and the savings record, the probable earnings were $17,000 per month.

25. Both parties investigated this issue but there is no incontrovertible evidence available. The deceased only worked for 6 days. The widow held firm under cross-examination that her husband earned $30,000 per month at the date of his death. The Form 2 shows that the deceased was paid $800 per day, and Miss Ng says that she received that information from the sub contractor. The defendant paid the plaintiff $20,800 per month after the accident, ex gratia.

26. Miss Ng for the defence agreed that it was usual for construction site workers to work overtime. The records of payments made to the defendant's own riggers show substantial overtime allowances, amounting to a substantial portion of their take home pay. There is evidence that the project was in a hurry and that overtime was necessary.

27. The defendant points to the salary scales of the defendant's own riggers and the statistics as to earnings for heavy load coolies, which the defendant says is the equivalent to a rigger, and it was suggested that the $800 per day could be read as being a fixed daily wage with no overtime, or that it included overtime, and based on the heavy load coolie wage of $641 as at June 1996 then $159 represented overtime. It was further submitted that if the deceased had earned $30,000, given the family expenses claimed and given the fact that the deceased was a prudent person, the Hong Kong Bank account would have reflected the surplus.

28. The overall picture suggests that the deceased's earnings might have been less than $20,800, particularly taking into account his work as a fisherman. The probable monthly earnings were more like $17,000 in line with the wages of the defendant's riggers and the bank accounts, or even less. According to the record of employee No. 13364, the defendant's riggers earned $15,680 per month basic salary, and between June and November 1995, employee No. 13364 earned $16,968, including overtime. The overtime record for the defendants two riggers for the first three months of 2,000 show $4,933 and $6,239, which averages out to $5,586 per month. For 1998, it averages out at $7,240 per month and for 1999 $5,990. There are always variations in overtime between employees and the needs of the job. The records relate to a very limited number of riggers and cannot be treated as conclusive one way or the other.

29. If the plaintiff was earning $30,000 per month consistently, taking into account the family's expenses of about $16,000 per month and the plaintiff's prudence, the balance of about $14,000 would be reflected in the bank history. A prudent man earning $30,000 per month consistently, would have accumulated a surplus in the bank and he would have paid tax. The bank history supports the defendant's stance that the plaintiff earned about $17,000 per month at the time of the accident.

30. The plaintiff's case that the deceased earned $30,000 regularly every month is not sustainable. The deceased worked as a construction worker and an employed fisherman, with the monthly earnings as an employed fisherman being a few thousand per month. The deceased worked for six days on this project. What can be derived from the evidence is that there were occasions when the deceased earned more or less on the construction sites. There is no evidential basis for the plaintiff's evidence and it can at best be treated as a belief.

31. The defendant contends that I should not assume that the deceased earned $30,000 or $20,800, but I should consider the wider picture in arriving at a finding of probable monthly earnings.

32. On the issue of the earnings at the date of death, there is the ex gratia payment of $20,800 paid to the widow. The widow did not waver in her statement that her husband earned $1,000 per day, and that he consistently worked overtime in the past. Ms. Ng gave evidence of the wages of monthly employed riggers which indicate lower wages. However, the deceased was employed on a casual basis and the comparison is not necessarily valid since the nature of casual work usually involves a higher rate. Further, earnings can vary considerably depending on the circumstances prevailing at the time, including the availability of workers and the type of work. There is the further peripheral consideration that normally ex gratia payments are based on the basic wage, exclusive of overtime. Having considered the totality of the evidence, and in particular the matters I mention, I am satisfied that the deceased's basic wage was $20,800, i.e. $800 per day.

33. As to the issue of overtime, I am satisfied that overtime would be available on a project such as this since prompt completion would be advantageous to the contracting parties. I am satisfied that the deceased was a diligent man and that he would be willing to work more than 26 days per month. The plaintiff says that he worked 30 days per month. He was on this project for six days at the date of the accident. I find it unlikely that he would have worked 30 days per month with overtime on a consistent basis. Doing the best I can on the evidence before me, I find that the deceased would have worked 28 days per month at the basic wage of $800 per day. I further find that on 21 of those days he would have earned $1,000 per day, representing $200 per day overtime.

34. According to my calculation this amounts to $26,600 per month ($22,400 (28 x $800) + $4,200 (21 x $200)).

Notional Income at the Date of the Assessment

35. The letter from the Census and Statistics Department state that statistics are not available for a rigger, but that a heavy load coolie is a similar occupation and that the average daily wages of that occupation was $641.3 in June 1996 and $740.9 in November 1999 (the latest available figure), which is a 19% increase. Miss Ng for the defendant gave evidence of an increase of 7 - 9% for 1997 and 6 - 7.5% for 1998, and 0% thereafter, the median being 14.75%. There is the evidence of the zero increase for 1998 with regard to the two riggers employed by Dragages.

36. The Government bulletins covering employment and vacancy statistics, wage statistics, the consumer price indices, and the latest labour market situation paper produced by the Task Force on Employment dated March 2000, were referred to. Copies of the 1999 Wages Report prepared by Watson Wyatt were also referred to, but there were a limited number of participants and there was no explanation of the method of analysis. While I find these reports and bulletins of some value in indicating the progress of the economy in the interim since the accident, I do not place great weight on them.

37. On this issue, I find that the notional income at the date of assessment should be arrived at on the basis of the salary increases awarded by the defendant to its riggers, and I find this to be 14.75%. I am satisfied that I should give weight to the evidence of the defendant on increases granted to riggers rather than the more general government statistics relating to heavy load coolies.

38. On that finding, the notional income at the date of assessment including overtime is $30,523.50, which I round up to $30,524.

39. These figures produce a median of $28,562.

Household Expenses

40. The defendant submitted that since the plaintiff had difficulty remembering details of the family expenses that they should be reduced by about 15%, and provided detailed dependencies on the reduced figure.

41. The plaintiff submitted that it would be difficult to expect the plaintiff to recall the details of the family expenses and that I should not be overly concerned with the details. Litton VP cautioned of the danger of treating assessments for pecuniary loss as a 'mere matter of mathematics' - Chan Pui Ki v. Leung On (1996) 2 HKLR 401 at 411. It has also been said that 'when estimates of spending are given, they are inevitably in round figures and inevitably will leave out incidental matters of expenditure which every person has in ordinary everyday life but may be difficult to justify or categorise on a simple basis' - Rogers JA in Tang Mei Ying v. Lam Pak Chu (CACV 319 of 1999 at page 4). The court should stand back and view the overall picture.

42. The plaintiff suggests that I should adopt a conventional percentage of the income of the deceased as dependency, and referred to two scenarios prepared by for the plaintiff, which shows 68% and 47%, depending on the findings made by me on the evidence. These percentages are well within the normal pattern even taking into account the additional contributions to the extended family. Such a conventional percentage approach finds authority in Harris v. Empress Motors (1984) 1 WLR 212 at 216-217, where it was said that where there were children then the percentage should be 75%. In Ho Pang Lin v. Ho Shui On (1994) 2 HKLR 313 at 318-320, Deputy Judge Jones followed this authority and applied a percentage of 75% notional median earnings.

43. However, in Tsang Mei Ying v. Lam Pak Chui (1999) 2 HKLRD 807 at 811, Seagroatt J. in considering the principles in relation to the assessment of dependency, approved the calculation of common items of dependency, but did not approve the use of a conventional percentage. He said that

'many items of dependency are common to the family whether there are children or not, and, if there are, when they leave home and the picture of dependency in other respects changes. The common items remain part of the dependency picture. Examples of these are rent, utilities (though these may vary according to exceptional use) and other fixed payments. Moreover as some dependants cease to be such, the dependency of those remaining in the household often increases. The modern practice is to deduct a percentage from the net income of the deceased to represent what he would have spent on himself. These percentages tend to be used 'unless there is striking evidence to make the conventional figure inappropriate because there is no departure from the principle that each case must be decided on its own facts' (per O'Connor LJ in Harris v. Empress Motors ... ... The flexibility of the approach and the need to have regard to the facts of the case and the evidence adduced in relation to dependency was illustrated by Beldam LJ in Owen v. Martin (1992) PIQR Q 151:

'No doubt there will be many claims under the Fatal Accidents Acts where parties agree that a conventional proportion is appropriate. I do not, of course, suggest that in arriving at the extent of the financial provision made by the deceased the court is bound to base its assessment precisely on the percentage of net earnings disclosed by sums spent for the benefit of dependants but the court is not entitled to cast aside altogether evidence which shows the proportion of the deceased's income actually spent for the dependants' benefit during his lifetime and to substitute a figure however conventional or appropriate in other cases.'

It is not appropriate to calculate dependency on a simple equal mathematical division amongst all dependants of the sum given by the husband to his wife for the upkeep of the family home, its outgoings, and the general necessities of life. This is a wholly artificial approach and is a practice to be deprecated. It is not conducive to a calculation which is fair to either party.'

44. The household expense figures and the figures for rent and utilities are very reasonable, save for a reduction by $50 in the gas. The amounts claimed for medical expenses, school fees and clothing are reasonable. I allow the figures for books and stationery and for extra tuition for the children. It is a very common practice to provide tuition for children, given the competitive nature of school placement, even at primary level. This practice is even more understandable where as in this case the parents themselves may not be able to tutor the children. As to the figures for pocket money and miscellaneous expenses, these are reasonable. The $500 claimed for travelling expenses was acknowledged by the widow to be an error, and I disallow that. I do not accept that there should be any overall percentage deduction on these figures. They are an assessed figure, but in my view there is nothing reasonable about the figure, and I allow them as claimed in the sum of $15,100.

The Multipliers

45. The defendant submits that the deceased was one month short of 37 at the time of the accident and that he would have retired as a rigger (or heavy load coolie) between 50 and 55, with retirement from a lighter job (such as watchman) at the age of 60. His working life would be to 60, that is 23 years working life. When selecting multipliers, a significant period of up to ten years with substantially lower earnings before retirement should be taken into account. The defendant suggests 12 for the deceased and the widow, 5 for the mother, an average of 5 for the parents-in-law, and 87 months or 135 months for the daughter, depending on whether it is based on the age of 18 or 22, and on the same basis for the son 134 or 182 months.

46. The plaintiff submits 15 for the deceased and the widow and the children. The use of a common multiplier is consistent with the reasoning in Harris v. Empress Motors. The adoption of an average multiplier of 6 for the extended family is also appropriate bearing in mind the general approach to assessing damages - Chan Pui Ki and Tsang Mei Ying, and in comparison the multipliers suggested are perfectly reasonable.

47. I do not accept that the deceased would have ceased work as a rigger when he reached 50 or 55. He could quite reasonably be expected to continue to work on construction sites until he as 65. The MPF scheme is based on retirement at age 65.

48. The multiplier tables from the Hong Kong Law Journal for the years 1990 to 2000 were before me, and included several cases of fatal accidents where multipliers ranging from 12 to 15 were applied to deceased whose ages ranged from 32 to 37, with some of the multipliers being agreed by the parties. I find support for a multiplier of 14 in three recent cases - Liu Kang Fun v. Tsui Wai Ping (PI No. 666 of 1995) where in December 1999, Master Barnes applied a multiplier of 13 in the death of a 36 year old man; Tsang Mei Ying v. Lam Pak Chiu (PI No. 544 of 1998) where in April 1999, Seagroatt J. applied a multiplier of 13 to a 42 year old man; and Lam Pak Hay v. Manfield Contractors Ltd. (PI No. 519 of 1997) where Master Lok applied 14 in the case of a 34 year old man; Liu Loi Kiu v. Mak Wai Tong, HKLJ (1977) page 152, where in November 1976 the court applied a multiplier of 14 to a 37 year old deceased; Lee Man Kon v. Commercial Shang Kee Transportation Co. Ltd., HKLJ (1974) page 209, where in December 1971, the court applied a multiplier of 15 to a 37 year old man.

49. I find that for the deceased and for the widow the multiplier should be 14. As for the children, the daughter, Law Pui Yee, now aged 14-9/12, has a very good academic record. The son's academic record is inconsistent, but he is only 10-10/12, which is too soon to say how he will progress in his studies. The daughter will clearly proceed to tertiary education. As to the son, I find on a balance of probabilities that he will also proceed to tertiary education. The children's multiplier should be on the basis of being independent at 22, so that the daughter's multiplier would be 135 months from the date of the accident, say 11 years, and the son's 182 months, say 15 years from the date of the accident. I accept that I should adopt a common multiplier for the immediate family and I take 14 for this common multiplier. I find that an average of 6 should be used for the mother and parents-in-law, * Corbett v. Barking, Havering and Brentwood Health Authority (1991) 2 Q.B. p. 408.

50. In my calculation of dependency, I follow the method used by the plaintiff, which accords with Seagroatt J's approach -

Earning at death: $26,600

Earning at date of assessment: $30,524 ($26,600 x 114.75%)

LOSS OF DEPENDENCY

Value of dependency:

Immediate family

$15,100 - $1,500 = $13,600

($13,600 / $26,600) x 100% = 51% of the income of the Deceased

Others

(a) mother: $1,000 / $26,600 x 100% = 3.8%

(b) parents-in-law: $500 / $26,600 x 100% = 1.9%

Pre-trial dependency

Median income: $26,600 + $30,524 ÷ 2 + $28,562

Immediate family: $28,562 x 51% x 48 months = $699,198

Mother: $28,562 x 3.8% x 48 months = $52,097

Parents-in-law: $28,562 x 1.9% x 48 months = $26,049

Total: $699,198 + $52,097 + $26,049 = $777,344

Post-trial dependency

Immediate family: $30,534 x 51% x (14 - 4) x 12 = $1,868,069

Mother: $30,524 x 3.8% x (6 - 4) x 12 = $27,838

Parents-in-law: $30,524 x 1.9% x (6 - 4) x 12 = $13,919

Total: $1,868,069 + $27,838 + $13,919 = $1,909, 826

Grand total of dependency: $2,687,170

Loss of Accumulation of Wealth

51. The issue under this head of damages is to the accumulation of wealth, which the deceased would have achieved 'by the time he would otherwise have died' - section 20(2)(b)(iii) of LARCO - in other words by the time of his natural death.

52. The defendant's case is that the deceased would have retired from physical work at age 60 and would have taken up less strenuously physical work thereafter, and that the multiplier should be 12 years.

53. If the deceased earned $17,000, no savings would have accrued. If the deceased earned $20,800, the most that he could have saved was 15%, depending on the court's decision on the household expenses. The calculation of the loss on $20,800 is $160,804 for pre-trial accumulation of wealth and $343,699 for post trial. The figures produce a total of $504,503.

54. As to the deceased's life expectancy, he would be 41 now if he had lived, and that would give him an expectancy of 37.27 years, with an expectation of living to 78 but for the accident, which means that he would have 18 years retirement. During those years of retirement he would have depleted the accumulation of wealth by the time of his natural death.

55. As to the Provident Fund, which commences in January 2001, the deceased would be 43, with a working life of 17 years, so that a multiplier of 7 should be used, and the calculation would produce a figure of $100,245 under this head.

56. The plaintiff accepts the principle that at the time of his natural death, the deceased's savings would be depleted. I should not ignore the fact that savings can be invested to generate income returns of a recurrent nature during the deceased's working life. This would be further enhanced by the fact that there would be the lump sum available to the deceased from the MPF. Although in Dall v. Choy Ying Wai (1997) 2 HKC, Cheung J. held that actuarial evidence is not admissible in calculating the quantum of loss attributable to the MPF, he did not decide that the court should ignore the fact that the MPF would generate more than the aggregation of savings by the time of retirement.

57. As to evidence of propensity to save, there were substantial savings in the plaintiff's account at the time of his death. Because of the handing of the funds, it cannot be said with certainty whether the funds were the result of savings after the deceased became a construction worker or before, but the evidence certainly supports a propensity to save by the deceased. At the very least, a sum of $50,000 was saved during the ten years when he as a construction worker. It is reasonable to infer that he would have some savings at the time of his natural death.

58. On the plaintiff's figures there is a pre-December 2000 (before MPF) loss of $106,000, from December 2000 (with MPF) to June 2002 of $57,000, from June 2002 (cessation of dependency of mother and parents-in-law) of $486,000. A total figure of $649,000. On the alternative higher figures, there is a total of $1,549,000 under this head.

59. Keith J. reviewed the principles in Kwan Lai Kuen v. National Insurance Co. Ltd. (1998) 1 HKC 98 at 103-105. In Tsang Mei Ying's case, Seagroatt J. also considered the principles, and he went on to find that, although the deceased, aged 42 at the time of death, had not accumulated any savings by the time of his death, he was satisfied that on balance the deceased would have begun to accumulate some savings, and awarded a sum of $320,000 reduced from $336,000 for acceleration of receipt.

60. I am satisfied on the evidence before that the deceased did have a propensity to save. During the early years of the marriage, with the birth of two children, and the attendant expenses, there is evidence of funds in the bank, and I accept the plaintiff's submission that at least $50,000 was saved during the time the deceased was a construction worker, and in all probability, more than that amount came to be accumulated while he was so employed.

61. On those premises, I calculate the loss of accumulation of wealth in accordance with the plaintiff's method, incorporating as it does, the cessation of the dependency of the mother and parents-in-law, and in particular the commencement of the MPF in January 2001, which I am satisfied are all matters which should be taken into account. Again, I apply a 14-year multiplier in calculating the loss of accumulation of wealth, which totals $1,099,000, as follows: -

(a) Pre-December 2000 (before MPF)

After deducting dependency and his own share of household expenses, the balance of the Deceased's income was: $28,562 - $15,100 = $13,462

Out of that, the Deceased would have been able to save $5,000 per month

$5,000 x 53 months + $265,000

 

(b) December 2000 (with MPF) to June 2002

there will be an additional sum of $1,000 representing the employer's contribution to the MPF.

$6,000 x 19 months = $114,000

 

(c) June 2002 awards (cessation of dependency of mother and parents-in-law)

the cessation of dependency of mother and parents-in-law would mean more savings accumulated

$7,500 x (14 x 12 - 72) = $720,000

 

(d) Grand total of loss of accumulation of wealth

$265,000 + $114,000 + $720,000 = $1,099,000

62. In deciding whether that accumulation of wealth would be depleted in part or in whole at the time of the deceased's natural death, I accept the plaintiff's submissions that I can take into account the fact that the deceased's MPF fund would be available to him at his retirement and the fact that savings over the years of his working life would earn interest. Having taken those matters into account, I find that there would be the sum of $900,000 in the deceased's estate at the end of his natural life span.

63. In considering the amount of loss of accumulation of wealth that would be remaining at the date of the deceased's natural death, I have applied a deduction of about 20%. In Tsang Mei Ying, Seagroatt J. applied a deduction of approximately 5% to a figure of $336,000. I am dealing with a larger figure under this head of damages. I have taken the view that the more you have in your retirement fund, it is likely you will spend more during the years of retirement, still leaving sufficient for financial security.

Bereavement

64. The claim for bereavement is not in dispute and I allow this at $70,000.

Funeral Expenses

65. There is clear authority that the expenses of the funeral meal are not allowed - Wong Sau Wah v. Leung Kam Cheuk (1982) HKC 333, Lee Ping Tim v. Wong Kin Foon (1978) HKLR 347, and Loong Cho Hing v. Yam Kit Ying (1987) 2 HKC 482.

66. It has been held that it was not unreasonable to hold a buddhist service - see Wong Sau Wah v. Leung Kam Cheuk.

67. Amounts have been allowed for the coffin, a tourist car hired for the funeral, a tomb stone, undertakers, a prieest and white cloth - see Lee Ping Tim v. Wong Kin Foon.

68. Reasonable expenses of burial of the dead were recoverable and the expenses for two different funeral ceremonies held with a substantial interval of time between them was allowed - see Loong Choi Hing v. Yam Kit Ying.

69. In Lau Tak Ling v. Ngan Guen Min (1998) 2 HKC 75, it was held that the expenses of burial ceremonies were recoverable if it was reasonable in all the circumstances to hold the ceremonies. The status, financial position of the deceased and of his family and also their religious belief had to be considered. In that case the Deputy Judge held that the ceremony performed must have accorded with customary rites and religion of the descendants of the deceased and thus the expenses were reasonable in the circumstances, save for several small items.

70. The costs of a resting place for the urn in the sum of $23,700 was allowed in Hung Oi Mui v. Lam Kwok Leung, HCPI 205/1998 (unreported).

71. In this case the funeral expenses are claimed at $188,100, and receipts were produced.

72. I allow the claim save and except the sum of $9,500 for the funeral meal, so that the claim in the sum of $178,600 is allowed.

73. Although a high award, the circumstances of the death were tragic with considerable public interest. The deceased and his family have extensive connections with the local fishing industry. I am satisfied that in the circumstances it was important for the widow and the family to have the comfort of a funeral incorporating the full religious and customary rites according to their beliefs.

Deduction for EC

74. The employees' compensation of $1,663,950 will be deducted from the damages.

75. Interest

I award interest at the full judgment rate on the bereavement award from the date of death to the date of judgment - Kong Yuk King v. Wong Yiu Wing (HCPI 713 of 1998).

76. I award interest on the loss of accumulation of wealth at judgment rate from the date of judgment until payment - Court of Appeal in Hsu Li Lun v. Incorporated Owners of Yuen Fat Building (2000) 2 HKC page 365.

77. I award interest at half the judgment rate on the pre-trial loss of dependency and on the funeral expenses from the date of the accident until the date of judgment.

78. Thereafter all damages to carry interest at the judgment rate until payment.

79. The award for post-trial loss of dependency does not attract interest.

80. I leave the parties to calculate the actual interest.

Costs

81. I make an order nisi that the plaintiff shall have the costs of the assessment, to be taxed if not agreed, with the plaintiff's own costs to be taxed in accordance with the Legal Aid Regulations. The costs order to be made absolute after the expiration of 14 days from the handing down of the judgment.

Summary