Madma Chan Shook Ching v. Sun Kam and Another

HCA001594/1973

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

ACTION NO. 1594 OF 1973

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Coram: Mr. Registrar Silke in Chambers.

Date of Judgment: 20th December, 1973.

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DECISION

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1. This is an application by the plaintiff for damages to be assessed under the Fatal Accidents Ordinance and the Law Reform (Miscellaneous Provisions) Ordinance for the death of her son, Kong Kan Kwong, who died in a road traffic accident that occurred on the 19th July 1971. He was crossing Ma Tau Wei Road near its junction with Chi Kiang Street. on an uncontrolled crossing, when he was struck by a vehicle registration No. AU1138 of which the 1st defendant was the driver and the 2nd defendant the registered owner.

2. The action was brought by the plaintiff as the mother of the deceased on behalf of herself and four children Kong Kan Kuen, aged 24, Kong Kan Hing aged 20, Kong Kan Ho, aged 18 and Kong Kan Kit, aged 12 all boys.

3. The plaintiff is now aged 46.

4. Interlocutory judgment in default of appearance was entered against the 2nd defendant on the 25th June 1973 and against the 1st defendant on the 4th August 1973.

5. At the hearing of this assessment the defendants were represented by Patrick Fung Esq. of Counsel on the instructions of H.H. Lau and W.S. Lo, the plaintiff being represented by William Waung Esq. of Counsel instructed by Tung and Tang.

6. At the time of his death the deceased was aged about twenty years and in reasonable health. He was a student at the Chu Hai College, Hong Kong having just finished his first year of study in what the acting President of the College (1PW) described as Faculty of Architecture - Building Engineer. His school fees were paid by the College on a scholarship basis at $140 per month together with $20 per month for practical work. He was further in receipt of $65 per month paid by the well known newspaper "Wah Kui Yat Po".

7. His grades in his first year were good. achieving an average of 'C' - above the pass mark. His study as well as his character were comparatively good. It would take four years to complete what the witness called a "degree" and there was nothing in his first year's work to suggest that he would not successfully complete his course. He might be expected to obtain a job at the end of the period, making use of his study and working for a year or so in a firm, giving a wage of about $1,000 per month. I note that the "degree" referred to is not recognised in Hong Kong - it appears to be the equivalent of post secondary education - and that he would not have been entitled to act as an Authorised Architect. The acting Principal no hesitation in admitting that the status of a "degree" from his collage was not as high as one from Hong Kong University or the Chinese University but he did appear to suggest that Universities in Europe and Canada did recognise Chu Hui College something I find hard to believe. I think what was intended was that a person having successfully completed his course in the college could then go on to set himself a professional qualifications in another and higher seat of learning.

8. Being an industrious young man the deceased worked on oiece work in the evening earning about $500 per month. This was at ivory craving at which his elder brother is fully employed.

9. Of this sum $300 per month was given to the plaintiff. She did not have to make any direct sacrifice for this deceased son and she did, on occasions, supply him with lunch and nearly always with dinner. The deceased showed no inclination to marry at the time of his death but there is nothing to suggest that this state of affairs would continue for long. His eldest brother is already married and contributes little to the household. The father is deceased. The third son is also a wage earner living with the plaintiff and paying the rent of $200 per month he also gives occasional "$10 of dollars" to her. The fourth son is apprenticed to an ivory carver, studies in the evening, lives with the plaintiff and gives her $100 to $200 per month. The youngest son is a student in Primary 6.

10. Evidence has been given by the employer of the deceased that were he now living he could expect a wage of $1,000 to $1,200 per month.

11. There is no real disagreement between the parties as to the dependency figure of $300 per month. The deceased had prospects, limited though they might be; if he married his contributions would reduce themselves considerably and he was provided with some meals by his mother. Doing the best I can in the light of the several imponderables I adopt the figure of $300 as being the dependency. I am not, I might add, being asked to apportion and the entire of any award will be paid to the plaintiff.

12. The above considerations also apply in arriving at a multiplier. This is not a case where the family was entirely dependent on the deceased, he had the intention of going to Canada but, as I have said, with limited prospects. His age is also relevant.

13. It has been urged on me by Mr. Waung that I should consider 8 and could in this case go as high as 12. He referred me to Kemp and Kemp Vol. 2 2nd Edition and the 1958 case therein referred to at page 210: Piggot v. Fancy Wood Products, Ltd. where the figure of £1,200 was arrived at in the case of a youth of 21. undergraduate at Hull University who had good prospects as a school master. He was an only son.

14. Mr. Fung for the defendant referred me to that set out at p.197 of the same volume in respect of the principles of the matter and he suggests a multiplier of about 7 as being correct.

15. I have referred myself to the assessment of Mr. Registrar Jones in O.J. 1642/72 where the circumstances were not dissimilar to those pertaining here, though the father of the deceased was still alive and the dependency was $650 per month, the age of the deceased being 23. A multiplier of 5 was used.

16. All in all and bearing in mind the possible future prospects of the deceased herein I think 7 to be the proper multiplier, if not a little on the high side. Therefore damages under the Fatal Accidents Ordinance will be assessed at $25,200 ($300 x 12 x 7).

17. The specials are not disputed and to the above figure should be added funeral expenses at $1,500 costs of obtaining Letters of Administration $530 and damage to clothing of $30 making a total assessment of $27,260.

18. I assess damages under the Law Amendment and Reform (Consolidation) Ordinance at the conventional figure of $8,000. This will however merge with the damages under the Fatal Accidents Ordinance.

19. The plaintiff is entitled to interest at the rate of 8% from the date of issue of the writ - 8th June 1973 - to date of 4th August and to the costs of the action and of this assessment with certificate for counsel. The plaintiff's costs be taxed in accordance with the Legal Aid (Scale of Fees) Regulations, Cap. 91.

20. Dated this the 20th day of December, 1973.

Representation: