TSANG SUNG LUI AS DEPENDANT FOR HERSELF AND ON BEHALF OF OTHER DEPENDANTS OF RUAN WEN FANG DECEASED v. KONG KIN CHUNG

HCPI 636/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 636 OF 2010

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ASSESSMENT OF DAMAGES

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1.  This is a personal injury claim under Fatal Accident Ordinance only.

I.  Background

2.  This is a tragic case.  The deceased developed diabetes during her pregnancy and required regular insulin injections.  The defendant was a Listed Chinese Medical Practitioner who claimed that he could treat diabetes and further that after taking his medications, the patient would not require insulin.  In reliance of this claim, the deceased (who lived in Australia) traveled back to Hong Kong to seek treatment.

3.  As advised by the defendant, the deceased stopped her insulin injections. Within 3 days, on 20 January 2006, the deceased went into a coma and died of diabetic ketoacidosis.  She was 37 years of age at the time.

4.  The defendant was struck off the list of Listed Chinese Medical Practitioners as a result.

5.  The plaintiff is the mother of the deceased and she is suing as a dependent for herself and on behalf of the other dependents, namely the deceased’s husband, Ngo Cam Tai, and son, Philip Ngo (date of birth 26 May 2005).

6.  The defendant has been absent in the proceedings all along and interlocutory judgment has been entered.

II.  Loss of Dependency Multiplicand

7.  According to the plaintiff, the deceased was a receptionist working in Guangzhou until she moved to Australia in 1989.  She studied English there and met and married Mr. Ngo in 1990.  She found a job in a meat processing factory and worked until mid 2004 when she was 3 months’ pregnant.  Her “Notice of Assessment” of taxable income for the year ending June 2004 showed that she was earning AUD1,710 per month.

8.  The plaintiff claimed that Mr Ngo was working but he never seemed to settle in any one job, so his income was only 70-80% of the deceased’s.

9.  In 2001 and 2002, the deceased and Mr Ngo bought a property in Australia on mortgage.

10.  The plaintiff gave evidence that the deceased had been using her savings when she was out of work and had planned to return to work when Philip was around 1 year old, and that the plaintiff could then move to Australia to look after the son.  The plaintiff had already obtained a Visa for indefinite stay in Australia in 2004 and therefore would have been able to do this.

11.  The deceased died when Philip was only 7 months old.

12.  In view of the above, I accept that the deceased would likely have planned to return to work at an early stage otherwise it would be difficult to sustain a mortgage and expenses of the now bigger family on her savings (and Mr Ngo’s more irregular income) alone.

13.  The evidence showed that the household expenses was around AUD1,200 per month before the birth of Philip.  I accept the plaintiff’s estimation that, should the deceased’s plan be implemented, the expenses for the expanded household should be around AUD 1,800 per month, with each member costing around AUD 450.

14.  In view of the difference in income between the deceased and Mr Ngo, I accept that she would likely contribute about 60% of the household expenses, or AUD 1,080 in the following proportion: -

(a) 100% of her share = AUD 450

(b) 60% of Philip’s share = AUD 270

(c) 20% of Mr Ngo’s share = AUD 90

(d) 60% of the plaintiff’s share = AUD 270

15.  I also accept that the deceased paid approximately AUD 1,000 as pocket money to the plaintiff per year.

Multiplier

16.  I accept that Philip should achieve independence at 18 years.  The plaintiff is applying a multiplier of 15.25 (8.25 as pre-trial and 7 as post-trial multiplier) for this. I think this is slightly on the high side.  The “Chan” table (Chan Pak Ting v Chan Chi Kuen and Anor HCPI 235/2011) does not specifically address loss of dependency claim.  However, applying the principle behind the calculation there, for a discount rate of 2.5% per annum for 17 years, the multiplier was 13.51.  I think this is more reasonable.

17.  As for the multiplier applicable for the plaintiff’s dependency, I am of the view that the deceased would not likely be planning for the plaintiff to live in Australia to look after Philip until he achieved 18 years of age, whilst being supported by the family income.  I think it is reasonable to assume that the plaintiff would have to look after Philip for no more than 9 years until the son reached 10 years of age.  Applying the same principle of calculation as above, the multiplier should be 12.70 (discount rate of 1% for 9 years).

18.  As for the multiplier for the plaintiff’s claim for pocket money, I note that the plaintiff is now 65 years old.  The plaintiff again proposed a multiplier of 15.25, the same as the claimed multiplier for Philip’s loss of dependency. I think a more reasonable multiplier is again 13.51.

19.  For Mr Ngo, I accept that the deceased would have worked until 65 years old so the multiplier should be 19.80.

Calculation

20.  For Philip:

a)	Pre-trial loss of dependency
	AUD270 x 12 x 8.25 = AUD 26,730
b)	Post-trial loss of dependency
	AUD 270 x 12 x (13.51-8.25) = AUD 17,042.40

21.  For the plaintiff:

a)	Pre-trial loss of dependency
	AUD ((270 x 12) + 1,000) x 8.25 = AUD 34,980
b)	Post-trial loss of dependency
	AUD ((270 x 12) x (12.70 – 8.25)) + (1,000 x (13.51 – 8.25))  = AUD 19,678

22.  For Mr Ngo:

a)	Pre-trial loss of dependency
	AUD 90 x 12 x 8.25 = AUD 8,910
b)	Post-trial loss of dependency
	AUD 90 x 12 x (19.80 -8.25) = AUD 12,474

III.  Bereavemnt

23.  I accept the statutory claim of HK$150,000.

IV.  Funeral and other expenses

24.  I accept the plaintiff’s claim of HK$44,760 for funeral expenses, HK$570 as the deceased’s medical expenses, and AUD 1,500 as costs of relocation for storage of the deceased’s cinerary run in Australia.

V.  Summary

25.  I summarise the above awards as follows:

Pre-trial loss of dependency	AUD 70,620.00
Post-trial loss of dependency	AUD 49,194.40
Bereavement	HK$150,000
Funeral and other expenses	HK$45,330 + AUD 1,500
Total:	AUD 121,314.40 + HK$195,330 (plus interest and cost as below)

26.  Interest on pre-trial loss of dependencies, funeral and other expenses is awarded at half judgment rate from the date of death until judgment and thereafter at judgment rate until payment.

27.  Interest on bereavement is awarded at suitors fund rates from the date of death until judgment and thereafter at judgment rate until payment.

28.  Interest on PSLA is awarded at 2% from date of service of writ until judgment and thereafter at judgment rate until payment.

VI.  Cost

29.  There be an order nisi for the defendant to pay the plaintiff’s costs of this action to be taxed in accordance with High Court scale if not agreed.

Representation: