The Official Administrator v. Lau Man Hung and Another

HCA000352/1969

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

ACTION NO. 352 OF 1969

-----------------

-----------------

Coram: Briggs, J.

Date of Judgment: 17 November 1969

-----------------

JUDGMENT

-----------------

1. This case is a claim for damages under the provisions of the Fatal Accidents Ordinance and the Law Reform (Miscellaneous Provisions) Ordinance in respect of injuries to and for the death of one Lai Yuk Ying caused by the negligence of the first defendant when driving a motor vehicle owned by the second defendant.

2. The writ was issued on March 24th 1969 and appearance was entered on April 3rd 1969.

3. On June 28th a summons was taken out by the plaintiff under Order 32 rule 1 "that by consent it be adjudged that the defendants do pay to the plaintiff damages to be assessed by a judge in chambers plus costs to be taxed."

4. Such an order was made by a judge in chambers on July 5th.

5. On October 16th the plaintiff, in pursuance of that order, took out a summons for damages to be assessed by a judge in chambers under Order 37 rule 1.

6. That rule deals with the assessment of damages by the Registrar only. It does not refer to a judge in chambers.

7. It seems to me that the parties have adopted the wrong course in this case. That course was dictated by a commendable attempt to save costs. But I do not think, with respect, that the original summons was valid. And I am of the opinion that the order of the judge thereon was made without jurisdiction. Further, even if that summons was properly before the judge in chambers I do not think that there is any rule of court which allows an order to be made for the assessment of damages by a judge in chambers. When trying a case a judge may always adjourn any issue, such as the assessment of damages into chambers but such an order must be made in court. See Order 32 rule 19.

8. Mr. Woo who appeared for the plaintiff asked me to amend the summons so as to bring it under Order 19 rule 6 (which deals with judgment in default of pleadings). And further to amend the order made by the judge on that summons under "the slip rule" so as to exclude the words "judge in chambers". No affidavit had been filed under the summons and there is no mention of default of a defence in the note of the judge. I do not think that that was the reason the order was made. Further, an amendment to the order would result in the assessment of damages coming before the Registrar (who of course could refer the matter to a judge under Order 32, rule 12). I declined to pursue such an artificial, tortuous path.

9. Where in a running down case liability is admitted by the defendant and the only question at issue is the assessment of damages, the proper procedure to adopt is to take out a summons under Order 14. Upon judgment being given in the plaintiff's favour an order can be made for the damages to be assessed by the Registrar under Order 37 rule 1. If no such order is made the assessment will come before a judge in court who may or may not adjourn the matter into chambers.

10. In the present case that procedure was adopted. The matter came before me on summons under Order 14 supported by an affidavit. By consent and by reason of the provisions of Order 3 rule 5, the summons was made returnable on the afternoon on which it was served.

11. Judgment was entered for the plaintiff by consent with an order that damages were to be assessed.

12. The parties then came before me in court and counsel for the plaintiff applied that the matter be adjourned into chambers. This application was made by consent. And I so ordered.

13. Before doing so the summons requesting an order for the assessment of damages by a judge in chambers was withdrawn by consent.

14. On April 7th 1968 one Lai Yuk Ying [to whom in this judgment I shall refer to as "the deceased"] was killed in a street accident owing to the negligent driving of the first defendant. Liability for the negligence has been admitted. No question of contributory negligence arises.

15. The deceased suffered multiple injuries both internal and external and she was dead before she reached the hospital. She never regained consciousness.

16. The deceased was a widow who leaves two young sons aged 11 and 10 years. At the time of her death she was aged 40 and was in good health. She was employed as a cleaner in a tea house and had been so employed for some years. Her wages were $240 per month. In addition she received rent free quarters for herself and her two children: the tea house paid the rent which was $80 per month. She was allowed to use the tea house for her own meals without charge but this did not apply to the children. She had excellent prospects of at least 10 more years' employment at the tea house and her wages would have increased. Indeed I was told that had she not died her wages would already have been $300 per month, as was the case with her co-workers.

17. Yeung Kan, a sub-manager of the tea house, said that several of the cleaners employed at the tea house were older than 50 and so it would seem that there was a fair prospect of her employment continuing beyond that age.

18. Leung Siu Nam, the brother-in-law of the deceased, gave evidence that the two sons were wholly dependent on the earnings of the deceased and lived with her. At the time of her death they were both attending school. After her death the two sons were looked after by Mr. Leung but because he has a large family of his own, Mr. Leung made arrangements for the two sons to attend school as boarders. However at present the elder son is living with Leung Siu Nam and his family and the younger son is a boarder at school.

19. The sum of $1,000 is claimed as special damages for funeral expenses. I do not think that this is an unreasonable sum and Mr. Leung's evidence was to the effect that in fact that a much larger sum was spent. I think the plaintiff is entitled to recover that sum.

20. I do not think I should allow any sum for pain and suffering. There is no evidence that the deceased endured any pain: she was unconscious from the time of the accident until her death.

21. I think that the correct sum to award for loss of expectation of life is $8,000. The total of damages therefore under the Law Reform (Miscellaneous Provisions) Ordinance is $9,000. Of course the sum awarded for the loss of expectation of life must be deducted from any award made under the Fatal Accidents Ordinance, but not the sum awarded as funeral expenses. Such sum will be in addition to any amount awarded under that Ordinance. The reason is said to be that such a sum is not a benefit that occurs to the plaintiff as a result only of the death of the deceased, it is a sum to reimburse the personal representatives for expenses already incurred. [See Joyce v. British Electricity⁽¹⁾].

22. I now come to damages under the Fatal Accidents Ordinance.

23. The deceased left, as I have said, two sons who were wholly dependent upon her. From the figures given to me I take the total income of the deceased to be $400 per month, taking into consideration the provision of quarters and the free meals of the deceased.

24. It was suggested during the hearing of the case that persons of the same way of life as the sons of the deceased may be expected to stand on their own feet at the age of 16. And that therefore what is required in this case is a sum to provide for the absence of the deceased as provider from the time of her death until each son reaches that age, making due allowance for the hazards of life.

25. There is, of course, no reason why a mother who is earning should not continue to support her sons long after they have reached the age of 16. That age is at most an approximate age. The sons of the deceased are said by Mr. Leung to be excellent pupils and in such a case it is not at all uncommon in Hong Kong for a parent to continue their education after they have reached the age of 16. Of course there is no evidence before me in this case that the deceased was mindful to do this. But it is one factor which must be considered when arriving at a figure of damages. And of course as the children grow older more money will be required.

26. Taking the total income of the deceased at $400 per month I do not consider it at all unreasonable to assess the dependency of each child at $130 per month. This takes into consideration their schooling, housing, food, clothes etc. The deceased was 40 at the time of her death. It is not unreasonable to say that she had a further working life of, at any rate, 20 years. Taking into consideration the ordinary hazards of life I consider that it is safe to say that she would have lived and earned for more than ten years. That is to say that she would have lived and earned for a period until her sons were able to earn for themselves.

27. I conclude that the correct multiplier to take for the elder child is 6 years and for the younger 7 years. This gives us the figures of $9,360 and $10,920 respectively.

28. These figures must be scaled down to take into account the payment of a lump sum. So taking all the circumstances into consideration I think the correct sum to award is $8,400 for the elder son and $9,800 for the younger son, making $18,200 in all.

29. From this must be deducted the sum of $8,000 awarded under the Law Reform (Miscellaneous Provisions) Ordinance in respect of damages for the loss of expectation of life. Thus makes $10,200 under the Fatal Accidents Ordinance.

30. There will be judgment for the plaintiff against both defendants for $9,000 being damages under the Law Reform (Miscellaneous Provisions) Ordinance and in addition for $10,200 being damages under the Fatal Accidents Ordinance namely a total of $19,200. The damages under the Fatal Accidents Ordinance are to be apportioned as follows: $4,400 for the elder son, and $5,800 for the younger son. The money to be paid into court to be suitably invested by the Registrar. The income to be paid out for the benefit of the two sons. Liberty is given for payments of capital to be made by the Registrar for the benefit of the sons from time to time as and when required. Costs to plaintiff. Costs of plaintiff to be taxed in accordance with the Legal Aid Regulations. Certificate for counsel.

Representation:

Patrick Woo (Gunston & Fairbairn) for Plaintiff.

Oliver Mark (Peter Mark & Co.) for Defendants.

(1) Kemp & Kemp Vol.2 p.76.