LAM FONG AND ANOTHER v. OCEAN UNITED BARGE AND ENGINEERING CO. LIMITED

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JUDGMENT

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1. This is a fatal accident case. The deceased Yip Ka died when a mobile crane (the 25 ton crane) he was driving on the night of 30th October 1981 collided with a trailer. The plaintiff as Administrator of the deceased's estate claims both on behalf of the estate and on behalf of certain dependants. Most of the facts are not disputed and counsel have very sensibly been able to agree these and other matters to the point that the estimated hearing time of 6 days has been cut back to 3. Nonetheless, the negligence alleged by the plaintiff and denied by the defendant remains very much in. issue as also the amount of the deceased's earnings and the "free balance" thereof.

2. At the material time, October 1981, the deceased was about 48 years old and employed by the defendant company as an operator of mobile cranes. He had been in the defendant 's employment in that capacity for about 4 years. He was regarded as a mature and very good worker.

3. The defendant company was a small one. It's business of operating mobile cranes to move containers was managed by a Mr Leung who described himself as one of the 4 partners who owned the company. In October 1981, the defendant was operating at a container storage depot (the depot) in TsingYi Island where it had 3 mobile cranes. On the 30th October, it had more or less completed its work there, the site was closing down as a container storage area and the defendant was to commence work on another site (the new site) below the Tsing Yi Island Bridge on the following day, the 31st October.

4. As the deceased was killed in the accident, his version is, of course, not available. Mr Leung says that at about 4 p.m. on the 30th October, the deceased telephoned him and told him that the work at the site would be completed by 5 o'clock and that the  crane then had to be towed away. Mr Leung told him to go and have his meal and then to return to the depot and wait for him. He would be there about 8.30 p.m.

5. At about 8 p.m., the deceased telephoned again to find out what time Mr Leung would get to the depot, Mr Leung repeated, about 8.30. On the way about a mile or two from the depot, Mr Leung came upon the crane lying on its side blocking the road. The police had not yet arrived. It is common ground that the deceased was killed in the accident.

6. The central question in this case is what was the deceased doing driving the crane dorm the road leading to the new site, some one to two miles from the depot. Was he on some frolic of his own in total breach of instructions that Mr Leung claimed had been issued strictly prohibiting the defendant's cranes being driven out of work' sites, on to roads? Or was he acting upon the express or tacit agreement or consent of Mr Leung, or in a way that could have been forseen by the defendant and by Mr Leung?

7. It is not disputed that the crane was prohibited from using public roads without a licence or movement permit, neither of which had been issued for the 25 ton crane, nor had it been insured for road use. Mr Leung testified that the deceased had been informed when he first joined the defendant company that driving cranes on to roads was forbidden, that the deceased was present when crane drivers subsequently recruited were similarly informed, and that the deceased must certainly have been aware of that; moreover that the deceased has no licence to drive on roads, and that he would have sacked the deceased if he disregarded the prohibition, for such disregard would not only expose the driver to arrest but the crane to detention by the police.

8. Mr Leung categorically denied the suggestion made by Mrs Kaplan for the plaintiff that the deceased could only have been taking the crane to the new site and inust have been doing so on Mr Leung's instructions. Mr Leung was pressed for any explanation as to what else the deceased could possibly have been doing. Of course, it was no way incumbent upon him to explain, but he could only offer the suggestion that the deceased might have been on his way to help a friend to re-position some improperly placed containers, That is an absurd suggestion which I have no hesitation in rejecting, for even if allowance is made for some discrepancy in the times at which he claims the deceased telephoned him i.e. at 7 or  8 o'clock, the deceased would have had to procure transport to rush back to the depot from the restaurant at which he presumably dined and then set off knowing well that there was every probability of encountering , Mr Leung coming up the road on his way to the depot at 8.30. Having regard to that and to the necessity (which was not disputed) to get the crane, actually 2 cranes, to the new site that night, the overwhelming probability that the deceased was moving the 25. ton crane to the new site is inescapable and I find as a fact that it was being so moved.

9. As to whether this was with Mr Leung's express or tacit agreement, Mr Leung testified that he had a site removal routine and eras himself to make the arrangements for the legitimate removal of the cranes by towing truck or tractor. Clearly therefore the deceased would not have been able to conceal the fact that the 25 ton crane, at least, had been driven there by road. Moreover, it is difficult to see what possible reason he could have had to do that in defiance of the general prohibition and a specific instruction to wait at the depot. Far from any anxiety to get off early, the evidence points to the deceased even going outside the defendant company to secure overtime work. As Mr Leung pointed out, the $300 to $500 that would be saved on transporting each crane is a minor benefit in comparison to the penalties risked. Nonetheless, all too often the attractions of even relatively minor gains of that sort prevail over such deterrents.

