Chiang Ying Cheng and Another v. Ho Lai Ping and Another
Read the full judgment text of HCA 2390/1974 on BabelCite. This High Court CFI judgment was delivered on 21 March 1979.
1. This is an assessment of damages consequent upon the deceased's death in a traffic accident on the 23rd April 1973. Interlocutory judgment was ordered to be entered against the first defendant in favour of the plaintiffs on 21st July, 1976 with damages to be assessed.
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HCA002390/1974
IN THE SUPREME COURT OF HONG KONG HIGH COURT -----------------
----------------- Coram: Mr. Registrar O'Dea in Chambers. Date of Judgment: 21 March 1979 ----------------- DECISION ----------------- 1. This is an assessment of damages consequent upon the deceased's death in a traffic accident on the 23rd April 1973. Interlocutory judgment was ordered to be entered against the first defendant in favour of the plaintiffs on 21st July, 1976 with damages to be assessed. 2. Immediately prior to his death the deceased was 38 years of age and was the proprietor of two businesses, each of which operated shops dealing in electrical appliances. One of these, named Universal Company, conducted a retail outlet at Sha Tsui Road, Tsuen Wan and the other, Universal Electrical Company, was operated from the Kwai Hing Estate. The latter business also undertook electrical repairs and contractual work. Unfortunately, there was no evidence before me to indicate with any certainty the deceased's earning from both concerns in the years prior to his death. Certain statements of account which were tendered at the hearing disclosed that the Sha Tsui Road business was operating at a loss and the deceased's salary was given as $650 per month for the years 1971/72 and $1,300 for 1972/73. No statements were available concerning the Kwai Hing Estate enterprise although the deceased's widow filed an affidavit in support of her application for a grant of letters of administration in which she deposed to the fact that this latter concern had also incurred a trading loss of an amount slightly in excess of $6,000. She did attempt to explain that this did not take into account the profits earned from contractual undertakings, although there was considerable confusion on her part as to the financial position of this latter business. 3. The significance of these attempts to ascertain the deceased's personal earnings can be appreciated when the evidence of the deceased's family disclosed that he was contributing a total monthly sum of approximately $5,000 to various members of his family. Without wishing to speculate on such matters as the accuracy of the accounts and the profitability of the electrical contracting side of the business I am left in grave doubt on the evidence before me as to his ability to make the contributions alleged. 4. On his death the deceased left a widow now aged 37 years and a daughter who is now 6½years old. In addition the deceased's parents and ten brothers and sisters also claim some form of dependency. The widow, a plaintiff in this action, gave evidence that she and her deceased husband lived together with their daughter at an address in Castle Peak Road, Tsuen Wan. She described her household expenditure and other outgoings as totalling in excess of $1,600 per month. These expenses were entirely met by her husband and included the cost of air-fares for herself and her daughter to travel to Taiwan to visit her own family, which visits she undertook about twice per year. Since her husband's death the widow has attempted to continue operating the two businesses previously owned by her husband although she now has to employ managers and the income which she derives from this venture is slight. On considering her evidence I am satisfied that the deceased did make the contributions as alleged to support his wife and child and an appropriate multiplicand, taking into account inflation and the income which she receives from her husband's business, would be $1,700 per month. 5. Various decisions were cited to me to assist in determining the correct multiplier and in similar cases these ranged from 11 to 15. I consider the proper figure to adopt should be 13 and the calculations will be assessed on that basis. If it is necessary to apportion this award into the categories of special and general damages the damages awarded to the deceased's widow and daughter can be calculated as follows:- Special Damages
General Damages
6. The interests of the infant daughter of the deceased would be adequately protected if I were to apportion as her share from the damages awarded an amount of $60,000 which sum will be paid into Court and invested on her behalf by the Registrar with the right to make payments out at his absolute discretion. 7. I now turn to the dependency claimed by the deceased's parents and his brothers and sisters. As already indicated, I am not prepared to find on the evidence before me that the deceased was in a position to provide substantial financial support to the other members of his family after taking care of the needs of his wife and child. Nor can I ascertain, without indulging in pure guesswork, the actual earnings which he received prior to his death. 8. The deceased's mother gave evidence that his monthly contribution prior to his death averaged $3,400. This is, of course, in addition to the financial contributions he was making to support himself, his wife and child. For the purposes of this assessment and taking into account the evidence before me I am unable to accept such a dependency value. I must also bear in mind that shortly after his death several of the deceased's brothers and sisters were engaged in employment and it would be reasonable to expect that the reliance of the family on the deceased would be significantly lessened. 9. In all the circumstances I have concluded that the contributions which the deceased would have made to this branch of his family in the years following his death would not have exceeded $1,500 and I have adopted this figure as the multiplicand. 10. I was urged to consider a figure of 8 as an appropriate multiplier. I consider this a little high. Whilst I accept that the deceased's parents were unable to resume employment and they had one child who would always be dependent on them due to mental retardation, the other children were increasingly gaining self-independence and were thus in a position to assist their parents financially. The multiplier that I have decided to adopt is 6 and in view of the time that has elapsed between the date of death and the hearing of this assessment it would be convenient to categorise this award as being special damages. The calculation will be as follows: ($1,500 x 12 x 6) = $108,000. I do not propose to attempt to apportion this award amongst the various dependants in view of their ages and the changing circumstances of the various family members. 11. The final heads of damage to be considered are those special damages claimed as funeral expenses and damage to clothing. The claim for the former amounts to $6,645.00 and has been fully supported by receipted accounts. It is not, in my opinion, an unreasonable amount and I will allow it in full. The final claim for damage to clothing and personal effects was originally itemized as $400. Some attempt was made during the course of the hearing to suggest that, in fact, the loss was considerably greater. There was, however, no attempt to support the higher value placed on the deceased's personal effects by means of any documentary evidence and I will confine my award to the amount initially claimed. 12. The various damages awarded can be set out as follows: General Damages
Special Damages
13. Damages to the estate for loss of expectation of life under the Law Amendment and Reform (Consolidation) Ordinance, Cap. 23 will be allowed at the current conventional figure of $10,000.00 but will, of course, merge with those damages already assessed under the Fatal Accidents Ordinance. 14. I now turn to the somewhat vexed issue of considering whether to award interest on the general damages assessed. I have deliberately adopted the method of dividing damages due to the deceased's widow and child into two parts, those between the date of death to date of trial being classified as special damages and the balance representing damages from the trial onwards coming under the head of general damages. Such a method is necessary were I to apply the guidelines as to the awarding of interest laid down in "Cookson v. Knowles" (1977) 2 A.E.R. 820 where it was held that while interest could be awarded on those damages up to date of trial at the normal figure of half the appropriate rate of interest, no award should be made on damages assessed for the period after the trial. In his judgment Lord Denning M.R. also dealt, by way of obiter, with lump sum payments for pain, suffering and loss of amenities in personal injury claims and suggested that neither should interest be awarded on such damages. 15. These new guidelines have gradually been followed in Hong Kong to the exclusion of the previous practice of awarding interest in accordance with the principles outlined in the earlier Court of Appeal decision of Jefford v. Gee (1970) 2 Q.B. 130 despite the fact that the sole motivation behind the changes outlined in Cookson v. Knowles appears to have been the "rampant inflation" existing in England at the time. 16. The dictum of the Court of Appeal in Cookson v. Knwoles dealing with interest on lump sum payments for pain, suffering and loss of amenities came under scrutiny in the House of Lords decision in Pickett v. British Rail Engineering Ltd. (1978) 3 W.L.R. 955, and was specifically disapproved. At p. 984 Lord Scarman said:
17. In a recent decision of the Court of Appeal in Hong Kong in Leung Chat Nui v. Chau King Wai & Chau Sai Hung 1978 No. 13 (Civil Appeal) the judgment of Lord Scarman in Pickett's Case was cited with approval and, although, this case dealt with a claim for personal injuries the clearest principle emerged namely that the purpose of giving interest on general damages is to compensate a plaintiff for being kept out of the capital sum between the date of the service of the writ and judgment. I cannot distinguish between fatal accident cases and personal injury claims when considering the application of this principle. In my view the 'fallacy' pointed out by Lord Scarman would apply equally to fatal accident claims as it would to personal injury claims and I propose, therefore, to apply the findings in Pickett's Case as recently approved by our own Court of Appeal. 18. Interest on the general damages will be awarded at 7% from the date of issue of the writ to the date of assessment and so long as the damages so awarded remain unsatisfied thereafter they will attract interest at 8%. Interest on special damages will be at the rate of 4% from the date of the deceased's death. 19. The Plaintiffs are entitled to their costs with a certificate for counsel. 20. Dated this 21st day of March, 1979.
Representation: Mr. Ronny Tong instructed by Philip K.H. Wong & Co. for Plaintiffs. Mr. Winston Poon instructed by Johnson, Stokes & Master for 1st Defendant. 2nd Defendant Wong Chow Lam. - absent |