Lee Ying Kin v. Ho Pui Hung and Another
Read the full judgment text of HCPI 839/1974 on BabelCite. This High Court CFI judgment.
1. This is a claim for damages under the Fatal Accidents Ordinance, Cap. 22, brought by plaintiff on behalf and for the benefit of himself and other members of the deceased's family.
IN THE SUPREME COURT OF HONG KONG HIGH COURT -----------------
----------------- Coram: Mr. Registrar Barnett in Chambers Date of Judgment: 12th July 1976. Mr. T. von Pokorny (Director of Legal Aid) for Plaintiff Mr. Peter Chan (Haldane & Co.) for 1st Defendant 2nd Defendant in person --------------------------------------------------- ASSESSMENT OF DAMAGES --------------------------------------------------- 1. This is a claim for damages under the Fatal Accidents Ordinance, Cap. 22, brought by plaintiff on behalf and for the benefit of himself and other members of the deceased's family. 2. The deceased was killed in a traffic accident on 8th February 1972 when aged between 43 and 45. He left: a) the plaintiff, his infant son, now aged 20, 3. At the time of his death, the deceased was living and working in Hong Kong. His son, Ying-fai, who is mentally retarded, was with him and substantially supported by him. His wife and other two sons were in China and he remitted a monthly sum for their upkeep. 4. The deceased was a construction site worker earning about $45 per day. Mr. Chan extracted evidence that some such workmen were laid off during the recession a year or two ago. Nonetheless, I think in all probability that the deceased would not have had difficulty in keeping fairly regular employment throughout his life and maintaining his standard of living. 5. Ying-fai is incapable of performing any but the simplest menial tasks. According to PW1, the deceased's cousin, Ying-fai was unable to retain any outside employment, and now works in PW1's canteen at washing up. PW1 looks after his needs. There was evidence as to how much PW1 spends on looking after Ying fai. That is irrelevant. The true measure of the dependency is how much the deceased spent and would have continued to spend on looking after him. 6. There is no doubt that Ying-fai would have remained dependent on the deceased for the rest of his life. (Mr. Chan is upset that no efforts have been made to give him training so that he could perhaps be found sheltered employment. He considers that Ying-fai is being exploited. I disagree. Ying-fai appeared well-dressed and well-cared for. Having seen and heard PW1 give evidence, I am sure that he is concerned for Ying-fai's welfare and, as he says, even if Ying-fai had some pocket-money, Ying-fai would not know how to spend it anyway). 7. The evidence is that the deceased paid PW1 about $200 per month for rent and evening meals for himself and Ying-fai. He also had to buy Ying-fai's clothing. At the date of death, I would assess the dependency at $130 per month. However, I have no doubt that the deceased would have needed to increase this to keep pace with the cost of living and would have done so. I therefore put the dependency at $200 per month. 8. The deceased was in good health before he died. He would have had perhaps 20 years of working life remaining, although perhaps in the later years he may have had to take some less active, and probably less well paid, job such as watchman. 9. In O.J. 2051/73, So Sam-mui & Anr. v. Lam Wing-tai (1976 H.K.L.J. p.132), a multiplier of 12 was adopted in the case of a deceased building site worker aged 50 although this was discounted by 20%. 10. I think 12 is a fair multiplier in the present case. For Ying-fai, the award is therefore $28800. 11. As to the remittance made by the deceased to China, the plaintiff stated plainly that his mother used to receive an average RMB100 per month. I accept this. This sum was however for the mother and her 2 sons. 12. The plaintiff came to Hong Kong in 1974. He is now working and occasionally remitting small sums to China. His dependency would be very small. I will award $1500. 13. Shiu-tong is still in China with his mother. Now aged 13, he would have been fully dependent on the deceased for perhaps 8 years after his death. Thereafter, the future is uncertain. He might have come to Hong Kong or he might have remained in China and continued to benefit from the deceased's remittances. 14. It was agreed that RMB100 is worth approximately RK$300. I would therefore put Shiu-tong's dependency at $75 per month and adopt a multiplier of 8. I accordingly award $7200. 15. The deceased's widow is apparently not in good health and has difficulty in earning her meal tickets. Clearly she would have remained dependent on the deceased for the rest of her life. With the children growing up, she would have derived extra benefit from the deceased's remittances which he may well have increased. I would put her dependency at $225 and, taking into account her ill-health, adopt a multiplier of 8. Her total dependency is $21600. 16. Receipts for funeral expenses amounting to $1860 have been produced. I also allow this sum. 17. The total damages are $60,960. 18. I allow interest thereon at 4% from the date of service of the writ. 19. Damages are to be paid to the Director of Legal Aid within 14 days. 20. Subject to any charge that the Director may have, the amount awarded in respect of Ying-fai is to be paid into court for investment by the Registrar on the usual terms. 21. The plaintiff will have his costs. 22. Costs are to be taxed. 23. Liberty to apply. Dated the 12th day of July, 1976.
Representation: Mr. T. von Pokorny (Director of Legal Aid) for Plaintiff Mr. Peter Chan (Haldane & Co.) for 1st Defendant 2nd Defendant in person |