LIU KANG FUN AND ANOTHER v. TSUI WAI PING

HCPI 666 of 1995

THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES LIST NO. 666 OF 1995

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ASSESSMENT OF DAMAGES

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Background

1. The deceased TAM Kwok Hung, who was trading as a scaffolding contractor under the name of Hung Kee Scaffolding, died as a result of an industrial accident on 31st July 1992. At the material time he was engaged by the Defendant to erect scaffolding at a premises at Lai Chi Kok Road.

2. The Plaintiffs bring this action on behalf of the dependants of the deceased under the Fatal Accidents Ordinance, Cap. 22 ("FAO") and the estate of the deceased under the Law Amendment and Reform (Consolidation) Ordinance, Cap.23 ("LARCO"). Interlocutory judgment was entered against the Defendant with damages to be assessed in default of defence on 15th August 1996.

3. Pursuant to the Order of Master Woolley on 28th June 1999, the Notice of Appointment of Assessment of Damages was effected by publishing an advertisement in the Oriental Daily News, a Chinese newspaper on 1st September 1999. The Defendant failed to appear on the date of the Assessment.

Evidence

4. Only the widow LIU Kang Fun ("1st named Plaintiff) gave evidence. The unchallenged evidence was that the deceased, who was born on 6th January 1956, was aged 36 at the time of the fatal accident. He was earning $15,600 per month ($600 per day x 26 days). He contributed $7,800 towards expenses of the family. There were 4 members in the family, i.e. the deceased, his wife ("1st named Plaintiff") and his two sons, TAM Ping Wun and TAM Cheong Wang. He also contributed $500 to the parents of the 1st named Plaintiff, LIU Kwok Ming and CHAN Yau Lan; and $1,000 to his own mother LEUNG Miu Cheung.

5. The deceased was a happy family man who was able to provide security for the family. He owned the flat in which the family resided. He held several bank accounts and had savings amounted to about $134,000. On top of that, he held shares the value of which was estimated at $239,000. The net provisional principal value of estate was assessed at $678,727.71 (see Provisional Schedule of property disclosed on the death of the deceased, page 80-81 of the bundle of documents).

6. The 1st named Plaintiff was totally dependent on the deceased before his death. Since his untimely demise, the 1st named Plaintiff was forced to take up employment as a cleaning worker to make ends meet.

7. In the absence of any evidence to the contrary, I find no reason to disbelieve the evidence of the 1st named Plaintiff, in particular when parts of her evidence was supported by documentary evidence.

8. Mr. Jenkin Chan, solicitor acting for the Plaintiffs, has very helpfully provided me with a detailed written submission on the claim. He also supplemented the written submission with an oral one.

Claim under the FAO

9. The deceased was earning $15,600 and contributing $7,800 towards family expenses each month at the time of his death. According to the Government wages statistics in July 1999 (page 90 of the bundle), the daily wages for bamboo workers and scaffolders was $1,163.40. The deceased was a contractor, I accept Mr. Chan's suggestion of rounding up the figure to that of $1,200 per day. Mr. Chan suggested adopting 24 days for the calculation of the monthly wages on the basis that the deceased would have spent more time with the sons who were growing up. I find that reasonable and I will adopt that approach. The monthly earning the deceased would have earned at the time of trial but for the accident would have been $28,800 ($1,200 x 24 days). The deceased would have contributed half of his monthly wages towards family expenses. The pre-trial median monthly contribution is therefore $11,100 [($7,800 + 14,400) x 1/2]. I accept Mr. Chan's submission that the apportionment of family expenses should be 1/4 for the four members.

10. As to the deceased's contribution to his own mother and the parents of the 1st named Plaintiff, I also accept the proposal of Mr. Chan in adopting a figure proportionate to the percentage of increase to his wages. The contribution to his mother would have been $1,840 ($1000 x 184%) and to each of the parents-in-law $460 ($250 x 184%) at the time of trial. The pre-trial median for the mother is $1,420 [($1000 + 1840) x 1/2] and to each of the parents-in-law, $355 [($250 + 460) x 1/2].

Accrued Loss of Dependency

11. The accident occurred on 31st July 1992, the pre-trial period is therefore 88 months and 9 days (88.3).

Future Loss of Dependency

12. The 1st named Plaintiff was born on 11th September 1957. She was aged 35 at the time of the deceased's death. She was a housewife and fully dependent on the deceased. But for the accident she would have continued to be so-dependent. Mr. Chan referred me to the authorities of Fan Lan Fong v Dawson James Edward, HCPI No. 714 of 1996 and Tsang Chin Keung v Lo Tat-kong HCPI No. 806 of 1995 and proposed a multiplier of 15 for her.

13. The two sons were aged 3 and 2 (born on 13th November 1988 and 24th October 1989 respectively) at the time of the deceased's accident. The mother of the deceased was 67 years of age while the parents-in-law were 64 and 57 respectively at the material time. Mr. Chan relied on the authority of Lau Suk Fong v Wong Fat Kwong, HCA No. A5 of 1993 to contend that the appropriate multiplier for the two sons should be 13 and 14 respectively; and that a multiplier of 8 be adopted for the mother and the parents-in-law.

14. I note that under the LARCO claim a multiplier of 13 was proposed by Mr. Chan. It is illogical, in my view, for the dependants to claim dependency exceeding the deceased's estimated working life. After considering the age of the deceased when he died and the nature of his work, I accept a multiplier of 13 is reasonable. I adopt the same multiplier for the 1st named Plaintiff. As both the children were young, I will adopt the same multiplier.

15. Coming to the mother and parents-in-law of the deceased, they were all elderly, being 67, 64 and 57 respectively at the time of the deceased's accident. It would not be appropriate to adopt a multiplier of 13 for any one of them. I find the suggestion of Mr. Chan reasonable so far as the mother and father-in-law are concerned and I adopt a multiplier of 8 for them. However, as the mother-in-law was 57 years of age at the material time, I am of the view that a multiplier of 10 is more appropriate in her case.

Bereavement

16. An award in the sum of $70,000 is allowed for bereavement under section 4 of the FAO.

Loss of Accumulation of Wealth under the LARCO

17. Mr. Chan accepted that to succeed in a claim for loss of accumulation of wealth under the LARCO, there must be evidence that wealth would have been accumulated. Mr. Chan referred me to the case of Ho Pang Lin & Anor. V Ho Shui On & Anor [1994] 3 HKC 294 and submitted that the deceased's situation falls squarely within the first of three categories or situations where a court will have to consider on the issue of accumulation of wealth propounded by Deputy Judge Jones, i.e. where the deceased had an obvious savings pattern. Mr. Chan placed heavy reliance on the savings in the bank accounts and the fact that the deceased held shares for investment.

18. In Chan Sim Lan v Sheen State International Ltd. [1994] 1 HKC 460, Kaplan J. was of the view that the existence of some savings at the time of the accident does not necessarily mean that such savings would have been in existence at the time of the natural death. In his Lordship's judgment, accumulation of wealth would denote money which the deceased would have saved during his working life, but which he would not spend during his retirement or life time and which he would die possessed of. While accepting that the evidence does suggest that the deceased was frugal and wise with investment, the fact remains that he would have to support a wife and two very young children, the expenses of the latter two would undoubtedly have increased as they grow older. Further, although there is no such evidence before me, it is not uncommon for people in Hong Kong to improve their standard of living by purchasing better homes when the situation permits. To say that the deceased would have accumulated wealth amounting to 30% of his lifetime income at the time of his natural death is unrealistic, in my view. On the evidence before me, I am prepared to find that there would have been an accumulation of wealth amounting to 20% of his lifetime earnings. I have already indicated that a multiplier of 13 is reasonable.

Accrued Loss of Accumulated Wealth

Future Loss of Accumulated Wealth

Funeral Expenses

19. The Plaintiffs also claimed funeral and burial expenses in the sum of $13,000. They are supported by document (page 39, 159-163 of the bundle) and are reasonable. I allow the same.

Interest

(a) Interest on the claim for bereavement is at 2% per annum from the date of issue of Writ (10th July 1995) to date of Assessment:

$70,000 x 2% x 175/365 days
+$70,000 x 2% x 3 years
+ $70,000 x 2% x 343/365 days	$6,186.85

(b) Interest on pre-trial loss of dependency, accrued loss of accumulation of wealth and funeral expenses at half of the judgment rate (i.e. 5.63 %) per annum from date of accident to date of trial:

$1,328,228.50 x 5.63% x 183/365 days
+ $1,328,228.50 x 5.63 % x 6 years
+ $1,328,228.50 x 5.63% x 343/365 days	$556,439.62
	$562,626.47

Summary of total award

Infant interest

20. As the Defendant is absent throughout the proceedings, there is a real likelihood that the judgment obtained would in effect be an empty one. Nevertheless, since both the sons TAM Ping Wun and TAM Cheong Wang are infants, for the sake of completeness and in the event that the Plaintiffs are able to enforce the judgment, I make an order that their share of the award together with interest stated below be paid into and kept in the Court to be invested or dealt with by the Registrar for their benefit, with the authority to make payment out at the Registrar's absolute discretion for the maintenance education and advancement of the children until they attain the age of 18; with liberty to apply:

Costs

21. I make the following nisi order for costs, such order to be made absolute if no application for review is made within 14 days of the handing down of this judgment:

1. Costs of the Assessment be to the Plaintiffs, to be taxed if not agreed.

2. Plaintiffs' own costs to be taxed in accordance with the Legal Aid Regulations.