LEE SIK YEE v. LO WING HONG AND ANOTHER

bjbj HCPI 21/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE PERSONAL INJURIES ACTION NO. 21 OF 2006 ____

BETWEEN LEE SIK YEE, the Administratrix of Plaintiff the estate of Kwok Hing Cheung, deceased and LO WING HONG 1st Defendant SUN ALLIANCE AND LONDON 2nd Defendant

INSURANCE PLC ____ Before: Deputy High Court Judge Muttrie in Court Dates of Trial: 28-29 November 2006 Date of Judgment: 18 January 2007 ___

J U D G M E N T ___ This is a fatal accident claim. The deceased died on 16 July 2004 as a result of a road accident. He was knocked down on the pavement, by the 1st defendant s car which went out of control. The plaintiff, Madam Lee Sik Yee, who is the widow of the deceased, claims under the Fatal Accident Ordinance and the Law Amendment Reform and Consolidation Ordinance. Default judgment on liability was entered against the 1st defendant on 7 February 2006. The 2nd defendant is an insurance company for the policy which covered the 1st defendant s vehicles at the time of the accident, and does not dispute liability. This judgment is therefore on quantum only. The 1st defendant was present, but took no active part in the trial. The parties are not far apart on quantum; Mr Ho, counsel for the plaintiff, has made two different calculations to produce figures of $1,439,360 and $1,461,880. Ms Lau, counsel for the 2nd defendant, has calculated a figure of $1,223,820.32. The plaintiff s claims for statutory bereavement of $150,000.00, funeral expenses of $90,363.00 and damaged and lost properties of $3,000.00 are agreed. At issue are the claims for loss of dependency and loss of accumulation of wealth. The deceased and his family The deceased was born on 21 November 1947 and was aged 56 at the time of his death. He left behind the plaintiff, who was born on 20 November

1956; a daughter, Kwok Lo Kwan, born on 5 February 1984 and aged 20 at the time of the accident; a son, Kwok Hon Fan, born on 10 March 1983 and aged 18 at the time of the accident; and the deceased s own mother, Tam Nin Nui, who was aged 88 at the time of the accident. The family all lived together and shared household expenses which are agree at $8,700 per month, i.e. $1,740 each. At the time of his death the deceased was a civil servant earning $19,721 per month. There is no dispute that it is reasonable for the court to adopt this figure as the basis to assess the loss of dependency suffered by the dependents. If the plaintiff had lived to the age of 60, he would have retired and received a lump sum pension gratuity of $675,650, and a monthly pension of $4,020. As it was, his estate received a death gratuity of $594,049.68. At the time of his death the deceased owned the various assets, including a property held in the joint names of himself and the plaintiff in Tai Po, and a property held in his sole name in Zhangmutou in the PRC. The total asset value is estimated at 1,082,296.57. Evidence The plaintiff worked as a casual cleaner and domestic helper at the time of the accident. She says that she did not contribute to the household expenses and the 2nd defendant accepts this. The daughter had started work in about June 2004. She had thereafter paid her mother $1,000 per

month after her first month at work, but this had gone to the mother, personally rather than to the family expenses. If her father had lived, she says, she would have contributed about $1,500 or $2,000 per month to lessen the burden of family expenses. The son was dependent for household expenses plus about $2,500 per month for his education. He is now a second year student at the Chinese University and would have depended on his father for fees and expenses of about $6,533 per month, minus $1,500 he has been making by tuition work since December 2005. Under cross-examination he agreed that he depended on the family for about $5,000 per month now. He will continue to do this work throughout his time as a student. He expects to study for a master s degree, which will require continued study until 2010, then look for work as a secondary teacher or university researcher. He says that he would have contributed $5,000 per month, once he was in work. Pre-trial loss of dependency The plaintiff It is not in dispute that the extent of plaintiff s dependency would be $1,740 per month. From the date of accident to the date of trial is 28 months. The plaintiff s pre-trial loss of dependency is therefore $1,740 x 28 = $48,720. The daughter The daughter said that she would have contributed $1,500 or $2,000 after she started work and did contribute $1,000 to her mother. Her dependency

therefore should be taken as reduced to $240 per month. Her pre-trial loss would be calculated at $240 x 28 = $6,720. The son He entered the Chinese University in about September 2005. Until then his loss would be $1,740 (household expenses) plus $2,500 (education expenses) for 14 months, i.e. $59,630. On entry into the Chinese University the son would have depended on the deceased for education expenses of $6,533 per month, according to the figures in his witness statement. After three months, he would have reduced that figure, by contributing $1,500 himself, to $5,033. There seems to be no dispute that he would still be dependent for the share of the household expenses. So for three months the dependency would be $8,273 x 3 and it would then drop to $6,773. For the remainder of the pre-trial period the figure would ($8,273 x 3) + ($6,773 x 11) = $99,322. The son s total pre-trial loss would therefore be $59,360 + $99,322 = $158,682. The mother She received an extra contribution of $500. Her loss would be $2,240 x 28 = $62,720. The total pre-trial loss of dependency is therefore $266,842. Post-trial loss of dependency On the basis of Government statistics it appears that the average male life expectancy may be regarded as 78 years. The plaintiff could therefore have lived for 18 years after his retirement, say until 2025. Of course the multiplier figure will not be the

same. The plaintiff I accept her evidence that she would have continued to be financially dependent even after her husband s retirement. Mr Ho, for the plaintiff says that the multiplier should be 12 years and Ms Lau for the defendant that it should be 10. I think, given the life expectancy figures, that the higher figure is appropriate. The figure for the plaintiff is therefore $1740 x (144-28) months = $201,840. The daughter She said that she would not be dependent at all after her father retired in November 2007. So her dependency post-trial amounts to a further $240 X 12 = $2880. The son He would cease to be dependent in 2010, i.e. after 6 years. His post-trial dependency figure therefore would be $6,773 x (72-28) = $298,012. The mother It is agreed that the proper multiplier is 3. The post-trial figure is therefore $2,240 x (36-28) = $17,920. The total post-trial figure is therefore $520,652. Loss of Accumulation of Wealth It is difficult to work out with any sort of accuracy what this might be. It is practically impossible to establish a multiplier and a multiplicand. A global award is advisable. See Lam Pak Chiu & Anor v. Tsang Mei Ying & Anor [2001] 1 HKLRD 193, per Bokhary PJ at 207-208. But some consideration of the income and expenditure is necessary, to arrive at the global award. Mr Ho has worked out global figures of $400,000 and $600,000 based on two different

scenarios. The first assumes that the deceased would have lived to age 78, and would have been able to save $2,280 per month once his son graduated and started contributing. The other assumes that the plaintiff would not be financially dependent on him so that he could save $4,020 per month. But in this scenario the plaintiff s dependency claim would be reduced to some extent. Ms Lau suggests a figure of $300,000. She says that any possible savings could be consumed by the plaintiff s living expenses, the mother s medical expenses and the son s expenses at university. At the time of his death the plaintiff was earning $19,721 per month. He had to pay out $8,700 for household expenses plus support his son s education in the sum of $2500. He paid $500 to his mother. He would have had about $8,000 left. He had to pay out $1,607 of that for insurance policies. According to the plaintiff he spent about $2,400 for himself. So he would have about $4,000 left over, after all his expenses were paid. If it be said that the plaintiff did not have a regular pattern of savings, I do not think that can be accepted, because of the assets he had accumulated. He must have had a regular pattern of savings, to do that. He had bought a house in Hong Kong and one in China, and he was buying insurance and contributing to a Government credit fund. He was obviously a frugal man, in the habit of

saving. One naturally wants to save, if one can, in the approach to retirement. It is reasonable to say that he might have saved the $4,000 per month. The insurance payments would also count as savings. That would give savings of $5,600 per month up to retirement in November 2007, of about $5,600 x 40 = $224,000. Mr Li in his calculations allows for a point at which the mother might cease to be dependent. This is difficult to assess. She would have to die, to do that. Her loss of dependency is assessed on a 3-year basis, i.e. less than the time from the death to the notional retirement. Of course, that is only a multiplier figure, based on statistics. As long as she lived, she would need her son s support. After that he might have a further $2,200 or so free per month but no one predict when that might be. On retirement, the deceased would have had a lump sum of $675,650, and a monthly pension of $4,020. Credit must be given for the death gratuity of $594,049.68. He would still have had to support the plaintiff. She, it appears, lost her job in October 2004 and she says that she has not worked since the accident. She does not give her age, but it seems reasonable to assume that, but for the accident, she would have continued to work and might have retired at about the same time as her husband in late 2007. The daughter says that she would have contributed $4,000 to $5,000; say

$4,500, once her father retired. She is obviously a filial daughter and I accept this evidence. So let us assume that he would then have had about $8,500 coming in. Assuming the plaintiff, the daughter and the mother were still living at home, and the son, though at university, would be home some of the time (I have assumed this for the purposes of dependency, and have not taken his share of the household expenses out of the reckoning), there would not be much difference in the household expenses. So there would really not be much left over for savings. However, once the son graduated and found work, in 2010, he would be in a position to contribute. His evidence was that he would contribute about $5,000, because his father had raised and supported him, and after the father retired, he would have to be responsible for part of it . One might assume therefore that after say November 2010, 3 years after retirement, the deceased would have about $13,000 coming in. I think it is not impossible to find, this basis that there could have been savings, from that time of about $2,000 per month. Of course this would not allow for the increasing requirements for medical treatment which come with old age and these would cost money even though deceased and the plaintiff were entitled to free treatment. Further, although the life expectancy is long, one cannot assume that it will be achieved

in every case. It seems to me that, in the circumstances of this case, a global figure of $500,000 is appropriate after giving credit for the death gratuity. Award The award will be as follows: Statutory Bereavement $150,000.00 Pre-trial loss of dependency $266,842.00 Post-trial loss of dependency $520,652.00 Loss of accumulation of wealth $450,000.00 Damaged and lost properties $3,000.00 Funeral expenses $90,363.00 Total $1,480,857.00 Interest This is awarded on the bereavement figure at the suitor s fund rate from the date of the accident to the date of judgment. Pre-trial loss of dependency, damaged and lost properties and funeral expenses will attract interest at half the judgment rate from the date of the accident to the date of judgment. Thereafter of course, the judgment rate will apply on all sums awarded until payment. Costs The plaintiff will have the costs of the action (nisi) to be taxed if not agreed. (G.P. Muttrie) Deputy High Court Judge Mr Simon Ho, instructed by Messrs Or, Ng & Chan, for the Plaintiff Miss Julia Lau, instructed by Messrs T S Tong & Co., for the Defendant The 1st Defendant, in present

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