Wong Yan Mui v. The Kowloon Motor Bus Co (1933) Ltd and Another

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

ACTION NO. 994 OF 1969

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Coram: B.L. Jones, Assistant Registrar

Date of Judgment: 30 May 1970

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CERTIFICATE OF ASSESSMENT OF DAMAGES
(Order 37, rule 1 of the Rules of the Supreme Court, 1967)

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1. This is an application for damages to be assessed under the Law Reform (Miscellaneous Provisions) Ordinance, Cap. 271, and the Fatal Accidents Ordinance, Cap. 22, pursuant to the Order of the Honourable Mr. Justice Huggins dated the 21st March, 1970.

2. The Plaintiff is the mother and administratrix of the estate of LEE Shui-sang alias LI (or LEE) Yung-sang deceased, her son who died as a result of an accident that occurred on the 18th August, 1968.

3. The deceased on the date of the accident was walking up a hill in the New Territories when a public omnibus owned by the 1st Defendants and driven by the 2nd Defendant mounted the curb and ran down the hillside hitting the deceased.

4. Liability for the accident has not been disputed by either of the Defendants.

5. The claim under the Fatal Accidents Ordinance has been brought on behalf of the Plaintiff, now aged 48, and the deceased's four brothers, LEE Wing-on, aged 14, LEE Wing-kwong, aged 12, LEE Wing-wah, aged 10, and LEE Wing-keung, aged 6.

6. However, although a claim can now be brought on behalf of the brothers under the Fatal Accidents (Amendment) Ordinance 1970, this will not apply in this case, for by Section 7 the new list of dependants cannot benefit unless the death occurred after the commencement of the Ordinance.

7. The deceased was born on the 26th March, 1953 and was therefore aged 15 years and 4 months at the date of his death.

8. The Plaintiff is a widow, her husband having died on the 9th June, 1968.

9. The deceased was the eldest son of the family and attended school from 8 a.m. to 12.00 p.m. and from 12.30 p.m. to 9.00 p.m. he would help the Plaintiff who is a hawker of fruits at her stall. Since her son's death, the Plaintiff says that she has had to employ her third aunt to assist her and pays for her services between $8.00 -$10.00 per day depending upon the work that has to be done. However, in her evidence the third aunt says that she receives a fixed sum of $10.00 per day.

10. Shortly before his death, it had been arranged for the deceased to be engaged as an apprentice at a garage in Kowloon and according to the evidence, he would appear to have had good prospects. I am told that the deceased was a strong and healthy boy.

11. Under the Law Reform (Miscellaneous Provisions) Ordinance, sums can be awarded for loss of expectation of life, pain and suffering and funeral expenses.

12. I have been referred to Lam Hau v. Lee Ting D.C.L.R. 1958 p.178 where $2,500.00 was awarded for loss of expectation of life of a Chinese girl aged 9 years.

13. The principles for assessing damages were enunciated in Benham v. Gambling 1941 A.C. 157 and are well-known. The value is based upon a predominantly happy life.

14. Having regard to the fall in value of money and the lack of a National Insurance Scheme in Hong Kong, I shall award the sum of $7,500.00 as damages for loss of expectation of life.

15. No evidence was adduced before me of pain and suffering, although it was pleaded. Accordingly, I am not in a position to make an award under this head.

16. $2,000.00 was claimed in respect of the funeral expenses, but the evidence given was not very satisfactory in the absence of documentary proof. The Plaintiff says she paid $800.00 for the coffin; $200.00 for the burial ground; $400.00 to the Taoists and $100.00 for clothes. She said the balance was paid for friends, relatives and transports.

17. The Defendants are entitled to strict proof of this expense and in view of the Plaintiff's failure to provide such proof, I shall award the sum of $1,500.00 for the funeral expenses.

18. The sum of $50.00 for damaged clothing was properly abandoned by the Plaintiff.

19. The other claim pleaded under special damage for loss of wages is misconceived and no award can, of course, be made.

20. I now come to the damages to be awarded under the Fatal Accidents Ordinance in favour of the Plaintiff for loss of dependency.

21. I accept that in Hong Kong a child owes more to his parents than would perhaps be the case in England or other parts of the world and that there would be some pecuniary loss as a result of the child's death. However, account must be taken of the cost to keep the child. The estimated figure given by the Plaintiff to keep the family is between $400 -$500 per month and at a minimum figure it would, I think, have cost the Plaintiff about $100.00 per month to keep the deceased. From the evidence given by the third aunt, the second son of the Plaintiff is now being taught the business of a hawker and he will probably be able to take the deceased's place in this respect.

22. If the deceased had become apprenticed at the garage in Kowloon, he would in the first year have received $50.00 -$60.00 per month plus board and lodging; in the second year $200.00 per month plus board and lodging and in the third year $280.00 per month plus board and lodging. In this event, in the first year at least there would have been no loss of dependency. The deceased may, however, have contributed to the Plaintiff's support at a later date, but this is purely speculative. The other sons would also in due course probably contribute to the Plaintiff's support and allowance must be made for this fact. If the third aunt worked for 20 days a month, the cost to the Plaintiff will be $200.00 per month. A minimum sum to be deducted for the keep of the deceased would have been $100.00 which will result in a loss of $100.00 per month. A reasonable period for such dependency is 3 years and accordingly the award I shall make under this head is $3,600.00. This sum must be set off against the damages awarded under the Law Reform (Miscellaneous Provisions) Ordinance for loss of expectation of life.

23. The amount of damages is therefore assessed as follows:-

Fatal Accidents Ordinance	Nil
Law Reform (Miscellaneous Provisions)Ordinance	$7,500.00
Funeral Expenses	$1,500.00

24. The total award is $9,000.00.

25. Certificate fit for Counsel

Legal Aid No. 752 of 1968.