Cheung Yau v. Kwong Cheung and Another
Read the full judgment text of HCA 2067/1970 on BabelCite. This High Court CFI judgment.
1. This is a consolidated action arising out of a traffic accident which occurred in Christmas Day, 1969 in Aberdeen Street, Hong Kong which resulted in the death of a young man named Cheung Shiu Chuen.
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HCA002067/1970 IN THE SUPREME COURT OF HONG KONG ORIGINAL JURISDICTION ACTION NO. 2067 OF 1970 and ACTION NO. 1299 OF 1972 -----------------
----------------- Coram: Briggs, J. in Court Date of Judgment: 7th February, 1973 ----------------- JUDGMENT ----------------- 1. This is a consolidated action arising out of a traffic accident which occurred in Christmas Day, 1969 in Aberdeen Street, Hong Kong which resulted in the death of a young man named Cheung Shiu Chuen. 2. The plaintiff issued a writ on December 11th 1970 claiming damages under the Fatal Accidents Ordinance and the Law Reform (Miscellaneous Provisions) Ordinance. The plaintiff is described as "the father and one of the dependents of his son, Cheung Shiu Chuen and his next of kin in the absence of a grant of letters of administration". A statement of claim was filed on February 3rd 1971. The defendants filed a defence on February 23rd 1971 in which, inter alia, they stated that the plaintiff could not claim under the Law Reform Ordinance in his personal capacity. I do not know why they did not ask to have the statement of claim or part of it struck out. 3. Over a year later it was remembered that no Letters of Administration in respect of the estate of Cheung Shiu Chuen had been granted. This mistake was rectified on March 8th 1972 when a grant was made to the plaintiff. A second writ was issued on May 24th 1972 claiming damages under the Law Reform (Miscellaneous Provisions) Ordinance. And a second statement of claim was filed on June 22nd 1972. On June 24th 1972 the plaintiff was given leave to amend the first writ and the first statement of claim so as to strike out the claim under the Law Reform (Miscellaneous Provisions) Ordinance, costs being awarded against the plaintiff. 4. The two actions were consolidated by an order dated November 8th 1972, nearly three years after the accident and two years after the issue of the first writ. 5. I was told that the original writ was issued because the period of limitation for bringing the action had nearly expired. At that time that period was one year. It has since been increased. So at the time when the first writ was issued there were thirteen or fourteen days in which to apply for and be granted Letters of Administration: and I think that as there was an emergency, there would have been ample time in which a grant could have been successfully applied for and made. For the Registrar will in an emergency act with very great speed. 6. But if the plaintiff's solicitors did think that they had not enough time to be granted Letters of Administration why did they include a claim under the Law Reform Ordinance at all. A second writ and statement of claim was necessary since the plaintiff in the second action was claiming in a capacity which he did not possess when the original writ was issued. Including the second claim in the first writ meant that the plaintiff had to amend that first writ and its statement of claim. 7. Then there is a second matter. Section 6 of the Fatal Accidents Ordinance provides that:-
8. This provision has been part of the law of Hong Kong since 1889. It was totally ignored in this case. The original writ mentions only the deceased man's father. The statement of claim uses the expression "all the dependents of the deceased under the Fatal Accidents Ordinance". 9. In Stebbings v. Holst & Co.(1) the practice of particularising the dependants in the statement of claim was approved of. And of course it is a common enough practice. But even that was not done in this case. It was not until the plaintiff entered the witness box on January 30th 1973 that it was as it were, officially known that the deceased's family consisted of the mother and father of the plaintiff and eight children of whom the deceased was one. The dependants for the purposes of the Ordinance are the parents and the four youngest children. 10. There has been no request to amend the statement of claim so as to include the particulars. Such particulars are of considerable importance especially if a settlement of the action is in contemplation. 11. I do not think that I should hold that a failure to supply such particulars is fatal to the plaintiff's claim. Their lack is due to no fault of the plaintiff himself: it is his lawyers who must bare the blame. The defendant could at any time since the issue of the writ have asked for such particulars. And as I have noted already they have had two years and more in which to do so. However this does not excuse the original fault. 12. As I have said the accident occurred on December 25th 1969. The deceased was walking in Aberdeen Street which is a steep hill. The first defendant was driving a lorry number AE 5825 down the street, when the brakes failed and he lost control of the vehicle which ran across Wellington Street down some steps which lead into Queen's Road Central. In doing so the deceased was run into or run over, it is not quite clear which, and sustained very serious injuries from which he afterwards died in hospital. 13. Soon after the accident the vehicle was examined and its brakes were found to be in a very bad condition. There was evidence from a witness who was also injured in the accident and there can be no doubt that the liability for the accident was that of the driver of the vehicle. 14. The defence called no witnesses but it was admitted in the defence that the vehicle in question was being driven by the 1st defendant and was owned by the second defendant at the time. At the close of the case for the plaintiff counsel for the defence admitted that he could not contest the issue of liability. 15. I now come to the question of damages. The deceased was a man aged 18. He was the third son of his parents. He was not living with his parents and was engaged as a keysmith. He was earning approximately $510 per month. In addition he received free meals at the place of his employment. The plaintiff said that the deceased gave him about $300 per month. This was to assist in the general household expenses of the family. All the members of the family except the deceased lived together. In addition the deceased paid the school fees of those of the three members of the family who were still attending school. 16. The plaintiff is 52 and is employed as a ganger by the U.S.D. at $670 per month. One daughter is married: another is employed as a clerk: and one son is employed as a coolie. The other children are not earning. The dependants therefore are the parents and the four youngest children. 17. I will deal with the claim under the Law Reform (Miscellaneous Proceedings) Ordinance first. I will award $8,000 for loss of expectation of life. The deceased suffered very severe injuries as I have said. He was taken by ambulance to the Queen Mary Hospital. He was conscious when he arrived and in severe pain. Later he relapsed into semi-consciousness. He was taken to the operation theatre but did not survive the operation. The accident occurred some time after 7 p.m. and he died at 10.35 p.m. Though the pain was severe, the period of suffering was mercifully not long. I will award $5,000 for pain and suffering. 18. At the time of the accident any claim for funeral expenses was properly brought under this Ordinance and not under the Fatal Accidents Ordinance. The modest sum of $1,500 has been agreed as funeral expenses. Damages under the Law Reform (Miscellaneous Provisions) Ordinance therefore total $14,500. 19. I now turn to the claim under the Fatal Accidents Ordinance. 20. The factors to be taken into consideration must include the possibility of the deceased becoming married. He was 18 at the time of the accident and it is reasonable to suppose that he would marry in his twenties. Upon marriage it is reasonable to suppose also that his contribution to the family budget would if not cease, be drastically reduced. 21. Other members of the family would in their turn be earning and would contribute their share of family expenses. It is also true that the deceased's earnings might well increase. These are all matters of speculation but must be considered. Further one must not lose sight of the ordinary vicissitudes of life and there must be a reduction in view of the fact that there will be a lump sum payment. 22. I will take a multiplier of seven. And a dependency of $300. Taking the other matters I have mentioned into consideration I will award $20,160 under the Fatal Accidents Ordinance. The sum awarded under the Law Reform Ordinance will merge in this sum less the funeral expenses so there will be judgment against both defendants for $21,660. Of this, $1,500 which represents funeral expenses is to be paid to the estate of the deceased. The rest is to be paid to the plaintiff. This is not a suitable case for an apportionment. The plaintiff struck me as being a man of unusual common sense and I am sure he can be trusted to apply this sum to the benefit of himself and the other dependants of his deceased son. 23. The plaintiff is entitled to his costs which are to be taxed under the legal aid Regulations. However the costs occasioned by the amendment of the first writ and statement of claim are disallowed and must be paid for by the plaintiff's solicitor personally.
Representation: Mr. Goodbody (Patrick Poon & Co.) assigned for the Plaintiff Mr. Bokhary (H.A. Hoosenally & Co.) for both Defendants. (1) [1953] 1 All E.R. 925 |