Cheuk Ma-yee v. Lau Koon-ki

HCA001205/1976

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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ACTION NO. 1205 OF 1976

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Coram: LI, J.

Date of Judgment: 15th December, 1977 at 11.00 a.m.

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JUDGMENT

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1. This is an action arising from a fatal accident which occurred on the 7th of December, 1973. The defendant in this action was the owner and driver of the vehicle which was involved in this accident. The deceased was a passenger in the defendant's vehicle. After the writ was issued the defendant entered an appearance and the defence was filed. However, at the date of the trial the defendant was absent. For this reason, all that remains for the plaintiff, who is the administrator of the deceased's estate, is to prove his case. The claim is made under the Fatal Accidents Ordinance on behalf of the dependants of the deceased and also under the Law Amendment and Reform Consolidation Ordinance on behalf of the estate of the deceased.

2. Having heard the evidence adduced, I have no doubt whatever that it was the negligence of the defendant which caused the accident as a result of which the deceased was killed. I shall not repeat the evidence in detail. The chain of events was such that it leaves me with no doubt as to the cause and result of the whole incident when the deceased was killed. The remaining issue is one of quantum of damages.

3. Perhaps I should observe on the outset that the accident occurred at about 7.45 in the morning and the deceased died at about 11 o'clock the same morning. There is evidence during the interval that the deceased was suffering great pain when he was conscious for about half an hour. The deceased when he was killed was 22 years old, a young man. However, I appreciate that whatever damages I award to the deceased's estate under the Law Amendment and Reform Consolidation Ordinance would have to be deducted from whatever damages I award under the Fatal Accidents Ordinance. Therefore I shall not, in view of the evidence of the extent of injury and the short time of consciousness that the deceased had before he died, make any award for the loss of expectation of life or for pain and suffering, bearing in mind what I observed a little earlier that whatever damages I award for these items would have to be deducted.

4. I now consider what I should award under the Fatal Accidents Ordinance. As I have said, the deceased died at the age of 22. He had a father who at the time of the accident was about 58 years of age. His mother was about 45. He left a brother who at that time was 20, a sister who was 13, a brother who was 11, and lastly the youngest brother who was then 5. All these people, either wholly or partly, were dependent upon him.

5. There is evidence that the deceased earned approximately $1,800 per month. Out of his earnings he contributed to the family expenses of about one thousand to $1,300. The other income of the family was the earnings of his father at about $500 a month and the mother at about $300 per month. This made, together with the deceased's contribution, a family income of about $2,100 per month. However, I am not entirely satisfied that the deceased contributed to the extent of thirteen hundred per month every month. I would rather average his contributions between one thousand and one thousand three hundred, therefore making it $1,150 per month. Thus the total family income for six persons including the deceased would be - seven persons including the deceased, would be some $1,950. This would be for the benefit of the seven persons while the deceased would retain from his earnings some six or seven hundred dollars for his own use. Proportionately speaking, his contribution of $1,150, with a total of $1,950, is roughly 60% of the family expenditure.

6. Bearing in mind that at the time when he died none of his siblings were working or earning any income to contribute to the family, and various ages of his brothers and sister, it will be quite normal that probably the eldest brother who survived him would require his assistance for about one year, the sister for seven years and the two brothers for seven years and nine years respectively and the youngest brother would probably, as the case then stood, require his assistance for some fifteen years. His parents would be supported by him for another ten years. But the criteria are not to work out individual compensation for each and every one of them.

7. As the deceased was then 22 and was single, there was prospect of his getting married in the near future had he not been killed. His contribution to the family must of necessity be reduced. On the other hand, the brothers, when they grew up, would make earnings and would contribute to the family expenses in support of the parents. The sister in normal circumstances would have been married at about 20 or 21, and would not require the deceased's support. Having regard to these, learned counsel for the plaintiff suggested that I should adopt the multiplicand of $800 per month and a multiplier of eight or more years. Taking these factors into consideration I find that the suggestion is not unreasonable.

8. Bearing in mind that this is an award of a lump sum and there should be some form of reduction as a result of such, I would award the sum of $75,000. I worked out that if I adopt the multiplicand of eight hundred and multiplier of eight the sum total of what it should be $76,800. This is only a reduction of $1,800 which to my mind is reasonable.

9. There is also a claim for special damages of $6,000 for funeral expenses. $195 for a watch, $65 for spectacles and $40 for clothing. There is no receipt or voucher to support the claim for funeral expenses. Generally speaking, this is a very high figure for funeral expenses. Taking all into consideration I feel that the sum of $4,000 for funeral expenses is reasonable.

10. For these reasons there will be judgment for the Plaintiff in the sum of $75,000 in respect of damages under the heading or under the claim of Fatal Accidents Ordinance, special damages $4,000 for funeral expenses, $195 for the spectacles, $65 for - $195 for the watch, $65 for the spectacles and $40 for clothing, making a total of $79,300.

11. As to costs, it should of course follow the events. However, I must observe that this case has taken two days. As the defendant had not appeared and it was merely proving of the case it could have finished in one day. In all fairness I feel that the plaintiff should be awarded only one day's costs.

Representation: