HCAJ000209B/1984
1984, Folio No. 209
IN THE SUPREME COURT OF HONGKONG
ADMIRALTY JURISDICTION
BETWEEN
| HONG KONG MACAO HYDROFOIL CO. LTD | Plaintiffs |
| | |
| and | |
| | |
(1) | NG CHAN WAI and YEUNG YING, co-administrators of the estate of the WU YUK NGAN, deceased and all other-persons claiming to have sustained loss or damage arising out of a collision between the Plaintiffs' ships or vessels "FLYING FLAMINGO" and "FLYING GOLDFINCH" of on 11th day July 1982 | Defendants |
| | |
(2) | LEUNG HO and LAI CHI CHUEN the Administrators of the estate of LAI WONG deceased | |
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Coram: Master Perrior in Court
Dates of Hearing: 16th to 20th October 1989
Date of Decision: 10th November 1989
Date of Delivery of Judgment: 8th December 1989
Parties: Mr. E.W.D. Radcliffe of Messrs. Denton Hall Burgin & Warrens for Charles D. Joy, Chan Tin Shun, Wu Yuk Ngan, Lee Ngan Ching, Choi Chung Fai and Yeung Leung Yam.
Mr. M. Turnbull for Director of Legal Aid for Lam Siu King, Luk Siu Chun and Ho Sau Ying.
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ASSESSMENT OF DANAGES
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1. On the 11th of July 1982 there was a collision between two hydrofoils belonging to the Plaintiff. This resulted in loss of life, injury and damage.
2. The Plaintiff instituted a limitation action against those injured and the personal representatives of those killed in the collision. Ultimately, the limitation action was resolved by the Plaintiff paying the sum of $2,000,000.00 into court for distribution amongst the Defendants. Henceforth, I shall refer to the Defendants as "Claimants". Earlier this year the solicitors for the various Claimants appeared before Mayo J. and the present assessment arises directly as a result of directions he gave as to the apportionment of the monies paid into court.
3. Prior to this assessment the various Claimants filed formal claims on reference to me. It is clear from such claims that the limitation pool will he inadequate to meet all claims in full. Hence, at the conclusion of this assessment, it will be necessary for me to apportion, the claims on a pro rata basis.
4. Thus, it follows, the award to one Claimant has a concomitant effect upon the balance available for distribution to the others. In the light of the conflicting interests of the Claimants, I am drafting this assessment in a somewhat different manner to that usually adopted.
5. I propose to take this course so that each Claimant can not only satisfy himself that his claim has been properly dealt with, but is also in a position to ascertain what was claimed by his co-Claimants, what was allowed and why. By so doing the Claimants will have a complete picture as to how the limitation pool is distributed.
6. Hence, I propose to set out each Claimant's claim in more detail than one would normally consider necessary and subsequent thereto make an award of damages as if there were no limitation pool. When all awards of damages have been assessed the net amount available for distribution will be determined.
7. All awards will he calculated up to the 13th December 1989. The reason for this is simply that. the monies paid into court have been placed in fixed deposit accounts which will mature on that date.
8. Further, I should perhaps mention this stage that at the conclusion of the hearing I ordered that the costs of the Claimants be paid out of the limitation pool prior to the distribution thereof. The said costs have been determined by me after receiving submissions from Messrs. Radcliffe and Turnbull subsequent to the said hearing.
9. And, finally, I must nay tribute to the very significant contribution made at the hearing by Messrs. Radcliffe and Turnbull. If they had adopted an adversarial approach the hearing would have taken many times longer, the costs would have been higher and consequently the amount available for distribution diminished. Instead, whilst never losing sight of their duty to their Individual clients, matters were agreed between them where they could be so agreed and issues narrowed where they could not. However, I should perhaps assure Claimants that every where Messrs. Radcliffe arid Turnbull have reached agreement I have regarded it is being part of my duties in this assessment to carefully consider such agreements to ensure equity between the conflicting Interests of the Claimants.
10. Now I turn to the individual claims.
Charles Douglas Joy
11. Mr. Joy is an American citizen aged 49 at the time of the accident, He is the sole proprietor a travel tour operator.
12. Mr. Joy's injuries are as follows:-
| (i) the neck of the humerus and the head of the humerus in Mr. Joy's right shoulder were broken; |
| (ii) a severely sprained neck and degenerative changes of the cervical spine with fusion of the neural arches C2+3 and C3+4; |
| (iii) "double vision" as a result of a blow out fracture of the left orbital floor. The double vision is likely to be permanent; |
| (iv) bruising and abrasions to his hands, right elbow and right knee and right hip and tenderness at the front lower left cart of his chest. |
Mr. Joy gave evidence that he was hospitalized in Hong Kong for 4 days after the accident having undergone traction, sedation and physiotherapy. When discharged he was required to wear a neck collar for about 2 months and his arm was in a sling for approximately 5 weeks.
13. Upon his return to the United States of America Mr. Joy received treatment from a number of doctors. Immediately upon his return he received physiotherapy and ultra-sound treatment. It is clear from his evidence that he was in consider able discomfort and in November 1982 he underwent surgery involving arthroscopy and closed manipulation of the shoulder. In April 1983 Mr. Joy was advised by his orthopaedic surgeons that nothing more could than he done for his shoulder.
14. Some years later on 2nd March 1988 Mr. Joy underwent further surgery for correction of a severe mal-union of a proximal humeral fracture of the rright shoulder, which was found to have advanced avascular necrosis and a severe Limitation in range of motion.
15. I am satisfied from the medical reports, and from Pr. Joy's evidence, that he is left with a permanent, and uncomfortable, restriction in. the range of motion in his right arm. In essence he cannot raise his right arm above the horizontal and cannot depress it significantly below the vertical. Further, he still suffers from stiffness of the neck and some peripheral double vision from his injured eye.
16. In his initial claim Mr. Joy made mention of the possibility of further surgery, the total cost of which he estimated at US$22,000.00. In the event, and not, surprisingly considering the long and somewhat painful treatment he has had todate, Mr. Joy advised assessment he had abandoned this proposal, because he had been told by his medical advisers that the prospects of the surgery significantly improving his condition are somewhat remote. Instead, with my leave he substituted a claim for US$2,000.00, being the estimated cost of travelling to see his medical advisers in the future, when his, shoulder or, neck requires physiotherapy.
17. Prior to the collision Mr. Joy led, what one may almost call the archetypal Californian lifestyle. In the short he lived an extremely active sporting life. Subsequent to the collision be has had to give up, inter alia, golf, tennis, sailing, swimming, jogging and even deerp-sea and fresh water fishing. These he missed it greatly. He also had to give up working in his garden a loss about which he was somewhat more ambivalent.
18. So far as Mr. Joy's claim for pain suffering and loss of amenities is concerned Mr. Radcliffe referred me to a decision of the Court of Anneal in Lau Che Ping v. Hoi Kong Ironwares Godown Co. Ltd. Civil Appeal No. 12 of 1988. He submitted that Mr. Joy's injuries, subseguent suffering, future prognosis and the catastrophic effect it has had on his social life, are such that the assessment under this head falls within the 'serious category'. Mr. Turnbull did not demur from this view and agreed with Mr. Radcliffe that a figure of $150,000.00 would not be unreasonable. This sum, when taking into account inflationary factors since judgment was delivered in Lau Che Ping in July of last year, places Mr. Joy's claim at the lower end of that 'scale'. I consider that Mr. Radcliffe's submission is well-founded and award Mr. Joy HK$150,000.00 under this head.
19. I now turn to Mr. Joy's claim for loss of earnings. As indicated at the outset of the assessment of Mr. Joy's claims, he is a travel tour operator. At the time of the collision, he was the sole proprietor of Interport Limited which is a somewhat grandiose name for an unincorporated business, with but one employee other than himself.
20. Mr. Joy explained that such pretention is necessary in order to operate in his particular sphere of the travel business. In essence he arranges tailor-made tours for divers special interest groups ranging from beer wholesalers to doctors and dental surgeons.
21. These tours call for considerable personal involvement by Mr. Joy in their planning and execution. They have to be tax efficient as well as enjoyable, which perhaps explains why so many groups of American lawyers visiting, Hong Kong make the Supreme Court part of their itinerary. The above comment is not a flippant aside but this is an example of what the planner of such holidays has to take into account. It is simply not enough for him to be familiar with the most suitable hotels add be able to arrange trips to the most scenic parts of the country his tour will be visiting.
22. In Mr. Joy's business it is essential that he ensures Chat the tour includes visits to the courts and meetings with local lawyers' groups, if the tour party be lawyers, and the like in respect of other professions and associations, I am satisfied from Mr. Joy's evidence that his ability to research such tours, put them together and subsequently market them was very severely curtailed as a result of the injuries be suffered in the collision. In his claim on reference Mr. Joy estimated that from the tours he had planned for the rest of 1982 he would have made a net profit of US$79,716.00 from tours, Which included a Brewery Cruise to England, Tennis Tours to Tahiti and Peru, Nephrology and Dentistry Tours and Wine Study Tours to Australia and New Zealand.
23. In the event, due to his injuries all of these tours had to be cancelled and I accept that Mr. Joy's company continued to encounter difficulties in the two subsequent years.
24. Mr. Joy claimed that he suffered further loss as a direct result of the surgery in March 1988 which led to the cancellation of two tours scheduled in early 1989 from which he estimated a net income of US$60,064.00.
25. Mr. Joy was an impressive witness on these claims and I am satisfied that based upon his past performance most, if not all, of the planned tours would have taken place and that the projections as to both sales and overheads are sustainable.
26. However, it is apparent, on the evidence before me, that such is the nature of the taxation system in the United States of America that, quite legitimately, a sole proprietor such as Mr. Joy can offset a number of what may be regarded elsewhere as personal expenses against his business. This has made it difficult to establish Mr. Joy's precise net income.
27. Similarly, whilst Mr. Joy could speak to the tours which he had planned in the immediate future, before he was injured in the collision, he was unable to say what tours would, as against could, take place in the latter Part of 1983 and in 1984. On the one hand one could say that, given his company's track record, it was bound to have secured some tours from which he would have made a profit, equally the travel industry is notoriously susceptible to political and economic changes. Thus the loss for that period is speculative and almost impossible to qualify with any decree of certainty.
28. In addition to Mr. Joy's income from Interport Limited he also derived a modest income from a consultancy with a company called "Islands In The Sun" which came to an end after the collision. Prior to this Mr. Joy earned about $500 a month from this consultancy. He was confident that he would continue for a significant period of time, but whilst not abandoning his claim under this head he accepted that it should be subsumed in the general claim of loss of income.
29. In the event Mr. Radcliffe submitted that a figure of US$25,000.00 would not be unreasonable for Mr. Joy's loss of earnings. Mr. Turnbull agreed with Mr. Radcliffe's suggestion. From my part I consider that if Mr. Radcliffe's suggested figure erred at all, and I am not saying that it does, it is on the side of caution. Thus I have no hesitation in awarding Mr. Joy the sum of US$25,000.00 under this head.
30. So far as special damages are concerned Mr. Joy claimed medical expenses of US$11,691.00 and HK$20.00. These were vouched and are awarded.
31. Similarly, there is sufficient evidence to support Mr. Joy's claim for other special damages in the sum of US$1,006.00, which I also award.
32. In summary therefore I award Mr. Joy the following:-
| (1) | Pain suffering and loss of amenities | | | HK$150,000.00 |
| (2) | Loss of income | US$25,000.00 x 7.8 = | | HK$195,000.00 |
| (3) | Expenses in connection with future medical treatment | US$2,000.00 x 7.8 = | | HK$15,600.00 |
| (4) | Medical expenses | US$11,691.00 x 7.8 = | + $20.00 = | HK$91,189.80 |
(5) | Other special damages | US$1,006.00 x 7.8 = | | HK$7,846.80 80 |
33. In addition thereto I award interest on the general damages for pain suffering and loss of amenities at 2% per annum from the date of issue of the limitation action and interest on the special damages at 5% per annum from the date of the accident. As it is necessary to calculate the interest I will take the unusual course of projecting it to a date in the future namely the 13th December 1989.
34. I calculate the interest to be $131,222.58.
35. Thus the total award to Mr. Joy is the sum of (1) to (5) plus the said interest i.e. $590,859.18.
Ng Ha as administratrix of Chan Tin Shun deceased
36. At the time of his death Chan Tin Shun was 17 years of ace. He was employed by Mitsui Manufacturing (Hong Kong) Limited as a packer and based on the agreed bundle of documents before me I find that it is unlikely that he would progress much beyond this level of-achievement.
37. At the date of his death he earned $2,607.00 per month. Since 1982 the income of packers has not risen much as one may have expected. His for employers advised the administratrix's solicitors in April of this year that the average income of a packer is currently about $3,900.00 per month including overtime.
38. Mr. Radcliffe for the estate asked me to accept this figure, which I do.
39. Initially Mr. Radcliffe claimed a. multiplier of 18, but after discussion with Mr. Turnbull agreed that it should be reduced to 17.In the light of the deceased youth and. apparent good health prior to his death I agree that a multiplier of 17 is appropriate.
40. Thus, without difficulty the multiplier and multiplicand have been established. I now turn to the free balance. In the claim on reference the administratrix sought a free balance of 50%. The evidence in support of this is somewhat scanty, which is scarcely surprising in the light of his youth and short working experience, but I an satisfied that the deceased contributed the sum of $1,500.00 to the family exchequer. Thus, given the fact that the free balance sought is slightly below the conventional figure, I consider that the assessment of a free balance of 50% is reasonable.
41. The estate claimed the conventional award of $30,000.00 for loss of expectation of life. This is not disputed and I award this figure.
42. Where there was some disagreement between Mr. Radcliffe and Mr. Turnbull was on the question of funeral expenses. These amounted to $25,450.00 which, given the fact that the funeral was in 1982, is somewhat higher than usual.
43. It is always a somewhat delicate matter to determine disputes as to the reasonableness or otherwise of such expenses, for what to ogre person appears to be an over elaborate funeral is to another the very least they can do to mourn the passing of a dearly beloved relative. Not surprisingly perhaps there is little authority on this point. But some assistance as to the principles which should be applied can be found in Hart v. Griffiths-Jones (1948) 2 All E.F. 729. In that case, it was held that where a headstone is of such a size as to amount to a monument the cost of it is irrecoverable.
44. Of the $25,450.00, $7,450.00 was incurred in necessary buddhist ceremonies and occasioned by the fact that the deceased's body was initially taker) to Macau. It is the balance of $18,000.00 which is in dispute.
45. The receipt, page 16 in the agreed bundle, refers to the cost of joss-sticks and oils fee for a shrine. However, from the evidence of Madam Ng it is quite clear that this receipt in fact refers to the shrine itself and that the joss-sticks and oils were merely minor items which may be disregarded for the purpose of this assessment.
46. Mr. Turnbull submitted that in 1985 there were a number of authorities where funeral expenses of $4,000.00 to $11,000.00 were allowed, and that only recently had such expenses been allowed in somewhat similar sums to the claim by the estate in this case.
47. With respect to Mr. Turnhull it is all very well for him to quote from authorities, but without sight of the papers in each individual case they are of limited value. Thus, I propose to apply the test in Hart v. Griffith-Jones. I see little difference between a substantial shrine and a monument and accordingly do not propose to allow the claim of $18,000.00 in full.
48. Unfortunately, there is no evidence before me as to what the cost would have been at that time of a funeral, excluding the buddhist ceremonies which I have already allowed, but including a modest headstone. In default of arty direct evidence on the point I propose to take an average of the funeral expenses referred to in the authorities by Mr. Turnbull and allow the sum of $7,500.00. Thus, in respect of the funeral expenses I award $7,500.00 plus $7,450.00 i.e. $14,950.00.
49. In the light of my previous findings as to the elements to be taken into account in assessing the pre and post assessment losses I will proceed to deal with the same without more ado.
50. The pre-assessment loss is calculated as follows:- ($2,607.00+$3,900.00) ÷ 2 x 84 months x 50%= $136,647.00
51. The post-assessment loss is $3,900.00 x 120 x 50% = $234,000.00
52. In summary therefore the LARCO claim is as follows:-
| (1) | Funeral expenses | $14,950.00 |
| (2) | Loss of expectation of life | $30,000.00 |
| (3) | Pre-assessment loss | $136,647.00 |
| (4) | Post-assessment loss | $234,000.00 |
| TOTAL | $415,597.00 |
53. So far as the FAO claim is concerned the deceased died intestate. His mother and father survive him and are beneficiaries of this estate. Hence the very modest FAO award to them will be subsumed onto the LARCO award.
54. The deceased was also survived by a brother and two sisters. However, they were all older than he and then only Chan Lai Yee could possibly benefit to the extent of $250.00 per month for one year. This being said there is a dearth of evidence to support his claim and accordingly I disallow it.
55. Interest is awarded on the pre-assessment loss and funeral expenses at the rate of 5% per annum from the 11th July 1982 to the 13th December 1989 and on the sum for loss of expectation of life at the rate of 2% from the 17th July 1984 to the 13th December 1989.
56. Thus the total award in this assessment is $415,597.00 plus interest, which I calculate to be $59,545.14, i.e. 8475,142.14.
Lee Ngan Ching
57. Initially, Madam Lee, who was 58 years of age at the time of the collision, did not appear to be seriously injured. She was rendered unconscious in the collision but, apart from a broken thumb, her injuries appeared to be relatively minor.
58. She received conventional treatment for her injured thumb and also consulted a hone-setter for her more general aches and pains.
59. Subsequently Madam Lee has been treated for or complained of:
| (i) floaters in her right eye i.e. "spots" and "clouds" floating her visual field; |
| (ii) her right eyeball being depressed compared with the left; |
| (iii) numbness in her right cheek; |
| (iv) loss of taste in right side of tongue; |
| (v) loss of two teeth and damage to a third |
| (vi) pain in right anterior part of chest for which she has had to take medication constantly. |
60. The medical evidence is that the physical disabilities are likely to be permanent and so far as impairment of the whole man is concerned the assessment only. amounts to 2%.
61. Sadly the most serious disabilities suffered by Madam Lee are of a mental nature.
62. I have before me reports from Dr. Singer and Dr. Green, both of whom are respected psychiatrists in Bong Kong. There is remarkable unanimity between them following their independent examinations of Madam Lee. In essence she suffers from post-traumatic dementia, post-concussional syndrome, post-traumatic stress disorder and depression.
63. I am advised that the depression may improve a little after the settlement of this case, and with further treatment, but that the fundamental psychological disabilities are unlikely to improve. Her permanent incapacity is placed between 75% and 80%.
64. On any basis it is quite clear that Madam Lee has suffered grievously as a result of the injuries she sustained in this collision.
65. Mr. Radcliffe submitted that the psychological disabilities are such as to bring them within the lower rank of the substantial category in Lee Che Ping, when it comes to assessing damages for pain suffering and loss of amenities. Mr. Turnbull concurred with this view and so do I. Accordingly I award $200,000.00 under this head. So far as Madam Lee's claim for special damages is concerned, initially she claimed loss of earnings in the sum of $434,420.00 plus number of minor expenses totalling $10,286.70.
66. The claim for loss of' earnings was fraught with difficulties, so far as Madam Lee is concerned. This arises from the fact that, at the time of the accident, she was the sole proprietress of a refrigeration company and a part-time manager of a cold storage company. The two companies were indirectly connected as well as being relatively new.
67. It is no criticism of Madam Lee or her advisers, but, apart from showing that per monthly salary was $2,800.00 from the cold storage company in 1982, they have been unable to provide me with any other evidence upon which to base my decision.
68. However, having said that, I accept that it could be Postulated that Madam Lee would be in receipt of her salary as high as $6,000 per month if she were to be working today. Postulation is all very well but assessments of damages require a degree of certainty and this is lacking in Madam Lee' s claim. Quite rightly, in my view, Mr. Radcliffe accepted that it would be difficult to pursue her claim in the manner in which it was framed and asked me to agree to an award of $300,000.00, including her claim for minor expenses, which Mr. Turnbull regarded as being a very fair Proposal.
69. In essence Mr. Radcliffe's proposal amounts to asking me to accept that in the 7 years between the time Madam Lee was injured, and rendered unemployable, she would have earned $290,000.00 before retiring of next year. This amounts to an average of approximately $3,5000.00 per month during that period.
70. As she earned $2,800.00 per month from her part-time employment with the cold storage company in 1982, quite apart from such income as she would have derived from her own company, I am quite prepared to accept that she would have earned at least $3,500.00 per month on average during that period of time. This being so I consider that I can quite properly accede to Mr. Radcliffe's submission and award $300,000.00 in toto by way of special damages.
71. In summary therefore I award Madam Lee damages in the sum of $500,000.00, plus interest of 2% per annum in respect of the award for pain suffering and loss of amenities from the 17th July 1984 to 13th December 1989 and at a slightly reduced rate of 4% per annum on the balance, which takes account of the very modest payment in advance inherent in Mr. Radcliffe's compromise suggestion, for the period 11th July 1982 to 13th December 1989.
72. Thus the totality of the award to Madam Lee is $500,000.00 plus interest of $110,772.61 i.e. $610,772.61.
Yeung Leung Yam
73. Mr. Yeung was yet another employee of Mitsui who was injured in the collision. Fortunately for him he suffered only minor injuries amounting to little more than bruising over the face, a fractured nose and some slight post-concussional syndrome. Immediately after the accident he was treated in hospital for 2 days. When I say treated it really amounted to little more than being prescribed antiboitics and kept under observation. Thereafter he was on sick leave for nearly weeks.
74. Presently he claims to suffer from headaches and dizziness, nausea, numbness in the bridge of his nose and that the injuries suffered from the collision agravated a pre existing condition in his left ear.
75. So far as his claim for pain suffering and loss of amenities is concerned Mr. Radcliffe referred me to a number of authorities and suggested that, on the basis of those authorities I should award between $15,000.00 and $20,000.00 by way of damages under this head Mr. Turnbull did not really demur from this submission but felt that even $15,000.00 was perhaps a little generous.
76. I consider, that, given that basically Mr. Yeung suffered from no more than a fractured nose, and some minor residual discomfort, an award $15,000.00 in damages is appropriate under this bead.
77. So far as special damages are concerned, I do not propose to itemize them in this assessment. In the particulars of the claim, as amended, they amount to $11,471.00. They comprise loss of earnings, travelling and medical expenses as well as personal property damaged or lost in the collision. These were agreed between both solicitors and I am satisfied that they have been adequately proved. Thus I award the sum of $11,471.00 byway of special damages.
78. Thus, I award to Mr. Young 826,471.00. In addition thereto he will receive interest on the basis previously established in this assessment in respect of Mr. Joy. I calculate that interest to be $5,883.27 making a total award to Mr. Yeung of $32,624.27.
Ng Chun Wai as personal representative of Wu Yuk Ngan deceased
79. The Plaintiff sues as, personal representative of the estate of his wife on behalf of himself and their three children, who were, dependants at the time of her death. At the date of her death the deceased was 25 years of age.
80. As stated previously, in the context of this overall assessment, I consider that it is necessary to set out the claim on reference in full. It is as follows:-
LAECO CLAIM
I. Special Damages
| (a) Funeral Expenses | $12,400 |
| (b) Belongings Claim | $3, 379 |
| TOTAL : | $15,779 |
| | ======== |
II. Loss of Expectation of Life - $30,000
III. Costs of alternative services incurred by Ng
| -1982-85 : $1,000 per month to sister-in-law for babysitting -Fan $2,000 per month to mother for babysitting - Yi and Hung |
| -1985-89 : About $4,000 per month to mother for looking after all 3 children |
| -present age of the children : |
| Ng Yuen Yi - 14 years (d.o.b. 23.3.75) |
| Ng Yuen Fan - 10 years (d.o.b. 21.2.79) |
| Ng Man Hung - 9 years (d.o.b. 15.6.81) |
| - claim during pre-assessment period: | |
| 82-85 : $3,000 x,3 x 12 = | $108,000 |
| 85-89 : $4,000 x 4 x 12 = | $192,000 |
| TOTAL : | $300,000 |
| | ========= |
IV. Costs of future alternative services
| - it is considered that the eldest daughter has now reached an age when she should be able to look after herself with little outside assistance. |
| - Fan and Hung still require care and attention. |
| - Mr. No's mother is old and will not be able to look after the two grand children. |
| - approximately $3,000 will be required to employ an amah to look after Fan and Hung till they reach the age of 15. |
| - $3,000 x 5 x 12 = $180,000 |
V. Loss of Earnings
| - Multiplier : | - 15 (Pre-assessment : 84 months |
| | Post-assessment :96 months) |
| - Multiplicand : | - part-time sewing worker in glove factory |
| | - earning $1,800 per month before death |
| | - factory has ceased to carry on business |
| | - presume annual increment of 5% |
| | - would be earning around $3,000now (supported by figures supplied by Census & Statistics Department) |
| - Free Balance : | - mutual dependency approach |
| | - husband earning between $3,000 and $4,000 per month at time of the accident |
| | - joint bank account of no real assistance |
| | - presume deceased contributed $1,000 to family pool |
| | - 5 members in the household. Each benefit by $200 |
| | - disregard the share for the benefit of husband because of mutual dependency |
| | $600 |
| | - therefore Free Balance Percentage = ---------------- x 100% = 33% |
| | $1,800 |
| | $1,800 + $3,000 |
| - Pre-assessment Loss : | ------------------ x 84 x 33% = $66,528 |
| | 2 |
| - Post-assessment Loss : | $3,000 x 96 x 33% = $95,040 |
| | |
| | |
| | |
VI. Interest to be assessed
VII. Summary
| Specials | $ 15,779 |
| Loss of Expectation of Life | 30,000 |
| Cost of alternative services incurred | 300,000 |
| Cost of future alternative services | 180,000 |
| Pre-assessment earnings | 66,528 |
| Post-assessment earnings | 95,040 |
| TOTAL: | $687,347 |
| | ======== |
FAO CLAIM
| I. Dependants and appropriate multiplier |
| - Ng Yuen Yi, daugther (R/1975) - 11 |
| - Ng Yuen Fan, daughter (b/1979) - 15 |
| - Ng Man Hung, son (B/1981) - 17 |
| - as in LARGO claim, the daughters and soy) would have benefited $200 per month from deceased.'s contribution |
| - Ng Yuen Yi $200 x 12 x 11 | $26,400 |
| - Ng Yuen Fan $200 x 12 x 15 | $36,000 |
| - Ng Fan Hung $200 x 12 x 17 | $40,800 |
| TOTAL | $103,200 |
| | ======== |
81. The deceased died intestate. Under section 4(3) of the Intestates' Estates Ordinance, all the dependants are beneficiaries of the estate and their FAO award will be subsumed into LARCO award.
82. At the hearing there was no dispute as to the claims for special damages, which comprised funeral expenses of $12,400.00 and loss of belongings at $3,379.00. Similarly the conventional award for loss of expectation of life are of` $30,000.00 was not disputed. Accordingly I award both these sums.
83. So far as the balance of the claim is concerned I was asked to approve a settlement in the following terns namely:-
Free Balance Approach - Estate of Wu Yuk Ngan (All salaries per month)
DATE OF DEATH
| Husband's salary | = $4,000.00- $300.00 (personal expenses) |
| =$3,700.00 |
| Deceased's salary | =$1,800.00- $100.00 (personal expenses) |
| =$1,700.00 |
| Pool | = $ 3,700.00 + $1,700.00 |
| =$5,400.00 |
| $5,400.00÷ 5 | =$1,080.00. |
| Dependency/Free Balance at time of death |
| = $1,700.00 - $1,080.00 |
| = $620.00 (34% of salary) |
DATE OF TRIAL
| Husband's salary | = $10,000.00 - $800.00 (personal expenses) |
| = $9,200.00 |
Deceased's salary
| = $3,000.00 (assume) - $500.00 (personal expenses) | |
| = $2,500.00 | |
| $9,200.00 + $2,500.00. | = $11,700.00 - $2,500.00 (assumed savings) |
| Pool | = $9,200.00 |
| $9,200.00 ÷ 5 = $1,840.00 | |
| Dependency | = $2,500.00 - $1,840.00 |
| = $660.00 |
1. LARCO CLAIM
| $1,800.00 + $3,000.00 |
| ------------------------ = $2,400.00 |
| 2 |
| $2,400.00 x 87.25 x 34% | = $ 71,196.00 | |
| $3,000.00 x 80.75 x 34% | = $ 82,365.00 | |
| $153,561.00 | $153,561.00 |
| Loss of expectation of life | | $30,000.00 |
| Special damages : | (a) funeral expenses | $12,400.00 |
| (b) belongings claim | $3,379.00 |
| | $45,779.00 |
| | ========= |
2. FAO CLAIM
Husband claim :- Extinguished by LARCO award.
Children's claim
$660.00 - 4 dependants (incl father) = $165.00
| Ng Yuen Yi | (aged 7 at time of accident) = $165.00 x12 x 9 = $17,820.00 |
| Ng Yuen Fan | (aged 3 at time of accident) = $165.00 x 12 x 13 = $25,740.00 |
| Ng Man Hung | (aged l at time of accident) = $165.00 x 12 x14 = $27,720.00 |
| $71,280.00 |
| ======== |
3. COST OF CHILD CARE
Past
| 1982 - 85 : $1,500.00 (50%) x 3 x 12 | $54,000.00 |
| 1985 - 49 :$2,000.00 (50%) x 4 x 12 | $96,000.00 |
| $150,000.00 |
| ========= |
Future
| $3,000.00 x 4 x 12. | $144,000.00 |
| $294,000.00 |
| ========= |
* Husband's FAO claim will merge with LARCO claim.
84. From the above it becomes apparent that the multiplier has been reduced from 15 to 14. I consider that this is the correct approach and similarly, on the papers before me and making the minimum of assumptions, which I consider to be reasonable, I accept the figures as stated in the said agreement.
85. Where I did have reservations was on the question of the cost of child care. It will be seen from the claim on reference that the infant children's grandmother took over their care upon the death of their mother and proposes to do so for another d years, i.e. until the youngest child is 13 years of age and presumably capable of looking after himself with the assistance of his elder siblings.
86. My reservation is not so much that a grandmother should help out in such circumstances but that she should charge so much for so doing. Further, if the family was able to cope whilst the deceased worked as a part-time sewing work in a glove factory, I queried whether or not it was necessary for the father to pay for full time assistance upon the tragic death of his wife.
87. Mr. Radcliffe recognised, but did not necessarily accept such reservations. The position he took on behalf of the family was that the deceased's work was merely part-time and that there rarely was no reason why the grandmother should accept less than the market rate. However, he acknowledged that the initial claim had to be discounted, because the grandmother undertook the marketing for the family and that the monies paid to her included the cost of food. This resulted in the 50% reduction in the cost of child care in the revised figures, which were put to me for approval.
88. I have to say that I still consider that the grandmother, admirable lady though she may be, has adopted a somewhat mercenary approach to the problem which faced the family. However, clearly the family needed someone to look after them and if she had not done it I accept that it would have been necessary for the family to employ full time help, the cost of which would he practically the same as the cost of child care which is presently claimed.
89. In short therefore, after some hesitation I find that this is an agreement which I can approve and accordingly do so.
90. In summary therefore I award the following:-
(1) | LARCO claim | $153,561.00 |
| | $45,779.00 |
(2) | Childrens' FAO | $71,280.00 |
(3) | Cost of child care | $294,000.00 |
(4) | Special damages | $15,779.00 |
(5) | Loss of expectation of life | $30,000.00 |
91. Interest on the special damages and loss of expectation of life will run at the rate of 2% per annum and in the manner as hereinbefore provided in the assessment in respect of Chan Tin Sun deceased, interest on the pre trial element of the LARCO award will be at 5% per annum. There will be no other award of interest.
92. Thus the total award in this assessment is (1) to (5) above plus interest which I calculate to be $31,394.22,i.e. $641,793.22.
93. So far as the childrens' claim under the FAO is concerned, the monies due to the children, apportioned between them in the manner provided in the amended claim, will be paid into court to be invested by the Registrar upon the usual terms with the power of advancement for the benefit of the children.
Choi Chung Fai
94. Mr. Choi was a 23 year old factory worker at the time of the collision.
95. He received unpleasant, but not serious, injuries in the accident in that his left clavicle and fibula were . fractured and, in addition thereto, he received lacerations on the face and left knee as well as some bruising of the chest and abdominal walls.
96. After he was injured he spent 6 days in hospital. The lacerations were sutured and hone fractures managed conservatively. It was necessary for him to attend physiotherapy three times a week for a period of 4 months. He was on sick leave from the date of the collision to the 26th August 1982.
97. Presently Mr. Choi complained of discomfort in his left leg after standing for more than one hour, pain in his left shoulder when weather changes or after heavy work and difficulty in lifting heavy weights with his left arm.. He also claims to be suffering from psychological trauma.
98. He was examined by Dr. Horsfall on the 15th of November 1988 who opined that there was no significant permanent physical impairment in Mr. Choi as a result of his injuries. He further stated that there is no real reason why Mr. Choi should have the persistent pain or weakness complained of and that such allegations were not supported by the evidence on physical examination.
99. So far as the question of psychological trauma is concerned, whilst acknowledging that it must have been a very frightening experience for Mr. Choi, particularly as his friend was killed next to him, Dr. Horsfall could not find much, wrong with him. Although the good doctor did not say so in terms implied that Mr. Choi was making rather a meal of the psychological problems he suffered, and from my observation of him over a lengthy period in the witness box I whole heartedly agree with the doctor.
100. Thus, in assessing damages for pain suffering and loss of amenities I do not consider that much weight should be attached to Mr. Choi 's allegations of continuing discomfort and psychological trauma above arid beyond the period of time his injuries took to heal.
101. Mr. Radcliffe clearly recognised this difficulty when he submitted that an award of as little as $35,000.00 would be appropriate under this head. Not surprisingly Mr. Turnbull raised no objection to this submission. I agree with it and accordingly award the sum for $35,000.00 for pain suffering and loss of amenities.
In July 1982 Mr. Choi was earning $4,500.00 a Hence, for the months of July and August he would have $9,000.00. In the event he only received $4,500. 00 and I award him $4,500.00 by way of loss of earnings. I will come to the claim for loss of overtime earnings later in this assessment.
102. Mr. Choi claimed medical expenses of $2,800.00 and damage to his property of $5,186.80 I am satisfied that these claims are well-founded and accordingly make further awards in the sum of $2,800.00 and $5,186.80 in respect of the aforesaid claims.
103. The real issue between the parties in this particular assessment was the question of loss of overtime earnings for the period of September 1982 to July 1984.In the claim on reference Mr. Choi claimed the sum. of $1,300.00 per month for the 23 months.
104. Mr. Choi gave evidence that he was a moulding technician and that overtime was regularly available before the accident and it was similarly available thereafter.
105. In order to earn $1,300.00, per month overtime he had to work a further 3 to 4 hours per day. His basic working day was about 8 hours and I have no doubt that the work was fairly heavy.
106. I do not propose to recite the whole of the evidence. Suffice it to say, as indicated earlier I found Mr. Choi be a rather unimpressive witness who felt far too sorry for himself for far too long. In my judgment, given the nature of his employment, it would have been unreasonable to expect him to undertake 3 to 4 hours, overtime immediately upon his return to work but I see no reason why he should not have gradually worked up to it over a period of about 6 months. Hence, I am prepared to award him 6 months overtime at $1,300.00 per month namely $7,800.00. In summary therefore I award Mr. Choi the following:-
(1) | Pain suffering and loss of amenities | $35,000.00 |
(2) | Loss of earnings, including loss of overtime earnings | $12,300.00 |
(3) | Medical expenses | $2,800.00 |
(4) | Damaged property | $5,186.80 |
107. There will be the award of interest on the same basis as that, awarded to Mr. Joy which I calculate to be $11,320.28.
108. Thus the total award to Mr. Choi is the sum of (1) to (4) plus the said interest i.e. $66,607.28.
Madam Ho Sau Ying
109. Madam Ho was 24 years of age at the time of the collision. Unfortunately she' was severely injured in the collision.
Upon her admission to hospital. she was suffering from the following injuries:-
| (i) shock and post-traumatic amnesia which lasted for about 4 days. |
| (ii) fracture of the shaft of left bumerus. |
| (iii) fracture of the left 5th, 6th and 7th ribs. |
| ( iv) surgical emphysema over the chest and neck. |
| (v) bilateral pneumatothorax. |
| (vi) left radical nerue palsy. |
110. The fracture of the shaft of the left humerus was treated by a plaster slab and a cock-up splint which she had to wear for about 7 months after the injury was sustained.
111. In addition thereto she underwent further treatment for her physical problems. I do not propose to set out the various doctors' reports in extenso but to summarize them as follows:-
112. For 5 to 6 months after her discharge from hospital she underwent physiotherapy twice a week. She also attended Sai Ying Pun Hospital on about 10 occasions for out-patient orthopaedic treatment.
113. On 11th August 1992 she was re-admitted to Queen Mary Hospital for further electrical study on her nerve palsy and remained there until 20th August 1982.
114. In October 1982 the left part of her body developed paralysis and she was admitted to Kwong Wah Hospital where she remained for about 10 days.
115. Sadly, Madam Ho's difficulties did not end with treatment for her physical disabilities for in or about March 1983 she developed symptoms of psychiatric disorder attributable to a localized cerebral atrophy, which I am satisfied, on the evidence before me, was caused by injury suffered in the collision.
116. She attended the Yaumatei Psychiatric Clinic on a number of occasions and was admitted to Castle Peak Hospital as an in-patient for about a week in early 1984. Some 3 weeks after her, release from that hospital she was re-admitted to the Kwai Chung Hospital and. was there detained for about 3 months. Since her release from Kwai Chung Hospital she bas been attending Yaumatei Psychiatric Centre regularly and at least once every two months for treatment.
117. There has been no change over the recent period todate and. her condition is now regarded as stable.
118. The future prognosis is not particularly encouraging. It is clear that if she is to remain in her present mental condition, which is the best she can expect, she must receive daily medication for the rest of her life.
119. So far, as her continuing physical disabilities are concerned these may be summarized as follows:-
| (i) deficit of dorsi; flexion of left wrist: |
| (ii) loss of grip strength in left wrist. |
| (iii) slight, shortening of left arm. |
| (iv) scarring from operation. |
120. Thus it would be seen that physically she has made a reasonably good recovery from the very severe injuries she suffered in the accident. Unlike similar actions relating to scarring injuries with which I have dealt in recent times I very much doubt that, given Madam Ho's mental condition, either the scarring or, indeed, the other continuing physical disabilities cause her much distress:
121. There is ample evidence before me to support Mr. Turnbull's submission that as Madam Ho finds considerable difficulty in running her own very modest homes, there is no realistic likelihood of her ever working again. This contrasted to the position prior to the accident when she not only ran the home but also worked in a garment factory.
122. On the basis of the above submissions Mr. Turnbull went on to submit that Madam Ho's injuries fall within the substantial category outlined in Lau Che Ping. Mr. Radcliffe did not demur from this view and I entirely agree with it.
123. In my judgment her injuries are such as to bring them within the upper part of that category and accordingly, after adding 10% for inflation, I award Madam Ho $240,000.00 for pain suffering and loss of amenities.
Loss of Earnings
124. Immediately prior to the 11th July Madam Ho was employed as a sewing worker in a garment factory. Her average wage was a fraction over $2,500.00 per month. According to her former employers she would currently he earning $4,882.70 per month.
125. Mr. Turnbull framed Madam Ho's claim for loss of earnings as' follows:-
(i) | at $2,500.00 per month from 11th July 1982 to 1.1.1984(20 months x$2,500.00) | $50,000.00 | |
(ii) | at $4,000.00 per month from 1.2.1984 to 1.7.1988 (53 months x$4,000.00) | $212,000.00 | |
(iii) | at $4,882.70 per month from 1.8.1988 to 31.7.1989 (12 months x $4,882.70) | $58,592.40 | $320,592.40 |
Less: | Maternity leave for 2½ months, in early 1984 | | $10,000.00 |
| | Net | $310,592.40 |
Future Loss of Earnings
126. Madam Ho was 24 years old at the time she sustained her injuries and has so far been compensated for her loss of earnings up to the 1st of August of this year, which is almost 7 years to the day after the collision.
127. Mr. Turnbull submitted that a multiplier of 13 would be appropriate. Mr. Radcliffe did not argue very strongly to the contrary, hut in my judgment, it would be too generous to apply a multiplier of 13 to Madam Ho. In my judgment, a multiplier of 10 years would be appropriate, as would a multiplicand of $4,882.70 per month. Thus, under this head I award $585,924.00.
Sundry Special Damages
128. Hospital expenses of $562.00, tonic food and chinese medicine of $1,150.00, bonesetter fees of $3,000.00 and travelling expenses of Madam Ho and her husband of $1,940.00 were claimed. By their very nature not all of these sundry expenses were properly vouched, but they were not disputed by Mr. Radcliffe. They seem to me to be eminently reasonable and accordingly under this head I award $6,652.00.
129. Finally, before dealing with the main issue in, contention between the parties in this action, I turn to a small claim by the Plaintiff for belongings lost during the accident. I do not propose to list these. Suffice it to say that she gave evidence that total cost of these items amounted to $6,884.00. Her evidence on this point was not challenged and accordingly I award that sum to her.
130. The main issue in contention between Messrs. Turnbull and Radcliffe is Madam Ho's husband's claim for loss of earnings.
131. By way of background Madam Ho's husband, Tse Kwok Ming, worked as a painter and decorator in 1982. He had no regular employer, but apparently had no difficulty in finding work which brought him in about $4,000.00 per month. For the 8 months immediately after the accident Mr. Tse did not work at all and even today he only, in effect, works part-time and brings in a very modest income.
132. Mr. Turnbull prepared a projection of Mr. Tse's loss of earnings from the date of the accident to July 1989, which came to a total of $353,200.00. 1 do not consider that any useful purpose would be served by my setting out this projection in detail.
133. Mr. Tse gave evidence at some length and I have to say that he was a rather unimpressive witness. Thus, whilst I have no doubt that the effect on his family life has been catastrophic, initially as a result of his wife physical injuries and subsequently following her developing psychiatric condition, my assessment of him is that he has adopted a thoroughly negative approach to the problems he faced, indeed life in general.
134. As I mention earlier, he was employed as a painter and decorator at the time his wife was injured. It appears that he was quite skilled. in his work particularly so far as painting furniture was concerned.
135. He told me that he had resumed working about a year ago and now worked. "10 odd days nor month", at which he earned a little over a $100.00 per day.
136. He laid the blame for his inability to work longer and/or more days upon the fact that he now lags behind in terms of skill. I accept that fashions in furniture change and a painter skilled in the techniques of lacquer may well have difficulty in using, say, enamel paint. However, when it comes to painting walls I am totally at a loss to appreciate how that can go out of fashion. A wall is a wall and needs very little skill to paint it.
137. So far as the availability of work in the building sector is concerned I consider that I can take judicial notice of the fact that for some time mast there has been a chronic labour shortage in that industry.
138. Even if I were to accept Mr. Tse's assertion that his skills are now totally redundant I do not accept that he could only earn a little over a $100.00 per day at present. I say this because item 24 of the Plaintiff's bundle is a report by the wages and Labour Costs Statistics Section of the Hong Kong Government in which the average daily wages of workers in the building and construction industry This shows that in July 1989 even the most unskilled labour could. earn no less than$250.00 per day.
139. I appreciate the very real difficulties faced by Mr. Tse in looking after his wife and three children, but I consider that he could do more to help himself. In my judgment the crux of the problem is that, having received social welfare benefits for so long, he has lost the habit of going to work on a regular basis and indeed perhaps the desire so to do. This is not, good enough for, in assessing an award to Mr. Tse, I must be satisfied that he has taken all reasonable steps to mitigate his loss.
140. Mr. Tse rather sadly commented that he had no friends' nor relatives in Hong Kong to whom he could turn for help. I accept that this is so however, he does have a relatives in China where the children could have stayed; and did stay, whilst they were young. Similarly, after the accident, there were significant periods of time when his children were in care of the Social Welfare Department. I note that notwithstanding their absences he did not take any employment during those periods when the family pressures on him were eased.
141. Even if the Social Welfare Department had of assisted and his immediate family in China were unwilling to assist, this still leaves Madam Ho's family. It is true that most of them lived in the New Territories The Way Mr. Tse spoke of the New Territories one would think it was somewhere near Outer Mongolia rather than a short ride away on the KCR. In the New Territories Madam Ho has her parents and no less than 8 or 9 brothers and sisters. Mr. Tse wholly failed to satisfy me that the family unit had broken down to such an extent that no help would have been forthcoming from that direction if it had been sought.
142. Instead Mr. Tse determined that be would stay at home and look after his wife and children when they were at home.
143. Whilst I was wholly unimpressed by Mr. Tse as a witness and by his negative and rather apathetic approach to life since his wife was injured, one cannot but sympathize with him for the problems he has faced.
144. Mr. Turnbull has sought to persuade, me that I should adopt a mathematical formula along the lines, of his claim on reference. Mr. Radcliffe also referred to a multiplier/ multiplicand approach, although, it appeared to me, with a singular lack of enthusiasm for the same.
145. In my judgment, on the evidence before me, neither approach is tenable. They both attempt to give the veneer respectability to what at best must be an estimate. In the circumstances the correct approach by the court is to award a lump sure. Not the easiest of tasks given the difficulties of this present case, for one has to do equity between all the Claimants. I have given this particular aspect of the assessment much anxious consideration and in the final analysis have determined. that a lump sum award of $150,000.00 would be appropriate.
In summary therefore I award Madam Ho the following:-
| (1) | Pain suffering and loss of amenities | $240,000.00 |
| (2) | Loss of earnings | $310,592.40 |
| (3) | Future loss of earnings | $585,924.00 |
| (4) | Sundry special damages | $6,652.00 |
| (5) | Loss of belongings | $6,884.00 |
| (6) | Mr. Tse's loss of earnings | $150,000.00 |
| Total | $1,300,052.40 |
| | ============ |
146. There will be an award of interest on the same basis as that in Mr. Joy's assessment save that there will be no award of interest in respect of future loss of earnings or the lump sum award to Mr. Tse.
147. Thus the total of award is $1,300,052.40 plus interest of $146,343.97 i.e. $1,446,396.37.
Luk Siu Chun administratrix of the estate of Luk Siu Sze deceased
148. The Plaintiff's claim is as the administratrix of the estate of her sister and on behalf of her dependants at her death. The dependants are stated to be the deceased's mother and father. The deceased's father is, and as far as I am aware, always has been resident in the People's Republic of China. He is 73 years of age. As at the date of the deceased's death, her, mother was resident in Ecuador where she was born some 69 years ago. Subsequent to the death of her daughter, but not necessarily wholly connected with the same, her mother has returned to Hong Kong where she currently resides.
149. The deceased was born in the People's Republic of China and came to Hong Kong in 1978. She was 22 years of age at the date of her death.
150. From the agreed bundle of documents, and the evidence of the administratrix, she was a very hardworking young, woman. At the date of her death, she was a full time niece-rate worker with a garment manufacturer earning $3,000.00 per month. In addition thereto she undertook part-time work for another garment factory where she earned approximately $700.00 per month.
151. Further, it is not disputed that if she had continued in both occupations until the present time she would be earning a total of $8,440.00 per month. Messrs. Turnbull and Radcliffe agreed that the appropriate multiplier should be 16. For reasons which will become clear later in this assessment the determination of an appropriate multiplier is of less importance in this claim than is usually the case, but, for what it is worth, I agree that, if a multiplier has to he determined, 16 would be the appropriate figure.
152. In her claim on reference the administratrix made the following submissions in respect of the free balance namely:-
| (1) The deceased remitted about $1,000.00 per month to support her father in China. |
| (2) She remitted US$300.00 to US$500.00 at regular intervals and had sent US$800.00 shortly before her death for the support of her mother. |
| (3) At the date of her death the deceased had savings of $21,389.85 plus $3,000.00 cash in hand. |
| (4) The personal living expenses of the deceased including the cost. of housing, food, travelling and entertainment were estimated at not having been greater than 25% of her income. |
153. At first blush, based upon the above, this would appear to be a perfectly straight forward assessment of damages upon the tragic death of so young a woman. Unfortunately the very reverse is the case. First, I turn to $1,000..00 per, month allegedly paid to support her father in China.
154. The administratrix asserted that the deceased paid $2,000.00 per month to her parents before they separated in 1981 and thereafter paid them $1,000.00 per month each. I am quite sure that she made this statement in good faith, but equally I have to view it with some degree of scepticism. If one considers the deceased's earnings prior to 1981, it is difficult to see how she could have paid such a relatively large sum to her parents on a regular basis, paid for her living and entertainment expenses in Hong Kong and saved over $21,000.00 in a relatively short period of time. My reservations, are in no way ameliorated by a list purportedly prepared by the deceased's father, which was admitted in evidence pursuant to a hearsay notice, is headed "family expenses brought back by friends and relatives of Luk Siu Sze". whilst the deceased's father says that the money was for him, there is, no evidence to support this either on the face of the document or from any other source other than that of the deceased's sister which I consider to be of very limited value.
155. It will be noted that at the time of her death the deceased was earning $3,700.00 per month, but according to the deceased's father she remitted approximately $6,000.00 in or about June 1982 and this followed a payment of $2,000.00 at the end of May. Dutiful daugther or not, I consider that her ability to pay these sums was quite beyond her particularly as by that time she bad moved out into a flat of her own and was responsible for a portion of the rental.
156. Secondly, I turn to the remittances to her mother. As her mother is in Hong Kong I had what I initially thought would be the benefit of hearing from her direct. Unfortunately, and I do not wish to sound unkind she was a simply awful witness. It seemed to be cuite beyond her capacity to give a direct answer to a simple question and hence, if anything, her evidence tended to confuse, rather than clarify, the position.
157. All I can say with any degree of certainty is that her evidence confirmed my impression of the deceased, namely that she was a hardworking young woman who was good to her parents, but more than that it is difficult to say. I am I sure that, as with her father, the deceased did make payments to her mother so as to help with her subsistence and that she, the deceased, also paid for her ticket to Ecuador in 1981 at a cost of $15,000.00, as well as making other contributions to her for the repair of the family home in China.
158. If one adds up all the contributions allegedly made by the deceased to her mother they approximately $80,000.00 during the year proceeding her death a proposition which can be totally discounted. I do not consider that the deceased's mother was deliberately seeking to mislead the court but rather that she was a confused old lady with a faulty memory.
159. When asked why she returned to Ecuador she said that the intention was that the deceased would move there as soon as possible to work and to support her.
160. It appears, and I can put it no stronger than this, I that the deceased proposed to move to Ecuador in either late 1982 or early 1983. Her mother seemed to think that it would be easy for her to obtain employment in a garment factory there and claimed that she could earn about the same as she did in Hong Kong. However, she was quite very vague to how much she would earn made the somewhat contradictory assertion that although the cost of living is cheap in Ecuador the wages are high. Finally she said that possibly her daughter would use Ecuador as a stepping stone to enter the United States of America and she could earn a great deal of money in the garment industry. A somewhat optimistic assertion according to what one hears of the current state of U.S. garment industry.
161. In short therefore a finding as to income in 1982 and what it would have today is of no assistance, because she had no intention of staving in Hong Kong. Similarly I cannot say what her income would have been in Ecuador and whether that income would have enabled her to continue to make remittances to her father in China. Although, assuming that she could have found employment, I have no doubt that she would have assisted in the day to day living expenses of her mother.
162. At the conclusion of the deceased's mother's evidence Mr. Turnbull, rightly in my view, abandoned the multiplier/ multiplicand approach and suggested, somewhat tentatively I thought, that perhaps a lump sum payment would be in order.
163. Not unreasonably perhaps Mr. Radcliffe would have none of that. He submitted that if. there was no satisfactory evidence there should be no award arid that as there is uncertainty at every stage of the way arid lack of any pattern of savings I should not make what would in effect be a guess.
164. I am reminded at the words of Master Jones in a recent assessment Wai Kang Kwan the administratrix of the estate of Mai Sad Lai deceased v. Wong Wing Hong and another 1989 No. A1803 where be said:
"However much sympathy the parents evoke, the court is an impartial arbitrator between the parties. It must vigorously, albeit with understanding and humanity, follow established principles and practice in making its award. This is particularly important in assessing damages for death and personal injury, where an element, of speculation is necessarily present. The court must not however speculate beyond such future probabilities as may reasonably be inferred from present facts. The assumptions I am asked to make by Plaintiff's counsel have little foundation in reality and I decline to make an award for accumulation of wealth."
165. I appreciate that aster Jones said this in relation to the relatively new phenomenon of "accumulation of wealth", but his words hold good as a general principle in the present claim.
166. In my judgment there is no certainty, in the light of the deceased's avowed intention to move to Ecuador, as to whether she would be able to continue working, although I accent that she no doubt expected so to do, and if she did, how much she would earn. Similarly, for that reason and because she did not have an established pattern of savings, as well as unexplained excess of expenditure over income, I decline to make a lump sum award of the magnitude Mr. Turnbull was seeking.
167. However, it would have. taken somewhere between a few months and a year before the deceased departed from these shores. I consider that probably, during this time, she would have made some payment to her father and that when she went to Ecuador, as I have previously found, she would have helped to maintain her mother. Hence, I consider that this is an appropriate case for me to award, what I appreciate is little more than a consolatum, namely a lump sum of $30,000.00.
168. There is no claim for funeral expenses and this only loaves outstanding the question of the conventional award for loss of expectation of life which I assess at a further $30,000.00.
169. There will be interest of 2% payable in respect of the award for loss of expectation of life for the period 17th July 1984 to 13th December 1989.
170. Thus the total award is $60,000.00 plus interest of $6,493.15 i.e. $66,493.15.
Lam Siu King
171. Mr. Lam was 42 years of age on the date of the accident.
172. The medical evidence admitted in evidence showed that there is a result of the said accident he was suffering from the following injuries namely:-
| (i) post-traumatic amnesia which lasted for about 8 hours; |
| (ii) fractures of the Odontoid Process of the 2nd cervical vertebra; |
| (iii) linear laceration over scalp of 2 cm long; |
| (iv) damage to the left side of the spinal cord at the |
level of cervical vertebrae 5, 6 and 7.
173. He remained in hospital for approximately 2 months, having undergone traction for 6½ weeks and. was placed in a Minerva plaster cast, which he wore for about 3 months.
174. In addition, be was required to wear an orthopaedic collar after the 30th October 1982 when the Minerva plaster was removed
175. Between November 1982 and January 1983 he underwent physiotherapy 3 times a week followed by orthopaedic treatment at Sai Ying Pun Clinic as and when required.
176. He claims to suffer from the following continuing disabilities:-
| (i) loss of movement of the neck due to neck pain; |
| (ii) loss of light touch and pain sensation in the left index finger and loss of pain sensation in the left middle finger; |
| (iii) loss of grip strength in both arms; |
| (iv) scarring from operation on, the temples; |
| (v) loss of hearing on one high frequency level in the right ear; |
| (vi) slight, partial paralysis of a spastic nature of the left arm; |
| (vii) continued tinnitus. |
177. Over the course of the years since the collision. Mr. Lam has seen a number of doctors. I do not propose to quote from all of their reports, but those of Dr. Engzell in July 1983 and Dr. Hui Yau in July of this year are particularly pertinent.
178. Dr. Engzell reported that there was an insignificant hearing loss and that whilst the tinnitus, which he referred to in an earlier report as being a subjective symptom, was not serious it may be permanent. He opined that the dizziness or balance disorder would probably subside as the central balance system normally is able to compensate for such disorder.
179. When Mr. Lam was seen by Dr. Hui he still complained about tinnitus in both ears, but acknowledged that there had been no further attacks of vertigo. Dr. Hui's examination of both ear drums revealed no abnormality. Also Dr. Hui conducted a pure-tone audiogram and compared the result thereof with the test result in 1983. He could detect no deterioration in Mr. Lam's hearing during the past 6 years.
180. So far as pain suffering and loss of amenities are concerned either Mr. Radcliffe nor Mr. Turnbull could produce any direct authority. Those that they did were of limited value given that the assessments referred to were prior to the decision of the Court of Appeal in Lau Che Ping.
181. In my judgment, whilst I consider that on the balance probabilities Mr. Lam has overstated his continuing disability so far as the hearing level in his right ear, and the continued tinnitus, are concerned, one cannot ignore the fact that he was in hospital for some 2 months after he was injured. The course of treatment must have been both uncomfortable and painful, and there has been some continuing disability, the most serious of which is the loss of movement in his neck due to neck pain. Hence, whilst I find that the Plaintiff's injuries fall short of the serious category in Lau Che Ping, I do not consider they fall as far short as Mr. Radcliffe has sought to persuade me. In my judgment an appropriate award under this head is the sum of $90,000.00 and I so find.
Loss of Earnings
182. After Mr. Lam was discharged from hospital he did not obtain employment until November 1984, when he secured the job with Hong Kong Guards, as a night-watchman, at $1,300.00 per month.
183. He remained in that job until May 1985 when he left that job of his own volition. Subseguently he was unemployed for a further 5 months until November 1985 when be obtained employment as a packer with Evergo. His salary with Evergo was $2,000.00 per month.
184. He remained with that company until he moved to the Oriental Daily News, where he is today, as a proof-reader. Initially his salary was $3,000.00 per month. But this increased to $3,400.00 per month in 1987, $3,700.00 per month in 1988 and $4,000.00 per month today. He said that the job suited him, because it is of the nature which enables him to accommodate his residual physical disabilities.
185. Prior to the accident Mr. Lam was employed as a, stevedore at $2,800.00 per month. He considered that if he had not met with the accident be believes that he would now be a delivery or decoration worker and would earn $6,000.00 to, $7,000.00 per month. He based this upon his assertion that even as a miscellaneous worker, by which I assume he meant a labourer, he could earn between $240.00 and $,280.00 per day. It will be recalled that in an earlier assessment in this matter the salary scales of such workers were referred to and it would seem from those that this is a fair assertion.
186. Based on Mr. Lam's testimony and the medical reports I consider that it is entirely reasonable that he did not return to his previous employment as a stevedore. It would have been impossible for him to move the sort of weights required in that occupation.
187. Thus, it is clear that Mr. Lam has suffered loss of earnings as a result of his injuries.
188. The issue I have to resolve is not whether he suffered such loss of earnings, but whether he actively sought to mitigate his loss.
189. All he had to say about the nearly 2½ years unemployment after his discharge from hospital was that he "convalesced for a long time" and "did not think that he was fit for work at that time". This contrasts considerably with the report of Dr. Wedderburn, dated 28th October 1983, in which the good doctor, whilst acknowledging that Mr. Lam was probably unfit for work in the construction industry, considered that be would be fit for many other types of light work.
190. I have had the advantage of observing the demeanour of Mr. Lam in the witness box over a significant period of time. On the basis of my observations and from a consideration of his evidence, I do not consider that he sought to mitigate his loss to the extent of seeking employment when he was fit enough so to do.
191. It is difficult to ascertain precisely when he could have taken up other work, but if he were in any doubt as to his fitness to work before he saw Dr. Wedderburn he should have been in no doubt thereafter. Thus I consider that he should rave started, work again at the beginning of November 1983.
192. Hence I will award him loss of earnings at the rate of $2,800.00 per month from the 11th July 1982 to 1st November 1983. Thereafter I will allow him nothing until he commenced working for Hong Kong Guards at the beginning of December 1984. For the 6 months he worked at Hong Kong Guards he claimed the difference between his salary with them and the salary he received in 1982 as a stevedore, i.e. $9,000.00 in all. This seems to me a very conservative way of estimating his partial loss of earnings and I award that sum.
193. Between May 1985 and October 1985 he was unemployed. He claims the full loss of earnings for that period at. the rate of $2,800.00 per month.
194. He gave a rather specious reason for leaving his job, when clearly the simple fact of the matter was that he did not particularly like it and left to find alternative employment. Unfortunately I am far from satisfied that his desire to change employment was matched by his endeavour to find alternative employment. Thus I will only allow him half that period i.e. 21 months, which, at $2,800.00 per month, amounts to $7,000.00.
195. As mentioned earlier, in November 1985 he began to work at Evergo where he remained until he joined the Oriental Daily News in October 1986. For that period again he claims the difference between what he actually earned and what he was earning at the date of the accident. In my judgment he was probably entitled to more but I am not prepared to unilaterally increase the sum claimed and accordingly I award him $9,600.00
196. Thereafter he claimed various sums representing the difference between what he actually carried and $4,500.00, which in his claim on reference he said he would be earning as e stevedore had he not mot with the accident. It is all very well for Mr. Lam to recite this in his claim on reference, but that does not amount to evidence.
197. When he gave evidence he made no mention of the rates of pay of stevedores over the years' subsequent to his accident. I presume that these rates of pay increased by modest amount annually, in very much the same way as his salary with the Oriental Daily News has done.
198. However, I am riot prepared to make an award on the basis of presumptions. It is for a Claimant to prove his loss on the balance of probabilities. In my judgment, after Mr. Lam joined Oriental Daily Nows he has failed to do so and I make no further award under this head.
199. In summary therefore I award loss of earnings in the sum of $67,935.00.
Loss of Future Earning Capacity
200. I accent that Mr. Lam's neck injuries in particular may well disadvantage him on the labour market should he lose his present job. Mr. Turnbull submitted that an appropriate award under this head would be $30,000.00. Mr. Radcliffe did not demur and I agree. Accordingly I award Mr. Lam $30,000.00 for loss of future earning capacity.
201. There were several additional minor claims, which were not disputed by Mr. Radcliffe. I can summarize them as follows namely:-
(1) | Hospital expenses | $640.00 |
(2) | Tonic food and nourishment | $500.00 |
(3) | Mr. Lam's travelling expenses | $530.00 |
(4) | Neck collar | $54.00 |
(5) | Belongings lost/ruined in the accident | $3,340.00 |
202. They are accented by me and accordingly are awarded to Mr. Lam.
203. This only leaves one minor head of claim namely one of $330.00 for visits by Hr. Lam's relatives to the hospital. whilst I have no doubt that he was visited by his relatives and there was nothing, other than that, to substantiate the claim. Mr. Turnbull did not seriously pursue it and accordingly I make no award thereunder.
204. In summary therefore I award Mr. Lam:-
(1) | Pain suffering and loss of amenities | $90,000.00 |
(2) | Loss of earnings | $67,935.00 |
(3) | Loss of future earning capacity | $30,000.00. |
(4) | Other minor special damages | $5,064.00 |
| Total | $192,999.00 |
| | ======== |
205. There will be the usual award of interest as in Joy's assessment, save for the award in respect of loss of future earning capacity in respect of which there is no award, which I calculate to be $36,848.36. Thus the total award to Mr. Lam is $229,848.36.
Generally
206. The sum of $2,000,000.00 was paid into court. The Claimants will be pleased to. know that by virtue of the sound investment policy adopted by the court this sum has increased to $2,214,439.48. It will be available for distribution on the 13th December 1989 when various deposit accounts mature.
207. From this sum will he deducted $654,945.25 in respect of the costs as taxed by me leaving $1,559,494.23 available for distribution.
208. The assessed totality of the various claims is $4,160,536.58.
209. Hence each Defendant will receive a percentage of their individual awards calculated by dividing the amount available for distribution by the total amount awarded under this assessment.
210. Thus in final summary, the awards under this claim are as follows:-
(1) Charles Douglas Joy | $ ¢ 221,471.79 |
| (2) Ng Ha as administratrix of Chan Tin Shun deceased | 178,097.56 |
| (3) Lee Ngan Ching | 228;935.94 |
| (4)Yeung Leung Yam | 12, 228.56 |
| (5) Mg Churl Wai as personal representative of Wu Yuk Ngan deceased | 240,563.40 |
| (6) Choi Churl Fai | 24,966.41 |
| (7) Madam Ho Sau Ying | 542,152.86 |
| (8) Luk Siu administratrix of the estate of Luk Siu Sze deceased | 24,923.63 |
| (9) Lam Siu King | 86,154.08 |
| TOTAL | $1,559,494.23 |
| ============ |
211. On the 13th December 1989 the monies due to each Claimant will be paid into an individual interest bearing account for a period of one month.
212. The purpose of this direction is to provide for the situation where one or more of the Claimants anneals. If such appeal, or appeals, is successful the increased award to the appellant will have to be matched by a corresponding reduction in the awards to the other Claimants. Hence, if the Court distributes the awards on the 13th December, and the fund is disbursed here and overseas, it may prove to b impossible for a successful appellant to reap the rewards of that success.
213. Thus, whilst I trust that this assessment will bring to a conclusion this very protracted action I will take the unusual step of granting liberty to apply. This is to enable the claimants' legal advisers to seek appropriate directions in the event of an appeal.
| (C. J. Perrior) |
| Senior Master |
Representation:
Mr. E.W.D. Radcliffe of Messrs. Denton Hall Burgin & Warrens for Charles D. Joy, Chan Tin Shun, Wu Yuk Ngan, Lee Ngan Ching, Choi Chung Fai and Yeung Leung Yam.
Mr. M. Turnbull for Director of Legal Aid for Lam Siu King, Luk Siu Chun and Ho Sau Ying.