CHAN YEE MEI, the administratrix of the Estate of LEUNG MEI KEUN, deceased v. LEUNG CHI FEI AND ANOTHER

HCPI 370/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 370 OF 2006

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J U D G M E N T

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1.  This is a fatal accident claim.  On 9 April 2005, Madam Leung Mei Kuen, the Deceased, then aged 72 years, was knocked down by a vehicle owned by the 2^nd defendant and driven by the 1^st defendant, his employee, at the junction of Kiu Kiang Street and Un Chai Street in Kowloon.  She died on 14 April 2005.  The claim is brought by the Deceased’s daughter, Madam Chan Yee Mei, as administratrix of the Deceased’s estate.

Liability

2.  The plaintiff claims that the 1^st defendant drove carelessly and also that the vehicle was in defective condition in that it had broken springs.  She relies on convictions of the 1^st and 2^nd defendants for related offences.  In fact the only important conviction is that of the 1^st defendant, after trial, for careless driving; there is no evidence that the condition of the vehicle was in any way relevant to the accident.  The effect of the conviction is of course to shift the onus to the 1^st defendant to satisfy the court that he was not negligent; Stupple v Royal Insurance Co. Ltd [1971] 1 QB 50.

3.  The defendants plead by way of defence that the accident was caused wholly or materially contributed to by the negligence of the deceased when crossing the road at the junction.  

Evidence on Liability

4.  No oral evidence was given on behalf of the plaintiff.  She had to rely on the sketch plans and photographs made by the police, and the statements obtained by them.  The 1^st defendant gave evidence in his own defence.  The 2^nd defendant did not give evidence. 

5.  At about 5:15 p.m. on 9 April 2005, the 1^st defendant drove the 2^nd defendant’s light goods vehicle, registered number FR 2069 towards the south-west on Kiu Kiang Street and stopped at a red traffic light at the junction with Un Chau Street.  The vehicle was the first at the lights, and about in the middle of the road.

6.  When the lights changed, the vehicle moved off and turned right into Un Chau Street north-west-bound, which was a one-way road with three lanes delineated with surface markings.  As the vehicle turned into Un Chau Street it struck and knocked down the Deceased. 

7.  From the police sketch plan it appears that the point of impact was about two thirds of the way across Un Chau Street towards the north-east, near the line of the markings between the middle and right lanes and about in line with the inner part of the pedestrian footway on Kiu Kiang Street.

8.  The defendant’s evidence is that when the lights changed he moved off in second gear and steered right into Un Chau Street at about 15 kilometres per hour.  As he moved off he looked left to check for traffic coming along Un Chu Street.  He checked his right side mirror, because the vehicle was rather long, to check that it was clear.  He then looked right again and saw the old lady, in the middle to the left side of his windscreen, and facing towards Kiu Kiang Street.  He swerved left and braked but was unable to avoid the collision.  The vehicle hit the Deceased who fell to the right and went under the wheels.

9.  The layout of the junction as described by the 1^st defendant and seen from the police photographs and sketch plan is as follows.  There were three “green man” pedestrian crossings at the junction, but none across the mouth of Un Chau Street into which he was turning.  The pavement on both sides of Un Chau Street at the right hand side of the junction and the carriageway are divided by iron railings and pedestrians are not supposed to walk across that part of the carriageway of Un Chau Street.

10.  The 1^st defendant said in his witness statement, which he adopted, that he believed that the Deceased emerged from the right upper hand corner of the junction, across the railings dividing the pavement and the carriageway of Un Chau Street, when she tried to cross that carriageway.  That would mean that she moved from his right to his left.  In oral evidence, however, he described the Deceased as facing across the crossing from his left to his right and marked the sketch plan accordingly. 

11.  In fact although the railings go round the kerb on the corner at the northern side of Un Chau Street, i.e. the one the 1^st defendant describes as the right upper hand corner, the railings on the other side of Un Chau Street, i.e. the corner past which the left side of his vehicle would travel as it turned into Un Chau Street, are not continuous and pedestrians can get on or off the carriageway at that point.

12.  The plaintiff says that the Deceased, who used to live in Fuk Wing Street, Sham Shui Po, used to go back there to play mahjong with old friends.  In a statement to the police, the plaintiff said that as far as she knew, the Deceased played mahjong with neighbours at a shop at 194 Fuk Wing Street and would then walk to the bus station at Castle Peak Road to get the bus home.  Under cross-examination she agreed that the Deceased had many old friends in Fuk Wing Street.

13.  From the street map it appears that the Deceased’s most direct route would have taken her across the carriageway from the 1^st defendant’s left to his right, as he turned into Un Chau Street.  In other words she would have walked on to the carriageway at the corner where there were no railings, but on the other side she would have had to walk round the railings in order to get on to the footway to go along Kiu Kiang Street to Castle Peak Road.

14.  I find, on the basis of what the defendant tells me, and what is contained in the above paragraph that the Deceased was crossing from the 1^st defendant’s left to his right, at the time of the accident.

Liability of the Defendants

15.  The particulars of negligence alleged include the usual ones of not paying adequate attention, driving at excessive speed in the circumstances and failing to keep a proper lookout.

16.  The point of impact, as I have noted, was about two thirds of the way across the mouth of Un Chau Street.  No doubt the 1^st defendant was correct to check for traffic coming from his left, and to check behind for clearance, but he should have had ample time to do that, and look into the junction into which he was turning as well.  If he had done so he would necessarily have been able to see the Deceased crossing.  But he did not.  His use of second gear, which he says was his normal practice, suggests that the vehicle was lightly loaded and would be able to accelerate quickly.  The only sensible inference, in my view, is that the 1^st defendant did not keep a proper lookout or pay proper attention, and moved off too quickly.

17.  I have no doubt that the 1^st defendant drove negligently, and so find.  There is no dispute that the 2^nd defendant is vicariously liable for the negligence of the 1^st defendant.

Contributory Negligence

18.  Mr Sakhrani, for the plaintiff, argues that the 1^st defendant was solely responsible for the accident.  There is no evidence that, as pleaded, Deceased failed to keep a proper lookout, crossed at the point where there were iron railings, failed to heed the presence of the vehicle in time, suddenly walked out into its path and failed to give precedence to it.  The 1^st defendant agreed that even if he had seen someone close, he could have stopped in time.  At the end he agreed that if he had kept a proper lookout he would have seen the Deceased.  The accident was caused entirely by the 1^st defendant because he did not look.  He argues that there was no contributory negligence but if such be found, it should be no more than 10%.

19.  Mr Lim, for the defendant, says that the real issue on liability is that of contributory negligence and for the reasons he outlines, says that there should be a finding that the Deceased was 80% to blame.

20.  The Deceased was familiar with the area.  The junction was provided with light-controlled pedestrian crossings which the Deceased could have used.  Granted that these were less direct, she nevertheless chose to cross Un Chau Street directly at the north-east side of the junction where she would have known that a green light on Kiu Kiang Street permitted vehicles to turn across her path.

21.  It is of course true that a green light is not a licence to a driver to proceed unrestricted, as the 1^st defendant knew, but any pedestrian knows that it is dangerous to cross a road across turning traffic; you cannot count on the drivers to see you and stop.

22.  It is also true that there is no evidence that the Deceased went over or around railings to get on to the carriageway, as pedestrians sometimes do, but she did cross at a point where, to get back on the footway she would have had to go round the railings on that side.  Overall she chose the more dangerous course.

23.  The most important point, I think, is that the vehicle was highly visible and noticeable.  It is called a light goods vehicle but that never tells the whole story.  In fact it was a big van, used for transporting furniture for the IKEA household furnishing company, and it was got up in that company’s livery, in yellow paint with the blue company logo on the sides and rear.  It was very noticeable and any pedestrian could see it easily.  The clear inference is that the Deceased cannot have been keeping a proper lookout or she would have seen the vehicle coming.  She appeared on its left front and the inference is that, if she had looked and seen the vehicle, she would have been able to stop and let it pass.

24.  In order to apportion contributory negligence the court must take into account two matters, namely causative potency and blameworthiness; Brown v Thompson [1968] 2 All ER 708.  Each case proceeds on its own facts and although counsel have cited similar cases, I do not think these help much.

25.  It seems to me that both driver and pedestrian were equally to blame for not keeping a proper lookout.  The Deceased’s taking the more dangerous course should also be taken into account.  But pedestrians are to be expected to cross roads at junctions even where they could cross more safely by a longer route.  However the causative potency of the 1^st defendant’s negligence was the greater.  If a driver looks and sees a pedestrian crossing the street into which he is turning, he should be able to stop easily; indeed the 1^st defendant admits that he could have done so.  It is usually easier for the driver to brake — it is a matter of reflex — than for a pedestrian, especially an elderly one, to get out of the way.  I take the view that the blameworthiness and causative potency were greater on the 1^st defendant’s side.  I find that the 1^st defendant was two thirds and the Deceased one third to blame.

Quantum

26.  The Deceased was born in 1933 and was aged 72 years when she died.  She was married in 1958 and widowed in 1968 and she left five children, namely Chan Yin Mei, Chan Po Mei, Chan Yee Mei, Chan Po Mei and Chan Man Hong.  She lived with Chan Yin Mei and that lady’s husband, Wong Po Hing at Tai Wai in Shatin.

27.  Under the Fatal Accidents Ordinance, Cap. 22 the plaintiff claims for bereavement in the sum of $150,000 and special damages in the sum of $133,490 and these claims are agreed.  In addition, the plaintiff was allowed to amend her Revised Statement of Damages to plead claims for the value of the Deceased’s services and for loss of maternal attention.

28.  Under the Law Amendment and Reform (Consolidation) Ordinance, Cap. 23, the plaintiff claims loss of accumulation of wealth from four sources, namely:

(1)    Employment with Tec-Po Car Services Ltd. (“Tec-Po”) at a salary of $3,900 per month;

(2)     Regular monthly cash payments from her children, totalling $11,500 per month;

(3)     Old age pension of $705 per month;

(4)     Interest accruing from various fixed deposits.

29.  The plaintiff was allowed, also at the last minute, to put in further evidence of the finding of a sum of $300,000 in cash among the Deceased’s effects after her death, which would also require to be taken into account for the LARCO claim.

The Issues

30.  In brief, the plaintiffs case is that the Deceased was employed by Tec-Po which was operated by Chan Yin Mei and Wong Po Hing, and living in family with them, entirely free of any contribution.  At the same time she was performing gratuitous child-minding and other services for them and for her other children and their families.  She was in receipt of payments from all her children by way of support, as was their filial duty.  She also had her savings, and accumulation from these is to be taken into account.

31.  The defendants’ case is that the Deceased was a retiree and the claim of employment is bogus.  In any event there is no evidence of savings from the alleged salary.  They say that any accumulation of wealth from contributions from the children is not recoverable because the children are in any event the beneficiaries of the estate on intestacy.  As to the old age pension, they say that if this was accumulated, it was at the expense of payments out elsewhere.  They argue that the tortious death had no effect on the accumulation of interest on the capital, which would continue thereafter, and they attack the evidence of the finding of the $300,000 cash as being untrue.  They also argue that the loss of services, if quantifiable, would be minimal, and that the claim for maternal attention is misconceived, given the ages of the Deceased’s children.

32.  I will deal with the claims in the order in which they appear in the latest Further Revised Statement of Damages.

Loss of Services

33.  The plaintiff claims that in addition to her work, which was part-time, the Deceased performed babysitting and child care services for her grandchildren.  She claims the cost of a full time domestic helper at $3,400 per month for 10 years, i.e. $408,000.

34.  The Deceased lived in family with her daughter Chan Yin Mei, and that lady’s husband and son, now aged 11.  Another child was born on the day the Deceased died.  The evidence of what services the Deceased performed for the family is contradictory.  According to Mr Wong, he would himself drive the boy to school in Wanchai every day.  The boy would come home by himself on the tunnel bus and be collected at the Hung Hom Railway Station; sometimes his wife would collect the boy and sometimes the Deceased would do that.  According to Madam Chan, however, the Deceased accompanied the boy to the school every morning; and although she and the Deceased shared the duty of bringing the child home, when they did he was always accompanied, right from the school gate.

35.  Both husband and wife say that the Deceased used to look after the boy when he was home, and help with his homework.  She would also share the housework with the Filipina domestic helper, and instruct the helper on what to cook and so on.  In fact, from cross-examination it is pretty clear that at most, the Deceased supervised and instructed the helper. 

36.  Madam Chan at first tried to say that the Deceased looked after both children, but then, when it was pointed out that the second child was not yet born, said that the plan was that the Deceased would look after the baby once it was born.  She says that since the Deceased died, she has had to hire two part-time domestic helpers to look after the children.  Both are Chinese, and it appears from Mr Wong’s evidence that there is still a Filipina helper as well, though a different one from the one employed when the Deceased was alive.

37.  Evidence from the other children as to what the Deceased did for them is rather vague.  It seems that she visited Chan Man Hon and his family once a week and Chan Po Mei, who lived nearby, four or five times a week, when she took some food for the 7-year-old daughter and played with her.  Chan Yee Mei would see the Deceased at least once a week, and sometimes would go with her on errands for Tec-Po.  The Deceased would see Chan Yee Mei’s children about once a month, to have tea or a meal together.

38.  There is no real evidence that the Deceased performed any services for the other children and their families.  Really what she did was just to come and see them, as any grandmother might.  She may have sometimes taken food for Chan Po Mei’s daughter but she was not obliged to do any child-minding because there was a domestic helper.

39.  As to the immediate family, the Wongs, as I have indicated, the evidence of what was done for the child is contradictory.  I cannot accept that she took the boy to school every day.  Overall I can only find that she did what any resident grandmother might do; sometimes she collected the boy from the station, and she helped a bit with the homework.  She might have told the helper what to cook, and have been “fussy” with her but she did not really have to do anything much herself.

40.  As to the plans for the future, no doubt the family would have to make arrangements to look after the new baby, but I do not think it would be reasonable to expect a 72-year-old grandmother to do everything for the baby, in a household sufficiently well-off to employ a helper. Madam Chan says that part-time help was found, but that is the sort of thing that might be expected anyway.

41.  I am not at all satisfied that the Deceased performed duties equivalent to those of a full-time domestic helper or that, as a result of her death, it has been necessary to employ someone to replace her services.  If I had been so satisfied I would still have considered a multiplier of 10 to be wildly excessive given the Deceased’s age.

42.  I accept that the Deceased made herself generally useful to the Wongs and their first child, and to her other children and their families, as grandmother.  I think her services would have some value but that only a nominal award is appropriate.  I award $40,000.

Loss of Maternal Attention

43.  The plaintiff’s case is that the Deceased had a close and genuine bond with all her children.  This is shown by their evidence of what she did for them and their own children, and also by the fact that they all paid her some money each month as contributions to her support. 

44.  In support of this claim Mr Sakhrani cites the case of Chan Ki v Travel Trade Communication Network and Marketing Services Ltd & Anor [1998] 2 HKC 57, where Master Cannon made an award for loss of personal attention and maternal affection in favour of three adult children in their twenties and one child aged 17 who had lost their mother.  They had all lived in family with the mother before her death.  The Master considered various authorities and awarded $10,000 each to the older children and $20,000 to the youngest.

45.  Mr Lim, for the defendants, says that where awards have been made, they have been made to young children and at most persons in their 20s living at home.  The Deceased’s children are much older and, save for Chan Yin Mei, did not live with their mother.  They are compensated by the bereavement award.

46.  The basis for this kind of claim seems to be found in Hay v Hughes [1975] QB 790 where Lord Edmund-Davies, having stated the rule that only pecuniary loss was to be awarded for loss of services, went on to say that it might have to be considered whether

“…it may be argued that the benefit of a mother’s personal attention to a child’s upbringing, morals, education and psychology, which the services of a housekeeper, nurse or governess could never provide, has in the long run a financial value for the child, difficult as it  is to assess.”

47.  This and various other cases, including Regan v Williamson [1976] 1 WLR 305 and Mehmet v Perry [1977] 2 All ER 529, which Master Cannon considered in her judgment cited above, are to be found in The Quantum of Damagesby Kemp & Kemp at paragraphs 29-054 and 29-055, under the heading “Loss of Services” and the sub-heading “Uplift in the case of claims for loss of wife and mother”.  The claim is in effect for an uplift on the claim for loss of gratuitous services. 

48.  I cannot see that this claim for uplift is appropriate here.  The children are all long since grown up, being aged between 43 and 48, and have families of their own.  They are long past needing a mother’s personal attention to their upbringing, morals, education and psychology.  This claim therefore is to be disallowed.

Loss of Accumulation of Wealth

49.  At the time of her death the Deceased had four Hong Kong dollar bank accounts, containing over $580,000 in total; the figures are set out in the Further Revised Statement of Damages.  There were also Canadian dollar accounts in joint names of Chan Yin Mei and the Deceased; the total in them is about C$860,000.  The evidence is that all the money in these latter accounts was beneficially owned by the Deceased; Madam Chan’s name was on them for the sake of convenience.  There is nothing to gainsay this evidence and I accept it.

50.  The old age pension was paid into the first shown of the above Hong Kong dollar accounts and is the only one which shows any movement.  The others appear to contain proceeds of deposits in other currencies transferred to Hong Kong dollars.

Employment

51.  The plaintiff says in her witness statement that the Deceased, having emigrated to Canada in 1990 but returned in 1996, was then employed by Tec-Po and continued in employment there until her death.  She was an assistant clerk and received $3,900 per month.  She had to courier documents, cheques and car keys, go to banks, buy and collect supplies and spare parts for the garage, and clean the garage and assist the staff there.  In oral evidence the plaintiff said that she knew this because she sometimes went with the Deceased when she was acting as a messenger, or to buy cleaning materials for the garage.

52.  Mr Wong said in his witness statement that the Deceased was employed as a part-time clerk doing work which was easy and not strenuous.  Madam Chan in her statement said much the same as the plaintiff.  However, under cross-examination, the witnesses’ recollection of the extent of the work done, and the hours worked became much less clear.  For example, at the beginning of Mr Wong’s cross-examination, he had the Deceased working from 9am to 6 pm daily, but by the end of it he had her coming to the garage when she was called, also coming in on her own when she had the time, and coming down to go and have lunch with Mr Wong and Madam Chan.

53.  The overall impression of the evidence was that the witnesses were trying to paint a picture of the Deceased doing quite a lot of work in the garage and at the same time playing a major role in the family lives of Mr Wong and Mrs Chan and their son, as well as in the lives of her other children and their families.  It seems to me that the witnesses have set out to exaggerate in both cases.

54.  The witnesses say that the Deceased was paid her salary by way of cash cheques, for which the stubs have been produced, and statements have been produced to show that the money went out.  The Deceased was apparently paid her salary by the female clerk at the garage, who also wrote up a ledger, but the clerk has not been called to speak to this.  There is no documentary evidence of receipt of this money by the Deceased.

55.  The evidence of employment is contradicted by documents containing information from the plaintiff herself.  The death certificate shows the Deceased as “Retired”, and this information came from the plaintiff.  She said in a statement to the police that the Deceased had no work and the siblings paid her living expenses.  In a Statement in Lieu of Affidavit to the Estate Duty Office, the plaintiff described the Deceased as a “housewife” with “nil income”.

56.  The plaintiff explains these contradictions by saying, in effect, that she was upset when she gave these statements; she felt “hollow”.  Of course I accept that she would have been grieving for her mother, and a person filling in forms might think that it does not really matter either to the Registrar or to the Estate Duty Office whether a deceased retiree had a part-time job or not; but grief is not a good reason for making an untrue statement that someone who actually had a part-time job had no work at all and was supported entirely by her children.

