Wong Hi Lam and Others v. Choi Tuk Man

HCA001945/1975

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

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Coram: Mr. Registrar Cameron in Chambers.

Date of Judgment: 19th January 1976.

Mr. Benjamin S.H. Choi of the Legal Aid Department for Plaintiffs.

Mr. Fairbairn of Messrs. Fairbairn, Kwok & Wang, Solicitors, for the Defendant.

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DECISION

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1. This is an assessment of the Plaintiffs' damages under the Fatal Accidents Ordinance, Cap. 22, and the Law Amendment and Reform (Consolidation) Ordinance, Cap. 23, arising as a result of the death of the 1st Plaintiff's husband in a road traffic accident which occurred on 26th October, 1972. On that date at about 6.05 p.m. the deceased was a passenger in a private car bearing the prefix and registration number AW1167 owned and driven by the Defendant when it overturned whilst travelling along Clear Water Bay Road in a southerly direction near Tai Po Chai. The deceased thereby received injuries which resulted in his death on the same day.

2. The Plaintiffs are the Administrators of the estate of the deceased. Letters of Administration were granted to the Plaintiffs on 11th April, 1975.

3. Interlocutory judgment against the Defendant for damages to be assessed was entered on 15th November, 1975.

4. Dependency was claimed on behalf of the following persons:-

A. DAMAGES UNDER THE FATAL ACCIDENTS ORDINANCE, Cap. 22

5. The deceased WANG KAR LING was aged about 28 at the date of his death. Prior to his death he was employed as a film technician in Shaw Brothers Studio earning just over $1,000 per month inclusive of overtime. Had he lived he would now have been earning $1,500 per month exclusive of overtime. Out of the sum of approximately $1,000 he received each month the deceased contributed $700 per month to his wife for household and family expenses. He took his evening meals at home every day but obtained his other meals outside and paid for them out of his own money. Whilst the evidence adduced as to the monthly household and family expenses was somewhat vague, I consider that it would not be unreasonable to assess the dependency at $600 per month.

6. In deciding that the multiplier should be 16, I have taken into account inter alia the age of the deceased, his future prospects had he lived, and an appropriate discount for a lump sum payment. I have also had due regard to the expectation of life of the dependants and to uncertainties.

7. Mr. Fairbairn for the Defendant asked me to take into account the fact that the 1st Plaintiff, the widow of the deceased, had taken up employment since her husband's death and was now in receipt of wages of $500 per month. Mr. Fairbairn was unable to refer to any case in support. There are, however, decisions on this point which make it clear that a widow's earning capacity is not to be taken into account in reduction of her damages. Any income the widow now receives is a consequence of her own work and not a benefit in consequence of the death of her husband⁽¹⁾.

8. I would therefore award General Damages of $115,200 ($600 x 12 x 16).

9. To this sum I would add $1,776 being Special Damages in respect of Burial and Funeral Expenses incurred personally by the 1st Plaintiff. I was informed that the Funeral Expenses came to considerably more and that the balance was paid partly by the deceased's employer and partly by the Defendant. I do not propose, however, to make any deduction from the total award in respect of the Defendant's contribution towards the Funeral Expenses as I was requested to do.

10. The total award for General and Special Damages therefore is $116,976.

B. DAMAGES UNDER THE LAW AMENDMENT AND REFORM (CONSOLIDATION) ORDINANCE, Cap. 23

11. I assess damages for loss of expectation of life at the figure of $8,000.

12. Whilst there was a claim for damages for pain and suffering, there was no evidence to support this and there will be no award under this head.

13. The damages of $8,000 for loss of expectation of life will merge with the $116,976 assessed under the Fatal Accidents Ordinance, Cap. 22.

14. The General Damages of $115,200 are apportioned as follows:-

15. The sums apportioned to the two minor children are 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 WONG HI LAM, Helen to make such application on their behalf informally and she to have authority to give good receipt.

16. The balance remaining that is $86,400 and the sum of $1,776 being Special Damages together with interest as mentioned hereafter is to be paid to the Director of Legal Aid who, after the charge in his favour has been discharged, shall pay the balance remaining to the 1st Plaintiff.

17. There will be interest on the General Damages at the rate of 8% per annum from 21st October, 1975, to today and interest at 4% per annum on the Special Damages of $1,776 from 26th October, 1972, also to today.

18. The Plaintiffs are entitled to the costs of the assessment and the action.

19. Dated this the 19th day of January, 1976.

Representation:

Mr. Benjamin S.H. Choi of the Legal Aid Department for Plaintiffs.

Mr. Fairbairn of Messrs. Fairbairn, Kwok & Wang, Solicitors, for the Defendant.

(1) KEMP & KEMP, 4th Edition, Vol. 1, at page 365 and HOWITT v. HEADS [1973] 1, Q.B., 64 at pp. 69-70.