Wan Wai Ying v. Cheung Yung on

HCA000536/1969

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

ACTION NO. 536 OF 1969

-----------------

-----------------

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

Date of Judgment: 23rd December, 1970.

-----------------

DECISION

-----------------

1. This is an application for assessment of damages pursuant to an order of the Hon. Mr. Justice Pickering dated the 24th October, 1970.

2. The Plaintiff claims damages under the Fatal Accidents Ordinance and the Law Reform (Miscellaneous Provisions) Ordinance as the administrator of the estate of his wife who was killed as a result of a road traffic accident that occurred on the 7th May, 1968. At the time of the accident the deceased was a passenger in a motor vehicle driven and owned by the defendant which was involved in a collision with another vehicle.

3. The Plaintiff's action is brought on behalf of himself and the four children of the family:-

4. The deceased at the date of her death was aged 37 and in paragraph 7 of the Statement of Claim it was stated that she was carrying on the business of a fruit store in Tai Po Market, New Territories but I was informed at the commencement of the hearing of the assessment that the business is in fact owned by the Plaintiff and that the deceased was the manageress. The Statement of Claim alleges that at the time of her death the net monthly profit from the business was approximately $1,500.00 out of which sum the deceased is said to have supported the Plaintiff and the four children. However, in evidence the net monthly profit at the date of death was given as $3,000 per month whereas today it is approximately $1,800 per month. Even if a dependency has been established the figures presented to me are both too vague and inconsistent for a claim to be formulated.

5. The Plaintiff has been working in England at a Chinese restaurant since 1966. He has not been back to Hong Kong since 1966 except to attend his wife's funeral in 1968. The four children have been in England since September 1969 and I am told they are being educated there.

6. The business at Tai Po has been continued since the death of the deceased by the Plaintiff's mother Yeung Lo Hoi but it is contended that the profits have decreased from $3,000 per month to $1,800 as a result of the death.

7. Under the Fatal Accidents Ordinance the measure of damage is the pecuniary loss which has been suffered and is likely to be suffered by each dependant. The Plaintiff did not give evidence to show that there was any dependency either by himself or the children but only that he had lost a capable manageress of his fruit store. The Plaintiff is 40 years of age and no evidence was produced that he is not in a position to support his family. A husband's loss for the death of his wife is usually comprised of loss of services which the wife gratuitously rendered for him. It was not established that the Plaintiff had incurred any additional expenditure as a result of the death of his wife for his mother continued to operate the business whilst the children, the youngest of whom at the date of death was aged 11, were capable of looking after themselves with the assistance of the Plaintiff's mother. As a result the Plaintiff suffered no financial loss as a result of his wife's death.

8. Accordingly I hold that there is no dependency under the Fatal Accidents Ordinance so that no damages can be awarded under this head.

9. The Plaintiff's claim will therefore be limited to damages under the Law Reform (Miscellaneous Provisions) Ordinance for loss of expectation of life and for funeral expenses. The special damages have been agreed at the sum of $1,465 being funeral expenses $1,365 according to the receipt that was produced, travelling expenses to the mortuary $50 and damaged clothing $50.

10. Although the accident occurred on the 7th May and the deceased died on the 8th May at 12.05 a.m. no evidence was adduced as to pain and suffering with the result that I am unable to make an award under this head.

11. There are numerous cases to the effect that damages for loss of expectation of life under the principles laid down in the case of Benham v. Gambling 1941 AC 157 will be moderate. There was no evidence to show that the deceased had she lived would not have led a happy life. In the circumstances I shall award the sum of $7,500 as damages for loss of expectation of life under the Law Reform (Miscellaneous Provisions) Ordinance. The special damages of $1,465 will be added to this sum making a total award of $8,965.00.

12. Costs to the Plaintiff. Certified fit for Counsel.

Representation: