Wang Shih Der & Shun Ming Fung v. Mak Hon Chung

HCA000830/1967

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

ACTION NO. 830 OF 1967

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Coram: Briggs, J.

Date of Judgment: 18 January 1968

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JUDGMENT

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1. The plaintiffs are the administrators of the estate of Cheung Wai Kuen who was killed in a road accident while travelling as a passenger on 26th October, 1966. The accident was caused by the negligence of the defendant. The defendant admits liability and the sole question for the decision of the court is the quantum of damages.

2. The action is brought under the Fatal Accidents Ordinance and the Law Reform (Miscellaneous Provisions) Ordinance.

3. The first plaintiff is the widower of the deceased and this action is brought on his behalf and on behalf of the four children of the marriage.

4. The widower was a man of about 40 at the time of the accident. The eldest child, Wang Shyan Kuen, a son, was 8, the second son, Wang Yin Kan was nearly 7, the third child Wang Shuh a daughter was over 5 and the youngest son, Wang Yin Tat was about 4.

5. Wang Shih Der, the widower, gave evidence and said that the deceased was a woman of 37 and was in good health at the time of her death. He said that she had a net income of about 900 dollars per month. He said that the total household expenses were in the region of $1700 - $1800 per month and he gave his wife $800 per month towards them. She contributed between $800 - $900 from her own income.

6. In cross-examination the first plaintiff gave a break down of the household expenses. And it is apparent that the sum mentioned includes all the expenses of the household including the expenses of food etc. for the husband and wife, the wife's clothes and pleasures, as well as repairs to the flat, and all the expenses of the children.

7. The 1st plaintiff said that the deceased's income came from two sources. $300 per month was a salary paid to her in her capacity as the partner of a business carrying on a garage. And $600 per month came from the profits of a dual purpose van which was owned by the deceased and which was operated by her.

8. As to the $300, the partnership deed was exhibited in court and the other partner in the firm was called as a witness. It is clear from that evidence that she was in receipt of a salary of $300 per month at the time of her death.

9. The other part of the deceased's income presents greater difficulty. Evidence was called to show that she was in possession of one dual purpose van which she held under a hire purchase agreement. This van was repossessed by the company from which it was hired, two days after the death of the deceased, on 28th October 1966. At that time one instalment was outstanding. This was the instalment for October 1966 which was payable under the agreement on 4th October. It was not paid on that date and the hirers sent three letters of warning at intervals of seven days. An official was called from the hirers who said that there was nothing in the records of his company to indicate that the death of the deceased had anything to do with the repossession of the vehicle. It was simply a question of non-payment of an instalment so far as he could tell from his records. The defendant suggests that there is evidence that the dual purpose van was not doing as well as the 1st plaintiff suggests, indeed that it shows that it was not making enough to cover the amounts of the instalments as they became due.

10. The defendant made another point - why, he asked, did not the widower retain the dual purpose van if it was such a profitable proposition? He would probably be able to take over the liabilities and rights of the deceased under the hire purchase agreement. And from the evidence he asked the court to infer that only the barest minimum of supervision was necessary to carry on the business as it was being run.

11. I do not think that there is anything in the second point referred to above. The widower was perfectly at liberty not to try to take the place of his wife under the hire purchase agreement. He said that he would not have had the time and did not have the health or spirit necessary for such an undertaking. And I find this attitude very reasonable.

12. So far as the first point is concerned the only evidence we have of what the wife's earnings were comes from the first plaintiff. No accounts or other documents were exhibited thought it appears that the deceased did keep some record of gains and perhaps losses. The first plaintiff's evidence is partly hearsay being based on communications from the wife and partly derived from the fact that he received the daily takings which were handed to him by the driver upon occasions. The drivers - there were two - were not called as witnesses to state what the daily takings were.

13. The first plaintiff gave a break down of the amount received and paid out in connexion with the dual purpose van. This showed a net profit of $550 per month, That there were profits I am able to accept but I think that the first plaintiff has exaggerated the amount, especially in view of the evidence as to the failure to pay the instalments. There is also the fact that the instalment for September 1966 which was payable on 4th September was not paid until 27th September which might be an indication that there was difficulty in keeping up the instalments. It follows therefore that I am of the opinion that the figure of $550 for the net profit per month is too high. Taking all the evidence which I have heard into consideration and doing the best I can, I estimate the income of the deceased from this source at to be an average of $300 per month.

14. Very often in cases of this nature there is a claim for loss of household services performed gratuitously by the deceased wife. This was only touched on in this case. The deceased I was told did perform household duties but used to attend to her garage business daily. And a servant was and is kept to look after the children.

15. In arriving at the correct figure for damages awarded under the Fatal. Accidents Ordinance any net pecuniary benefit received by a defendant from the deceased's death must be deducted. In this case the first plaintiff has taken out letters of administration and presumably there was an intestacy. It was given in evidence that the first plaintiff did receive the sum of $3000 for the share of the partnership in his wife's garage. This sum is in my view a pecuniary benefit received by him arising out of the death and must be deducted from any award.

16. The reported cases show that one matter to be taken into consideration is the probability of the remarriage of the husband. However, I do not think that it is necessary in this particular case to concern myself with this possibility. The first plaintiff may well remarry if only because he owns his own flat and is in receipt of a good salary holding a responsible position with a weaving company. But all we are here concerned with is the income of the deceased wife. And I am not to suppose that if the 1st plaintiff remarries he will marry a wife who will earn an income to help to support the family.

17. The usual method of arriving at a figure for the damages is to calculate the net loss to the husband on an annual basis and then to apply a suitable multiplier to that figure. When arriving at a suitable multiplier the respective ages of the parents must be considered and also the respective ages of the children. Attention must of course also be paid to the uncertainties of life and to the fact that the 1st plaintiff will receive a lump sum.

18. I have calculated the income of the wife to be $600 per month. The 1st plaintiff said that $200 per month of her income was spent on herself and that he reckoned that her meals cost between $100 to $200 per month. Allowance must be made for these sums. This gives us a net annual loss to the 1st plaintiff of $3,600 per annum.

19. The deceased was a healthy woman of thirty-seven and the 1st plaintiff is forty-one. The children were all under nine at the time of the death. I think the suitable multiplier is the period of years of each child between the date of the death and the date when that child reaches eighteen years of age. If an average is taken of this period of time in respect of each of the four children, we reach the multiplier of ten years, which I consider to be suitable.

20. Deducting the sum of $3,000 for the amount of pecuniary benefit incurred by the 1st plaintiff we arrive at the figure of $33,000.

21. It is unnecessary to consider any award under the Law Reform (Miscellaneous Provision) Ordinance since any sum awarded would be small and would merge with the sum I have awarded under the Fatal Accidents Ordinance.

22. As to the funeral expenses I think that the sum claimed for the grave namely $1,800 is far too high. I will allow $400 under this head. And I allow the sum of $1,650 for the other expenses in connection with the funeral in full. Such sum was evidenced by receipts.

23. There will therefore be judgment for the plaintiff for $35,050.

24. The damages will be apportioned as follows:-

25. As there has been a payment into court by the defendant of $37,550 in satisfaction of the claim, the plaintiff will have his costs up to the date of that payment into court only. Costs incurred after to be the defendant's. Any balance from the sum which has been paid into court due to the defendant after satisfaction of this judgment shall be paid out to the defendant.

Dated 18th January, 1968.

Representation:

Robert Wei (Edmund Cheung Young) for Plaintiffs.

Mills-Owens (Johnson, Stokes & Master) for Defendant.