10. In addition, there were certain discrepancies between Mr Leung's statements to the police, the Employees' Compensation form he signed, and his evidence in court as to the events of the 30th October, which he did not satisfactorily explain in my view. I was not impressed by his evidence or his demeanor in that context. Having regard to all the foregoing, upon the probabilities, I find the deceased must have moved the crane with the agreement, tacit or express, of Mr Leung. In coming to that conclusion, I have taken full account, as urged by Mr Yu, of Lord Wright's dictum in CASWELL v POWELL DUFFRYN 1940 AC152 that there must be positive proved facts from which such inference can be drawn.

11. By his pleadings, the plaintiff sought to rely upon breach of statutory duty or negligence on the part of the defendant. It did not clearly emerge what statutory provision or duty the plaintiff had in mind. As to negligence, the plaintiff relied essentially upon the defective brakes of the crane. Mr Paterson, a Government motor vehicle inspector, examined the crane a few days after the accident. I accept his evidence that a brake chamber from one of the axles was missing altogether and the air pipe leading to it was left unsealed. I accept also that the accumulated dirt showed this had not resulted from the accident but had been the situation for some time. Mr Paterson also found a quarter-inch gap between one of the brake shoes and the drum. The open air pipe would allow air to escape undermining the entire foot braking system unless there was in addition an independent system. The probability on the evidence is that there was no such independent system. The hand brake was a parking brake and could not stop the crane at anything more that a very slow speed on level ground.

12. Mr Denis Yu for the defendant submitted that within the depot to which the crane was restricted, the crane was only used upon level ground to go forward and back at the very low speeds that closely stacked containers permitted; that coupled with the braking effect, to which Mr Paterson testified, of the very heavy weight of the crane, the hand brake and such residual effect as the foot braking system retained was entirely adequate to meet any foreseeable danger in, the depot. That submission does not at all commend itself to me. But I need not concern myself with that submission having already found that the crane was driven to the new site by the deceased with Mr Leung's agreement. As regards the brakes I have no hesitation in finding they were deficient.

13. Mr Leung's evidence clearly disclosed that the defendant had no proper system of maintenance of the braking systems of the crane and expected the deceased to report deficiencies when, perforce, these became apparent to him. Such maintenance as it carried out and the competence of the mechanic it employed related only to the hoist or lifting mechanism of the crane. Again, in that respect, I have no hesitation in holding that the defendant was negligent and failed in its duty of care to the deceased.

14. Although the defendant did not in its pleadings specifically raise the matter of contributory negligence on the part of the deceased, it seeks to rely upon such negligence. In my judgment, the defendant is entitled to do so and Mrs Kaplan very properly did not seek to dispute that. Oddly enough, it is the case of both parties that the deceased did not know the brakes were defective. I will say no more than that in the result I agree, for the image of the deceased that emerges from the evidence, of a mature, highly regarded employee, is quite inconsistent with the foolhardy and manifestly hazardous business of driving a vehicle weighing some  30 tons down a lengthy slope knowing that it had deficient brakes. It is not this that Mr Yu relies upon nor the defendant's lack of a driving licence (for he abandoned the ground of breach of statutory duty) but the deceased's lack of driving skill. He seeks to infer the latter from the deceased not having a driving licence, and the negligence implicit, he submits, in the crane colliding with a trailer parked on the side of the road. As to the former, I consider that the deceased's long experience, in excess of 4 years, of "driving" mobile cranes on a full time, daily basis, albeit within work sites, amply rebuts the inference sought to be drawn. And as to the latter, the probability, it seems to me, is the heavy crane having grossly deficient brakes ran away with the deceased when it got on to the lengthy discending slope, resulting in the accident. Mr Paterson testified that the crane would progressively gain speed on a slope. In my judgment, there was no contributory negligence on the part of the deceased and the defendant is liable in damages.

15. I proceed then to the matter of quantum. Damages are claimed under both the Law Amendment and Reform (Consolidated) Ordinance (Cap. 23) and the Fatal Accidents Ordinance (Cap. 22). It is convenient first of all to establish the level of the deceased's earnings upon which there is not much direct evidence and a conflict upon such as there is. Mr Leung says that according to his understanding the deceased's wages at the time of his death were, $2,500 a month, not including the 13th month's salary he received at Chinese New Year. He added that in addition on some days he put in one or two hours overtime, averaging about 30 hours per month at a rate of $15 to. $20 per hour. Mr Leung agreed with Mr Yu that that would produce $600 a month in overtime from the defendant. He added that the wage rate has now gone up to about $3,000 to $3,500 but that the overtime rate has remained more or less the same i.e. $15 to $20 per hour.

16. The deceased's brother, Mr Yip Chung, testified that the deceased worked 28 days a month, and in addition did overtime about 4 times a week. He returned home at about 11 p.m. plus from overtime work; otherwise he returned at 6 p.m. plus. Even if a very generous 1½ hours is allowed for obtaining an evening meal some distance from work sites, the deceased must have put in overtime of three to four hours on each occasion rather than the 2 hours suggested by Mr Leung. Mr Yip Chung also testified that the deceased made calculations of his earnings at the end of each month and that from conversations with the deceased he learned that the deceased's earnings were around $4,000 per month. Incredibly his view was that the deceased's earnings remained the same, throughout his last 4 years. I think that is an indication of Mr Yip Chung's lack of precise knowledge of the deceased's earnings rather than of his truthfulness, for I was impressed by his demeanor. He impressed me as being neither dishonest nor extravagant in his claims and in general I accept his evidence. Regrettably, like the other evidence in this case, it does not go very far. Mr Yip Chung also testified and I accept that the deceased not only worked overtime for the defendant but also for others after hours. In that regard Mr Leung said the freelance overtime rate was around $100 per job.

17. The only other evidence of relevant earning rates came from Census and Statistics Department statistics of average daily rates of plant and equipment operators engaged in Government building and construction projects which indicate monthly wages of about $3,255 in July 1981 and $4,700 in July 1986 on a 28 working day month, which reflect an increase of about 45% over the 5 years. No corresponding figure for overtime rates were produced. Nevertheless I am unable to accept Mr Leung's evidence that overtime rates remained static and consider it most likely that they increased probably by the same percentage as the average wages for plant and equipment operators i.e. by about 45% over the 5 years.

18. The deceased's monthly earnings would accordingly be First on Mr Leung's evidence, in 1981 $3,305 (comprising wages inclusive of bonus at $2,705 and overtime payments from the defendant at $600). And at the time of trial, $4,390 (comprising wages bonus and unchanged overtime).

19. In my judgment these amounts, which reflect 30 hours overtime i.e. 2 hours on 15 days per month, would need to be increased to take into account the 3½ hours overtime that I consider were worked on each of those days (as opposed to 2 hours) at $20 per hour, and the additional freelance overtime worked on 3 days per month at $100 per occasion, both rates of pay to be increased by 45% in respect of the time of trial. That produces a total of $4,055 in 1981 and $5,747 at the time of trial.

20. Second on the deceased's brother's evidence the deceased's earnings would be $4,000 both in 1981 and now, but as I have said it is reasonable to assume that this amount increased at approximately the rate indicated by the Census and Statistics Department's wage figures i.e. 45%.

21. Third on the Census and Statistics Department rates they would have been in 1981, on a 28 working day month, about $4,825 (comprising wages of $3,525 inclusive of bonus, plus 3½ hours overtime at $20 per hour on 15 days with the defendant ($1,050) and 3 freelance jobs at a rate of $100 each). And at the time of death $7,055 (comprising wages of $5,095 ($168 x 28 x 13 ÷ 12) overtime payment from the defendant $1,525 ($1,050 + 45%) and freelance overtime (300 + 45%) i.e. $435).

22. As I have indicated, I think it reasonable to adopt the rate of average wage increases disclosed by the Census and Statistics Department figures, as applying equally to overtime earnings. But I am far less happy about adopting those average wage rates themselves as they relate not merely to all sorts of plant and equipment operators but to just those who, unlike the deceased, were employed on Government building and construction projects. What sort of plant and equipment they operate I know not; cranes might comprise a minor element. Other factors, too, might undermine the relevance of those figures. Mobile crane operators on non Government projects, particularly those moving containers might attract very different wages. I prefer, therefore, to rely upon Mr Leung!s wage figures, which incidentally incorporate an increase not all that much out of line with.the 45% increase disclosed by the Census and Statistics Department figures. Moreover. they are also, closer to the deceased's brother's understanding of the deceased's earnings. In making the best use of the deficient evidence available find the deceased's earnings at the time of his death were $4,055 per month and that at the time.of trial they would have been $5,747 per month.

23. I proceed then to consider his expenditure and the "free balance". I accept the deceased's brother's evidence, which was not seriously disputed, as to the deceased's life style, annual visits to China and so far as it goes, expenditure. Upon the basis of that, and such, assumptions as appear reasonable to me in the absence of evidence, I think it reasonable to assume that the deceased's monthly expenditure (excluding payments to dependants) at the time of his death was:

Food	$750
Electricity	$100
Water	$    4
Telephone	$    5
Rent	$360
Transport & Other Expenditure	$425
Total	$1,644

The foregoing sums reflect the deceased's life style and the absence of any evidence that he continued to share his room after his brother moved out with his family.

24. To proceed, I accept that the deceased had purported to adopt his nephew i.e. his brother's son, that the nephew was dependent upon him and that he received HK$300 per month from the deceased. Needless to say, it appears to me that the nephew had not only a reasonable, but an exceptionally well founded expectation that the deceased would continue to support him.

25. I proceed then to the FAO claims, first of all to those of the deceased's mother now aged 95, his widow now aged 55, and his daughter now aged 23. It is not disputed that they should be allowed pre-trial dependency payments at the agreed total rate of $1,100 per month. That is $1,100 for exactly 5 years which is $66,000. In respect of the nephew now aged 14, in my view he too clearly appears to be entitled to pre-trial payments at the rate of $300 per month for 5 years i.e. $300 x 12 x 5 = $19,500. As to his post-trial entitlement, I think he would cease to be dependent at 18 and on that basis should qualify for a post-trial residual . period of 3 years, i.e. 8 years. Normally 8 years purchase would be secured by a multiplier of less than 8. I do not think such a multiplier should now be adopted as both the period of payment in advance and within which the vicissitudes of life might occur is much reduced. The 3 remaining years would produce $10,800 ($300 x 12 x 3).

26. Funeral expenses of $15,000 and the current conventional sum of $20,000 for loss of expectation of life are agreed. As to the loss of earnings, upon the method of calculation now well established, and the findings I have already made, the deceased's monthly rate of savings at the time of death was approximately 60% of his earnings. The pre--trial loss is therefore 60 months free balance, i.e. 60% of the median earnings ($4,900) i.e. $176,400 ($4,055 + $5,747 ÷ 2 x 60 x 60%).

27. As to the post-trial loss, the multiplicand is 60% of the deceased's earnings at the time of death i.e. $3,447. The appropriate multiplier has to be applied to this. The usual and now well established practice is to adopt more or less the multiplier used by the courts in similar cases. It is not disputed that this is about 10. However, Mrs Kaplan for the plaintiff has argued plausibly that the deceased was quite likely to continue working till the age of 68 or thereabouts and that to discount 20 years purchase by as much as 50% because of the vicissitudes of life and the other vague and shadowy considerations that appear to have produced the multiplier of 10 is much too drastic. She suggests a multiplier of 12. However, I find speculation on whether the deceased would have survived and worked up to the age of 68, and what to allow for that or a reduced age and, for other considerations that appear just as relevant, no less shadowy and vague. I deem it prudent to adhere to the usual multiplier of 10. Applying the, balance of the multiplier (i.e. 10 minus the pre-trial 5 years i.e. 5 to the'multiplicand of $3,447 (i.e. $3,447 x 12 x 5) produces a sum of $206,820.

28. To sum up the LARCO award, this is as follows:

Funeral expenses	$ 15,000
Loss of expectation of life	$ 20,000
Pre-trial loss of earnings	$176,400
Post-trial loss of earnings	$206,820
Total	$418,220

From this must be deducted the Employees' Compensation payment already made of $65,000 which leaves a balance of $353,220.

29. It is agreed that the widow's and daughter's FAO and LARCO awards merge and that the former disappear. The mother will not benefit from the LARCO award and will accordingly retain her $22,000. No award is made in respect of the nephew who it turns out technically was not represented by the plaintiff, so that no claim was properly made on his behalf that could have been adjudicated. Hopefully my views, which obviously are not binding, may nevertheless assist in any claim that may be made on his behalf being. settled without undue costs being incurred. I record however that Mr Yu did not present the defendant's case in that respect there being good reason for his not doing so.

30. There will accordingly be judgment for the plaintiff in the sums of $353,220 and $22,000 with interest on the pre-trial loss of earnings ($176,400), funeral expenses, ($15,000) and mother's FAO award ($22,000) at the agreed rate of 5% from the date of death, and at the rate of 2%, on the loss of expectation of life award of $20,000 from the date of the writ (14 th May 1984).

31. Costs to the plaintiff; plaintiff's own costs to be taxed in accordance with the Legal Aid Regulations.