Law Wan Yau and Another v. Chan Shek Ching and Others

HCA002173/1985

1985, No. A2173

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

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Coram: Master Betts in Chambers

Date of Hearing: 28th October 1985

Date of Delivery: 1st November 1985

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ASSESSMENT OF DAMAGES

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1. As all matters except three had been agreed between the parties I made my assessment at the hearing and undertook to give written reasons later.

2. As infants are involved the matters that were agreed require my approval; which they have.

3. The first disputed matter related to funeral expenses of $6,000.00 paid by the Plaintiff. Since the proceedings started it was discovered she was not, as had been thought, the wife of the deceased although she was the mother of his children. She had no claim against the Defendants and leave was given to amend the proceedings accordingly. This strictly brought an end to her claim for reimbursement of the funeral expenses.

4. Quite rightly Mr. Smith did not strenuously resist the suggestion she paid them on behalf of the children; who thereupon took over the claim which is allowed in full.

5. The second point relates to the dependency claim of the third child. It was agreed the post trial dependency was for a period of 33 months and that the monthly figure was $1,035.00. Miss Bridges agreed there should be a reduction or discount as the total would be received in advance. She suggested a reduction by six months would be a reasonable adjustment to the multiplier in this case.

6. Mr. Smith argued that although there was no direct authority setting out any mathematical formula an examination of awards made; where most reported cases related to loss of future earnings; showed that the discount for advance payment and the uncertainty of survival was generally reflected by a reduction in the multiplier by about one third.

7. I do not think anything approaching a general rule can be found by conducting a statistical analysis of that sort. If the multiplier is small the advantage of advance payment and the uncertainty of survival are minimal. If the multiplier is very large then they correspondingly increase. The discount is not necessarily a simple progression from one extreme to the other and will be affected by other factors such as the age of the person on whose behalf the claim is made. All these factors must be taken into account in assessing a formula which, on any view, is based on judgment rather than scientific precision.

8. In view of the small multiplier in this case I consider a reduction of 6 months from the multiplier amply sufficient.

9. The last point is to decide the length of dependency of the second child. At the time of his father's death he was 15 years old. It is conceded he would have remained in school, and his dependency would have continued, until he reached the age of 18. Because of his father's death and the resultant family circumstances he left school and went to work nine months after the date of that death.

10. Miss Bridges argues that the dependency claim became fixed at the date of death and as the subsequent change was a result of the Defendants' wrong doing they should not benefit from it by having the period of dependency reduced.

11. I regret this proposition has no more than a superficial attraction and, much as I may sympathise with the child concerned, I have to reject it.

12. Mr. Smith directed my attention to Williamson v. Thornycroft [1940]4 All E.R.61(C.A.) in support of his contention that although the period of dependency in primarily that existing at the date of death subsequent events must be taken into account. I think that must be right whether those subsequent events be to the advantage or disadvantage of either party.

13. If that were not to be the case, and my view here were wrong, then to avoid double recovery the child would have to give credit for his earnings during the total period. They would, I understand, wholly extinguish the dependency claim and leave him in an even worse situation.

14. It follows I hold this child's dependency claim covered the period only until he started work. That is a period of ten months.

15. Taking into account the matters agreed my assessment is as follows :-

16. There will be interest at the rate of 6.5% per annum from 7th February 1983 on the awards to Lui Kim Yu and Lui Hoi Ming and on the pre trial award to Lui Siu Ming and on the funeral expenses.

17. There will be an order for costs to the Plaintiff and for the Plaintiff's own costs to be taxed under Legal Aid Regulations.

18. Certificate for counsel.

19. The sum awarded, with interest, is to be paid to the Registrar, Supreme Court within 14 days and, subject to the first charge of the Director of Legal Aid, held by him for the infants on the usual terms and with the usual powers as to payments out.

20. The time for appeal is to run from the date of delivery of this written assessment.

Representation: