PANG LUK NGOI AND OTHERS v. LEE KWONG HING AND OTHERS

BETWEEN

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JUDGMENT

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1. At about 10 p.m. on 24th October 1980 PANG Mang-yi was discharging his duties as a flagman in the course of employment by the second and fourth defendants at an MTR construction site in Cheung Sha Wan Road, Kowloon. He was required to identify and to assist truck drivers wishing to enter, to park, to manoeuvre in and to leave, the site upon which their vehicles were loaded with excavated material by crane and grab. For this purpose he was provided with a red flag and a torch. I have heard no evidence of any instructions given to him. Every day a different worker was given this job. Unhappily he fell into the path of one of the trucks while it was being reversed on the site and sustained multiple and fatal injuries.

2. By writ issued on 21st February 1983 PANG Mang-yi's personal representatives, being his widow and one PANG King-tsau, claimed against the deceased's employers and against the driver of the truck in question and his employer damages for negligence pursuant to the Fatal Accidents and Law Amendment & Reform (Consolidation) Ordinances. All defendants have denied negligence and liability in the common Re-Amended Defence. The driver and his employer have taken no part in the trial.

3. A bundle of documents and photographs agreed by the parties represented not only as to authenticity but also as to the truth of their contents was put before the Court and a number of witnesses have been called on both sides. No suggestion was made at any stage that any witness did otherwise than tell the truth to the best of his or her ability. In the circumstances it is not difficult to set out the salient facts.

4. From these facts I am invited to infer that the deceased fell because of the dangerous nature of the surface upon which he was required to walk in a dim light with his attention fixed on moving vehicles. On the balance of probabilities I do so infer. No one has suggested that the deceased was drunk or liable to epileptic fits. It was the obligation of his employers to provide a safe system of and place for working and they failed to discharge it. They are liable to the plaintiffs in damages accordingly.

5. The driver of the truck was bound to exercise reasonable care in backing his vehicle in circumstances where he must have been aware that workers, including the deceased, were on the move. Quite clearly he failed to keep a proper look-out or he would have seen the deceased either before he fell, when he fell, or when his rearmost wheels ran over him albeit the deceased was not wearing fluorescent clothing or flashing his torch. As a result of that failure his truck ran over the deceased with both pairs of offside rear wheels. He and, vicariously, his employer are also liable to the plaintiffs in damages for negligence.

6. The defendants' respective breaches of the duty of care which they owed to the deceased cannot, in my view, so be disentangled as to enable a finding that the accident was caused by the one breach rather than the other to be made despite the latin expressions invoked in argument. And before parting from that language I should observe that I have too much evidence relating to the circumstances of the accident to allow any application of the maxim res ipsa loquitur and that the plea of volenti non fit injuria is not pursued.

7. The deceased himself cannot entirely be absolved from blame. As I have already commented he knew of the dangers of the site and must have seen the rear lights of the truck as it backed towards him had he been keeping a proper look-out for his own safety. But he failed to take proper care for his footing. In such circumstances I assess the degree of contributory negligence at 20 per cent.

8. I turn to quantum. By a retrospective calculation I find that the damages appropriate under the Law Reform Ordinance will overtop any award I might make under the Fatal Accidents Ordinance as regards any of the dependants on whose behalf this action is brought. I therefore assess damages under the Law Reform Ordinance.

9. Dealing first with special damages a sum is claimed for funeral expenses. The evidence shows that the funeral was paid for by the deceased's employers, clansmen, and the proprietors of a restaurant on a subscription basis and provides no material upon which I can imply any obligation on the part of the plaintiffs to recover the cost in these proceedings and to repay the contributors. The wording of the Law Reform Ordinance in this regard differs from that which appears in the Fatal Accidents Ordinance. Section 20(2) of the Law Reform Ordinance reads:

"Where a cause of action survives for the benefit of the estate of the deceased person, the damages recoverable for the benefit of the estate of that person where the death of that person has been caused by the act or omission which gives rise to the cause of action, shall be calculated without reference to any loss or gain to his estate consequent on his death, except that a sum in respect of funeral expenses may be included."

Section 9(3) of the Fatal Accidents Ordinance reads:

"In assessing damages in any action brought under this Ordinance the funeral expenses of the deceased person, if such expenses have been incurred by the parties for whose benefit the action is brought, shall be taken into account."

I am unable to think that by this difference in wording the legislature intended that plaintiffs should be entitled to recover damages for funeral expenses which they had not incurred by claiming under the Law Reform rather than under the Fatal Accidents Ordinance. I do, however, observe a possible paradox here because had the charitably-minded subscribers instead of paying the funeral expenses themselves passed round the hat and handed the widow a cheque from which she had herself discharged the funeral bill the cost would have been recoverable beyond peradventure.

10. In considering the value of the deceased's "lost years" the submissions made put me in mind of some well-known words from the speech of Lord Diplock in Gammell v. Wilson, 1982 A.C. 27, at page 65:

"My Lords, if the only victims of fatal accidents were middle-aged married men in steady employment living their lives according to a well-settled pattern that would have been unlikely to change if they had lived on uninjured, the assessment of damages for loss of earnings during the lost years may not involve what can only be matters of purest speculation. But as the instant appeals demonstrate, and so do other unreported cases which have been drawn to the attention of this House, in cases where there is no such settled pattern - and this must be so in a high proportion of cases of fatal injuries - the judge is faced with a task that is so purely one of guesswork that it is not susceptible of solution by the judicial process. Guesses by different judges are likely to differ widely - yet no-one can say that one is right and another wrong."

But the challenge must be met.

11. The deceased was aged 31. He neither drank nor smoked and worked long hours. He appears to have sought unskilled jobs on construction sites in order to obtain the maximum possible earnings for the benefit of his family. As the facts of the present case demonstrate such casual employment involved and involves an element of danger. I assess the appropriate multiplier here as 14 years.

12. From the figures furnished by his employers I find that the deceased's average wages per month while in this employment were $2,750. After deducting his own living expenses, namely food and fares, a net figure of $1,575 per month remains. This gives a figure to date of $75,600. To this should be added $60 for the clothing that was ruined in the accident and a sum of $19 for interest on that sum running from the date of the accident to date. I take that at half an average rate of 12 per cent per annum.

13. As for the notional net earnings for the balance of 120 months I accept the submission of Mr. Leung, who appears for the employers, that the deceased's earnings, whether as a carpenter, a mason or as a casual worker, would have been unlikely to exceed those exceptional rates which he had enjoyed at the Mass Transit Railway Site. Insofar as they might have exceeded those rates, bearing in mind the perhaps inevitable fall in the value of money, I must make corresponding allowance for the advantage of an advanced lump sum payment as Miss Bridges, who appears for the plaintiffs, has reminded me by reference to Cookson v. Knowles, 1977 Q.B. 913. Using the same multiplicand of $1,575 per month I arrive at a figure of $189,000 for loss of future net earnings. To that is to be added a conventional figure, now $20,000, for loss of expectation of life, giving a total of $209,000. From this $60,000, awarded under the Workmen's Compensation Ordinance, falls to be deducted leaving a balance of $149,000. So the grand total at this stage of the calculation is $224,679. Such figure must further abate by $44,936 by reason of the degree of contributory negligence found. Therefore the final figure for which judgment will be entered as against the defendants is $179,743 together with interest on the sum of $20,000 from the date of service of writ until to-day at the rate (again allowing for contributory negligence) of 1.6 per cent per annum.

14. I am asked on behalf of the employers to assess the relative culpability of the respective defendants and to make a contribution order as against the driver of the truck and his employer. Having regard to the fact that the Defence of the various defendants was never severed, so as to allow separate representation at this hearing, and on the record all negligence is denied by all defendants I am not prepared to exercise any discretion I may have in the employers' favour albeit a notice indicating that such an application would be made was despatched by them to the absent defendants last evening. They can bring fresh proceedings to this end if so advised.

15. It now falls to me to consider what order I should make under Order 80 rule 12.