Ho Lai-ping and Another v. Chiang Ying-cheng and Another

CACV000027/1979

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Coram: Huggins, J.A., Cons and Yang, JJ.

Date of Judgment: 30 November 1979

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JUDGMENT

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Huggins, J.A.:

1. This is an appeal against an assessment by a registrar of damages under the Fatal Accidents Ordinance. The Plaintiffs sued in respect of themselves and a number of other dependants.

2. The learned Registrar first made an assessment in respect of the widow and child of the deceased and then a separate assessment in respect of the parents and brothers and sisters of the Deceased. He took a multiplier of six in respect of the parents, brothers and sisters and of thirteen in respect of the others. There was in fact no mention of the multipliers in the notice of appeal. It was not sought to challenge the multiplier in respect of the widow and the child, but it was sought to challenge the multiplier in respect of the other part of the family. We say only that we do not think that even if it had been open on the notice of appeal to challenge this multiplier that we would have interfered, bearing in mind that one of the dependants concerned was a mentally retarded sister who would have required attention for a considerable period of time.

3. It was, as I understood it, suggested that it was for the wife to establish the ability of the husband to pay the amount of money which was claimed as the dependency. What was sought to be done here was to adduce evidence of the actual payments. In my view the ability of the husband to pay would be relevant only if it were established that the evidence of alleged dependency could not be true. It was, I think, suggested that the businesses run by the Deceased would not support the overall dependency of all these members of the family. I do not accept that the evidence goes that far. The learned Registrar accepted that the payments upon which he based his assessment had in fact been made, and, if he accepted that evidence, and was entitled to accept that evidence, then I do not think it has been shown that he must have been wrong.

4. In respect of the widow, he held that a figure of $1,700 a month was an appropriate figure for the dependency. It has been argued that that was wrong and that the figure should have been $1,000 at the most. This was, first of all, on the basis that the husband could not have afforded, on the evidence, to pay more. That I have already dealt with: I do not think the evidence does make that impossible.

5. Secondly, it is said that the widow has exaggerated and that she was not receiving in fact more than $1,000 a month: one of the items which is complained of is an item of air fares from Hong Kong to Taiwan in respect of herself and of the child, a child which was born some seven months before the death of the Deceased. For my part, I would not upset the finding of the learned Registrar in respect of these air fares.

6. Thirdly, there was some argument as to exactly what was the evidence relating to the cost of food. The record reads: "In 1973 food cost about $210 at least per month for myself and my daughter" and then later "At present food costs $300 per person per month". It was questioned whether the $210 was for each or for both. It is significant, I think, (as Mr. Tong has argued) that throughout the judgment reference seems to be made to costs per person where they can be separated, and, for my part, I would read this as an indication that the food cost was $420 for the two of them.

7. We have taken the items which the learned Registrar took. We have looked at the evidence and, as it seems to me, the evidence shows that the dependency at the time of death was $1,303 a month and not, as the learned Registrar indicated, $1,600 a month. His finding cannot, therefore, be supported. The child is, of course, now older and there has been inflation. The learned Registrar took a final figure at the date of trial for the dependency at $1,700 a month. He assumed, and I think we must assume, that money would be available to pay more than was actually paid before, although the nature of these businesses run by the Deceased was somewhat dubious. We have to add to the dependency at the time of death for inflation. We have to recognize that the cost of travel for the child would increase with age and that the child would, as has been given in evidence, subsequently incur school fees and the cost of books. So, although I come to the result by a different means, I conclude that the figure of $1,700 upon which the learned Registrar based his assessment in respect of the widow and child was not unreasonably high, and it is even possible to say that, allowing for inflation at the rate of possibly 7½% for the first part and 10% for the latter part of the period, it could even be too low, but there is no notice to increase and I accept that that was a correct assessment.

8. What has caused all of us trouble was the award in respect of the parents and the brothers and sisters. The learned Registrar took a dependency of $1,500 a month and he arrived at the figure of $108,000. He disbelieved the evidence of the mother in respect of the figures here and came to the conclusion that although he believed that there was some dependency he was unable to say exactly how much. In my view that is not enough: it is essential for the Plaintiffs to establish the degree of dependency or else to be satisfied with a merely nominal sum. I would therefore allow the appeal to the extent of altering the award in respect of the parents and the brothers and sisters. I calculate on the basis of $50 a month for six years, which comes to $3,600. That means a reduction in the overall damages of $104,400. It is also accepted, and I think this is right, that there should have been no award of interest upon the figure of $146,200 which was awarded in respect of the widow and the child, and I would quash that part of the order.

Cons, J.:

9. I agree. I think it is unfortunate that the arguments which have been so forcefully put to us today were not more clearly advanced at the hearing. If they had been, I feel sure we would have had the benefit of more detailed comments from the Registrar upon these matters. They would have been of some assistance to us today. But, having the advantage of discussing the figures with my colleagues, I have also come to the conclusion that in the end the overall amount in respect of the widow and child was justified. I see no justification for the award to the mother and father and other children upon the evidence that was adduced except, as my Lord President has proposed, for a nominal award. I agree with that order. It has the result of reducing the overall amount by $104,400. The award of interest on the $146,200 should be set aside.

Yang, J.:

10. I also agree. I have thought at one point of time that I would be constrained to face up to the misfortune of having to disagree with my two learned brethren. It was thus after the most anxious deliberation, and not without some hesitation, that I have eventually arrived at the same conclusion for the reasons already given. I was hesitant because I had thought that there did not appear to be any evidence to support the Registrar's finding as to the extent of the Plaintiffs' dependency and that of the child. I did not think at one point that the extent of the dependency to be anything more than $1,000 per month at the most. But, on reflection, I am now of the view that there was just sufficient evidence, coming, as it did, from no one other than the widow, upon which the Registrar could have based his finding.

11. Secondly, I have doubted the validity of the argument advanced by Mr. Ronny Tong that in 1973 the food bill was $210 per month per person. But on reflection it would appear that the widow, in giving her evidence, at that point of the proceedings, was in fact referring to expenditure per person, vide her reference to the food bill in 1979 and the air fares in 1973 and 1979.

30th November 1979.

Representation:

Rodway (Johnson, Stokes & Master) for Appellant.

R. Tong (Philip K.H. Wong & Co.) for Respondent.