So Sam Mui and Another v. Lam Wing Tai

HCA002051/1973

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

-----------------

-----------------

Coram: Mr. Registrar Doyle in Chambers.

Date of Judgment: 12th June, 1975.

-----------------

DECISION

-----------------

1. This is an assessment of the Plaintiff's damages under the Fatal Accidents Ordinance and the Law Amendment & Reform (Consolidation) Ordinance (Cap. 23) arising as a result of the death of the 1st Plaintiff's husband in a road traffic accident which occurred on the 7/1/72. On that date the deceased was standing on a pavement near the Chinese University waiting for a public light bus when he was struck and knocked down by a goods vehicle No. AF1161 which was then owned and driven by the Defendant. The deceased sustained injuries which resulted in his death.

2. Interlocutory judgment against the Defendant for damages to be assessed was entered on the 23/9/74.

3. Dependency is claimed on behalf of So Sam Mui widow of the deceased and first Plaintiff in this action and also on behalf of 5 children namely Tsui Luk, a son now aged about 17 years, Tsui Pak Law, a son now aged about 14 years, Tsui Yeung Mui, a son now aged about 11 years, Tsui Yeung Fa, a son now aged about 10 years and Tsui Yeung Kei, a daughter now aged about 6 years.

4. In the Statement of Claim Tsui Yuet Shun the 2nd Plaintiff a son now aged about 29 years, Tsui Chi Shun, a son now aged about 20 years and Tsui Chor Kau, a daughter now aged about 21 years are named as dependants. At the commencement of the hearing counsel for the Plaintiffs indicated that he did not intend to pursue any claim on behalf of these three persons.

5. Funeral expenses amounting to $3,100 and a sum of $50 for damage to clothing were agreed.

6. So Sam Mui widow of the deceased gave evidence. She said that her husband was 50 years old at the time of his death and that he was in good health. She went on to say that he used to earn $19 per day out of which he gave her $14. This sum she said was barely enough to provide food for the family and they had to beg for clothes. In reply to the solicitor for the Defendant she said that Tsui Chi Shun the second son gives her $8 to $10 per day when he has work and that Tsui Luk gives her $60 per fortnight and that the elder daughter gives her small sums occasionally.

7. Tsui Chi Shun (PW2) a son of the deceased was the only other witness called for Plaintiffs. He gave evidence to the effect that men in the age group 60 to 70 were employed on the building site where his father worked. When cross-examined by the solicitor for the Defendant he contradicted himself several times. I do not believe that this witness was dishonest. He has never gone to school and he is totally illiterate. I think that he was nervous and confused. In any event his evidence is practically of no assistance.

8. No witnesses were called for the Defence.

9. The solicitor for the Defendant submitted that the dependency should be calculated on the basis of $12 per day to make allowance for the meals consumed at home by the deceased man. He went on to argue that none of the children is likely to remain dependent beyond the age of 16 and that the dependency must reduce over the years and that the figure of $12 per day should be scaled down accordingly. He suggested a multiplier of 10.

10. Mr. Tang for the Plaintiffs argued that there should be no scaling down. The sum of $14 per day he said was barely enough for survival and even after all the children had become self supporting it would still not be too much. He suggested a multiplier of 12.

11. I agree that the sum of $14 per day was barely enough for survival. It must be borne in mind too that for many years past most of the world's currencies including the HK$ have suffered a steady decline in their purchasing power. I think it is reasonable to say that in a few years' time $14 will probably purchase considerably less than it purchases today. I agree with Mr. Tang that there should be no scaling down. Allowance must be made for meals consumed at home by the deceased man. I estimate the cost of those meals at about $50 per month and assess the dependency at $370 per month.

12. The husband at the time of his death was a man of 50 and according to his widow's evidence which is not challenged on this point he was in good health. This being so I think a multiplier of 12 is reasonable.

13. Damages under the Fatal Accidents Ordinance therefore will amount to $53,280 i.e. $370 x 12 x 12. Counsel for the Plaintiffs has argued that there should be no reduction because a lump sum payment will be received and he referred to the case of Cheung Wo & others v. Lee Voon-Sang (1965 HKLR p.799). It appears from the report of that case that the learned judge did not discount any of the awards made by him but that is all the report reveals on this point. The question as to whether such awards should be discounted or not does not appear to have been raised. In more recent years it appears that lump sum awards have usually been discounted by about 20%. In this case therefore the award of $53,280 will be discounted to $42,624.

14. The claim for damages under the Law Amendment & Reform (Consolidation) Ordinance was not pursued.

15. The total award therefore for special and general damages is $45,774.00.

16. General damages are apportioned as follows:-

17. The damages awarded to the 5 minor children will be paid into Court and invested by the Registrar in his absolute discretion with power to make payments from time to time for their maintenance and education.

18. The 1st Plaintiff is awarded interest on the special damages of $3,150 at the rate of 4% from 7/1/72 the date of the accident until today and at 8% on the general damages of $42,624 from 24/7/73 the date of service of the writ until today.

19. The Plaintiffs shall have costs with certificate for counsel.

20. Dated this the 12th day of June, 1975.

Representation: