LEE YUET LING AND ANOTHER v. KWAN KWING KAI AND ANOTHER

                                                                                            1981, No. 3910

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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ASSESSMENT OF DAMAGES

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1. The deceased was the lawful wife of the 1st Plaintiff and employed by the 2nd Plaintiff when he was killed in a motor accident on Tuen Mun Road near Siu Lam on 21st June 1978. The deceased was driving a Landrover in the course of his employment when a collision occurred with a goods vehicle being driven by the 1st Defendant and which was owned by the 2nd Defendant. The question of liability in negligence for this accident was determined by consent before Deputy Judge Saied on 8th July 1985 when judgment was entered for the 1st Plaintiff against the 1st and 2nd Defendants for 50% of the 1st Plaintiff's claim with damages to be assessment by a Master. The 2nd Plaintiff's claim and the counterclaim of the 1st and 2nd Defendants were both dismissed with no order for costs.

2. The 1st Plaintiff's claim for damages was limited to a dependency claim under the Fatal Accidents Ordinance (FAO) as the 1st Plaintiff's claim for damages under the Law Amendment and Reform (Consolidation) Ordinance (LARCO) had been struck out as statute barred by Deputy Judge Caird on 5th February 1985. The deceased at the date of his death was 26 years of age and married to the 1st Plaintiff. They had 2 children from this marriage with the eldest daughter being 15 months old at the date of her father's death and the younger daughter being born on 5th July 1978 which was 14 days after the deceased's death. The deceased was in good health and earned $2,500.00 per month as an auto-electrician/driver working for the 2nd Plaintiff when he was killed. The parents of the 1st Plaintiff lived with the family and were supported by the deceased. The deceased also supported his own parents.

3. At the assessment of damages counsel for the parties had helpfully agreed on the following matters :-

4. The only evidence called was from the 1st Plaintiff, as widow of the deceased. On the question of the personal expenses of the deceased, she claimed he only spent $300.00 per month on himself which he used for meal and travel expenses and occasionally to bet on horse-racing. The 1st Plaintiff stated that the balance of $200.00 from the deceased's earnings of $2,500.00 after taking into account family expenses and her husband's personal expenses was banked in her savings account. The deceased had purchased a car shortly before his death which he used to transport himself and colleagues to and from their place of work. Even though the car expenses were shared, I am satisfied that in the long term the deceased's personal expenses would be increased to meet the expenses of running a car. I would assess the deceased's personal expenses as $400.00 per month at the date of his death. I would estimate that personal expenses of the deceased would have increased to $800.00 per month by the date of  the assessment taking into account inflation and the increased cost of living over the 7 years since his death. This figure corresponds with the agreed estimate of his present earnings.

5. On this basis the pre-assessment dependency can be calculated as follows :

6. Pre-assessment period - 7 years and 4 months -

7. Number of person in household = 6

8. So that multiplicand for this period is $513.00

                ($3,079 ?6 = $513.00)

On the question of whether the pre-assessment period should be broken up to provide for a limited period of support for the parents of the 1st Plaintiff living with them, the reality of the situation must be considered. Whereas, a multiplier of 3 years may have been appropriate for the father and mother of the 1st Plaintiff who were aged 65 and 58 years respectively at the date of the deceased's death from which date the multiplier must run, the reality of the situation is that they are still alive and would still have been supported by the deceased today. In these somewhat unusual circumstances a notional multiplier should not be applied for the dependency of either the parents of the deceased's wife or for the deceased's parents but rather that account be taken that they are still alive at the date of assessment. The result is that the pre-assessment damages should not be divided to provide for a lesser number of persons in the household after a certain period to coincide with an applied multiplier.

                (b)      Post-assessment period (8 years and 8 months)

9. Turning to the disputed special damages, the evidence of the 1st Plaintiff was that the total funeral expenses were about $10,000.00 I accept her evidence that she borrowed $6,000.00 from her deceased husband's employer to meet most of these expenses and that this amount was later deducted from the worker's compensation paid to her by the employer. I also accept the widow's evidence that other funeral expenses were paid by members of the deceased's family and that she has reimbursed her brother-in-law to the extent of $2,000.00 which he had paid as part of the funeral expenses of the deceased. Unfortunately, the receipts of the funeral expenses were destroyed some years ago. I am not satisfied that the 1st Plaintiff will have to reimburse other members of her husband's family over his funeral expenses so would limit her claim for special damages to $8,000.00.

10. I now consider the assessment and apportionment of the award for damages between the various dependarit:

FAO claims

As the deceased's contributory negligence has been agreed at 50% the total damages must be halved leaving a balance of $296,122.00. From this balance the parties agree that worker's compensation of $60,000.00 already paid out to the deceased's wife should be deducted so that the final figure for total damages is $236,122.00.

11. Counsel for the Defendants submitted that there were special reasons in terms of Section 48(4) of the Supreme Court Ordinance for no interest to be awarded on the damages allowed. The special reasons relied upon were, firstly, the delay by the solicitors for the 1st Plaintiff in prosecuting this claim arising from the fatal accident on 21st June 1978 over 7 years ago, and secondly, that this delay resulted in the LARCO claim being struck out as statute barred thereby giving rise to an inflated FAO claim for dependency as in normal circumstances the claims would have been merged. The authority cited in support of this submission was Lord Denning's judgment in the English Court of Appeal decision Jefford and Another v. Gee [1970]2 Q.B. at page 151 where he said that in exceptional cases, such as when one party or the other has been guilty of gross delay, the court may diminish or increase the award of interest, or alter the period for which interest is allowed. I am satisfied that there has been gross delay on the part of the 1st Plaintiff in prosecuting this action and that it is an appropriate case to reduce the usual rates of interest awarded on assessed damages. Accordingly, interest on the pre-assessment loss of earnings and the special damages will be reduced to 3% to run from the date of the accident to the date of this assessment. There will be no interest awarded on the post-assessment loss of earnings. There will be an order for costs on this assessment to the 1st Plaintiff with a certificate for counsel.  1st plaintiffs' casts at be taxed in accordance with Legal Aid Regulations.