CHAU CHIU SHAN AND ANOTHER v. YAU TAT SHING otherwise known as DENNIS CHIU AND ANOTHER

1985 No .A2799

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 mother and administratrix of the estate of Cheng Man Fai, deceased. On 14th July 1983, the deceased, a police constable, was knocked down by a vehicle, owned by the 2nd Defendant and driven by the 1st Defendant, while he was on duty at Princess Margaret Road. As a result of the said collision the deceased was comatose and died on 23rd July 1983 from cerebral contusion. The writ was issued on 3rd May 1985 and interlocutory judgment was entered against both Defendants on 2nd October 1986 by consent for damages to be assessed and costs.

2. Hearsay notices dated 24th August 1987 and 1st December 1987 were served by the Plaintiff on the Defendants, and a counter-notice dated 16th September 1987 was served by the Defendants. A bundle of documents comprising the documents covered by the hearsay notices was produced by the Plaintiff at the hearing of the assessment. Many of the Plaintiff's claims and the evidence relating thereto were not disputed. The bulk of the evidence produced and called centered on the alledged promotion prospect of the deceased to sergeant had he not died in 1983.

3. The Plaintiff relied on 2 annual reports prepared by the superior officers of the deceased on 23rd June 1982 and 20th June 1983 (item nos.10 and 9 respectively of the bundle of documents) and the oral testimony of Senior Superintendent Blud (P.W.1), Senior Inspector Davies (P.W.2), Senior Staff Officer (Personnel) Yau Wing Yui (P.W.3) and Superintendent Chan (P.W.4) to claim that the deceased would have been promoted to the rank of Sergeant on 1st September 1986 (earliest possible date for such a promotion) or at the latest in 1990. The deceased was highly regarded by his platoon commander (P.W.2) and company commander (P.W.1). The deceased was given good grades in his performance as a police constable despite his relatively short career of about 2 years in the force prior to his death. He was described to be an officer of a high standard and above average with leadership potentials and well-liked by his fellow colleagues. His only setback appeared to be his lack of experience. However, to be promoted to the rank of sergeant; the deceased would first have to pass the sergeant examination, to secure a recommendation to appear before and to pass a formation assessment board, and finally to pass the force promotion board. The prospect of securing such a promotion would also depend on the number of vacancies available in any particular year and the strength of the competitors (the selection being based on a comparison process). P.W.1 thought the deceased should stand a chance for early promotion, and P.W.2 thought the, deceased possessed all the quality save experience for a promotion though he was reluctant to speculate when this would happen.

4. P.W.3 testified that there are 3 criteria to the promotion i.e. (i) 4 years completed service as a constable, (ii) passing of the examination and (iii) a good disciplinary record(i.e. no major offence within 2 years or a minor offence within 1 year). He said in 1987, 270 out of 1,000 recommended constables were promoted to sergeant. P.W.4 added that "productivity" (case results) is one of the considerations for a promotion. After considering the said annual reports P.W.4 said he expected the deceased to secure his promotion after 8 or 9 years of service i.e. in 1989-1990. However, in cross-examination, he confessed that there were in fact insufficeint materials before him and it is far too early to come to a conclusion as to the prospect of the deceased's promotion. He said a much more detail report than that of the said annual reports would have to be prepared for an assessment.

5. I was referred to the case of Siu Yuk Lin etc. v. Yeung Sai Chow H.C. Action No.2103/1983, a decision of Master Woolley in 1985. The deceased in that case was a sergeant of police aged 45 at the time of his death in 1981. He joined the force in 1955 and was promoted to sergeant in 1971. The Plaintiff sought to claim loss of earnings on the basis of a promotion to Station Sergeant about 15 months after his death had he not died. The deceased was described by his inspector as being a "most conscientious, very capable and extremely diligent officer". The deceased had received no legs than 23 commendations. The evidence was that in April 1983 2 posts of station sergeant were created in his Section and the 2 officers who were promoted then were about the same age as the deceased but not as diligent as he was. The deceased was recommanded for promotion to Station Sergeant in 1981but was not selected. The inspector said he was certain the deceased would have been a logical choice in 1983. On such overwhelming evidence, the loss of future earnings (less tax) was awarded on the basis of such a promotion taking-place. Master Woolley considered that the chances of the deceased getting a promotion was "so close to 100%" that he found "that promotion (was) a certainty". In Chan Cheuk Hing etc. v Attorney General & Anr. H.C.Action No. 6204 of 1982, a decision in 1985, a student nurse was killed in the course of her duty on an ambulance. She was aged 20. She had passed all her hospital examinations and had only to complete her 3 years training period and to sit for the statutory examination to be promoted to Nursing Officer II. The head of the teaching department for nurses said he believe she would pass the statutory examination and be promoted to Nursing Officer II. But he also said promotion to Nursing Officer II was reasonably automatic though when it would take place would depend on vacancies arising. On that basis Master Clay accepted evidence of the average time it would take a registered nurse to be promoted to Nursing Officer II and awarded loss of earnings (less tax) on that basis. In Ng Kung etc. v. Kowloon Motor Bus (1933) Co. Ltd. C.A. No. 7 of 1983, Barker, J. A. said at Pg. 5 of the judgment "The judge, so it is said, appears to have assumed that the situation at the deceased's death would have, subsisted for the rest of his working life. It behoves the judges, the submission goes, to take into account in the assessment of the LARCO damages any changes which may occur in the future and to adjust such damages accordingly up or down. With this statement of principle we would not disagree. A judge ought not to assume that the financial position of the deceased crystallised at the date of his death. He should, in assessing LARCO damages, take into account any changes which it is reasonable to infer would take place in the future".

6. In Siu Yuk Lin's case supra the deceased had been in the force for 26 years, and, as sergeant for 10 years, prior to his death. There is no evidence that the deceased would have to pass any examination to be eligible to promotion. There was evidence that the 2 officers who were in fact promoted were less diligent than the deceased. In the present case, the deceased would have to pass an examination and 2 interview boards. The test is one of comparison, and his prospect of promotion would depend to a large extent on the quality of his competitors of which there was not a single shred of evidence adduced. In Chan Cheuk Hing's case supra the opinion that the deceased was likely to pass the examination came from the head of the training department. The promotion to Nursing Officer II was "reasonably automatic" depending on the vacancies. In the present case the high opinions of the deceased came from his commanding officers; and so would the other competitors for promotion be recommended by their respective commanding officers for a promotion they are to be put to the boards. The actual officer who would be involved in the actual selection process, P.W.4, had confessed that there was insufficient information before him to conclude on the chances of the deceased's promotion. Though P.W. 2 was of the view the deceased would likely pass the examination as he was hard-working and would study hard, it has not been established by evidence if he had any personal experience concerning the sergeant's examination in Hong Kong. I also take into account the deceased was only aged 20 and had only joined the force for about 2 years at the time of his death. He would have to serve another 2 years and to pass an examination and 2 interview boards. His chances would depend on the unknown quality of his competitors. After considering the evidence in the case I cannot say that it has been satisfactorily established on behalf of the Plaintiff that it would have been likely that the deceased would be promoted to sergeant, or if so at what point of time would, this likely to happen. It would be a matter of speculation that he would be promoted in 1986, or at any particular time, had he not died. In the premises, I shall assess the Plaintiff's future loss of earnings on the basis of a police constable.

7. It is conceded by the Defendant that. the deceased would receive annual increments and annual adjustments up to the date of the assessment. The evidence (contained in the letter dated 28th July 1987 from the Commissioner of Police) is that as from 1st September 1987 the deceased would be receiving salary at point 16 at the rate of $5,335.00. A police constable can reach up to point 21 at the race of $6,020.00 at present. I am satisfied on the evidence that the deceased would probably be getting his annual incrementsuntil he reaches the limit had he not died. The average annual adjustment due to inflation from 1984 to 1987 is at about 7.5% p.a. Mr. Lau for the Plaintiff cited a number of authorities awarding multipliers of, 15 to 17 to deceaseds aged 19 to 22. Mr. Bleach urged me to award a multiplier of 15 taking Into account the dangerous work of a policeman. I do not find the work of a policeman significantly more dangerous than a manual labourer in view of the high risk environment a construction site or factory worker in Hong Kong is being exposed to as compared with the number of incidents of fatal or serious injuries to a police officer in the history of the force.

8. Taking into account all the above factors and the accelerated payment of the damages, I will take the mean figure of $5,737.50 ($5,335.00 + $6,020.00? and add $60.00 laundry allowance) and a multiplier of 17 for the lost year claim. Mr. Lau urged me to accept the free balance at 61.93%.

9. He said despite there were only 5 members in the family including the deceased, only 1/10th of the total monthly family expenditure of $2,500.00 should be attributed to the deceased's own upkeep as the deceased only had 1 meal at home i.e. $250,00. The deceased contributed $1,500.00 per month to the family pool. Two months prior to his death the deceased started to save a sum of $800.00 per month in a savings account. On that basis Mr. Lau said the free balance should be $2,050.00 (i.e. $800.00 + $1,500.00 $250.00). And $2,050.00 is 61.93% of his monthly income of $3,310.00 at the time of his death. Mr. Bleach suggested 46% as the free balance. I accept that the deceased had started to save up his money shortly prior to his death. Between 28th April 1983 to his death in July 1983, the deceased managed to accumulate savings in the sum of $2,286.75 or an average of $762.25 per month in the savings account he opened for saving his earnings. In the other savings account it can be seen that between November 1982 and April 1983 apart from withdrawing $1,500.00 per month for his contribution to the family he usually used up all his money in that account into which his salary would be paid. There is no evidence he spent any further money on his family or any other person apart from his monthly contribution of $1,500.00. Thus apart from his savings and his family contribution Lan his spending pattern was to use up the rest of his income on himself (including tax liability). I find that $350.00 out of the. $1,500.00 he contributed to the family pool was for his own upkeep ($5 x 30 days deducted from $2,500.00? for having only 1 meal at home). In the  premises the free balance is $1,912.25 ($762.25 + $1,500.00 - $350.00), which is 57.78%.

10. The lost year award under LARCO is $5,737.50 x 57.78% x 151.5 months (204 - 52.5 months) = $502,241.81.

11. Mr. Lau also sought to claim for loss of pension in the sum of $127,848.00. There is no express claim for such made in the pleadings or in the particulars of damages served pursuant to the Practice Directions. The Defendants objected on the ground that they were prejudiced in not being able to conduct their cross-examination of the Plaintiff's witnesses or to call evidence on this issue. Unlike the English Practice Direction, the local Practice Directions do not require expressly that particulars of pension rights should be given prior to hearing. I allowed such a claim to be proceeded with as such rights are governed by statutory regulations and only insignificant prejudice would be suffered by the Defendants on the late formulation of such a claim. No adjournment was sought by the Defendants. However, I do accept it is good practice to plead such a claim in the Statement of Claim with particulars. One further year was added to the multiplier to increase it from 13 to 14 for the deceased sergeant in Siu Yuk Lin's case to take into account the pension benefits. The deceased sergeant had 26 years service in the force. I find the Plaintiff's claim for pension in respect of the deceased, who had only joined the force for 2 years prior to his death, too remote and I make no award for loss of pension.

12. I award a sum of $132,675.88 for the pre-assessment loss being the 52?months between the time of death to the day of the assessment on the unchallenged evidence of the rates of remunerations the deceased would have been receiving during. that period.

13. $229,622.50 x 57.78% = $132,675.88

14. The claims for loss of expection of life and funeral expenses have been agreed at $20,000.00 and $50,000.00 respectively. As the only dependants under the FAO claim are the parents of  the deceased who are also the sole beneficiaries under the estate of deceased, the FAO claim will merge with the LARCO claim.

15. In the premises, the Plaintiff is awarded damages in the total sum of $801,864.31 as follows:-

16. There will be interest at half the judgment rate on the sum of $279,622.50 ($229,622.50 + $50,000.00) from the date of the accident to the date of assessment. Interest at the judgment rate will run on the judgment sum from the date of assessment until full payment. The Plaintiff is to get the costs of the assessment with certificate for counsel.

17. Dated 6th day of January 1988.