Chan Ng Mui and Another v. Chan Lau Chu and Another

HCA009989/1982

IN THE SUPREME COURT OF HCNG KONG

HIGH COURT

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BETWEEN

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Coram: Master Betts in Chambers

Date of Hearing: 20 December 1983

Date of Delivery: 18 January 1984

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ASSESSMENT OF DAMAGES

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1. In the early hours of the 7th March 1981 LEUNG WING KIN was one of five passengers in a car driven by the 1st Defendant and owned by the 2nd Defendant. Near the Au Tau Roundabout on the Kam Tin Road near Yuen Long the car collided head on with a public light bus and Leung Wing-kin was killed. At the time he was aged 24 and a batchelor. His marriage had already been arranged but he was still living with his parents now aged in their early sixties. As they are the only beneficiaries of his estate their dependency claim under the Fatal Accidents Ordinance is exceeded by and merges into the claim under the Law Amendment and Reform (Consolidation) Ordinance.

2. The evidence showed that prior to the accident the deceased worked as a mason on building sites earning $100 per day. It was not made clear how many days, an average, he worked each month. The figure was put at 20 days for 1980 and it was suggested the figure would have been 25 at the time of death. Certainly I would expect a young man about to face the expense of marriage and setting up home to work and earn more than the comparatively carefree batchelor of the year before. 25 days work in the month is by no means unusual and that is the figure I take. Mr Wills suggested that in view of the recently depressed state of the construction industry pre-trial earnings should all be taken at the same rate but that post trial loss should be assessed at $3,000 per month. Quite rightly Mr Chan has pointed out there is no evidence as to future wage rates or availability of work for masons. In the nature of things there never is such evidence and a reasonable assessment has to be made. I do not consider $3,000 per month unreasonable and post trial loss of earnings will be based on that figure.

3. I heard evidence that about a year before his death the deceased earned a commission of $30,000 for obtaining a small development job of four villas for a contractor. There was evidence that such commissions were normal and had the deceased in the future been able to effect similar arrangements he would have been paid further commissions. Mr Wills invited me to take the view that there would have been such commissions and that they should be treated as adding an average figure of $750 to the deceased's monthly earnings. However, I find myself in agreement with Mr Chan who argues that the commission proved was an isolated incident and there was no evidence at all to show there would be others. I discount it entirely and therefore assess the deceased's loss of earnings at the rate of $2,500 per month to today and at the rate of $3,000 per month hereafter.

4. Both Mr Wills and Mr Chan agreed multiplier of 16, the 1st defendant has no view on the matter.

5. Loss of earnings are therefore assessed as follows:-

6. Evidence to show the "free balance" was unsatisfactory. He contributed between $700 and $1,000 each month to his mother. No evidence was adduced as to what he spent on himself. There was no evidence what his contributions would have been after his marriage.

7. The best assessment I can make is, following recent decisions, that 45% is the proper deduction to make from his total earnings to provide the assessed damages under this head. My assessment, therefore: is $559,500.00 less 45% = $307,725.00.

8. For loss of expectation of life Mr Chan concedes the conventional sum of $15,000 but Mr Wills urges a 50% increase following Li Ping Sum v Chan Wai Tong and others (1983 Civil Appeal No. 53); the conventional figure having been given in 1980. I decline to increase it. It is not an assessed figure arrived at in the same way as, for example, loss of future earnings or earning capacity, but a conventional figure more in the nature of a solatium. $15,000 is the amount assessed under this head.

9. In the Statement of Claim funeral expenses are claimed at the figure of $15,000. In evidence receipts have been produced totalling just over $17,130.00. The receipts were never properly explained and appear to cover traditional ceremonies, food and so on. Doing the best I can with the documents I assess the damages under this head at the sum originally claimed of $15,000.

10. There will be interest on the general damages at the rate of 2% per annum from the date of service of the writ to judgment and on the special damages at the rate of 7% per annum from the date of the accident to judgment. There will be no interest on the assessment of loss of future earnings.

11. There will be an Order for payment of the plaintiffs costs by the defendants and for the plaintiff's own costs to be taxed under the Legal Aid Regulations. There will be a certificate for counsel.

Representation:

Appearances:   Mr R.F.A. Wills for D.L.A. for Plaintiff

Mr Roy Chan of Messrs Ronald Ho & Co for the 2nd Defendant

1st Defendant unrepresented and absent