KO SIU YIN, the administratrix of the estate of CHAN KAM POR, deceased v. LAI CHUN HO AND ANOTHER

DCPI 422/2023

[2023] HKDC 1740

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 422 OF 2023

(Transferred from High Court Personal Injuries Action No 127 of 2021)

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JUDGMENT

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1.  This is the assessment of damages of the claim raised by the Plaintiff on behalf of the estate of CHAN KAM POR, deceased (“the Deceased”), and his dependants, for damages, interest and costs under the Fatal Accidents Ordinance, Cap 22 (“FAO”) and the Law Amendment and Reform (Consolidation) Ordinance, Cap 23 (“LARCO”), against both the 1^st and the 2^nd Defendants.

I. BACKGROUND

2.  On 26 April 2015, an explosion happened on or about the ground floor of Wing On House, No 63 Wan Fung Street, Wong Tai Sin, Kowloon (“the Explosion”).

3.  The Deceased was a full-time taxi driver. At the time of the Explosion, he brought his taxi to the area for service. He was killed instantly as a result of the Explosion.

4.  On 10 April 2018, Ms Ko Siu Yin, the wife of the Deceased, commenced the action DCPI 748 of 2018 at the District Court against Lai Chun Ho and Tsang Wing Sze as the administrator of the estate of Wu Hon Wai, deceased, as the 1^st and 2^nd Defendants respectively.

5.  On 6 July 2018, the letters of Administration in respect of the real and personal estate and effect of the Deceased were granted to Ms Ko Siu Yin.

6.  Thereafter, on 24 September 2018, the Writ of Summons under DCPI 748 of 2018 was amended accordingly, whereby Ms Ko Siu Yin, the administratrix of the estate of the Deceased, became the sole Plaintiff in the action.

7.  By April 2021, two other personal injuries actions, arising from the Explosion, had been commenced in the High Court. To enable the High Court to deal with all the actions arising from the same accident altogether, by an order of Master Louise Chan dated 22 April 2021, DCPI 748 of 2018 was transferred to the Court of First Instance and continued as HCPI 127 of 2021 (the “High Court Action”).

8.  On 25 June 2021, under the High Court Action, in default of defence, an interlocutory judgment was entered against the 1^st Defendant on liability and for damages to be assessed with costs to be taxed.

9.  By Order of Master Kot of the High Court dated 18 August 2022, interlocutory judgment on liability was entered in favour of the Plaintiff against the 2^nd Defendant, with damages to be assessed.

10.  On 19 September 2022, the Plaintiff filed the Revised Statement of Damages (“RSOD”).

11.  At the Checklist Review hearing on 2 February 2023, the 1^st Defendant (acting in person) confirmed to Master Kot that he would not file the Answer to the Revised Statement of Damages and would not dispute the claims (and the corresponding amounts) raised by the Plaintiff.

12.  At the same Checklist Review hearing, the High Court Action was transferred back to the District Court to become the present proceedings. The corresponding court order was sealed on 6 March 2023.

13.  On 16 February 2023, the 2^nd Defendant filed its Answer to the Plaintiff’s Revised Statement of Damages (“D2’s Answer”).

14.  For the purpose of the assessment of damages, the Plaintiff relied on her own witness statement filed on 1 September 2021 under the High Court Action. No witness statement was filed by the 1^st and 2^nd Defendants.

15.  The assessment of damages came before me on 31 October 2023. Upon being informed by counsel for the Plaintiff, Mr Leung, of the various notices served on the 1^st Defendant, I was satisfied that due notice about the assessment hearing had been given to the 1^st Defendant and allowed the hearing to proceed in the absence of the 1^st Defendant.

16.  At the hearing, only the Plaintiff gave evidence in support of the claims, the 2^nd Defendant, represented by Mr Cheung, did not call any witness in opposition.

II. THE DECEASED

17.  According to the Plaintiff, the Deceased was born on 18 August 1953 and aged 61 at the time of the Explosion.

18.  The Deceased and the Plaintiff got married on 26 May 1978. They gave birth to a daughter and a son in 1981 and 1983 respectively.

19.  At the time when the Deceased got married, he was working as a tailor in a garment factory. In about 1997, he changed his job and became a private car driver. In about 2005, he was dismissed by his employer and became a self-employed taxi driver.

20.  Prior to the date of the Explosion, the Deceased’s daughter and son had grown up and had become independent, ie they did not depend on the Deceased. The only dependent, for the purpose of the FAO, was his wife (ie the Plaintiff herein), who had been receiving from the Deceased pocket money (零用錢) of, on average, HK$5,000 per month.

21.  On the date of the Explosion, the Deceased brought his taxi to the area for service. After the Explosion, the Deceased was found lying unconscious on the floor of a meter parking spot and sustained multiple surface burns and bone fractures. He was sent to the Accident and Emergency Department of Kwong Wah Hospital and was certified dead upon arrival.

22.  On 28 April 2015, Dr Poon of the Department of Health performed an autopsy on the Deceased. The cause of death was found to be due to multiple injuries. The autopsy report further recorded that the Deceased had sustained extensive blunt impact trauma, including multiple bruises, abrasions and lacerations on the body surface; multiple fractures of limb bones, skull, ribs, pelvic bones and spine; as well as injuries to multiple internal organs that, Dr Poon opines, would have been rapid if not immediately fatal.

III. THE CLAIMS AND THE ISSUES BETWEEN THE PARTIES

23.  On the basis of the RSOD and the D2’s Answer, Mr Leung has helpfully summarized the parties’ respective positions on various heads of claim as follows:

Heads of Quantum	RSOD	D2’s Answer
Bereavement	$150,000	$150,000
Past Loss of Dependency	$445,000	$117,000
Future Loss of Dependency	$60,000	Nil
Special Damages (funeral expenses)	$72,938	$72,938
Total:	$727,938	$339,938
	(plus interest)	(plus interest)

24.  Hence, the only live issue between the Plaintiff and the 2^nd Defendant is the loss of dependency claim.

25.  Since the respective claims for the past and future loss of dependency were made in September 2022, the ‘past loss of dependency’ was determined for the period from the day after the Explosion (ie 26 April 2015) to 25 September 2022, whereas that for the ‘future loss of dependency’ was assessed for the remaining period up to the date when the Deceased, but for the Explosion, would have achieved his 70^th birthday, ie on 18 August 2023. The details of the calculation are as follows:

(a)  The past loss of dependency – 89 months (from 26 April 2015 to 25 September 2022) at HK$5,000 per month, totalling HK$445,000.

(b)  The future loss of dependency – around 12 months (from 26 September 2022 to 18 August 2023) at HK$5,000 per month, totalling HK$60,000.

26.  However, the 2^nd Defendant’s position is that subject to proof, it only admits to monthly pocket money of HK$3,000 from the Deceased. He further asserts that the Deceased would have retired at 65, instead of 70. Hence, in D2’s Answer, he only admits to a pre-trial loss of dependency of HK$117,000, being a monthly contribution of HK$3,000 for a period of 39 months, from 16 April 2015 to 18 August 2018 (when the Deceased would have attained the age of 65)[1].

27.  Turning back to the Plaintiff’s claim, as the assessment hearing took place on 31 October 2023, which was after the relevant period for which the Plaintiff claims loss of dependency, in Mr Leung’s opening submissions, the Plaintiff updated its claim to just that of ‘past loss of dependency’ for a total period of 100 months from 26 April 2015 to 25 August 2023. The amount of loss claimed becomes HK$500,000.00. Thus, for the present assessment, the gap between the parties is HK$383,000.00.

IV. THE ASSESSMENT

Bereavement

28.  This item is not disputed by the Defendants. I therefore allow this head of claim in favour of the Plaintiff at the statutory sum of HK$150,000.00.

FAO – Loss of Dependency

29.  The approach to the assessment of loss of dependency was explained by Ng J in Chiu Sui Ching v Cheng Kwai Hung and others, unreported, HCPI 939/2017, 11 November 2022 (at paras 278 to 282) as follows:

“278. The statutory basis for a dependency claim is section 3 of the FAO:

“If death is caused to any person (the deceased) by any wrongful act, neglect or default which is such as would (if death had not ensued) have entitled the deceased to maintain an action and recover damages in respect thereof, then subject to section 4(2) an action for damages may be brought for the benefit of the dependants of the deceased who would then have been liable in damages to the deceased in respect of that wrongful act, neglect or default.”

Section 6(1) of the FAO goes on to provide that in every action brought under section 3, “such damages, other than damages for bereavement, may be awarded to the dependants in such proportions as reflect their respective injuries as a result of the death”.

279. Loss of dependency seeks to assess the notional loss suffered by persons dependent on the deceased for financial support, and is normally assessed by the multiplier and multiplicand method. The monthly/annual value of the dependency (ie the multiplicand) is aggregated over the number of years that the dependency may reasonably be expected to last but discounted in recognition of the fact that an upfront lump sum is given instead of by way of periodical payments over the years (ie the multiplier).

280. The assessment of the multiplicand is done either by the traditional method or the percentage deduction method. The traditional method requires the plaintiff to prove the value of the benefit received by the dependants from the deceased. Seagroatt J in Tsang Mei Ying & anor (administratrices of the estate of To Shing Chiu, deceased) explained the traditional method as follows (pages 810-811):

“The starting point is to calculate the value of the dependency as at the date of death, usually as a percentage of the income of the deceased. It is then revised in the light of the income which he would have received at the date of trial had he survived. The best means of calculating the dependency is to set out item by item where possible, the value annually (or monthly) of the payments made for the benefit of the family as a whole subject to any deduction to represent the benefit to the deceased. It is a check on the reasonableness of such figures to compare the total with the net annual or monthly income of the deceased at the date of his death. The calculations are easier to make where the evidence clearly shows the deceased making a regular payment to his wife for running the family and the home, and also paying for certain fixed items eg rent. The reasonableness and the accuracy of such calculations often depend upon hard evidence, in the form of records, and oral evidence, eg from the widow. Sometimes the picture can be more complex such as where the wife earns and contributes to the household, unless there is clear evidence which allows that to be treated in isolation so as to determine real dependency. 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 dependents cease to be such, the dependency of those remaining in the household often increases ……” (my emphasis)

280. This traditional method was further explained by Bharwaney J in Fung Suen Sim for herself, the Personal Representative and the Intended Administratrix of the Estate of Lung Kai Hon, deceased as follows:

“41. The traditional way would be to assess the financial value of the dependency by taking the sum of the monthly contribution …… to the plaintiff, which was utilized for her benefit and for the benefit of his son and daughter, and to take out from that sum the amount …… which was expended on the deceased, being his share of household expenses …… If this approach is taken, the savings element of the loss of dependency claim would have to be assessed separately, by assessing the notional savings that the deceased would have made and calculating the portion thereof which would enure to the benefit of the dependants, just as the trial judge had done in Taylor v O’Connor when he estimated that two-thirds of the net spendable income, including both the maintenance element, and the savings element, would have enured to the benefit of the widow and the daughter.”

282. But Mr Chong urged the court to adopt the percentage deduction method or what he described as the “Harris approach” for calculating the value of the dependency by deducting a percentage from the deceased’s annual/monthly income representing personal expenditure exclusive to himself or herself, leaving the rest as being for the benefit of the family. Such approach was explained and supported by O’Conner LJ in Harris. In that case, the appeal to the English Court of Appeal involved 2 cases, one in which the deceased left behind his widow and 2 minor children, and the other in which the deceased (who never married) left behind 2 teenage children. O’Connor LJ said at page 565 as follows:

“In the course of time the courts have worked out a simple solution to the similar problem of calculating the net dependency under the Fatal Accidents Acts in cases where the dependents are wife and children. In times past the calculation called for a tedious enquiry into how much housekeeping money was paid to the widow, who paid how much for the children’s shoes etc. This has all been swept away and the modern practice is to deduct a percentage from the net income figure to represent what the deceased would have spent exclusively on himself. The percentages have become conventional in the sense that they are 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 upon its own facts. Where the family unit was husband-and-wife the conventional figure is 33% and the rationale for this is that broadly speaking the net income was spent as to one-third for the benefit of each and one-third for their joint benefit. Clothing is an example of a several benefit, rent an example of joint benefit. No deduction is made in respect of the joint portion because one cannot buy or drive half a motor car. Part of the net income may be spent for the benefit of neither husband nor wife. If the facts be, for example, that out of a net income of £8,000 per annum the deceased was paying £2,000 to a charity the percentage would be applied to £6,000 and not £8,000. Where there are children the deduction falls to 25%, as was the agreed figure in the Harris case.” (my emphasis)

In short, the English Court of Appeal held that where the family was wholly dependent on the deceased, the conventional figure for deduction for personal expenses where the family/household unit consisted of a husband and wife would be 33.33% (on the assumption that the husband and the wife would each spend ⅓ of the income and the remaining ⅓ was for their joint benefit), but where there were children, the conventional deduction was 25% (on the assumption that ¼ of the income was for the deceased, ¼ was for the spouse, ¼ was for the children, and remaining ¼ was for joint use).” (emphasis added)

30.  In the present case, it is the Plaintiff’s evidence that:

(1)  the Deceased had been working as a self-employed taxi driver since around 2005, ie for about ten years before the Explosion;

(2)  the Deceased worked regularly from 6 am to 6 pm, six days a week;

(3)  the Deceased made, on average, a net income of around HK$20,000 per month;

(4)  on average, the Deceased gave the Plaintiff pocket money of around HK$5,000 per month; and, but for the Explosion, he would have continued to give her the same amount of pocket money until he retired at the age of 70;

(5)  before the Deceased was killed in the Explosion, his health was good and he had no chronic illness; and

(6)  the Plaintiff believed that the Deceased would not have retired before 70.

The above evidence was largely unchallenged by the 2^nd Defendant in cross-examination.

31.  The Plaintiff further clarified under cross-examination that the Deceased used to give her pocket money after he returned from work. The payments were made in cash of a few hundred dollars each time, save that occasionally, when the income of that day was not good, he did not give her any. On average, the total pocket money she received from the Plaintiff was around HK$5,000 per month. She emphasized that it was just a rough number.

32.  In answer to the Court’s questioning, the Plaintiff further testified that the reason why the Deceased chose to become a taxi driver in 2005 was that (a) it would be difficult for him to keep employment after the normal retirement age, (b) it was easy to get into the trade, and (c) as a taxi driver, he would be able to continue to work so long as his health condition allows him to do so.

33.  I found the Plaintiff an honest and reliable witness, and I accept her evidence in its entirety.

34.  The Plaintiff’s claim for the loss of dependency is based on a notional working period up to when the Deceased would have attained the age of 70 and at HK$5,000 per month. In resisting the Plaintiff’s claim, the 2^nd Defendant contends that:

(1)  the social unrest in 2019 and Covid-19 pandemic from early 2020 to late 2022 would have brought forward the Deceased’s retirement even if his health would have allowed him to work as a taxi driver until he attains the age of 70 [2];

(2)  because of the economic climate during the Covid-19 pandemic from January 2020 to the end of 2022, the Deceased would not have been able to make the same level of income as indicated in the statistics of the Transport Department [3]; and

(3)  the Plaintiff provides no documentary proof for the alleged average monthly income made by the Deceased and the alleged pocket money the Plaintiff received from the Deceased [4].

Pocket money of HK$5,000 per month

35.  It is common ground between the parties that contribution like pocket money is recoverable under FAO as part of the loss of dependency, Kong Chung Ching v Lam King Ho [1992] 1 HKC 104 at 108G-110E; Pang Tai San v Wan Tak Shing, unreported, HCPI 483/2008, 13 May 2009 at §§10-11. The issue is on the amount of pocket money given by the Deceased per month – the Plaintiff claims HK$5,000 per month while the 2^nd Defendant only admits to a maximum of HK$3,000.

36.  As mentioned above, it is the Plaintiff’s evidence that the Deceased had told her that after deducting the operating expenses, he had made an average income of around $20,000 a month. Further, the Deceased used to pay her, on average, HK$5,000 per month in cash as pocket money, and but for the Explosion, the Deceased would have continued giving at least HK$5,000 per month to her.

37.  In further support of its claim, the Plaintiff adduced the following statistical records provided by the Transport Department:

Urban taxi	2015	2016	2017	2018	2019	2020	2021
Average daily revenue per taxi	$2,320	$2,300	$2,420	$2,500	$2,460	$2,000	$2,240
Average daily rental per taxi	$830	$830	$830	$830	$810	$520	$560
Average daily fuel cost per taxi	$250	$230	$300	$320	$280	$240	$320
Average daily net income per taxi	$1,240	$1,230	$1,290	$1,340	$1,370	$1,240	$1,360
Average number of operating days per month per taxi	26.7	25.1	26.9	26.7	24.9	26.0	26.0

38.  While the 2^nd Defendant does not admit to the amount of pocket money claimed, he adduced no evidence in support of his position, namely a maximum of HK$3,000 per month.

39.  Instead, the 2^nd Defendant criticized that the Plaintiff elected not to provide documentary proof for the Deceased’s income and the contribution of HK$5,000 per month. This is, in my view, an unfair criticism. At the hearing, the Plaintiff supplemented (which Mr Cheung did not challenge) that as a taxi driver, the Deceased dealt with his clients in cash, and the pocket money was also paid in cash. In such circumstances, one would not reasonably expect that any documentary record of payments existed, whether for the Deceased income or the payments of pocket money.

40.  As to the 2^nd Defendant’s suggestion that the Plaintiff ought to have produced the Deceased’s tax return in support of her claim, under cross-examination, the Plaintiff frankly admitted that the Deceased did not file any tax return when he worked as a taxi driver. While this Court does not endorse such practice, the Deceased’s failure to file tax return in the circumstances is not something that this Court needs to be concerned with in this action.

41.  For the present assessment, I am only concerned with whether the Deceased did make contributions in the form of pocket money to the Plaintiff (as a dependant)? And, if so, how much was paid per month on average?

42.  Regarding the Deceased’s average monthly income before the Explosion, the Plaintiff has no knowledge of the actual amount; she only informed the Court what she had been told by the Deceased, which was around HK$20,000 per month. It may or may not be the actual income of the Deceased. Whether the Deceased had made such a level of income, in my view, matters not. A slight deviation from the stated monthly income would not necessarily have an impact on the amount of pocket money a husband would or used to give to his wife.

43.  As to the 2^nd Defendant’s suggestion that the Deceased’s income during the Covid-19 pandemic would be reduced, it is not supported by the statistical records of the Transport Department, which shows that the average daily net income of a taxi driver increased from 2020 to 2021.

44.  To the extent that the amount of monthly income of the Deceased would be relevant for the Court’s assessment of the reasonableness and/or the veracity of the Plaintiff’s evidence on the average amount of pocket money the Deceased gave her, I note that the claimed monthly income of around HK$20,000 is actually way below the average income of a taxi driver in 2015, which according to the statistics of the Transport Department was around HK$33,000 per month. Hence, the monthly income of HK$20,000 asserted by the Plaintiff is unlikely to be overstated.

45.  Further, it is to be noted that the pocket money of $5,000 per month claimed by the Plaintiff represents only 25% of the monthly income of the Deceased, or around 15% of the average monthly income of a taxi driver in Hong Kong at the time. Such percentage also falls below the notional percentage allocation of 33% (for the spouse) or 66% (for the dependent family as a whole) the court would allow if one were to adopt the percentage deduction method in the assessment.

46.  I am therefore satisfied that the amount of HK$5,000 per month is reasonable in the circumstances and would allow the same in the assessment. Further, there is no reason for the Court to doubt if the Deceased would have continued to give the Plaintiff pocket money as he used to do had he not met with the Explosion.

Notional retirement at the age of 70

47.  Regarding the notional retirement age of 70 adopted in the claim, it is the Plaintiff’s unchallenged evidence that (a) had the Deceased not been killed in the Explosion, the Deceased would have continued working as a taxi driver at least until he retired at the age of 70, and (b) the Deceased was in good health and had not suffered any severe or chronic illness. I further note that the Deceased’s health condition before the Explosion is corroborated by the autopsy report, which states that: “Autopsy showed no potentially fatal natural disease processes.”

48.  The 2^nd Defendant argues that the political unrest in 2019 and the Covid-19 pandemic from early 2020 to late 2022 would definitely affect or accelerate the Deceased’s retirement even if he was physically able to work until 70. The 2^nd Defendant however did not explain why and to what extent the aforesaid events would bring forward the Deceased’s retirement. With respect, I am unable to see the logic in the submissions.

49.  Besides, the statistical records of the Transport Department do not support the 2^nd Defendant’s argument. As we can see from the statistics, the social unrest in 2019 has no impact on the average income of taxi drivers in Hong Kong. Regarding the effect of the Covid-19 pandemic, there was only a drop of 10% in the average income in 2020, and it bounced back to the 2019 level in 2021.

50.  Even if the demand for taxi service was reduced during the time of social unrest and the Covid-19 pandemic, it may only cause one to shorten the working hours or take a rest day on occasion; in my view, a reduction of only 10% in income would not have pushed someone into retirement as the 2^nd Defendant suggests. I therefore reject this argument without hesitation.

51.  I agree with the Plaintiff that there is no fixed retirement age for a taxi driver. Suffice it to say that people aged above 65 are not prohibited from driving or holding a taxi driving licence in Hong Kong, nor are they prohibited from working as a taxi driver.

52.  The Deceased was in good health (without chronic or any severe illness) before he was killed in the Explosion. Further, the Deceased’s reason for switching from a private car driver to a self-employed taxi driver in 2005 shows his apparent intention to continue working after the normal retirement age of 65. The age of 70 is just a notional point taken by the Plaintiff for the purpose of her claim under FAO, the Deceased could well have continued to work beyond that, like many other taxi drivers in Hong Kong do.

53.  Given the Deceased’s good physical condition prior to the Explosion and his clear intention to continue working after normal retirement age so long as his health condition allows him to do so, I am satisfied and thus hold that, but for the Explosion, the Deceased would have continued to work as a full-time taxi driver until at least the age of 70.

54.  It follows from the above that the Plaintiff’s entitlement under this head is HK$500,000, being 100 months at HK$5,000 per month.

LARCO – Funeral Expenses

55.  In the RSOD, the Plaintiff claims a total sum of HK$72,938, of which a partial sum of HK$70,048 was supported by receipts showing the actual payments made by the Plaintiff.

56.  The Plaintiff testified that the total funeral expenses incurred amounted to HK$72,938. Her evidence was not challenged by Mr Cheung in cross-examination. Further, this part of the Plaintiff’s claim was actually admitted by the 2^nd Defendant in D2’s Answer.

57.  I therefore allow the full sum of HK$72,938 under this head.

V. CONCLUSION

58.  In conclusion, I grant judgment in favour of the Plaintiff against the Defendants for the sum of HK$722,938, being bereavement for HK$150,000, pre-assessment loss of dependency for HK$500,000 and funeral expenses for HK$72,938.

59.  Interest is payable on bereavement and funeral expenses at judgment rate from the date of death to the date of payment, see Bushra Bibi v Method Building & Engineering Works Ltd (No 2) [2015] 2 HKLRD 402 at 412. Interest on pre-assessment loss of dependency is payable at half judgment rate from the date of death to the date of judgment, and thereafter at judgment rate until payment.

60.  I also make the usual costs order nisi that the costs of the assessment be payable by the Defendants to the Plaintiff to be taxed on a District Court scale, if not agreed, with certificate for counsel, and the Plaintiff’s own costs be taxed in accordance with Legal Aid Regulations. Unless any party applies to vary within 14 days, this costs order nisi shall become absolute without further order of the court.