CHENG YUK SHIU AND ANOTHER v. MA WAI HOI AND ANOTHER

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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ASSESSMENT OF DAMAGES

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1. This is an assessment of damages arising out of a fatal accident after the new amendments. At the very outset, the parties informed me that whatever the award, it is most likely that this would be an empty judgment. Nevertheless, both Miss Liu of the Legal Aid Department for the Plaintiff and Mrs. Goodman of the Registrar General's Department for the 1st Defendant had very helpfully gone through the various heads of award under the Law Amendment & Reform (Consolidation) Ordinance (Cap. 23) and the Fatal Accidents Ordinance (Cap. 22). After their submissions, I was able to arrive at the appropriate figures without much difficulty. I shall now set them out as follows.

2. On 7 July, 1987, the deceased, Cheung Yuk Keung and his employer, one Ma Wai Hoi, were working together on a scaffolding in connection with the erection of window frames by the head contractor in a residential building.  Both the deceased and Mr. Ma fell from the 8th floor to the ground and died. The Plaintiff, who is the father and administrator of the estate of the deceased, claims against the estate of Mr. Ma (the 1st Defendant) and the head contractor (the 2nd Defendant) for damages under the said 2 Ordinances.  The Registrar General was appointed by consent to represent the 1st Defendant. The 2nd Defendant never turned up or took part in these proceedings. Default judgment had been entered against both Defendants. I am given to understand that neither had any insurance policy.

The FAO Claim

3. The deceased was 19 at the time of his death. He was then an apprentice scaffolder employed by Ma Wai Hoi. He came from a large family.  His parents have 12 children, he being the 11th with a younger sister after him. All the children except these 2 had married and lived apart and were financially independent. The Plaintiff, his wife, the deceased and the youngest sister resided together in a housing estate flat. The Plaintiff had been a fish hawker in Yaumati before and is now retired. His wife is also retired. Both have no income. The sister was a student but had started to work in about 1989 and is now living apart.

4. The deceased had completed F. 3 standard. He had a few odd jobs with meagre incomes. About 6 months before his death, he started working for Ma Wai Hoi as an apprentice scaffolder. He was given $150.00 per day and he worked 26 days a month. It appears that it is likely that if not for his death, he would have completed his apprenticeship and continued in the same trade. There is evidence before me that as a full rank scaffolder, he would be earning $300.00 per day in 1988 and about $400.00 per day in 1990.

5. The deceased brought home $1,500.00 a month to the Plaintiff for the household of 4. The monthly deficit was shouldered by the Plaintiff's 2nd son who had taken over his fish stall in Yaumati. This child also paid for the sister's school fees (of $572.00 per month). The other children made no contribution. In other words, the Plaintiff, his wife and the sister were partially dependent on the deceased.

6. According to the Plaintiff, the average monthly household expenses at the time of the death of the deceased were as follows :-

7. I think it is fair to say that in this case, since the 4 of them were grown up, they would share equally and each person's share and hence the deceased's share would be $2,693.00 ÷ 4 or roughly $670.00. This leaves a dependency of $1,500.00 - $670.00 = $830.00 per month. Taking his average monthly income to be $150 x 26 = $3,900.00, the dependency was approximately 21% of his income.

8. Miss Liu for the Plaintiff submitted that the deceased would have completed his apprenticeship in another 6 months time. Bearing in mind his young age and diligence, I think that this is a fair assumption. It was also submitted that as the deceased qualified and earned more, it was likely that he would increase his contribution to his family. I would agree with this. The deceased appeared to be a responsible son. When he was doing odd jobs, his contributions were irregular. After he had taken on this scaffolding apprenticeship, he had started to make a regular contribution. I think he would continue to pay at least the same proportion of his income to support his parents. This would be the case even if the sister had become financially independent.

9. The pre-trial dependency would therefore be :-

10. As to future dependency, the Plaintiff is now 62 and his wife 57. I would agree that the overall multiplier for them would be 7 from now. The multiplicand on a 21% basis would roughly be $(400.0 x 26)/m x 21% i.e. $2,184.00. I would however round off to $2,000.00 bearing in mind that the sister has left the household by now. The post trial dependency would be :-

11. The award for bereavement is the conventional figure of $40,000.00.

The LARCO claim

12. Since the amendments to the Ordinance, what I am really concerned with is the loss of accumulation of wealth. In this respect, I have been referred to the recent case of Nazareth J. in Chan Yuk Yin and another, Co-administratrices for the estate of Lui Cheuk Kwong, deceased v. Chan Cheung Wan, HCA No. A7911 of 1988, unreported.   I would respectfully agree with the comments made by the learned judge in that case.

13. In the present case, I note that the deceased had only a very small saving at the time of his death. This is, as Miss Liu submitted, because of his previously low and irregular income from the odd jobs. If he was able to have a sharp increase of income after the completion of his apprenticeship, it is likely that he would start saving more. On the other hand, he was single and had no steady girl friend, it is only natural that as he could earn more, he would spend more.

14. Bearing in mind all the circumstances, I would, like the learned judge in Chan Yuk Yin's case, adopt a notional figure of 10% as his savings. Because of his young age and taking into consideration the nature of his work and other factors, I would agree that a multiplier of 16 as suggested is reasonable. Hence, the loss of accumulation of wealth would be :-

15. The funeral and other expenses are not in dispute. They are $20.00 for hospital fees, $15,000.00 for funeral expenses.

16. There is an award of $211,200.00 under the Employees' Compensation Ordinance, Cap. 282 made in November, 1989. But I am informed that this had not been received yet. I see no point in giving credit for that and do not propose to do so.

17. The total award would be as follows :-

18. There would be interest on general damages at 2% p.a. from the date of writ to the dace of judgment and on special damages at 5% p.a. from the date of accident to the date of judgment.

19. The Plaintiff shall have the costs of the assessment to be taxed if not agreed and his own costs to be taxed according to the Legal Aid Regulations.