Yu Yin v. Tam Hing Wai

HCA003393/1973

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

ACTION NO. 3393 OF 1973

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Coram: Briggs, C.J.

Date of Judgment: 30th May 1974.

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JUDGMENT

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1. The plaintiff is the administrator of the estate of YU Chan Wah, who died intestate, YU Chan Wah, who was then a man of 25 was his son and was employed as a bulldozer driver. On the 26th June, 1972, he was a passenger in the back of a lorry driven by one WONG Hok-nin down Glenealy. The lorry was loaded with a tracked bulldozer. The photographs displayed in evidence showed that the lorry went out of control, slid along the side of the embankment to the right-hand side of the road and crashed into the embankment. The effect of the accident was that the bulldozer ran forward onto the driver's cab crushing YU Chan Wah and also crushing the driver. Both men died. The photographs and a plan of the scene, which was also exhibited, clearly show that this is a proper case for the application of the doctrine of res ipsa loquitur. The plaintiff brings his action under the Fatal Accidents Ordinance as well as under Part 4 of the Law Amendment and Reform (Consolidation) Ordinance.

2. The evidence is that the son, YU Chan Wah, was a bachelor at the time of his death. However, he was intending to get married in about four months' time. He was earning $1,000 per month and was paying nothing for his board and lodging. He paid $400 per month out of his wages to his father, the plaintiff, and he, the plaintiff, sent each month $200 to his wife, the mother of YU Chan Wah, who lives in China with two other children of the family. As I have said, YU Chan Wah intended to get married at the time of his death. He was living in dormitory premises, the property of his employers. Upon his marriage he would have to set up a home. It is clear from the evidence he could not live with the plaintiff who was a foki in a shop where he lived in. It is obvious, therefore, that he would not have been able to contribute such a large sum to his parents after he had married. However, it is normal for the sons in Chinese families in Hong Kong to continue to support their parents even after their marriage. They contribute as much as they can. The plaintiff is now 66 and his wife is 55.

3. First of all, I will deal with the Fatal Accidents Ordinance. I think the correct sum to take for the dependency is $200 and I think the right multiplier should be 10. This gives a figure of $24,000. This must be scaled down, so we arrive at a figure of $19,200. It is in evidence that the sum of $14,400 has been paid under the Workmen's Compensation Ordinance to the plaintiff in respect of his son's death.

4. Following the reasoning in the case of Chan Yuk-sum v. Wong Pai-kwan⁽¹⁾ this sum must be deducted from any sum awarded under the Fatal Accidents Ordinance. This gives us the sum of $4,800, adding the sum claimed for funeral expenses, which is $2,000, the result is $6,800. I would, therefore, award that sum as damages under the Fatal Accidents Ordinance.

5. Under Part 4 of the Law Amendment and Reform (Consolidation) Ordinance, I would award $10,200. This is made up of the sum of $8,000 for loss of expectation of life together with the funeral expenses and modest special damages claimed for in the action. The plaintiff is not, of course, entitled to both these sums. Under the Fatal Accidents Ordinance, he has to account for any sum received from the estate of his son as a result of the death. It follows that the claim under the Fatal Accidents Ordinance is merged in the claim under the Law Amendment and Reform Ordinance and there will, therefore, be judgment for $10,200 for the plaintiff with costs. The plaintiff's costs are to be taxed under the Legal Aid Regulations.

Representation:

Bokhary (W.K. Lore & Co.) assigned for Plaintiff.

Wm. Waung (H.A. Hoosenally & Co.) for Defendant.

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