Lau Hon Wah and Another v. Jim Pak Chung, Percival
Read the full judgment text of HCA 2779/1974 on BabelCite. This High Court CFI judgment.
1. Madam CHOW Oi, wife, mother, farmer and pig breeder, died on the 22nd February, 1973, as the result of a traffic accident which took place at 8.30 a.m. on that morning in Wong Chuk Hang Road, Hong Kong.
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HCA002779/1974
IN THE SUPREME COURT OF HONG KONG ORIGINAL JURISDICTION -----------------
----------------- Coram: Mr. Registrar Silke in Chambers. Date of Judgment: 28th July, 1975. Mr. Denis Murphy, Counsel instructed by Messrs. Gunston & Chow, Solicitors for the Plaintiffs. Mr. Peter Mark of Messrs. Peter Mark & Co., Solicitors for the Defendant. ----------------- DECISION ----------------- 1. Madam CHOW Oi, wife, mother, farmer and pig breeder, died on the 22nd February, 1973, as the result of a traffic accident which took place at 8.30 a.m. on that morning in Wong Chuk Hang Road, Hong Kong. 2. The defendant, driver of a private car registration No. AZ 8395, admitted negligence on the 7th April, 1975, and interlocutory judgment was entered against him by consent on the 5th May, 1975 - the damages of the Plaintiffs to be assessed by the Registrar. 3. The Plaintiffs are LAU Hon-wah and LAU Chuk-king who sue as administrators of the deceased. 4. At the hearing of the assessment the Plaintiffs were represented by Denis Murphy of Counsel instructed by Gunston & Chow and the Defendant by Peter Mark, Solicitor, of Peter Mark & Co. 5. Damages fall to be assessed under the Law Amendment and Reform (Consolidation) Ordinance and the Fatal Accidents Ordinance. Under the latter the claim is brought on behalf of LAU Hon-wah, husband of the deceased, aged 48 years; LAU Kuen-yan, son of the deceased, aged 17 years; LAU Siu-mui, daughter of the deceased, aged 15 years; and LAU Siu-lan, daughter of the deceased, aged 11 years. There were two other children, a son who had left the parental home and a daughter now married, with whom I am not concerned. 6. Dealing with the damages under the Law Amendment and Reform (Consolidation) Ordinance, funeral expenses were agreed at $1,200, Mr. Murphy informed me that in a recent case - not cited - the 'usual' award for loss of expectation of life was placed at $10,000 and Mr. Mark accepted that for the purposes of this case this was the correct figure. 7. I have no evidence as to pain and suffering and there will be no award under that head. 8. Therefore I assess the damages under this head of claim at $11,200.00. 9. Now as to the Fatal Accidents Ordinance claim - which is not quite as simple. 10. This is not a normal case for Madam CHOW Oi, as a comparatively successful farmer and pig breeder, had a greater earning capacity than her husband who was a brick-layer. The evidence which has been placed before me is solely that of Mr. Lau and his witnesses and it is to the effect that Mr. Lau was a brick-layer of some skill who earned generally $60 per day, of which he kept $30 and put $30 into the household expenses. He says he was never short of work but the daily income could fluctuate a little as between $50 and $60 for a 24 or 26 day month. He also worked on the vegetable farm for about three hours each day to assist his wife. On Madam CHOW Oi's death he gave up his job as a brick-layer and devoted himself entirely to the farm, abandoning in the process the pig breeding aspect as he said he did not know enough about this feature of farm work, he also looked after the children. I note, however, that the 17 year old boy is serving his apprenticeship to a Shanghainese Master Builder and now earns about $400 per month. He comes out of that apprenticeship in two years' time when his earnings can be expected to increase substantially. 11. The 15 year old girl now helps on the farm doing weeding and reaping. I am not aware if she is paid anything for this. 12. The 11 year old is still at school. 13. The farm itself was not owned by the deceased - nor is it owned by her husband - as apparently it was "given" in some fashion to the deceased by a Mr. HUI Woon but remains in his name. The Crown Rent of $400 per year is paid by Mr. Lau. He referred to it as Crown Land - it is situated in Wong Chuk Hang - but I have no proper idea of the title of the land, its duration, or the possibility of its reversion to the Crown either by efflux of time or by acquisition. 14. Madam Chow worked this farm at a profit. Her takings in the good season from September to February were $6,000 and up and in the poor season from March to August about $3,000 - each per month. Mr. Lau estimates the profit average over a year to have been about $1,600 per month. There are no books, receipts, tax returns or documents in support of this. Nor might I add is there any evidence to contradict it. 15. On the calculations given me by Mr. Lau of the sales of the various vegetables grown on the farm and the pig sales, also bearing in mind that which PW4 a neighbour and farmer has had to say, I am prepared to accept these figures as accurate and find as fact that at the time of death the farm produced a monthly average not income of $1,600 and that of this Madam CHOW Oi was able to save $500 per month. Equally I accept as fact that the average monthly earnings of Mr. Lau himself were, as was suggested by Mr. Murphy, $1,430 per month. 16. After death the farm income increased to about $3,000 per month - despite the loss of pig breeding. 17. My difficulty now is this: Mr. Mark for the Defendant submits that there is really no loss at all as a result of the death but is willing to concede that I should treat the deceased's monthly savings of $500 as the value of the dependency employing a multiplier of four or five. 18. This would give an equation: $500 x 12 x 5 = $30,000. I do not, however, think that these savings could be, by any stretch of the imagination, considered a dependency valuation. I am not aware of the reasoning behind the suggested multiplier of four or five. The deceased was a healthy woman of 42 at the time of death. 19. Mr. Murphy on the other hand submits that the pecuniary loss is the loss of Mr. Lau's earnings as a brick-layer which were, he says, a direct result of the death which forced Mr. Lau to confine himself to the farm and the children. 20. This gives an equation of $1,430 x 12 or $17,160 per year. Mr. Murphy suggests a multiplier of 12 basing himself on the multipliers shown in Kemp & Komp, Vol. II, 2nd Edition, at pages 36 to 41 in respect of 48 year old men. He further suggests that allowance should be made in the use of the multiplier for the lump sum payment but submits that a 20% reduction from lump sum for what are called the vicissitudes of life is too great. He tests his figures by the reduced 'capital sum payment' test: that is the investment of a sum allowing interest at 5% exhausting itself over a period of 18 years so as to produce $1,430 per month. The capital investment would be $200,000. Then using the multiplier test - 12 years - produces a sum of $205,000. Two very similar sums. 21. These approaches might be called the black and the white for there is no point of contact between them nor any coloration in between. 22. I am aware that in theory there is no difference in this head of claim between a wife's claim for the death of her husband and a husband's claim for the death of his wife. In this case the husband was not the main support of the household. He assisted his wife in the farm - she also employed a temporary helper from time to time at a pay rate of $20 per day - and he supplemented the family income by his earnings as a brick-layer. The compensation is based on
23. I think the true measure in this case is that called 'mutual dependence' by Devlin J. in Burgess v. Florence Nightingale Hospital for Gentlewomen and Another [1955] 1 Q.B. 349 at page 362. I do not think, nor has it been argued, that this instant case is a 'partnership' one. The headnote reads
24. I do not accept Mr. Murphy's contention that the measure should be the loss of the husband's wages as a brick-layer. It was his choice to abandon that source of livelihood, and it was a good choice for the net income of the family now is as high if not higher than the joint incomes then. The children were not so young as to be in need of constant care. 25. Given the figures I have found the equation would be this. 26. Net income $1,600 - less $500 savings gives a figure of $1,100. From that should be deducted a sum to represent the deceased's own use of the money given for household expenses - an expense no longer required. I bear in mind that there is no suggestion that the husband separately bought her clothes or maintained her but that he did contribute to those general household expenses of which his wife in fact had the benefit. I would deduct a further $400 under this head giving a figure of $700. 27. The husband did contribute to the deceased's income in that he worked for some time each day on the farm. I would deduct a further $100 in respect of this contribution arriving at a datum figure of $600. 28. The deceased was 42 at time of death, healthy and in a healthy occupation. Allowing for this and also allowing for the vicissitudes of life including the fluctuations of a vegetable farm and the uncertainty as to the title to that farm, I would apply a multiplier of 14. I might add that I do not intend to make any percentage deduction in respect of a lump sum payment as the value of money is deteriorating so rapidly that such deductions now seem inappropriate but I have taken into consideration in applying a multiplier of 14 that there will be a lump sum payment. See Pickering, J. in O.J. 1489/73 Wong Tak Hing v. Tai Sang Industrial Co. Ltd. (unreported) at p. 10. 29. On that basis the total award will be $100,800 under the Fatal Accidents Ordinance. 30. I would apportion this as to $5,000 to LAU Kuen-yan; $8,000 to LAU Siu-mui; $12,000 to LAU Siu-lan; and the balance of $75,800 to LAU Hon-wah. 31. The sums apportioned to the children to be paid to the Registrar, Supreme Court, who will have power to invest them at his absolute discretion and hold the proceeds until the children are of the age of 21 years. There will be a discretion in the Registrar to make such payments of capital and interest as he thinks fit for the education, maintenance and advancement of the children, there being liberty to LAU Hon-wah to make such application on their behalf informally and he to have authority to give good receipt. 32. The award of $11,200 under the Law Amendment and Reform (Consolidation) Ordinance will merge with the general award except as to specials at $1,200. 33. There will be interest on the general award, following Jefford v. Goo at the rate of 8% from the 19th November, 1974 to today and interest at 4% on $1,200 from 22nd February, 1973 also to today. 34. Costs of the assessment to the Plaintiffs. Certify fit for Counsel.
Representation: Mr. Denis Murphy, Counsel instructed by Messrs. Gunston & Chow, Solicitors for the Plaintiffs. Mr. Peter Mark of Messrs. Peter Mark & Co., Solicitors for the Defendant. |