LEUNG SING KIU AND OTHERS v. WONG SHEK KEUNG

1988, No. A2627

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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ASSESSMENT OF DAMAGES

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1. These proceedings arises out of a traffic accident on 21st December, 1986 in Des Voeux Road West during which the deceased, one Chan Lai Wah, was knocked down by a van owned by the 2nd Defendant and driven by the 1st Defendant. The deceased died on 31st December, 1986 in the hospital, some 10 days later. The Plaintiffs brought these proceedings as administrators on behalf of the estate and the dependants of the deceased. The writ was issued on 11th April, 1988. The action was subsequently discontinued as against the 2nd Defendant. Interlocutory judgment after trial for damages to be assessed entered on 16th December, 1988 against the 1st Defendant for 80% of the liability was adjusted to 50% only by the Court of Appeal on 2nd March, 1989 (after the hearing of this assessment). Though it was ordered by consent that costs of the action he reserved to a Master, I was not asked to deal with the matter at the assessment.

2. Agreement was reached between the parties as to the following heads of damages:-

(a)    $40,000.00 for funeral expenses;

(b)    $13,500.00 for the loss of 3 months' earnings by the husband of the deceased; and

(c)    $40,000.00 in respect of bereavement under S.4 of the Fatal Accidents Ordinance 1986 (Cap. 22).

The balance of the Plaintiffs' claims for loss of dependency and services to the family are in dispute.

3. The Plaintiffs called a total of 2 witnesses, i.e. the husband of the deceased and the manager of the employer of the deceased at the time of her death. After evidence was given, the 1st Defendant further agreed to the sums f $900.00 and $1,368.00 respectively claimed by the Plaintiffs to be the total dependency at the time of the death of the deceased and at the time of assessment. The Plaintiffs limited their claims to the Fatal Accidence Ordinance, Cap .22 only.

Dependency: Loss of Financial Support

4. It was agreed by the parties that the new 1986 Ordinance applies to the present claims. The financial dependants of the deceased consist of her children, a daughter aged l8 and two sons aged 15½ and 12½ at the time of assessment. It was urged upon the court by counsel for the Plaintiffs that multipliers of 2, 5 and 8 respectively should be adopted for the children for the post-assessment claim. The 1st Defendant suggested multipliers of 1½, 5 and 6½ for the children.

5. The dependants are of a middle-range income family with a monthly average of below $10,000.00. The children had working parents, and average grades at school. The eldest sister is now attending Form 5 while the 2 sons are attending Form 3 and Primary 6 respectively. It is common for an eldest daughter of average grades in such a family to come out to work after finishing secondary education. The youngest son tend to he more fortunate and he able to further his studies if his grades allow him to do so. The husband said it was intended to give all of them such education as they are academically capable of achieving. In view of the above, I am satisfied that multipliers of 1½, 5 and 7 respectively are appropriate for the said children. The agreed post-assessment multiplicand for each child is $456.00 ($1,368.00 ÷ 3).

6. There is no real dispute as to the pre-assessment financial dependency claims save that the Plaintiff adopted a 26 month multiplier, and the Defendant a 26.3 month multiplier. The median multiplicand of $378.00 for each children ($900.00 + $1,368.00 ÷2÷3) was used by both parties in their calculation.

7. In the premises, the total financial dependency of the 3 children on full liability basis is:-

8. The husband did not claim for any loss of financial dependency at the assessment.

Dependency: Loss of Services

9. The husband and the 3 children also claimed for loss of value of services of the deceased as wife/mother. Counsel for the Plaintiffs relied on the case of LEE Ping-tim v. WONG Kin-foon [1978] HKLR 347, the Court of Appeal decision in NG Yat-ying v. LAW Ming-kwan and others C.A. No.130 of 1987, and the case of Berry v. Humm & Co. [1915] IKB 627. The 1st Defendant disputed the claim on the basis that such a claim (if maintainable at all) should be brought under the Law Amendment and Reform (Consolidation) Ordinance, Cap.23 and not the Fatal Accident Ordinance, Cap.22. It was further submitted by the 1st Defendant that sections 20B and S. 20C of Cap.23 effectively abolished any such claim.

10. Section 20(2)(b)(ii) of Cap.23 provides that:-

"Where a cause of action survives as aforesaid for the benefit of the estate of a deceased person, the damages recoverable for the benefit of the estate of that person ...... shall where the death of that person has been caused by the act or omission which gives rise to the cause of action ..... not include any damages in respect of loss of ability to render services after his death."

