Chan Kuen-har v. Fong Yum-wah and Others

HCA002496/1978

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

-----------------

-----------------

Coram: Mr. Registrar Barnett in Chambers.

Date of Judgment: 28th December 1978.

Woolley (Director of Legal Aid) for Plaintiff.

1st and 2nd Defendants absent.

Miss Maria Yuen (H.H. Lau & Co.) for 3rd Defendant.

----------------------------------

ASSESSMENT OF DAMAGES

----------------------------------

1. In this case judgment has been entered against the first and second defendants for damages to be assessed. The third defendant has only recently been added as a defendant so that the question of liability is still pending. Upon the third defendant undertaking through Counsel to be bound by this assessment, I agree to proceed with the assessment and to allow the third defendant to be heard.

2. The plaintiff claims damages in respect of the death of her husband on behalf of herself and the deceased's mother. The claim is limited to damages under the Fatal Accidents Ordinance and to funeral expenses.

3. The evidence given by the plaintiff herself and by the deceased's last employer was not seriously challenged. It is clear that the deceased was an excellent husband and dutiful son. He earned at the time of the accident in October, 1977 the sum of $70 per day as an electrical worker. He paid on average $1,400 per month to the plaintiff out of which she paid rent and for food and other necessary items. Three sons live with the plaintiff but although they pay various sums into the family fund they probably take out a little more than they put in. In assessing the dependency allowances will have to be made for this and for the two daily meals taken at home by the deceased.

4. There is evidence that the deceased, who was aged 59 when he died, was suffering from rheumatism. The deceased however does not seem to have been very severely afflicted because he had taken little or no sick leave, or indeed leave of any sort, in recent months. I am therefore of the view that the deceased's working life would not have been affected by this and that when the deceased's employer said that a man in good health could work in the deceased's trade until he was 70 or 80, I can accept that this would have applied to the deceased.

5. It is suggested by the plaintiff that I should aggregate the dependency of the plaintiff and the mother on the basis that upon the death of the mother the plaintiff would have benefited herself. I do not think that this necessarily follows and I am of the view that I must deal with the plaintiff and the mother separately.

6. As far as the mother is concerned, she is now aged 83 and needs looking after. Upon the evidence and figures before me it would be reasonable to say that her dependency was $200 per month and to allow a multiplier of two. I therefore award $4,800 to the mother.

7. As to the plaintiff, I put her dependency at $850 which includes an allowance of $280 for rent. That may appear a little generous having regard to the meals taken by the deceased and the three sons but it must be noted that the daily rate of pay in the deceased's trade has now increased to $85 and I have no doubt that by now the deceased would have increased the monthly payment to the plaintiff. Allowance must be made for this.

8. The third defendant lays great stress on the deceased's rheumatism and the fact that part of his work entails climbing ladders and working above ground. It is suggested that his capability to work would thus have been affected. As I have already remarked the deceased appears to have been little affected by his rheumatism and doubtless a worker of his skill could easily find employment at ground level should it become necessary. I see no reason why the deceased should not have carried on working until he was at least 70. In the circumstances I consider the appropriate multiplier to be 8. Accordingly I award $81,600 to the plaintiff.

9. As to the question of funeral expenses, the third defendant points out that there are receipts for only $3,420 and that only this amount should be allowed. There is considerable confusion as to how much the plaintiff actually spent, how much she borrowed in order to pay for the expenses and how much is repayable. In the circumstances I would allow $3,420 which will be paid to the plaintiff.

10. The plaintiff will have the costs of this assessment and the costs are to be taxed.

11. Liberty to apply.

12. Dated this 28th day of December 1978.

Representation:

Woolley (Director of Legal Aid) for Plaintiff.

1st and 2nd Defendants absent.

Miss Maria Yuen (H.H. Lau & Co.) for 3rd Defendant.