Mohammed Hanifa and Another v. Wong Chi Tat

HCA006238/1988

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

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Coram: Master P.H. O'Donnell in Court

Date of Hearing: 2 March 1990

Date decision on assessment delivered: 20 March 1990

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ASSESSMENT OF DAMAGES

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1. The deceased was driving a taxi west on Wong Chuk Hang Road on 6th March 1987 when his vehicle was struck from behind by a private car owned and driven by the Defendant waich was travelling in the same direction but at an excessive speed. As a result of this accident the deceased, who was 32 years of age, received serious personal injuries from which he died on 19th March 1987. The deceased was survived by his widow and 3 children.

2. The Writ and Statement of Claim was issued on 13th September 1988 and a Defence filed on 26th October 1988. Interlocutory judgment was entered by consent on 4th October 1989 with damages to be assessed by a Master. This assessment of damages was heard on 2nd March 1990.

3. At the assessment Counsel for the Plaintiff produced a Bundle of Pleadings and a Bundle of 12 Documents including Letters of Administration, medical and post-mortem reports, funeral receipts, marriage, birth and death certificates. Mr. A. Cheung pointed out that, as the date of this accident was 6th March 1987, the new LARCO provisions operative since November 1986 were applicable. After an adjournment Counsel for the parties were able to agree on the following heads of damages:

All multipliers were to run from the date of deceased's death. The parties also agreed on a 10% increase in contribution for the dependency claims from the date of the accident to the date of this assessment. On the claim for loss of accumulation of wealth it was agreed that the deceased would now be earning $6,600.00 per month or 10% increase on his monthly salary of $6,000.00 at the date of his death.

4. The only outstanding question was the extent of the dependency loss or, in other words, how much of the $5,000.00 household expenses came from the deceased upon which the dependants can claim loss of the dependency. The parties had agreed that the monthly household expenses at the date of the deceased's death were $5,000.00.

5. The only withesses called at this assessment were the widow and mother of the deceased. The widow gave evidence that her deceased husband gave her $5,000.00 a month to meet the household expenses of the same amount. She said that she was earning between $1,100.00 and $1,300.00 a month at that time but that none of her earnings went towards the household expenses. The widow said that her earnings were used to buy clothes for the 3 children, food for herself and as savings in her bank account. She said that her husband was not a smoker or drinker and that his only hobby was playing mabjong once or twice a week for small stakes and he would win or lose $100.00 to $200.00 depending on the outcome. In cross-examination the widow insisted that she never contributed anything towards the household expenses. The deceased's mother gave evidence that he gave her $500.00 a month regularly as pocket money. She said that the deceased had made this payment to her for 4 to 5 years prior to his death from the time he started to drive taxis. The deceased's mother said she did not work and was also supported by her 3 unmarried sons who paid her $2,000.00 a month. There was no reason to disbelieve the evidence of the deceased's mother that the deceased had paid her $500.00 each month. However, as for the evidence of the widow that she hever contributed anything towards the monthly household expenses this was difficult to accept as the truth, as she was unable to fully explain the use to which her monthly earnings were put. For the purposes of this dependency claim it is found that the widow would have made an average monthly contribution from her earnings of $250.00 towards the household expense of $5,000.00 thereby reducing the deceased contribution to $4,750.00. This would have meant that the deceased would have had $750.00 a month to meet his personal expenses each month after payment of $500.00 to his mother.

6. Counsel for the Plaintiff produced a summary of expenses for the purpose of the dependency claims. The average monthly expenses in this summary were $5,063.00 and that the common expenses of the 4 dependants living with deceased was $3,508.00 after deductions of the sums totalling $1,555.00 paid to the 3 children to meet their personal expenses. This sum of $3,500.00 as the common household expenses was divided by 5 (deceased and 4 dependants living with him) to arrive at the share of benefit by each dependant that is, $3,508.00 ÷ 5 = $701.60. For the purpose of this assessment the common expenses will be rounded off to $3,500.00 ÷ 5 = $700.00 each as their respective share of benefit.

7. On this basis the pre-assessment dependency claims are calculated as follows:

8. The post-assessment dependency losses are calculated as follows:

9. The claim for loss of accumulation of wealth under LARCO will be allowed as claimed on the basis of 10% increase in deceased's earnings to $6,600.00 with a corresponding 10% increase in his contribution to meet household expenses and the payment to his mother. This claim is calculated as follows:

10. A summary of the awards made under the various heads of damages are as follows:

General Damages:

Special Damages:

(5)    Post-assessment assessment dependency loss

11. There will be interest @ 2% per annum on the general damages from the date of writ to the date of the decision on this assessment and interest on the special damages for funeral expenses from the date of death and the pre-assessment dependency loss at an a greed figure of 4% per annum from the date of the accident both to the date of the decision on this assessment.

12. The costs of this assessment to the Plaintiff against the Defendant with a Certificate for Counsel, to be taxed if not agreed. Plaintiff's own costs to be taxed in accordance with Legal Aid Regulations.

Represenation:

Mr. A. Cheung instructed by Director of Legal Aid for Plaintiff.

Mr. A.K. Sakhrani instructed by Messrs. Ng, Lie, Lai and Chan for the Defendant.