HUNG OI MUI v. LAM KWOK LEUNG AND ANOTHER

HCPI205/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES NO.205 OF 1998

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J U D G M E N T

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1. This case arises out of a road accident on 17th December 1996 which resulted in the death of Hung Tin Kai. The Plaintiff, Madam Hung Oi Mui, is his daughter. She claims as dependant of and appointed by Order to represent the estate of Hung Tin Kai. She claims under the Law Amendment and Reform (Consolidation) Ordinance and the Fatal Accidents Ordinance.

Liability

2. It is not in dispute that the accident occurred at about 7:55 p.m. on Hoi Pa Road, Tsuen Wan, at a pedestrian crossing near to the Fuk Loi Estate. The 1st Defendant, Lam Kwok Leung, was driving a goods vehicle No.EY2495 westwards. The vehicle belonged to the 2nd Defendant who was the 1st Defendant's employer. There is no dispute that the 1st Defendant was driving in the course of his employment.

3. The vehicle collided with Mr Hung on the pedestrian crossing, as he attempted to cross from the south side of the road. Mr Hung was killed. Later Mr Lam was charged with Reckless Driving causing Death. He pleaded guilty.

4. According to Mr Lam he was driving at about 40 kph. His lane ahead was clear. On the opposite lane, a PLB flashed its lights and came out to try to pass another stationary PLB. He slowed down a little. Then he saw an elderly pedestrian run out from his left side, onto the crossing. He braked to a stop but was unable to avoid the collision. The right front of the vehicle hit the pedestrian. He was thrown into the air, but the witness did not see where he landed.

5. A scale sketch plan has been produced by agreement. It shows the vehicle on the pedestrian crossing. Its front is beyond the edge of the black and white surface markings, at the dotted boundary line. Bloodstains are shown in the other carriageway about five metres from the edge of the surface markings. The carriageway is shown as four metres wide. There is no suggestion that the vehicle swerved, so the point of impact may be taken as having been somewhere on the crossing, about three to four metres from the kerb.

6. Mr Lam said that when he first saw the pedestrian he was about six feet away. However, confronted with a statement in which he had said that the distance was about 13 metres, he agreed that this was probably correct. He had also given the police an estimate of 10 to 15 metres. He admitted that he was not paying particular attention to the presence of pedestrians near the crossing. He was asked if he had braked before or after seeing the old man; at first he said that he had slowed for the oncoming PLB, but then he said that by that time he already saw the old man coming out, and that he braked after he saw the old man running. He maintained that he had been travelling at 40 kph and denied that he had been going too fast. He could not say how fast the old man was running or whether he was running like a young man; but he maintained that the old man was indeed running.

7. He said that he had pleaded guilty to the charge after taking legal advice, because the accident was his fault, for not giving way to the pedestrian on the crossing.

8. The effect of the plea of guilty is that negligence on the part of the Defendant is presumed. There is no suggestion that he has rebutted the presumption. He should obviously have kept a better lookout, anticipated there might be pedestrians crossing given the presence of the PLB, seen the Deceased before it was too late and taken the appropriate action. The only question is whether there was any contributory negligence on the part of the Deceased.

9. There is no independent evidence. The only evidence comes from the driver, Mr Lam. At first glance his evidence that the old man ran out, and the fact that he got nearly to the middle of the road, suggests a lack of care on the part of the Deceased. I indicated as much in the course of the trial.

10. The Plaintiff urged me in assessing liability to heed the remarks of Lord Denning MR in Chapman v Copeland (CA 121/66, unreported) as reported in Fong Moi Yin v Rapian Bin Suhaili [1996] 2 HKC 255. Lord Denning said :

"When a man is dead and cannot give evidence, I am ready to make every reasonable assumption in his favour."

11. Whether the Deceased can be found negligent of his own safety, and to what extent that negligence contributed to the accident depends on a number of factors. It depends on whether he failed to keep a proper lookout, and did not see the vehicle coming at all or whether he saw it and decided to cross but misjudged its distance and speed so as not to give the driver a chance to stop in time. We do not know whether he looked or not; Mr Lam cannot help on that. So much depends on the distance and speed of the lorry and the speed of the Deceased himself.

12. Mr Lam first said that he saw the old man when he was about six feet away. He was reminded of his statement in which he had said that the distance was 13 to 14 metres. He accepted that this was more likely. He had in fact also mentioned to the police a distance of 10 to 15 metres. His evidence of distance is obviously unreliable.

13. Mr Lam's evidence of the actions he took was somewhat inconsistent. At first he said that he slowed when he saw the PLB; then he said that he did not slow or brake until he saw the old man running out.

14. A further difficulty arises from the accident itself. Whether or not the Deceased's own actions contributed to it, Mr Lam obviously did not see him until it was too late. He had only a split second to observe what the Deceased was doing. Not surprisingly he was unable to estimate the Deceased's speed; but he could not even say whether the old man was running like a young man. All this suggests that his observation of the Deceased's actions is intrinsically unreliable. It is difficult to know whether he really saw the Deceased rush across, or whether, because he suddenly found the Deceased in front of him, he thinks that that is what he saw.

15. It is for the Defendants to prove contributory negligence on the balance of probabilities. Leaving aside any question of assumptions in favour of the Deceased, one can certainly assume nothing against him. The only evidence given on the Defendants' behalf seems unreliable on various matters. In the circumstances I cannot be satisfied that the Deceased was negligent or that he contributed to the accident.

16. I find the 1st Defendant 100% liable for the accident. This liability also attaches vicariously to the 2nd Defendant, his employer.

Quantum

17. Evidence on quantum comes from the Plaintiff herself as well as from the agreed documents.

18. The Plaintiff said that she was the second child and eldest daughter of the Deceased. He had come to Hong Kong in 1989. She had come before that. He had been a team leader on a farm in mainland China. He got a job in a warehouse in Hong Kong. He had stayed in the same job till his death.

19. At the time of the death, Madam Hung was living with her husband, two children and aunt in a temporary housing area in Tsuen Wan. The Deceased and his eldest son lived in another house in the same block. All the family ate together every evening.

20. Madam Hung said that contributions to the household were made as follows:

Brother : $1,000-$1,500 per month

Husband : $5,000, minimum $4,000

21. If that was not enough she asked her father for money. Usually he contributed $2,500 to $3,000. If that was not enough he would tell her to withdraw more. The Deceased and Madam Hung kept two joint accounts.

22. He also gave her nutritional food worth $600 or $700 a month because she had a heart problem. She saw a doctor monthly, at $700 to $800 a visit and he paid her $1,000 per month to see the doctor. Her expenses were:

Rent : $460 per month

Water : $200-$300 per quarter

Electricity : $200-$300 per month

Gas : $80 per month

23. Her eldest son was in primary school, no fee was paid but books cost $800 per year and private tuition $1,000 per month. Her younger son's kindergarten fees were $600 per month. The family food bill for everyone to eat together was $4,500 per month. She put her father's expenses which she sometimes went to pay because he did not have time at :

Rent : $310 per month

Water : several $10s

Electricity : $200 per month

Gas : $80 per month

24. She said that her father who was 66 had been fit and healthy with no major illnesses and no hospitalisation except for an appendix operation some years ago. He went jogging and climbed the stairs up a nearby hill. He did not smoke, drink or wear glasses. He had held the same job since 1989. His employer had a good relationship with him and had paid for a gold key to put in his mouth at the funeral. Funeral expenses had been $23,500 for the resting place for the ashes. She had moved to Australia on a visitor's visa at her brother's insistence. If her father had lived she would not have parted from him, they had a very good relationship.

25. Cross-examined as to discrepancies between her statement and her evidence, she insisted that the latter was true and was what she had told her instructing solicitor. She said she had not made up the dependency, which was not originally claimed, or the medical expenses paid by her father which were not shown as such in the statement, to inflate the claim.

Law Amendment and Reform (Consolidation) Ordinance

Loss of Accumulation of Wealth

26. Where the evidence establishes a pattern of saving or where the Deceased was earning a good salary with an ability to save, the Court may award loss of accumulation of wealth accordingly by applying a suitable multiplier and multiplicand.

27. The Deceased was aged 66. He was in full time employment as a warehouseman. There is no evidence as to how long he would have gone on working, but equally there is no suggestion that he was approaching retirement. He was already past the common retirement age of 65. There would be no reason why he should not go on working for several more years. He had been in the same job since 1989 and the evidence of his daughter is that his relationship with his employer was good.

28. At the time of his death he was earning about $15,000 per month. His tax returns showed an average annual increase since 1990 of 26%. The claim as set out in the Revised Statement of Damages was based on average savings of $8,634.80 per month prior to death with a probable increase of 10% per annum. Counsel has since put in further revised figures.

29. It is clear from the bank accounts which have been produced that the Deceased had an established pattern of savings. The savings were his. All the evidence from the Plaintiff is that she took money out of the joint accounts rather than put it in.

30. Counsel for the Plaintiff has worked out several figures based on the account with the Hong Kong and Shanghai Banking Corporation. There is also a time deposit, some of which came from the savings account. Based on the period from the date of opening of the account in January 1995 to the date of death, she calculates a saving pattern averaging $8,041.39 per month. Based on the 1995 savings, she calculates an average of $6,544.80 per month. Based on the figures for 1996, she calculates a figure of $9,413.28.

31. Based on various cases, Counsel argues for a multiplier of six. This is in accordance with the cases cited by both Counsel where the deceased was aged in the middle sixties. See Lam Fong on behalf of Chan Yau Mui v. Chow Ping Wing, HCA6400/83 (unreported) and Tsoi Muk Yam, (Administratrix of the estate of Ling Yan Jing, deceased) v. Chan Yun Kwong & Anor., HCA567/83 (unreported).

32. Counsel for the Defendants argues that at best, in the absence of any positive evidence from the employer, the Court should only find that the Deceased might have worked for another year. He also says that there would be no savings but rather a diminution of wealth in the years between retirement and normal death. Therefore the Court should take a multiplicand of no more than 10% of earnings.

33. The Deceased was a fit, healthy and active man. He could probably expect to live until his late 70s. There would be no reason for him to give up work in the near future. He was well established in the job, it would not be particularly strenuous and it is not the sort of work where the employer needs to get rid of an old man to make room for a younger one. Rather in a warehouse or store, there is every reason to keep on an experienced employee who knows his way around.

34. It seems to me that in this case the proper multiplier is six. As to the multiplicand, on the latest figures, I accept the savings per month of $8,364.80 shown in the Revised Statement of Damages. I think that an increase in savings of 10% per annum as set out in the Revised Statement is reasonable. While the tax returns show a greater average increase in earnings since 1989, the economic climate has worsened recently. Though it may be improving I think it would be imprudent to expect the same kind of increases in the next few years.

35. Accordingly the pre-trial loss of accumulation as calculated in the Revised Statement of Damages will be $289,305.90, and the post-trial loss will be $411.940.98, making a total of $701,246.88. The question of deduction for accelerated receipt was not raised so I will not make any such deduction.

Bereavement

36. The agreed statutory figure is $70,000.

Funeral Expenses

37. The claim is for $71,000. Counsel for the Defence says that the mourners' dinner at $5,400 should not be allowed. I agree. He also says that the fee of $23,700 for the resting place for the urn should be disallowed.

38. The authorities on this are contradictory. My own view is that the ashes have got to go somewhere. People cannot be expected to keep them at home. Few people in Hong Kong are likely to wish to scatter a parent's ashes on land or at sea. So on principle, this should be allowable. The question under the Ordinance is, what is reasonable? The figure of $23,700 for a resting place in perpetuity seems reasonable enough to me, it is after all little more than two months' earnings for the Deceased. I will allow it. So the total for funeral expenses will be $65,600.

Fatal Accidents Ordinance

39. The Plaintiff's evidence on this is rather contradictory and unsatisfactory. It is clear that she was taking money out of the joint account which her father put in. But this money went into a common fund for supporting the family. She cannot claim that it represents her own dependency. She says that because of her heart problems, her father would buy her nutritious food at a cost of about $600 or $700 per month and he would give her $1,000 per month to see a doctor. These figures were of course not in the original claim. They were added later. In any event, it is difficult to see whether the medical expenses figure formed part of what the Plaintiff withdrew for herself, because it seems that sometimes the father went to the bank and gave her money and sometimes she withdrew it herself. It seems to me that the most reasonable approach is to accept that the Deceased bought the nutritious food and paid for some of her medical consultations. I would put her total dependency at $1,500 per month.

40. Applying the same formulae as those set out in the Revised Statement of Damages, and a multiplier of six, I put the pre-trial loss of dependency at $51,879.75 and the post-trial loss at 73,870.60 making a total of $125,750.35.

Award

41. The final figures for the award are as follows:

Law Amendment and Reform (Consolidation) Ordinance
Loss of Accumulation of Wealth	$701,246.88
Damages for Bereavement	$70,000.00
Funeral Expenses	$65,600.00
Fatal Accidents Ordinance
Loss of dependency	$125,750.35
Total	$962,597.23

Interest

42. The pre-trial dependency award and the claim for funeral expenses will bear interest at half the judgment rate from the date of death. Following Chu Kan Yee v. Giant Ocean Ltd. [1996] 1 HKC 284, the award for bereavement will attract interest at the prevailing rate payable on suitors' funds from the date of death.

Costs

43. Costs nisi of the action to the Plaintiff to be taxed if not agreed. The Plaintiff's own costs to be taxed in accordance with the Legal Aid Regulations.