Tong Lai-wan and Another v. Cheung Shek Chung and Another

HCA001510/1974

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

ACTION NO. 1510 of 1974

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Coram: Mr. Registrar Doyle in Chambers

Date of Judgment: 10th March, 1975.

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DECISION

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1. This is an assessment of damages under the Fatal Accidents Ordinance arising as a result of the death of the 1st Plaintiff's husband in a road traffic accident which occurred on the 9th August, 1971. On that date shortly after midnight the deceased Wong Shao On (hereinafter referred to as "the deceased") was crossing Kwun Tong Road, Kowloon, near Shing Shun Road on a stud crossing when he was struck by a motor cycle bearing registration number AJ 7890 which at the time was owned and being driven by Defendant. The deceased sustained personal injuries as a result of which he died on 20th August, 1971.

2. The 1st Plaintiff, the widow of the deceased, and the 2nd Plaintiff, a lawful daughter of the deceased are the administratrices of his estate. Letters of Administration were granted to them on 23rd May, 1974.

3. Interlocutory judgment in default of appearance for damages to be assessed was entered against the 1st Defendant on the 8th November, 1974.

4. Interlocutory judgment in default of defence for damages to be assessed was entered against the 2nd Defendant on the 3rd January 1975.

5. Apart from the 1st Plaintiff, dependancy is claimed on behalf of two daughters of the family, Wong Pik Ling now aged 23 years and Wong Tak Ling now aged 18 years.

6. Deceased was 53 years of age at the date of his death. He was employed by the Chartered Bank as a watchman and he had been in that employment since 1/10/62. Kwok Chi Hung (P.W.1) is a personnel assistant at the Chartered Bank, Central Branch. He said that deceased at the date of his death was earning $539.43 per month from his employment with the bank. If deceased had lived to enjoy the benefit of various salaries revision which took place between January 1971 and January 1974 his earnings after January 1974 would have been $881.00 per month. P.W.1 went on to say that on retirement he would have been entitled to a short service gratuity of $9,640.00.

7. No gratuity as such became payable on the death of the deceased but his widow received a compassionate payment of $2,000 from the bank and a further payment of $2,591.11 from the bank's provident fund.

8. KO Yu Yuk (P.W.2) said that she knew deceased and that he was a friend of her late husband and herself.

9. Deceased had worked as a part time book-keeper at her husband's plastics factory for about 5 years prior to his death at a monthly salary of $250. The factory had ceased to operate in about July, 1973.

10. Wong Wai Ling, the 2nd Plaintiff (P.W.3) said that there were 6 children of the family living at the date of death of deceased. Four of them, including herself were already self-supporting. Two daughters Wong Pik Ling and Wong Tak Ling were still at school. Wong Pik Ling had to leave school after the death of her father because there was no money available for school fees. Wong Tak Ling continues to be full time student.

11. Tong Lai Wan, the 1st Plaintiff (P.W.4) said that deceased used to give her $600 per month for household and family expenses and that he also paid $25 rent. He took his evening meal at home every day but obtained his other meals outside and paid for them out of his own money.

12. This witness stated that she believed the deceased would have been able to obtain employment after his retirement from employment with the bank in January 1978. She was unable to give any forecast as to what his earnings might have been.

13. Referring to the youngest daughter Wong Tak Ling she said that she and deceased had planned to send her to University.

14. I have considered the evidence and the submissions of counsel. There does not seem to be any disputes about the age of the deceased and the Court finds that he was 53 years old at the time of his death. There is evidence that he was in good health and it seems reasonable to conclude that he would have continued to hold his job with the Bank until he reached the retiring age at the age of 60.

15. The Court is satisfied his earnings at the time of his death were $540 per month from his employment with the bank and $250 per month from his part time job and that out of these earnings he contributed $625 per month to the maintenance of the family.

16. I think it is clear that if deceased had lived he would now be earning considerably mere from his job with the bank. According to the evidence of P.W.1, which I accept, he would be earning at about $881.00 per month. He was a good family man who paid the greater part of his earnings towards the maintenance of his family. It is difficult to say whether he could have got another part time job as a book-keeper after the Wah Hing Plastics factory ceased to operate in about July 1973 but I think it probable that whether he succeeded in getting such another part time job or not his payment to wards family maintenance would not have fallen below $600 per month because of his increased earnings from his job with the bank. I do not think he would have decreased the payment even after five of the children had became self-supporting. That opinion is strengthened by the evidence of the first Plaintiff to the effect that the deceased also had planned to give their youngest daughter a University education. I assess the dependancy at $600 per month.

17. It must be borne in mind that deceased would have had to retire from his employment with the bank at the age of 60. He was a steady hard working man however - he would have had no pension to rely upon in his retirement. I think it probable that he would have succeeded in obtaining other employment for some considerable time after his retirement from the bank. I bear in mind also that if he had lived to retirement age in January 1978 he would have received a gratuity of $9,640, and I think it reasonable to suppose on his past performance that much of that money would have been applied for the benefit of the family.

18. Mr. Pokorny has argued that a multiplier of 11 would be reasonable here. I agree with Mr. Pokonry and I adopt a multiplier of 11.

19. In respect of damages to be awarded under the Fatal Accidents Ordinance I assess a figure of $79,200 ($600 X 12 X 11). As a lump sum payment will be received this figure will be discounted to $63,360. The damages will be apportioned as follows:-

20. Wong Tak Ling is a minor. The damages awarded to her are to be invested by the Registrar in his absolute discretion as he thinks fit, with power to make payments of income and capital from time to time for her maintenance and education. The money ledged in Court is to be paid out to Wong Tak Ling on her attaining her majority.

21. At the commencement of this hearing Mr. Pokonry stated that the claim for pain and suffering and loss of expectation of life would not be pursued.

22. Special damages were agreed at $5,528.00. This added to the damages above makes a total award of $68,888.00.

23. On the principle laid down in Jefford v Gee (1970) 2 QBD I award interest on the special damages of $5,528.00 at the rate of 4% from the 9th August, 1971, the date of the accident until today and at 8% on the general damages of $63,360.00 from the 2nd of August, 1974 which was the date of service of the writ until today.

24. The Plaintiffs are entitled to costs.

25. Dated this 10th day of March, 1975.

Representation: