So Mo-ching and Others v. Kwok Ping-wah and Another
Read the full judgment text of HCA 994/1976 on BabelCite. This High Court CFI judgment.
1. Interlocutory judgment was entered against the two defendants on the 27th September, 1976 resulting in this assessment. The 1st plaintiff was aged 17 at the time of the subject accident which occurred on Lantau Island on 22nd July, 1973. She was travelling in a public omnibus with her mother Chan Hing Yee, her father So Hon-wah, her maternal grandmother Au Luen Hing, her younger sister So Mo Kit, and also her younger brother So Ka Cheung. The bus, which was owned by the 2nd defendant and driv
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HCA000994/1976
IN THE SUPREME COURT OF HONG KONG HIGH COURT -----------------
----------------- Coram: Mr. Registrar Stapp in Chambers. Date of Judgment: 26th April, 1977. Mr. T.L. von Pokorny of the Legal Aid Department for Plaintiff Mr. Kotewall instructed by Messrs. Johnson, Stokes & Master for both Defendants. ----------------- DECISION ----------------- 1. Interlocutory judgment was entered against the two defendants on the 27th September, 1976 resulting in this assessment. The 1st plaintiff was aged 17 at the time of the subject accident which occurred on Lantau Island on 22nd July, 1973. She was travelling in a public omnibus with her mother Chan Hing Yee, her father So Hon-wah, her maternal grandmother Au Luen Hing, her younger sister So Mo Kit, and also her younger brother So Ka Cheung. The bus, which was owned by the 2nd defendant and driven by the 1st defendant, collided with a cliff face and then rebounded across the road and plunged down an escarpment for a distance of about 320 feet. The 1st plaintiff's mother, father, maternal grandmother and younger sister died as a result of the accident, whilst the 1st plaintiff and her younger brother So Ka Cheung survived, and, of course, suffered personal injuries. I understand that the latter's claim concerning personal injuries has already been finalised. The 1st plaintiff now seeks, inter alia, damages for her personal injuries which included the following:-
2. She was hospitalized from the 22nd July, 1973 until the 29th July, 1973, during which time she received x-ray examination, surgical toilet and suturing of the wounds. 3. Dr. John Hunter, a neuro-surgeon, first examined the 1st plaintiff on the 3rd September, 1974. She described to him in detail the traumatic experience of the bus accident. She also told him that on return from hospital she had backache and headache. Her right eye was swollen for some time and her various wounds were very slow to heal. She remained at home until September, 1973, and had to look after herself and her brother. In addition, she had to assist her father's mother who was quite old. During that time So Mo Ching experienced difficulty in sleeping and an irregular menstrual cycle. She was then suffering from mid and low back pain, disfigurement from scars, sleeping problems, absent-mindedness and difficulty in concentration on school work. She felt that her life had changed radically and she felt the weight of responsibilities. 4. Dr. Hunter found that 3 or 4 of the limb laceration scars were disfiguring and so were some of the areas of altered skin colour following abrasions sustained in the accident. (In Chambers, a somewhat unsightly scar to the right arm was apparent to me, and this will no doubt mean the need for concealing sleeves, of longer length than normal). Dr. Hunter further found that neurologically there appeared to have been no damage, nor any symptoms of disordered brain function. He arranged for an x-ray examination of the dorsal and lumbo-sacral spine areas, which showed no bony damage. 5. He found that the 1st plaintiff appeared to be well-balanced and responsible, and not in any way given to exaggeration. He reported that her experience in the accident had been a tremendously devastating one. He said that this accident had changed the whole life of a young Chinese girl to whom family ties appeared to be very important, and at an age when deprivation could be appreciated. 6. In his evidence before me, he said that there had not been much change in the scars since he had examined her on the above date. He said that psychological symptoms were due to her traumatic experience of the accident and what happened afterwards, together with the fact that she had found herself suddenly saddled with heavy responsibilities at a young age. He said that such factors could cause anxiety and depression. Whilst there might be some improvement in those symptoms, there was a possibility of them intensifying in a younger person such as the 1st plaintiff with perhaps the need for psychotherapy treatment. He said that had her parents survived she should have improved more quickly. 7. I must say that the 1st plaintiff impressed me as a most responsible young lady. She testified as to the suddenness of the accident and of later seeing her injured brother lying beside her, after the bus finally came to a stop. She described seeing her father lying still in front together with fellow injured passengers, including some women who were screaming as they were trying to find their children. She was advised of the death of her relatives about 3 or 4 days after the accident. She still gets some pain in her back, head and right leg and has difficulty in sleeping at night, often having unpleasant dreams. 8. In assessing general damages in respect of pain and suffering, loss of amenities and possible future need for psychotherapy treatment, I shall ignore the surrounding sentimental aspect but will include an allowance for the horrifying nature of the accident, albeit of a different nature to that described in the case of Tang Lo Lai-chun v. Yim Ho Wai-lin and anor. 1975 H.K.L.R. 33. I assess such general damages of the 1st plaintiff in the sum of $15,000. 9. In addition I allow her the following items of special damages as claimed:-
10. There is also a claim by the dependants under the Fatal Accidents Ordinance, relating to the 1st and 2nd deceased. 11. The 1st plaintiff So Mo Ching and her brother, So Ka-cheung, were residing with their parents, maternal grandmother and younger sister, prior to the accident. The 1st deceased (mother), aged 39 at death, used to work at home on contract for a publishing company, earning approximately $1,000 per month. The 2nd deceased (father), aged 46 at death, earned an average of $1,500 per month as a working partner in a small teahouse. The family income was therefore approximately $2,500. 12. From this amount, $200 was remitted each month to Chan Suk-yee, an unmarried sister of the 1st deceased in China, aged in her early twenties at the time of the accident. Apparently the deceased parents had expressed some dissatisfaction concerning such remittances, and their prolonged continuation would therefore be open to some doubt. I allow a three year dependency period and assess damages for her in the sum of $7,200 ($200 x 12 x 3). 13. In addition, a sum of $100 per month was being paid to TAM Chuen, the mother of the 2nd deceased. I shall later deal with the claim on behalf of her estate. 14. From the remainder of the family's monthly income, I assess a total dependency of $800 per month in respect of the 2 surviving children, Miss So Mo Ching and her brother So Ka Cheung, including school fees, and being mindful of the fact that certain basic outgoings such as rent would remain the same for two, as previously for six. From this dependency should be deducted the sum of approximately $2,000 per year which is now paid to the children at Chinese New Year, from the teahouse partnership interest in the estate of the 2nd deceased. Some assets of the estates of the two deceased will vest prematurely in the two surviving children, but such benefits will generally, in my view, be counterbalanced by the ultimate loss of further growth in the assets of their obviously prudent parents, had they lived on. (Kassam v. Kampala Aerated Water Co. Ltd. [ 1965] 2 All E.R. 875). However, I agree with Mr. Kotewall, that it is only fair to discount that particular annual payment from the dependency figure, particularly as the partnership investment remains intact. A monthly proportion of $166 in respect of that annual payment of $2,000 should therefore be deducted from $800, leaving a nett monthly dependency figure of $634, i.e. a multiplicand of $317 for each child. 15. The 1st plaintiff was a fifth form pupil at the Diocesan Girls' School at the time of the accident. She said that prior to the accident she had discussed with her parents her ambition to go to England to study art. I have carefully considered the evidence of the costs involved, the trend of her education at that time, her family's limited means, and the somewhat nebulous steps taken in pursuit of those aspirations, and consequently I am not satisfied on the balance of probabilities that this would have transpired had her parents survived, and find that it was in the nature of a pipe-dream. 16. After the accident, she remained at secondary school for 2 years, and subsequently enrolled in a three year course of the Chartered Institute of Secretaries, at the Polytechnic, where she is now progressing satisfactorily. Having regard to this five year period of education after the accident, I would assess a dependency period of 5 years from which I deduct ten percent having regard to the normal vicissitudes of life and payment of lump sum, giving a figure of $17,118 ($317 x 12 x 5 less 10%). 17. The brother, So Ka Cheung, was aged 10 at the time of the accident and had just finished primary school. He qualified quite comfortably for secondary schooling and now attends the Ming Ying College, where he is making reasonable progress. He apparently wants to carry on his studies beyond secondary school, and his school do produce many students for tertiary commercial and accounting courses. I consider that it would be fair to expect him to carry on to the same degree of tertiary education as his sister, particularly as their parents were very education conscious. This would mean a total of 9 years education after the accident, which period I shall apply as the appropriate multiplier, and deduct ten percent having regard to the normal vicissitudes and payment of lump sum, giving a figure of $30,813 ($317 x 12 x 9 less 10%). 18. In addition, the 2 surviving children lost the domestic services of their mother, which might otherwise have been expected to continue throughout the remainder of the above periods of education. The fact that the 1st plaintiff herself nobly carried on such domestic duties should be ignored, and the children are entitled to the value of those services, which I would equate with those of a half-time amah, receiving an average pay of $450 per month, together with an extra month's pay for Chinese New Year. (Hay v. Hughes C.A. [ 1975] 2 W.L.R. 34). 19. Using the same respective multipliers as above, and a multiplicand of half of the figure of $450 for each claimant, I would assess the 1st plaintiff's entitlement under this heading of damages in the amount of $13,162 ($225 x 13 x 5 less 10%), and her brother So Ka Cheung's in the amount of $23,693 ($225 x 13 x 9 less 10%). 20. General damages assessed as above, including those for personal injuries, relating to the 1st plaintiff So Mo Ching amount to a total of $45,280, whilst general damages relating to her brother So Ka-cheung amount to a total of $54,506. 21. I now turn again to the claim on behalf of the estate of the late Tam Chuen, mother of the 2nd deceased. She was a widow at the time of the accident, still working and living on her own. She was receiving $100 per month from the 1st and 2nd deceased. Shortly after the accident she moved in with her two grandchildren, the 1st plaintiff and her brother. About six months after that, her health began to deteriorate, and she had to stop working. She then spent frequent periods in and out of hospital, until her death in November, 1976. During her grandmother's terminal illness, the 1st plaintiff rendered considerable voluntary service, particularly when she was home from hospital. This service would otherwise have fallen to the lot of the 2nd deceased, assisted by the 1st deceased, if they had lived. Taking all the above matters into account, I assess a round figure of $10,000 as fairly representing, in money terms, the dependency of the late Tam Chuen for the period of approximately forty months, up to the time of her death. I do not allow the claim for her funeral expenses, as her dependency ceased on her death. 22. In respect of the loss of life expectancy by the 1st and 2nd deceased, I assess damages under the Law Amendment and Reform (Consolidation) Ordinance in the sum of $10,000 each, which sums will merge with damages under the Fatal Accidents Ordinance. 23. I allow special damages as claimed for funeral expenses of the 1st deceased in the sum of $2,293.83, and of the 2nd deceased in the sum of $2,443.83. 24. Interest is awarded on all special damages at the rate of 4% per annum from the date of accident on 22nd July, 1973 until judgment on 27th September, 1976; and at 8% per annum on all general damages, from the date of service of the writ on 7th June, 1976, until judgment on 27th September, 1976. The amount due to So Ka-cheung is to be paid into Court. The 1st plaintiff attained the age of twenty-one on 8th March, 1977. 25. The plaintiffs are entitled to costs of this assessment. 26. Dated this 26th day of April, 1977.
Representation: Mr. T.L. von Pokorny of the Legal Aid Department for Plaintiff Mr. Kotewall instructed by Messrs. Johnson, Stokes & Master for both Defendants. |