WONG SAU WAH AND OTHERS v. LEUNG KAM CHEUK AND ANOTHER

Tort - negligence - quantum of damages - funeral expenses - dinners for mourners not part of funeral ceremonies - cost of rites of two religions may be reasonable.

-------------

___________

JUDGMENT

___________

Barker, J.A.:

1. This is an appeal by Wong Sau Wah and Chui Hing Chuen respectively the administratrix and co-administrator of the estate of Chui Yau Hang, deceased, and hereinafter referred to as the Plaintiffs, from a judgment of Jones, J. given on the 22nd March 1981 whereby he ordered the Defendants to pay to the Plaintiffs the sum of $174,390.00 together with interest.

2. The action arose out of a road traffic accident, which occurred on the 2nd December 1979 (and not 1978 as stated in the judgment), when the deceased was knocked down, whilst crossing Causeway Road, by a motor cycle ridden by the 1st Defendant. The parties agreed liability on the basis that the Defendants should pay 75% of the full value of the claim. The only issue before the trial judge and also so before this Court was therefore quantum of damage.

3. The Notice of Appeal initially contained a number of grounds, bat only two were pursued.

4. The first was that in awarding damages to the deceased's estate under the Law Reform (Consolidation) Ordinance for the deceased's loss of future earnings occasioned by the 'lost years', the Judge made his assessment by reference to what the deceased was earning at the date of his death, rather than to what he would have been earning at the date of trial.

5. The Judge said at page 2 of his Judgment:

6. When the Judge accepted that the deceased's income from the metal factory was $2,000 per month, it meant that he was, on this aspect of the case, accepting the evidence of Kwong Chi Shing, P.W.3, who had testified that the deceased at the date of his death urns paid a basic salary of $1,000 per month and in addition earned an average commission on sales of $1,000 per month.

7. But this witness gave further evidence as follows:-

8. It was argued on behalf of the Respondents that, since in argument the Plaintiff's counsel had referred to earnings at the date of trial, the Judge by implication was basing his award on what, in his view, the deceased would have been earning at the date of trial, had he lived. Alternatively, it was argued that the Judge must have found the evidence of P.W.3 above quoted so vague and unsatisfactory that he disregarded it.

9. We reject both these arguments. We think it inconceivable that, had the Judge had in mind the deceased's probable earnings at the date of trial, he would not have made reference to and made some finding on P.W.3's aforementioned evidence. Moreover, as he had already accepted part of his evidence, we see no reason to believe he would have rejected the other part.

10. That the Judge should have assessed the wages position as at the date of trial is clear. In our judgment he failed to do so. This is the task we must now attempt, on the evidence before us.

11. It was argued before us that we should reject P.W.3's evidence as being so vague and unsatisfactory as to be worthless; alternatively that it tans not evidence as such, since P.W. 3's factory had closed about one month before the trial. We disagree. Courts frequently in cases of this nature have to assess damages on somewhat flimsy material, and we see no reason why one manufacturer cannot give evidence as to what other manufacturers pay their employees.

12. In our judgment the probability is that, had he lived, the deceased at the date of trial would have been earning $2,000 per month by way of basic salary. We do not think, however, that there would have been any increase in his commission, as business was bad, and so we award $1,000 per month by way of commission, making a total of $3,000 per month from metal brokerage. To this sum must be added $1,000 per month which the deceased would have earned as a jade broker - there being no challenge as to the Judge's finding on this point. Thus the deceased's total income, in our judgment, at the date of trial should have been assessed at $4,000 per month.

13. The Respondents, however, challenge the Judge's finding that only $500 per month should be deducted from the lost years earnings award in respect of the deceased's own living expenses. To assess this argument it is necessary to look at the Pleading.

14. Paragraph 7(d)(iv) of the original Statement of Claim reads:

"The sum of $600 approximately was retained by the deceased for his own use."

15. At the date of the trial this figure of $600 was amended to $l,500 (and other figures claimed were also substantially increased).

16. It was argued by Counsel for the Respondent that this amended figure constituted an admission by the Plaintiffs from which they could resile only with leave of the Court and that no application had been made so to do. We disagree. We do not consider that an allegation of this kind contained in a Statement of Claim was an admission. On the other hand, it was the Plaintiff's pleaded case that the deceased's living expenses were $l,500 per month, and when the 1st Plaintiff gave evidence she testified that they were $2,000 - $3,000. The Judge held that her evidence as to figures was grossly exaggerated and he did hot accept it. Even so, we see no reason why the Plaintiffs should be allowed to depart from their pleaded case as to what had to be deducted from the deceased's notional income. In our judgment, the Judge should therefore have deducted from the $4,000 total monthly income a figure of $l,500 per month, leaving a net sum of $2,500 per month.

17. The Judge's multiplier of 7 has not been challenged. It follows that we too have arrived at a figure of $210,000 on the basis of full liability, the seine sum as that awarded by the Judge, though we have done so by a different route.

18. The second ground of Appeal concerned the funeral expenses. These were claimed in the sum of $13,000. Of this amount the sum of $7,522 (for which receipts had been produced) was agreed. The balance (for which no receipts were produced but it was not challenged that the suns clamed had been expended) consisted of two items.

19. The first eras the sum of between $2,000 - $3,000 is respect of three dinners for mourners. Counsel for the Appellants relied on two cases; Lee ping Tim v. Wong Kin Foon⁽¹⁾ and Chu Che-Ping v. along Kam-Shee⁽²⁾, in both of which the costs of such dinners were held to be recoverable. In neither of those cases, however, were the respective Judges referred to the case of Wong Kam Ying v. Man Chi Tai⁽³⁾, in which Huggins J. (as he then was) said at p. 208:-

"Nevertheless, it seems to me that the burial of the dead with due ceremony is one thing and the entertainment of those who come to pay their respects is another".

He therefore disallowed the cost of mourners' dinners.

20. We are of the opinion that the view of Huggins J. is the correct one, and that therefore the trial Judge was right to disallow this item.

21. The second was a sum of $3,000 as the cost of two Buddhist ceremonies for the release of the spirit of the deceased. The trial Judge totally disallowed this item. There was no evidence as to the religion of the deceased, unless the fact that one of the items in the agreed figure related to a Taoist priest to lead the procession can be taken as some indication of it. But there was evidence that the 1st Plaintiff was a Buddhist. The question we have to ask is, wens it reasonable in all the circumstances to hold these ceremonies. In arriving at our conclusion we have to consider the status, and financial position of the deceased and of his family and also their religious beliefs. We see no reason to conclude that the holding of these ceremonies was unreasonable nor that the cost thereof was unreasonably high. We therefore increase the award of funeral expenses to $10,522 (on the basis of full liability).

22. It follows that in our judgment the net funeral expenses recoverable are $7,890, and to this extent we vary the trial Judge's order and allow the Appeal.

Sir Alan Huggins, V.-P. :

23. As we are disagreeing with the trial judge on the question of funeral expenses I will, out of respect to him, give my reasons. He said about the dinners and the Buddhist ceremonies:

"The balance relates to the cost b￡ funeral ceremonies for which no receipts were produced. I do not consider that the defendants should be saddled with these extra sums which I find are unreasonable."

24. In a sense, of course, it is unreasonable to award anything at all in respect of funeral expenses since such expenses are not caused by the negligence of the defendant but merely hastened by it. However, the judge recognised that, illogical as it may be, such expenses now form an accepted part of the damages in fatal accident cases.

25. Despite his mention of the absence of receipts I think it is clear that the judge was not questioning whether payment of the sums claimed had been made. It was common ground before us that these saws had been paid.

26. The judge did not say why he thought the sums were unreasonable, or, indeed, chat he meant by "unreasonable". I express no view as to the reasonableness of the amount claimed for tire dinners, but I adhere to the view I held in Wong Kam-ying v. Man Chi-tai 1967 H.K.L.R. 201 that, reasonable or not, such sum forms no part of the damages payable by the defendant. The dinners were quite separate and distinct from the disposal of the Deceased's mortal remains with customary ceremony, even though they may have been customary hospitality on such an occasion. A line must be drawn some where and I think the courts should endeavour to restrict the expenses which are encompassed within the phrase "funeral expenses".

27. The claim in respect of the Buddhist rites is of a different character. As the widow colds the Buddhist faith, it was reasonable that she should the appropriate Buddhist ceremonies to be performed, even though the Deceased had been buried with Taoist rites. The question remains whether the sum of $3000 for prayers for the release of the spirit of the Deceased was reasonable. I confess that the sum appears to me to be high, even if one disregards the financial status of the Deceased and his family. Nevertheless owe mast bear in mind that the Chinese do expend large sums on such ceremonies, even where that involves running themselves heavily into debt. No evidence has been led to suggest that the fees charged were not those normally charged for this service and, not without considerable reluctance, I agree that the award in respect of funeral expenses should be increased  (on the basis of 75% liability) to $7,890.

(1)     H. C. Action No. 143 of 192

(2)    H.C. Action No. 3927 of 1978

(3)    1967 H.K.L.R. 201

Yang, J.A. :

28. I agree. Whilst dinners are almost invariably given by the family of the deceased, they do not form part of the funeral ceremonies. Also it is not uncommon for Chinese to follow two religious riles if the surviving spouse and the deceased belong to two different faiths.

6th July 1982