PUN LAI LING AND ANOTHER v. HONG KONG MASTER INTERNATIONAL LTD

HCPI 53/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 53 OF 2005

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BETWEEN

  PUN LAI LING (潘麗玲)
and CHEUNG FUK CHEUNG THE ADMINISTRATRIX OF THE ESTATE OF CHEUNG FUK CHI, DECEASED
Plaintiff
  AND  
  HONG KONG MASTER INTERNATIONAL LIMITED Defendant

____________________

Before: Master de Souza in Court

Dates of Hearing: 9, 11 & 17 February 2006

Date of Judgment: 22 February 2006

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J U D G M E N T

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1. In the early hours of 2 April 2002, an uncontrolled fire broke out at the CRC Petrol Station on Kam Tin Road, Pat Heung, New Territories. The deceased and his colleague who were working the night-shift duty, perished. The fire had apparently erupted at the cashier’soffice. That the deceased and his colleague had met a most terrible death cannot be gainsaid.

2. The deceased, Cheung Fuk-chi was employed by the defendant, Hong Kong Masters International Limited, the proprietor and operatorof the petrol station in question. Interlocutory judgment was entered for the plaintiff against the defendant by Mr Registrar Chanon 26 May 2005 for damages to be assessed. The plaintiff are the administrators of the estate of the deceased, being the deceased’swidow, Poon Lai-ling PW1, and the natural brother of the deceased, Cheung Fuk-cheung PW2.

3. The defendant was compulsorily wound up on 30 November 2005 pursuant to an order made by Master Ho who subsequently, on 7 February2006, granted a further order permitting the present proceedings to proceed. The interlocutory judgment was obtained in defaultof defence.

4. The deceased was born on 15 February 1964 and, at the time of his death, aged 38. On the undisputed evidence, he was clearly ofgood health and had no known vices. He appeared to have been hard-working and frugal, leaving his young family to come to Hong Kongon his own to live with his brother, PW2, with the intention of improving his family’s prospects. According to PW2, the deceasedwould commute between home and the petrol station on foot, and take his meals at home. There is also evidence from the brother thatthe deceased did not have to make any monetary contribution for his upkeep in Hong Kong.

5. There can be no controversy that the deceased had left behind, as dependant, his widow who was born on 15 December 1965. She was36 years of age when her husband tragically perished on 2 April 2002.

6. There are two dependent children, Cheung Yuen-han, a daughter now aged 15, and Cheung Ka-sing, a son now aged 10. They are clearlydependants of the deceased. At the time of their father’s death, the daughter was aged 11 and attending Primary 5 while the sonwas 6 and in Kindergarten 3. With the effluxion of time, the daughter has progressed to Form 2 at a private boarding school. Shereturns home for weekends. The son is now in Primary 4. It was the wife’s evidence that, given improvements in the family circumstances,both she and the deceased would have wished the children to continue their education, possibly to tertiary level. Such is the commonaspiration of parents from a modest background.

7. PW1 was, and still is, a housewife who remained in China to look after the children. Her evidence was to the effect that the deceased,who was at the time of his death earning $6,200.00, would retain $500.00 for his daily expenses and $700.00 for his own saving. The rest of his income of $5,000.00 would be handed over to her for the use of the family in China. The widow and her children residein a self-owned family house at Team 7, Yin Keng Village, Qinggi Town, Sanshui City, Guangdong, PRC. This property was wholly ownedby the deceased at the time of his death and appears not to be the subject of any encumbrance.

8. From the $5,000.00, the wife would use about $3,000.00 for food, household and other utility expenses. Counsel for the plaintiff,Mr Chan, had suggested that the $3,000.00 might be divided three ways equally to represent the dependency of this family of three. The evidence was that the widow would initially set aside $1,200.00 of the $5,000.00 remittance from the deceased as her own pocketmoney, and $400.00 was used each for the daughter’s and son’s school fees and other miscellaneous expenses. However, at theassessment hearing, it became patent that expenses had increased quite considerably, notably in regard to the children’s educationcosts.

Loss of Dependency

9. In calculating the loss of dependency of the widow and the children, one would have to look at the revised figures of the outgoingsof the family in China. The children’s increased expenses amounted to a sum of $1,500.00 a month. The evidence demonstrates thatthe daughter’s dependency would have increased from $1,400.00 a month to $2,400.00 a month. In the case of the son, his dependencyincreased from $1,400.00 a month to $1,900.00 a month.

10. To determine the median dependency for the period up to the time of assessment, Mr Chan suggested that the following should be adopted. In the case of the daughter, he suggested a figure of $1,900.00 a month as a median dependency, being [($1,400.00 + $2,400.00) /2]; the son’s median dependency was submitted as $1,650.00, being [($1,400.00 + $1,900.00) / 2].

11. From the evidence previously adduced prior to modification, the wife was dependent in the monthly sum of $2,200.00. That is madeup of $1,000.00 attributed to her one-third share of the $3,000.00 previously referred to, plus $1,200.00 which she had reservedfor her own pocket money. With the increased educational costs and the fact that the deceased might not have enjoyed any incrementin salary, the family clearly would have had to make do with what income that the deceased had. Upon the basis that he was stillearning $6,200.00, it would seem that some cut-back by the wife of her share of the deceased’s remittance and, in the expensesthat the husband would allow for himself prior to remitting the balance to the family, would have been necessitated to meet the realityof the situation. Although the husband was living rent-free with his natural brother, it would be unrealistic to suggest that thewife should continue to receive $2,200.00 a month as that would leave the husband with pretty little for himself in Hong Kong. Inmy view, it would be more realistic to hold that the wife’s dependency would have been reduced to $1,800.00 per month.

12. Accordingly, the respective dependencies of the wife, daughter and son would be:

The wife, [($1,800.00 / $6,200) = 29 %];

The daughter, [($1,900.00 / $6,200) = 30.6 %]; and

The son, [($1,650.00 / $6,200) = 26.6 %].

The Multiplier

13. As observed, the deceased had reasonably good health. He was 38 at his death. He was employed at the petrol station as an attendantand his duty would not have been too arduous or particularly taxing or labour intensive. Although the work was not of a sedentarynature, as he would have to move about the petrol station filling the petrol tanks of cars, I agree that he should be able to workwell into his sixties. Mr Chan submitted that the evidence, which is not in any way controverted, suggests that he might have beenexpected to work until the age of 65. With that, I have no argument.

14. A number of cases were referred to in the closing submissions of counsel. These were:

(a) Wan Dan Nei v Dragages et Travaux Publics and Penta-Ocean Construction Company Limited [2000] 4HKC 116 where the deceased, a project engineer aged 30 had a multiplier of 14. The dependent daughter was aged 3 and a multiplier of 14was also adopted;

(b) Dall v Choy Hing Wai (No. 2) [1999] 1HKC 544, a multiplier of 15 was adopted for the deceased, aged 33 at the time of death;

(c) Leung Mei Kuen, the Administratrix for the estate of Wong Chi Wah v Fung Kam Shing, Chan Kam Yau and Lam Siu Keung HCPI 256 of 2001, one of my decisions, a multiplier of 15 was used for a warehouse clerk aged 30;

(d) Ho Wun Chau & Another v Chan Chuk Mui (formerly t/a Kwong Hing Stone Work Marble Engineering Co.) [1998] HKLRD (Yrdk) 332. A multiplier of 13 was adopted for a child of 5;

(e) Lau Suk Fong v Wong Fat Kwong [1995] HKLY 523, a daughter aged 9 attracted a multiplier of 9.

15. It is submitted in the present circumstances of the case that it would be reasonable to adopt a multiplier of 15. I concur.

16. There is some evidence of the parents’ intention for their children to remain in education for as long as possible. It was submittedthat a multiplier of 13 for the son aged 6 at his father’s death and now 10 should be appropriate.

17. The daughter was 11 at her father’s death. She is now 15. Counsel contends that a reasonable multiplier should be 10 in her case. I agree with the multipliers proffered in submission. Both children seem to be thriving at school.

Pre-trial Loss of Dependency

18. Forty-six months have elapsed. I calculate the loss of dependency for the family as follows:

Widow, ($1,800.00 per month x 46 months) = $82,800.00
Daughter, ($1,900.00 per month x 46 months) = $87,400.00
Son, ($1,650.00 per month x 46 months) = $75,900.00
Total $246,100.00

19. The damages under this head will attract interest at half the judgment rate from the date of death to the date hereof.

Post-trial Loss of Dependency

Widow, $1,800.00 X (15 years’ purchase x 12 months – 46 months) = $241,200.00;
The daughter, $1,900.00 X (10 years’ purchase x 12 months – 46 months) = $140,600.00;
The son, $1,650.00 X (13 years’ purchase x 12 months – 46 months) = $181,500.00.
Total $563,300.00

Loss of Accumulation of Wealth

20. Counsel for the plaintiff undertook a detailed calculation exercise to demonstrate the components of the savings that the deceasedmight well have accumulated had he survived. It is not necessary to embark on such an analysis. I only need refer to Lam Pak Chiu v Tsang Mei Ying [2001] HKLRD 193 where the Court of Final Appeal had issued guidance on the approach to an assessment under this head. A pattern of savings is notan absolute assessment. It is in the nature of any assessment under this head that a court is inevitably driven to look into thefuture and ponder what might or might not have happened but for the accident. The court does not look for proof on the balance ofprobabilities.

21. Extrapolating into the future inevitably leads to speculation. The practice of the courts has often been to adopt a lump sum assessmentapproach to quantifying damages under this head. See, for example, Wong Kit Chung & Others v Wishing Long Hong HCPI349 of 1996 where S Kwan DJ, as she then was, granted a lump sum of $250,000.00 under this head.

22. That the deceased was hard-working and frugal is clearly evident on the papers and in the evidence. At the time of his death, heoperated two bank accounts with credit balances of HK$5,730.00 and RMB14,022.34. He was also the owner of the matrimonial home inChina worth approximately HK$100,000.00. Given his very limited personal outgoings, as he was living practically rent-free withfree meals supplied by his brother, it would have been more probable than not that he would have been able to put aside further savingshad he survived. Being employed in Hong Kong, he would also have been entitled to the benefits of the Mandatory Provident Fund Schemeupon retirement. When the children become independent between about 12 to 16 years hence, his financial responsibility should becorrespondingly decreased and he would then have more money at his disposal.

23. There is clearly, on the evidence, a pattern of saving. In my view, it would not be untoward or wrong in principle to award damagesat $250,000 for loss of accumulation of wealth.

Bereavement

24. This is a claim which normally attracts damages in the sum of $150,000.00 under the Fatal Accidents Ordinance Cap. 22. I award that sum and interest thereon for 46 months at the interest rate pertaining to suitors’ funds as at today’sdate.

Funeral Expenses

25. The widow’s evidence was that $17,000.00 was expended on the internment of the deceased. $12,000.00 of the expenses are supportedby receipt. Madam Pun testified that the balance of $5,000.00 was used for the burial of the deceased’s ashes near their familyhome. The claim of $17,000 is a modest sum and would have included the transportation of the deceased’s remains across the border. I am prepared to allow the full amount. This award of $17,000.00 will carry interest at half the judgment rate from the date ofdeath to the date hereof.

Summary

26. Damages are assessed as follows:

Pre-trial loss of dependency $246,100.00
Post-trial loss of dependency $563,300.00
Loss of accumulation of wealth $250,000.00
Bereavement $150,000.00
Funeral expenses $17,000.00
Total damages $1,226,400.00

The damages referred to carry interests as previously indicated in my ruling.

27. From this sum would have to be deducted a sum of $30,000.00 which the defendant had made available to the widow. The plaintiff willhave the costs of the assessment and certificate for counsel, taxed if not agreed on a common fund basis. It is further orderedthat the damages, when paid in respect of the two dependent children, be paid into court and be invested by the Registrar at hisabsolute discretion, with payment out on a monthly basis of $2,400.00 per month for the daughter and $1,900.00 for the son per month,with liberty to apply.

  (Brian de Souza)
Master, High Court

Mr Louie Chan, instructed by Messrs Ko & Chow, for the Plaintiff

Messrs David Y Y Fung & Co., for the Defendant, absent