Lau Kam Fook v. Ho Hon Por and Another
Read the full judgment text of HCA 9802/1982 on BabelCite. This High Court CFI judgment.
1. The deceased, a 17 year old saleswoman, was killed when the car in which she was travelling crushed into a lamp post near Shek Kong on' the 18th of January 1981.
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HCA009802/1982
IN THE SUPREME COURT OF HONG KONG HIGH COURT ___________ BETWEEN
____________ Coram: Master Hansen in Chambers Date: 29th April 1983 Appearances: Mr Smith instructed by K.Y. WOO & Co for Plaintiff. Mr A. Wong instructed by Vincent LO & Co for Defendants. ----------------------------------------- ASSESSMENT OF DAMAGES ----------------------------------------- 1. The deceased, a 17 year old saleswoman, was killed when the car in which she was travelling crushed into a lamp post near Shek Kong on' the 18th of January 1981. 2. In his submissions Mr Smith referred to both loss of future dependency (under FAO) and "lost years" (under LARCO). however, under the statement of Claim the Plaintiff only sought damages under LARCO and that is all I need to consider here. 3. The deceased's brother gave evidence that before her death his sister had been employed as a saleswoman in a jewellery concern. At the time of her death she was earning $1,500 p.m. and from this she contributed $800 p.m. to the family finances. At that time the deceased was on a 3 month probationary period with her employers. Under cross examination the deceased's brother said he had discussed the deceased's performance with her employer (whom he knew) and had been told she would be confirmed in her position. There was also evidence from the brother that another sister was married at age 20. There was no firm evidence as to what the deceased's future earnings would be although there was evidence that she could expect annual increments. There was further evidence that at the time of her death the deceased had no savings and she spent the balance of her wages after contributing $800 to the family finances. 4. To calculate the award under LARCO one must take the deceased's income and deduct from it the cost of maintaining herself thus arriving at what is referred to as the "free balance". In calculating the deduction one must take into account those matters summarised by the Chief Justice at Pages 10 and 11 of the Personal Representatives of the Estate of Wong Sai Chuen v Tam Mei Chun and others CA 1981/133. In some English oases this has been assessed as a percentage of income (S9& Benson v Biggs Wall & Co. Ltd [1982] 3 ALLER 300; White V London Transport Executive [1982] IALLER 410; Adsett v West (The Times February 19th 1983). However, it seems to me that every case should be considered on an individual basis. 5. In this case difficulties are created by two factors:-
6. Mr Smith submitted that in the normal course of events the deceased could've expected increments as her prospects were goo a. He also submitted that the deceased probably would not have married until she was 26 or 27 and even if she had married younger she would have continued to contribute to the family he further submitted that one would expect her family contribution to increase. 7. Mr Wong on the other hand submitted there was no direct evidence as to the deceased's salary and further the claimed responsibility to her family was merely presumption. Further he submitted there was no real evidence as to the deceased's marriage prospects but noted her sister had married at 20. he also complained that there were no receipts to support the funeral expenses claimed and stated that in recent cases the average award was $4,500 - $5,000. He submitted in the absence of receipts only a nominal award should be made. Lost years 8. I am satisfied the deceased's income would have increased. Any assessment of that increase must contain an element of speculation but I consider there would, in addition to normal inflationary increases, be increments reflecting the deceased's increasing experience. I consider it proved on the evidence that she would have been confirmed in her position. 9. As to her contribution to the family I consider that this would have increased as her income increased but would have remained in the same proportion to her total income. 10. I believe the correct assessment here is $2,000 per month. This means the deceased's contribution to the family would have been$1,066 per month: say $1,100. In view of the deceased's increased income I consider she would have made some savings and notional savings during the lost years should be considered. (See The personal Representatives of the Estate of Wong Sai-chuen v Tam Mei-chun (supra) at Page 12) I estimated such savings to be $150 per month. This leaves a free balance of $l,250 per month. It is of course extremely difficult in this case to decide what period the loss of earning expectancy should be. After much consideration I think this must be based on an estimate of when this girl would marry. No evidence as to average age of brides was put before me but in all the circumstances I should, as a matter of common sense, take the age of 23 years. Accordingly under this head I award $90,000. Loss of Expectation of Life 11. Both counsel accepted the appropriate award was $15,000 and accordingly I award this sum. Funeral Expenses. 12. I accept Mr Wong's submission and duly award $5,000. Special Damages 13. I award the $200 claimed for damaged clothing. Summary
Interest 14. It is clear that the claim for "lost years" should be split into pre and post trial loss and that interest at half the appropriate rate should be awarded up to the date of the trial. See the decision of Fuad J.A. in Wong Yuk Chau and another v Tong Suk Yee, Daisy administratrix of the estates of fang Man deceased and Ko Sin deceased CA 1983/13 at page 11. It is also clear from that decision that interest at the full economic rate should be awarded on the award for loss of expectation of life from the date of the writ until judgment. (See Page 17). 15. Accordingly there will be interest on $31,250, the pre trial portion of the lost years ($1,250 x 25 : $31,250); on the funeral expenses and the award for damaged clothing from the date of the accident until judgment at 7%. There will be interest on the award for the loss of expectation of life from the date of the writ until judgment at the rate of 14% p.a. 16. There will be costs to the plaintiff to be taxed failing agreement. There will be a certificate for counsel.
Representation: Mr Smith instructed by K.Y. WOO & Co for Plaintiff. Mr A. Wong instructed by Vincent LO & Co for Defendants. |