Yeung Ping Kuen v. Tsui Kam Pui and Another

HCA000509/1975

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

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Coram: Mr. Registrar Cameron in Chambers.

Date of Judgment: 5 December 1975

Mr. A.J.C. North of the Legal Aid Department for Plaintiff.

1st and 2nd Defendants in person.

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DECISION

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1. This is an assessment of the Plaintiff's damages under the Fatal Accidents Ordinance, Cap. 22, and the Law Amendment and Reform (Consolidation) Ordinance, Cap. 23, arising as a result of the death of TSUI WAN on 5th November, 1973, from injuries sustained in a road traffic accident which occurred on 2nd March, 1972. On that date at about 3.05 p.m. the deceased was a passenger in a private car bearing the prefix and registration number AS1504 owned by the 1st Defendant and being driven by his servant or agent the 2nd Defendant when it overturned whilst travelling along Castle Peak Road in the direction of Tsuen Wan from Yuen Long, New Territories.

2. The Plaintiff is the lawfully adopted son of the deceased TSUI WAN. A grant of Letters of Administration was made to the Plaintiff on 21st February, 1975.

3. Interlocutory judgment against the 1st and 2nd Defendants for damages to be assessed was entered on the 30th September, 1975.

Dependency was claimed on behalf of the following persons:-

A. DAMAGES UNDER THE FATAL ACCIDENTS ORDINANCE, CAP. 22

4. The deceased TSUI WAN was aged approximately 54 at the date of her death. At the date of the accident, namely, 2nd March, 1972 she was employed as a cleaner earning $330 per month. Out of this sum she contributed $300 per month towards the maintenance of herself and the dependants claiming in this action, with whom she resided. The Plaintiff out of his earnings of $800 per month contributed $600 to the family fund. Taking into account an allowance for the deceased's own living expenses, I would fix the dependency at $200 per month. No evidence was adduced that the deceased's earnings were likely to increase in the future had she lived and continued to work and in view of the nature of her employment I consider that there would have been no appreciable increase in her earnings. In deciding on a multiplier, I have borne in mind that (1) the exact age of the deceased was uncertain and that there was a possibility that she was older than 54 when she died and (2) the ages of the dependants and their future dependency on the deceased. I consider a multiplier of 5 to be appropriate in this case. The equation will therefore be:-

5. To this sum I would add $600 being item (c) of the Special Damages claimed making therefore $12,600.

6. However, as the Plaintiff has already received $9,000 under the Workmen's Compensation Ordinance in respect of the accidental death of the deceased, this sum falls to be deducted from any sum awarded under the Fatal Accidents Ordinance in view of the decision in CHAN YUK SUM v. WONG PAI KWAN and NGAN GUEN MIN⁽¹⁾.

7. I would therefore award a total of $3,600 under the Fatal Accidents Ordinance.

8. I was asked by Mr. North to consider awarding a sum in damages for loss of services. The only evidence that was adduced in support of this claim was that the deceased looked after her grandchildren on her rest days. Since I do not know how often the deceased did this or that it was really necessary, I do not propose to make any award under this head.

B. DAMAGES UNDER THE LAW AMENDMENT AND REFORM (CONSOLIDATION) ORDINANCE CAP. 23

9. I assess damages for loss of expectation of life at the figure of $8,000.

10. As regards damages for pain and suffering, there was evidence that the deceased suffered severe injuries and was confined to a hospital bed from the date of the accident until her death in November, 1973, a period of approximately 21 months. Although by October, 1973, she was not fully aware of pain there can be no doubt that for much of the period she had to bear considerable physical pain and mental suffering with consequent loss of amenities.

11. In the case of ANDREWS v. FREEBOROUGH⁽²⁾ a sum of £2,000 was awarded in respect of actual injuries and consequent loss of amenities of a child who survived for a year unconscious without pain and without appreciation of what had happened to her. In the case of CHEUNG YAU v. KWONG CHEUNG and YU SHIU TUEN⁽³⁾ a sum of $5,000 was awarded for pain and suffering in the case of a person who lived for 3 ½ hours following the accident.

12. In this present case the deceased was conscious for much of the time prior to her death. There was pain; there was mental anguish; there was a conscious loss of amenities; there was a conscious loss of faculties. I would therefore award the sum of $50,000 which I consider to be a reasonable figure in all the circumstances.

13. I will allow the following items claimed as Special Damages in full: -

14. As regards item (a) the sum of $4,980 was claimed for loss of earnings for the period from 2nd March, 1972 to 5th November, 1973. I was informed that there should be deducted from this figure the sum of $1,680 being the amount paid by the deceased's employer over a period of 8 months. The amount therefore awarded for loss of earnings is $3,300.

15. Special Damages amount in toto to $6,534.

16. Under the Law Amendment and Reform (Consolidation) Ordinance I award a total of $64,534.

17. The claim under the Fatal Accidents Ordinance is merged in the claim under the Law Amendment and Reform (Consolidation) Ordinance and there will therefore be judgment for $64,534.

18. The Plaintiff is awarded interest on the Special Damages of $6,534 at the rate of 4% from 2nd March, 1972, the date of the accident, until today and at 8% on the General Damages of $58,000 from 19th March, 1975, the date of the service of the Writ, until today.

19. The Plaintiff is entitled to his costs of this assessment and the action.

Representation:

Mr. A.J.C North of the Legal Aid Department for Plaintiff.

(1) (1973) H.K.L.R. 250.

(2) [1966] 2 A.E.R. 721.

(3) O.J. 206/70 and 1299/72.