Cho Nang and Another v. The Kowloon Motor Bus Co (1933) Ltd and Another
Read the full judgment text of HCA 738/1968 on BabelCite. This High Court CFI judgment was delivered on 4 February 1969.
1. This case was referred to me by the then Acting Deputy Registrar of the Supreme Court, Mr. C.H. Koh, by his Order of the 25th July 1968 for the assessment of damages arising out of a fatal accident.
|
HCA000738/1968
IN THE SUPREME COURT OF HONG KONG ORIGINAL JURISDICTION ACTION NO. 738 OF 1968. -----------------
----------------- Coram: Deputy Registrar J.R. Oliver Date of Judgment: 4 February 1969 ------------------------------------------------------------------------------------- CERTIFICATE OF ASSESSMENT OF DAMAGES (Order 37, rule 1 of the Rules of the Supreme Court, 1967) ------------------------------------------------------------------------------------- 1. This case was referred to me by the then Acting Deputy Registrar of the Supreme Court, Mr. C.H. Koh, by his Order of the 25th July 1968 for the assessment of damages arising out of a fatal accident. 2. This accident took place on the 15th of June 1967 at a spot near 6 1/2 milestone, Castle Peak Road, New Territories, Hong Kong, at which time and place Mrs. Ting Fook was killed by a bus owned by the 1st Defendants, the Kowloon Motor Bus Co. (1933) Ltd. 3. The writ was issued on the 28th of May 1968 and the Plaintiffs are legally assisted. 4. The 1st named Plaintiff is the widower and one of the administrators of the estate of the deceased and resides at No. 524, Block 13, Tai Hang Tung Resettlement Estate, Kowloon. This Action is brought firstly for the benefit of the 1st Plaintiff and his 6 children under the Fatal Accidents Ordinance and secondly on behalf of the estate of the deceased under the Law Reform (Miscellaneous Provisions) Ordinance, 1951. 5. In their statement of claim the Plaintiffs have supplied the following additional particulars :- PARTICULARS PURSUANT TO THE FATAL ACCIDENT ORDINANCE
(2) The nature of the claim in respect of which damages are sought :- 6. The Deceased was a married woman and the mother of six children as above-named. She was immediately prior to the accident happily married for 14 years to the 1st named Plaintiff who is a cook earning a monthly income of $450.00. She was a goodwife to the 1st named Plaintiff and an excellent mother to his children. Before her death the Deceased was a vendor of vegetables earning about $600.00 to $700.00 per month and was a healthy woman of 39 years of age.
7. This case was heard by me on the 4th of November and on the 12th of December 1968. 8. The defendants have already admitted liability and it therefore only remains for me to assess what damages the defendants should pay to the plaintiffs. 9. The following witnesses gave evidence before me : The 1st Plaintiff, Mr. Cho Nang, the husband of the deceased; and Mrs. Cham Yuk Fong a vegetable hawker who was in the habit of accompanying the deceased to buy and sell vegetables every day for some years before the accident. This lady was a near neighbour of the deceased. She lived only three doors away in the same Resettlement Estate and had in fact been a neighbour for over 10 years. 10. I will now deal with the assessment of damages under the Law Reform (Miscellaneous Provisions) Ordinance. My attention has been drawn to the decision by the Court of Appeal in England in 1966 in the case of Naylor v. Yorkshire Electricity Board (1), and I have also considered the following cases which have been reported in the Hong Kong Law Reports :- 11. Chan Shing v. Chan Yan Hung (2). In this case damages were awarded to the estate of 27 year old married woman in the sum of $6,500.00 for her loss of expectation of life. 12. Chu Yim-chun v. Ma Hon-kuen (3). In this case similar damages were awarded to the estate of a 39 year old married woman in the sum of $4,000.00. 13. Cheung Wo and others v. Lee Woon-sang (4), 14. Wong Kam Ying and another v. Man Hung Pun (5). and two unreported cases 15. Man Cho Che v. Shun Fat Transport. (6); and 16. Wong Wai Chun and The China Navigation Co. Ltd. (7) 17. Since the decision of the Court of Appeal in England in the Naylor case (1) awards under this head have gone up in Hong Kong and the usual figure at the moment would appear to be about $8,000.00 18. Is that the value I should put on the loss of expectation of life suffered by the deceased in this case. Her life was a very hard one but there is no evidence before me to show that it was an unhappy one. 19. She had the great blessing of a growing family and her attitude to life was positive in that she was making her way competitively by selling vegetables at the same time as she brought up a family of six children all under the age of eleven. In view of the fact that she was 39 years of age her years of child bearing were almost over and she had a settled home in a Resettlement Estate. On the other hand her life had not been made any easier by the unhelpful attitude of her husband in not taking more active and regular employment. Taking her age, her very hard life, and the additional burden cast upon her by a less than helpful husband I assess damages for loss of expectation of life at falling somewhat below that of an average person of her age and I therefore award a sum of $6,000.00 under this head. 20. Other claims under the Law Reform (Miscellaneous Provisions) Ordinance are a sum of $30.00 for damaged clothing and a sum of $750.00 for funeral expenses. It has been agreed that the plaintiff's expenses of obtaining a grant of letters of administration will be dealt with on taxation. I therefore assess all the damages under this Ordinance as follows :-
21. I now come on to the very much more difficult task of assessing what loss has been suffered by the dependants of the deceased under the Fatal Accidents Ordinance. In this connection I find that the 1st Plaintiff and all the children were to a greater or lesser degree dependents. 22. The Plaintiff's evidence, if it is to be believed in its entirety is that although a cook by calling he indulged in periods of total unemployment whilst his wife's daily routine was to get up every morning between 4 and 5 a.m. and leave him at home with six children aged between one and eleven. According to his evidence the older children would leave for school without food and the first meal of the day would take place when the deceased returned home at about 2.00 p.m. after selling 200 lbs. of vegetables. She would then cook a meal, do all the housework and look after the children. 23. In the unreported case of Haman v. Price (1) the Judge in that case is reported to have said :-
24. I would echo those words in this case. 25. In selling her vegetables the deceased with Mrs. Cham Yuk Fong and three other Chinese women used to catch a lorry every morning at 5.15 a.m. from Kowloon Tsai and then travel to Kwai Chung. They would then cut vegetables at a farm and the first two would each buy $45 to $50 worth of vegetables per day. These vegetables would be purchased at 30 cents a catty and sold at 60 cents a catty. 26. The Plaintiff's solicitor in his final address made great play with the fact that the deceased's earnings were between $700 to $800 per month, but the evidence given does not bear this out and indeed the Statement of Claim describes the earnings of the deceased as being between $600 to $700 a month. If the most sympathetic view possible is taken of the earnings of the deceased it would appear that she purchased 150 catties of vegetables a day at an average price of 30 cents a catty. Over a 30 day period this would represent an outlay of $1350.00. For convenience I will take the figure as the maximum amount which it is claimed the deceased spent each month in the purchase of vegetables. 27. Similarly if the highest average figure is taken of her sales then she sold 150 catties of cabbage every day of the month. If a 30 day period at an average price of 45 cents a catty per day is accepted this would produce a monthly figure of $2025.00. The difference between the selling price and the purchase price is $675.00. 28. I think that it is unlikely that the deceased cut and sold vegetables 30 days a month for every month of the year. Mrs. Cham admits that the deceased did not do so when she was sick or at certain public holidays. In any event she has over the last 10 years given birth to five children and she must of necessity have been laid up for some weeks during these confinements. 29. Furthermore as her pregnancies became more advanced is it likely that she would continue to carry 200 lbs. of vegetables every day ? I think not. 30. I was far from convinced at the manner in which Mrs. Cham gave her evidence and as a result of the discrepancies which have been given it will be necessary for me to look behind the evidence to obtain a true assessment of the monthly earnings of the deceased. 31. In making my assessment of damages under the Ordinance the important section to which I have to direct my attention is section 4 subsection (2).