The $300,000 Cash

57.  This was not included in the estate for Estate Duty purposes; and it did not surface in this case until the last minute.  Originally the evidence, as it appeared from Chan Yin Mei’s statement dated 5 October 2006, was that the Deceased liked to keep some cash on herself and had $20,000 in her wallet.  Only in the supplemental statement dated 4 January 2007 does Madam Chan say that another $300,000 was found in the Deceased’s room.

58.  The existence of the $20,000 is not contradicted.  However the defendants argue that the further $300,000 is a recent fabrication.  Given the Deceased’s practice of keeping her money in savings and deposit accounts, it is unlikely that she would keep a lot of money at home.

59.  For my own part I do not find it particularly unlikely that an elderly person would keep a lot of cash at home.  Granted that she had a practice of keeping money on deposit, she had plenty of that; over HK$8 million in total.  She could afford, if she wanted it, to keep cash about her; she did not have to worry too much about the interest she might be losing.

60.  However, the difficulty is not that the story is unlikely; it is that it only surfaced by way of an application to amend, made at the start of the trial.  It surfaced in a supplemental statement by Madam Chan Yin Mei who said that some time after her mother’s death, “we” found about $300,000 cash in her desk drawer and her clothes.

61.  From the oral evidence of Chan Po Mei, it appears that it was she and the eldest brother, Chan Ming Fai, who went through the Deceased’s effects.  According to her, $287,000 cash was found in the pockets of various pieces of clothing.  There was other cash in a drawer.  She did not tell the rest of the family about this cash; Chan Man Fai took charge of it and she did not know what he did with it.  However it appears from the evidence of Chan Man Hon that the finding was made known to the family at a family meal.

62.  The witnesses are vague in the extreme as to when they found the money, but given that the others went through the effects because, as Chan Po Mei put it, her elder sister (Chan Yin Mei) was not in a stable frame of mind, it must have been fairly soon after the death.  Chan Po Mei explains that she did not mention it in her statement, made in October 2006, because she could not remember when the money was found.  Chan Yin Mei explains that she made the supplemental statement after her solicitor asked her who paid for the funeral expenses; she then remembered that they had been paid from the cash.  In fact it is also said that once the funeral expenses were paid for, the rest of the cash was put back in the drawer.

63.  I find this evidence very unsatisfactory.  The witnesses have given no real explanation as to why, if money was found and everyone knew about it, no one mentioned this in witness statements long after the event.  $300,000 is a lot of money.  Normal people do not forget that kind of sum, and if they pay out $130,000 of it, they do not just put the rest in a drawer and forget about that either. 

Findings

64.  I do not believe this evidence.  It seems likely that it has been concocted to make up for the fact that there is no evidence of receipt of the alleged salary payments, or that those payments were saved.

65.  I am not satisfied of the truth of the evidence of employment.  It may be that the Deceased was paid money through the garage, but this could have been by way of voluntary maintenance rather than by way of real employment.  If it was so paid, it is not to be taken into account; see below.  I do not see that an award can be made for loss of accumulation of wealth under this head.

66.  In case I am wrong, and the Deceased was earning $3,900 per month, I note that Mr Sakhrani says that the Deceased had no or no significant expenses to defray from this income, and it would all have been saved.  He argues for a multiplier of 5 years, i.e. 1.5 years pre-trial and 3.5 years post-trial.  He allows for a reduction to 75% of the total for accelerated receipt.  The final figure claimed is $175,500.  I am inclined to think that, for a 72-year-old woman well past retirement age, the multiplier is too long and I would allow at most 1.5 years post-trial.

Contributions by the Children

67.  The children all say that they paid their mother some money every month, though it appears that the plaintiff herself was out of work, and actually paid her contributions out of what the Deceased gave her for her children.

68.  The Deceased’s say that they made these payments in satisfaction of their duties of filial piety to their mother.  That may be so, but the contributions were nevertheless voluntary, and the children were under no legal duty to make them.

69.  There is no evidence to contradict what the children say, and it is will known that dutiful children will make some contribution to their parents’ income in old age.  I accept that some contributions were made.  It is, however, more difficult to see why they should have contributed so much.  The Deceased was living with one of her daughters entirely free of contribution, and she had plenty of money saved.  They had their own lives to live and families to support and they did not need to give her so much.

70.  I do not see how these payments can be taken into account for calculation of loss of accumulation of wealth.  The same claim was made in Chan Ki, above.  Master Cannon, in disallowing the claim, said this at page 63 D-H:

“I am being asked to extend the meaning of earnings to gains in a broad sense to encompass family contributions received by the deceased for the household expenses of the family, out of which she managed to save and make profit by way of investments.  It is not comparable to the situations in the authorities before me, where the deceased received earnings, and damages were assessed on the amounts shown to be expended for the benefit of dependants and the amounts saved.  From the evidence, it appears that Madam Lo was astute in handling those voluntary contributions in that she left $373,628.75 at death.  Her estate will be distributed to her widower and children in accordance with the Intestate Estates Ordinance, and her beneficiaries will benefit from her prudent management of the family contributions.  Since her death, the family members may retain the money they gave to their mother, and may invest it on their own behalf if they wish.  They may decide to make the contributions to another family member, who in turn may accumulate the surplus and gain interest on it by way of bank accounts or other investments.  The voluntary contributions cannot be equated to earnings from employment or income from a business.  There is no authority before me to justify an extension of the law to include voluntary family contributions in a claim for loss of accumulation of wealth.  I am satisfied that there is no sustainable claim for loss of accumulation of wealth in this case.”

71.  With this view I respectfully agree.  There is simply no basis for including the children’s voluntary contributions in a claim for loss of accumulation of wealth.

Interest Accruing from Various Fixed Deposits

72.  Mr Sakhrani did not mention this in his closing submissions, but for completeness I will deal with it.  The tortious death had no effect on the capital or the interest thereon; the interest went on accumulation for the benefit of the estate.  Nothing was lost as a result of the death.  There can be no claim for loss of accumulation of wealth under this head.

Old age Pension Payments

73.  These were $705 per month and they were paid into one of the bank accounts.  Accumulations up to January 2005 appear to have gone into one of the deposit accounts.

74.  Mr Lim argues that this cannot be taken into account for accumulation of wealth, because the Deceased might have been using the equivalent amount per month from her previous savings to satisfy her minimal expenses, in playing mahjong and going for tea with her friends.  Alternatively she might have used money from what the children were paying her, which is not recoverable as loss of accumulation of wealth anyway.  The point is that, by the time of her ultimate natural death she would not have accumulated this $705 per month.

75.  There is really no evidence as to what happened to this money, except that it went into the bank as savings.  If the Deceased used whatever the children were giving her for her own minimal living expenses, it seems reasonable enough that she would have saved the $705 per month.  The plaintiff claims a 10-year multiplier, to arrive at a figure of $84,600 and this seems reasonable enough given that, according to the Government statistics, the average age at death for females is not 84 years.

76.  I will allow this claim of $84,600.

Result

77.  The following claims are allowed:

Bereavement	$150,000.00
Funeral Expenses	$133,490.00
Loss of Services	$40,000.00
Loss of accumulation of wealth on old age pension	$84,600.00
Total:	$408,090.00

78.  I have found the Deceased one third to blame so the figure falls to be reduced by one third to $272,060.00.

79.  There will be judgment in favour of the plaintiff for $272,060.00.

80.  Costs are awarded in favour of the plaintiff (nisi) to be taxed if not agreed, subject to my ruling on the first day of the trial that the plaintiff will not be entitled to claim costs in relation to the discontinued claim for loss of accumulation of wealth from the Fairview Park property and the plaintiff will pay the defendants their costs of defending that claim.

81.  Interest is awarded on the bereavement figure at the suitor’s fund rate from the date of the death to the date of judgment.  Interest is awarded on the loss of accumulation of wealth at half the judgment rate from the date of the death to the date of judgment.  Thereafter the judgment rate will apply on all sums awarded until payment.