LEE CHUI SIN AND OTHERS v. YAU WAI YAT AND ANOTHER

bjbj HCA000167/1982 Action No. 167/82 IN THE HIGH COURT OF JUSTICE BETWEEN LEE CHUI SIN and CHAN MEE KAM administratrixes of the estate of CHAN YEUNG, deceased Plaintiffs and YAU WAI YAT 1st Defendant TSUI SUM CHUEN 2nd Defendant _______ Coram : Hon. Liu J. Dates of Hearing : 9th, 10th, 11th, 12th, 13th and 16th April, 1984. Date of Delivery of Judgment : 5th May, 1984. ___________ JUDGMENT ___________ On a Sunday, the 24th August 1980 at about 1.40 in the afternoon, whilst attempting to cross a slip road running parallel to the Cheung Sha Wan Road outside the Hong Kong Spinners Industrial Building, the deceased met with a traffic accident involving a tow-truck driven by the 1st defendant and owned by the 2nd defendant. Agency of the 1st defendant driver is admitted. The deceased sustained various fractures of the skull, brain injury, lacerations and abrasions. The deceased was then 35, in good health. His cause of death was given as fractures of the skull with brain hemorrhage. I will first deal with liability. The 1st defendant driver was not called to give evidence. Only in the course of Mr. Barretto s final submission was the consensus of counsel on two statements of the 1st defendant driver made to the police disclosed. It was an unusual approach, but I am bound by the agreement so reached. The consensus was: The 1st defendant s two written statements were produced and admitted as if the 1st defendant had given evidence, and the court may treat it as any other evidence given at this trial disregarding the fact that the 1st defendant was not made available for cross-examination and The court can criticize the defence case if there should be any lacuna; the court cannot criticize the absence of the 1st defendant as a witness in connection with or with reference to any unexplained discrepancies or contradictions other than criticisms at lacunae (if any) in these two statements of the 1st defendant , but the court can comment that the discrepancies or contradictions, if any, were unexplained. It was a fine Sunday with road surface dry and traffic condition along the slip road light. The slip road in question runs parallel to and forms part of the Cheung Sha Wan Road in that location. Both this slip road and the half of the Cheung Sha Wan Road adjoining it are for east-bound traffic. This half of the Cheung Sha Wan Road accomodates 3-lane traffic. Dividing that stretch of the slip road and the east-bound half of the Cheung Sha Wan Road is a concrete island on which there is a bus-stop diagonally opposite the Hong Kong Spinners Industrial Building. On the date of the accident, vehicles were parked along the pavement of the entire slip road except for the portion outside the Hong Kong Spinners Industrial Building. A tourist coach was parked just before the No Waiting sign on the pavement, and a little further on, a van was parked next to the pavement, thus leaving an empty gap of about two-car spaces opposite the Hong Kong Spinners Industrial Building beyond the said No Waiting sign. An eye-witness, Dr. Kung, was only located in the course of the plaintiffs, case. Dr. Bruges was first called for the purpose of theorizing the speed of the tow-truck which, at the material time, had the eye-witness wrecked vehicle on tow. Dr. Bruges calculation gave a theoretical minimum speed which could propel a projectile with little mass and therefore no air resistance from the assumed point of impact marked glass on the police sketch to the assumed landing and stationary position marked blood , a distance of some 14 metres away. His mathematical calculations yielded a speed of 18.5 m.p.h., but taking other considerations into account, his expert opinion was that the minimum speed of the tow-truck for giving such a propulsion was 20 m.p.h. His formula for such calculation is not dependent on the stopping distance of the tow-truck taken from the assumed point of impact marked glass on the police sketch to the front of the stationary tow-truck. The distance is 11 metres. Dr. Bruges criticized the data given in the Highway Code as being outdated. He further observed that they were only guidelines based on average figures. He maintained that the thinking distance could be shorter depending on the driver and that the overall stopping distance could certainly be reduced by modern mechanical improvements in vehicles. Mr. Tsui, the son of the 2nd defendant who was the garage manager, confirmed that modern motor-vehicles could give a better performance in stopping distance. Using the data in Highway Code as a very general guide, Dr. Bruges opined that the tow-truck could not have travelled at a speed in excess of 30 m.p.h. His conclusion was that the tow-truck was travelling at a minimum of 20 m.p.h. but not exceeding 30 m.p.h. Dr. Bruges was informed during cross-examination that the tow-truck had drum-brakes and he conceded that drum-brakes might possibly not do as well and that drum-brakes probably yielded a longer stopping distance than that given in the Highway Code, but despite all this information, Dr. Bruges did not seek to modify his conclusion. The eye-witness, Dr. Kung also testified. He was the owner of the wrecked vehicle on tow. He was the front-seat passenger in the tow-truck without wearing a safety belt. He told the court that the tow-truck was travelling quite fast . He recognized the possibility of gaining a false impression of fast speed sitting at a higher level as the front passenger of the tow-truck, but having taken that possibility into consideration, he still maintained his impression that the tow-truck was quite fast. Upon being pressed by counsel for the plaintiffs, the doctor gave a speed of 20 - 30 m.p.h. He was cross-examined on his statement to the police made soon after the accident with events fresh in his memory. He explained that he was then under-estimating the speed. Dr. Kung was never offered an opportunity of explaining why he so underestimated. In court, he maintained that the tow-truck was accelerating just before the deceased ran out. He was reminded that in his statement to the police, he gave the distance of 5 feet to 6 feet between the tow-truck and the deceased when he was first seen. Dr. Kung told the court that to be precise the correct distance should be 5 feet to 10 feet. Lastly, the doctor told the police in his statement that the deceased was first seen running out 2 feet in front of the tourist coach, but in court he seemed to give the same distance as 5 feet to 10 feet beyond the front of the tourist coach when the deceased was first sighted. However, immediately thereafter, the doctor agreed without hestitation that the deceased came into contact with the tow-truck at the first marking of glass on the sketch, which measures about 1 feet in front of the tourist coach. Dr. Kung was probably confusing that distance from the front of the tourist coach with the distance between the deceased and the front of the approaching tow-truck when he first came into view. A friend of the deceased, Mr. Kwok, was at the material time travelling in the same direction in a route 44A bus on the upper-deck. He told the court that his bus was travelling in the middle lane in Cheung Sha Wan Road and that the tow-truck was travelling at the same speed as his bus. He heard a braking sound, but his vision was obstructed. The 1st defendant driver gave a speed of about 10 m.p.h. in his first statement. He modified it to a speed of around 16 - 18 m.p.h. in his second statement. This discrepancy was not resolved because of the 1st defendant s absence from this trial as a witness. The plaintiffs were also not afforded the opportunity of ascertaining by cross-examination as to how much more, if at all, the 1st defendant was prepared to concede on his speed. The 1st defendant stated that he had not seen the deceased before impact. Upon impact and hearing the sound of it on the nearside front of the tow-truck, he immediately applied the foot brake. There seemed to be not much thinking time involved as the statements of the 1st defendant suggested a reflex reaction. The 1st defendant thereafter saw an object flying forward in several somersaults from the front of his tow-truck. In his second statement to the police, the 1st defendant driver gave the information that the tow-truck was about a foot from the offside of the tourist coach when it was alongside it. Dr. Kung also told the court that the tow-truck came to a gradual stop. As opposed to the theory of Dr. Bruges that the tow-truck was travelling probably in third gear, and Dr. Bruges explained that even in second gear, the noise generated by the tow-truck would have been shielded by the tourist coach, the 1st defendant driver explained in his statements that he was travelling in second gear after having earlier stopped at the traffic signals, some 150 - 200 feet back. The destination of the garage was given by the son of the 2nd defendant as some 60 metres or 180 feet ahead of the scene of the accident. Great play was made of the data, particularly the stopping distance, given in the Highway Code. Without more evidence from the 1st defendant as to how the tow-truck was actually brought to a stand still, I would not place much reliance on the Highway Code guideline figures in view of Dr. Bruges criticisms, part of which was shared by Mr. Tsui, the son of the 2nd defendant. Dr. Bruges and Mr. Kwok are without doubt men of integrity. Dr. Kung gave somewhat inconsistent information to the police soon after the accident, but he has now had sufficient time to reflect. I find him an impartial witness trying to be as accurate as possible, now that he truly realises the seriousness of these facts in connection with the accident to both parties to this litigation. I accept his court evidence coupled with his explanations. The 1st defendant driver s statements leave much to be explained in view of Dr. Bruges , Dr. Kung s and Mr. Kwok s evidence. These statements were statements given to the police and cannot be said to be wholly unguarded. I find that having stopped at the traffic light behind the scene of the accident and resumed his journey thereafter, the 1st defendant driver accelerated just prior to his collision with the deceased. I further find that he was travelling in third gear as theorized by Dr. Bruges. I also find that the 1st defendant s tow-truck was travelling at the same speed as the route 44A bus in the middle traffic lane of the east-bound half of the Cheung Sha Wan Road. The deceased was thrown into the air, somersaulted a few times. Dr. Kung must be right that the 1st defendant was travelling quite fast, particularly bearing in mind that he had just accelerated. I would put his speed as well over 20 m.p.h. but under 30 m.p.h. as Dr. Bruges advised and Dr. Kung was pressed to estimate. I conclude that the 1st defendant was travelling too fast in the circumstances. I find also that the deceased ran out from about 1 to 2 feet in front of the tourist coach and that he was sighted by Dr. Kung some 5 to 10 feet away sitting in the tow-truck. Lastly, I find that the 1st defendant s tow-truck was one foot away alongside the tourist coach, that he had not noticed the presence of the deceased at all prior to impact and that the 1st defendant, in a more advantageous position than Dr. Kung on his left, should have seen the deceased slightly further away and taken evasive action. In conclusion, the 1st defendant did not keep a proper look out for pedestrians as he should have. We have had no evidence whether the 1st defendant had knowledge of the position of the No Waiting sign in front of the tourist coach which obscured it. The evidence was that the No Waiting sign was masked from the driver of the tow-truck. However, I further find that the 1st defendant driver must have or ought to have seen the bus-stop on the island virtually opposite the Hong Kong Spinners Industrial Building, particularly when it was not in any way obstructed by prospective bus passengers. With the presence of the traffic island and the bus-stop on it and the opening between the parked tourist coach and the van, at least a part of which must have come within the view of the 1st defendant on approaching, the possibility of the danger of people emerging through the gap for the traffic island and bus-stop should be apparent to any reasonable driver. In these circumstances, the 1st defendant driver should have slowed down and sounded his horn instead of accelerating, particularly when he was travelling just about a foot next to the tourist coach. There are no precise measurements for judging if the 1st defendant s tow-truck could have kept a wider berth alongside the tourist coach. But the closer it came to the parked coach, the narrower the driver s angle of vision would be. All the circumstances must be viewed also in conjunction with travelling so close to a parked huge-bodied vehicle, and the 1st defendant was, in my view, driving too fast. On the other hand, the deceased was himself negligent in running out in front of the huge tourist coach, virtually just next to it, without keeping any proper lookout for traffic. Balancing all the circumstances, I would still apportion more blame to the deceased than to the 1st defendant driver, having found them both negligent. I would assess the negligence of the 1st defendant driver as 40% and that of the deceased as 60%. I turn now to quantum. Right from the outset, I should mention that the parties accepted the available surplus test as the proper means of calculating personal expenses in the lost years as in Wong Sai Chuen v. Tam Mei Chun & others.(1) The same yardstick was adopted in the recent case of Harris v. Empress Motors Limited.(2) Both counsel specifically accepted all the principles enunciated in the latter case. According to the former colleague of the deceased, Mr. Chan Siu Hong, PW11, and his former employer, Mr. Wong Yuk Shun, PW13, the deceased was making $3,150 a month. He received an allowance of $500 a month. He had 2 free meals from the factory canteen. He had a 6 months lunar year-end pay for every full lunar year s employment. Mr. Wong had 4 factories in Hong Kong; the other 3 were unconnected with his Essence in Cheung Sha Wan Road. The deceased impressed his former employer, Mr. Wong, virtually from the very inception. He supervised production well, and he managed to meet shipping schedules with which Mr. Wong himself did not expect his factory to be able to cope. Soon after he joined the Essence Cheung Sha Wan factory, he took its business from a loss to profit. When the deceased joined Essence , he did not bring along his own workers or team as it is the usual case, but he managed the factory staff well. It was effortless for Mr. Wong to say that the deceased had exceeded his expectation. According to Mr. Wong, the present factory supervisor is not even half as good as he was. Mr. Wong disclosed that salary increase for the staff was about 10% per year but that with good performance staff, it would be about 12% to 13% a year. Before the deceased s death, Mr. Wong and the master technician, Mr. Chan and the deceased had a discussion with a view to setting up a factory in Macau. Mr. Wong was quite adamant that unless the deceased would accept the managerial post running both the Macau factory and the Hong Kong Essence , he was not to embark on the Macau venture. The deceased was offered the post of manager at about $4,500 to $5,000 a month together with 5% of the profits before tax of both the Macau and Hong Kong factories. The deceased was categorically asked by Mr. Wong as to whether he would agree to accept the responsibility on those terms before he, Mr. Wong, would want to purchase premises in Macau and take out a Macau factory licence. Although Mr. Wong conceded that he had no knowledge of the business and financial quality of the deceased, judging from his past performance, he reckoned that even as an untried manager for both factories, the deceased would have 60% to 70% good prospects of success. After the deceased had agreed to take up the proposed responsibilities, Mr. Wong then decided to implement the scheme. Premises in Macau were finally acquired in August 1980, and the Macau factory began to function in mid 1981. Unfortunately, the deceased met with his accident on the 24th August 1980 outside his factory. Mr. Chan Siu Hung, the master technician, described the deceased as very clever and very able and being capable of supervising both factories. In fact, in cross-examination, Mr. Wong elaborated that at the material time of the discussion with the deceased, it was planned that when the deceased was in Macau, he, Mr. Wong, would he in Hong Kong and when the deceased was in Hong Kong, he, Mr. Wong would be in Macau, and that on that arrangement, the deceased was expected to take up the responsibilities of running the two factories in Hong Kong and Macau. Although Mr. Wong conceded that nowadays one could not have a manager running more than one factory at a time, I have no hesitation to find that the deceased was more than capable of carrying out the responsibilities expected of him by Mr. Wong in this discussion prior to his death. What then have been the factory profits? Mr. Wong conceded that the Inland Revenue Return for the Essence factory for the year of assessment 1981/1982 was initially incorrect. Mr. Wong was driven to embarrassment and admitted that the original incorrect return on which the assessment was made in exhibit was a lower figure worked out by the account clerk in the hope of paying less profit tax. For that year, an additional assessment was subsequently made in exhibit for the Hong Kong Essence factory. It is inconceivable that any business man would not be conservative in filing his tax returns. I cannot accept that any of the Inland Revenue Forms for either the Hong Kong Government or the Macau Government has been inflated by Mr. Wong. Mr. Wong maintained that factory profits for the year of assessment 83/84 was at least 10% more. I set out below a table of factory profits for two years and the deceased s would-be 5% entitlement. Factory Profits & Deceased s 5% Entitlement Year of Assessment 81/82 Annual Assessable Profit 5% thereof Hong Kong Factory : $449,189 ("P20 ) additional $1,071,363 ("P21 ) _________ $1,520,552 $76,027.60 Macau Factory: M$92,000 ("P25 ) M$4,600.00 _________ Total : $80,627.60 ========= Year of Assessment 82/83 Annual Assessable Profit 5% thereof Hong Kong Factory: $1,418,846 ("P23 ) $70,942.30 Macau Factory: M$650,000 ("P26 ) M$32,500.00 _________ Total : $103,442.30 ========== (Note: The disparity between Hong Kong and Macau Currencies as well as different assessment periods are overlooked for averaging the range of annual profits). As for the future earnings of the deceased, I have worked out his supervisor s and manager s entitlements, and thereafter I propose to allow him only an expectation of 10% annual increase after taking into account the element of uncertainty. I would give him a 10% overall increase for 1983 to 1984 but for the remaining period, I would adopt the average fugures of $15,000 per month and $20,000 per month respectively as set out in the data below: Future Monthly Earnings of Deceased I. From death to mid 1981 (1/9/68 - 30/6/81) (10 months) Salary : $3,150/month Allowance : $500/month month s salary of 6 months year-end pay : $1,575/month __________ Total : $5,225/month $5,000/month (say) II. Mid 1981 to End of 1982 lunar year (1/7/81 - 28/3/82) (8 months) Salary : $4,500/month 5% bonus of annual profits ($80,627 12 = $6,718.92/month) $6,718.92/month ____________ Total : $11,218.92/month $11,000/month (say) III. For 1982 - 1983, 12 months (as slightly reduced by the 1982 profits) Salary (with approximately 10% increase) : $5,000/month (say) 5% bonus of annual profits ($103,442.30 12 = $8,620.20 as diluted by the lower 1982 annual profits, say $7,000/month) $7,000/month ___________ Total : $12,000/month IV. For 1983 - 1984, 12 months, at a 10% increase: $13,000/month (say) V. For remaining 126 months out of 168 months purchase, with ($5,000 + $8,620.20) $13,620.20 being the undiluted monthly income for 1982/1983 as a starting point, I would take an average of $15,000/month for 54 months (ranging from about $13,000 to $17,000 at 10% annual increase). For the last 72 months, even with all the uncertainties, in reality he was an industrious man of good managerial material, and there are good prospects for a man of this calibre and ability to excel in our community. I would allow a $20,000/month (ranging from $17,000 to $28,000 at 10% annual increase) for these 72 months, which must also be a fairly conservative estimate in the known circumstances. Even if factory trade should suffer any set-back, there would be little difficult for a man of the quality of the deceased to exact an equivalent income from some other sphere. For a working man with a wife and 3 growing children, the computation of income tax on the personal assessment basis is as follows: Income Tax on Personal Assessment Basis: (A family of five: 2 spouses and 3 children. For ease of calculation, I have ignored the cessation of the children s allowances after 6, 8 and 11 years respectively AND the mother s allowance) Monthly Income Yearly Income Average Rate of Taxation Tax Payable on whole yearly income (1) $5,000 $60,000 0% Nil (2) $11,000 $132,000 7.48% $9,875 (3) $12,000 $144,000 8.94% $12,875 (4) $13,000 $156,000 10.18% $15,875 (5) $15,000 $180,000 12.15% $21r875 (6) $20,000 $240,000 15.36% $36 875 As will be seen later, the deceased s future income for almost the whole pre-trial period of 3 years 8 months i.e. 42 months would attract from 0% to 10.18% and for his future income for the remaining 126 months of the 14 years purchase which I would give, his estate would be taxable at 12.15% to 15.36%. Bearing in mind that most of the pre-trial period of 44 months attracted no or little income tax, the following 54 months (i.e. including the last 2 years in the pre-trial period) 12.15% and only the final period of 72 months 15.36%, a fair average for the whole purchase period of 14 years (168 months) should be in the region of 13%. I will now go to the issue of dependency or the loss of it. The widow s brother, Mr. Li Kwok Fao, PW4, has been shown to be an unreliable and reluctant witness. Many possible causes, such as concealment from his own sister, fear of leakage from any public disclosure of his affairs to creditors or the Inland Revenue, utter irresponsibility or others, could have accounted for his court behaviour, but I must not speculate. The fact remains that he was unwilling and refused to answer questions. His evidence was shifting and he had contradicted himself. He is so unreliable that it would be impossible to draw any adverse inference from his evidence against the widow. As far as the widow is concerned, she began knitting at home and her knitting activities soon developed into some sort of a cottage industry with some financial backing from her father. She was well pressed to and did subsequently take out business registration with herself as president partner in a partnership with her brother. After the birth of her baby, she stopped work although she was frequently briefed on the affairs and fed with information of the partnership by her brother. The partnership business was soon a failure. Before her husband died, she was minded to retire from the partnership but she was advised, rightly or wrongly, that she could not withdraw with the outstanding indebtedness to various creditors. Before the death of her husband, the partnership had little available cash, and she never formally withdrew any money from the partnership business. On very rare occasions, when money was needed, she asked her brother for a few hundred dollars. Even that kind of request was from time to time refused by her brother on account of lack of cash and poor business. After the death of her husband, she has never taken any money nor derived any income from the partnership business. The machinery was destroyed by a factory fire on the 26th September 1982, and any insurance money, if paid, would go to the mortgagee bank. She was arrested on the 23rd September 1983 and taken to the Tai Nam Chung Detention Centre. There was a possibility of the judgment creditor accepting an interim payment of some $2,000, but by the time the $2,000 was raised, the offer was either withdrawn or did not materialize. Hence, she remained in detention for some 50 days. The partnership started again in December 1983, but as the machinery was affected by water or humidity, operation had not yet brought in an income. The widow told this court that the deceased gave her $2,900 a month of which she paid $500 per month for rent to her brother. She was taxed on her alleged household expenditure. But as most housewives do, so she explained, she would cut back on an item or two in case of any shortfall. I do not find any real prevarication in this aspect. She also told the court that her husband remitted money to China to his mother. According to the widow, the deceased was responsible for clothings of the family, and he constantly returned home with gifts, toys, fruit and household goods. Shortly before his death, the deceased replaced an 18 inches colour television for about $1,700. After her husband s death, the widow worked for about 8 months in a year during the last 2 years earning about $2,000 to $3,000 a month. She had no work this month and she had very little in February and March this year. She received $19,000 odd from the Social Welfare Department and $10,000 odd from her late husband s former employer. Recently, her $500 a month rent to her brother has fallen in arrear. She also gave evidence in support of the claim of funeral expenses which I accept as proved. The deceased was a healthy young man of 35 at the time of his death; I would allow a 14 years purchase. At his death, his elder son was nearly 9, second daughter nearly 7 and youngest son nearly 5. The children s welfare and educational opportunities would improve with the deceased s advancement in life. The boys would probably be dependent on the father until they reach at least 21 and the daughter 18. I would give 8 years purchase for the eldest son s remaining 12 years dependency up to his maturity as from the date of death of his late father, 6 years purchase for the daughter s 11 years dependency from the date of death of her late father and 11 years purchase for the youngest son s 16 years dependency from the date of death of his late father. In deciding on a percentage of net dependency under the Fatal Accidents Ordinance, for a family of 5, making no deduction for expenses for joint benefits (as one cannot enjoy half of a television or half of household goods) but taking into consideration the remittance to China for his mother and his annual home trip with presents and essentials, the proper percentage to be deducted for calculating the net family dependency for such a family should be not the usual 20% but a slightly higher figure of 25% of which about 5% would be spent on remittance and his annual China trip. However, in real terms, the deceased s own maintenance expenses were slightly less than the percentage I have so selected. But after the mother s 6 years of purchase, the extra 5% deduction should cease, and thereafter I would use the conventional figure of (25%), 33% and 50% at various stages, whenever applicable. On this basis, I have adopted a decreasing percentage for deduction in calculating the net dependency when the number of dependent members decreased. A slightly higher percentage than one-fifth, say 25% seems to be the proper deduction for the deceased s own maintenance and his expenditure on the mother when all other 4 members of the family were dependants i.e. for a period of 6 years from the accident. One-quarter, say also 25% would seem to be the proper deduction when 3 other members would be dependent. One-third or 33% would seem to be the proper deduction when only 2 other family members would be dependent, and likewise 50% would seem to be the proper deduction when only the widow would be dependent on the deceased. The surviving brothers of the deceased, age 28, 32 and 42 were all farmers. The probability is that the remittance was only for the benefit of the deceased s mother. She claimed that the remittances were quite regular, once every month or every 2 months, but on the average of about $250 a month. She said that the money was remitted to me and all of us used the money . I am not prepare to accept that the brothers of the deceased in China were dependent on him. The mother being now 68 then also farmed in China. She probably would require a subsidy from the deceased because of her age and was, therefore, dependent on him. I am not prepare to accept that the regular monthly remittance came to as high as $250 regularly. It probably fell somewhat below the sum alleged. However, the deceased went home to China once every year and brought with him clothings, food and medicine. Remittance would likely be increased gradually. All in all, I find that including these articles brought home annually and future increases, the mother and she alone was dependent on the deceased to the extent of an average monthly sum of $250. The claiming brothers of the deceased were merely taking advantage of the mother s unselfish generosity to share her maintenance remitted from Hong Kong. I would give the mother just below 6 years purchase i.e. with just 2 more years after this trial. This is a generous allowance, but I must not overlook the mother s present apparent good health. The deceased would probably remit the monthly sums to his mother free of tax. The same would apply to the presents and articles he brought back to China annually. It is, therefore, not necessary for me to deduct any tax from the $17,000 (as calculated below) to which the mother of the deceased, I find, is entitled. The calculation for FAO damages and LARCO damages are more particularly set out as follows: FAO damages: I. Pre-trial loss of dependency for (3 years 8 months) 44 months out of 14 years (168 months ) purchase: (1) 1/9/80 - 30/6/81 (10 months) Family: 75% of 10 months $5,000 = $37,500 Mother: 10 months $250 : $2,500 (2) 1/7/81 - 28/2/82 (8 months) Family: 75% of 8 months $11,000 = $66,000 Mother: 8 months $250 : $2,000 (3) 1/3/82 - 28/2/83 (12 months) Family: 75% of 12 months $12,000 = 108,000 Mother: 12 months $250 : $3,000 (4) 1/3/83 - 30/4/84 (14 months) Family: 75% of 12 months $13,000 = $117,000 75% of 2 months $15,000 $22,500 Mother: 14 months $250 : $3,500 Total pre-trial loss of family dependency : $351,000 Total pre-trial loss of mother s dependency : $11,000 II. Post-trial loss of dependency for the remaining 124 months: (1) Mother @68: 2 years by way of purchase(24 $250) $6,000 (2) Family dependency (full dependency for another 2 years and 4 months i.e. 28 months; dependency of widow and the two sons for a further 2 years i.e. 24 months; dependency for the widow and the younger son for yet another 3 years i.e. 36 months and dependency for the widow alone for the remaining 3 years i.e. 36 months) : (i) 75% of 28 months $15,000 = $315,000 (dependency of all) (ii) Three-quarters or 75% of 24 months $15,000 = $270,000 (dependency of widow and 2 sons) (iii) Two-thirds or 66% of 36 months $20,000 = $475,200 (dependency of widow and youngest son) (iv) half or 50% of 36 months $20,000 = $360,000 __________ $1,420,200 (A) Total loss to Family (with 2 children ceasing successively) for the whole period of 14 years purchase ($351,000 + $1,420,200) : $1,771,200 Less average rate of income tax @13% : $230,256 __________ net total : $1,540,944 $1,500,000 (say) (B) Total loss to mother : $17,000 LARCO damages : (1) Funeral Expenses = $13,464 (2) Loss of Expectation of Life = $15,000 (3) Loss of earnings for the lost years: Multiplier 14 years (168 months) Pre-trial period of 44 months Multiplicand 10 months @ $5,000/month = $50,000 8 months @ $11,000/month = $68,000 12 months @ $12,000/month = $144,000 12 months @ $13,000/month = $156,000 2 months @ $15,000/month = $30,000 Post-trial period of 124 months Multiplicand 52 months $15,000/month = $780,000 72 months $20,000/month = $1,440,000 ________ Total Loss of Future Earnings : $2,688,000 Less Income Tax at average rate of 13% : $349,440 _________ $2,338,560 There are few specific figures available for calculating the available surplus , but it can be reasonably inferred from the number of dependent children at successive stages. Of the 14 years purchase, the daughter would share the family benefits for 6 years, the eldest son 8 years and the youngest son 11 years in their own respective given periods of purchase. The deduction to be made for yielding the available surplus is generally a bigger proportion than the percentage used for calculating dependency . (3) The mother was also a dependant. In the premises, I would deduct 25% for 6 years, 30% for 2 years, 35% for 3 years and 55% for the last 3 years. For easier calculation, I would take the average of 35%. Therefore, only 65% of the lost years claim remains, and 65% of $2,338,560 = $1,520,064. Total LARCO damages ($13,464 + $15,000 + $1,520,064) = $1,548,528 $1,500,000 (say) Finally, calculation of damages can be summed up as follows: Taking into account the widow s dependency for the whole period of the 14 years purchase, I would apportion the FAO damages divided into 10 equal shares by allotting 3 shares thereof to the widow, 2 shares thereof to the surviving youngest son, 2 shares thereof to the surviving eldest son and the remaining 2 shares thereof to the daughter. Therefore, as to FAO damages, the daughter would take ( EMBED Equation.3 $1,500,000) $300,000, the eldest son ( EMBED Equation.3 $1,500,000) $337,500, the youngest son ( EMBED Equation.3 $1,500,000) $375,000 and the widow the balance of ( EMBED Equation.3 $1,500,000) $487,500. The deceased died intestate. Under s.4(3) of the Intestates Estate Ordinance, the widow would be entitled to $25,000 (increased in 1983 to $50,000 and therefore irrelevant) free of death duties and costs at 5% per annum statutory interest from the date of death to judgment and half of the residue. $25,000 together with such statutory interest of $4,583 ($25,000 EMBED Equation.3 EMBED Equation.3 44 months) comes to $29,583 (say, $30,000). On the basis of full liability, half of the residue in the sum of [ ($1,500,000 - $30,000)] $735,000 would also 245,000) $55,000, the surviving eldest son s FAO damages are to be set off by the same $245,000 and reduced to ($337,500 - $245,000) $92,500 and the surviving youngest son s FAO damages are set off also by $245,000 and reduced to ($375,000 - $245,000) $130,000, but the widow s FAO damages are wholly extinguished by her entitlement, on intestacy, to the LARCO damages. Full liability would therefor attract $1,500,000 under LARCO and $294,500 under FAO (i.e. $55,000 + $92,500 + $130,000 + mother s dependency of $17,000). The total comes to $1,794,500. But I find that the deceased was himself 60% to blame and, therefore, only 40% of full liability would be awarded. Damages on full liability as outlined above are $1,794,500, and 40% of that sum is $717,800 which is the sum that I would give judgment for the plaintiffs against both defendants. I would award interest on pecuniary loss sustained by the dependants at 6% per annum for 44 months i.e. from the date of the accident to the date of judgment. Funeral expenses are only $13,464, and no special circumstances have been pleaded except for the receipts. No additional interest is sought, and I would also award 6% per annum on that sum for 44 months. $15,000 for loss of expectation of life is to attract 2% per annum from service of the writ to judgment. The plaintiffs are to have costs against both defendants. (B. Liu) Judge of the High Court Representation: Mr. Nicholas F.F. Pirie (Johnson, Stokes & Master) for plaintiffs. Mr. Ruy Barretto (Woo, Kwan, Lee & Lo) for defendants. (1) Civil Appeal No. 133 of 1981 (2) [1983] 3 A.E.R. 561 (3) See Harris v. Empress Motors Ltd. ibid at p.577 e. PAGE PAGE - - qid` &`#$ `,&FF( ab`r A $37 \!(?71 \`_@tC 121) b%Y2>z(k b%Y2>z(k d``> `,&FF( @Hfnj BP~nb KRsAb\P_1 d``> `,&FF( &! K K2B* 0109 ATN` d``> `,&FF( 17T obIFHeA*P B2sS jcdbR `,&FF( &! K K2B* 0109 ATN` `,&FF( ab`r A $37 \!(?71 Microsoft Equation 3.0 DS Equation Equation.3 Microsoft Equation 3.0 DS Equation Equation.3 Microsoft Equation 3.0 DS Equation Equation.3 Microsoft Equation 3.0 DS Equation Equation.3 Microsoft Equation 3.0 DS Equation Equation.3 Microsoft Equation 3.0 DS Equation Equation.3 HCA000167/1982 Normal Judiciary Hong Kong SAR Microsoft Word 9.0 coleasun HCA000167/1982 Title Microsoft Word Document MSWordDoc Word.Document.8 9!@B