Kwok Siu York v. Lee Hon and Another

HCA000123/1970

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

ACTION NO. 123 OF 1970

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Coram: Mr. B.L. Jones, Assistant Registrar, in Chambers.

Date of Judgment: 17th day of December, 1971.

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DECISION

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1. This is an application by the plaintiff for damages to be assessed against the 1st defendant under the Fatal Accidents Ordinance and the Law Reform (Miscellaneous Provisions) Ordinance pursuant to a judgment dated the 2nd June, 1971 arising as a result of the death of her husband on the 29th January 1969 from personal injuries received in a road traffic accident that occurred the previous evening at about midnight.

2. The 2nd defendant was sued as the employer of the 1st defendant but proceedings against him were subsequently withdrawn. At the time of the accident the deceased was a passenger in a motor vehicle driven by the 1st defendant, which went out of control and turned over whilst travelling near the Cheung Sha Wan Reclamation Area. The deceased died about half an hour after the accident.

3. The deceased who was aged 37 was self employed as a mechanic earning about $800 per month, out of which sum he paid $700 to the plaintiff for the household expenses. The plaintiff did not work before the accident but now works as a part time domestic servant earning $300 per month. In addition to this sum the plaintiff receives assistance from the Director of Social Welfare which amounts to $321 per month.

4. There are six children of the family:- Cheng Cho Shing aged 13, Cheng Cho Lai aged 11, Cheng Cho Kuen aged 10, Cheng Cho Man aged 9, Cheng Cho Yiu aged 6 and Cheng Mei Po aged 5, all of whom are studying at school. School fees of $15 per month are paid in respect of Cheng Cho Shing and Cheng Cho Yiu and $23 per month for Cheng Mei Po. No fees are payable in respect of the other three children.

5. The plaintiff in evidence said that when her husband was alive it was his intention to send the children to school until they went to middle school but this will now no longer be possible.

6. The only item of special damage is the sum of $200 that the plaintiff paid as a contribution towards the funeral expenses, the balance having been paid by the Mongkok Kai Fong Society. The plaintiff said that she is under no obligation to repay the balance of the funeral expenses to the Society.

7. The plaintiff said that at the time of his death her husband was in good health.

8. Under the Fatal Accidents Ordinance the measure of damage is the pecuniary loss which has been suffered and is likely to be suffered by each dependant. Taking into account a sum to be deducted from the amount of $700 per month for the deceased's own living expenses I shall fix the monthly value of the dependency at the date of death at $600, and I shall adopt a multiplier of 14 years purchase. Accordingly the award under the Fatal Accidents Ordinance will amount to $100,800.00 which will be apportioned as follows:-

9. As the deceased died within a short time of the accident and was unconscious the whole time there will be no award of damages for pain and suffering.

10. I shall award the sum of $7,500 as damages under the Law Reform (Miscellaneous Provisions) Ordinance for loss of expectation of life, which sum will merge with the damages awarded under the Fatal Accidents Ordinance.

11. The sum of $200 will be awarded for the funeral expenses paid by the plaintiff.

12. The total award will therefore be $101,000.

13. The sums payable to the children will be invested by the Registrar in his absolute discretion as he thinks fit with power to make advances out of the income or capital for their education and maintenance.

14. The costs of this application will be awarded to the plaintiff and there will be the usual taxation under the Legal Aid (Scale of Fees) Regulations, Cap. 91.

15. Dated this the 17th day of December, 1971.

Representation: