Cheung Sau Ying and Another v. Tse Shing Keung and Another

HCA000836/1975

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

ACTION NO. 836 OF 1975

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Coram: Mr. Registrar Wong in Chambers.

Date of Judgment: 4th March, 1976.

Mr. E.T.S. Woolley of Legal Aid Department for Plaintiff.

Mr. A.F. Taylor of Johnson, Stokes & Master for Defendants.

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DECISION

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This is an application for assessment of damages, interlocutory judgment by consent having been entered for the plaintiff against the defendants on 16th December, 1975.

The deceased man, Ngo Sing-ching, was injured in a traffic accident which took place on 16th April, 1972 on Castle Peak Road, Ka Lung Chuen, Tai Lam Chun, New Territories due to the negligent driving of the 1st defendant, servant or agent of the 2nd defendant. Mr. Ngo subsequently died on 12th September 1972.

Cheung Sau-ying, the widow and Ngo Shui-shun as administrators brought this action for damages under the Law Amendment and Reform (Consolidation) Ordinance for the benefit of the estate of the deceased and under the Fatal Accidents Ordinance on behalf of the following persons:-

Cheung Sau-ying, wife of the deceased;

Ngo Man-keung, son of the deceased, aged 17;

Ngo Kwai-lan, daughter of the deceased, aged 11;

Ngo Chak-sing, son of the deceased, aged 10;

Ngo Chak-hung, son of the deceased, aged 8;

Ngo Kwai-king, daughter of the deceased, aged 5; and

Ngo Kwai-fong, daughter of the deceased, aged 3.

At the outset of the hearing, the following matters were agreed that:-

(1)The deceased died as a result of the accident.

(2)The medical report of Dr. K.P. Au be admitted as evidence and

(3)Funeral expenses amounted to $3,000.

No evidence was called in respect of pain and suffering as both Mr. Woolley and Mr. Taylor appreciated that awards for pain and suffering would not exceed awards for loss of dependency under the Fatal Accidents Ordinance and would merge with awards under that Ordinance. I fully agree with them. There would be therefore no award for pain and suffering which must be considerable in view of the fact that the deceased did not die some five months after the accident.

The plaintiff is, however, entitled to an award for loss of expectation of life at the conventional figure of $8,000 which will merge with awards to be made under the Fatal Accidents Ordinance.

Mr. Shek Pui-yiu, employer of the deceased and Cheung Sau-ying, the widow, gave evidence at the hearing.

Mr. Shek stated that the deceased started to work in his pigsty as a casual worker in February, 1972. His average wage was about $750 a month. He might even earn more if business was good when more pigs were sold. He was provided with free meals and accommodation. He had four days holidays every month but he only took two days off to visit his family in the New Territories and worked on the other two days with overtime pay. Mr. Shek was satisfied with his work and expected the deceased to stay working for the firm for a long time: there being no age-limit for retirement. The deceased was a healthy and strong man capable of doing heavy manual work.

Madam Cheung, the widow, testified that prior to joining the pigsty the deceased was an odd job worker earning about $60-$70 a day. He had always contributed $700 a month to the family household. He continued to give the same amount after his employment with the pigsty. At the time of his death he was 39 years of age and was in the peak of his health. He visited the family on Sundays and public holidays. Sometimes he would bring back some fruits and food for the children. Of the $700, Madam Cheung spent it on food, rent, clothing and school fees. She also remitted $100 every month to their eldest son who lived in China with her mother-in-law. It was she who persuaded the deceased to work for the pigsty because of job security. The deceased did not smoke or drink and seldom bought clothes for himself. Occasionally he place small bets on horses and greyhounds but he did not play mahjong.

Mr. Taylor contended that the deceased would not have lived on a bare $50 a month himself although he was provided with two free meals a day and a place to sleep in the shop. He had to travel between Hong Kong and the New Territories several times a month and bought his own clothes. He would also need some extra food and other daily necessaries of life. Mr. Taylor considered that the deceased could not have contributed more than $500 a month to the family and suggested a multiplier of 13. The result would be $500 x 12 x 13 = $78,000. He went on to make two further points. He contended firstly that there should be a 15% reduction for accelerated receipt and secondly the loss of dependency should gradually decrease when the children grow older. He referred me to the decision of Newton v. National Coal Board at page 261, Kemp & Kemp, 4th edition.

On the first point, the adoption of a multiplier rather than the actual years of working life takes into account matters such as lump sum payment, inflation and vicissitudes of life. See Briggs C.J. in O.J. 3528/73 - Lui Yuk Tai v. Anthony Kevin McLoughlin; Pickering J. in O.J. 1489/73 - Wong Tak-hing v. Tai Sang Industrial Company Limited and Mr. Registrar Silke (as he then was) in Lau Hon Wah and another v. Jim Pak-chung, Percival [1975] H.K.L.R. page 492. On these authorities, I do not think that I should make any percentage reduction because of accelerated payment.

On the second point, Newton v. National Coal Board did not, in my view, decide that dependency should gradually decrease or cease after the children have reached a certain age. In Newton's case, the deceased was a man aged 62 and I assume that his widow was more or less the same age and there were no other dependants. He was due to retire two years and ten months later as a miner when he reached the age of 65 years. The English Court of Appeal reduced the amount of dependency on grounds that the multiplier of 8 for a man aged 62 working in a mine was too high and that the deceased man's earning capacity would diminish after his retirement. We are dealing with a complete different situation in the present case. The deceased was a man aged 39 in the prime of his health. Evidence suggests that his earnings would be going up rather than going down. A multiplier of at least 13 or 14 can be anticipated. He had a comparatively younger wife and a number of small children, all of whom were dependent on him as bread winner. After having carefully considered Newton's case, I am satisfied that the circumstances of that case were entirely different and that its decision has no application to the present case.

Having disposed of the two points raised by Mr. Taylor, I would now come back to the amount of dependency. The question is: is it reasonable or indeed possible for the deceased to have maintained himself on $50 out of a monthly income of $750 even with free meals and accommodation? Mr. Woolley drew my attention to a decision of Mr. Commissioner Pickering (as he then was) in Wong Hing v. Ip Fat-kwong, O.J. Action 820 of 1969 at page 113, Vol. 5 of the Hong Kong Law Journal. In that case, $40 was taken off the deceased's monthly income of $480 for his own maintenance since food was provided free by his employers. The deceased in that case was a healthy man of 38 and left a widow and five children aged from one to twelve years. One has to bear in mind that the award was made some six years ago when cost of living was not so high as to-day and that that deceased was earning considerably less. I take the view that $50 is an unrealistic figure and grossly inadequate to maintain the deceased when one considers the present cost of living together with all the evidence of this case. He had to travel between Hong Kong and the New Territories every month. There is a conflict of evidence between Mr. Shek and the widow as to the frequency the deceased undertook such trips. According to Mr. Shek, the deceased only took two days off a month whereas the widow said that he visited the family every Sunday and during public holidays and if this was in fact so, the deceased would seem to make at least five trips a month. On the basis of three trips a month, travelling expenses and taking his food at home would cost at least $50. Although he is provided with free meals, I agree with Mr. Taylor that he would require extra food and this is especially important for a man doing heavy manual work who would need more nourishment to replenish his strength and energy. I would estimate the cost for additional food at another $50. There is evidence that the deceased occasionally placed small bets on horses and greyhounds. There was no suggestion that he won more often than he lost, one would have to assume that he lost more often than he won as it generally happens in gambling. Besides, there were expenses for clothing (although he seldom bought any) and such things as hair cut and other sundry daily necessaries. He might also have some entertainment like going to the cinema once or twice a month. I would put another $50 on these. All in all, I find that the deceased would require a sum of $150 a month for his own maintenance leaving a balance of $600 which he could use for the upkeep of his dependants. I also find that he had been contributing $600 every month towards the family expenses and would continue to do so for a long time but for his tragic and untimely death. The loss of dependency is assessed at $600 a month.

The deceased was a healthy man of 39 and evidence from Mr. Shek shows that he could have stayed at his job for a long time, probably until he was 70 years of age. I would adopt a multiplier of 14 instead of 13 as proposed by Mr. Taylor. The award for loss of dependency under the Fatal Accidents Ordinance would be $600 x 12 x 14 = $100,800.

I would apportion this sum as follows:-

leaving a balance of $39,800 to Cheung Sau-ying, the widow.

There will be judgment for the Plaintiff for $103,800 made up of $100,800 general damages and $3,000 special damages. The sums apportioned to the children will be invested by the Registrar at his discretion with liberty to apply. The special damage of $3,000 would carry interest at 4% from 12th September 1972 to to-day. There would be costs to the plaintiff to be taxed in accordance with the Legal Aid Regulations.

Dated this 4th day of March, 1976.

Representation:

Mr. E.T.S. Woolley of Legal Aid Department for Plaintiff.

Mr. A.F. Taylor of Johnson, Stokes & Master for Defendants.