Lui Kwong Kam v. Yeung Fat Construction Co (A Firm) and Another

HCA001714/1978

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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Coram: Mr. Registrar Barnett in Chambers.

Date of Judgment: 19 March 1979

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ASSESSMENT OF DAMAGES

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1. The plaintiff claims damages for the death of his wife who died on 25th July 1975 when the wall of a building collapsed into the street. The 1st defendant was engaged in demolishing the building at the time. The proceedings against the 2nd defendant have been discontinued.

2. At the date of his wife's death, the plaintiff was the proprietor of a small paper box factory. It was a typical Chinese family business, the only real employees being the plaintiff's wife and son. In cross-examination, Mr. Poon attempted to show that perhaps there was something more to it but in the end did not seek to pursue the matter.

3. It is not contested that the plaintiff's wife worked on average 5 hours a day in the factory and was paid $800 p.m. For a further 4 hours a day, she did all the household chores such as cooking, cleaning and shopping. The son was paid $900 p.m. for a full day's work in the factory. It is implicit that he had full board and lodging.

4. It is necessary to establish the going rate for a paper box factory employee at the time of death. Both the plaintiff and his son gave evidence. The plaintiff's own evidence is contradictory and there is a measure of contradiction between father and son. Mr. Poon not unnaturally hoped to make capital out of this. The plaintiff was somewhat generous in his recollection of dates. At one time he said he hired a substitute worker for $8-900 p.m. two years ago, at another he said such money was paid before his wife died. I am satisfied that this was no more than the usual confusion that a witness finds himself in when, at one moment he is being asked to use the date of death as a datum point, and then being brought forward to the present. The plaintiff really pinned down the relevant date when he said that about a year before her death his wife went to China and he had to hire a substitute worker. He then paid $8-900 p.m. I find that as a fact.

5. After his wife's death, the plaintiff closed his business some time in 1976 because he was unable to afford the wages asked by paper box workers and consequently could not cope with the work. The plaintiff said workers were then asking as much as $1,500 p.m. The plaintiff's son, who was by then seeking work on the open market, gave evidence that he was able to earn $1,200 p.m. in 1976 and 1977. He is now able to earn $14-1500 p.m. I accept the son's evidence and find $1,200 to be the rate in 1976.

6. On the basis of the facts as I have found them, I think it reasonable to say that the going rate at the date of death was $1,100 p.m.

7. Counsel are happily agreed as to how damages should be measured. First, it is the difference, if any, between the full market rate and the rate at which the deceased was paid. This would be a benefit to the plaintiff by virtue of their relationship as husband and wife and can be claimed as a dependency.

8. Secondly, it is the value of the deceased's domestic services.

9. As to the first, Mr. Poon would have it that the deceased was not working at a lower rate.

10. As to the second, Mr. Poon in my view correctly distinguishes the cases cited for the plaintiff by showing that they related to young couples with children where the wife would have a great deal more work and responsibility.

11. For the plaintiff, Mr. Huggins suggests that finding the right value in both aspects is largely a matter of impression.

12. I am of the view that these matters cannot be looked at in isolation. The plaintiff's factory was a Chinese family unit. This would give the plaintiff great flexibility in running his business and, because they were working for themselves, the wife and son would have had more incentive than a monthly paid employee. Therefore, although she only worked 5 hours in the factory each day, I think it right to consider the wife as effectively a full time employee who was working for about $300 less than the then market rate. Alternatively, if his wife was doing less than a real day's work in the factory, then the plaintiff has lost the services of an amah or housekeeper. There is evidence to suggest that a part-time amah would have cost in the region of $400 p.m.

13. It is more realistic to say that the plaintiff lost a full time employee. Upon the facts I have found, the loss to the plaintiff appears to be $300 p.m. However, while wages have already risen considerably, I think it doubtful whether the plaintiff would have paid, or the deceased asked for, more than $800 p.m. Allowance must be made for this. I therefore put the loss of the plaintiff at $400 p.m.

14. Various cases were cited to me as to an appropriate multiplier. Mr. Huggins suggests 6 or 7 : Mr. Poon 4 or 5. The plaintiff is now 70 although to me he did not appear so. He is clearly fit and healthy and would no doubt still be running his business but for his wife's death. His wife was 61 or 62 when she died, and also in good health. Almost 4 years have elapsed since the date of death. In the circumstances I think a multiplier of 6 is appropriate.

15. Accordingly, damages under the Fatal Accidents Ordinance are $28,800, together with $1,000 for loss of consortium as agreed, totalling $29,800.

16. Funeral expenses were agreed at $4,000. I allow this also.

17. I also award $10,000 for loss of life under the Law Amendment and Reform (Consolidation) Ordinance although it is academic.

18. As to interest, I observe that Cookson v. Knowles has happily been overruled by Pickett's case, at least as far as personal injuries are concerned. Pickett has been followed by our own Court of Appeal in Leung Chat-nui v. Chau King-wai and Chau Sai-hung (Civil Appeal 13 of 1978). I see no reason to distinguish fatal accidents cases. I therefore award interest on the funeral expenses at the rate of 4% from the date of the accident and at 8% on $29,800 from the date of service of the writ.

19. Damages and interest are to be paid to the plaintiff's solicitors within 14 days.

20. The plaintiff will have costs with a certificate for counsel. The costs are to be taxed, on a party and party basis against the 1st defendant and on a common fund basis against the Director of Legal Aid.

21. If they wish, I am willing to hear counsel on the question of interest.

22. Date this 19th day of March, 1979.

Representation:

Mr. A. Huggins (Johnson, Stokes & Master) for Plaintiff.

Mr. H. Poon (T.S. Tong & Co.) for 1st Defendant.