A

B



C



D



E



F



G



H



I



J



K



L



M



N



O



P



Q



R



S



T



U



V
A



B



C



D



E



F



G



H



I



J



K



L



M



N



O



P



Q



R



S



T



U



V
HCPI 636/2010


IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
PERSONAL INJ URIES ACTION NO 636 OF 2010
_________________________


BETWEEN

TSANG SUNG LUI AS DEPENDANT FOR HERSELF
AND ON BEHALF OF OTHER DEPENDANTS OF
RUAN WEN FANG (), DECEASED
Plaintiff
and
KONG KIN CHUNG ()
Defendant
_________________________

Before : Master Leong in Court
Date of Hearing : 16 J uly 2014
Date of Handing Down J udgment : 19 August 2014

__________________________
ASSESSMENT OF DAMAGES
__________________________


1. This is a personal injury claim under Fatal Accident Ordinance
only.


- 2 -


A



B



C



D



E



F



G



H



I



J



K



L



M



N



O



P



Q



R



S



T



U



V
A



B



C



D



E



F



G



H



I



J



K



L



M



N



O



P



Q



R



S



T



U



V

I. Background

2. This is a tragic case. The deceased developed diabetes during
her pregnancy and required regular insulin injections. The defendant was a
Listed Chinese Medical Practitioner who claimed that he could treat diabetes
and further that after taking his medications, the patient would not require
insulin. In reliance of this claim, the deceased (who lived in Australia)
traveled back to Hong Kong to seek treatment.

3. As advised by the defendant, the deceased stopped her insulin
injections. Within 3 days, on 20 J anuary 2006, the deceased went into a
coma and died of diabetic ketoacidosis. She was 37 years of age at the time.

4. The defendant was struck off the list of Listed Chinese Medical
Practitioners as a result.

5. The plaintiff is the mother of the deceased and she is suing as a
dependent for herself and on behalf of the other dependents, namely the
deceaseds husband, Ngo Cam Tai, and son, Philip Ngo (date of birth 26
May 2005).

6. The defendant has been absent in the proceedings all along and
interlocutory judgment has been entered.

II. Loss of Dependency Multiplicand

7. According to the plaintiff, the deceased was a receptionist
working in Guangzhou until she moved to Australia in 1989. She studied
English there and met and married Mr. Ngo in 1990. She found a job in a
- 3 -


A



B



C



D



E



F



G



H



I



J



K



L



M



N



O



P



Q



R



S



T



U



V
A



B



C



D



E



F



G



H



I



J



K



L



M



N



O



P



Q



R



S



T



U



V

meat processing factory and worked until mid 2004 when she was 3 months
pregnant. Her Notice of Assessment of taxable income for the year ending
J une 2004 showed that she was earning AUD1,710 per month.

8. The plaintiff claimed that Mr Ngo was working but he never
seemed to settle in any one job, so his income was only 70-80% of the
deceaseds.

9. In 2001 and 2002, the deceased and Mr Ngo bought a property
in Australia on mortgage.

10. The plaintiff gave evidence that the deceased had been using
her savings when she was out of work and had planned to return to work
when Philip was around 1 year old, and that the plaintiff could then move to
Australia to look after the son. The plaintiff had already obtained a Visa for
indefinite stay in Australia in 2004 and therefore would have been able to do
this.

11. The deceased died when Philip was only 7 months old.

12. In view of the above, I accept that the deceased would likely
have planned to return to work at an early stage otherwise it would be
difficult to sustain a mortgage and expenses of the now bigger family on her
savings (and Mr Ngos more irregular income) alone.

13. The evidence showed that the household expenses was around
AUD1,200 per month before the birth of Philip. I accept the plaintiffs
estimation that, should the deceaseds plan be implemented, the expenses for
the expanded household should be around AUD 1,800 per month, with each
- 4 -


A



B



C



D



E



F



G



H



I



J



K



L



M



N



O



P



Q



R



S



T



U



V
A



B



C



D



E



F



G



H



I



J



K



L



M



N



O



P



Q



R



S



T



U



V

member costing around AUD 450.

14. In view of the difference in income between the deceased and
Mr Ngo, I accept that she would likely contribute about 60% of the
household expenses, or AUD 1,080 in the following proportion: -

(a) 100% of her share =AUD 450
(b) 60% of Philips share =AUD 270
(c) 20% of Mr Ngos share =AUD 90
(d) 60% of the plaintiffs share =AUD 270

15. I also accept that the deceased paid approximately AUD 1,000
as pocket money to the plaintiff per year.

Multiplier

16. I accept that Philip should achieve independence at 18 years.
The plaintiff is applying a multiplier of 15.25 (8.25 as pre-trial and 7 as
post-trial multiplier) for this. I think this is slightly on the high side. The
Chan table (Chan Pak Ting v Chan Chi Kuen and Anor HCPI 235/2011)
does not specifically address loss of dependency claim. However, applying
the principle behind the calculation there, for a discount rate of 2.5% per
annum for 17 years, the multiplier was 13.51. I think this is more reasonable.

17. As for the multiplier applicable for the plaintiffs dependency, I
am of the view that the deceased would not likely be planning for the
plaintiff to live in Australia to look after Philip until he achieved 18 years of
age, whilst being supported by the family income. I think it is reasonable to
assume that the plaintiff would have to look after Philip for no more than 9
- 5 -


A



B



C



D



E



F



G



H



I



J



K



L



M



N



O



P



Q



R



S



T



U



V
A



B



C



D



E



F



G



H



I



J



K



L



M



N



O



P



Q



R



S



T



U



V

years until the son reached 10 years of age. Applying the same principle of
calculation as above, the multiplier should be 12.70 (discount rate of 1% for
9 years).

18. As for the multiplier for the plaintiffs claim for pocket money,
I note that the plaintiff is now 65 years old. The plaintiff again proposed a
multiplier of 15.25, the same as the claimed multiplier for Philips loss of
dependency. I think a more reasonable multiplier is again 13.51.

19. For Mr Ngo, I accept that the deceased would have worked until
65 years old so the multiplier should be 19.80.

Calculation

20. For Philip:

a) Pre-trial loss of dependency
AUD270 x 12 x 8.25 =AUD 26,730

b) Post-trial loss of dependency
AUD 270 x 12 x (13.51-8.25) =AUD 17,042.40

21. For the plaintiff:

a) Pre-trial loss of dependency
AUD ((270 x 12) +1,000) x 8.25 =AUD 34,980


b) Post-trial loss of dependency
- 6 -


A



B



C



D



E



F



G



H



I



J



K



L



M



N



O



P



Q



R



S



T



U



V
A



B



C



D



E



F



G



H



I



J



K



L



M



N



O



P



Q



R



S



T



U



V

AUD ((270 x 12) x (12.70 8.25)) +(1,000 x (13.51 8.25))
=AUD 19,678

22. For Mr Ngo:

a) Pre-trial loss of dependency
AUD 90 x 12 x 8.25 =AUD 8,910

b) Post-trial loss of dependency
AUD 90 x 12 x (19.80 -8.25) =AUD 12,474

III. Bereavemnt

23. I accept the statutory claim of HK$150,000.

IV. Funeral and other expenses

24. I accept the plaintiffs claim of HK$44,760 for funeral expenses,
HK$570 as the deceaseds medical expenses, and AUD 1,500 as costs of
relocation for storage of the deceaseds cinerary run in Australia.

V. Summary

25. I summarise the above awards as follows:



Pre-trial loss of dependency AUD 70,620.00
- 7 -


A



B



C



D



E



F



G



H



I



J



K



L



M



N



O



P



Q



R



S



T



U



V
A



B



C



D



E



F



G



H



I



J



K



L



M



N



O



P



Q



R



S



T



U



V

Post-trial loss of dependency AUD 49,194.40
Bereavement HK$150,000
Funeral and other expenses HK$45,330 +AUD 1,500
Total: AUD 121,314.40 +HK$195,330
(plus interest and cost as below)

26. Interest on pre-trial loss of dependencies, funeral and other
expenses is awarded at half judgment rate from the date of death until
judgment and thereafter at judgment rate until payment.

27. Interest on bereavement is awarded at suitors fund rates from
the date of death until judgment and thereafter at judgment rate until
payment.

28. Interest on PSLA is awarded at 2% from date of service of writ
until judgment and thereafter at judgment rate until payment.

VI. Cost

29. There be an order nisi for the defendant to pay the plaintiffs
costs of this action to be taxed in accordance with High Court scale if not
agreed.


(Harold Leong)
Master of the High Court
Representation:
Mr Simon Wong, instructed by Rebecca V I Ho & Co, for the plaintiff
The defendant acting in person and did not appear