Wong Kan Suing v. Chan Yiu Kuen and Another
Read the full judgment text of HCA 3355/1973 on BabelCite. This High Court CFI judgment.
1. WOO Chiu died on 15th July, 1972 as a result of a road accident. He was then aged 55 and had worked as a waiter in the Officers' Mess, Victoria Barracks, since December 1951. The plaintiff, the deceased's widow, brought an action for compensation for herself under the Fatal Accidents Ordinance, and for the deceased's estate under the Law Amendment and Reform (Consolidation) Ordinance.
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HCA003355/1973
IN THE SUPREME COURT OF HONG KONG ORIGINAL JURISDICTION -----------------
----------------- Coram: Mr. Registrar Barnett in Chambers Date of Judgment: 21st October, 1975. Mr. David Tong of Tong & Ip for Plaintiff Mr. M.Asome instructed by Johnson, Stokes & Master for both Defendants --------------------------------------------------- ASSESSMENT OF DAMAGES --------------------------------------------------- 1. WOO Chiu died on 15th July, 1972 as a result of a road accident. He was then aged 55 and had worked as a waiter in the Officers' Mess, Victoria Barracks, since December 1951. The plaintiff, the deceased's widow, brought an action for compensation for herself under the Fatal Accidents Ordinance, and for the deceased's estate under the Law Amendment and Reform (Consolidation) Ordinance. 2. On the face of it, a straightforward case where settlement might have been expected. However, a question of interpretation of s.9 of Cap. 23 arose. 3. The plaintiff has been paid a gratuity of $9,114.60 by the deceased's employers, Army Command. However, if the deceased had lived until 1977, when he would have reached the retirement age of 60, then he would have been paid a gratuity of $33,130.60. The substantial increase arises from two factors, first a revision of the regulations governing the amount payable for each year's service; and secondly, the gratuity already paid was based on the deceased's salary of $500 p.m. at his death whereas he would now be earning $869 following several salary reviews. 4. For the plaintiff, Mr. Tong referred to s.9 of the Fatal Accidents Ordinance and submitted that the sum of $9,114.60 falls within s.9 and should be ignored, while the gratuity of $33,130.60 which the deceased would have received had he survived should be taken into consideration when assessing the loss. 5. Mr. Asome, for the defendant, disagreed saying, in effect, that the plaintiff cannot have it both ways. If the sum of $9,114.60 is not to be taken into account, then the sum of $33,130.60 should also be ignored. He argued that the Army has given the plaintiff something as a matter of policy which the deceased would have received if he had left on retirement. If the gratuity would have been payable irrespective of death, not as a result of death, then it should be taken into account. He expressed that he was very worried about this contention and referred me to the case of Humphrey & Ward Engineering Services Ltd. and Another reported in the Times of 29th May 1975. 6. In Humphrey, the deceased, who had worked for the Post Office all his life, died one month before his sixtieth birthday when he would have received a lump sum. He intended to work until he was sixty-five when he would have received another lump sum and a pension. The widow had received a substantial lump sum and was receiving a widow's pension. If the benefits which she had received and was receiving were ignored in assessing damages she would be better off than she would have been had her husband survived. Latey J. is reported as deciding that the correct interpretation was that benefits coming to the widow on her husband's death were to be disregarded in deciding whether or not there had been a loss and, if there had been a loss, what should be the damages by way of compensation. 7. The relevant section of the Fatal Accidents Ordinance (and it corresponds with s.2 of the Fatal Accidents Act 1959) is as follows:-
8. I say at once that I have no doubt that the gratuity paid to the plaintiff is clearly within s.9 notwithstanding Mr. Asome's observation that "gratuity" is not defined. The sum in question was always described as a gratuity and was undoubtedly paid as a result of the deceased's death. Therefore, following Humphrey and what is clearly the correct and straightforward construction of s.9(1), I shall not take the gratuity of $9,114.60 into account. Again, following the admittedly sketchy report in Humphrey, I think the gratuity of $33,130.60 is a factor to be considered in deciding whether or not there has been a loss. 9. Turning to the question of general damages, the deceased was earning $500 p.m. at his death. He was contributing $350 p.m. to the plaintiff for household expenses. He would now be earning $869 p.m. as a result of salary reviews. 10. I accept Mr. Asome's contention that, based on the payment of $350, the real dependency would be $300, allowing for meals and other expenses while the deceased was at home. However, I have no doubt what-soever that the deceased would have increased this payment to keep pace with increased living costs and his increased salary. From the evidence I heard, it is clear that the deceased was a model of a steady worker and responsible husband. I think the proper figure should be $450. 11. The deceased would have worked another 5 years and then retired at 60. On the evidence he might have been able to continue as a waiter in the Officers' Mess. Mr. Lee, who was called as a witness from Army Command Secretariat, thought there would be no difficulty about this, in spite of redundancies. There is no question but that the plaintiff is in good health and would have been dependent for many years. Mr. Asome has suggested a multiplier of 6 and, in all the circumstances, I think this is reasonable. 12. The calculation, then, is $450 x 12 x 6 = $32,400. 13. Coming now to the deceased's retirement gratuity, which on current figures would be $33,130.60. Mr. Lee described it as a non-taxable, non-contributory, obligatory payment by the Army. The deceased would have received it as a result of unbroken service since December 1951. He would no doubt have applied it for the benefit and maintenance of himself and the plaintiff in their old age, bearing in mind the deceased's exemplary conduct towards the plaintiff in the past. Clearly, therefore, there has been a loss to the plaintiff who is now entitled to damages by way of compensation. I would put the plaintiff's loss at one third, that is, $11,043.50. 14. Total general damages, therefore, are $43,443.50. I think that the multiplier of 6 is possibly on the defendant's side, so I shall make no reduction for the immediate lump sum payment. 15. As to special damages, funeral expenses have been agreed at $3,000 and damage to the deceased's clothing at $100. I shall allow these two items. 16. As far as the motor cycle is concerned, no satisfactory evidence has been adduced and, in any event, as Mr. Asome says, it is really a loss to the estate and would be swallowed up by the Fatal Accidents award. So there is nothing for the motor cycle. 17. I have not been addressed on loss of life. For what it is worth, I shall allow $8,000 although this will also be swallowed up by the Fatal Accidents award. 18. The plaintiff will have interest on the special damages at 4% from the date of death, and interest on the general damages at 4% from the date of the writ. 19. Liberty to apply on costs. 20. Dated the 21st day of October, 1975.
Representation: Mr. David Tong of Tong & Ip for Plaintiff Mr. M.Asome instructed by Johnson, Stokes & Master for both Defendants |