LAU SIU AND OTHERS v. CHEUNG CHI FAI AND ANOTHER

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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ASSESSMENT OF DAMAGES

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1. The following facts concerning the accident in which the deceased died emerge from the statement of claim.

2. On or about the 8th March 1981 at or about 11.35 p.m. the deceased was driving his motor cycle registration no. AM 309 in a general southerly direction along Cattle Peak Road.

3. At or about the same time, a private car, registration number AU 6500 was likewise travelling in a general southerly direction along Castle Peak Road towards Kowloon and which private car was being driven by the 1st Defendant.

4. Suddenly and without warning at or about that part of Castle Peak Road near its junction with Shing Mun Road, the motor cycle was hit from the behind by the private ear, registration number AU 6500. At all material times and at the time of the collision the private car AU 6500 was driven by the 1st Defendant and the collision was caused and or occasioned by the negligence of the 1st Defendant.

5. By reason of the matters complained of the deceased sustained pain and suffered injuries from which he died on the 9th March 1981.

6. No defence was entered by the 1st Defendant and consequently on the 2nd May 1983 interlocutory judgment was entered against him.

7. At the hearing of the assessment of damages, Miss Mok who appeared for the plaintiff undertook to discontinue the action against the 2nd defendant.

8. The 1st Defendant was present at the assessment of damages. The claim was, as is customary, brought under LARCO and FAO but except in one instance with which I shall deal later those claims clearly merged.

9. I will deal with the LARCO claim first.

10. Loss of expectation of life - the usual amount of $20,000.00 will be awarded under this head.

11. Lost years award. The details of the deceased's employment at the time of his death are found in correspondence from the Director of the New Territories Services Department which is to be found pages 2 and 26 of the plaintiff's bundle. In addition to that, Mr. S.K. Yu who is an administrative secretary with that department, gave evidence before me.

12. The deceased was 56 years of age at the time of his death. He enjoyed good health and he had a good record with his employer. He was on an extension of service beyond his 55th birthday which would have expired on 20/9/81. However he would have been able to extend his service for a further 4 years that is until the 20/9/85.

13. His earnings in March 1981 were made up as follows : -

$2,380.00 basic salary

$105.00 obnoxious duty allowance

$87.50 supplementary duty allowance

Total $2.572.50.

14. The deceased maintained 2 households. His wife and her two children by him lived with his mother. The deceased lived with one Hui Yuk Kan in a separate household.

15. The deceased made the following contributions : -

Total $2,300.00.

16. The deceased therefore had $272.50 left from his net earnings.

17. A portion of those household expenses are of course attributable to the deceased himself. It has been submitted by Miss Mok, and I accept it to be the case, that in respect of his wife's household $l00.00 is attributable to the deceased and in respect of Madam Hui's household $450.00 is attributable to him, making a total of $550.00. Therefore the total expenditure attributable to the deceased is $272.50 + $550.00 = $822.00 which is 31% of his monthly earnings.

18. The free balance is accordingly 69% of his monthly earnings.

19. His earnings from the date of his death until the present day are as follows : -

3/1981         $2,572.50

9/1983         $3,921.00

2/1986         $4,748.00

The average of those three sums is $3,747.16.

69% of $3,747.16 = $2,585.54

$2,585.54 x 53.5 months (i.e. from 8/3/81 to 20/9/85)

                = $138,326.39.

20. Accordingly I award that sum for his loss of earnings from the date of accident until his notional retirement on the 20/9/85. After his extension of service the deceased would have been obliged to retire on the 20/9/85. From that date, as can been seen from page 26 of the bundle and the evidence of Mr. Yu, he would have received a pension of $2,131.20 per month.

21. It is appropriate at this stage to adjust the free balance, I believe, to 50% of that pension which is the sum of $1,065.60.  Therefore from the date of his notional retirement to the date of this assessment, i.e. 7/3/86 a period of 6 months x $1,065.60 = $6,393.60 would also have been lost and that sum should be added to the loss of earnings as set out above.

Future loss of earnings

22. The deceased was 56 years old at the time of his death and would have been 61 years of age at the time of this assessment. Reference to the Hong Kong Life Table 1981 (male) indicates that a 61 year old male has an expectation of life of 16.89 years. I believe one third should be deducted from that. Accordingly I assess the future loss of earnings being the deceased loss of his pension i.e. $1,065.60 per month x 11.26 years x 12 months = $142,767.79.  Accordingly my award for future loss of earnings is in that sum.

23. Again by reference to page 26 of the bundle and the evidence of Mr. Yu, it is seen that when the deceased retired he would have received a gratuity.

24. Had he retired on 20/9/85 he would have received a gratuity of $119,347.00.

25. The amount actually received by the plaintiff on the death of the deceased was $49,236.25. Therefore an award in respect of this loss of $70,110.95 is also made.

Funeral expenses

26. The funeral expenses are detailed in pages 15 - 22 of the bundle which was the subject of the hearsay notice and they amount to the sum of $24,300.00. I am satisfied those expenses were incurred, and properly incurred, and accordingly I make an award in that amount.

FAO

27. I referred earlier to one instance where the LARCO and the FAO claims do not merge.

28. That is in relation to the mother of the deceased.

29. Madam Kwan Chu received the sum of $200.00 a month from the deceased. From the date of death i.e. 8/3/81 to the date of the deceased's notional retirement i.e. 20/9/85 is, as we have seen, 53.5 months. Over that period Madam Kwan Chu would have received $200.00 per month. $200.00 per month for 53.5 months = $10,700.00 and in respect of Madam Kwan Chu I make an award under FAO in that amount.

30. After careful consideration, I do not propose to make an award in respect of loss of future earnings in respect of the mother of the deceased, Madam Kwan Chu.

31. Summary

32. From that award credit must be given for the employee's compensation of $111,182.80 leaving a total of $290,715.93.

33. As stated above there will be an additional FAO award from which there will be no deduction of $10,700.00 to the mother of the deceased Madam Kwan Chu.

34. There will be interest on the award for loss of expectation of life at 2% from the date of the issue of the writ and on the pre-trial loss and funeral expenses at 4% from the date of the accident, both to the date hereof.

35. There will be an order for costs in favour of the Plaintiff such costs to be taxed if not agreed. The Plaintiff's own costs are to be taxed in accordance with the Legal Aid Regulations.