Leung Tik Hoi and Another v. Chan Koon Fai

HCA012089/1982

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

____________

BETWEEN

Coram: Master Betts in Chambers

Date of Hearing: 12 March 1984

Date of Delivery: 6 April 1984

__________________________

ASSESSMENT OF DAMAGES

__________________________

1. In January 1980 the deceased was killed by being run into by a motorcycle driven by the defendant in King's Road.

2. The writ herein was issued in December 1982 and Interlocutory Judgment entered by consent in January 1984.

3. The action was brought for the benefit of the deceased's estate under Law Amendment and Reform (Consolidation) Ordinance (LARCO) and under the Fatal Accidents Ordinance (F.A.O.) for the benefit of a sole dependant.

4. At the time of the accident the deceased was an 81 year old widower making his living as an illegal hawker and his dependant was his 39 year son who worked at home earning only a small income. It is claimed he was and is unable to go out to work in the normal way because he suffers from a skin disease.

5. At the outset the only claim for special damages; funeral expenses of $2,800.00; were agreed and are accordingly awarded in full. I will deal separately with the claims for general damages.

LARCO

1. Loss of expectation of life.

6. Two matters were raised under this head. The first was whether the conventional sum of $15,000 should be increased following the decision of the Court of Appeal in the Li Ping Sum case. Mr Pirie did not persuade me to take a view different from that I expressed recently in Chan Ng Mui (administratrix of Leung Wing Kin Tong) v Chan Lau Chu & another, 1982 No. 9989, that the figure should remain as it is.

7. The second matter was whether, in view of the age of the deceased, the award should be limited to a proportion only of the usual sum. For exactly the same reasons that I have not increased the figure I decline to reduce it. I award $15,000.

2. Loss of future earnings.

8. From the evidence called I am satisfied the Plaintiff has established that the deceased was a healthy, active man who would have gone on working for as long as he was able. Certainly I would accept that a proper multiplier would be 3.

9. I am also satisfied on the evidence that he was earning an average of about $2,400 per month. He contributed an average of $950 to household expenses and after other expenses was left with about $1,500 of which I assess $500 as free balance for the purpose of this assessment.

10. Mr Leung, however, argues that neither multiplier nor multiplicand have any but academic interest in this case. On the authority of Mak Yuk-kiu & another v Tin Shing Auto Radio CTR Ltd & another [1981] H.K.L.R. p. 77 at p. 81 et seq. and the cases therein cited the principle ex turpi causa non oritur actio precludes this claim based on the earnings from illegal hawking.

11. I agree.

12. Were I to be wrong the award I would have made would have been $500 × 12 × 3 = $18,000.

FAO

13. The Mak Yuk-kiu case does, however, differentiate between a claim under LARCO for loss of future illegal earnings and an FAO claim by dependants. Bearing in mind the distinction made by Roberts C.J., between activities which are illegal and those which are criminal I find a claim will lie in this case so long as the plaintiff can establish his dependency.

14. Much has been made in this case of the severity or otherwise of the plaintiff's eczema and whether it, in fact, prevents him from going out and earning a living in the usual way. I am bound to say that the medical evidence produced on his behalf was meagre but the fact remains that he has worked at home finishing materials practically the whole time since he came to Hong Kong ten years ago. He and his father lived together and supported one another. I am satisfied dependency did exist and would have continued for so long as the old man continued to work and earn.

15. The evidence shows that the deceased was contributing about $900 a month, on average, to household and the plaintiff contributed about $700. They lived together in a resettlement estate flat in Tuen Mun and the deceased took his lunch daily in the market when he had sold his stock. Of the deceased's contribution I assess 70% ($630) as the dependency and to it apply the same notional multiplier of 3 I would have adopted under the L.A.R.C.O. claim.

16. The dependency claim, therfore, is $630 × 12 × 3 = $22,680.00.

17. There is no merger of the claims under LARCO and FAO.

18. There will be interest on the agreed funeral expenses and the FAO award at the rate of 6.75% per annum from the date of death until judgment, and at the rate of 13.5% per annum on the award for loss of expectation of life from the date of the writ until judgment.

19. There will be an order for costs to the plaintiff and for taxation of the plaintiff's own costs under Legal Aid Regulations.

20. Certified for counsel.

21. Defendant's own costs to be taxed under L.A.R.

Representation:

Appearances: Mr Nicholas F.F. Pirie instructed by Messrs Rowdgett W. Young & Co for Plaintiff

Mr Frankie F.L. Leung instructed by Messrs Chan, Lau & Wai for Defendant