32. If the life expectancy tables which appear as Appendix III at page 312 of Kemp and Kemp (1) are studied it will be seen that the life expectancy of a 39 year old female is 36.24 years. The work-life expectancy of persons summarised in the Tables of decided cases and set out between pages 35 to 43 of Kemp and Kemp varies between 3 for a 64 year old man and 21 for a 43 year old man but nowhere have I been able to find a lucid explanation as to how the work life expectancy tables give rise to these multipliers which fall so far snort of the life expectancy tables. 33. In the words of Lord Reid in the case of B.T.C. v. Gourley (2) "The Court's task is to give the present value of propspective loss". 34. The learned authors of Kemp and Kemp (1) say at page 5 of Volume 1 :-
35. In recent years judgments have been given in the Supreme Court which provide some guide for me on what multipliers have been used but there is singularly little guidance on the reasons which lead up to the use of the particular multipliers. from a further perusal of the cases age seems to be the primary determining factor but even age does not produce a consistent result. 36. The cases in question are :- Cheung Wo and others v. Lee Voon Sang. (1) Scholes J.
37. Multiplier in this case reduced on appeal. Wong Shik Der & Another v. Mak Hon Chung
Man Mo Che v. Shun Fat Transport
Wong Wai Chun v. China Navigation Co. Ltd.
Ng Ching Lin v. Cheung Tam Shing
38. In these cases the multiplier does not oscillate between the wider extremes evidenced on pages 35 to 43 of Kemp and Kemp. 39. This surprises me as people do not have the opportunities for retirement here that are open to them now in England : I would have thought that the "work expectancy" of self employed persons, especailly those who are very poor, would cover a longer span in Hong Kong than in England. 40. I view with suspicion, for the reasons which I have previously given, the suggestion that the net income of the deceased at that time for her death was $675.00 per month. It is not easy for me to infer from the evidence or rather from the lack of evidence what were her exact net average earnings. Indeed it was accepted by both parties that earnings of this kind must essentially fluctuate from day to day and from season to season. It is however vitally necessary for me to fix an average figure of monthly earnings before I proceed to calculate the principal loss suffered by the dependants as a result of the death of the deceased, which is of course the principal benefit which they have lost by this valuable contribution to their well being coming to an abrupt halt on the 15th of June 1967. 41. After considering the evidence generally I take as the average monthly net earnings of the deceased a figure of $500.00. 42. The facts of this case call for a high multiplier. The deceased was in good health. She was a licenced hawker with a pitch in Mongkok vegetable market and had she lived I have no reason to doubt that she would have continued her calling albeit bringing less vegetables into the market as she drew on in years and the need to support her family grew less and less. For these reasons I propose to fix the multiplier at 15. 43. In working out the main loss which the family have suffered it is therefore necessary for me to calculate an average figure over a period of 15 years. This I will do by taking the net earnings at $500 per month for the next five years, $400.00 a month for the period five to ten years and $300.00 a month for the period ten to fifteen years. 44. These figures then work out as follows :-
45. This will then produce an average annual loss of $72,000.00/15 or $5,760.00 or $480.00 a month. 46. Unfortunately I still have to deduct a figure which the deceased would have retained to maintain herself had she lived. This is again complicated by the fact that I think it is reasonable to assume that she would have kept less for herself at the time of her death than would be the case when her family had grown up and she were older. Cases of this kind bristle with imponderables. In my previous calculations I have already assumed that had the deceased lived she would be earning less in 15 years time than at the time of her death. For this reason I believe her free money in 15 years time will not be substantially different from that which it was at the time of her death. I therefore fix a consistent figure of $50.00 which the deceased would have retained to maintain herself over the 15 years period. Living as she was in a family it is of course cheaper to live as one of a unit of eight than on her own. It is for this reason that I fix this figure which seems to be too low at first sight. 47. This will therefore reduce the net monthly benefit of the dependants to $430.00 per month over the 15 year period. I therefore arrive at a sum total of $77,400.00 under this head which is made up of the net monthly earnings of $430 x 12 x 15 = $77,400.00. 48. I have to add to this figure the further sum necessary to compensate the dependants for their loss of the voluntary services performed by the deceased in looking after them. Evidence was led before me that for a time the 1st plaintiff was obliged to employ domestic help to assist him in looking after the children and that in this regard he was obliged to spend $120.00 a month. 49. On the 15th of June 1967 the 1st plaintiff was 39, and the children were 11, 9, 7, 5, 3 and 1 respectively. To assess damages under this head is far from easy. 50. In five years from the date of the accident the ages of the children will be 16, 14, 12, 10, 8 and 6. By this time the older ones should be able to render some assistance to the younger ones but of one thing there can be no doubt and that is this young family have lost something which money can never compensate. It is however my duty to assess in terms of dollars and cents the value of their loss and I propose to assess it in the sum of $5000.00. 51. I was requested by Mr. Gregory to deduct from any damages I awarded to the dependants any consequential gains which they have derived from the death of the deceased. 52. Mr. Gregory proceed to enumerate a number of these and I will deal with them in more detail later. Suffice it to say I do propose to make deductions but for the reasons which I will give later I will make them against the individual apportioned damages and not against the round figure. 53. The sum of $5000.00 must be added to the previous sum of $77,400.00 and there is therefore a sum of $82,400.00 to be apportioned amongst the dependants. 54. I propose initially to divide this sum of $82,400.00 amongst the dependants by apportioning to each child the sum of $11,000.00 and apportioning to the father the sum of $11,000.00 plus the balance of $5,400.00 that is to say in his case $16,400.00. 55. Professor Street in his informative book "Principles of the Law of Damages" (1) points out at page 150 that in the earlier cases heard after the Fatal Accidents Act was passed in 1856 it was the practice to assess the damages of each dependant individually. Between pages 150 and 154 the author points out the dangers which are run by awarding the lions share of the award to a surviving spouse. Infant dependants are not only at the mercy of the surviving parent but should that parent die the lump sum could well pass out of the family under his will or partially so on his intestacy. 56. Mr. Gregory in his final address directed my attention to the specific reasoning of the Full Court in the case of Leung Tai-ah v. Chan Tak-wan (2), that if compensation is received in advance a notional deduction must be made because the loss which a person has suffered will be offset by reason of the pecuniary gain available in the form of the receipt of a capital sum capable of producing immediate income. 57. A distinction can be drawn between that case and this as six out of seven of the dependants are infants and no capital sum is going to be handed over to them immediately. It will be invested and subject to powers of advancement and maintenance it will be controlled by Order 92 of the Rules of the Supreme Court, 1967; the Suitors Fund Rules and any orders which the Court sees fit to make, or which the parties may choose to agree between themselves before I sign this certificate. 58. Paragraph 24 of the Pearson Report of the Committee on Funds in Court (1) is authority for saying that :-
59. The facts of this case are not the same as those of the Leung Tai-ah case (2). In that case a substantial sum was awarded outright to an adult who was free to deal with it as soon as he received it. The benefit passing here will be nowhere near as great and inasmuch as it exists at all this benefit will be different in degree depending upon how the award is distributed amongst the 1st plaintiff and the other dependants. 60. Although the facts of this case are not on all fours the principle is still the same and I will have to make deductions but I think that it is very much better that deductions should be made against the sums which have been apportioned to the individual dependants than against the award as a whole. Indeed if different dependants benefit in different ways I do not see how I can otherwise approach my task. 61. No evidence was led before me that the 1st plaintiff had remarried or that he was expected so to do. I propose to follow the decision of Mr. Justice Phillimore in Buckley v. John Allen and Ford (Oxford) Ltd. (3) and make no deduction on the possible benefit which may accrue to the 1st plaintiff and the dependants by reason of the possibility of his marrying again. 62. I must now make a deduction from each apportioned figure to offset the benefit which will be obtained by the dependants receiving payments in advance capable of producing an inflow of income and of possible capital gain. It is true of course that a person may lose any capital sum the moment he receives it but again I have to work out an imponderable. 63. These deductions have to be made but I am not alone in thinking that it is perhaps better not to work out the figures for this type of benefit by means of exact mathematical calculations. 64. In accepting the statement made in the "Pearson Report" that the average life of a fund in court is 5 1/2 years, it is of course true that even though the fund is no longer in court it does not mean that the fund has been spent. Cases arise where the Court sanctions the purchase of a flat as an investment or sometimes the damages although spent exist in some permanent form such as a wheel chair or an artificial limb. However in far and away the majority of cases experience in Hong Kong especially with children shows that the funds held on behalf of infants are whittled down by advances to cover the cost of education, operations, illness, food and other items of daily need. 65. Theorectically the award of damages should remain inviolate and the person to whom the damages have been awarded should subsist on the income which the capital produces finally permitting the capital to drain away as life expectancy flickers until finally he is left with nothing as life fails or the dependency comes to an end. This approach fails to take into consideration two very important points which concern the majority of cases coming before the courts involving poor people. First in almost all cases very considerable debts have been incurred between the date of the death of the deceased and the receipt of damages. Far from receiving a capital sum capable of producing income in most cases money has had to be borrowed from money lenders at high rates of interest or it has to be borrowed from relatives who by their generosity are deprived of tarning the sums advanced to their own financial gain. Secondly income is not paid in advance and it is necessary to live. It is this immediate need for money which bites into the capital sum awarded and reduces the substance of the argument that in these cases persons will be obtaining a benefit of material advantage by having available to them capital sums capable of producing income as an alternative to a living person capable of bringing into the house the support upon which they were dependent or partially dependent before the fatal accident happened. 66. In Daniels v. Jones (1) the basic principle to be followed in assessing damages was stated by Lord Justice Polroyd Pearce in these words :-
67. In the same case Lord Justice Willmer said at p. 1113 :-
68. In calculating the deductions I must make to the awards I have reduced them by taking into consideration the income benefit which will be available to each dependant. In my opinion a higher benefit pro rata accrues to the 1st plaintiff and to the older children than is the case of the younger children. I have made a further adjustment to cover debts which the 1st plaintiff must almost certainly have incurred on behalf of himself and the other dependants between the date of death and now and which directly stemmed from his having to bridge the gulf of the deceased one moment being alive and productive and the next moment being dead and her death bringing in its wake acute financial loss to her dependants. I have taken into consideration the fact that the capital sum awarded will be diminished each year by advances. Finally I have taken into account the fact that if the years to come are any reflection of those which have passed any capital sum awarded will lose its value as the cost of living goes up. 69. In the case of Leung Tai-ah and Chan Tak-wan and another (2) which was heard before the Full Court in June of last year Mr. Justice Scholes suggested at page 232 that a discount of 20% or 1/5th should have been made to cover the benefit accruing by an immediate lump sum coming to the hands of the plaintiff. In so doing he followed the decision of Mr. Justice Croom Johnson in the case of Ferguson v. Durastic Ltd. and Another (1). 