LIU BING AND OTHERS v. YEUNG KWOK KEUNG AND ANOTHER

1985 No.A7219

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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ASSESSMENT OF DAMAGES

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1. From the tragic events of 2nd December 1982 only the 4th Plaintiff's claim under paragraph 12(C) of the statement of claim remains. The parties have settled the claims of the 1st, 2nd and 3rd Plaintiffs, as indeed they have the 4th Plaintiff's own claim for general damages.

2. The action has arisen from a road accident. The 4th Plaintiff's mother (the first deceased  in the pleadings) was carrying her child (the second deceased) and standing at the roadside with her husband (the 3rd Plaintiff) and her other, child (the 4th Plaintiff). In this situation they were struck by a goods vehicle, causing the death of the mother and of the child she was carrying, and causing injuries to the 3rd and 4th Plaintiffs.

3. The outstanding claim of the infant 4th Plaintiff is for re-imbursement of expenses in providing care and attention for her on the death of her mother. Mr. Lai for Defendants has admitted that such expenses were incurred, and evidence from the father has established the need for them to continue for approximately a further two years. It is the Defendants' legal liability for these expenses which Mr. Lai disputes.

4. Mr. Elkinson for the 4th Plaintiff has argued that the monthly payments for care and attention are a direct result of the accident and the cost should be compensated accordingly.

5. Mr. Lai has cited a number of cases in support of his argument on liability. The first of these is Berry v. Humm & Co. (1915] 1 KB, where Scrutton J, allowed the cost of replacement of the loss of a wife's housekeeping services as part of a dependency claim under the English Fatal Accidents Act.

6. The Judge concluded that pecuniary loss can include the pecuniary value of replacing services freely rendered in the past and which were, apart from the cause of action itself, likely so to continue. Arguing from this, Mr. Lai submits that this is in reality a dependency claim and is therefore part of the claim of the 1st Plaintiff, which has been settled.

7. Mr. Lai's second case was Donnelly v. Joyce [1974] 1 O.B. 454, where an injured infant plaintiff was held entitled to recover as his own loss his mother's earnings lost on giving up her job to give him necessary nursing. The Court of Appeal in England held that the Plaintiff's loss was the need for the services rendered and the mother's lost earnings were merely the pecuniary quantification of that need. It was the Plaintiff's need as a result of his injuries which gave rise to the claim. Mr. Lai stressed this point.

8. Mr. Lai's final case was Daly v. General Steam Navigation Co. Ltd. [1980] 1 W.L.R. 120, another decision of the English Court of Appeal. There the Plaintiff housewife was allowed to recover in her injuries claim an amount representing "partial loss of housekeeping capacity." The replacement cost amounted to her loss.

9. In reply Mr. Elkinson urged that the law of negligence would allow the 4th Plaintiff to recover the expenses for care and attention. The 4th Plaintiff's loss of the services of her mother would he said give her a good claim even were she not present and injured at the scene of the accident.

10. I must disagree with Mr. Elkinson. The essential difference between this case and the Donnelly and Daly cases is that the services engaged here were not necessitated by the 4th Plainitff's own cause of action, her injuries, which were slight. Nor were the expenses pleaded as a quantifiable pecuniary loss enuring to the estate and giving rise to a dependency claim, as in Berry v. Humm and Co.

11. The 4th Plaintiff's loss, grievous though it be in human terms, is not capable of sustaining a claim outside the scope of dependency. It is not a recoverable loss of her own and this claim must fail as wrongly pleaded. I think in any event that the dependency claim should be that of the father and not of the daughter, but this point is not relevant.

12. It is particularly unfortunate that the dependency claim has already been settled, apparently without reference to these expenses. However, I have no choice but to dismiss this claim, which I now do. I will hear the parties on costs.