Yung Shi-fun v. Tsang Cheuk-sum and Another
Read the full judgment text of HCA 610/1976 on BabelCite. This High Court CFI judgment.
1. These two cases arose from a traffic accident in May, 1975. One TSANG Cheuk-sum, a man of twenty-four years of age, was driving his wife and two friends along Kwun Tong Road in Kowloon. He was in a hurry. They were going to Shatin Heights for a drink. So although there was a 30 miles per hour speed limit upon that road Mr. Tsang was doing something like 40 to 45. Kwun Tong Road carries three lanes of traffic in that direction. Mr. Tsang was in the middle lane. In front of him was a Volkswagen
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HCA000610/1976 IN THE SUPREME COURT OF HONG KONG HIGH COURT ACTION NO. 167 OF 1976 -----------------
----------------- ACTION NO. 610 OF 1976 -----------------
----------------- Coram: Cons, J. Date of Judgment: 29th November, 1976. ----------------- JUDGMENT ----------------- 1. These two cases arose from a traffic accident in May, 1975. One TSANG Cheuk-sum, a man of twenty-four years of age, was driving his wife and two friends along Kwun Tong Road in Kowloon. He was in a hurry. They were going to Shatin Heights for a drink. So although there was a 30 miles per hour speed limit upon that road Mr. Tsang was doing something like 40 to 45. Kwun Tong Road carries three lanes of traffic in that direction. Mr. Tsang was in the middle lane. In front of him was a Volkswagen. In the other lane was another car. However, the inner lane was clear. Mr. Tsang was impatient and decided to overtake on that side. But it was a wet night and Mr. Tsang skidded. He could not control the skid, his car mounted the pavement and knocked down a line of six persons innocently waiting there at a bus stop. Mr. Tsang was in due course charged with dangerous driving causing death. He pleaded guilty. But curiously enough in these two actions he has denied negligence. His defences plead inevitable accident. However, no evidence was available to dispute the facts as I have outlined them and I have no hesitation in finding for both plaintiffs on the question of liability. 2. One of the persons in the bus queue was a girl aged 23. She was killed almost immediately, dying the following day without recovering consciousness. She was a nurse at the Hong Kong Sanitorium. Her father brings the usual action as administrator of her estate. She came from a moderately large family to which she contributed $800 a month from her wages. Two elder brothers and a younger sister also contributed. Her father is a comparatively young man, but has retired from his occupation as a teacher due to poor health. The younger children were still at school. The two sons will probably leave school to start work soon and they will then also contribute to the family. The daughter will to some extent be a burden longer as she will continue to university. On the other hand she appears to pay most of her own way already by obtaining scholarships. In these circumstances I do not think it likely that the deceased would have increased her contribution to the home as her salary went up each year, or that she would have continued it if and after she married. I am content to accept the suggestion of defence counsel that the correct multiplier should be five. I do not accept his suggestion that $100 or $150 should be deducted from her contribution to represent the value of the "home" to her. It is much too high. She obtained only little financial benefit from her home. $50 a month will amply cover this. Damages awarded to her father in Action 167 will therefore be as follows:
3. There is some doubt whether the young sister KWONG Man-kuen was or was not a dependant at the time of the death. I think counsel for the plaintiff concedes that she was not and I am content therefore to make the order for the fatal accident's damages to be in favour of all the dependants named in the writ with that exception. Unless counsel wishes to make further submissions I would make a nominal apportionment of $1 to the mother and children named with the balance to the father. 4. The second victim in the bus queue was a friend of the deceased. She wanted to be a nurse like her and had already fixed interviews for nursing school. At the time she was earning her living as an unregistered teacher at the Ming Yun School and giving private tuition whenever she could in her off-duty hours. She had some expenses to bear by way of bus or taxi fares. Her net income was about $920 per month. This girl was not killed. She was admitted to hospital with bruises and abrasions all over. X-rays revealed a fracture line in the skull. She was detained for some four weeks. It was noticed that after recovery of consciousness her right arm was weak and clumsy. When discharged she experienced pain in walking. On examination what must have been a minor fracture was found in her right leg. All these injuries are now healed. In the physical sense she has fully recovered except for occasional headaches and spells of dizziness. But unfortunately there were other consequences, what the specialist has called "a definite severe change in personality with significant intellectual impairment". Before the accident she seemed to have been a gentle, industrious and serious-minded young lady. She is now "unstable and labile; one minute she would be laughing and giggling and the next she would begin to cry or become aggressive", and "any approach towards a clinical examination would provoke great violence on her part". She is now able to look after her own basic necessities by way of feeding and dressing herself but is either unable or too idle to assist in the general management of the home. All she does is sit around looking at comics or watching television. She is very bad tempered and makes a childish nuisance of herself to her mother and the rest of her family. They have not allowed her to be left on her own since the accident and scissors and knives have to be put away. Her mother has given up her job in order to be at home. There is no likelihood of any improvement in the near future. 5. It is clear that the plaintiff will never enjoy the kind of life that she was looking forward to of becoming a nurse or perhaps later marrying and raising her own family. It is not clear how much she will realise what she is missing. However in any event the law at the moment does not allow lack of realisation to effect any reduction in the amount awarded for pain and suffering and loss of amenities: H. West & Son Ltd. v. Shephard(1). The element of physical pain and suffering in the present instance is only small, although there will be physical restrictions on the ways in which she will be able to spend the rest of her life. It is not easy to fix an award in these circumstances. The sum I have eventually decided upon is one of $50,000. 6. It is also clear that the plaintiff will never be able to hold down a job of any kind. If she had become a nurse as she had wished, she would have earned more than she was as a teacher at the time of the accident. But she may not have been successful in her application. She may also have got married. That is something which must be taken into account: Harris v. Harris(2). She may then have carried on part time or she may have given up completely but resumed later when her own children became older. Taking these unknown factors into account as best I may I propose to assess damages for the loss of future earnings by applying a multiplier of 10 to a salary of $1,000 per month, that is a total of $120,000. 7. The third matter that is clear is that the plaintiff will never be able to look after herself completely or will never be able to run her own home. She will need someone constantly to do this for her. There is evidence that at the present rate this would cost $800 to $1,000 per month. At the moment it is not necessary. Her mother copes. But in order to cope her mother has had to give up her own job worth $500 per month. For the time being therefore that figure should be accepted as the proper expense required for attendance. It is a matter of estimation how long the mother will be able to continue to care full time for the plaintiff. She is now 55 years of age. Counsel has suggested 10 years as a figure to work upon. I am content to accept that. It may be of course that the mother would not have been able to hold down her own employment for as long as 10 years. In that event the latter part of her attendance will become gratuitous. It has been said then to be questionable whether it would entitle the plaintiff to recover damages: see WcGregor 13th Edition para.1136. But the law has now been settled by the cases of Cunningham v. Harrison(3) and Davies v. Tenby Corporation(4). 8. Once the mother is no longer able to care for her the plaintiff will became dependent upon directly paid help at the higher figure. The difficult question is for how long should the calculation be made. Counsel for the plaintiff has suggested a further 10 years. After all she will then be only 44 years of age, an age which she can well be expected to reach comfortably. But at that level the interest on the capital sum will more than cover the monthly amount necessary. A further 5 years is likely to be the correct figure. 9. There remains the question of special damages. Only two items have not been agreed or abandoned. The first relates to the plaintiff's loss of earnings from the time of the accident until trial. It is pleaded at $650 per month but it is accepted by the defendant that this figure should be increased by reason of the private tuition. The net figure I have already mentioned as $920. Loss is pleaded as from the 1st June 1975, that is, 17 1/3 months, to give a total of $15,910. 10. The second item is the loss of the mother's wages since the accident. It is pleaded at the rate of $480 per month although the evidence is that the loss was $500. No amendment has yet been asked for. At that rate the total to the date of trial is $8,640. The damages awarded in the second action may therefore be tabulated as follows:
11. Judgment is entered for the plaintiffs in each action as I have outlined and in each case the plaintiff is entitled to his or her costs. Representation: Robert Tang (H.M. So & Co.) for the plaintiffs in both actions. Michael Asome (Chan & Ho) for both defendants in both actions. (1) [1964] A.C. 326 (2) [1973] 1 Lloyd's Rep. 445 (3) [1973] 1 Q.B. 942 (4) Times Newspaper 10th April 1974. |