Tsang Ngan Ho and Another v. Chan Kan Ning
Read the full judgment text of HCA 1570/1972 on BabelCite. This High Court CFI judgment.
1. The plaintiff's claim is for damages under the Fatal Accidents Ordinance and the Law Reform (Miscellaneous Provisions) Ordinance now the Law Amendment and Reform (Consolidation) Ordinance for the death of her husband who was killed by the defendant on the 25th May 1970 after an assault. The defendant was subsequently charged with murder to which he pleaded not guilty but the Crown accepted a plea of guilty to manslaughter. The defendant was bound over to be of good behaviour in his own recogn
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HCA001570/1972
IN THE SUPREME COURT OF HONG KONG ORIGINAL JURISDICTION -----------------
----------------- Coram: Mr. Registrar Jones in Chambers. Date of Judgment: 9th January 1973. ----------------- DECISION ----------------- 1. The plaintiff's claim is for damages under the Fatal Accidents Ordinance and the Law Reform (Miscellaneous Provisions) Ordinance now the Law Amendment and Reform (Consolidation) Ordinance for the death of her husband who was killed by the defendant on the 25th May 1970 after an assault. The defendant was subsequently charged with murder to which he pleaded not guilty but the Crown accepted a plea of guilty to manslaughter. The defendant was bound over to be of good behaviour in his own recognizance for a period of 12 months. 2. Judgment in default of appearance was entered against the defendant on the 9th November 1972 for damages to be assessed. 3. The deceased was aged 47 when he was killed and his occupation was that of an oyster farmer from which the 1st plaintiff said that his monthly earnings averaged $1,500.00. The original sum of $500 claimed as loss of dependency was amended by consent at the hearing to $1,500, the 1st plaintiff explaining that she was confused when she first gave instructions to her solicitors. I accept the plaintiff's evidence that the deceased's income was $1,500 per month and that he solely provided for the family. The deceased was in good health at the time of his death. 4. The claim for exemplary damages in the writ was withdrawn. 5. Apart from the 1st plaintiff damages were also claimed for the following children of the family:-
6. However in evidence it transpired that two of the children, Chan Fung Ying and Chan Fung Tai are living in China with the plaintiff's mother in law to whom the plaintiff remits monthly payments of $100. The other 4 children in Hong Kong are all at school. 7. The plaintiff is now aged 42 and she said that she had been happily married for 24 years. 8. It was suggested on behalf of the defendant that the business of an oyster farmer is hazardous especially if one should cross into Chinese water. The 1st plaintiff in evidence agreed that another oyster farmer had been captured by the Chinese Communists a month after the deceased's death and had never returned. These aspects must be taken into account when assessing damages although they are rather remote. 9. The 1st plaintiff said that the sum of $6,000 has been expended in respect of funeral expenses but she was unable to produce any documentary evidence to support this claim. However evidence showed that $2,000 had been paid for the coffin, $500 for the plot of land and $1,500 for Taoists. In spite of the absence of documentary proof the amount claimed is in any event excessive. I shall allow the sum of $2,500 which I consider to be a reasonable figure. 10. The eldest daughter Chan Yee Man married sometime in about August 1971. The 1st plaintiff claimed that she was at school at the time of her husband's death but this was challenged by the defendant who said she was working. On the evidence I am not satisfied that Chan Yee Man has established a dependency. 11. The 1st plaintiff says that she now carries on the oyster business of the deceased but at a much reduced profit that was not satisfactorily established, but I consider on the evidence that her profit should be $600 per month. Accordingly deducting this sum and a figure of $100 for the deceased's own living expenses I shall fix the plaintiff's dependency at $500 per month. Taking all matters into consideration I shall adopt a multiplier of 12 so that damages under the Fatal Accidents Ordinance will amount to $72,000 i.e. $500 x 12 x 12. 12. The damages will be apportioned as follows:-
13. I shall award the conventional figure of $8,000 as damages under the law Amendment and Reform (Consolidation) Ordinance, which sum will merge with the damages awarded under the Fatal Accidents Ordinance. The total damages will therefore amount to $74,500. 14. There will be an order for costs in favour of the plaintiff together with a certificate for counsel. I shall award interest at the rate of 8% from the date of service of the writ which was the 22nd July 1972. 15. The damages awarded to the children will be paid into court to be invested by the Registrar in his absolute discretion as he thinks fit with liberty to make payments out of income from time to time for their education and benefit. 16. Dated the 9th day of January, 1973.
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