Lam Nai Yan and Others v. Lee Shu Choi and Antoher
Read the full judgment text of HCA 915/1978 on BabelCite. This High Court CFI judgment.
1. On 25th April, 1977 two young women were walking together along the eastern pavement of Yun Ping Road, Causeway Bay when an unattended goods vehicle mounted the pavement from behind and knocked them to the ground. One of the victims was killed and the other injured.
Cited by 2 cases
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HCA000915/1978
IN THE SUPREME COURT OF HONG KONG HIGH COURT -----------------
----------------- Coram: Mr. Registrar O'Dea in Chambers. Date of Judgment:16th June, 1978. Mr. Tong of Deacons for Plaintiffs. Mr. Hoosenally of H.A. Hoosenally & Co. for Defendants. ----------------- DECISION ----------------- 1. On 25th April, 1977 two young women were walking together along the eastern pavement of Yun Ping Road, Causeway Bay when an unattended goods vehicle mounted the pavement from behind and knocked them to the ground. One of the victims was killed and the other injured. 2. The 1st plaintiffs in this action are respectively the husband and mother of the deceased and the 2nd plaintiff is the injured person. The 1st and 2nd defendants named are the person last driving the vehicle and its owner. 3. Judgment was entered against both defendants for damages to be assessed on the 3rd May 1978. FIRST PLAINTIFFS 4. At the date of her death the deceased was aged 24 years and was married. There were two sons of the marriage aged 4 and 2 years. The deceased had, prior to her death, worked part-time as a free-lance model although the majority of her time was spent as a mother and housewife caring for her family. Damages are claimed under the Law Amendment and Reform (Consolidation) Ordinance for the benefit of the estate of the deceased and under the Fatal Accidents Ordinance on behalf of her husband, two infant sons and her mother. 5. Prior to her marriage in 1972 the deceased worked as a full-time secretary but after the birth of her first child she resorted to part-time employment with an agency which gave her assignments in the advertising of client's products. This involved her in appearances in television and other forms of commercials. Her husband gave evidence that she would normally be engaged in this work on an average of four hours each month earning a monthly income of $700.00. There were no documents produced to support these figures and as the work was of an irregular nature and there was conflicting evidence given as to the number of assignments given to the deceased in the years immediately prior to her death it is not possible to ascertain with any certainty the average monthly income. Further difficulties arise when determining the amount of the deceased's contribution to the household. The evidence of the deceased's husband was to the effect that he gave his entire salary to the deceased and she managed the day to day running of the household. Some attempt was made to show that because the household expenses exceeded the husband's earnings by about $500 that it would have been necessary for the deceased to have supplemented her husband's contribution from her own earnings up to that amount. I am, however, not convinced on this argument as the figures on which it was based were only approximate. 6. Taking into account all the evidence before me I am prepared to find that the deceased's contribution to the household would have been in the region of $350 per month and I will adopt that figure for this assessment. 7. After the accident the deceased's sons were looked after by her mother who took them into her home and also provided frequent meals for the children's father. This arrangement lasted for a period of 10 months with one short interruption when an amah was employed for two weeks. Since 1st March 1978 the deceased's husband has acquired the services of a live-in amah and the children now reside with him. 8. During the period that the deceased's mother cared for the children and husband she was paid $1,000 per month from which she bought the children's food, clothing and other requirements. Since the 1st March 1978, the date of employment of a full-time amah, the deceased's husband is required to pay her a salary of $1,000 per month which, of course, does not include the cost of the children's food, clothing etc. There can be little dispute that $1,000 per month is a realistic figure which one would expect to pay for a live-in amah and I am prepared to adopt that figure when assessing the future cost of employing a servant to perform the services which the deceased had rendered gratuitously. 9. A further claim for general damages involves the employment of a part-time tutor for the children at a monthly cost of $300.00. It was contended on behalf of the 1st plaintiffs that such a claim should be allowed as the children have been deprived of the guidance and counselling which their mother might otherwise have provided but for the accident. I am not unsympathetic toward such an argument but would prefer to consider this particular claim in conjunction with an overall consideration of whether a sum can be recovered for the loss of the personal attention and care of a wife and mother as distinct from her duties as a housekeeper. 10. There has recently developed an increasing tendency by the Courts to soften the principles applying to the recovery of damages on the death of a wife and mother. In the case of Regan v. Williamson [1976] 1 W.L.R. 305 Watkins J. said at P309A:-
11. This principle was later followed in Mehmet v. Perry [1977] 2 All E.R. 529. That this approach is now finding favour with the Courts is not unnatural as it seems to be a realistic and well-founded head of damages. The real difficulty arises in assessing a monetary sum to compensate the husband and children for the loss of these services. All evidence points to the deceased in this case being a concerned and diligent wife and mother and I propose in the circumstances to award a sum of $450 per month to compensate her husband and children for the loss of her services as distinct from those of a housekeeper. 12. The monthly loss so far awarded for the purpose of assessing general damages totals $1,800. From this amount there will have to be some deduction for the amount saved by the husband in not having to maintain and clothe his wife. It was argued that, in this case no such deduction should be made as that part of the deceased's earnings which was not contributed to the household would have been sufficient to provide her with all necessary clothing and pocket money. The cost of her food is still being expended as a live-in amah is required to be provided with food in addition to her monthly wage. I do accept that the deduction in this case need not be as much as one would normally assess but, clearly, the deceased's needs for clothing and jewellery, social outings and other expenses would exceed the balance of her earnings which she retained. I believe a fair figure would be $200 per month. 