Ho Sau Ying and Another v. Mak Lung Fei and Others

HCA004776/1984

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

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Coram: Master Woolley in Chambers.

Date of Hearing: 16 August 1985

Date of Delivery: 17 September 1985

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ASSESSMENT OF DAMAGES

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1. On 10th August, 1981 Mr. Ho Wai Leung and Mr. Sin Sang while in the course of their employment, were digging a trench beside the pavement of Route Twisk near Shek Kong, N. T. when a goods vehicle, owned by the 2nd Defendant and driven by the 1st Defendant, having collided with another vehicle, mounted the pavement and struck both men who sustained injuries as a result.

2. Mr. Ho Wai Leung and Mr. Sin Sang were taken to Princess Margaret Hospital where Mr. Ho died shortly afterwards without regaining consciousness while Mr. Sin was treated and discharged.

3. These proceedings are brought by the 1st Plaintiff on behalf of the estate of Mr. Ho and by Mr. Sin Sang, the 2nd Plaintiff, on his own behalf, and judgement in default of defence was entered against the 1st and 2nd Defendants on 23rd October 1984.

The 1st Plaintiff's claim

4. At the date of his death Mr. Ho Wai Leung was aged 49 years (not 42 as pleaded) and was employed by Yau Nam Kee Construction Co. Ltd.

5. Mr. Chiu Hok Ming, the supervisor of the company gave evidence and said that Mr. Ho was then earning $85 per day, and working an average 25 days per month. The wages for similar work has since been increased twice; on 5th January 1983 to $90 per day and from June 1985 to $100 per day. He was a good worker and would in all probability have continued to work for the company.

6. Mr. Ho was a single man who lived with his elder sister Madam Ho Sau Ying in a wooden hut for which no rent was payable. Madam Ho, who also gave evidence, was then earning $1,000 per month as a laundry worker, but as much of this went on her own medical expenses the household expenses were largely met by the contribution of $1,200 per month made by the deceased.

7. The evidence of the deceased's three bank savings books shows that he had a regular habit of saving, and that the amount saved each year was increasing, the total deposited in 1980 being $9,000 and for the 7½ months of 1981 prior to his death, $6,000, i.e. an average of $750 per month in 1980 and $800 per month in 1981.

8. Mr. Davies has referred me to a number of cases and submits that a proper multiplier in this case is 8. I accept that this is right and accordingly calculate the deceased's loss of earnings as follows:

Pre-trial:

Post-trial

9. In calculating the free balance I take into account the fact that Mr. Ho was clearly a mean who saved regularly from income, at a rate of about 30% of his salary at the date of his death, and spent little on himself apart from daily necessities. He contributed $1,200 a month to the household and as this only consisted of himself and his sister, whose income appears to have been largely spent on herself, I propose to assume that he benefitted to the extent of 50% of this sum. I do not consider therefore that the deceased's own living expenses exceeded 40% of his total income, leaving a pre-trial free balance of 60%.

10. The deceased was aged 49 years at the date of his death and, although he had apparently considered marriage, there was no evidence to show that his situation would have changed. I accordingly adopt the same figure of 60% for the post-trial lost years.

11. There will also be an award of $11,980.00 in respect of funeral expenses, documentary evidence of which was produced, and $20,000.00 for loss of expectation of life.

12. It is conceded on behalf of the Plaintiff that Employees Compen-sation in the sum of $78,200.00 has been received, and credit will be given for this.

Summary

13. There will be interest on the special damages from the date of the accident to trial at 5.5% per annum and on the pre-trial loss from the date of service of the writ until trial at 3% per annum. There will be no interest on the post-trial loss.

2nd Plaintiff's claim

14. The 2nd Plaintiff, who was 64 years old at the date of the accident was treated at hospital for abrasions, bruises, laceration of the right forearm and a fracture of the left humerus, although there is same doubt as to whether this should be the right humerus, as Dr. Wedderburn's report of 27th September 1982 does not make it clear. However, it seems that the 2nd Plaintiff did not even know he had suffered a fracture and it was therefore clearly not serious.

15. He saw a bonesetter regularly thereafter for low back pain from which he has now recovered and he now suffers no permanent disability as a result of his injuries. He was off work for five months after the accident, and I accept the evidence of Dr. Wedderburn's report that this was a reasonable period.

16. Mr. Sin also gave evidence that he paid bon setter's fees of $60 daily for six weeks i.e. a total of $2,520.00 and paid $200.00 for Chinese medicine and $500.00 travelling expenses. I accept that all these were properly and reasonably incurred.

17. Mr. Sin was earning $80 per day and working an average 25 days a month at the date of the accident, and his loss of earnings accordingly amounts to $10,000.00.

18. In respect of general damages, Mr. Davies has again referred me to a number of cases of a similar nature, and in the light of these and considering the nature of Mr. Sin's injuries, I assess general damages at $8,000.00.

Summary

19. There will be interest on the general damages from the date of service of the writ to trial at 3% per annum and on the special damages from the date of the accident to trial at 5.5% per annum.

20. The Defendants will pay the 1st Plaintiff's costs to be taxed if not agreed, and also the 2nd Plaintiff's costs to be taxed on the District Court Upper Scale if not agreed.

21. The Plaintiffs' own costs to be taxed in accordance with Legal Aid Regulation.

Representation:

Mr. R. A. Davies for D. L. A. for Plaintiffs.

1st and 2nd Defendants present and unrepresented.