LAW YUET KWAI v. SECRETARY FOR JUSTICE

HCPI 430/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.430 OF 2001

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ASSESSMENT OF DAMAGES

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1) The plaintiff brings this claim on behalf of the dependant and the estate of the deceased, Chan Ah Man, who died from an accident which occurred when he was working on the marine dockyard on Stonecutter's Island on 11 May 1998. The accident occurred when a pulley support came off the buoy tower of buoy bearing serial number M099 ("the buoy") and knocked the deceased off the top of the buoy where he was working causing him to fall onto the ground below where he knocked his head against the angled iron leg of another tower lying on the ground thereby fracturing his skull and from which he died some two hours later on the same day.

2) Liability for the accident has been admitted by the defendant, being the employer of the deceased at the time of the accident. I now deal with the assessment of damages.

3) The deceased was born on 19 September 1948. He started to work for the Government on 1 December 1969. He was 49 years old when he met with the accident and passed away on 11 May 1998. He had worked in the civil service for 28 years and five months. His last office before he died was an artisan of the Marine Department and he was earning $16,181.00 per month. Had he not died, the deceased would have reached retirement age at 60.

4) The deceased was married to the plaintiff on 28 June 1971. The plaintiff was born one day before the deceased. They have a son and a daughter, respectively aged 27 and 24 at the time of the deceased death. Both the son and daughter were in gainful employment but still single when the deceased died. Up to the time of his death the son and daughter were still living with the deceased and the plaintiff.

5) The plaintiff is the only dependant of the deceased and she has at all times been a housewife.

Bereavement

6) There is no dispute that the statutory sum of $150,000.00 is to be awarded under this head.

Funeral expenses

7) The claim under this head has been agreed between the parties at $168,640.00 and the same will be awarded.

Pre-trial loss of dependency

8) The monthly dependency has been agreed between the parties at $10,787.00. Fifty-two and a half months has elapsed since the deceased death giving a total of $566,287.00 as the pre-trial loss of dependency.

Future loss of dependency

9) In so far as the future loss of dependency is concerned, the only issue in dispute between the parties is the multiplier to be adopted. The plaintiff press for a multiplier of 11 while the defendant submits that a multiplier of 8 is appropriate.

10) It is common ground that the deceased would reach retirement age working in the civil service at age 60. Thereafter he would be entitled to a pension with which he would likely continue to support his wife's living as well as his own had it not been for the accident.

11) I do not accept Mr Lam's contention when he asks me to draw the inference that the deceased would likely continue to work (presumably work outside of the Government) after he retires as a civil servant. He accepts that there is no evidence upon which I could draw the inference he asks me to draw. The basis for his asking me to draw such inference is that I could rely on my experience to make that inference since there are numerous people on the street still working after age 60.

12) That suggestion of Mr Lam is not well-founded in my view. Looking at the evidence in this case, I would have thought it unlikely that the deceased would continue to work after he retires from the civil service. His children, even at the time of his death, were financially independent and have grown up. By the time the deceased would have retired, had it not been for the accident, there would only be himself and the plaintiff to support. His pension alone would have been quite adequate for that purpose. In all the circumstances, having worked up to the age of 60, the deceased would probably have decided to call it a day and to enjoy his retirement living off his pension.

13) Taking into account the above, the respective ages of the deceased and the plaintiff as well as the numerous cases cited to me by counsel in submission on the appropriate multipliers adopted in decided cases, I am of the view that a multiplier of 10 would be appropriate in this case. In coming to this view, I also take into account that it is common ground between the parties that the available statistics adduced into evidence show that the average life expectancy of a male to be 78 years.

14) Therefore using a multiplier of ten and reducing it by the fifty-two and a half months for the pre-trial loss of dependency, the future loss of dependency comes to $728,123.00.

Loss of accumulation of wealth and pension benefits

15) There are claims by the plaintiff for loss of accumulation of wealth as well as for loss of pension benefits separately. I am of the view that the loss claimed under both these heads should be dealt with together and not separately. This is because in a fatal accident case, where the deceased is already dead, there can be no claim for loss of pension for the same reason that the estate of the deceased is not entitled to claim for loss of future earnings. There can only be a claim for loss of accumulation of wealth in the sense that the court will have to decide what a deceased would have saved during his notional lifetime (whether from his wages or pension or both) which is not spent by him and of which he died possessed. In so determining what is the accumulation of wealth, the court will no doubt be able to take into account his entitlement to pension and decide what part, if any, of his pension (and for that matter what part of his earnings had he not died) he would have been able to save up at the end of his notional life or whether he may have to expend some of what he had saved up during his working life in supplementing his pension to support his and/or his wife's living during his retirement.

16) That therefore is the approach I intend to adopt in this case.

17) There is unchallenged evidence before me that from the bank accounts of the deceased (and one in his wife's name) there was savings to the approximate tune of some HK$187,000.00 at the time the deceased died. Bearing in mind that the deceased, when he died, was earning just over $16,000.00 per month, and had since marriage, supported his family and brought up a son and a daughter, this can only be a clear unmistakable pointer as to the saving pattern of the deceased and the lifestyle adopted by him and his family to enable this to be achieved.

18) When the deceased died at age 49, he had another 11 years working life left. For the remainder of his working life, he would not need to financially support his two children (apart from the fact that they were still living with him) and must therefore be in a better position to save up a larger part of his earnings than previously.

19) When the deceased would have retired at age 60, he was in line for a pension. The evidence indicates that he would have had an option how to receive that pension. He could elect to receive a full pension or alternatively, he could receive a commuted pension gratuity of 50% in a lump sum of $740,812 and a reduced 50% pension of $52,915 per annum for the rest of his life.

20) There is also produced in evidence a table of life expectancy which indicates that a male person in Hong Kong would have an average life expectancy of 78.34 years.

21) For present purpose, it probably does not matter greatly which of the option the deceased would have chosen to receive his pension in. Looking at the picture globally, I come to the conclusion that a reasonable sum to award under the head of loss of accumulation of wealth would be $500,000.00.

22) Accordingly, and for the reasons given, there will not be a separate award made for loss of pension benefits.

Deduction

23) The evidence in this case is that the deceased, as a civil servant, was entitled to a pension from the Government when he retired at age 60. Such entitlement to pension is governed by the Pension Benefits Ordinance, Cap.99 ("the Ordinance"). Section 19 of the Ordinance provides for dependant pension which is applicable to the present case by reason of the fact that the deceased died in the actual discharge of his duty as an artisan. Accordingly, the plaintiff, being his widow was entitled to a dependant pension under section 19 of the Ordinance. She elected to receive that dependant pension in a lump sum of $487,596.00. It is common ground that this amount was paid to the plaintiff on 7 March 2000.

24) The plaintiff also received a death gratuity as provided for under section 20 of the same Ordinance. The total amount of the death gratuity which the plaintiff received was $516,291.72.

25) It was argued on behalf of the defendant that from the total amount assessed in this matter there should be deducted the sum of $487,596.00 being the dependant pension paid to the plaintiff.

26) The plaintiff opposes any suggestion of deduction of the amount of dependant pension relying on the provisions of section 7 of the Fatal Accidents Ordinance which reads :

"In assessing damages in respect of a person's death in an action under this Ordinance.....benefits which have accrued or will or may accrue to any person from his estate or otherwise as a result of his death shall be disregarded."

27) The wording cited above of section 7 of the Fatal Accidents Ordinance in Hong Kong was directly borrowed from the wording contained in section 3 of the Administration of Justice Act 1983 which amended section 4 of the Fatal Accidents Act of 1976 ("the Act") in England.

28) In the case of Pidduck v. Eastern Scottish Omnibus Ltd [1990] 1 WLR 993, the deceased, a retired bank employee was killed while travelling as a passenger on a coach owned by the defendant. At the time of his death, the deceased was in receipt of a non-contributory pension from the bank. After his death, his widow became entitled to a widow's allowance based on the deceased's pension entitlement. The only issue in dispute on appeal was whether, under the amended section 4 of the Act, the widow's allowance should be disregarded when assessing damages for loss of dependency.

29) The Court of Appeal in England dismissed the appeal by the defendant and held that although the bank's pension fund rules provided for the calculation of the widow's allowance by reference to the same base pension element as was included in the deceased's retirement pension, the base pension element could not be treated as having been paid to her before the death since the widow's allowance was only payable on the death of the male pensioner; that accordingly, it was a benefit that accrued to the plaintiff "as a result of" the death of her husband and was to be disregarded by virtue of section 4 of the Act when assessing damages.

30) That decision seems to me to be on all fours with our present case in so far as that issue is concerned. In the present case, although the dependant's pension of the plaintiff was based on the pension calculation for the deceased had he not died, the entitlement of the plaintiff's dependant's pension was an entitlement of the plaintiff under the Ordinance and a benefit which accrued to her as a result of the death of the deceased.

31) As such, and based on the decision in Pidduck's case, I hold that the amount of the dependant's pension should be disregarded by virtue of section 7 of the Fatal Accidents Ordinance when assessing damages.

Interests

32) Interests should normally be awarded at the full special investment account rate (see paragraph 16-031 Kemp and Kemp) on the amount awarded for bereavement from the date of death to date of judgment. However, since the present full special investment account rate based on the suitor's fund rate is currently below 2%, the rate usually awarded for general damages, I propose to adopt 2% as the rate for interest under this head.

33) Interests will also be awarded for funeral expenses and pre-trial loss of dependency at half judgment rate (4.063%) from the day of death to date of judgment.

Summary

			$
(a)	Bereavement		150,000.00
		Interests thereon	13,140.00
(b)	Funeral Expenses		168,640.00
(c)	Pre-trial loss of dependency		566,287.00
		Interests on (b) & (c)	130,817.00
(d)	Post-trial loss of dependency		728,123.00
(e)	Loss of accumulation of wealth		500,000.00
		Total:	2,257,007.00

34) There will accordingly be judgment in favour of the plaintiff against the defendant for the assessed amount of damages in the sum of $2,257,007.00

Costs

35) There will be the usual cost order nisi that the costs of the action including the assessment be paid by the defendant to the plaintiff to be taxed if not agreed.