Chan So-yuen and Another v. Dasmagan Rai
Read the full judgment text of HCA 396/1977 on BabelCite. This High Court CFI judgment.
1. This action arises from a fatal traffic accident. The question of liability has already been decided. Issues of damages only remain.
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HCA000396/1977 IN THE SUPREME COURT OF HONG KONG HIGH COURT ACTION NO. 396 OF 1977 -----------------
----------------- Coram: Cons, J. Date of Judgment: 7th October 1977. ----------------- JUDGMENT ----------------- 1. This action arises from a fatal traffic accident. The question of liability has already been decided. Issues of damages only remain. Funeral Expenses 2. There is no dispute here. The sum to be awarded is $3,000. Loss of Expectation of Life 3. There appears to be some doubt at the moment as to what is the correct sum to be awarded under this head. Most frequently the question is only of academic interest and must be seldom, if ever, argued. Two years ago in Lau Hon-wah and another v. Jim Pak-chung, Percival(1) it was said by counsel that the "usual" figure had been placed at $10,000. Possibly this comment was based on the decision of Mr. Commissioner Yang, as he then was, in Poon Siu-chun v. Lee To-lup and another(2). This decision however does not seem to have been generally followed. In only one subsequent reported case has that much been awarded: Lee Shuet-ling and another v. Lai Ming-leung(3). 4. It is well settled that the figure does not remain static. It rises as the years go by. But the rise should not necessarily be gradual or strictly related to the fall in purchasing power of the dollar. It should be instead a progression by fits and starts, according to commonsense and experience: per Lord Upjohn in Naylor v. Yorkshire Electricity Board(4). The last fit or start here was in 1967 in Wong Kam-ying and Ho Po-chun v. Man Chi-tai(5). $7,500 was awarded (at p.208), which soon became shaded into the now conventional figure of $8,000. That was ten years ago. Experience and commonsense would seem to suggest that it is time for another. I would respectfully agree that $10,000 is now more appropriate. At the same time I would think that this is the upper limit of what can properly be termed "very moderate figures": Benham v. Gambling(6) and for my part I would not expect to see awards in excess of that amount for some considerable time to come, unless there is a radical change in the economy. The Dependency 5. It was pleaded that the deceased contributed $500 in cash each month towards the household expenses and gave other sums directly to various members of the family by way of pocket money, for the purchase of clothing or towards other similar outgoings. I am satisfied that $600 is a fair total assessment. Her job took her away from home for an eight-hour shift each day and she did not contribute much by way of services. Certainly no extra help has been engaged since her death. It is a fairly large family unit, spanning three generations, and everyone appears to have taken his or her fair share of the domestic chores except perhaps for the two sons. 6. Some of the cash contributions would have been expended for the deceased's own benefit. I assess this at $100 per month. I arrive at that figure by taking the total monthly expenditure of $1,500 and deducting $500 for fixed expenses such as rent, water and electricity. This is a pure estimate. No proper evidence was called. The balance I apportion as to $100 to each adult and $200 to each child on the principle that the children would, in addition to food, need money for school fees, uniforms and so on. The final dependency is therefore $500 per month. Period of Years 7. At the time of death the deceased was 41 years of age, her husband 47 years. They were still responsible for a son then 15, a daughter then 18 and the deceased's own mother aged 70. The other members of the family were self-supporting or not within the Ordinance. The deceased's normal retiring age would have been 55, with the possibility of extending to 60. However, in 14 years' time I would have expected both grandparents to be dead and all the children married, or if not, that they would have ceased to be a financial burden. With no commitment then other than her husband and considerable savings in the bank I think it unlikely that the deceased would have asked to stay on. In the circumstances I think a multiplier of 11 is appropriate. I should add that I see no prospect of a remarriage that might affect the husband's financial position in the future. Apportionment 8. I propose to apportion the award almost entirely in favour of the husband with only a nominal $100 to each of the other persons named as dependants. I do so because it seems to me that the father has, with some slight increase in the help from his two elder children, been responsible for their maintenance since the death of his wife and will continue to do so for so long as they do remain dependent. In the case of the daughter I would expect this to cease in the very near future and in that of the son and the mother, in some two or three years' time. The Estate 9. The deceased left a personal estate provisionally valued at almost $80,000. Most of it consists of monies deposited in various banks, although there are some stocks and shares and some jewellery. She died intestate. If her estate were divided at this present moment the husband would get approximately $50,375 and each child $6,400. How much of this money should be deducted from this award? This is always a difficult question and is made more difficult in this case by the almost complete lack of evidence. I have no idea where these monies came from or how the deceased came to have in hand what on the face of circumstances seems to be a rather large sum. All I know is what was elicited from the husband in cross-examination, that is, that his wife looked after her own money herself and did not consult him as to how it should be dealt with. I have no evidence at all as to the character of the deceased or what kind of relationship she maintained with her family. This would have been of some help in assessing how she would probably have disposed of her money had she lived. If all or most would have been spent on or left to the family in any event, then they have gained little real benefit by her death, and the deduction to be made from the award should be small. If on the other hand she was a woman who might have been tempted to gamble it away, to spend it on herself or to donate it to charity, then the family have gained substantially, and all or most ought to be deducted. In the present instance I can do little more than guess, but upon the very meagre evidence that I have I think it probable that the deceased would in general have put her family first. Some allowance still must be made for the accelerated receipt of the money and for the absolute certainty of its receipt. I propose to deduct $5,000, i.e. approximately 10% of the husband's share in the estate. Interest and Inflation 10. Both these matters have caused difficulties in recent years and have been the subject of conflicting decisions at first instance. As far as I am aware neither has been dealt with authoritatively by the Court of Appeal and until that happens I think it wiser and more convenient to follow the authorities in England. The future there may be uncertain, but at least the present position is clear. It is governed by Cookson v. Knowles(7). In that case the court revised the guidelines it had originally laid down in Jefford v. Gee(8). It did so to meet the changed conditions brought about by rampant inflation, and perhaps partly to meet the criticisms made by the Law Commission(9). Leave to appeal the effect of Cookson v. Knowles(7) has been given by the House of Lords: Martin v. Dickson (10). It is restricted to the guidelines for awarding interest on damages for pain and suffering and loss of amenities, which may indicate that the Lordships are content to accept without argument the revised guideline on fatal accident awards. On the other hand it may be simply that Martin v. Dickson(10) is not a fatal case. However, with every respect, it seems to me that the revised guideline assumes a more logical approach to the problem than does the original, and it also follows the recommendation of the Law Commission. 11. The new principle is set out by Lord Denning, M.R. :
12. That is the case where the Court of Appeal analyses the earlier decisions of the House of Lords, in particular that of Taylor v. O'Connor(11). A little later Lord Denning restates the principle in slightly different words:
Applying these two guidelines to the present instance the pecuniary loss to date is $18,500, being 37 months at the rate of $500 per month. Pecuniary loss in the future will be $48,000, being 8 years at $6,000 per annum. The total is $66,500 and from this figure must be deducted $18,000 representing funeral expenses, loss of expectation of life and the allowance on the immediate receipt of the deceased's estate. This gives an overall figure under the Fatal Accidents Ordinance of $48,500, which is apportioned as to $100 in favour of each of the last three named dependents and the balance in favour of the husband. 13. For the reasons I have just given the damages awarded to the plaintiffs will be as follows:
There will be interest at the rate of 4% per annum on the sums of $3,000 and $18,530 from the date of death until today. All sums will be reduced by 50% to allow for the finding of contributory negligence. 14. Judgment is entered for the plaintiffs accordingly with costs. Representation: Herman Poon (Vincent Lo & Co.) for the plaintiffs. Christopher Young (Hastings & Co.) for the defendant. (1) [1975] H.K.L.R. 492 at 494 (2) 5 H.K.L.J. at 387 (3) [1976] H.K.L.R. 223 at 233 (4) [1968] A.C. 529 at 552 (5) [1967] H.K.L.R. 201 (6) [1941] A.C. 157 at 166 (7) Times Newspapers 25th May 1977 (8) [1970] 2 Q.B. 130 (9) Report 56 of July 1973 (10) Times Newspapers 21st July 1977 (11) [1971] A.C. 115 |