Leong Lin Dei and Another v. Ho Yuet Wah and Another

HCA001962/1972

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

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Coram: Mr. Registrar Jones in Chambers.

Date of Judgment: 10th January, 1973.

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DECISION

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1. The plaintiffs claim damages under the Fatal Accidents Ordinance and the Law Amendment and Reform (Consolidation) Ordinance as administratrices of the estate of the deceased who was killed in a road traffic accident that occurred on the 17th August 1970. On that date the deceased was knocked down by a motor vehicle driven by the 1st defendant, a Police Constable and owned by the Hong Kong Government. The 1st plaintiff is the deceased's widow and the 2nd plaintiff is the eldest daughter. Judgment was entered against the 2nd defendant for damages to be assessed on the 17th October 1972 whilst the proceedings against the 1st defendant were subsequently withdrawn by consent.

2. The deceased at his death was aged 45 and he was employed by Hong Kong Tours and Travel Service Limited as a tourist guide. The only evidence of the deceased's means was given by the 1st plaintiff who said that his salary was in the region of $1,000 per month but that with commission and tips, his total monthly earnings amounted to about $4,000. The deceased had been employed by the firm for 13 years and would have been entitled to a pension at the age of 60. Although the figure of $4,000 was challenged by Mr. Evans for the 2nd defendant I find in the absence of evidence to the contrary no reason to disbelieve the 1st plaintiff.

3. The 1st plaintiff is now aged 47 and apart from herself damages are claimed for the following dependants:-

4. At the date of death the 1st plaintiff and all the other relatives referred to above lived with the deceased and the 1st plaintiff's mother at her present address in Kowloon. Apart from the deceased and the son Tang Kwok Wai who is in the United States all the relatives are still living at the same address.

5. Tang Chiu Lai was working at the date of the deceased's death earning $300 per month which has now been increased to $500. She made no contribution to the household as at the time of the death she was attending evening school, the fees for which she paid out of her earnings. Tang Chiu Lai has since married but her husband who is a seaman is often away from Hong Kong so that she still lives with her mother and other relatives. Tang Chiu Yee is and was at the time of the death an apprentice learning garment making. She received at the date of the death an allowance of $60 per month from her employer which has now been increased to $100. She was unable to make any contribution towards the household expenses for she was receiving private tuition. Tang Kwok Wai was attending school at the date of death but arrangements had previously been made for him to further his studies in the United States. For this purpose the deceased had prior to his death given to him about US$3,800 and it was in the month following his father's death that he went to the United States. The 1st plaintiff said that Tang Kwok Wai's studies will continue for a period of another four years. Although last year the 1st plaintiff remitted to her son payments amounting to HK$8,000 she conceded that the sums were gifts and were not for his maintenance. Accordingly upon the evidence I am not satisfied that Tang Kwok Wai has established a dependency. Tang Chiu Man at the date of death was attending secondary school which she completed last summer but she hopes to go on to the Chinese University of Hong Kong. Both the other children, Tang Kwok Hung and Tang Chiu Ling are still at school.

6. The 1st plaintiff said that before his death she received from the deceased $1,500 per month for household expenses which was for the whole family including her mother. The 1st plaintiff listed monthly expenses of $620 for the school fees of the children, Tang Kwok Wai, Tang Chiu Man, Tang Kwok Hung and Tang Chiu Ling that were paid for separately by the deceased which included travelling expenses, lunches and books being $200 per month each for Tang Kwok Wai and Tang Chiu Man and $110 per month each for Tang Kwok Hung and Tang Chiu Ling.

7. With regard to the household expenses today the 1st plaintiff said that they are different as prices have increased but conceded that to some extent they have been offset by the death of the deceased and because Tang Kwok Wai is now in the United States.

8. The 1st plaintiff said that she has spent approximately $6,000 in respect of funeral expenses which included between $1,700 - $1,800 for the coffin, $50 for cremation, $1,000 for a dinner and amounts of $1,200, $900 and $600 for three ceremonies conducted by buddhist monks. The balance was spent on joss papers. Both counsel for the plaintiffs and for the 2nd defendant agreed that the amounts expended for the dinner and buddhist ceremonies cannot be recovered and I consider that a reasonable amount for the funeral in this case is $2,000.

9. At the time of death the deceased and his widow owned two flats in their joint names both of which had been paid for in full, one being the 1st plaintiff's present address and the other which is let and from which she derives a monthly rental of $250.00. The 1st plaintiff said she is not working and that none of the members of the household contribute towards the household expenses.

10. I found the 1st plaintiff to be an honest witness and I do not think that she tried to exaggerate her claim. In assessing the dependency I have taken into account that the 1st plaintiff was able to save about $100 odd per month from the $1,500 given to her by the deceased and that an allowance must be made for the deceased's mother in law who is not a dependant, for the deceased himself and for Tang Kwok Wai. However, the future education expenses for the children, Tang Chiu Man, Tang Kwok Hung and Tang Chiu Ling formerly borne by the deceased will now fall upon the 1st plaintiff so that the amount of the dependency will be increased by this figure. I have further taken into consideration the advanced age of the deceased's mother and aunt and that Tang Chiu Man should not remain a dependant for many more years. In all the circumstances I am of the opinion that the dependency should be fixed at the sum of $1,400 per month. Having regard to previous authorities the respective ages of the deceased, the 1st plaintiff and the fact that the deceased was in good health at his death I shall adopt a multiplier of 16. Accordingly damages under the Fatal Accidents Ordinance are assessed at $268,800 i.e. 1400 x 12 x 16. However, the 1st plaintiff has received the sum of $39,600 as workmen's compensation which must be deducted from this figure which will therefore leave a grand total of $229,200. The damages will be apportioned as follows:-

11. Damages under the Law Amendment and Reform (Consolidation) Ordinance will be assessed at $8,000, which sum will however merge with those awarded under the Fatal Accidents Ordinance.

12. The total damages will therefore amount to $231,200.

13. Interest will be paid on the damages at the rate of 8% from the date of service of the writ which was the 14th August 1972. The plaintiffs are entitled to costs and there will be a certificate for counsel.

14. 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.

15. Dated this the 10th day of January, 1973.

Representation: