CHOW LIN HUNG AND ANOTHER v. LUI SUET HING AND OTHERS

HCPI 332/97

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES LIST NO. 332 OF 1997

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J U D G M E N T

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Introduction

1. This is a personal injury claim where both liability and quantum of damages is disputed. The Plaintiffs bring the action for the benefit of the dependants of the Deceased under the Fatal Accidents Ordinance, Cap. 22 and the deceased estate under the Law Amendment and Reform (Consolidation) Ordinance, Cap. 23.

2. The Deceased was a 40 year old female cleaning worker who died in the course of her employment with the 3rd Defendant while cleaning the car park at the ground floor of an industrial building. She was crushed against and dragged along a wall by the near side of the lorry owned by the 1st Defendant (who was the 2nd Defendant's wife) and driven by the 2nd Defendant. The accident occurred when the 2nd Defendant moved the lorry from one of two vehicle parking spaces of the loading bay on the ground floor, intending to place it in the adjacent space.

3. The accident occurred at about 8:30 a.m. while the Deceased was carrying out cleaning duties on the instructions of her employer, the 3rd Defendant. Deceased had been employed by the 3rd Defendant since 1990. It was customary on Saturdays for the ground floor car park to be cleaned.

Cause of Death

4. The victim died of a fractured skull. Expert evidence was given by Dr. Lai Sai Chak, that after studying the layout of the scene as described and sketched in various police statements, it was clear to him that Deceased's injuries indicated that her head had been sandwiched and dragged between two hard surfaces. He said it was unlikely, although not impossible, for simple impacts to produce the same pattern of injuries. This evidence was not disputed by the Defendants.

CONSIDERATION OF LIABILITY

The 2nd Defendant's evidence

5. 2nd Defendant said the lorry was owned by his wife who was responsible for its maintenance and the vehicle was in good condition on the day of the accident. He entered the car park at about 8:30 a.m. The lighting condition was good and the floor surface smooth. He saw a vacant space on entering the car park, looked to the right and reversed into it. The near side of his lorry was one foot away from the wall; he turned off the ignition, got out, locked the door and walked to the lift lobby. The lorry was about 30 feet long including the cab. When he entered the loading bay there was nobody around and he did not see any cleaners.

6. At the lift lobby he saw staff of the Ho Hon Transport Company, the owner of the goods he had come to collect and discussed the loading of them.

7. The driver hired by Ho Hon said that his vehicle was parked in the same car park and suggested that 2nd Defendant park in his space, which was next to 2nd Defendant's lorry, as it was easier for loading the goods. The 2nd Defendant walked with the driver to the vehicles and got into his lorry. Approximately 5 minutes had elapsed from the time he entered the car park. He did not see anyone walking out of the lift when he was leaving the lift lobby, or in the area where his vehicle was. He got into his lorry and the Ho Hon driver drove the other vehicle out.

8. The 2nd Defendant drove into the space that had been vacated, having waited until the other driver moved out completely before he switched on the ignition of his lorry. He looked in his left and right mirrors but did not see anybody. He could see the wall to his left and things beyond the vehicle on the whole of its near side.

9. He drove his vehicle forward very slowly, manoeuvring a little to the right. He had moved about 5 feet when it seemed there was an obstruction. He thought he could have hit the wall, as when he looked in his left side mirror he saw scratches on the wall. He continued to drive forward manoeuvring right, which meant that the rear of his vehicle would swing left. He moved to the other car space and alighted. At that stage, an old man at the loading platform shouted out that his vehicle had hit somebody. After getting out he saw the Deceased lying near the wall about 4 feet from the loading platform. Deceased's head was pointing to the management office with her feet to the platform.

10. Under cross-examination, he said he checked the near side of his vehicle and insisted that while manoeuvring he continued to look through his side mirrors. He was sure no one was there because he looked into the mirrors before he reversed.

11. He did not physically check that no one was standing at the rear of the vehicle because he considered it sufficient to look in his mirrors. His reversing speed was less than 5 kilometres an hour. When he felt contact with what he believed was the wall, he did not stop the vehicle but slowed to 2 kilometres an hour.

12. It was put to him in cross-examination that originally he told the police that when he felt he had hit the wall, he stopped and got off to see what had happened, but in answer 2nd Defendant said that was when he first described the accident and he had subsequently corrected himself. At the time he supplied that information he was scared and, out of confusion, had stated wrongly that when he felt the contact he stopped to see what had happened. He accepted that in all probability Deceased must have entered the gap while he was talking to the Ho Hon driver and he accepted that if Deceased had been at the near side when he looked to that side, he should have seen Deceased.

13. On the 4 or 5 occasions prior to the accident that he had been to the car park he had never seen cleaning workers cleaning the loading bay, or the car park. There were no warning signs saying that cleaning workers might be in the vicinity and none of the areas had been cordoned off to facilitate cleaning.

14. He disagreed with the suggestion that his attention was so concentrated on the Ho Hon driver that he did not bother to check his near side. In cross-examination he agreed he had seen the rubbish heap shown in the photograph at page 112 of the Agreed Bundle, but had not seen Deceased. He could see the rubbish in his near side mirror. It was pointed out to him that when asked by the police when he gave his statement if he had seen the pile of scrap paper on the ground before he pulled out, he said he had not. 2nd Defendant said that what he was saying in court was the truth.

15. It was put to the 2nd Defendant that, if he had looked at all, he had given only a fleeting glance to the left mirror and he was reminded that when he demonstrated his glancing to the police they timed his glance at about 1 second's duration.

Evidence of P.W.2

16. Madam Hui Kam Mui, the co-worker of the Deceased, gave evidence and generally confirmed her statement. She said she had not seen any white scratches on the wall on the day of the accident and she supposed the marks were not there that day. She paid no attention to that area after the accident. Prior to the accident neither she nor Deceased wore reflective vests, but after the accident the 3rd Defendant provided such vests for the cleaners. This was done a week or so after the accident and she believed it was directly because of the accident.

17. She confirmed in cross-examination that Deceased was wearing a light blue shirt provided by the 3rd Defendant as part of the cleaners' uniform. She said there were no set arrangements for the work; the cleaners arranged it themselves. Normal routine included sweeping the floors and collecting the rubbish; cleaning the ground floor car park was one of the routine duties.

18. The Deceased cleaned the ground floor once a week on Saturdays and had more experience in cleaning it than Madam Hui had in the time they had worked for the 3rd Defendant. When she and Deceased went to the lift with the rubbish on the day of the accident, she had not noticed a vehicle in the loading bay. The time lapse between her leaving to go to the 1st floor and hearing the news of the accident was about 5-10 minutes. Deceased had remained on the ground floor to sweep the car park.

19. She agreed the cleaning work was comparatively simple and said the only instructions given by the 3rd Defendant were reminders to pay attention to the areas they had to clean. She agreed the job did not need special training. The instruction given by the company when the reflective vests were distributed was that they were to wear them when they were sweeping the floors.

Findings

20. It appears from the evidence that the 2nd Defendant probably parked his vehicle at the time when Madam Hui and Deceased had taken rubbish to the lift which was some distance from the loading bay. This would account for his not seeing anybody in the area at the time he left his vehicle parked. It is highly likely that while he was away, Deceased, in the course of her cleaning duties, walked into the space between the wall and the near side of the 2nd Defendant's vehicle. Although the 2nd Defendant says the near side of his vehicle was 12 inches from the wall I do not believe he is accurate. The distance was most probably at least the diameter of the bamboo basket that appears against the wall in a photograph (page 113 of the Agreed Bundle) of the loading bay taken after the accident.

