NG SZE NUI AND ANOTHER v. YIP WAI KWONG

                                                                                                        Action No. 3865 of 1984

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

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JUDGMENT

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1. The first named Plaintiff's husband, LEE Yiu-kwong, was killed in a motor accident on 24 June 1981 on the Taipo Road in the New Territories. She and the second named Plaintiff sue for the damages on behalf of the estate under the Law Amendment and Reform (Consolidation) Ordinance (LARCO) and on behalf of the dependants under the Fatal Accidents Ordinance (FAO).

2. The Defendant was the driver of the vehicle which struck and killed the deceased. It is alleged by the Plaintiff that he was negligent. The Defendant filed a defence but shortly before the trial, he disappeared and it has not been possible to trace him. He was not represented at the trial.

3. I have accordingly had to rely upon the undisputed evidence of one eye-witness, LAW Yung-wan, who at that time was allowed to live in a store room belonging to the deceased, and upon the evidence of the first named Plaintiff (the widow Madam Ng) as to dependency, earnings and so on. While not a particularly impressive witness Law's evidence in general was acceptable. Madam Ng impressed me as a truthful witness who did not attempt to exaggerate her case or claims. There was no other evidence of any value apart from some photographs. The police investigation of the accident is said to have been inconclusive.

4. On the balance of probabilities I find that very early on the morning of 24 June 1981, the deceased left his hut near the Taipo Road, to catch a bus to Taipo. It was not very bright and vehicles were still using their lights. The deceased got to the road and stood on the side waiting. A 14-seater bus heading for Taipo drew up on the opposite side of the road and from behind it a seven-seater vehicle pulled out to pass. At the same time the Defendant approached in a goods vehicle at a high speed from the direction of Taipo. He swerved to the left to avoid the 7-seater, went off the road, his vehicle struck the deceased who was standing on the verge 2 or 3 feet from the edge of the road, then hit a tree, bounced to the opposite side of the road and overturned. The deceased was killed instantaneously. The drivers of the 7-seater and 14-seater vehicles chose not to wait at the scene and their evidence is apparently not available.

5. The evidence that is available establishes a clear preponderance of probability that the Defendant was negligent at the very least in going too fast and in not sufficiently heeding the presence of the two vehicles on the road. The possible contributory negligence of the driver of the 7-Beater is not relevant to the Plaintiff's claims.

6. The deceased was 53 years of age at the time of his death and in good health. He farmed some land which he leased, producing vegetables, fruit and the like and lived in a hut he built upon the land. He liked to farm and would have gone on doing so as long as he was able.

7. Five persons were dependent upon the deceased, Madam Ng, the deceased's wife aged about 50 years; three daughters, LEE Hang-to born on 20 October 1968, LEE Han-Sim born on 17 May 1971, LEE Wing-kam born on 18 October 1974; and the deceased's mother SO Lau-kwai aged 83 years.

8. Under the Intestate Estates Ordinance (Cap. 73) Madam Ng and the deceased's three daughters share his estate. Mr. Patrick Lim for the Plaintiffs accordingly submits in the circumstances of this case, and I accept, that their claims under LARCO and FAO merge and that only the former need be considered.

9. It was sought to establish that the deceased's earnings, although subject to seasonal and market price fluctuations, averaged $3000 per month. But the only evidence adduced was that of Madam Ng, his widow, who had virtually no idea at all about his earnings, apart from what he contributed rather incurred on the household expenses. He seems even to have done the household shopping as Madam Ng rarely went out. But Madam Ng's evidence of itemised household and personal expenditure did on the probabilities establish that the deceased paid about $1,849 per month towards the expenses of his five dependants. Since the LARCO and FAO claims merge I will upon the invitation of Mr. Lim treat that amount as the free balance.

10. The appropriate multiplier, considering the age, excellent health, occupation and plans of the deceased, is, in my view, 10. Over the 57 months pre-trial period I would increase the amount of $1.849 by 10% producing a post-trial multiplicand of $2,033 and a pre-trial median of $1.941. The pre-trial amount would therefore be $1,941 multiplied by 57 which produces $110.637 and the post-trial amount $2,033 multiplied by 63 which produces $128.079.

11. Proceeding to the funeral expenses, the amount originally claimed was $20.000,made up as follows -

                    (petty expenses not included)

No receipts were produced but Madam Ng testified that she paid these amounts and I accept that evidence. However on the authority of WONG Kam-ying v. MAN Chi-tai [1967] HKLR 201, the cost of the meals for the funeral guests must be disallowed, and Mr. Patrick Lim for the Plaintiffs very properly invited me to do so. That leaves $16,500 which still strikes me as too high. Although I am satisfied that Madam Ng did indeed incur expense of that general order I do not think the Defendant should have to bear the burden of her wish to ensure that her husband was laid to rest in the best style regardless of his status and his financial position and that of the family. I accordingly reduce the amount by a further $2,500 to a more reasonable $14,000.

12. To the foregoing amounts must be added the conventional $29,000 for loss of expectation of life.

13. Proceeding then to the Fatal Accidents Ordinance, the deceased's mother does not share in his estate under the Intestate Estates Ordinance. Her FAO claim must accordingly be considered. I am satisfied that she received from the deceased's earnings about $319 per month. For the pre-trial period of 57 months at the median amount which I assess at $335, the total would be $19,095. And allowing her 12 months for the post-trial period, bearing in mind her advanced age of 83 and poor physical condition, would attract a further $4,212 ($351 x 12) making a total of $23,307.

14. I would accordingly award the following amounts -

LARCO

Lost years - $238,716

Conventional loss of expectation of life - $20,000

Funeral expenses - $14,000

FAO

Deceased's mother's claim - $23,307

15. Apart from the funeral expenses these amounts accord with the calculations submitted by Mr. Lim, which I accept.

16. I also award interest at the following rates, upon the pre-trial LARCO amount and upon the funeral expenses half the appropriate rate from 24 June 1981 to the date of judgment and on the conventional loss of expectation of life amount of $20,000, 2%, from the date of the writ to the date of judgment.

17. For obvious reasons I am not making any orders as to the manner of payment and custody of the amounts but there will be liberty to apply.

18. The Plaintiff is to have the costs of the action less those of the afternoon of 13th March which were thrown away when she failed to appear. The Plaintiff's own costs are to be taxed in accordance with the Legal Aid Regulations.