Luk Ho v. Chan Lap Ho and Another
Read the full judgment text of HCA 1129/1969 on BabelCite. This High Court CFI judgment.
1. Liability having been admitted in this claim under the Fatal Accidents Ordinance (Cap. 22) and the Law Reform (Miscellaneous Provisions) Ordinance (Cap. 271), the issue now before the Court is limited to the quantum of damages. The narrowness of the scope of the enquiry does not render it free from complexity.
Cited by 1 case
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HCA001129/1969 IN THE SUPREME COURT OF HONG KONG ORIGINAL JURISDICTION ACTION NO. 1129 OF 1969 -----------------
----------------- Coram: Pickering J. Date of Judgment: 17th June, 1971. ----------------- JUDGMENT ----------------- 1. Liability having been admitted in this claim under the Fatal Accidents Ordinance (Cap. 22) and the Law Reform (Miscellaneous Provisions) Ordinance (Cap. 271), the issue now before the Court is limited to the quantum of damages. The narrowness of the scope of the enquiry does not render it free from complexity. 2. The Registrar of the Supreme Court being, in his capacity as Official Administrator, the administrator of the estate of the deceased and consequently the plaintiff in this action, the issue of quantum has been referred to a judge instead of being determined by the Registrar himself as would otherwise have been the case. 3. On the 18th September 1968, the deceased was knocked down by a motor-bus driven by the first defendant and owned by the second defendant company. The deceased died on the same day as a result of the injuries he sustained in the accident. At the date of his death he was 43 years old and, according to the statement of claim, in good health and employed as a shoemaker, earning $750 p.m. together with free meals. 4. The action under the Fatal Accidents Ordinance is brought for the benefit of:-
5. The two elder children of the deceased lived with him in Kowloon whilst his parents and his younger son lived together in Mainland China. The wife of the deceased disappeared many years ago and her whereabouts are unknown. Prior to the death of the deceased his daughter, LUK Lai-lin, did not go out to work but kept house for her father and the elder of her brothers who at that time was a schoolboy. The girl is now employed in a garment factory where she earns about $300 p.m. whilst her brother in Hong Kong is now a student at the New Asia College of the Chinese University having joined that college last year to study mathematics for four years. He supports himself by giving private tuition to Middle School students and by means of a subsidy from his sister as well as by a loan from the Government, repayable after graduation. It is his intention to undertake research work at the expiration of the four years provided that he has sufficient money. 6. I am quite satisfied, on the evidence of the deceased's employer, that the deceased's earnings did in fact average $750 p.m. and that he had all his meals free at his place of work except on the two days per month on which he did not work. I am equally satisfied on the evidence of the daughter and the elder son that these two were dependent upon their father at the time of his death. The extent of this dependency was given in evidence by the girl, LUK Lai-lin, as $400 to $500 p.m. but the details of expenditure subsequently attested to by her and by her brother, LUK Wai-man, leave me satisfied that even the higher of these two figures represents a slight under-estimate. Thus, the monthly cost of food for the two, their father having his meals at his place of employment, was stated to be $230 to $240 and I adopt the mesne figure of $235. Rent was $28.50 p.m. or say $19 in respect of that portion attributable to the son and daughter. The daughter received $100 p.m. "pocket money" from which she was required to pay for her breakfasts, clothes, shoes, hairdresser and such entertainment as the cinema. Medical expenses were said to be $20 to $30 p.m. and I adopt the average of $25. Electricity cost $3 and fuel $6 p.m. The boy received $2 to $3 per day for breakfast, barber, clothing etc. or say $75 p.m., and a further $16 p.m. for travelling expenses, an average of $17 p.m. for text books and stationery and $42 p.m. for school fees. The total dependency of these two was therefore of the order of $538 p.m. and allowing for the fact that the $288 p.m. representing food, rent, medical expenses and electricity and fuel charges accrued equally to their benefit whilst the remaining items were personal to one or other of them, the breakdown as between brother and sister is $294 p.m. to the brother and $244 p.m. to the sister. 7. The evidence in regard to remittances to China at the average rate of $100 p.m. was less conclusive, that of the daughter consisting of hearsay. The evidence of her uncle, the brother of the deceased, was however, more direct since he sometimes remitted the money himself at the request of the deceased and sometimes arranged for it to be taken to the village by clansmen travelling there. The amount, he said, was sometimes $100 and sometimes more than $100. Food and clothing was also sometimes sent to the claimants in China. I think it clear that there was a dependency on the part of those claimants of approximately $100 p.m. Mr. Gregory's suggestion to witnesses that these claimants in China were living in and off a commune was denied by the witnesses. In my view there can be no doubt that had no dependency existed the remittances would not have been made. The tenor of certain letters from these relatives in China which were produced in evidence, also suggests strongly the existence of a measure of dependence. 8. The total dependency as at the date of death was therefore $638 p.m. or $7,656 p.a. and prima facie it is upon the basis of this annual figure that damages under the Fatal Accidents Ordinance fall to be assessed. 9. Mr. Gregory, for the defendants however, contended that this is not in fact so, and that because the daughter was now earning she had in effect exchanged one job for another and was not a dependant for the purposes of the Fatal Accidents Ordinance; similarly, since the son resident in Hong Kong was now partly supporting himself by coaching, some deduction from the amount of his former monthly dependency should be made before applying any multiplier. 10. Undoubtedly, one factor which I must take into account in respect of the daughter is the likelihood of her marrying at some future date. In the case of a widow, it has long been recognised that the likelihood of her remarriage - a necessary but invidious speculation which the judge is required to enter upon - must be taken into account and, in proportion to the strength of that likelihood, be permitted to diminish the award to the widow. 11. Whether the same principle applies to the actual or prospective undertaking of employment by a widow not employed before her husband's death is another question. It may well be that a distinction exists between the circumstance in which a third party, a new husband, voluntarily undertakes that same legal obligation of supporting the widow which previously rested upon the deceased, and that in which, force majeure, the widow takes up the task of supporting herself by undertaking employment whereas previously she had none. That latter circumstance must be a commonplace where the bread-winner is killed and if the distinction which I have postulated does not in fact exist, it is remarkable that the reports do not abound in cases in which the widow's new-found earnings are taken into account so as to constitute a deduction from the amount of the award which would otherwise have been made. Yet no such case was quoted to me by Mr. Gregory and my own researches have led me to only one. In the Western Australian case of Leys v. Polinelli(1), the report of which is not available in Hong Kong but which is referred to at page 272 of volume 2 of the Second Edition of Kemp and Kemp on the Quantum of Damages, it was held that where upon the death of her husband, the widow resumed her professional occupation this reduced her award but not those of her children. 12. It is notable, however, that in the same jurisdiction in the case of Usher v. Williams and Others(2), the case of Leys v. Polinelli was not followed. In the later case Wolff, J. said:
Similarly in the South Australian case of Goodger v. Knapaan(3), Murray, C.J. said:
13. A decision to the like effect was made by the New Zealand Court of Appeal in Jamieson v. Green(4), and it is notable that in the English case of Bishop v. Gunard White Star Co. Ltd.(5) Hodson, J. made no deduction from the award in a case in which the widow, formerly a housewife had taken up employment as a telephonist after her husband's death. The case of Schofield v. Bates(6) is another instance of a court refusing to follow Leys v. Polinelli. 14. It is apparent that such authority as exists is persuasive rather than binding on me but the cases point almost unanimously in one direction and are opposed to the suggestion that because a dependant has obtained employment or better employment since the date of the death, that fact should reduce the amount of the award to the dependant. Accordingly, in calculating the awards to the daughter and the son living in Hong Kong, I take no account of the fact that the girl is now earning $300 per month whereas formerly she kept house for her father and her brother and was dependant entirely upon her father; likewise I ignore the partial self-support accruing to the son, now at the Chinese University, from his coaching activities. 15. There is another somewhat unusual aspect of the case in that the length of the probable future dependency of each dependant appears to differ. In the more usual case of a widow with young children, the death of the husband aged 43 years would result in the application to the figure of total dependency of a fairly readily ascertainable multiplier which would have the same relevance to each of the dependants. In the present case, however, two of the dependants in China were in their middle seventies at the time of death whilst the son in China was then aged 13 years; the dependants in Hong Kong were a daughter aged 18 at the time of the death who might reasonably be expected to marry within the foreseeable future, and a son, then a school boy, who might equally be expected to support himself after obtaining his university degree. 16. The usual practice of the courts is to ascertain the total dependency of the various dependants and convert this into a lump sum by applying a certain number of years purchase thereafter taxing down that sum by having due regard to the uncertainties of life and to the fact that what is being received is indeed a lump sum as opposed to the weekly or monthly contributions from the deceased which would have continued but for his death. Despite some fairly recent dicta, however, that method is not the only method of calculating damages under the Fatal Accidents Acts. 17. In Jeffrey v. Kent(7), Paull, J. said that it was "The usual and indeed the almost invariable practice for the courts to calculate the lump sum first and then apportion it among the claimants." Some years earlier in Eifert v. Holt's Transport Co. Ltd.(8) Singleton, L.J. had gone even further when he said this was "always" done. In this I think, with respect, the learned Law Lord went too far for what has become the usual practice of the courts is not invariable and represents a development from the earlier method of assessing compensation. In one of the first leading cases under the 1864 Act (the first Fatal Accidents Act) that is Pym v. Great Northern Railway(9), the court calculated separately the awards to each of the nine dependants and stressed that the remedy was not given to a class but to individuals. Throughout the 19th century, juries regularly calculated each award separately although it was recognized to be equally lawful to calculate the lump sum as was done in Bulmer v. Bulmer(10) and in 1941, in Yelland v. Powell Duffryn Associated Collieries Ltd. (No.2)(11) the Court of Appeal recognised that either method was permissible. Indeed, as recently as 1938, Langton, J. said: "The best and only proper way of dealing with such a body of claims is to award separate and individual amounts to each of the relatives." See The Aizkarai Mendi(12). 18. I think it clear on the basis of those authorities that separate calculation of the award to each of the dependants is every bit as permissible a method of arriving at the total award of damages as is the ascertainment of a lump sum and its subsequent apportionment between those dependants. And in the present case it appears to me that the former method is the only method which will do justice both to the defendants and to each dependant. To ascertain the total annual dependency and thereafter apply to it the multiplier which would be appropriate in the case of a widow with young children who has lost a husband aged 43, which multiplier might be as high as 12 or 14, would be unfair to the defendants for no single dependant was likely, at the date of the death of the deceased, to have remained dependent upon him for so lengthy a period. Conversely to employ a lower, but identical, multiplier to the annual dependency of each dependant would inflict injustice upon some of them and unduly profit others for the duration of their probable dependency had the deceased lived, was unequal as between them. Accordingly I cannot but ascertain the award to each dependant separately. 19. To state that intention is more easy than to execute it. Especially in regard to the dependants in China, I am bereft of much of the information which it is desirable to have in order to arrive at a realistic term of probable dependency in regard to each such person. Thus, the deceased's youngest son was aged 13 at the date of his father's death and I have no evidence as to the age at which a youth in Mainland China might reasonably be expected to become self-supporting. Similarly the deceased's parents were already aged at the time of his death and I have no mortality tables or other more direct evidence as to their expectation of life. I am reduced to the well-known but unsatisfactory formula of "doing the best I can" and on that basis I assess the dependency of the boy at four years, that of the deceased's father at two years and that of his mother at seven years. In assuming a life expectancy of 78 years in the case of the father and of 80 years in that of the mother, I am acknowledging the fact that in most parts of the world the life expectancy of the female is greater than that of the male. 20. I shall assume that the $100 p.m. dependency of the three individuals with whom I am now dealing benefited each of them equally so that each received some $400 per annum. On the basis of the dependency terms which I have adopted, it follows that the award to the boy, LUK Kam-tin, is $1,600 - that to his grandfather, the deceased's father, $800 and that to his grandmother, the deceased's mother, $2,800. 21. Different considerations apply to the daughter and son of the deceased who lived with him in Hong Kong. I have already expressed my reasons for declining to take into account, in assessing the degree of their dependency, the fact that the girl now earns some $300 p.m. whilst the young man is partly self-supporting as a result of his coaching activities. As has been demonstrated earlier, the monthly dependency of the young man was $294 and that of his sister $244. Expressed in annual terms the figures are $3,528 for the boy and $2,928 for the girl. 22. What are the multipliers to be applied to those annual figures? In the case of the girl it is unlikely that she would have continued to keep house for ever for her father and brother and probable that sooner or later she would have married. Mr. Gregory suggested that if, despite the fact that the girl has found employment since her father's death, I found that she was a dependant for the purposes of the Ordinance (and I have so found) then I should have regard to the fact that she is an attractive girl likely to contract an early marriage. Mr. Gregory failed to ask the witness if she was engaged to be married and I have no evidence that such is her status. With the utmost delicacy, such opportunity as I had for observing the young lady did not suggest to me that her prospects of early marriage are any better than average and I estimate her continued dependency at six years from the date of her father's death. The award under the Fatal Accidents Ordinance in respect of LUK Lai-lin, is therefore $2,928 x 6 or $17,568. 23. Her brother, LUK Wai-man, commenced a four-year course in mathematics at the New Asia College in September 1970. Assuming normal progress he should complete that course in or about June 1974 and, allowing time thereafter to obtain suitable employment, he should be capable of being self-supporting by about September of that year, just six years after the death of his father. Once having graduated, it is this young man's ambition to undertake post-graduate research work provided that he has the financial means to do so. That is his ambition and I wish him well in it. I trust that he will have both the finances to undertake, and the ability to be accepted for such work but that cannot be at the expense of the defendants. Poorly-paid or unpaid research work after graduation will be a deliberate choice as against the adoption of employment offering a living wage. There is less guess work about the length of LUK Wai-man's probable continued dependency upon his father than in the case of his sister and I can assess, rather than estimate, that duration at 6 years expiring in or about September 1974. The award under the Fatal Accidents Ordinance in respect of LUK Wai-man, is therefore $3,528 x 6 or $21,168. 24. Under the Law Reform (Miscellaneous Provisions) Ordinance I adopt and award the figure of $7,500, suggested by Mr. Gregory, for loss of expectation of life. Special damage has been agreed at $775. 25. The damages under the Law Reform (Miscellaneous Provisions) Ordinance will go to the Official Administrator as administrator of the estate of the deceased and it will fall to him to deal with this sum of $7,500. I am informed that the next of kin as set out in the estate duty affidavit is the widow but she has not been heard of for more than ten years. However neither side has made any attempt, or indeed is in a position to make any attempt, to show that the widow is dead and there has been no application to the Court to presume her death. It follows that this award of $7,500 should be held by the official administrator for the widow. She however, was not dependent on the deceased and there was no claim by her and no award to her under the Fatal Accidents Ordinance so that the sum of $7,500 awarded under the Law Reform (Miscellaneous Provisions) Ordinance does not fall to be deducted from any award made under the Fatal Accidents Ordinance. Moreover, if eventually the official administrator makes a successful application to the Court to presume the death of the widow so that the $7,500 passes to the deceased's children, there will still be no necessity to make any deduction from the awards to them under the Fatal Accidents Ordinance because they would inherit this sum of $7,500 not from the estate of the deceased but from that of his widow. 26. The eventual awards are therefore:- 27. To the estate, under the Law Reform (Miscellaneous Provisions) Ordinance, $7,500. Under the Fatal Accidents Ordinance, to LUK Lai-lin, $17,568; to LUK Wai-man, $21,168; to LUK Kam-tin, $1,600; to LUK Ma-chow, $800 and to TANG Heung, $2,800. Additionally there is an agreed award of $775 in respect of special damages and the plaintiff is entitled to the costs of the action as against both defendants. Those costs must be taxed under the Legal Aid Regulations. Representation: Mr. Suffiad (Messrs. C.P. Lin & Co.) for plaintiff Mr. Gregery (Messrs. Johnson Stokes & Master) for defendants. (1) 1951 53 W.A.L.R. 89 (2) 1955 60 W.A.L.R. 69 (3) 1924 S.A.S.R. 347 @ 358 (4) 1957 N.Z.L.R. 1154 (5) 1950 P.240 (6) S.A.S.R. 317 (7) C.C. 1958 3 A.E. 155 @ 157 (8) 1951 W.N. 467 (9) 1863 4 B. & S. 396 (10) 1883 25 C.D. 409 (11) 1941 1 K.B. 519 @ 527 (12) L1. L.R. 274 @ 277 |