Tam Pak Chow v. The Official Administrator

HCA000979/1970

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

ACTION NO. 979 OF 1970

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Coram: Mr. Commissioner Morley-John.

Date of Judgment: 6th August 1971.

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JUDGMENT

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1. The plaintiff is the administrator of the estate of Chan Lan (or Lin) Hing, who was killed in a road accident which occurred on the 11th of July 1969 when she was travelling as a passenger in a motor vehicle driven by Lo Cheung Hung, deceased. The accident was caused by the negligence of the said Lo Cheung Hung deceased. The defendant admits liability and the sole question for the decision of the Court is the quantum of damages.

2. The action is brought under the Fatal Accidents Ordinance and Law Reform (Miscellaneous Provisions) Ordinance.

3. The plaintiff is the widower of the deceased and this action is brought by him as administrator of the estate of the deceased and on his behalf personally and on behalf of the three children of the marriage. At the time of the accident the plaintiff was a man of about 38 years of age and of the three children of marriage the eldest child Tam Chi Ho was born on the 3rd of November 1954 therefore was aged 14, the second child Tam Chi Wai was born on the 25th May 1958 and would have been 11 years old and the youngest child Tam Chi Man was born on the 6th December 1964 which would make him four and a half years old. At the time of her death which was instantaneous, Chan Lan Hing was aged 35 years.

4. The plaintiff gave evidence that before his wife's death he was a taxi driver and his average wages together with tips amounted to about $1,000 a month. He said that this sum was not sufficient to support the family and he said that his wife worked when she had time at a garment factory which was situated on the floor below their flat. He said that she used to contribute about $300 per month to the family expenses. This evidence was not challenged. He produced a record of his wife's monthly earnings at this garment factory covering the period from the 21st of February to the 10th of July 1969. This record showed that his wife earned on an average about $350 per month. The plaintiff said that at the time of her death his wife was in good health and that she was a good mother and looked after the family well and that she also made certain clothes for her children. He said that when his wife was alive it was not necessary to employ any form of household help as the household was looked after by his wife. He said that after his wife's death he was unable to continue as a full time taxi driver as his hours of work were from 4 p.m. until sometime after mid-night, as working such hours would make it impossible for him to look after the children. He said that he now did part time taxi driving and that he also worked as a dentist's technician and that his present monthly earnings were only about $600. He said that after his wife's death he employed a person to look after his youngest child for some 13 months at a cost to him of $200 a month but that because of financial difficulties, he was unable to keep up these payments, therefore the youngest child was again back with him as were the other two children who had been with him since his wife's death.

5. In cross-examination it was put to the plaintiff that what he had said about his wife being a good mother and good wife was not true, as on the date of her death she had left her three children late at night and was out driving in a car in the New Territories with a man. No evidence was called by the defence to support this allegation and I ascertained from the plaintiff that the driver of the car Lo Cheung Hung, deceased, and his wife were good friends of the plaintiff and his wife and they used to go about together quite regularly. I am therefore satisfied that there are no grounds to support the allegation made by the defence and I intend to ignore it, and I am satisfied on the evidence adduced before me that the deceased was a good hard working wife of the plaintiff and that she was a good mother and looked after her children. The plaintiff also informed me that if he could afford it he would employ someone to look after his children.

6. The plaintiff also called as a witness the proprietor of the garment factory in which the deceased used to worked before her death. This witness identified the record book showing the deceased's earnings and pointed out the chop of his garment factory on this record book and he said that the book had belonged to the deceased. He said that the majority of his employees worked from 8 a.m. until 8 p.m. but as the deceased only lived on the floor above she came down when she was free from her housework and so did not work such regular hours as the other employees who in fact earned more than the deceased did. He agreed in cross-examination that the record of the deceased's earnings had not been prepared by him, but as far as he was concerned the record appeared to be correct in that the quantity of goods produced together with the unit charges were at the normal rates.

7. No evidence was adduced on behalf of the defence.

8. Dealing firstly the assessment of damages under the Law Reform (Miscellaneous Provisions) Ordinance. Damages in the sum of $50 as damage to the deceased's clothings have not been disputed and I therefore award this sum. The deceased appeared to have been killed instantaneously and therefore I make no award for pain and suffering.

9. Following the decision in Naylor v. Yorkshire Electricity Board⁽¹⁾ and Wong Kam Ying and another v. Man Chi Tai⁽²⁾ for loss of expectation of life I award the sum of $7,500 which in fact is the sum suggested by counsel for the plaintiff.

10. That makes a total of $7,550 under the Law Reform (Miscella-neous Provisions) Ordinance and I award such sum under that Ordinance.

11. I now turn to the damages claimed under the Fatal Accidents Ordinance. This claim is on behalf of the plaintiff, the widower and the three children of the marriage. Evidence was given by the plaintiff supported by receipts that he personally incurred expenses to the amount of $1,687 with regard to the deceased's funeral. This seems a reasonable sum to have incurred with the exception of one payment of $14 with regard to one carton of cigarettes which I disallow and I therefore award the sum of $1,673. The plaintiff also gave evidence which he could not support by the production of receipts that in addition he spent another $200 on funeral expenses. He said that this sum included travelling to his wife's grave to take joss sticks and chicken, but to me this sum would appear to be excessive and under this head I award $50 only. Therefore under the claim for funeral expenses incurred by the plaintiff as widower I award the sum of $1,723. I make this award under the provisions of the Fatal Accidents Ordinance as I am satisfied that these amounts were incurred by the widower personally.

12. There is a further claim under the heading of special damages of the sum of $200 per month which was paid from the 12th July 1969 to the 11th of June 1970 and continuing at the date of the Writ. This sum is in relation to the $200 per month which the plaintiff said that he paid to persons for 13 months to look after the youngest child but which service did not continue after July, 1970 as he was unable to continue the monthly payments. Under this head the plaintiff claims the sum of $2,600 which I consider to be a fair claim. I therefore allow this sum as further special damages.

13. I now come to the more complicated matter as to assessment of damages on the amount of dependency and loss of services suffered by the family. Upon the evidence I find that the deceased earned on an average $350 a month and the plaintiff gave evidence that his wife told him that she contributed about $300 a month for the family expenses and I believe his evidence. What happened to the other $50 I do not know, except that from the letters of administration which were produced I see that the deceased did have a credit balance in her current savings bank account in the sum of $1,000. Being satisfied that the deceased contributed $300 a month towards the family expenses I must take into account that that amount was towards expenses of a family of 5 which included the deceased and with the death of the deceased the number of the family has been cut by 1/5. Therefore I assess the amount towards family expenses contributed monthly by the deceased as being $240 which sum amounts to $2,880 a year. To that amount I must apply a suitable multiplier. Counsel for the plaintiff has said that such a figure should not be less than 13. When arriving at a suitable multiplier, the respective ages of the parents must be considered and also the respective ages of the children. Attention must also be paid to the uncertainties of life and the fact that the plaintiff and his family will receive a lump sum. I have considered a number of local cases in which awards have been made under similar circumstances and have come to the conclusion that the multiplier of 13 should be applied in this case. Applying this multiplier I come to the conclusion that the amount that should be awarded under this head is $37,440. Reported cases show that one matter which should be taken into consideration in considering the award of damages is the possibility of the re-marriage of the husband. However, under this head, although there may be a possibility of the husband re-marrying which I shall consider under the next head of loss of services, there is no probability that any new wife would be in a position to earn money to supplement the family income and therefore I do not take this matter into consideration under this head.

14. I must also consider the value of the loss of the deceased's services to the family. During her life time the deceased made a home for the plaintiff and his children and according to the evidence it was a happy home and the deceased looked after the plaintiff and his 3 children. The two elder children were at school, but evidence was given that they returned after morning school, their meals were then prepared by the deceased. The youngest child was not at school and was looked after by the deceased fulltime. After the death of the deceased the plaintiff, as I have already said, had to give up his full time job as a taxi driver and do part time work in order that he could look after the two elder children, and, as regards the youngest child, he, as I might say, boarded this child out which cost him $200 a month. As I have already said, he did this for 13 months but because of financial difficulties he had to take the youngest child back and he is now also looking after him. Counsel for the plaintiff has pointed out that it would take a minimum of $200 to look after one child. However, the plaintiff did say that the sum of $200 which he paid to the persons who looked after the youngest child included the child's food, but not the child's clothing. The Plaintiff has also told me that if he could afford it he would employ a person to look after the children and I presume that if such a person could be found, then the plaintiff would be able to go back to a full time job. My difficulty in assessing damages under this head is that I have heard no evidence as to the probable cost of employing such a person to look after the children. All that has been said is that in 1969 and 1970 it cost the plaintiff $200 a month to board out the youngest child. It has been submitted to me that a sum of between $200 and $300 should be allowed under this head, and as any person who was employed to look after the children would also have to be fed and housed by the plaintiff, I consider that a suitable sum would be $250 a month, that is $3,000 a year. Again, I must decide upon a multiplier. There are certain factors which I must take into consideration in deciding what this figure should be. Firstly, I must take into consideration the ages of the three children, especially the youngest child, and secondly, I must take into consideration the possibility only of the plaintiff's re-marriage, because if the plaintiff did re-marry then although as I have said, there is no probability that any new wife would earn money to supplement the family income, such wife, I imagine, would look after the plaintiff's children. The plaintiff is a man of some 40 years of age with as I have said three relatively young children and under the circumstances he may find re-marriage to be difficult even if in fact he would wish to remarry. There is no evidence before me that the plaintiff has any intention of re-marrying. Taking these two factors into consideration, I consider that a suitable multiplier under this head would be 10, thus, making a total of $30,000. Taking into account the awards I have already made, the award then under the Fatal Accidents Ordinance is $71,763. From this total must be deducted the damages awarded under the Law Reform (Miscellaneous provisions) Ordinance which I have found to be $7,550, the award then under the Fatal Accidents Ordinance is $64,213.

15. I realise that the dependants will receive this as a lump sum, but considering the steady decrease of the value of money in this Colony I will make no deduction for that reason. To the plaintiff as administrator I apportion the administration costs and the costs of this action and to himself as widower of the deceased, I award the sum of $24,213, this sum includes the sums incurred by him for funeral expenses and the expenses of boarding out the youngest child and I apportion the balance of $40,000 amongst the three children as follows:-

16. The amount of the children's compensation is to be paid into Court for their benefit with liberty to apply.

17. Certificate for counsel.

6 AUG 1971

Representation:

R. Mills-Owens (C.C. Lee & Co.) for Plaintiff.

A.H. Suffiad (K.B. Chau & Co.) for Defendant.

Judgment delivered.

(1) 1966 3 All E.R. 327

(2) 1967 H.K.L.R. 201