CHANG WAN YING AND ANOTHER v. WONG HO BUN

1985, No. A5868

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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ASSESSMENT OF DAMAGES

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1. On 20th November, 1983, Mr. Yeung Man Kam was travelling as a passenger in a motor car, owned and driven by Mr. Wong Ho Bun, the Defendant in these proceedings, along Ting Kok Road in the direction of Tai Po, when the car went out of control, left the road, and struck a telegraph pole. As a result of the accident Mr. Yeung sustained injuries from which he died shortly thereafter.

2. This action was commenced on 23rd September, 1985 by Madam Chang Wan Ying, the mother and administratrix of the estate of the deceased, and no notice of intention to defend having been given by the Defendant, judgment was entered against him on 27th November, 1985 for damages to be assessed.

3. At the beginning of this hearing I was informed by Mr. Kwok, on behalf of the Plaintiff, that the following matters had been agreed between the parties :-

4. At a later stage in the hearing I was informed that the funeral expenses had also been agreed at $10,000.00.

5. It was further submitted by agreement that this was a case where the awards under the Fatal Accidents Ordinance and the Law Amendment and Reform (Consolidation) Ordinance should merge and that therefore only the latter need be considered. With this I concur.

6. A number of documents were submitted by the Plaintiff, notice of which had been given to the Defendant in accordance with the hearsay rules, and two witnesses were called, namely the Plaintiff herself and a Miss Lam Mei Kuen, a representative from the personnel department of the Shui On Construction Co. Ltd., the deceased's employers immediately prior to his death.

7. At the date of his death the deceased was aged 22 years, single, and resided with his parents. His mother, Plaintiff was then 64 years old, and his father, who has since himself died, age 72 years. The household consisted solely of these three.

8. At the date of his death the deceased had been employed for just over six weeks as a Leveller III by the Shui On Construction Co. Ltd. earning a basic wage of $40 per day plus overtime at a rate of $10.00 per hour and travelling allowance of $6.00 per day.

9. Miss Lam gave evidence that, according to her records, he had been paid a total of $3,486.30 during the period he worked with the company which produces an average of $72.63 per day and $2,178.94 per month.

10. Although there was no evidence of the deceased's work record prior to this employment, neither side has suggested that his employment with Shui On was anything but regular and permanent, and I propose to approach this assessment on that basis.

11. There was similarly no record of his performance at Shui On as he was there such a short time, but Miss Lam's evidence was that a good worker would be promoted to Leveller II after about 1 or 2 years, at a basic wage of $50.00 to $60.00 per day, as against the wage of a Leveller III of $35.00 to $50.00 per day. On the evidence available, I consider it likely that the deceased would have been earning $50.00 per day by now; either at the top of his then grade, or as a Leveller II, but there is insufficient evidence to say that he would now be earning more than that.

12. Similarly, the average overtime earnings range from $525.00 to $750.00 per month as a Leveller III to $750.00 to $900.00 per month as a Leveller II. On the same basis I find that his overtime earnings today would be $750.00 per month.

13. The travelling allowance does not vary with promotion, so the deceased's total earnings per month today would be $2,430.00, giving an average pre-trial of $2,304.50 per month (i.e.($2,178.94 + $2,430.00) ÷ 2), and total earnings for this period of $62,221.50.

14. Madam Chang, the Plaintiff herein, and the mother of the deceased, gave evidence and said that of the three in the household at the date of her son's death, only the deceased and herself were employed and contributing to household expenses. The deceased contributed $1,500.00 per month and she made up the balance of $1,600.00 to the total expenses of $3,100.00 from her earning as a dishwasher.

15. It is not entirely clear how this sum was spent as the total for rent, electricity, and gas was not more than $270.00 per month, and medical expenses for Madam Chang's husband, who was in poor health, were about $300.00 per month. In the absence of specific evidence I have to assume that the balance of $2,530.00 was spent on food for the family, clothing and other expenses, and any balance saved.

16. However, it is clear from the evidence that the only member of the family who had all his meals either at home or paid for out of the family budget was the deceased's father, his mother having her lunch at work, and the deceased himself only having his evening meal at home.

17. From what is known of the family expenditure, it would in my view be wrong to simply calculate the deceased's share of household consumption at one third, particularly as he was subsidizing his father's medical treatment as well as the food for the rest of the family, and I am satisfied that a proper figure to represent his own expenses in the household would be $850.00, to which must be added his travelling expenses of $180.00 per month.

18. Although the deceased had a girlfriend, there is no evidence of an intention to marry and I therefore disregard the possibility from the point of view of this assessment.

19. I accordingly assess the deceased's personal expenses at $1,030.00 per month or 47% of his total earnings, leaving a free balance of 53% which I find would not vary in the foreseeable future in the light of the evidence of his dutiful attitude to his parents and his steady lifestyle.

20. The pre-trial loss is accordingly assessed at $2,304.50 x 27 months x 53% = $32,977.40.

21. For the purposes of the pre-trial period I have also disregarded the fact that the deceased's father himself died late last year, as this was a comparatively short time ago. However, I am bound to take into account the fact of the father's death in assessing the deceased's personal expenses, and thus the free balance, post trial.

22. Considering the age of the deceased's mother, now 66, and the inevitability of her having become a dependant of the deceased in the near future, I propose to assume the same proportion of personal expenses as pre-trial, namely 47% and a free balance of 53%.

23. With regard to the multiplier to be adopted, Mr. Kwok on behalf of the Plaintiff has submitted that in view of the deceased's comparative youth, being aged 21 at the date of death, a figure of 16 would be appropriate. I am bound to agree with him, and accordingly assess the post-trial loss at $2,430.00 x 165 months x 53% = $212,503.50.

24. Summary :

25. There will be interest on the award for loss of expectation of life at 2% p.a. from the date of the issue of the writ and on the pre-trial loss and funeral expenses at 3.875% from the date of the accident, both to the date hereof.

26. There will be an order for costs in favour of the Plaintiff, such costs to be taxed if not agreed. The Plaintiff's own costs are to be taxed in accordance with Legal Aid Regulations.