Lee Fat v. Yuen Kan and Another

HCA004092/1982

IN THE HIGH COURT OF JUSTICE

BETWEEN

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Coram: Hon. Liu J

Date: 14th June, 1983.

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JUDGMENT

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1. On the 27th December 1980, a student cyclist on Lantau Island was knocked down and killed by a lorry. At the time of his death, he was fifteen. Liability has been admitted. Not only has it been admitted. It has been admitted at 25% on the part of the cyclist. Consequently, liability on the part of the driver was 75%.

2. By June 1982, the deceased student cyclist would have passed some subjects in the School Leaving Examination. Miss Yip, one of the deceased's classmates had a bank teller job for $1,600 a month at a time when she had not achieved full credits for her School Leaving Examination. She has gone back for further examination, and she is now a student nurse. The younger brother of the deceased, with no academic attainment, has had employment for $1,600 a month.

3. It is not unreasonable to, and I do find that the deceased would have had himself employed at $1,800 a month. We are talking about almost minimum wage. My assessment of the deceased's working attitude and earning capacity is not entirely a matter of surmise. The deceased came from a family of five, parents, self, younger brother and a sister. A new member was added after his death, and suffice it for me to say that his entitlement has not been sufficiently established by evidence.

4. According to the father, the deceased worked 5 - 6 hours after school. The school mistress could not testify to any effect attributable to the alleged long hours of labour, but Miss Yip, the deceased's classmate, recalled the deceased having told her of his chores at home. The deceased's father's apportionment of the deceased's contribution seems to be exaggerated, but I do accept that the deceased did regularly help in the business of his father's.   on a "$300 per month" his father paid him, the deceased's actual worth must have been more. I would, as best as I could, assess it at $600 per month.

5. The younger brother of the deceased, for whatever his entitlement, would not have been entitled to more than a few years contribution or subsidy from the deceased. I would put it no higher than a 2 years' purchase. But that is not a matter in dispute between the parties because both counsel agreed that the quantum to be awarded to the younger brother of the deceased should be at a net figure of $500 ignoring the percentage for deduction.

6. The sister of the deceased would have, at best, been entitled to 6 - 7 years of contribution, if that is the proper word for it, from the deceased. There is very little evidence of actual dependency or the extent of it. But again doing the best I could I would give the sister one of a family of five at the material time before the death of the deceased a 4 years purchase on, say, $50 per month yielding a figure of $2,400; less a 25% deduction that would give a total of $1,800 in all.

7. These are insignificant claims. I have tried to give them the attention that they deserve, but they are, nevertheless, insignificant, agreed at $500 and as assessed $1,800.

8. The father of the deceased is a hard-working, decent, down to earth      man. He was particularly careful as to his information given to the court. Apart from his inexact assessment of the deceased's contribution and perhaps hours of labour he was quite fair in his evidence. I should have thought that the parents would have been relying on the deceased for nothing more than 8 10 years on a decreasing scale of dependency, but I would give the parents a purchase of 5 years. It is quite obvious that with a 5 years purchase, it would be quite unnecessary for me to do any actual calculation because the Fatal Accident damages would eventually be absorbed by or set off against the Law Reform damages.

9. Bearing in mind the working attitude and earning capacity of the deceased from what his father has told us in this court, there can be no doubt that the deceased. would have earned at least $1,800 per month after his School Leaving. Examination passing the subjects that he would have as testified to by his school mistress. Taking into consideration all the material future events, I would give a 16 years' purchase. With the responsibility of his as reflected at a young age of fifteen, I would expect the deceased to be conservative and frugal in his own living expenses. With his estimated income of $1,800 per month, I would expect a net savings of $900 per month. Counsel of the plaintiff suggested more and counsel for the defendants suggested less. Of course, as submitted by Mr. Mumford for the plaintiff and as the circumstances in this case justify it, it is here ultimately a question of how much the deceased would have spent or. himself. Taking all into consideration, in particular the deceased's outlook in life and his preparedness to help the family prior to his death at the age of fifteen, I have no hesitation in assessing a net savings of $900, being 50% of what he would have earned.

10. Turning to the Law Reform damages, I would divide the same into two sub-heads. First, pre-trial loss from December 1980 to June 1982, a period of 18 months at $200 per month i.e. $600 worth of labour less some $400 for himself, thus giving us $3,600. Just to recap: the father's apportionment would seem to be inexact, but I do accept that the deceased did regularly help in the family business. He was paid $300 a month by his father and on that, his actual worth must be more. I have assessed it at $600. Thus, the deceased himself contributed $300. For a family then of five, I would put his contribution towards his own expenses in the family pool slightly higher than one fifth at $100, thus his net contribution was $200 per month. Further, from June 1982 to the date of trial, there was a period of 12 months and in my assessment of 50% of $1,800 per month i.e. a net savings of $900 per month, that would give a figure of $10,800.

11. Lastly, I pass on to future loss. Having given a figure of a multiplier of 16 years, which is, in my view, appropriate and in fact embraced by both counsel in these proceedings that would leave another 13½ years or 162 months after the 2?years pre-trial loss. If one multiplies that by $900 per month, that would yield a figure of $145,800. Funeral expenses were agreed at $6,000 and loss of expectation of life at $15,000. All in all, that would he $183,200; less 25% in the sum of $45,800, the net would be $137,400. The parents are the only beneficiaries to the intestate estate of the deceased, and their Fatal Accidents damages must be wholly absorbed by their Law Reform damages. To the Law Reform damages, we must add $500 as agreed for the brother and $1,800 as assessed for the sister. That would bring the net total to $139,700, and that is the sum that T would award in favour of the plaintiff against both defendants.

Representation:

Mr. E.C. Mumford instructed by Rowdget W. Young & Co. for the Plaintiff.

Mr. F. Leung instructed by Messrs. Woo, Kwan, Lee & Lo for the 1st & 2nd Defendants.

Ordered:

Representation:

Mr. E.C. Mumford instructed by Rowdget W. Young & Co. for the Plaintiff.

Mr. F. Leung instructed by Messrs. Woo, Kwan, Lee & Lo for the 1st & 2nd Defendants.