Ho Wah v. Wong Ting Chiu and Another

HCA001291/1978

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Coram: Li, J. in Court

Date of Judgment: 15 January 1979

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JUDGMENT

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1. This is an action brought by Ho Wah in his capacity as administrator of the estate of Ho Yuk Chu, deceased. The action is brought under the Fatal Accidents Ordinance for the dependants of the deceased and under the Law Amendment and Reform (Consolidation) Ordinance for the estate of the deceased who was killed on 28th April, 1977 in a traffic accident while she was a passenger on a public light bus owned by the 1st Defendant and driven by the 2nd Defendant.

2. At the commencement of the proceedings learned counsel for the defence informs me that there is no dispute as to the question of liability. The only question is one of quantum of damages.

3. At the time of the accident the deceased was 23 years old. She left, surviving her, a father aged 53, mother 52, three brothers aged respectively 19, 16 and 13. The two elder brothers are Form V students and the youngest is a Form III student - they are all dependent upon her. At the time of the accident the father of the deceased worked in a bar earning about $900 per month. Since her dealth he had changed his job somewhere else and is earning now $1,200 per month.

4. Upon the evidence of Mr. Tao Ho of Tek Device Ltd., the former employer of the deceased and having seen Exhibit 1, her wage sheet or record in the year prior to the accident, I am satisfied that the average earning of the deceased prior to the accident was about $850 per month. The evidence is that she gave all her earnings to the mother and received from her an allowance of $5 per day for travelling, breakfast and lunch expenses. She worked on an average of a 20-day month. Therefore the allowance given to her would be something like $100. She had her evening meals at home and she lived with her parents. Presumably, during non-working days she would have her breakfast and lunch at home as well. There is evidence that her one meal per day at home would cost the family about $50 - $60. This together with her breakfast and lunch on non-working days I assess in monetary term to be something like a total of $70 per month. Thus the benefit the deceased received exclusively for her own benefit out of her earnings was $170 per month. The rest, I understand, was for the maintenance of the family as a whole. I find that her contribution to the family to be $680 per month. For this reason I would adopt a muliplicand of $8,160 (i.e. $680 x 12).

5. At the time of the accident the deceased was single. She had no boy friend. She was a quiet girl dedicated to the family. According to her mother, one reason why she wanted to stay single was to help the family to tie over its difficult days. The employer, Mr. Tao Ho, also gave evidence that although she earned a basic wage of approximately $32.55 per day in the year prior to the accident yet, had she survived, she would have earned about $53 per day. I have no doubt that she would have given a bit more to help the family. Her eldest younger brother, being 19 probably requires her assistance for something like 3 - 4 years, her second youngest, being 16/17, another 5 - 6 years and the third, the youngest brother, another 7 - 9 years. This average out between 5 - 7 years or 6 - 8 years on the average before the brothers start earning. As far as the parents are concerned, I am almost certain that she would continue to help them even though partially for another 10 or 15 years or so during their old age. By that time the brothers would be on their feet. If they are as worthy was was the deceased they would help the parents. The deceased, had she survived, would have considerably reduced her contribution. That is one side of the picture.

6. On the other side of the picture, the decased was a young girl. Although she had no boy friend and she had intended to help the family to tie over the difficult days. Yet marriage cannot be ruled out. When the financial burden of the family is lighter, she might meet someone and she would get marry. In that case she would have kept more money to herself and her family. But I am certain she would continue to give some money however small a sum to her parents. In this day and age when it comes to contribution to the family and dependency not much difference can be made between a male and a female. A male will get marry and has to be responsible for his family. He may find himself not in a position to contribute as much as a married female for the support of his aged parents. On the other hand a married female has her own earnings plus whatever pin money she receives from her husband.

7. Taking all into consideration and having regard to some of the cases cited to me I would adopt a multiplier of 8. The general damage therefore for the dependency is 8 x $8,160. If I work it out correctly it comes to $65,280.

8. As far as the special damages are concerned, there is indeed no documentation to substantiate either of the claim for funeral expenses of $4,335 and an additional sum of $5,000 for the construction of the tomb. Learned counsel for the defence very fairly suggested that he would not quibble with the funeral expenses for $4,335 but he does take his stand as far as the $5,000 is concerned. In evidence the deceased's mother said that it included the costs for the construction of the tomb. I suppose that some part of the $5,000 must have been applied for the burial ground as well. One cannot close one's eyes to the facts of life in these days that sometimes it is even more expensive to die than to live in Hong Kong. A place for burial requires money. For this reason I would cut down the $5,000 and make it a lump sum together with funeral expenses and assess special damages in the sum of $7,000.

9. As to the claim under the Law Reform Ordinance I observe that she was killed more or less instantly. There was very little pain and suffering. She was a young woman. There was loss of expectancy in life. Obviously life had its own attraction with various amenities. There again, since this was a very hard-working and dedicated girl, she would have a hard and austere life unless one says that work is pleasure. In any event, the sum that is awarded under the Law Reform Ordinance to the estate would have to emerge with the damages awarded under the Fatal Accidents Ordinance. I would simply assess $5,000. The end result is that there will be general damages of $65,280, special damages $7,000 making a total sum of $72,280. I take it that the cost should follow the events and the Plaintiff is to have costs to be taxed in accordance with the Legal Aid Regulations.

Representation:

Miss Tao (Rowdget Young & Co.,) for Plaintiff

Mr. Stone (H.A. Hossenally & Co.,) for Defendant