11. In the premises, no such claim for loss of services can be brought for the benefit of an estate under Cap.23.

12. On the contrary, a dependant is entitled to be awarded damages under Cap.22 "in such proportions as reflect respective injuries as a result of the death" [S.6(1)]. It has always been held that such "injuries" include a claim for loss of services (see Morris v. Rigby (1966) 110 S.J. 834, Mehmet v. Perry [1977] 2 All ER 529). I therefore fail to see the basis for the submission of counsel for the 1st Defendant that such a claim ought to he brought under Cap.23.

13. Counsel for the 1st Defendant further submitted that such a claim is now not maintainable by the dependants by virtue of the provisions in sections 20B and 20C of Cap.23. The relevant part of section 20B provides:-

"Except as provided in section 20C, no person shall be liable in tort ..... to a husband on the ground only of having deprived, him of the services or society of his wife .... ."

The application of the section does not depend on the bringing of an action under Cap.23. It applies to all actions in tort. In the premises, it applies also to claims brought solely under Cap.22.

14. The husband's right to claim for loss of services has been abolished by section 20B, and section 20C (1)(a) preserved only his right to claim for loss of "society" and not "services". Further such right is only preserved in a situation where the injured wife survives; and not in a case where the injured wife died as a result of the injury which would give rise to a claim for bereavement under section 4 of Cap.22 [S.20C(3)]. A claim for bereavement and a claim for loss of society by a surviving husband are mutually exclusive [see S.4(1) of Cap.22 and S.20C(3) of Cap.23]. Section 20C has no counterpart in England. It is thus not surprising to note that no such mutual exclusivity as per, our section 4(1) and section 20C(3) is necessary in England. A bereavement of $40,000.00 has in fact been agreed by the parties herein. In he premises, the claim by the husband in the present proceedings far loss of services cannot he maintainable and must fail.

15. The position of the children is quite different. Section 20B of Cap.23 does not make any reference to the right of a child to claim for loss of services of his mother. Subsequent to the enactment of an identical provision in England (S.2 of the Administrarion of Justice Act 1982), the commentary at para.98, volume. 34, Halsbury's Laws of England, 4th edition, still reads:-

"On the death of a mother a claim for loss of household services is assessed by calculating the annual expense of providing substituted services and by fixing a multiplier which reflects the age of the children and the husband's prospects of remarriage."

In support of the proposition, pre-1982 cases such as Berry. v. Humm & Co. supra and Jeffrey v. Smith [1970] RTR 279, C.A. are quoted. I hold the view that nothing in section 20B affects the right of a child to claim for loss of services of his deceased mother under section 6(l) of Cap.22 as a dependant.

16. Has the child's right to claim for loss of services of his deceased mother been affected by the enactment of section 20C of Cap.23? I think not. Section 20C(1) (b) also deals only with a claim for "damages for the loss of the injured person's society". No references is made to a claim for "damages for the loss of services". The only reference to a claim for loss of services in the entire section is to be found in subsection (4) dealing with a claim by the injured person himself (apart from the reference in the marginal note). The restriction under section 20C(3) only relates to damages payable "by virtue of subsection (1)". It cannot, in the premises, has any effect on claims for loss of services brought under Cap.22. Was the intention of the legislature, by providing for a descending order of entitlement, to deprive a child of a claim for loss of society if his father is entitled to claim under section 20C(l) (a)? If so, should section 6(1) of Cap.22 not be expressly made subject to section 20C of Cap.23; or section 20C be stated to be notwithstanding the rights under Cap.22? The language of section 20C(1) is permissive and empowering. It speaks of "shall also be liable". There is no indication, expressly or by necessary implication, that section 20C(1) should override section 6(1) of Cap.22 or to have any abrogative or restrictive effect on the rights under the said provision to a claim for loss of society. In the premises, I fail to see the need or purpose for including in section 20C(1) dependants who already enjoy such right under section 6(1) of Cap.22 and are not affected by section 20B. If a restriction of the rights of such dependants is intended by section 20C(1), it should be stipulated expressly.

17. The difficulty in comprehending and rationalising the language of section 20C is further highlighted when one considers the following. It appears to be the intention of the draftsman to confer the statutory right to the mutually exclusive claims of bereavement and loss of society under the 2 ordinances to identical classes of persons in identical descending order of entitlement. The logic seems to be that the same person should not be entitled to claim both for bereavement and loss of society. But is that the effect of the 2 sections? Why should there be a distinctive class created in section 4(2)(C) which is not found in section 20C? A surviving spouse who had lived apart from the deceased for 2 years or more who has a right to claim (there need not be an actual claim made) under section 4(2)(C) would, by virtue of the blanket restriction in section 20C(3), bar any claim of a child under section 20C(1)(b) and all persons below him. Furthermore, the sudden change of terminology from "injured person" to "the deceased" from and after subparagraph (c) of section 20C(1) cannot be explained by any logical reason at all. Such references to "the deceased" in section 20C(1)(c) to (g) are inherently inconsistent with the provision in section 20C(3) prohibiting the payment of damages if the injured person died. It is also interesting to note that the right to claim bereavement in England is restricted to the surviving spouse and the parents of a minor only with no express necessity for survivorship for any period of time. The language of section 20C and the interaction and relationship between section 20C and section 4(1) perhaps require further consideration by the legislature.

18. In conclusion, the language of section 20C is not capable of depriving a child of a deceased mother of a claim under section 6(1) of Cap.22 for loss of services (irrespective whether a right to bereavement tinder section 4 of that same ordinance has arisen or not).

19. A third objection to such a claim by the children, Counsel for the 1st Defendant submitted, is that it is only maintainable if domestic help was in fact engaged, or at least there exists a real probability that it would be engaged. An attempt was made to distinguish the cases of Berry v. Humm & Co. and NG Yat-ying v. LAW Ming-kwan and others, supra, referred to by Counsel for the Plaintiffs, on the basis that the husband in the two cases had actually incurred expenses in engaging help to look after the children. Such an objection must necessarily fail in the light of authorities such as Hurt v. Murphy [1971] RTR 186 and Steer v. Basu and another (reported at paras. 28-009 and 28-104, Kemp & Kemp), where awards were made on the basis of what it would have cost the husband had domestic help been hired. It was further held in Regan v. Williamson [1976] 1 WLR 305 that the wordings of the English equivalent of section 6(l) of Cap.22 should not he construed narrowly or restrictly and should include an award for the loss of personal attention and affection of a deceased mother. The dependancy was increased by £7.5 a week to take into account such loss. In Mehmet v. Perry [1977] 2 AER 529, awards for such loss of attention were also made for the widower and the children.

20. The objections of the 1st Defendant to the claim made for the benefit of the children of the deceased under Cap.22 failed for reasons given above. The Plaintiffs claim a monthly sum of $1,500.00 at time of death of the deceased and $1,800.00 at time of the assessment for the cost of engaging a part-time domestic help to look after the children. However, the Plaintiffs failed to adduce any credible or reliable evidence as to the likely cost of such help. The husband at first said in evidence that for a domestic help working 2 to 3 hours daily it would cost him $1,700.00 to $1,800.00 a month. Then he said it would at least he $1,100.00 a month. Finally he confessed in fact he was not clear as to the rates domestic help would charge. The deceased used to perform the housework and looked after the children, with the help of the husband if she was not available having to do overtime work. The husband had, on occassions, to cook and looked after the children's Chinese schoolwork. The eldest child was aged about 15/16 and the youngest aped about 10 at the time of the death of the deceased. They are now aped 18 and 12½ respectively. The children also helped in doing chores around the house like cleaning or washing dishes. Their responsibility for such household chores would undoubtedly increase with their age. The requirement and incidence maternal care would also be proportionally reduced as they become older. In the premises, the inflation in wages of a domestic help by the passage of time would he off set by reduced requirement/time. I am thus satisfied that an average of ½ hours per day it the flat rate of $25.00 an hour, or $1,125.00 a month is the reasonable and appropriate sum representing the cost of a part-time domestic help and the loss of personal attention for the whole family. The husband's share would have to come out. I will adopt the same multipliers for this head of dependency.

LEUNG Yuen-shan

21. In the premises, taking into account the 50% contributory negligence a total award of $132, 474.67 is made under Cap. 22 and he awarded d in the following manner:-

(1) Agreed funeral expenses	($40,000 x 50%) =	$ 20,000.00
(2) Husband's agreed loss of earnings for 3 months	($13,500 x 50%) =	$ 6,750.00
(3) Agreed bereavement to husband	($40,000 x 50%) =	$ 20,000.00
(4) Loss of dependency of LEUNG Yuen-shan	($30,608.77 x 50%) =	$ 15,304.39
(5) Loss of dependency of LEUNG Chi-ho	($61,573.27 x 50%) =	$ 30,786.64
(6) Loss of dependency of LEUNG Cheuk-hang	($79,267.27 x 50%) =	$ 39,633.64
		$132,474.67
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There will be interest on the damages for bereavement at the rate of 2% per annum from the date of writ to the date of this assessment. Interest on all other items of damages, save for post-assessment loss of dependency, will run at the rate of 4 1/16% per annum from the date of death to the date of this assessment. There will be an order nisi for costs to the Plaintiffs with certificate for Counsel.

Dated this 17th day of March, 1989.