Lau Wong Tai and Another v. Wong Man Hun and Another

HCA000052/1974

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

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Coram: Mr. Registrar Jones in Chambers.

Date of Judgment: 24th April 1974

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DECISION

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1. This is an assessment of the 1st plaintiff's damages under the Fatal Accidents Ordinance and the Law Amendment and Reform (Consolidation) Ordinance arising as a result of the death of the 1st plaintiff's wife in a road traffic accident that occurred on the 27th August 1972. On that date the deceased was standing at a bus stop in Tai Po when a motor car driven by the 1st defendant as servant or agent of the 2nd defendant mounted a grass verge and collided with her. From the injuries that she sustained the deceased died on the same day.

2. An order that interlocutory judgment be entered against the defendants for damages to be assessed was made by consent on the 13th February 1974.

3. Apart from the 1st plaintiff a dependency is claimed on behalf of the two sons of the family who are now aged 9 and 5. Funeral expenses amounting to $2,500 and $50 for damaged clothing and personal belongings was agreed.

4. The deceased who was aged 32 when she was killed lived with her husband, the two children and the 1st plaintiff's parents so that the household consisted of 6 persons. The 1st plaintiff said that the deceased had worked as a casual labourer at various building sites for two to three years before her death earning $38 - $40 per day for about 30 days per month. He claims that the deceased's earnings were $1,140 per month of which sum the deceased kept $100 - $200 for her own use whilst she paid the rest to the 1st plaintiff's mother who held the family purse. He said that prior to her death the deceased was in good health.

5. The 1st plaintiff said at the time he and the deceased married they had a small farm selling vegetables, eggs, poultry, etc. but that after two years he took up employment as a waiter. He is now a Head Waiter. At the date of his wife's death the 1st plaintiff says he earned $500 per month but that his earnings now amount to $700 - $800 per month. From his earnings he retained $200 - $300 per month for himself and contributed the rest to the support of the family.

6. The 1st plaintiff stated that food for the household of six cost $800 per month but I am of the opinion that this figure has been exaggerated taking into account that the family lived in the New Territories and they should have been partially self sufficient by virtue of the farm.

7. Mr. Chan Kam-wah gave evidence that he employed the deceased on a daily basis paying her $38 per day and said that she worked regularly for about 28 days per month. However, Mr. Chan kept no records of the deceased's employment and his evidence to say the least was vague. Again it is strange that the deceased travelled to and fro from the New Territories to Hong Kong every day with working hours from 9 a.m. - 5 p.m. At the time of her death the deceased was supposed to be working on a site at Shaukiwan and Mr. Chan expressed surprise when he learnt that the deceased was killed on that day at about 1 p.m. in Tai Po. The 1st plaintiff did not provide a satisfactory explanation and there is a strong doubt in my mind as to whether the deceased was in fact employed as a casual labourer at the time of her death. I find the evidence in this respect far from convincing with the result that I incline to the view put forward by Mr. Tang for the defendants that the deceased had in all probability been working in the field in the New Territories on the day when she died. In any event I do not believe the evidence given that the deceased worked for as many as 28 or 30 days per month as a casual labourer. However, whether as a casual labourer or by working in the field I am satisfied that the deceased made some contribution to the family income and that the 1st plaintiff has lost the benefit of her services in performing the household duties. I accept that the dependency of the two children will in all probability cease when they attain the age of 16 and go out to work whilst I have taken into account in making this assessment that the 1st plaintiff is now aged 34.

8. In respect of the damages to be awarded under the Fatal Accidents Ordinance having regard to the unsatisfactory evidence before me I assess the dependency at $400 per month and I shall adopt a multiplier of 12. Accordingly the damages under this head will amount to $57,600 i.e. $400 x 12 x 12. As a lump sum payment will be received this figure will be discounted to $48,000. The damages will be apportioned as follows:-

9. The damages awarded to the two children will be paid into court and 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 their maintenance and education.

10. I assess damages for loss of expectation of life under the Law Amendent and Reform (Consolidation) Ordinance at the conventional figure of $8,000 which sum will merge with the damages awarded under the Fatal Accidents Ordinance. Accordingly with the agreed special damages of $2,550 the total award is $50,550.

11. On the principles enunciated in Jefford v. Gee (C.A.) 1970 2 Q.B.D. at page 146 I shall award the 1st plaintiff interest on the special damages of $2,550 at the rate of 4% from the date of the accident 27th August 1972 until to-day and at 8% on the general damages of $48,000 from the date of service of the writ which was the 18th January, 1974.

12. The plaintiffs are entitled to costs with a certificate for counsel.

13. Date this the 24th day of April, 1974.

Representation: