CHAN YUK YIN AND OTHERS v. CHAN CHEUNG WAN

HEADNOTE

Fatal injury LARCO claim

Loss of accumulation of wealth award made notwithstanding absence of any pattern of savings. Although a higher rate of savings and accumulaton of wealth seemed probable, an award of 10% of the deceased's earnings was made, on the basis that such a percentage would be a clear minimum that would be saved and that it was too speculative a task to assess any excess above that rate.

1988, No. 7911

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

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JUDGMENT

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1. This is a fatal injury action brought on behalf of the estate and the dependants of deceased under the Fatal Accidents Ordinance (Cap. 22) ("FAO") and of the deceased's estate under the Law Amendment and Reform (Consolidation) Ordinance (Cap. 23) ("LARCO").

2. The deceased was employed as a heavy goods vehicle driver. On the afternoon of the 18th February, 1987, he parked his vehicle on the left side of Chun Fai Road, alighted and when he returned and was walking along the side of his vehicle about 4 feet or so from the cab, having approached from the rear, he was struck by a van driven from the opposite direction by the Defendant, Chan Cheung Wan. He died from his injuries some 3 hours later.

3. The Defendant was tried and convicted of careless driving by a magistrate on 22nd February, 1988. The magistrate's finding was "case proved beyond reasonable doubt - failed to exercise care when negotiating bend". He was fined $800.00.

4. The action is now brought by the Co-Administratrixes of his estate. The Plaintiffs, as they are entitled to do under section 62 of the Evidence ordinance (Cap. 8), rely on the conviction for careless driving in support of their claim that the Defendant was negligent.

5. The Defendant denies liability and contends that the collision was caused or contributed to by the deceased.

The Facts

6. At the point the deceased heavy goods vehicle was parked, in the direction it faced, the road curved uphill to the right. The Defendant's van came downhill following the curve to the left. The Defendant testified that he was travelling at about 40 kph having engaged 4th gear some appreciable time before. At a point established by other evidence to have been sore 52 metres from the point of impact, he says there was some water flowing diagonally across and down the road. He had already before that put his foot lightly on the brakes because of the downward slope. Almost immediately after the front wheels encountered the water, the van skidded to the right so that half of it was across the centre line. He attempted to swerve to the left and turned the steering wheel some 90 degrees in that direction, but the van responded only slightly. It skidded out of control, moving side to side to a minor extent, along the centre line all the way until he came very close to the deceased and eventually hit him.

The Liability of the Defendant

7. In very broad terms the Defendant's evidence was consistent with the version he gave in his statement to the police about 2 hours after the accident, and in his evidence in the trial before the magistrate in February 1988. Nonetheless his version of the accident and his actions immediately preceding the collision, cannot be accepted in its entirety. For instance, until he was actually asked by his Counsel, Mr. Michael Ozorio, he did not make mention of having sounded his horn. His explanation that he was not asked is not really convincing given that both his police statement and his evidence before the magistrate were concerned with his conduct in a motor vehicle accident in which a person was killed. In addition, the emphasis he placed upon having been up that stretch of road only half an hour earlier and consequently not expecting to find water on the road, is conspicuously absent from his police statement and evidence before the magistrate.

8. Even upon his own version of events, in my judgment, his conduct fell short of that of a reasonable driver in proceeding down what he himself described as a steep slope, moreover, one that curved at that point, in 4th gear and keeping his foot upon the brake. His own evidence is that he pressed heavily upon the brakes at a point that appears on all the evidence to have been some 20 metres into the skid (and 30 metres from the point of impact), but without effect, so he pressed down even harder some 13 metres further on and locked the near side front wheel brakes. At that point, he was some 14 metres or so from the point of impact and remarkably the front of his van was as close if not closer to the near side kerb as from the centre of the roan. The single, narrow tyre mark shown on the police sketch plan suggests that his van was more or less parallel to the road at the point where the near side front tyre mark began. If, indeed, he was then skidding along almost sideways to the road as, he contended, it is surprising that no sign of that at all emerged in the evidence. On the contrary, the single, narrow skid I have referred to suggests that the van did not skid in the manner to which he testified.

9. Without praying in aid the several authorities cited to me by Counsel, I have found no difficulty in concluding that the Defendant was negligent in not changing down to a lower gear when he encountered a steep slope, aggravated by the curve, and even more by the flowing water and wet surface. Instead, he compounded his negligence by seeking to control the vehicle by using the brakes, ultimately locking the near front side wheel, and failing to pull the van out of the skid (if indeed he did skid) in the remaining distance, which in my view appears to have been ample for that purpose. He conceded that the van was skidding to the right; yet he did not steer into the skid but to the left, away from it.

10. My conclusion is reinforced by what appears in the authorities to which Counsel have referred me, notwithstanding that Mr. Ozorio sought to use his authorities to persuade me to the contrary. I reject the view that a skid is neutral, a view which seems to be now discredited (see Charlesworth on Negligence 7th Ed. para. 10 - 154; London Transport Executive v. Foy, Morgan & Co. Bingham's Motor Claim Cases p. 115; Liffen v. Watson ibid p. 113). The skidding and indeed the presence of the Defendant's van across the centre line on the opposite side of the road each required explanation, as Mr. Ozorio himself very properly conceded (Richley v. Faul ibid p.114; Brayshaw v. Praysajwpratt, London Transport Executive v. Foy, Morgan & Co,; Brown v. De Luxe car Services ibid p. 112, Liffen v. Watson). The Defendant has not explained either; on the contrary, as I have said, his account of what happened shows that he failed to maintain reasonable control of the van. Afortiori, he has failed to displace the legal burden of proof that is shifted on to him by his conviction for careless driving.

11. In my judgment, for all the foregoing reasons, the defendant is liable in negligence.

Contributory Negligence

12. I turn now to his defence of contributory negligence oh the part of the deceased. In substance, that defence, as pursued at the trial is that the deceased parked his vehicle and therefore placed himself in a dangerous position; and also that he should have approached the driver's cab of his vehicle from the front and not the rear, which exposed him for comparatively a much longer period to the danger of traffic on the carriageway; close to the centre of which he had walked.

13. I have no hesitation in rejecting both contentions. From all the evidence, the position in which the goods vehicle was left was not dangerous. Indeed, in placing it on a straight section of the road, albeit towards the end of that section, from which vehicles travelling on the same side would approach, and not on the curved section, the deceased exhibited some concern for care and caution. Likewise, in approaching from the rear, from which direction any danger to him would normally come, i.e. from vehicles on his own side of the road, he was able to check the approaching traffic and select a safe moment. He would not had been able to do that as well had he approached from the front. As to the danger from vehicles travelling in the opposite direction, on the other half of the road, the evidence is that he had ample room to approach his cab safely. The Defendant estimated that if he had driven in his own lane there would have been a gap of some a feet or so between the two vehicles. Even if the gap was overestimated by the Defendant, there does not appear to have been any negligence by the deceased in respect of danger from vehicles on the opposite side of the road. In my judgment there was no contributory negligence on the part of the deceased.

The Claims

14. I turn then to the question of the quantum of the Plaintiff's claim. Under the FAO, the claim is in respect of the dependency of the deceased's widow or wife, as she was referred to, his daughter and father; and also for bereavement under section 4.

15. On behalf of the estate, the Plaintiffs claim under LARCO is for funeral expenses of $20,000, and also loss of wealth under section 20(2).

The Deceased's Earnings

16. Before I cone to assess the foregoing claims in terms of figures, it is convenient to begin with the amount of the deceased's earnings at the time of his death and what they would have been now. It is not in dispute that his earnings at the time of his death on 18th February 1987, were HK$4.450 per month including overtime.

17. Turning to the assessment of what they would have been at present the evidence of a Census and Statistics Department officer was that the earnings in respect of the occupation of "Truck driver (trucks operated as a plant) engaged in Government Buildings and Construction Projects" have gone up from an average of $145.60 per day in February 1987 to $295.80 in February 1990 i.e. about 105%. There was some debate as to whether the words "operated as ant" would import a significant difference from the driver of a heavy goods vehicle engaged in transportation. I do not think those words would warrant that, having regard to their appearance in the context of "Government Building and Construction Projects". If the occupation imports a wide range then as the driver of a heavy goods vehicle; moreover one fitted with a crane, as the evidence establishes, the deceased would probably have been paid at the top end of the category. That view is reinforced by another description "excavator driver, bull-dozer driver etc." being in the separate and better paid category of 'Plant Operator" in the same Census and Statistics Department record sheet.

18. Furthermore, the February 1990 figures are now almost 3 months old, and to the extent that they are used without enhancement, embody some discount. I see no reason why the rates in the private sector projects should be any different or why I should reject the Census and Statistics Department figures for February 1990 merely because the deceased's employer has not been called, or because the wife's remuneration which, although attracting increases of a far lower percentage, was in a wholly different occupation, should lead me to reject them as contended for by Mr. Ozorio. Accordingly, in the absence of evidence to the contrary I accept as most probable that the deceased's remuneration would have increased by 105%. Applying that to the February, 1987, remuneration of $4,450, the amount produced is $9,122.50 per month; which I accept as the earnings that the deceased mould have received at the time of the trial.

FAO Damages

19. I turn next to the basic facts concerned with the FAO claim. Damages for bereavement are provided in section 4(3) of FAO, which fixes the amount at $40,000 so I need not concern myself further with that.

20. I turn to consider the dependency of the deceased's 3 dependants i.e. his wife (who was aged about 26 at the time of the accident), his daughter (born on the 21st of February 1982) and his father (aged 69 at the time of the accident), His father at all material tunes lived separately and continues to do so. The maintenance provided monthly by the deceased in respect of the family unit (i.e. he, himself, his wife and daughter) was on the evidence $1,310 in respect of rent and utilities and $526 in respect of family outings. In addition, he paid monthly in respect of his daughter $164 in kindergarten fees and $1,200 to his mother-in-law as child-minding fees or payment. The former would be expected to cease when the daughter reached the aye of about 7 or 8, and the latter when she reached the age of about 12; dose amounts would then be expected to go into the family pool. As I have said the deceased's father did not live with him, but had been given a monthly allowance of $500 per month by the deceased for some years. All these amounts totalled $3,700 per month which left the deceased only about $750 a month for his own expenditure including the midday meal, his transport and so on.

21. The wife earned $1,800 per month out of which she contributed about $1,000 per month for food. I interpose here with the explanation that most of these details come from the wife who gave her evidence in a convincing, restrained way, and was not seriously challenged in cross-examination. Needless to say, I accept her evidence generally.

Amount of Dependency - Multiplicands

22. It is accepted by Mr. Ozorio that in the ordinary way, dependency would increase in proportion to the deceased's income. However, in this particular case, having regard to the deceased's character, the gifts he gave to his daughter e.g. toys and clothing, and in particular the fact that his contributions were limited by the low level of his income, a factor I consider particularly significant, in my view, the dramatic increase in his income that would have taken place after 18th February, 1987, would certainly have had some significant effect on the level of expenditure on his daughter so that in my view, the $164 and later the $1,200 per month would most probably not have been withdrawn from his contribution to his daughter's maintenance. I therefore do not propose to reflect any such deduction in the post trial calculation of the daughter's dependency. I think also that the wife's dependency would for the like reasons have similarly increased. But as there is no similar basis upon which to quantify it and since any additional increase would tend to diminish the loss of wealth award which would come to her in any event, I do not propose to inflate the wife's dependency in a corresponding way. The multiplicand for the wife will accordingly be 1/3 of the family unit expenses i.e. $1,310 / 3 = $436.60 +1/3 of the family outing expenses ($526 /3 = $175.30).

23. The daughter's multiplicand will be the foregoing 2 amounts i.e. 1/3 of the family unit's basic expenses + 1/3 of the outings expenses + $164 (kindergarten fees) + $1,200 (child-minding payments) = $1,876.

24. The father's multiplicand will, of course, be $500 per month.

25. The median increase for the pre-trial period is 52.5%, and as I have already said the increase from the date of the accident to February 1990 is 105%. I accept this as the increase from the date of the accident to the date of the trial and do not make any additional allowance for the 3 months since February, no figures or evidence in respect of the latter 3 months having been tendered nor, indeed, such allowance having been sought.

Multipliers

26. I turn now to the multipliers to be applied in respect of the 3 dependants.

27. Beginning first of all with the wife, it is disputed whether the multiplier should be 15, as contended for by Mr. Ozorio for the Defendant, or to as contended for by Miss van der Eb for the Plaintiffs. It is clear from the list of cases helpfully produced by Mr. Ozorio that a multiplier of 15 has been more usually or predominantly applied by the courts to the wife's age group and general circumstances. I digress there for a moment to acknowledge my gratitude to Mr. Ozorio for the considerable assistance I have derived from his submissions and schedules. To return to the multiplier applicable. Miss van der Eb submits that the present tendency of the courts is to increase multipliers. But that was not demonstrated to me. And while Miss van der Eb did not abandon the point, I did not understand it to be strenuously pursued. In the result I adopt 15 as the appropriate multiplier.

28. Turning to the daughter, again there is some dispute between the parties as to whether the daughter is likely to proceed to tertiary education or not. I accept the wife's evidence that in her most recent examinations, the daughter has been placed 4th in a class of some 30 to 40 pupils. On the other hand, the daughter's family background in respect of both her parents does not reveal any progression to tertiaryeducation. However that may be, taking into account the high importance placed on education in Hong Kong and that the daughter has already exhibited well above-average intelligence as manifested in her recent examination results, it seems tome probable That she would progress to tertiary education. Mr. Ozorio upon the basis that she is not likely to attain tertiary education submits that the appropriate multiplier should be 7 years to reflect dependence only from the age of 5 to abound 16 or 17. However upon the view I have taken of the years, I think that the multiplier should reflect dependence up to about 21 fears of age. And on that basis it seems to me the appropriate multiplier should be 10.

29. I turn to the father's multiplier lien. He was 69 at the time of the accident and, as I have said, his health is said not to be good. I think the appropriate multiplier should be 6 years.

30. Accordingly, I would award the following amounts in respect of the dependency claims under FAO Subject to correction of any mathematical errors.

The LARCO Claim

31. The former position has been substantially changed by the Law Amendment and Reform (Consolidation) Amendment Ordinance 1986 which was enacted after a report by the Law Reform Commission and came into effect on 1st November 1986. Instead of damages for the lost years, the courts now have to assess the net savings the deceased would have made. The relevant provision is section 20:

 

"(1)   Subject to the provisions of this section, on the death of any person after 26 October 1951 all causes of action subsisting against or vested in him shall survive against, or, as the case may be, for the benefit of, his estates:

 

Provided that this subsection shall not apply to causes of action for defamation or seduction or .......

 

(1A)    .......

 

(2)    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 -

(a)	......
(b)	shall, where the death of that person has been caused by the act or omission apish gives rise to the cause of action -
	(i)    be calculated without reference to any loss or gain to 'h is estate consequent on his death, except that a sum in respect of funeral expenses may be included;   (ii)    not include any damages in respect of loss of ability to render services after his death,   (iii)   not include any damages for loss of property, whether income or otherwise, in respect of any period after his death, except in so far as the court is satisfied that, but for the act or omission that gave rise to the cause of action, the deceased would have achieved an accumulation of wealth by the time that he would otherwise have died in which case damages may be awarded in respect of the loss of that wealth:

 

          Provided that damages awarded under this sub-paragraph shall be subject to such deduction as the court considers it just to make in the circumstances of any particular case on account of the accelerated receipt of that wealth any in order to avoid over-compensation."

Loss of Wealth

32. Before turning to the sums involved I will deal with the facts underlying the loss of accumulation of wealth claim. The Defendant left no savings to speak of. He had a savings account which was $973.49 in credit at the time of his death. His savings account book does not manifest any pattern of savings; rather the account seems to have been used as a current account. Mr. Ozorio submitted that in the absence of a pattern of savings, no award under the head of loss of wealth should be made. While I accept that it is upon a pattern of savings that a loss of wealth award might ordinarily be made, in my view it cannot be right to deny an award in the absence of such a pattern where the evidence establishes a probability that savings would have been made, if such savings can be assessed on some other, possibly even minimal basis. It is clear from the evidence that the deceased's income at the time of his death was so low, even when combined with his wife's income that no savings could be made. But that situation clearly would have dramatically changed with the sharp increase in income in his occupation. I have already adverted to this in concluding that he would not have stopped contributing the amounts involved when the kindergarten fees of $164 and the child-minding payment of $1,200 per month would have ceased to be payable. Undoubtedly; even if the family unit's and the deceased's own expenditure increased, the deceased would very rapidly have moved into a position in which he could have effected substantial savings; And if he was in a position to do so I have no doubt given his character, that he would have made substantial savings. The evidence revealed the deceased as a responsible and dutiful father husband and indeed son. He has no vices, certainly none that involved expenditure. Indeed, apart from housing, utilities and the meals he had at home; he seems to have managed for all his own personal needs, including travelling, the meals he took away from home, clothing and the like, on just about $750 a month, marginally less than the $800 his wife had left over from her own earnings and yet he found it possible to give his daughter gifts of toys and clothing.

33. Having regard to his own sober and frugal habits and indeed, the natural thrift of the inhabitants of Hong Kong (that was commented upon by Sir Denys Roberts C.J. in Wong Sai Chuen v. Tam Mei-chun (1983) HKLR 331, 339) I have no difficulty in coming to the conclusion that the deceased would certainly have begun to make savings as soon as he was able to do so and that, in my view, would not have been very long after the time of his death, given the surge of remuneration in his occupation.

34. In the past, in a not unrelated context, the somewhat arbitrary figure of 10% of net earnings has on occasion been adopted as a person's notional savings (e.g. see Wong Sai Chuen p. 339B). In the particular circumstances disclosed by the evidence in the present case I have no doubt the deceased could have been expected soon to have been able to save at least 10d of his earnings and very rapidly substantially more. Savings of 10%, that is $912.25 out of $9,122.50, seems to me to be very much on the low side, given all the circumstances I have already adverted to, including early cessation of the monthly allowance of the $500 to the father. But for the absence of evidence of some tangible basis upon which to found such an assessment, I have little doubt that savings in excess of 10% of the deceased earnings would have been justified. But to assess how much more I find too speculative a task. I therefore assess the loss of accumulation of wealth at the minimum 10% of his earnings, which I am satisfied he would at the very least have saved. In doing so, I have discounted altogether the amount of kindergarten fees and child-minding fees that would, in my view, have continued one way or another as contribution to the maintenance of the daughter, and would have ceased when she reached the age of 21 and the dependency ended. That seems to avoid an unnecessary leap in the dark by adding the latter amount to the 10% of the deceased earnings.

35. Mr. Ozorio submitted that deductions should be made in respect of income tax that would be payable upon the deceased's post trial earnings at the rate of 1.7% while the daughter would be dependent, and 3.2% while she would not. It does not seem to me that such minimal imposts would have materially affected the deceased's rate of savings, which I have already taken at the minimum of 10% of the deceased's earnings (albeit gross). Furthermore I have not brought into the aggregate of the savings the amount (corresponding to the kindergarten fees and the child minding-payments) that would have been saved once the daughter ceases to be in receipt of dependency on attaining the age of 21 years. In consequence that amount is subject to the multiplier of 10 applying in respect of the daughter as opposed to that of 15 whim I consider appropriate to the deceased (and which I understood not to be disputed). I conclude, therefore, that no seduction on account of the income tax that would be payable is called for. Doing the best that I can, I accordingly make the following LARCO award:

36. From those amounts there must of course be deducted the amount of ,299,000 already received from the deceased's employers as Employee's Compensation. I will now hear Counsel upon those calculations and also upon costs and interest.

            (Following a short adjournment and submissions)

37. I am indebted to Counsel for helpfully agreeing all outstanding matters i.e. costs interests and payment orders. I accordingly make the following order. The net sum to be paid by the Defendant to the Plaintiffs will be $579,233.90, i.e. inclusive of interest and after deduction of the $299,000 Employees compensation already pain. The individual payments, net and inclusive of interest will be to the father: $33,200.00; to the wife $258,657.30 and to the daughter: $287,426.60.

38. I order the latter amount, i.e. the payment to the daughter, to be Laid into court by the Defendant within 14 days and to be invested by the Registrar of the Supreme Court for the Maintenance advancement and education or the daughter with liberty to apply.

39. The balance of the judgment sum i.e. $291,857.30 to be paid by the Defendant within 14 days to the Director of Legal Aid on behalf of the Plaintiffs subject to the first charge of the Director of Legal Aid.

40. The Plaintiffs are to have their costs, to be taxed if not agreed. The Plaintiffs' own costs are to be taxed in accordance with the Legal Aid Regulations if not agreed.