Suan Yuk Kin Suing and Another v. Oang Pui Ming and Another

HCA007545/1981

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

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Coram: Master Betts in Chambers

Date of Assessment : 29 November 1983

Appearances: Mr Frankie Leung instructed by Messrs Johnson, Stokes & Master for both Plaintiffs

Mr H. Poon instructed by Messrs Woo, Kwan, Lee & Lo for both Defendants

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ASSESSMENT OF DAMAGES

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In August 1979 Mme Suan Yuk Kin was travelling with her 11 year old son, Lau Sung Yuk and 8 year old daughter, Lau Shung Ling in a taxi driving along Fat Kwong Street, Kowloon. The taxi was driven by the 1st Defendant in the course of his employment by the 2nd Defendant. The taxi ran off the road and crashed into a fire hydrant. Mme Suan and her daughter were slightly injured but Lau Sung Yuk suffered such injuries that he died shortly after admission into hospital.

The Writ in these proceedings was issued in October 1981 and interlocutory judgment entered by consent the following January.

I will deal with the three assessments in ascending order of gravity.

1.Lau Sung Ling

The only medical evidence submitted was an agreed report from a member of a surgical unit at Queen Elizabeth Hospital. It shows simply that the girl was admitted in good condition but suffering from three lacerations:-

The wounds were cleaned and sutured and she was discharged from hospital the following day.

The child did not attend this assessment and as no other medical evidence was produced I attach no weight to her mother's claim that at times she notices her daughter dribbling. There being no evidence to the contrary I take it she made a complete recovery.

She did, however, have the discomfort of sutures and a day in hospital. I award her the solatium of $2,000 which is to be paid out to her mother; I hope if not in time for Christmas then at any rate before the Lunar New Year.

Special damages for nutritious food was originally claimed at $150 but after evidence by Mme Suan it was, by leave, amended to $500.Her evidence on this matter was quite unsatisfactory and no documents were produced. I am satisfied that she did buy special dishes and did believe them to be beneficial. I am also satisfied that the estimate of the costs she gave to her solicitors when the Statement of Claim was being prepared is more likely to be accurate than the larger figure given in evidence two years later. 1 award $150.

2.Suan Yuk Kin

Again the only medical evidence placed before me is an agreed medical report from the hospital. Although dated in July 1981 it is clearly compiled from the record made the previous August. It is also headed "Shum Yuk-kam, F/38" but appears to be accepted by all parties as referring to Mme Suan.

In full the report reads:-

In her evidence Mme Suan told me that she does from time to time puffer a low back pain and demonstrated the place as the same as that injured in the accident. When it gets bad, she told me, she applies medicated oil but as never sought medical advice. The possibility of such pain is clearly envisaged in the fourth paragraph of the report, and I accept both that it occurs and.is the result of the accident. However there is no evidence that it in any way incapacitates her and it is sufficiently insignificant that even with these proceedings pending she has not sought medical advice.

Mr Leung submitted two previous assessments suggesting a range of damages for pain, suffering and loss of amenities from $7,000 to $20,000.

This plaintiff was in hospital for a week, she does still experience some discomfort and I assess her damages under this head at$20,000.

The original Statement of Claim asked for special damages being sums spent on medical expenses, Chinese herbalist expenses, travelling expenses and nutritious food. Again, no documentary evidence was produced and Mme Suan's evidence, giving entirely different figures, satisfied me that although she knew she had spent money in the way claimed she no longer really has any idea how much. As, at the time, she was clearly suffering more from grief at the death of her son than from the injury to her back this is quite understandable. I assess what I consider is a reasonable sum and likely to have been spent under each head as follows:-

3.Lau Sung Yuk deceased

There is no dispute as to loss of expectation of life and damages are assessed in the conventional sum of $15,000.

Funeral expenses are claimed at $16,300 and receipts for that amount produced. Objection to part on the ground the receipts appeared to relate to a monument rather than a headstone. I accept that objection so far as it relates to an item of $200 for a marble vase. The main part is described in the receipt as "2 ft 4 ft China stone grave and kiosk 5 with inch photograph dollars (sic) four thousand eight hundred only". So far as I can understand 'that document at all it seems a combination of gravestone and monument. In practical terms the sum is indivisible and I allow it. Special damages therefore, assessed at $16,100.

There is a claim based on the future dependency of the parents and for loss of future earnings. The was not argued as it would, if it existed, be less than and morge with the latter.

The deceased was 11 years old at the time of his death. His primary school reports were excellent and his teacher spoke cell of him. His father is an engineer and, all things being equal, he might well have fulfilled his parents hopes to become either an engineer or a doctor.

Mr Leung asked me to ansumo hat he would have followed in his father's footsteps, and made mathematical calculations to project a future loss.

In support he referred me to Sing Hon v Kwong Cheuk-him HKLJ (1980) vol. 10, No. 2 at p. 239. In that case the boy was somewhat older and already working on his father's chicken farm.

Mr Poon produced two authorities:-

Rickett v British Rail Engineering Ltd [1979] 1 All ER . p. 774 and Gammell v Vilson [1981] 2 W.L.R. 248. He submitted that the circumstances here were that with a long educational road ahead of him the future this unfortunate bay would have enjoyed must be a matter of speculation and not capable of assessment. I believe that to be right and make no assessment for loss of future earnings nor for any future dependency of the parents.

Summary

1.    Lau Sung Ling

2.    Suan Yuk Kin

3.Lau Sung Yuk deceased

There will be interest on the general damages at the rate of 21 p. a, from the date of the issue of the Writ to judgment and on the special damages at the rate of 5.5% p.a. from the date of the accident until judgment. The will be an Order for the payment of the plaintiffs costs by the defendant with a certificate for counsel.

Representation:

Mr Frankie Leung instructed by Messrs Johnson, Stokes & Master for both Plaintiffs

Mr H. Poon instructed by Messrs Woo, Kwan, Lee & Lo for both Defendants