Cheung Mei Nor and Another v. Mak Kau and Another

HCA004455/1978

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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Coram: Mr. Registrar O'Dea in Chambers.

Date of Judgment: 10 July 1979

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DECISION

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1. This is an assessment of damages resulting from the death of the deceased when he was knocked down by a vehicle driven by the 1st defendant and owned by the 2nd defendant. The deceased died on the 9th March, 1977.

2. The action was brought by the plaintiffs as the administratrices of the estate in whose favour interlocutory judgment was entered on 30th March, 1979.

3. Dependancy was claimed for the following:-

4. It was agreed by the parties that immediately prior to his death the deceased was earning $987.79 per month. The deceased's widow, his daughter and a relative gave evidence both as to his age and his contributions to the family. For some reason, the nature of which I will refrain from speculating upon, I am left in the highly unsatisfactory position of having no clear indication as to either the deceased's age or his contributions to the family. An attempt was made to produce an identity card into evidence which included a date of birth which had not been verified. I do not consider that such a document can, of itself, be accepted as providing accurate information as to a person's age. If the date of birth claimed on the identity card was to be accepted it would have put the deceased's age at the date of his death at 57 years. The statement of claim originally gave his age as 67 but this was the subject of an amendment at the hearing to 63. The deceased's widow was vague on this aspect but a relative gave evidence that he was aged 58 at the date of his death. With four different ages mentioned spanning a period of ten years the important determination of adopting an appropriate multiplier has been virtually reduced to an exercise in guesswork.

5. Similarly with the question of the rate of dependancy, the deceased's widow was unable to give any accurate evidence as to how much the deceased contributed to the household. Her evidence was couched in the terms "sometimes he gave me $800". No attempts were made to ascertain from her what he contributed at other times and the evidence of a relative as to what she knew of his contributions was unsatisfactory and inconclusive. Another feature of the evidence which did little to enhance the plaintiffs' case was the statement by the deceased's widow that during the years prior to the deceased's death his daughter was a school student. It was left to cross-examination to bring out the fact that for about a year prior to her father's death she was attending evening classes and working full-time during the day. All this vagueness and confusion prompted Counsel for the defendants to submit that on the evidence it was quite impossible to assess any damages at all. I am almost in agreement with him but have decided to attempt to salvage something from the wreck.

6. As the deceased's earnings were agreed at a monthly figure just short of $1,000 and I am satisfied that he did contribute to the support of his family I would expect that the minimum he would have paid would be $650 per month. After deducting his own expenses I have determined that a fair multiplicand could be $500. It may well be higher but the evidence deprives me from coming to such a finding.

7. Turning now to the evaluation of an appropriate multiplier, the uncertainties as to the deceased's age must be resolved in the defendant's favour. I propose to use as a basis an age of 63 years. There was evidence to show that he was in good health prior to the accident and could have expected to continue in his employment for as long as he was fit enough to do so. A number of relevant decisions were cited to show that multipliers ranging from 5 to 8 have been adopted for men who died in their early or middle sixties. In this case I believe that the correct multiplier is 6 and accordingly general damages are assessed as follows:-

($500 x 12 x 6) = $36,000.

8. Counsel for the plaintiffs attempted at some length to persuade me that there should be a further award for the "lost years" as recently provided for in the House of Lords decision in Pickett v. British Rail Engineering Ltd. (1978) 3 W.L.R. 955.

9. With the greatest respect the principles enunciated by the Court in that decision have absolutely no relevance to the facts in this case. The House of Lords in Pickett's case were essentially considering a claim for damages as a result of personal injuries suffered by the plaintiff. A consequence of those injuries was that the plaintiff's expectation of life was substantially reduced and the Court held that in addition to recovering loss of earnings up to the time he was expected to live the plaintiff was also entitled to damages for the period he might have lived but for his injuries, such latter period being termed the "lost years". There is, of course, no "lost years" period in a claim under the Fatal Accidents Ordinance, Cap. 22 because the multiplier which is adopted is a realistic assessment of the future total period in which the deceased was expected to be in receipt of earnings thereby enabling him to support his dependants.

10. I do not propose to attempt any apportionment of the damages awarded. It was clear that a very loose arrangement existed as to the remittance of money to the deceased's two sons in China and I am satisfied that the widow will, if necessary, continue such arrangement. Similarly it appeared that the deceased's daughter was no longer a dependant and I am content to allow her mother to make whatever provision she considers necessary for her daughter's future needs, if any.

11. The convential award under the Law Amendment and Reform (Consolidation) Ordinance, Cap. 23 is currently $10,000 and this will, of course, merge with the damages assessed under the Fatal Accidents Ordinance.

12. The only claim for special damages related to funeral expenses which was agreed at $6,000.

13. Interest on the general damages awarded will be allowed at 7% p.a. from the date of service of the writ and on special damages at 4% p.a. from the date of the accident.

14. The plaintiffs are to have their costs in accordance with the Legal Aid Regulations with a certificate for counsel.

15. Dated this 10th day of July, 1979.

Representation:

Mr. W. Chan instructed by D.L.A. for Plaintiffs.

Mr. M. Bunting instructed by Johnny T.K. Cheng for Defendants.