Chang Yik Foon v. Hing Lee Construction Co

HCA000334/1969

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

ACTION NO. 334 OF 1969

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Coram: B.L. Jones, Assistant Registrar in Chambers.

Date of Judgment: 29th December, 1970.

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DECISION

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1. This is an application for damages to be assessed under the Fatal Accidents Ordinance and the Law Reform (Miscellaneous Provisions) Ordinance pursuant to the judgment obtained by the Plaintiff in default of appearance on the 30th July 1969.

2. The assessments originally came before Mr. Assistant Registrar Mayo on the 20th February 1970 but was adjourned sine die.

3. Evidence was given by a clerk in the employ of the Plaintiff's solicitors that the notice of appointment of the hearing of the assessment was served by him on the 12th December 1970.

4. There was no appearance by the defendants at the hearing of the assessment.

5. The proceedings were issued by the daughter as administratrix of the estate of her mother, a widow, who died on the 20th May 1968 at the age of 80 years after being injured by a hoarding that collapsed at a demolition site in Reclamation Street Kowloon.

6. The Statement of Claim alleged that the deceased during her life time paid $150 per month to the Plaintiff to support her family and $150 per month for her mentally handicapped son.

7. The Plaintiff said that her mother at the time of her death was in good health and worked as a hawker earning about $600 per month.

8. The Plaintiff was working at the date of her mother's death and has continued to do so since as an odd job worker. The Plaintiff now earns $320 per month, out of which sum she supports herself, her three children and her mentally handicapped brother.

9. I am in considerable doubt whether in fact the deceased at the age of 80 supported the Plaintiff and her brother to the extant if at all that has been claimed.

10. Having regard to the advanced age of the deceased the many vicissitudes in life and the evidence before me I am unable to accept that a dependency has been established in this case.

11. As a result there will be no award of damages for dependency under the Fatal Accidents Ordinance.

12. The Plaintiff's claim is therefore restricted to damages under the Law Reform (Miscellaneous Provisions) Ordinance for loss of expectation of life and for funeral expanses.

13. Mr. Sanguinetti several cases in support of his argument that there is now a conventional figure of £500 for damages in respect of loss of expectation of life.

14. In particular in the case of Cain v. Wilcock 1968 3 All E.R. at page 818 Russell L.J. said:-

"I dare say it is improper for me to say this, but having considered the complicated attitudes adopted on this subject by members of the House of Lords, it seems to me that it would lead to highly desirable certainty, without much harm to insurance companies, if judges listened in silence to arguments, and simply awarded £500 without giving any reasons at all."

15. I agree with counsel's argument that £500 is a moderate award and is in fact the generally accepted figure in England, However, no generally accepted figure has yet been adopted in Hong Kong.

16. In the present case one must take into account the age of the deceased with the result that her life must be considered to have been relatively short. In the circumstances I shall award the sum of $4,500 for loss of expectation of life under the Law Reform (Miscellaneous Provision) Ordinance.

17. A receipt totalling $1,000 was produced in respect of the funeral expenses that were claimed in the sum of $3,500. $3,500 is an excessive figure to pay for funeral expenses as the Plaintiff is a person of no means, and the full amount claimed cannot be allowed in the absence of strict proof. I accept that the Plaintiff paid further sums for the grave yard, tombstone and religious ceremonies although no receipts were produced. I shall allow a reasonable sum for the grave yard and tombstone in the sum of $500 which will make a total figure of $1,500 for the funeral expenses.

18. Accordingly the total damages awarded will be $6,000.

19. I shall award costs to the Plaintiff and a certificate for Counsel. However the costs will be taxed upon the District Court Scale V having regard to section 14(2) of the District Court (Civil Jurisdiction and Procedure) Ordinance Cap. 336 which provides that "where any proceedings in which the District Court has jurisdiction are brought in the Supreme Court costs shall be recoverable on such scale and in such amount as would have been recoverable if the proceedings had been brought in the District Court, unless the proceedings were so brought by leave of the Supreme Court or unless the Supreme Court otherwise orders'. These proceedings were neither brought in the Supreme Court by leave nor is it an appropriate case for the court to order otherwise.

Representation: