Lai Kun v. Chau Chi Cheung and Others

HCA002379/1981

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

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Coram: Master Clay in Chambers

Date of Hearing: 9 April 1984

Date of Delivery: 21 September 1984

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ASSESSMENT OF DAMAGES

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1. On the 31st July 1978 LAI KAM FAI was a passenger in a car driven by Tong Kwok Ming when it was in collision with a bus driven by the 1st Defendant. LAI KAM FAI died of injuries which he sustained in the accident. The writ of this action was issued on the 13th April, 1981 and on the 28th February 1984 interlocutory judgment for damages to be assessed was entered against the 3rd Defendant. This matter was heard before me on the 9th April, 1984 but with the consent of the parties a decision was held over pending delivery of judgment by Mantell J. in High Court Action No. 11169/83 in which similar issues were raised to those in the present case. The decision of Mantell J. has now been delivered and the principles decided on in that case are applied here.

2. At the time of his death LAI KAM FAI was survived by his father who is the plaintiff in the present action, his widow LEE PAK LIN and two children, a third child was born shortly after Mr LAI died. Although I have described Madam Lee as Mr LAI's widow, she did in fact tell me that although there had been a marriage ceremony the marriage had never been regularised by registration. It was common ground between the parties that the marriage ceremony was not capable of resulting in a valid marriage. The three children in the circumstances are illegitimate. The three children are LAI TSZ CHEUNG, born on the 3rd January 1974, and now aged 10, LAI CHEUK SZE, born on the 26th February 1975 and now aged 9 and LAI HANG YIN, born on 12th August 1978 and now aged 6. The Plaintiff, the deceased's father is now aged 64. Prior to his death the deceased lived with Madam Lee and two children while the plaintiff, his father, lived separately from them. Madam Lee told me that the deceased prior to his death was a bulldozer-driver and had been so for some 7 years. He was aged 27. She told me that he earned about $3,000 per month although his earnings could go as high $4,000 per month. Out of this sum he gave her $1,100 - $1,200 per month out of which she paid for food, water, electricity and gas whilst the deceased paid the monthly rent of about $400 - $500 himself. There was evidence from the plaintiff that the deceased used to pay him about $400 - $500 per month to support his living.

3. I turn now to the position under statute. Under the Fatal Accident's Ordinance the children are dependants by reason of Section 2 (2) (c) as is the father under Section 2 (1). Madam Lee however does not fall within the definition of wife contained in the Ordinance and therefore has no claim. Madam Lee also is not a wife within Section 2 (1) of the Intestate Estates Ordinance nor are the children by reason of the fact that they are illegitimate and therefore only the plaintiff has any prospect of benefiting from an award made under the Law of Amendment and Reform (Consolidation) Ordinance.

4. I shall deal first with the position under the Fatal Accidents Ordinance. The father has a claim for dependency under the Fatal Accidents Ordinance but such claim would merge with what is a much larger award under LARCO. Mr Leung on behalf of the children submitted that the dependency of each child was $300 per month which was arrived at by adding to the $1,200 per month given to Madam Lee the $500 per month paid by the deceased as rental but deducting from that the sum $200 being an assessment of the value of the dinners which the deceased had at home and the proportion of the rent attributable to him. After those calculations, $1,500 was left which was divided by 5 being the number of persons comprising the household. With this calculation Mr Fan for the 3rd Defendant agreed. Mr Leung submitted the appropriate multipliers to be applied were 14, 15 and 18. I regard these multipliers however as on the high side even in view of the evidence of Madam Lee that she anticipated that all three children will complete their secondary education. I propose to apply multipliers of 10, 11 and 15 and on that basis, the award for LAI TSZ CHEUNG is $36,000, for LAI CHEUK SZE is $39,600 and for LAI HANG YIN $54,000.

5. I turn now to the award under LARCO; the award under the first head, loss of expectation of life was agreed between the parties at $15,000. On the calculation of lost years the Plaintiff and the Defendant were agreed that the appropriate multiplier to be applied in view of the deceased's age (27) at death was 15. In calculating the sum to be awarded under the loss of years I propose to adopt the method used by Mantell J. in H.C. Action No. 11169/83 i.e. first to calculate the dependency and add those savings which the deceased might had been expected to have accumulated. In the absence of any other evidence the conventional figure is 10% of income.

6. I have found that at the time of his death the deceased's earning was $3,000 per month. He paid to Madam Lee $1,200 per month for household expenses and from that figure I shall deduct the sum of $200 as being a proportion relating to the deceased. In addition the deceased paid the rent of $500 per month and I shall deduct from that sum of $100 as representing the proportion of the rent which related to the deceased. I shall also take into account in the calculation the $500 paid by the deceased to his father. I therefore assess the total dependency at $1,900. On that basis as the father and then the children ceased to be dependant upon the deceased the dependency reduces as follows:-

After 7 years from $1,900 to $1,400

After 10 years from $1,400 to $1,100

After 11 years from $1,l00 to $800

After 15 years from $800 to $500

Applying the agreed multiplier of 15 the calculation comes out as follows:-

With notional savings at 10% of his monthly earnings of $3,000 per month gives $300 x 12 x 15 = $54,000.

The total award therefore is $315,600

7. The plaintiff also claims the sum of $9,500 which was spent by him on funeral expenses. The plaintiff was unable to produce any receipts for expenditure saying that they had been burnt. He conceded that he could not really remember it now but recalled that the graveyard was about $4,00 with some sundries, the coffin around $2,500. I am prepared to accept that Mr Lai has shown that he spent $6,500 on the funeral and I award that sum.

8. There will be judgment under FAO for the children in the sum of $129,600 in the manner which I have set out above. There will be judgment under LARCO for $337,100 being $15,000 agreed loss of expectation of life $6,500 funeral expenses and $315,600 in respect of the lost years. I make an order for interest of 7% per annum on the damages under FAO for the period from the date of the accident to the date of the hearing of assessment of damages and at the same rate for the same period on the damages of lost years and make an order for interest of 2% per annum on the damages for lost of expectation of life from the date of writ to the date of judgment. There will be an order for payment to the plaintiff's costs by the Defendant and the plaintiff's own costs be taxed in accordance with Legal Aid Regulations.

Representation:

Mr Franky Leung of Counsel for Plaintiff instructed by Messrs Chan & Chuk

Mr Fan of Messrs Johnny T.K. Cheng & Co for the 3rd Defendant