Leung Hon v. Kwong Man Yim and Another

HCA001206/1969

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

ACTION NO. 1206 OF 1969

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Coram: Pickering, J. in Chambers

Date of Judgment: 3rd July 1970.

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JUDGMENT

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1. The plaintiff, the Official Administrator, claims, as administrator of the estate of the deceased Leung Hon or (Hong) for damages under the Fatal Accidents Ordinance Cap. 22 and the Law Reform (Miscellaneous Provisions) Ordinance. The claim under the Fatal Accidents Ordinance is brought by the plaintiff on behalf of the lawful widow of the deceased and on behalf of three named children whose ages range from 14 to 9 years.

2. Neither defendant having entered an appearance in the action, judgment was given against both and the matter came before me for the assessment of damages. On the hearing of this issue both defendants appeared in Court but neither wished to give evidence or to cross-examine the brother of the deceased, the one witness for the plaintiff who appeared for the widow under a Power of Attorney she being resident in Canton.

3. The uncontested evidence for the plaintiff was that the deceased was a skilled carpenter who, at the time of his death at the age of 38, had just returned to Hong Kong from Brunei where he had completed a three year contract of employment. He preferred to work in Brunei rather than in Hong Kong because he could earn more money in Brunei and at the time of his death it was intended that he should enter into a further contract for a similar period and return to Brunei. His wages under the contract which he had completed had been the equivalent of HK$1,200 per month and the evidence of his brother was that the deceased had remitted to him each month in Hong Kong the sum of $600 which the brother had in turn remitted to the deceased's relatives in China in the proportions of $500 to the widow and $100 to the deceased's mother who is not a party to this action.

4. Although the Attorney, the deceased's brother, was unable to produce remittance slips in respect of any of the remittances which he had made I was satisfied with his explanation that the remittances were regularly acknowledged from China and that upon such acknowledgment it was his custom to destroy the relevant slip. Certain it is that only two days before his death the deceased had remitted $500 to his wife in China and the slip relating to this remittance was produced in Court. I have no hesitation in assessing the degree of dependency of the widow and her children at $500 per month.

5. Under the Law Reform (Miscellaneous Provisions) Ordinance, I award $8,000 for loss of expectation of life. There is no claim in respect of pain and suffering. Funeral expenses are said to have amounted to $1,600 and although the Attorney was not in a position to produce receipts for more than $568 it is apparent that more than that latter figure must have been spent upon the funeral. Accepting the Attorney's evidence of payment of "$300 odd" to clergy, "$400 odd" to musicians and "$100 odd" for travelling expenses, the total expenditure would appear to have been in excess of $1,400 and I allow that figure for funeral expenses bearing in mind that there was probably some element of extravagance in the payment of more than $400 to musicians.

6. In assessing damages under the Fatal Accidents Ordinance. I am not assisted by the realisation that no evidence was led as to the health of the deceased. However I have no evidence of ill-health and no reason to believe that he would not, but for this traffic accident, have enjoyed a normal working life up to say, the age of 65. This postulates a further 27 years of working life a not unreasonable figure having regard to the fact that on the basis of the tables of the Census and Statistics Department of the Hong Kong Government the deceased's expectation of life was 36.33 years. I have no comparable calculations in respect of the State of Brunei if indeed any exist. The deceased's wife was younger than he and presumably enjoyed, at the date of his death, a greater life expectancy - though again this assumption could only be transformed to certainty by reference to tables of life expectancy in Mainland China which tables are not available to me.

7. The dependency of the widow and her family being $500 per month or $6,000 per year, the total of the annual sums which it may be assumed the deceased would have earned up to the age of 65 is $162,000. Decapitalising this sum to its present value at 8% per annum with the assistance of Parry's Valuation Tables (8th Edition p.30), gives a figure of $65,610 from which must be deducted the sum of $8,000 awarded under the Law Reform (Miscellaneous Provisions) Ordinance leaving $57,610 as the award under the Fatal Accidents Ordinance.

8. In the case of Yu Yuk Fung v. Pui Kee Iron Works and others (Action No.1375 of 1966, decided upon 4th February 1970) Blair-Kerr J. said:-

"          In asking me to take $8 per day as the basic figure upon which to calculate dependency. Mr. Swaine was working on present-day prices; that is to say no allowance had been made for depreciation in the purchasing power of the dollar over the next 18 years. No doubt Mr. Swaine took account of this factor when he suggested that I should use a multiplier of '15 or perhaps a little less' instead of multipliers of 9 or 10. I know that there are two schools of thought on the question of whether any allowance should be made for depreciation in the value of money. In Taylor v. O'Connor reported in The Times of 22nd January, 1970, Lord Reid is reported as having said that:-

'..... he was aware that there was a school of thought which held that the law should refuse to have any regard to inflation and that calculations should be based on stable prices, steady and slowly increasing rates of remuneration and low rates of interest. He said that must be based either on an expectation of an early return to a period of stability or a nostalgic reluctance to recognise change. Few believed that a return to the old financial stability was likely in the foreseeable future. Though taking account of inflation would no doubt cause complications and make estimates even more uncertain, it would be quite unrealistic to refuse to take it into account.'

9. I would repectfully adopt those dicta both in regard to taking some account of inflationary tendencies and to the Court's being entitled to assume that figures for "mesne expectation of life" take account of the chances of premature death by accident or disease. Carpentering not being, in my view, a particularly hazardous occupation I take no account of any occupational risk likely to have caused the premature death of the deceased.

10. As to the likelihood of the widow re-marrying, I am very much in the dark since she has not appeared before the Court Clearly however a widow with three children has less likelihood of remarriage than one who is childless or has just one child and from what is known in Hong Kong of conditions in Mainland China her prospects of a second marriage to a man who could provide for her and her children to the extent to which the deceased supported them would not appear to be high In all the circumstances I think it appropriate to disregard any prospects of remarriage.

11. In the Yu Yuk Fung case my learned brother Blair-Kerr increased a decapitalised sum of almost exactly $27,000 to $34,000 by way of recognition of the probable loss of purchasing power of money over a period of 18 years. The percentage increase was thus approximately twenty-six over a period of 18 years and though the figure was necessarily chosen empirically and on a broad view, I see no reason to quarrel with it in the context of Hong Kong. I am not dealing with Hong Kong however for in the present case all the dependents live in Mainland China. I have no evidence before me as to the historical course in recent years of the cost of living and the alteration (if any) in the purchasing power of money in Mainland China and since it is not the function of the Court to speculate, I make no increase based on such considerations to the decapitalised sum at which I have arrived.

12. Damages are therefore assessed against both defendants in the sum of $67,010, that is to say:-

13. The plaintiff is entitled to costs and I will hear his solicitor as to the manner in which the damages should be apportioned.

3rd July 1970.

3rd July 1970.

Pickering J. in Chambers.

Gunston for the plaintiff.

Defendants in person.

Representation: