Ho Chung v. Tam Po Chu and Another
Read the full judgment text of HCA 1621/1973 on BabelCite. This High Court CFI judgment.
1. This is an application for the assessment of damages under the Fatal Accidents Ordinance and the Law Reform (Miscellaneous Provisions) Ordinance arising as a result of the death of the plaintiff's wife Lai Kam Lin, which occurred on the 29th July 1970.
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HCA001621/1973 IN THE SUPREME COURT OF HONG KONG ORIGINAL JURISDICTION ACTION NO. 1621 OF 1973 -----------------
----------------- Coram: Mr. Registrar Silke in Chambers. Date of Judgment: 4th January 1974. ----------------- JUDGMENT ----------------- 1. This is an application for the assessment of damages under the Fatal Accidents Ordinance and the Law Reform (Miscellaneous Provisions) Ordinance arising as a result of the death of the plaintiff's wife Lai Kam Lin, which occurred on the 29th July 1970. 2. Madam Lai was a passenger in a Public Light Bus AN6022, driven by a person Liu Tai, on Tai Po Road New Territories which bus crossed the path of on coming traffic and collided with a goods vehicle. 3. Interlocutory Judgment in default of defence was entered on the 2nd August 1973 against the defendants, the personal representatives of the estate of Liu Tai. 4. At the assessment the plaintiff was represented by Miss Leong on the instructions of Hastings & Co. and the defendants by Dennis Chang, Esq., on the instructions of Chan & Ho. 5. The deceased who was aged 40 at the time of her death, was employed in home sewing work with average earning of $400 per month of which $300 per month was put into the family fund. It was her practice to go out to collect such work bring it home and working upon it there. It was on one of her visits to a factory for this purpose that she was killed. 6. She left surviving her (1) her husband, Ho Chung, aged 45, a self employed lorry driver. He was the owner of a lorry, purchased on hire purchase and he plied between Fanling and Kowloon; (2) her daughter, Ho Ling Siu, now aged about 22 years, who was at the time of death employed in a factory at a wage of about $350 per month; of which all, was contributed to the family fund; (3) her daughter, Ho Ling Sin, now aged about 21 years, who at the time of death was employed earning about $300 per month in a factory, now risen to about $480 per month. She lives at home, contributing about $100 to the family fund; (4) her son, Ho Tat Fung, now aged 17 years and now employed as an apprentice. He lives at home; (5) her son, Ho Tat Ming, now aged about 15 years and now employed as an apprentice. He sleeps at his workshop; (6) her daughter, Ho Yuk Ling, now aged about 13 years and at school, living at home; (7) her son, Ho Tat Keung, now aged about 11 years and at school, living at home; (8) her son, Ho Tat Sing, now aged about 8 years and at school, living at home. 7. In addition to her work the deceased looked after the younger children of the family in the home. 8. After her death the plaintiff says he had "no mood for work" which is understandable and for which he is entitled to sympathy. He returned to partial work about six months later earning about $400 per month as opposed to about $700 per month before his wife's death. Those earnings have now risen to $500-$600 per month. 9. The daughter, Ho Ling Siu, ceased work altogether on her mother's death and devoted her whole time, she says, to the care of the family. She has now moved out from the home and rents a room near her work, which she has resumed. 10. It transpired that the mother of the plaintiff came to live with the family on the death of the deceased for at least a month and visited thereafter. 11. There has been pleaded special damage in the sum of $32,800.00; the substantial sums being in paras. (d) and (e) and relating to the plaintiff's loss of earnings, (b) Ho Ling Siu's loss of earnings and (g) loss of the deceased's contribution. 12. General damages are claimed for negligence, loss of expectation of life and loss of consortium. 13. It is, as I understand it, conceded that the claim for loss of consortium is not maintainable in these proceedings. 14. As to the special damages. I note that the plaintiff did no work for some time but he did have a lorry which he allowed to lie idle during the period. There does not seem to have been any attempt to mitigate this "damage" at all and I do not think such to be recoverable here. 15. The daughter did give up her work but this appears on the evidence before me to have been largely unnecessary. The mother of the plaintiff was in a position to help with meals for the family and with household chores and the elder children, some of them wage earners, were also in a position to give assistance, and did give such. 16. I note the list set out in Kemp and Kemp 2nd Edition at page 177 showing some matters which come under the head of "Husband's pecuniary loss" under the general head "Claims for death of wife". While something should be allowed in assessing the general damages for the assistance given by and the element of security derived from the wife's contributions, the plaintiff is not entitled to be compensated twice over. What we are directly concerned with here is loss of dependency and while one may have considerable sympathy with a bereaved family the loss has to be measured in the hard light of pecuniary loss - here the value of the monetary loss. 17. I would therefore disallow items (d), (e), (f) and (g) claimed as special damages. 18. As to item (a) Funeral Expenses. There is no evidence before me as to the expenditure on this item and only reasonable sums should be allowed. I think doing the best I can, that $1,500 is reasonable and this I would allow. 19. The same applies to item (b) damage to clothing and I would allow $75 under this head. 20. Item (c) is a matter for taxation as a disbursement. Therefore special damage will be assessed at $1,575.
21. I accept the sum of the loss including loss of services to be reasonable at $300 per month. 22. I note that in O.J. Action 662 of 1971 my brother Registrar Jones used a multiplier of 15 in respect of a 37 year old woman in good health. 23. Generally the courts see no great advantage as between the two methods and in using the conventional method a discount is made to allow for lump sum payment, which discount appears to depend on the size of the sum itself: where a sum is small 5% or even no discount at all is made. 24. The deceased here was doing the type of work with which she could continue, all other things being equal, for many years to come. One is always left with imponderables and taking these into account together with that which should be discounted I would use a multiplier of 11 giving the equation $300 x 12 x 11 or a total of $39,600. 25. Damages under the Law Reform (Miscellaneous Provisions) Ordinance I assess at the conventional figure of $8,000 which will merge with the damages under the Fatal Accidents Ordinance. 26. The full assessment will therefore be $39,600 general damages together with $1,575 special damages or $41,175. 27. I do not intend, nor was I addressed on this aspect, to apportion the sum as between all dependants as in my view the amount would be insignificant. Therefore the whole sum should be paid out to the plaintiff on the understanding that some at least will be used for the educational benefit of the two youngest children. 28. There will be interest at the rate of 8% per annum from the date of the writ to the date of payment. 29. The plaintiff is entitled to his costs of the action and of the assessment. Costs to be taxed under Legal Aid Regulations. 30. Certify fit for Counsel. 31. Dated this the 4th day of January, 1974.
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