Ip Ling and Another v. Chan Yuen Ping and Another

HCA010420/1982

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

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Coram: Master P. H. O'Donnell in Chambers

Date of Hearing: 13 March 1986

Date of Decision: 27 March 1986

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ASSESSMENT OF DAMAGES

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1. The deceased was a passenger in motorcar being driven by the 1st Defendant on Castle Peak Road towards Kowloon at about 4. 45 a.m. on 31st July 1981 when the car went out of control while negotiating a right hard bend and collided with a tree on the far side of the roadway. The deceased, who was 22 years of age at the time, received serious injuries in the motor accident and died shortly thereafter on the same date. The motor vehicle in question was owned by the 2nd Defendant.

2. The writ in this action was issued on the 4th November 1982 and both Defendants filed an acknowledgment of service indicating their intention to contest the proceedings. Interlocutory judgment was entered for the Plaintiff, acting for the deceased, on 5th February 1986 by consent against both the 1st and 2nd Defendants and for damages to be assessed.

3. At the assessment of damages Counsel for the Plaintiff was granted leave to file a re-amended statement of claim. A large bundle of 19 different types of documents extending to 199 pages was produced on behalf of the Plaintiff under Section 47 of the Evidence Ordinance and Order 38 R.S.C. No counter-notice had been filed on behalf of the Defendants. Both Counsel for the parties had agreed:

4. The only areas of dispute between the parties was the figure to be used as the multiplicand on the lost years claim, the dependanoy claim by the deceased's parents and siblings, and the balance of funeral expenses in excess of $5,500 agreed. It was also agreed that this was a claim where the awards under FAO and LARCO should merge so that only the LARCO claim needed to be considered.

5. The first of 6 witnesses called by the Plaintiff was CHAN Kam-yin, a former employee of the deceased, who operated a transportation business at the date of his death. His evidence was that he was paid $1,800 per per month as basic salary and an additional $500 per month for overtime as well as meal expenses of $650 per month by the deceased. Mr. Chan stated that he assisted the deceased to deliver rolls of cotton goods by goods vehicle on behalf of different factories. This witness gave evidence that the deceased did not drink alcohol or smoke cigarettes, and that his hobby was riding bicycles and operating remote controlled model toys. The Plaintiff, Ip Ling, as the deceased's mother, gave evidence that the goods vehicle used by her son in his transportation business was registered in her name but that the hire purchase repayments of $1,300 per month were paid by her son out of the profits from his business. Ip Ling stated that the deceased, who was single, lived at home and had undertaken to pay $4,500 per month to support 2 of his sisters, LI Yuen - han, aged 27 years, and LI Yuen - fong aged 20 years, while they were studying overseas in England. She claimed that the deceased paid her in cash at irregular intervals from the profits in his business and that these funds were used to forward money to the deceased's sisters studying abroad. She said that as the deceased had undertaken this responsibility he was not expected and did not support his parents or contribute to the family upkeep or support. The deceased's mother estimated her son's personal expenses to be between $400 and $500 per month.

6. LEUNG Po - sing, gave evidence that he used the deceased to transport clothing for his factory on a cash basis. He estimated he would use the deceased's transport for his goods about 18-20 times a month at a cost of $1,800 per month. LEE Kai - tao, the proprietor of a clothing factory gave evidence that he paid transportation charges averaging $1,500 per month in cash to the deceased for the use of his services to deliver garments. The deceased's elder brother, LI Chi-wing, gave evidence that the deceased would spend between $1,300 - $1,400 per month on diesel fuel for the goods vehicle used in his transportation business. This witness was a taxi driver who used the same make of vehicle and the same fuel for his taxi. This witness gave evidence of the additional services and the cost of same incurred in relation to the deceased's funeral. On the basis of this evidence the following additional funeral expenses would be allowed as reasonable in the circumstances :

7. The deceased's sister, LI Yuen-ling, confirmed in evidence that the deceased contributed on average $4,500 per month from his transport business to the family income which was used to support the 2 other sisters studying abroad. Counsel for the Defendants did not call any witnesses or evidence on their behalf and submitted that the gross average income of the deceased was $5,000 per month which should be reduced by 50% to arrive at a net income of $2,500 per month. Counsel for the Plaintiff relied on documented invoices for the 3 month period before the deceased's death (produced in the bundle of documents), for an average income of! $7,330 per month and the oral evidence from 2 factory owners of additional earnings of $3,300 per month to support a gross figure of $10,630 as the deceased's average monthly income. On the evidence produced and adduced at the hearing the average gross monthly income for the deceased from his transport business will be accepted and allowed at $10,630. From this gross figure the following expenses should be deducted :

8. The net monthly income for the deceased from his transport business is therefore $4,380. From this balance the deceased's personal expenses of 500 and his evening meal expenses at home of $240 will have to be deducted leaving a free balance of $3,640. The pre-trial loss of earnings is accordingly assessed at $3,640 x 55 months = $200,200. There is no evidence to suggest that the deceased's income would have varied to any extent since the date of the accident. Although the deceased had a grilfriend there is nothing to suggest he was contemplating marriage which would have seemed unlikely while he was still supporting his sisters studying overseas. However, the deceased's contribution to the family income is likely to have been reduced from August this year when his elder sister completed her degree. Therefore, the reduced figure of $2,500 per month will be used as the free balance for the next 4 years from August 1986 while his younger sister completes her degree. Thereafter, the likelihood of the deceased having had additional expenses as a result of getting married and/or moving out of the matrimonial home - must have been substantially increased. The result is that the free   balance for the final 6 years of the post-trial loss will be allowed at the reduced figure of $1,500 per month. The post-trial loss is therefore assessed as follows :-

The total post-trial loss of earnings is therefore $246,200.

9. Summary of awards made on this assessment are as follows : -

10. There will be interest on the award for loss of expectation of life at 2% per annum from the date of the issue of the writ and on the pre-trial loss and funeral expenses 3.8% from the date of the accident, both to the date of this assessment.

11. There will be costs awarded on this assessment in favour of the Plaintiff, to be taxed if not agreed. The Plaintiff's costs and both defendants' costs to be taxed in accordance with Legal Aid Regulations. Certificates for Counsel are to be issued.

Representation:

Mrs. J. Barnes, Counsel instructed by Director of Legal Aid for Plaintiff

Miss  B. Kwan, Counsel instructed by Catherine K.P. Fung & Co. for 1st and 2nd Defendants