LAW WAI YING v. LO YAN KI AND ANOTHER

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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ASSESSMENT OF DAMAGES

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1. This assessment arises from a motor accident at 6.30 a.m. on 9th November, 1979. The deceased, on whose behalf this action was brought, was crossing Hennessy Road from north to south as a pedestrian when she was struck by a public light bus being driven by the lst Defendant. The public light bus was owned by the 2nd Defendant. The deceased, who was 99 years of age, received fatal injuries in this accident as she vas certified dead on arrival at Tang Siu Kin Hospital.

2. The issue of liability in negligence for this traffic was determined at a hearing before Deputy Judge Caird in January 1985 at which the 1st Defendant did not appear and was not represented. The Deputy Judge found both parties to be negligent with the constribution of the 1st Defendant as the driver of the public light bus to be 75% and the deceased pedestrian at 25%. On the question of whether the 2nd Defendant as owner of the public light bus was vicariously liable for the negligence of the 1st Defendant as the driver it was held that the 2nd Defendant in the circumstances of this case was not responsible for the lst Defendant's actions in driving the public light bus involved in this accident. The insurance company with whom the 1st Defendant held a current policy for third party insurance at the time had since the date of the accident gone into liquidation.

3. As was the case at the trial to determine the issue of negligence, the lst Defendant could not be located to serve him with notice of this assessment of damages. This assessment had previously been fixed for 25th June 1985 on which date the Court was not open due to a typhoon warning. The assessment of damages was allowed to proceed in the absence of the 1st Defendant and the only party present was Counsel for the Plaintiff.

4. Mr. Michael OZORIO as Counsel for the Plaintiff produced the following documents at this assessment:

 

(1)	Re-re-re-amended Writ and Statement of Claim dated the 21st January l985;
(2)	Re-amended Statement of Defence of the 1st Defendant dated 7th November 1983;
(3)	The judgment of Deputy Judge Caird dated 25th February 1985 on the issues of negligence and vicarious liability.
(4)	A bundle of documents marked Exhibit P1 admitted under Section 47 of the Evidence Ordinance and Order 38 of the Rules of the Supreme Court as being relevant to the assessment of damages.

 

5. Four witnesses were called on behalf of the Plaintiff to give oral evidence. The first witness called by the Plaintiff was MA Kam-ho, a street newspaper vendor who gave evidence relating to the estimated earnings of the deceased. The deceased held a fixed pitch hawker licence to sell newspapers in Hennessy Road at the date of this accident in 1979. The witness, who knew the deceased and was familiar with her newspaper business, estimated her gross monthly income in 1979 to be between $9,000 and $10,000. Furthermore, the witness estimated that the deceased, if she was still. in the same business, would he earning between $17,000 and $18,000 a month in 1985. The second witness called was LAW Shiu-ying, who is a sister of the husband of the deceased. She gave evidence to confirm the marriage of her brother, LAW Wai-ying to the deceased in China 30-40 years ago. This witness assisted the deceased in her newspaper business from 6 a.m. to 10 a.m. each day for which she was paid $1,200 a month. She would sell newspapers and look after the stall while the deceased and her husband delivered newspapers to offices and business as in the area. The withess stated that the deceased was in good health at the date of the accident and that she was hard-working, diligent and without bad habits. She confirmed that the deceased in her business sold over 1,000 Chinese and English newspapers each day.

6. The third witness called was LAW Shiu-fan, the daughter of the deceased. She stated that she is now 31 years of age and single. She gave evidence that she is a data processor employed by the Hong Kong Government and earns $4,040 per month. In November, 1979 the witness said she was only earning $l,000 a month and lived with the deceased, and her father. She confirmed that her mother worked long hours from 5 a.m. to 9 p.m. each day in her newspaper business. She said that the monthly food expenses were $3,000 as they had to eat out most of the time because the deceased was not available to prepare meals at home. The family employed a part-time amah who was paid $300 a month. The witness said that rent for the premises was $1,600 per month and utility charges $160 per month and that the total household expenses including meals were $6,000 per month which were paid for by the deceased out of the profits from her newspaper business. After her mother's death, the witness continued to live with her father until June 1980 when they could no longer afford the rent for the premises. She has lived separately from her father since that date and supported herself. The witness said her father lives on his own and is supported by her brother ($l,500 per month) and herself ($600 per month). The witness said that she would prefer to live with her father as he is sometimes unwell. Her father being unemployed, has no source of income and does not receive public assistance.

7. The fourth witness was LAW Wai-ying, the husband of the deceased. He gave evidence that he was now 66 years of age and that their eldest son is married with 3 children and has lived apart from the family since 1977. He said that their second son died in March 1979. He confirmed that he now lives alone in a cubicle. The witness said he assisted the deceased in her newspaper business and that he worked from 5 a.m. to 7 p.m. with a 2 hour break in the afternoon. He stated that the deceased worked from 5 a.m. to 9 p.m. with a similar break. He confirmed that the deceased spent $500 p.m. on taxi fares to collect their newspapers each morning from a wholesaler. The witness claimed that the net monthly profit from the deceased's newspaper business in November 1979 was $6,000 approximately after deducting expenses of $1,600 (being wages of $1,100 to the second witness for helping out in the business and taxi fares of $500). The business could not continue after his wife's death, as fixed pitch stall hawker licence was in the deceased's name. The witness said that his wife as unable to accumulate any savings from the profits of the newspaper business which were used to meet household and family expenses. He claimed that the net monthly profit from the deceased's newspaper business today in 1985 would have been $13,600 approximately. He stated that his wife would probably have continued in the newspaper business for another 6 years after 1979 until she was 66 years of age. This witness confirmed that his wife's funeral expenses, which are supported by receipts, amounted to $6,595. Both this witness and the daughter of the deceased confirmed that a deposit of $3,200 was forfeited to the landlord in 1980 when the rent could no longer be paid for the premises occupied by the family and they where forced to move out within the term provided in the lease. The deceased's husband confirmed that he is wholly supported by his married son and his daughter, the third witness.

8. Counsel for the Flaintiff submitted that an appropriate multiplier in this case was 7 years from the date of the accident in 1979. Mr. Czorio was able to produce several authorities to support this figure on the basis that the deceased at 59 years of age was likely to continue working in her newspaper business for as long as she remained fit and healthy enough to do so. While this figure at first glance may been seen to be on the high side, I would be prepared to adopt it taking into account all the circumstances of this case.

9. Turning to the question of the earnings of the deceased from her newspaper business in 1979, the evidence supports a net overall monthly profit of $6,000. As the driving force in the business the deceased's share should be allowed at 3/5ths for herself ($3,600), whereas, the remaining 2/5ths of the profit ($2,400) should be the husband's share. This was the division of earnings suggested by Mr. Ozorio with which I agree, although initially I may have been prepared to allow a higher proportion of the monthly earnings to the deceased. The daughter - LAW Shiu-fan - on the evidence presented was dependant on her parents in November 1979 for $1,800 per month and the deceased's share of that dependency @60% was $1,080. The deceased's 1/3rd share of the total monthly expenses of $6,300 for the 3 member family was $2,100. When this sum is added to the deceased's 60% share of the monthly earnings ($2,100 + $2,400 = $4,500) there remains a surplus or free balance of $1,500. By adding the deceased's share of her daughter's dependency to the surplus from the deceased's monthly earnings ($1,080 + $1,500 = $2,580), the resulting total of $2,580 is approximately 72% of the deceased's boy, share of monthly income ($3,600). The appropriate multiplicand for the deceased's earnings at the date of the accident in November 1979 is therefore this figure of $2,580 per month.

10. The deceased's earnings from her newspaper business would have increased to approximately $13,600 which would have been reduced by outgoings (including her hawker licence fee) to $10,600 net profit per month. The deceased's 60% share of this profit would have been $6,360 per month with the balance being her husband's 40% share. By applying the same 72% share of income to this projected monthly income of $6,360 for 1985 earnings by the deceased the available surplus is $4,579. The median of the deceased's earnings in November 1979 and her assessed earnings today would be $3,579.50 ($2,580 + $4,579 = $7,159÷2 = $3,579.50).

11. Pre-assessment loss of earnings by the deceased from November 1979 to September 1986 is therefore the multiplicand of $3,579.50 x 71 months = $254,144.50. Taking into account the multiplier of 7 years (84 months) allowed in this case, the balance of 13 months for the post-assessment loss of deceased's future earnings can be assessed as follows: -

Projected monthly share of earnings today at $4,579 x 13 months = $59,527.00.

12. The deceased's loss of expectation of life will be allowed at the conventional figure of $20,000. Special damages for funeral expenses of $6,595 (for which receipts were available),and the loss of the rent deposit of $3,200 when the tenancy of the family premises was terminated prematurely, will both be allowed. A belated amendment to the prayer in the statement of claim was sought by Counsel for the Plaintiff as the basis for a claim for loss of consortium. This amendment was granted and a nominal award of $1,000 will be awarded to the husband on the basis of the permanent loss of his wife's society. In the circumstances of this case where the deceased wife was working from 5 a.m. to 9 p.m. each day any claim for loss of her services as a wife could not be substantiated.

13. A summary of the assessment of damages is as follows: -

(l)     Pre-assessment loss of earnings	$254,144.50
(2)     Post-assessment loss of earnings	59,527.00
(3)     Loss of expectation of life	20,000.00
(4)     Loss of wife's consortium	1,000.00
(5)     Special Damages- Funeral Expenses	6,595.00
- Loss of rent deposit	3,200.00
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TOTAL DAMAGES	$344,466.50
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The total damages have to be reduced by 25% to allow for the deceased's contributory negligence as determined at the trial in February last. The final total of damages ALLOWED in this action is therefore 75% of $344,466 - 50 which is rounded off to $258,350.

14. As the deceased died intestate the Law Amendment and Reform (Consolidation) Ordinance provides that the surviving husband is entitled to the first $50,000 of the damages with the balance being shared between the husband as to one half share and between the two surviving children as to the other share. So that the husband's share is $50,000 + $104,175 ($208,350 ÷ 2) = $154,175. The children's share is $52,087 - 50 each ($104,175÷2). The daughter's share would therefore exceed any award she may be entitled to as a dependant under the Fatal Accidents Ordinance, particularly, as she has lived apart and not been dependant on her parents since June 1980.  In these circumstances a separate award under Fatal Accidents Ordinance is not required in this case as the awards must merge in any event.

15. There will be interest at 2% on the general damages for non-economic loss, that is, on the awards for loss of expectation of life and loss of consortium to run from the date of the issue of the writ until the date of judgment on this assessment. Interest on the special damages and the pre-assessment loss of earnings will be at 5.6% from the date of death in this accident to the date of judgment on this assessment. There will be no interest applied to the post-assessment loss of earnings. There will be the usual order for costs to the Plaintiff on this assessment with a certificate to issue for Counsel, whose assistance on this assessment was much appreciated. The Plaintiff's own costs are to be taxed in accordance with Legal Aid Regulations.