70. In this case I do not propose to reduce the individual awards by such a large figure. In the case of the younger children the sums awarded are subject to considerable restraint. In the case of the older children and the 1st plaintiff the sums awarded, once they are apportioned are nowhere as high as the sum awarded in the Leung Tai-ah (2) case. 71. Before I come to make a final reduction from the gross Fatal Accidents figure of $82,400.00 it is necessary for me to deduct the sum of $6,000.00 which I have assessed as damages due to the estate of the deceased under the Law Reform (Miscellaneous Provisions) Ordinance. It is necessary to do this at this stage as these damages are not subject to the discount which has to be made to the damages awarded under the Fatal Accidents Ordinance. 72. The sum of $6,000.00 therefore reduces the original Fatal Accidents figure of $82,400.00 to $76,400.00. 73. For the reasons which I have therefore given the figures I have awarded under the Fatal Accidents Ordinance will be adjusted and the final awards will be :-
74. The special damages of $780.00 representing funeral expenses and the damages to the clothing of the deceased of $30.00 will be paid to the plaintiffs as personal representatives of the deceased in addition to the damages for under the Law Reform (Miscellaneous Provisions) Ordinance the sum of $6780.00. loss of expectation of life making in all. 75. I now turn to the question of whether the parties wish to agree to my making orders by consent on the question of costs and how the damages apportioned to the infant dependants should be invested. If they do not I fear I have no power to make these Orders as my terms of reference under Order 37 extend only to the assessment of damages. Costs have already been dealt with in the interlocutory judgment of the 24th of July 1968. By consent the sum of $70,430.00 to be paid into Court within 14 days. The sum of $14,630.00 to be paid to the Director of Legal Aid. Subject to the prior charge of the D.L.A. the balance of $55,800.00 to be invested by the Registrar as he sees fit and the income thereof is to be paid out to the 1st plaintiff for the benefit of the infant children. The 1st plaintiff and the infant children are to be at liberty to apply to the Registrar for the payment out of such sums of capital and income as shall be considered necessary by the Registrar for any child's immediate needs.
(1) Naylor v. Yorkshire Electricity Board 1966. 3. A.E.R. 327. * & 1967. 2. AER. 1. (2) Chan Shing v. Chan Yan Hung HKIR 1963. P. 625. (3) Chu Yim-chun v. Ma Hon-kuen HKIR 1965. p. 131. (4) Cheung Wo and others v. Lee Woon-sang HKLR 1965. p. 799. (5) Wong Kam Ying and another v. Man Hung Pun. HKLR 1967. p. 201. (6) Man Cho Che v. Shun Fat Transport. Unreported judgement of Briggs J. 16th October 1968. (7) Wong Wai Chun v. China Navigation Co. Ltd. Unreported judgment. Briggs J. 24th December 1968. (1) Haman v. Price. p. 196 2nd Volume of Kemp and Kemp on The Quantum of Damages. (1) Kemp and Kemp. The Quantum of Damages. Fatal Injury Claims. 2nd Ed. Vol. 2 p.312. (2) B.T.C. v. Gourley. 1950. A.C. 185 at 197. (3) Kemp and Kemp. Vol. 1 page 5. (1) Cheung Wo and others v. Lee Voon-sang. 1965. HKLR. p. 366. (2) Wong Kam Ying v. Man Chi Tai. 1967. HKLR. p. 201. (3) Leung Tai-ah v. Chan Tak-wan. 1968. HKLR. p. 224 (4) O.J. 830 of 1967. Judgment of Briggs J. 18 Jan. 1968; so far unreported. (5) O.J. 719 of 1967. Judgment of Briggs J. 16 Oct. 1968; so far unreported. (6) O.J. 792 of 1967. Judgment of Briggs J. 24 Dec. 1968; so far unreported. (7) O.J. 447 of 1968. Judgment of Huggins J. 10 Jan. 1969; so far unreported. (1) Principles of the Law of Damages. Professor H. Street. 1st Ed. p.150-154. (2) Leung Tai-ah v. Chan Tak-wan. 1968. HKLR. p.224. (1) Report of the Committee on Funds in Court. Cmnd 818. (3) Buckley v. John Allen and Ford (Oxford) Ltd. 1967. 2 W.L. R. p. 762. 763. (1) Daniels v. Jones. 1961. 1.W.L.R. p. 1103. (1) Ferguson v. Durastic Ltd. and Another 1951. 1. Lloyd's Rep. 324. (2) Leung Tai-ah v. Chan Tak-wan. 1968. H.K.L.R. p. 224. * but see 1967. 2. AER. 1 |