AU CHUN BONG v. YU CHUK LUN

1983 No. 6554

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

__________

_________________________

ASSESSMENT OF DAMAGES

_________________________

1. The plaintiff sues on behalf of the estate of his deceased daughter, Au Wai Ban, who was killed in a motor accident on 2nd August 1981.  She was 20 years old at the time.

2. The Writ was issued in May 1983 and interlocutory judgment was entered on 13th May 1986.

3. The 1st and 2nd defendants were respectively the driver and owner of the vehicle in which the deceased was a passenger at the time of her death. Although they hitherto had legal representation, both defendants appeared at the hearing in person, having filed notice to that effect on 27th June 1986.

4. Through an interpreter both defendants were fully apprised of the procedure and of their rights. Each declined to cross-examine plaintiff's witnesses and neither of them gave evidence nor called witnesses of their own.

5. The documents subject to the hearsay notices were duly handed in and their contents explained to the defendants.

6. The plaintiff himself gave evidence and also called his two daughters, sisters of the deceased. The deceased's mother had died in the meanwhile and evidence of the deceased's outgoings by way of establishing a free balance of savings was rather inexact as a result. Similarly imprecise were details of funeral expenses, over and above those covered by the receipts included in the hearsay notice. I am however satisfied from the evidence that the claim of $7,000.00 in that regard is justified and I award that sum as special.

7. Prior to her death the deceased was employed as a sewing worker with Triumph International (Hong Kong) Ltd. She was only in her first month of employment, but the company has projected her wage rate for the period worked to arrive at a figure of $1,665.00 as her monthly earnings. I accept that figure. The company indicated that they found the deceased to be a satisfactory employee and I therefore accept that she would have received the usual increments from year to year .

8. Evidence was adduced that the deceased was attending evening classes five days a week to improve her English in order to get a job as a salesgirl or clerk. Satisfactory reports in regard to these classes were produced in terms of the hearsay notice.

9. I am satisfied that the deceased was working to improve herself and was likely to have succeeded. I accept therefore that her earnings may have progressed, after a few years study, to the level of a clerk or salesgirl rather than of a sewing worker. Produced in terms of the hearsay notice are letters from the commissioner for Census and Statistics giving average monthly earnings for female sales clerks and shop assistants in the years 1984 and 1985. I accept these figures in assessing, the deceased's future earnings for the lost years claim.

10. For the deceased's pre-trial loss of earnings, I initially rely on the evidence of her employer both as to her wage rate at death and as to the increases in that rate in 1982 and 1983. I have assumed an increase in overtime earnings at the same percentage level as the increase in basic rates. From 1984 until trial I accept counsel's submissions that the deceased is likely to have earned as a salesgirl or clerk and calculate on the figures provided by the statistics department for emplolyees in that category.

11. The figures for the period from death to the hearing are accordingly.

12. For the free balance, counsel has suggested the very conservative figure of 40%. Evidence of the deceased's outgoings was rather scant and I understand that this was due to the intervening death of her mother. I am however satisfied that 40% is a reasonable figure in the circumstances.

13. The pre-trial award for the lost years will therefore be $133,468.00 x 40% = $53,387.20.

14. For the post-trial loss, counsel has suggested a multiplier of 16 from the date of death. Various cases have been drawn to my attention and it suffices to say that I agree that figure as the multiplier.

15. Taking the deceased's earnings at the time of trial as S2,551.00 per month and applying the multiplier of 16 less the intervening period of 59 months I arrive at a gross figure of $339,283.00. 1 consider that the percentage of free balance would have gradually increased; the expenditure on evening classes would not have continued for more than 2 or 3 years, and the contributions to the family home of around $400-$500 per month would not have continued indefinitely.

16. Bearing, all these factors in mind I apply a figure of 45% in assessing the free balance for the post-trial years. The net figure is therefore $152,677.00 for this claim.

17. I also award the conventional sum of $20,000.00 for loss of expectation of life.

The total damages are accordingly :-

18. Interest will run at the rate of 3.875% per annum on the funeral expenses and the pre-trial damages from the date of death. Interest on the loss of expectation of life award will run at 2% per annum from the date of the writ. In both cases interest will run to the date of this hearing.

19. Costs are awarded to the plaintiff with a certificate for counsel. The plaintiff's own costs are to be taxed in accordance with the Legal Aid Regulations.