Yu Wan Lan and Another v. Wong Shui Yin and Others

HCA000239/1976

Coram: Zimmern, J.

Date of Judgment: 21 February 1978

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JUDGMENT

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1. There are three defendants in this fatal accident case. Prior to this hearing, judgment had been entered against the second defendant driver in default of appearance At the hearing, counsel for the plaintiffs applied under Order 33 rule 4(2) of the Rules of the Supreme Court to adjourn the trial of the issue of the liability of the first and third defendants to a date to be fixed and that the issue of damages be heard forthwith. This appears to be putting the cart before the horse but his reasons were valid and I so ordered.

2. The deceased, Mui Kai Yui, was struck down by a minibus driven by the second defendant on 15th May, 1973 and died from injuries thereby sustained two days' later. He was then about 43 years of age, a taxi driver working on night shift and had been so working for over ten years.

3. He left surviving him the following dependants:

There are two elder daughters of the family who were not dependants under the Ordinance.

4. The deceased earned, at the time of his death, about $1,300 per month and gave his wife $800 to $900 for all household expenses including rent, clothing and the children's school fees. If he had survived, his income would have been increased in or about 1974/75 to $1,600 per month in general with most taxi drivers in Kowloon. As a night shift worker, he would finish work in the early hours of the morning, enjoy his tea outside before returning home to sleep. He had his dinner at home with his family at about 5 p.m. and off to work he would go again six afternoons a week. From the average monthly sum of $850 he gave his wife, counsel are agreed that $100 per month should be deducted for his own board. The court was told his clothes cost about $100 per year. Taking that and other things like toilet items into consideration, I think another $15 per month ought to be deducted. The two elder daughters lived with the family but no deduction need be made for them as they were self-supporting.

5. The value of the dependency at date of death comes to $850 less $115, i.e. $735.

6. There is clear evidence which I accept that the deceased was a good family man, responsible husband and father and if he had survived he would have given his wife another $100 with the general increase in 1974/1975. I value the dependancy as from 17th December, 1974 to be $835. He was 43 when he died. There is no evidence of retiring age for taxi drivers and if his senses are not impaired he ought to be able to retain his job till about mid-sixties. Counsel for the plaintiff suggested and I agree the right multiplier is 11.

7. The loss up to the date of trial is thus

and post trial 76 months by $835 i.e. $63,460.

8. The total under the Ordinance comes to $109,864. Funeral expenses are agreed at $1,544. There will be $10,000 for loss of expectation of life. These two sums will merge with the award of the sum of $109,864. There will be interest at 4% per annum on the sums of $1,544 and $44,860 from 17th December, 1973 to date of judgment.

9. Judgment is entered for plaintiff's accordingly against the second defendant with costs.

10. Costs in respect of first and third defendants to be reserved for trial judge on the question of liability.

11. Apportionment among defendants to be dealt with by the trial judge on the issue of liability of the first and third defendants.

Representation:

Michael Bunting (Ip, Ku & Stoppa) for the plaintiff.

A.R. Suffiad (Yeung & Cheuk) for the 1st defendant.

Robert Kotewall (Hastings & Co.) for the 3rd defendant.