Hui See Ho and Others v. Poon Chi Ping and Another

Case No.HCA 5370/1979

Court

High Court CFI

Date04 Apr 1985

Judge—

Case Document

100%Judiciary

HCA005370/1979

1979 No. 5370

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

BETWEEN

	HUI SEE HO suing in his own capacity and suing as administrator of the Estate of CHAN PITT MOON, deceased and HUI CHI YUEN, Co-Administrator	Plaintiff
	AND
	POON CHI PING	1st Defendant
	CHAN WING CHUEN	2nd Defendant

Coram: Master O'Donnell in Chambers

Date of Hearing: 27 February 1985

Date of Delivery: 4 April 1985

_________________________

ASSESSMENT OF DAMAGES

_________________________

1. The Plaintiff was the husband and administrator of the estate of CHAN Pitt-moon, who on 29th May 1978 was struck and knocked down by a motorcycle owned by the 2nd Defendant and driven by the 1st Defendant. The deceased, who was 48 years of age at the time, sustained serious head injuries in this accident and died in hospital a week later on 5th June 1978. The procedure on this assessment and his rights thereto were explained to the 1st Defendant who appeared in person. He neither cross-examined any of the witnesses nor did he give or call any evidence on his behalf.

Interlocutory judgment in this action was entered against the 1st Defendant on 11th February 1980 and by consent an order was made against the 2nd Defendant on 18th July 1984.

2. The claim is bought under both the Fatal Accidents Ordinance (FAO) and under the Law Amendment and Reform (Consolidation) Ordinance (LARCO) on behalf of the husband, who is now aged 61 years, and the 8 children of the deceased, who are now aged 16, 17, 18, 20, 21, 23, 25 and 34 years. Three witnesses were called for the Plaintiff including the eldest son and eldest daughter of the deceased. Damages under the LARCO claim for loss of expectation of life were agreed to by the 2nd Defendant to be at conventional award of $20,000. Further funeral expenses, for which receipts for most of the items were available, were agreed at $6,333. It was also obvious and agreed that the claim for lost years under the LARCO and FAO awards must merge.

LARCO CLAIM

(1) LOSS OF EXPECTATION OF LIFE			$20,000.00
(2) FUNERAL EXPENSES			$6,333.00
(3) LOST YEARS - LOSS OF EARNINGS
	(i)	Pre-Trial

(a) There was evidence that the deceased was a healthy, hard-working woman at the date of her death. As well as cooking meals and providing for her 8 children living at home, she looked after and took care of her husband who was partially paralysed from a stroke suffered in 1972 and has been unable to work since. The real issue was her contribution to the family business of painting, spraying and dyeing plastic flowers which was operated from the family residential address by the 2 eldest sons. I accept that the average monthly income from this family business was $5,000 and that the deceased contributed 20% of the total family labour in this work. Her share towards the income was thus $1,000 p.m. Taking household expenses at $3,500 p.m. and dividing that figure between the 10 family members, the deceased mother's share was $350. After allowing $100 as her personal expenses the free balance would be $550. This family business ceased in April 1982 when the plastic factory utilised cheaper labour in China to do this work.

Taking 48 months from May 1978 to April 1982 x $550 = $26,400.00

(b) Evidence is accepted that the deceased worked as a seamstress doing work at home when not engaged in the family business. Furthermore, that this work from other factories in the samee building would have been available after April 1982 when the family business ceased. Taking an average daily income of $35 for this work and on the basis of a 6 day working week the deceased's monthly income from this source is assessed as follows $35 x 6 (days) x 50 (weeks) ÷ 12 = $875 p.m. After deducting cost of her own support - $350 and her personal expenses of $100, the remaining free balance is $425.

The period from May 1982 to assessment is 33 months so that the loss of free balance is $425 × 33 =

$14,025.00

(ii) Post-Trial

3. As the deceased was in good health and aged 48 years at the date of her death the appropriate multiplier would be 9. After deduction of the 81 months since date of death already assessed under pre-trial loss, the post-trial loss is assessed as follows:-

	Free balance $425 × 27 =	$11,475.00
		_________
	TOTAL LARCO CLAIM	$78,233.00
		========

FAO CLAIM

(A) (1) HHUSBAND'S DEPENDANCY CLAIM

4. Taking into account the circumstances of this case and on the authority of Wong Ting v. Yuen Hing Kwan H.C.A. No. 727 of 1977, where $2,000 was awarded under this head, the same sum is allowed. $2,000.00

(2) HUSBAND'S LOSS OF WIFE'S CARE

(i) Pre-Trial

(a) The husband has been virtually an invalid since a stroke in 1972 and was looked after at home by his wife until the date of her death in 1978. The eldest daughter gave up her employment, with a monthly salary of between $1,200 to $1,500, to take over her mother's role in caring for her father. However, like her mother she was able to look after her father, cook meals and perform household duties as well as to contribute her labour to the family business. Even though on the evidence the daughter's contribution to the family business was equal to her mother's, the actual loss of income to the family was the daughter's salary as she could no longer take outside work. On this basis the actual loss under this head from date of death until the eldest daughter married in November 1981 is assessed as follows:-

Daughter's average monthly earnings of $1350 × 42 months =

$56,700.00

(b) From December 1981 to February 1985 WONG Ting-ping, a girlfriend of one of the sons, looked after the father on a part-time basis for which she was paid $1,000 p.m.

Assessment for this period - $1,000 × 38 months =

$38,000.00

(ii) Post-Trial

5. From February 1985 home help for the husband will no longer be available and cheapest full-time institutional care will cost $2,800.00. However, part-time help at home may be available at a cheaper figure. As husband's age is now 61 years and his health appears to be deteriorating an appropriate multiplier would be 4. The assessment is therefore

$2,000 ×48 months =

$96,000.00

(3) HUSBAND's LOSS OF DECEASED'S CONTRIBUTION

As for LARCO claim the multiplicand is the free balance of $425 p.m. divided between the 6 remaining dependants = $71 p.m.

Applying the same multiplier of 9 the pre-trial loss is 71 × 81 months =		$5,751.00
and the post-trial loss is 71 × 27 months =		$1,917.00
		_________
		$7,668.00
HUSBAND'S DEPENDANCY CLAIM	TOTAL	$200,368.00
		========

B) DEPENDANT CHILDREN

(1)	HUI Chi Hing was 17 years of age when the deceased died and has been working as a clerk since and therefore has no claim.
(2)	HUI Tze Bun was 15 years of age when his mother died and took employment as a clerk a year later. Loss of dependancy claim is $71× 12 months =		$852.00
	Loss of mother's service - fixed monthly award of $200 divided between 5 remaining dependant children.
	$40 × 12 months =		$480.00
(3)	HUI Tze Wai was 14 years of age at the date of her mother's death and is now employed as a bank clerk. Assuming she has been working for 2 years, as this was not covered in evidence, her dependancy claim would be $71 × 36 months =		$2,556.00
	Loss of mother's service = $40 × 36 months		$1,440.00
(4)	HUI Tze Yee was 12 years of age when deceased died. Although he has completed his schooling, he has yet to find employment. On the basis of dependancy until he was 18 years his dependancy claim is $71 × 72 months =		$5,112.00
	Loss of mother's service - $40 × 72 months =		$2,880.00
(5)	HUI Tsz Sham was 11 years of age when her mother died but absconded from home in 1984 when she was 17 years old. Her dependancy claim is therefore $71 x 72 months =		$5,112.00
	Loss of service of mother $40 × 72 =		$2,880.00
(6)	HUI Tsz Ki was only 10 years of age when her mother died and is still attending secondary school. As she intends to continue her education for another year her dpendancy claim is $71 × 96 months =		$6,816.00
	Loss of service of mother $40 × 96 months =		$3,840.00
			________
	CHILDREN'S DEPENDANCY CLAIM	TOTAL	$31,968.00
			_________
	TOTAL FAO CLAIM =		$232,336.00
			========
MERGER OF LARCO and FAO CLAIMS
(A) Husband
	As deceased died intestate the husband is
entitled to the first $50,000 out of his wife's estate with the balance to be shared equally between the husband and the 8 children. The husband's share of the estate is $50,000 + (balance of LARCO Claim $28,233.00 divided by 2) =			$64,116.50
Therefore only this sum representing the husband's share in the estate should merge with the husband's award under the FAO Claim - that is, $64,116.50 (LARCO) merges with the $200,368.00 (FAO).

(B) Children

6. The 8 children's share of the residuary estate under the LARCO claim is $64,116.50 ÷ 8 = $1,765.00. This sum of $1,765.00 will merge with those awards of the 5 dependant children under FAO in each case.

SUMMARY OF ASSESSMENT

1.	DECEASED - CHAN Pitt Moon
	(a) Loss of expectation of life -		$20,000.00
	(b) Special Damages - Funeral Expenses -		$6,333.00
	(c) Loss of Earnings
		Pre-Trial	$40,425.00
		Post-Trial	$11,475.00

			___________
			$78,233.00
			========
2.	HUSBAND - HUI See Ho
	(a) Loss of Consortium -		$2,000.00
	(b) Loss of wife's care -		$190,700.00
	(c) Loss of dependancy on wife's contribution -		$7,668.00
			__________
	TOTAL HUSBAND'S AWARD		$200,368.00
			========
3.	CHILDREN
	(a) HUI Tze-wah - share of residuary estate		$1,765.00
	(b) HUI Chi-cheung - share of residuary estate		$1,765.00
	(c) HUI Chi-hing - share of residuary estate		$1,765.00
	(d) HUI Tze-bun - total dependancy claim of $1,332.00
		does not exceed share of residuary estate	$1,765.00
	(e) HUI Tze-wai - dependancy claim		$3,996.00
	(f) HUI Tze-yee - dependancy claim		$7,992.00
	(g) HUI Tsz-sham - dependancy claim		$7,992.00
	(h) HUI Tsz-ki - dependancy claim		$10,656.00
			________

	TOTAL CHILDREN'S AWARD		$37,696.00
			========

Awards for dependant children to be held on trust by the Registrar and invested on usual terns until each child attains 21 years.

7. There will be interest at 2% on the general damages from the date of service of the writ to the date of judgment and interest at 6.5% on the special damages from the date of the accident until the date of judgment. There will be no interest on the assessment for loss of future earnings.

8. Costs on this assessment to the Plaintiff, whose costs are to be taxed in accordance with Legal Aid Regulations. A certificate for Counsel is to issue.

	(P.H. O'Donnell)
	Ag. Master

Representation:

Mr Lau instructed by Messrs Cheung, Tong & Rosa for Plaintiffs

Mr Fan of Messrs Johnny T.K. Cheng & Co for 2nd Defendant 1st Defendant Mr Poon Chi Ping present in person