CHEUNG, LINDA AND OTHERS v. CHOI LIN KIU AND ANOTHER

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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ASSESSMENT OF DAMAGES

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1. The deceased LAU Wing-poon was aged 34 years on the day he was killed by the dangerous driving of the first defendant who was driving a vehicle belonging to the second defendant along Argyle Street, Kowloon.

2. The deceased was married to the first plaintiff who brings this action under the Fatal Accidents Ordinance, Cap. 22 (FAO) for the benefit of herself and four other dependants who are the children of the deceased now aged 10 years, 9 years, 7 years and 2 years respectively. The widow and the second plaintiff also bring the action on behalf of the estate of the deceased under Section 20 of the Law Reform Amendment and Reform (Consolidation) Ordinance, Cap. 23 (LARGO).

3. Loss of expectation of life was agreed at $20,000 and funeral expenses at $11,014.

4. That leaves only the lost years claim to consider.

5. In this case it is clear that the FAO and the LARCO awards will merge.

The Multiplicand

6. The deceased prior to his death was employed by the Sin Yuen Chinese Food Company. Madam Au Yeung Duen Yee, the daughter of the proprietor of that firm gave evidence. She also. described herself as the Treasurer of the firm and testified with regard to the emoluments of the deceased in the 12 months prior to his death.

7. The firm which employed the deceased thought very highly of him. He had started work for them as a salesman in 1980. In early 1983 he was made a supervisor and in December 1983 he was made Assistant Sales Manager.

8. According to EX. PLI the deceased's total emoluments in 1983 were: -

i.e. an average monthly earning of $5,672.75 p.m.

9. In arriving at this figure I have disregarded bonuses of $1,050 and $3,000 paid in January on account of the previous year and taken into account $5,000 end of year double pay.

10. The initial and mast distressing feature of this matter is that . the deceased was killed almost immediately after his promotion and for the year 1984 he could expect significantly higher earnings than hithertofore.

11. His montly earnings for 1984 can be reasonably estimated, assuming no further promotion, as follows: -

12. In parentheses I ought to add that the item entitled "Allowance" was the subject, quite properly, of cross-examination by Mr Lai for the defendants. It was canvassed that this amount might be by way of an entertainment allowance for disbursement in the interests of the firm by the deceased. This was denied by Madam Au and I find that this item was part of the regular emoluments of the deceased.

13. The outgoings of the deceased expended in the maintenance of his family in the last year of his life were deposed to by his widow and first plaintiff. She stated that, in total, they were $2,279.

14. Allowing for the fact that the deceased was himself one-sixth of the household this amount should be reduced accordingly by $380 leaving a balance of $1,899.

15. There were extra items of expenditure for that year specifically in respect of the children amounting to $500 which should be added back leaving a total expenditure of $2,399. The balance available each month in 1983 was therefore $5,672 - 2,399 = $3,300.

16. Mr Lai did not challenge that expenditure and accept it.

17. Mr Hingorani, quite properly in my view, raised the point that it would be unfair to arrive at the monthly multiplicand by deducting the monthly expenditure for 1983 from the average monthly earnings for 1983. In December 1983 the deceased's earnings substantially increased and one would consequently expect his monthly expenditure to increase accordingly.

18. He suggested that a fairer multiplicand would be the notional expenditure for 1984 deducted from the estimated monthly income for 1984. He suggested that the monthly expenditure could be taken to increase in direct proportion to the increase in earnings. I agree.

19. I calculate the monthly multiplicand therefore as follows : -

The monthly multiplicand is therefore 8,391 - 4,882=	3,509
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20. Mr Lai was generous enough to say that whilst this was only one way of calculating the multiplicand, he on behalf of the defendants took no exception to it.

21. In the light of this consensus between counsel I have applied Mr Hingorani's formula albeit to different figures. These different figures arise because of the inadvertant inclusion in 1983 of bonus earned in 1982 and the inadvertant exclusion of the end of year double pay in Mr Hingorani's calculations.

22. In applying the formula I have had in my mind the case of PR's of Wong Sai-chuen (deceased) v. Tam Mei Chun [1983] HKLR 331 at 338 and have compared the result achieved here with the approach set out there by the Court of Appeal for assessing the free balance. In my view the result herein in complete accordance with that approach.

23. It was also suggested in Wong Sai Chuen and urged upon me by Mr Hingorani that I may regard the above multiplicand as only the first step in calculating the free balance and that it is open to me to add to this the deceased's notional savings during his lost years.

24. Although 10% is described as a reasonable starting point, each case must be viewed according to its circumstances, and those circumstances here are that the deceased had 4 children to maintain. The deceased was a man of ambition, industry and thrift kand it is not inconceivable that he would make some provision for the future, however I can only accept that such provision would be minimal having regard to his family committments and I calculate it at 5% of the estimated monthly income after death.

The Multiplier: -

25. The deceased was 34 years of age at the time he was killed. He was stated to be in good health and that has now been disputed.

26. Mr Hingorani submitted a multiplier of 14 citing a number of cases where, in similar circumstances this figure has been used.

27. Mr Lai submitted that the deceased was in a stressful 'occupation as a salesman. The deceased, he says, might accordingly expect a shorter life.

28. Bearing in mind what has been said about the deceased and his modest habits I am satisfied that a multiplier of 14 is appropriate and I adopt it.

Summary: -

Damages to the plaintiffs are accordingly assessed as follows: -

29. There will be interest on the special damages and the pretrial loss of earnings from the date of death until today at the rate of 5.5%.

30. There will be interest on the award in respect of the lost years at the rate of 2% from the date of the writ until today.

31. There will be no interest in respect of the post trial loss or the award for notional savings.

Representation:

Mr J. Hingorani instructed by Director of Legal Aid for Plaintiffs

Mr T. Lai instructed by Stevenson Wong & Co for lst and 2nd Defendants

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

BETWEEN

Coram: Master Suttill in Chambers

Date of Hearing: 28 May 1985

Date of Delivery: 14 June 1985

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APPORTIONMENT

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32. The amount of damages to be apportioned is $691,010.

33. Under the Intestators' Estates Ordinance Chapter 73 section 4(3) the first plaintiff Madam Linda Cheung is entitled to a net sum of  $50,000, and to half of the balance remaining after deduction thereof.

34. The four children are entitled to the other half of the balance to be apportioned between them. Their respective ages are 10, 9, 7 and 2. I have assumed they will remain dependant until the age of 18 years.

35. The apportionment is accordingly as follows: -                   

36. The whole amount of the damages shall be paid to the Director of Legal Aid within 21 days by the Plaintiff.

37. The widow's portion shall stand changed in favour of the Director of Legal Aid for his fees. The children's portions shall be invested by the Registrar of the Supreme Court who may make such payments out from time to time as he shall think fit.

38. The costs of the action shall be to the Plaintiffs which costs shall be taxed in accordance with the Legal Aid Regulations.