Chan Kit Ching and Another v. Lee Yuk Sui

HCA004249/1982

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

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Coram: Master Barrington-Jones in Chambers

Date of Judgment: 26 November 1982

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DECISION

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1. Miss Yu Hoi Yee was seriously injured in a traffic accident on the 2nd November 1980, when she was the pillion passenger on a motor cycle being driven by the defendant, and later died from her injures on the 14th November, 1980.

2. Interlocutory judgment was entered against the defendant: on the 6th July 1982, with damages to be assessed. Whilst the hearing in respect of the assessment took place on the 21st September, 1982. A summons to set aside the default judgment was filed on the 6th October, but this was subsequently dismissed on the 15th November, 1982.

3. At the time of her death Miss Yu was 22 years of age and was a Line-leader in the assembly department of a factory earning $1,150 per month plus overtime of about $300 per month; and lived with her mother (the plaintiff). She was unmarried and had no particular boyfriend.

4. There is only dependancy for the plaintiff who could, I believe, expect a measure of support from her daughter for the remainder of her days.

Pain and suffering and loss of amenities

5. Provision under this head arises from the fact that the deceased was in hospital from the 2nd to the 14th November, 1980 during which time she twice suffered cardiac arrest and was successfully resuscitated on both occasions, but she gradually deteriorated and died on the 14th November, 1980. There is good authority for making an award under this head in cases like this. In October, 1978 Judge Jones (as he then was) in Wong Chiu Yuen v Chan Sang (1979) 9 H.K.L.J. 104 awarded $2,000 in respect of a deceased for "considerable pain suffering" before lapsing into a coma. Using this case as a yardstick, I agree with Mr Bharwaney that $5,000 is the appropriate award to make here.

6. Mr Bharwaney made detailed submissions as to how the lost years claim should be formulated under LARCO. There is now no doubt that the correct approach to be adopted is fully set out by the Chief Justice in Wong Sai-chuen and Tam Mei-chun etc., 1981 No. 133 (Civil). In adopting the formula set out in page 10 of that judgment I apply it to the facts in this case.

7. It was in evidence that the plaintiff prior to November 1980 used to withdraw $1,100 per month from her daughter's bank account leading $50 each month in the account; whilst the deceased retainer her overtime pay and used it for her out-of-pocket expenses; the plaintiff paying all the domestic expenses for the household in which they both lived.

8. At the time of nor death the deceased was earning $1,450 of which about $200 was deducted for her personal expenditure. Incidentally it should be stated here that there was no evidence as to what tax, if any, was paid by the deceased. If there was any it would, I think, have been too small to be in any way significant and I have therefore ignored it in my calculations. I should then deduct a figure to reflect a proportion of the household expenditure which was attributable to the deceased. I believe the proper figure here should be $150 per month for this purpose. Thus the net figure to be adopted as a multiplicand is $l,100. It is now almost two years from the occurrence of the accident so that I propose multiplying the figure of $13,200 by two years which gives a total of $26,400.

9. It is now necessary to ascertain a multiplicand in respect of future loss of earnings. And in so doing I accept Mrs Wong's evidence that the deceased could have expected to have been promoted to an assistant supervisor in 1981, and that in 1982 she would most probably have gone on to be a supervisor at a salary of $4,000 but in that post she would not have been entitled to overtime payments; I further accept that she could have worked at the Factory until she reached the age of 60. On the basis of what was given in evidence by Mrs Wong I consider that I can in this case treat her income for there purposes as being $4,000 per month; and doing the best I can to calculate her expenditure I believe that she would have set aside for herself as personal expenditure the sum of $300; and I would further calculate that the share of general outgoings attributable to her would amount to $300, thus making a total of $60C in all; I therefore adopt a net figure of $3,400.

10. On the question of the appropriate multiplier to adopt here I have Kept in mind that tae deceased was a healthy young girl of 22 at the time of her death. She had a steady job in the factory with good prospects for promotion and she could have remained in her employment until the age of 60. Having carefully considered all the factors I find this is a case where I can safely adopt the maximum multiplier of 16 years. Two of those years have already passed by reference to the calculations set out earlier. In respect of the remaining years the amount of the claim for the loss of future earnings is therefore $3,400 × 12 × 14 which produces the figure of $571,200.

11. It is now well established law that a claim for loss of expectation of life can be maintained under LARCO. I therefore propose awarding the conventional amount of $15,000 under this head. I also propose awarding funeral expenses of $4,985.

12. The deceased died intestate and her only dependant is her mother (the plaintiff) who will, of course, inherit the deceased's estate in accordance with tire provisions of the Intestate Estates Ordinance, Cap 73. There is therefore no award under FAO in this case.

SPECIAL DAMAGES

13. Special Damages are allowed in respect of travelling expenses to the hospital in the sum of $360, as well as medical expenses in the sum of $60.

14. The total amount of the award is thus $622,585 together with Special Damages in the sum of $420.

15. Interest will be at 14% in the sum of $617,600 from the date of service of the writ until judgment; and at 7% in respect of funeral expenses and special damages in the total sum of $5,405 from the date of judgment payment.

16. The plaintiff is entitled to costs, with a Certificate for Counsel, such costs to be taxed in accordance with the Legal Aid Regulations.

Dated this 26th day of November, 1982.

Representation:

Mr M. Bharwaney (instructed by Day & Co) for the Plaintiff.

The Defendant in person.