KWONG YUK-TIN v. TSANG CHEUK-SUM AND ANOTHER

HCA000167/1976

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

ACTION NO. 167 OF 1976

—————–

BETWEEN
KWONG Yuk-tin, the Administrator of the estate and effects of KWONG Man-yin, deceased Plaintiff
and
TSANG Cheuk-sun 1st Defendant
SHUM Bing-yiu 2nd Defendant

—————–

ACTION NO. 610 OF 1976

—————–

BETWEEN
YUNG Shi-fun otherwise known as YUNG Lai-fun by her mother and friend TSE Wai-king Plaintiff
and
TSANG Cheuk-sum 1st Defendant
SHUM Bing-yiu 2nd Defendant

—————–

Coram: Cons, J.

Date of Judgment: 29th November, 1976.

—————–

JUDGMENT

—————–

1. These two cases arose from a traffic accident in May, 1975. One TSANG Cheuk-sum, a man of twenty-four years of age, was driving hiswife and two friends along Kwun Tong Road in Kowloon. He was in a hurry. They were going to Shatin Heights for a drink. So althoughthere was a 30 miles per hour speed limit upon that road Mr. Tsang was doing something like 40 to 45. Kwun Tong Road carries threelanes of traffic in that direction. Mr. Tsang was in the middle lane. In front of him was a Volkswagen. In the other lane was anothercar. However, the inner lane was clear. Mr. Tsang was impatient and decided to overtake on that side. But it was a wet night andMr. Tsang skidded. He could not control the skid, his car mounted the pavement and knocked down a line of six persons innocentlywaiting there at a bus stop. Mr. Tsang was in due course charged with dangerous driving causing death. He pleaded guilty. But curiouslyenough in these two actions he has denied negligence. His defences plead inevitable accident. However, no evidence was availableto dispute the facts as I have outlined them and I have no hesitation in finding for both plaintiffs on the question of liability.

2. One of the persons in the bus queue was a girl aged 23. She was killed almost immediately, dying the following day without recoveringconsciousness. She was a nurse at the Hong Kong Sanitorium. Her father brings the usual action as administrator of her estate. Shecame from a moderately large family to which she contributed $800 a month from her wages. Two elder brothers and a younger sisteralso contributed. Her father is a comparatively young man, but has retired from his occupation as a teacher due to poor health. Theyounger children were still at school. The two sons will probably leave school to start work soon and they will then also contributeto the family. The daughter will to some extent be a burden longer as she will continue to university. On the other hand she appearsto pay most of her own way already by obtaining scholarships. In these circumstances I do not think it likely that the deceased wouldhave increased her contribution to the home as her salary went up each year, or that she would have continued it if and after shemarried. I am content to accept the suggestion of defence counsel that the correct multiplier should be five. I do not accept hissuggestion that $100 or $150 should be deducted from her contribution to represent the value of the “home” to her. It is much toohigh. She obtained only little financial benefit from her home. $50 a month will amply cover this. Damages awarded to her fatherin Action 167 will therefore be as follows:

For loss of expectation of life $8,000
Special damages as agreed 1,895
Under Fatal Accidents Ordinance $45,000
Less amount by which estate benefits 8,000

======

37,000
$46,895
======

3. There is some doubt whether the young sister KWONG Man-kuen was or was not a dependant at the time of the death. I think counselfor the plaintiff concedes that she was not and I am content therefore to make the order for the fatal accident’s damages to be infavour of all the dependants named in the writ with that exception. Unless counsel wishes to make further submissions I would makea nominal apportionment of $1 to the mother and children named with the balance to the father.

4. The second victim in the bus queue was a friend of the deceased. She wanted to be a nurse like her and had already fixed interviewsfor nursing school. At the time she was earning her living as an unregistered teacher at the Ming Yun School and giving private tuitionwhenever she could in her off-duty hours. She had some expenses to bear by way of bus or taxi fares. Her net income was about $920per month. This girl was not killed. She was admitted to hospital with bruises and abrasions all over. X-rays revealed a fractureline in the skull. She was detained for some four weeks. It was noticed that after recovery of consciousness her right arm was weakand clumsy. When discharged she experienced pain in walking. On examination what must have been a minor fracture was found in herright leg. All these injuries are now healed. In the physical sense she has fully recovered except for occasional headaches and spellsof dizziness. But unfortunately there were other consequences, what the specialist has called “a definite severe change in personalitywith significant intellectual impairment”. Before the accident she seemed to have been a gentle, industrious and serious-minded younglady. She is now “unstable and labile; one minute she would be laughing and giggling and the next she would begin to cry or becomeaggressive”, and “any approach towards a clinical examination would provoke great violence on her part”. She is now able to lookafter her own basic necessities by way of feeding and dressing herself but is either unable or too idle to assist in the generalmanagement of the home. All she does is sit around looking at comics or watching television. She is very bad tempered and makes achildish nuisance of herself to her mother and the rest of her family. They have not allowed her to be left on her own since theaccident and scissors and knives have to be put away. Her mother has given up her job in order to be at home. There is no likelihoodof any improvement in the near future.

5. It is clear that the plaintiff will never enjoy the kind of life that she was looking forward to of becoming a nurse or perhaps latermarrying and raising her own family. It is not clear how much she will realise what she is missing. However in any event the lawat the moment does not allow lack of realisation to effect any reduction in the amount awarded for pain and suffering and loss ofamenities: H. West & Son Ltd. v. Shephard(1). The element of physical pain and suffering in the present instance is only small, although there will be physical restrictions onthe ways in which she will be able to spend the rest of her life. It is not easy to fix an award in these circumstances. The sumI have eventually decided upon is one of $50,000.

6. It is also clear that the plaintiff will never be able to hold down a job of any kind. If she had become a nurse as she had wished,she would have earned more than she was as a teacher at the time of the accident. But she may not have been successful in her application.She may also have got married. That is something which must be taken into account: Harris v. Harris(2). She may then have carried on part time or she may have given up completely but resumed later when her own children became older.Taking these unknown factors into account as best I may I propose to assess damages for the loss of future earnings by applying amultiplier of 10 to a salary of $1,000 per month, that is a total of $120,000.

7. The third matter that is clear is that the plaintiff will never be able to look after herself completely or will never be able torun her own home. She will need someone constantly to do this for her. There is evidence that at the present rate this would cost$800 to $1,000 per month. At the moment it is not necessary. Her mother copes. But in order to cope her mother has had to give upher own job worth $500 per month. For the time being therefore that figure should be accepted as the proper expense required forattendance. It is a matter of estimation how long the mother will be able to continue to care full time for the plaintiff. She isnow 55 years of age. Counsel has suggested 10 years as a figure to work upon. I am content to accept that. It may be of course thatthe mother would not have been able to hold down her own employment for as long as 10 years. In that event the latter part of herattendance will become gratuitous. It has been said then to be questionable whether it would entitle the plaintiff to recover damages:see WcGregor 13th Edition para.1136. But the law has now been settled by the cases of Cunningham v. Harrison(3) and Davies v. Tenby Corporation(4).

8. Once the mother is no longer able to care for her the plaintiff will became dependent upon directly paid help at the higher figure.The difficult question is for how long should the calculation be made. Counsel for the plaintiff has suggested a further 10 years.After all she will then be only 44 years of age, an age which she can well be expected to reach comfortably. But at that level theinterest on the capital sum will more than cover the monthly amount necessary. A further 5 years is likely to be the correct figure.

9. There remains the question of special damages. Only two items have not been agreed or abandoned. The first relates to the plaintiff’sloss of earnings from the time of the accident until trial. It is pleaded at $650 per month but it is accepted by the defendant thatthis figure should be increased by reason of the private tuition. The net figure I have already mentioned as $920. Loss is pleadedas from the 1st June 1975, that is, 17 1/3 months, to give a total of $15,910.

10. The second item is the loss of the mother’s wages since the accident. It is pleaded at the rate of $480 per month although the evidenceis that the loss was $500. No amendment has yet been asked for. At that rate the total to the date of trial is $8,640. The damagesawarded in the second action may therefore be tabulated as follows:

For pain and suffering and loss of
amenities $50,000
For cost of future care and attendance 120,000
For loss of future earnings 120,000
For special damages 25,486
$315,486
=======

11. Judgment is entered for the plaintiffs in each action as I have outlined and in each case the plaintiff is entitled to his or hercosts.

Representation:

Robert Tang (H.M. So & Co.) for the plaintiffs in both actions.

Michael Asome (Chan & Ho) for both defendants in both actions.

(1) [1964] A.C. 326

(2) [1973] 1 Lloyd’s Rep. 445

(3) [1973] 1 Q.B. 942

(4) Times Newspaper 10th April 1974.