Yeung Bik Ying v. Tang Kwok Kwong and Another
Read the full judgment text of HCA 4177/1983 on BabelCite. This High Court CFI judgment.
1. On the 1st February 1981, a Mr Tsang Cheung Sin was struck by the handle bar of a motor cycle as he crossed the Po On Road. He was 71. The first defendant drove the motor cycle. The second defendant owned the motor cycle but was not on the pillion. There is no evidence that the relationship of master and servant existed between Dl and D2 or that Dl acted as D2's agent. However Dl was prosecuted and convicted on his own plea of causing death by dangerous driving.
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HCA004177/1983
IN THE SUPREME COURT OF HONG KONG HIGH COURT ___________ BETWEEN
Coram: Master Emerson in Chambers Date of hearing : 6th September 1983
------------------- JUDGMENT ------------------- 1. On the 1st February 1981, a Mr Tsang Cheung Sin was struck by the handle bar of a motor cycle as he crossed the Po On Road. He was 71. The first defendant drove the motor cycle. The second defendant owned the motor cycle but was not on the pillion. There is no evidence that the relationship of master and servant existed between Dl and D2 or that Dl acted as D2's agent. However Dl was prosecuted and convicted on his own plea of causing death by dangerous driving. 2. The son of the deceased Tsang Nam Kee brings this action here in Hong Kong on behalf of the widow who resides in China. The claims embrace the FAO and LARCO and also compensation for loss of consortium and services. 3. The defendants have completely ignored these proceedings. No appearance has been entered and no defence filed likewise the insurers have disclaimed liability for breach of policy conditions. 4. Interlocutory judgment was entered against D1 and D2 on the 26th May 1983. 5. I am asked to assess the amount of damages payable by D1 and D2 to the widow. 6. The claim for loss of consortium and services must fail as the parties lived apart. 7. As to the claim for pain and suffering, the pathologist gave evidence that probably Mr Tsang never regained consciousness after the accident. He died 3 days later. 8. On the authority of Ross v Ford 1937 AC 826 his estate cannot recover damages for pain and suffering if he was unconscious throughout. 9. The deceased prior to his death worked as a pieceworker on a sewing machine and earned $40 a day, equal to $1,080 a month or $12,960 a year. 10. The employer told the Court that the deceased was "too old" and "not working well" "without good eyesight" and "making mistakes in his work". He would have given him another year's working capacity. 11. I was given no evidence as to what the deceased would have earned if anything when he had to leave his employment. He would then have been 72. 12. The estate of the deceased is therefore entitled as special damages to 1 year loss of wages amounting to $12,960 for the period 1.2.81 to 1.2.82. 13. The estate is entitled to be conventional figure for loss of expectation of life of $15,000 and to the funeral expenses of $3,480 - a total of $31,440. 14. Counsel for the Plaintiff claims that there is an active dependency claim here under the FAO because on the evidence of the son the deceased sent to his wife, aged 69, in China HK$ 200 a month. Furthermore he travelled there 3-4 times a year, taking food and nourishment. He would leave his wife HK$ 200-300 whenever he visited her. 15. The calculation would therefore be $200 (monthly sum sent to China) x 12 = $2,400 and $1,200 (cash left in China on visits) = $3,600. Divided by 12 this gives $300 a month as the multiplicand. Mr Lee took a 5 year multiplier and got a dependency of HK$ 18,000. 16. It is clear that the FAO and LARCO claims merge here. The children are all of full age. 17. The LARCO claim on Mr Lee's calculations amounts to $21,600. Mr Lee reaches this total by taking a figure of HK$ 1,200 as the monthly earnings of the deceased. He multiplies this figure by 12 to reach an annual sum of $14,400. Then using a multiplicand of 5, he produces a total of HK$ 72,000. An arbitrary figure of 30% of this equals the net savings i.e. $21,600. 18. Regrettably on the evidence of the employer Mr Yeung Po Yan and in the absence of evidence of what the deceased would have done after he was 72 I do not think there is any "dependency" or "lost years" claim sustainable. 19. The total award to the Plaintiff will therefore be:-
and Judgment is given against D1 and D2 for this amount with costs. There will be a Certificate for Counsel. 20. Interest on the Special Damages will run at 6 ½% p.a. from the date of the accident to today and interest on the General Damages will run at 13% p.a. from the date of service of the writ to today.
Representation: Mr John Lee of Counsel instructed by Tsang, Chau & Shuen for Plaintiff No appearances by the Defendants or their insurers |