Lui Pun Suing v. Kowloon Tel a Car Ltd and Another
Read the full judgment text of HCA 3656/1980 on BabelCite. This High Court CFI judgment.
1. The plaintiff is the administratrix of the estate of WONG Yat-chee (hereinafter referred to as 'the deceased') who died intestate on the 1st of May 1978. Letters of Administration of the said estate were granted to the plaintiff out of the Probate Registry of the Supreme Court of Hong Kong on the 8th of January 1980. The plaintiff who is the natural and lawful mother of the deceased brings this action for the benefit of herself and her two youngest sons under the Fatal Accidents Ordinance, Ca
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HCA003656/1980
----------------- Coram: Hopper, J. in Court. Date of Judgment: 5th October, 1981 ----------------- JUDGMENT ----------------- 1. The plaintiff is the administratrix of the estate of WONG Yat-chee (hereinafter referred to as 'the deceased') who died intestate on the 1st of May 1978. Letters of Administration of the said estate were granted to the plaintiff out of the Probate Registry of the Supreme Court of Hong Kong on the 8th of January 1980. The plaintiff who is the natural and lawful mother of the deceased brings this action for the benefit of herself and her two youngest sons under the Fatal Accidents Ordinance, Cap. 22 (FAD) and on behalf of the estate of the deceased under Law Amendment & Reform (Consolidation) Ordinance, Cap. 32 (LARCO). 2. At about 01.10 hours on the 1st of May 1978 the deceased was a passenger on board taxi No. BR 4627 travelling in an easterly direction on Prince Edward Road flyover. This taxi was driven by the 2nd defendant as servant or agent of the 1st defendant, the owner of the taxi in question. When the said taxi was travelling on the flyover, it suddenly left the east-bound carriageway, veered to the opposite west-bound carriageway and collided with an oncoming taxi No. BR 4362. The deceased sustained multiple injuries by reason of this collision and died as a result of the injuries on the same day. 3. Liability has been admitted by both defendant and this court is only concerned with the question of the quantum of damages. 4. The plaintiff claims 5. Special Damages
6. Under FAD
7. Under LARCO
8. The special damages are agreed. Damages for loss of dependency 9. The plaintiff who is now 55 years old testified that altogether she had four children the eldest being WONG Chun-shing 31 years old now residing at the Choi Hung Estate. No dependency claim is made in respect of him. 10. The second son was the deceased WONG Yat-chee. The third son is WONG Chi-keung born on 1st March 1962 who is now 19 ½ years of age and the fourth son is WONG Yat-ting born on 16th January 1965 who is approximately 16 ½. 11. She testified that the elder son WONG Chun-shing cannot afford to make any contribution to the family because he was to support his own family and has to pay monthly rent for the flat he occupies. 12. She testified that at the time of his death the deceased was the sole contributor contributing $800 a month to the family and gave $10 each to his 2 younger brothers as pocket money. She had never asked him what his income was. The two younger sons and herself contributed nothing at that time. Since the death of the deceased, the elder of these two younger sons, namely WONG Chi-keung has been required to go out to work to maintain the family. The plaintiff does not know his earning but he now contributes $600. The younger son is still a student and still contributes nothing. The plaintiff herself has been working now for 3 years sorting out plastic waste but no evidence was given as to her income therefrom. 13. She produced the birth certificates of the deceased and Chi Keung and Yat Ting showing that at the time of the accident the two boys were 16 years and 2 months and 13 years and 3 ½ months respectively. The deceased himself was 20 years old nearly 21 at the time of the accident and the evidence of the mother is that he had already registered his proposed marriage and had spoken to her to reassure her that although he was getting married his contribution to the family would continue. Although there was evidence that the deceased returned home twice a month when he got his pay and stayed the night and had a meal, there was no evidence to indicate that he took any significant share out of the contribution he made to the family. 14. Mr. Chain for the plaintiff has urged me to take the multiplicand as 820 and to apply a multiplier of 8 and then apportion the computed sum amongst the three dependants. Mr. Bokhary for the defendants on the other hand has suggested that this is unrealistic and that separate multipliers should be taken. 15. In view of the different ages and personal considerations I agree with Mr. Bokhary that the court should take a separate multiplier in respect of each dependant. 16. The dependancy losses should also be split up into pre-trial losses (upon which interest should be awarded at half the average rate of interest for the period between the deceased's death and the trial) and post-trial losses upon which no interest should be awarded. Pre-trial losses 17. The deceased died on 1st May 1978 so that the dependants have been deprived of their share of the deceased's contribution for 40.5 months. There is no evidence to show that the deceased would have increased his contribution to the family after he got married, though there was evidence that his income would have increased. Indeed the plaintiff was not asked about this. She did say however that the deceased didn't mention that he would reduce his contribution. In the circumstances it is impassible to calculate a median figure for the deceased's probable contributions during this period. Any possibility that he might have increased it as his pay increased would be offset by the possibility of his having children of hiw own and the effect they would have on his own financial resources. I will take it as $800 per month plus $20 which he gave to the two younger brothers. 18. Neither is there any evidence to indicate in what proportion the three dependants took from the deceased's contribution. In the absence of such evidence I will assume that they each took approximately 1/3 of $800 i.e. $266.66. 19. For ease of calculation I will assume that the plaintiff (mother) received $270 p.m. and the two sons $265 + $10 (pocket money). 20. The plaintiff has therefore lost
and the two sons have each lost
Post-trial losses 21. Mr. Chain urges the Court to take a figure of 8 as being the multiplier from the time of death. Mr. Bokhary suggests 5. Taking into account the respective ages of the deceased and his mother, the fact that he had registered his marriage but had indicated that his mother need not worry as he would continue to contribute, bearing in mind the vicissitudes of life, the possibility that the deceased would himself have had children who would have required his maintenance and the fact that his wife would probably have had to employ an amah or stop working thus putting more financial pressure on him, I think that 7 years from the time of death is the appropriate multiplier in respect of the plaintiff. 22. The plaintiff's post-trial losses would therefore be assessed as 84 months - 40.5 months = 43.5 months x $270 = $11,745. 23. So far as the oldest son Chi Keung is concerned, he is now 19 years old and working and maintaining the family. He had to start working as a result of deceased's death. It seems probable that the deceased's contribution for him would have stopped about this time and I assess his post-trial losses as nil. 24. So far as the youngest son Yat Ting is concerned, he was 13 ½ at the time of the deceased's death. I consider that he would have expected the deceased to contribute towards his maintenance for 6 years from that time. 25. His post-trial losses will be assessed at 72 - 40.5 months = 31.5 moths x $275 = $8.662.50 Damages for loss of expectation of life 26. These are agreed at $15.000. Damages for pain and suffering 27. Mr. Chain urges the Court to take into consideration that the deceased did not die immediately and asks for an award of a nominal sum of damages in respect of pain and suffering. Mr. Bokhary points out that there is no evidence to the effect that the deceased was conscious at all from the time of the accident. 28. Certainly the medical report exhibit P.4 indicates that at the time of his admission to the hospital the condition of the deceased was poor with both pupils being big and non-reactive and that there were signs of decerebration. In the circumstances it is inconceivable that the deceased could have suffered any pain or suffering. It is highly probable that he was unconscious from the time of the accident until the time of death. In the circumstances I award nothing under this head. Damages in respect of the lost years 29. The formula adopted by the learned Chief Justice in YEUNG wing and V.S.L. Engineers (H.K.) Ltd. 1st defendant and Technic Construction Co. Ltd. 2nd defendant and V.S.L. Engineers (H.K.) Ltd. 3rd party page C.A. 3072 of 1979 (unreported) was to take the estimated income of the deceased as the multiplicand and then to apply an appropriate multiplier depending on the age of the deceased. Then taking into account the vicissitudes of life and the various possibilities regarding expenditure during his working life. he took an arbitrary figure as a proposed conventional percentage, which he set at 10% to represent what would be the appropriate award in respect of the lost years. He also ordered that this award for lost years should not merge with the award under FAD. 30. This matter went on appeal (Civil Appeal 27/81) but the learned Chief Justice's calculations were not disturbed. 31. Mr. Chain is critical of the formula used and says that the point he wishes to take was not squarely before the Court of Appeal. He argues that the learned Chief Justice failed to take into account a very important factor. His argument runs like this :-
32. Mr. Bokhary, on the other hand, submits that the learned Chief Justice could not have failed to appreciate and undoubtedly discounted it as an argument which he did not accept. 33. It is clear from the learned Chief Justice's judgment that he proposed 10% as a conventional percentage as a starting point for courts faced with the task of estimating a future surplus of income on inadequate material. He never intended that it should be anything else than this. He specifically said that if there is evidence which suggests a different figure, this would replace the proposed conventional figure which he set at 10%. This follows the English decisions that the award should be a fair one and not just a conventional figure. 34. The Court of Appeal fully appreciated this and supported the learned Chief Justice in his calculations. Whilst it is true to say, as Mr. Chain does, that his point was not argued before the learned Chief Justice or the Court of Appeal, nevertheless, the calculations were very carefully considered in both courts. I agree with Mr. Bokhary that the learned Chief Justice could not have failed to have considered it. Indeed that is probably why the point was not ventilated in the Court of Appeal by the very experienced leading counsel who appeared before that court and who had no quarrel with the adoption of a conventional percentage of 10% in estimating possible surplus available to the estate. 35. Looking at the evidence in the present case I can see no reason to replace the proposed conventional starting figure of 10% by any other figure. Neither do I think it appropriate to consider a different multiplier in respect of any period following the period during which the deceased would have been expected to maintain his dependants, as was suggested by Mr. Chain. The 10% figure must be taken to have been arrived at having regard to the whole of the lost years period both during the dependencies and afterwards. 36. Having regard to the certificate from his employer, exhibit P.6, I consider that an appropriate multiplicand would be $1,850 per month or $22,200 per year. Taking a multiplier of 16, which I consider to be the appropriate multiplier for a person of the deceased's age at the time of death, this gives a figure of HK $355,200 as being his lost earnings. 10% of this is of course $35,520, and I award this sum to the estate of the deceased under this head. 37. Following the Court of Appeal I order that both the awards for lost years and the conventional figure of $15,000 for loss of expectation of life will not merge with the award under FAO. 38. I therefore give judgment Under FAD as follows : 39. Pre-trial losses
40. Post-trial losses
Agreed special damage
Under LARCO (for the estate)
41. The total judgment will be
Representation: Mr. Benjamin Chain (Stevenson, Low $ Co) for plaintiff Mr. Kemal Bokhary (H.A. Hoosenally & Co.) for Defendants |