13. Having assessed the multiplicand in this case to be $1,600 per month I must now turn to consider the appropriate multiplier. Since both dependent children are very young I see no need in this case to consider each dependant separately. Unlike the case of a wife's claim for the death of a husband the Court still has to take into account the prospects of the husband's remarriage. The husband is presently aged 28 and holds a responsible position with a newspaper which provides him with a reasonably attractive salary. He is, therefore, able to offer a good home and a secure future to a prospective wife. There is also the factor that the deceased may not have been in a position to continue in a similar form of employment to that in which she was engaged prior to her death for an indefinite period. Increasing family commitments as her children grew older and the nature of the employment itself would favour a younger woman. There are also the usual exigencies to be taken into account. In all the circumstances I will adopt a multiplier of 9 and thus calculate total general damages as ($1,600 x 12 x 9) = $172,800. 14. One final matter falls to be decided before the determination of general damages is completed and this relates to a claim by the deceased's mother on the basis that the deceased and her husband contributed $300 per month to her during the course of the marriage. It is clear that the proportion of this amount paid out of the deceased's earnings would not have been great and accordingly this will be taken into account which I later consider the correct apportionment of the damages awarded. 15. Special damages as claimed can, for the sake of convenience, be placed in three categories:-
16. The total costs incurred under the broad description of funeral expenses amount to $4,461. It is unnecessary to go into details of how this amount was incurred except to note that some of the expenditure was on items of rather an emotive nature and I propose to allow a rounded sum of $4,000. The cost of the husband's subsequent weekly visits to the cemetery will not be allowed. 17. As general damages should compensate for amounts actually expended as a result of the accident the fees of $1,000 payable to the deceased's mother, which included the cost of maintaining and clothing the two children, cannot be allowed in full. I would consider that an amount of $300 would have been used to maintain the children and, thus, the additional amount expended by the husband would be only $700 per month. Similarly the sum of $150.00 claimed being the cost of providing food for the amah would have been spent for the deceased had she lived. Otherwise I am prepared to allow all claims under this head. 18. The cost of obtaining the grant of letters of administration as a necessary pre-requisite to commencing this action should be included as an item in the bill of costs. 19. Special damages awarded are as follows:-
20. Damages for loss of expectation of life will be awarded at the current figure of $10,000 and will merge with those awarded under the Fatal Accidents Ordinance. 21. In view of the number of dependants involved some order of apportionment will be necessary. I agree with Mr. Tong, Counsel for the Plaintiffs, when he suggested that the general damages awarded should be apportioned as follows:-
22. The share apportioned to the two infant dependants should be paid into Court and dealt with by the Registrar at his absolute discretion. Interest will be awarded on the special damages at 4% per annum from the date of the accident to the date of hearing of this assessment. Defendants to pay the plaintiffs' costs with a certificate for Counsel. SECOND PLAINTIFF 23. The 2nd plaintiff, who received injuries in the accident, was at the time aged 25 years and was unmarried. As a result of the accident she received the following injuries:-
24. The plaintiff was treated and discharged from Tang Shui Kin Hospital and subsequently she made numerous visits to a bone setter for further treatment. Doctor Wedderburn examined her about three weeks after the accident and again shortly before this hearing. The injuries received were of a minor nature and she now has only some slight discomfort in the left shoulder and occasional pain in the left knee but with physiotherapy treatment this should completely disappear. 25. I am of the view that this plaintiff has not been prepared to undergo all necessary treatment to make her recovery complete. She has rejected the course of physiotherapy recommended by Doctor Wedderburn and appears to have been content to rely on the treatment of the bone setter. 26. The clear impression I gain from the medical reports is that her injuries were not significant and no permanent disabilities should be suffered. There must, of course be some award for pain and suffering but in view of the fact that her discomfort may have been prolonged unnecessarily I consider that a sum of $2,000 is sufficient. I also consider that there should not be any award for future loss of earnings as had she been prepared to seek earlier treatment she would have been fit to resume normal employment some time ago. 27. With regard to special damages I am prepared to allow the sum of $2,500 being the loss incurred during the first two months immediately after the accident. Subsequent losses will also be allowed and I propose to award the sum of $5,000 to cover a period of 8 to 9 months which I consider is reasonable. 28. She will also be entitled to recover the fees incurred for her treatment after discharge from hospital which total $2,490.00 and the cost of bandages being $79.40. 29. Travelling expenses have been claimed which involved taxi fares on all visits to the bone-setter and Dr. Wedderburn. Some of these latter visits did not really require this expense but I will allow the sum of $200 to cover this item. 30. Damage to clothing of $250 has not been disputed and will be allowed. 31. All costs of medical reports and examinations conducted for that purpose should be included as disbursements in the bill of costs. 32. General damages, therefore, total $2,000 and special damages $10,519.40 which latter amount will earn interest on the usual terms. Costs to the 2nd plaintiff with certificate for counsel. 33. Dated this 16th day of June, 1978.
Representation: Mr. Tong of Deacons for Plaintiffs. Mr. Hoosenally of H.A. Hoosenally & Co. for Defendants. |
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