21. I do not accept that the 2nd Defendant checked his mirrors as assiduously as he claimed. If he could see the full length of the nearside of the lorry to the loading platform, there was no reason why he could not have seen the Deceased, given the lighting was good and that he checked both side mirrors carefully. It is most likely that Appellant got into the lorry, immediately started it and pulled out, turning right as he did so. At that point, the near side rear of his truck hit Appellant wedging her between the wall and the truck. As he continued to turn, the injuries leading to the death were caused.

22. There was no dispute that the 2nd Defendant was driving the lorry as servant, agent, or authorised driver, or otherwise with permission of 1st Defendant. The Plaintiff urged the court in assessing the liability of the 2nd Defendant to heed the remarks of Lord Denning in Chaplan v. Copeland CA 121/66 unreported as referred to in Fong Moi Yin v. Rapian Bin Suhaili [1996] 2 HKC 255 that "when a man is dead and cannot give evidence I am ready to make any reasonable assumption in his favour." 2nd Defendant suggested Deceased must have come round from the front of the lorry and remained all the time on the near side. This would have been necessitated because the tray of the truck was right up against the loading platform.

23. It was 2nd Defendant's evidence that when he felt the lorry hit something, he did not stop but only slowed down and continued to move out. This is confirmed also by the forensic evidence. The Plaintiff stated the 2nd Defendant was negligent in failing to take reasonable care when driving off from his position. The Road Users Code sets out the duties of a driver before moving off; this requires checking inside and outside the vehicle that there were no obstructions to the vehicle moving off, with the injunction that particular attention be paid to blind spots.

24. The Plaintiffs said the 2nd Defendant was negligent in failing to check whether there was anybody at the rear, or the near side, of his vehicle and that he did not check the near side through his mirror, otherwise he would have been able to see the Deceased working there. This is quite likely, as the lighting was adequate, visibility was good and, if the 2nd Defendant did look through his mirror, it must have been a very short glance. I conclude that he either did not look at all or, if he did, the glance was so short as to be of no use.

25. The 2nd Defendant was not an impressive witness. He had given a statement to the police from which he tried to resile in court, at least on those aspects where he felt he was in some difficulty. His account of being confused and thus making errors was not credible.

26. Having considered the evidence I find this Deceased probably entered the space between the wall and the near side of the lorry during the 5 minutes or so that the 2nd Defendant was with the caretaker. She could have entered the space from the front of the vehicle, or possibly, gained access from the loading bay end.

27. The bamboo basket and broom left against the wall indicate that Deceased had been able to enter the space between the wall and the near side of the vehicle. If, as 2nd Defendant claimed, that space was only 12" wide it would have been physically impossible for Deceased to have entered the space to clean it, even if she wished to do so.

28. Nor was it likely, if the gap was so slight, that 2nd Defendant had the clear view from front to view on the near side of his lorry that he insisted he had. His initial confirmation to the police that he had seen the heap of rubbish is an indication the gap was significantly wider than he claimed it was in court.

29. For these reasons and because I did not find the 2nd Defendant a truthful witness on matters relating to the incident, I am satisfied on the balance of probabilities:

a) that 2nd Defendant did not check adequately or at all whether there was anyone behind or beside his vehicle at the time he pulled out and

b) that the gap between his parked lorry and the wall was considerably wider than 12" - wide enough to have admitted Deceased and her cleaning equipment.

3rd Defendant - Liability

30. In respect of the 3rd Defendant's liability as employer, the Plaintiffs argued that the 3rd Defendant owed Deceased a duty to take reasonable care and precautions for safety at her place of work and to provide a safe system of work.

31. As Deceased was working in a building which included a car park and loading bay Plaintiffs contended it was necessary that specific warnings and instructions be given to cleaning staff, either generally, or on the day of the accident.

32. P.W.2 Madam Hui's evidence was relevant in this aspect. She said there were no instructions from the employer on how to carry out cleaning work and she and Deceased used to co-ordinate their own work. No protective clothing was provided prior to the accident, although the 3rd Defendant's counsel made the point that a light blue shirt provided as part of the uniform would have assisted visibility.

33. Mr. Chan Hon Tung Raymond, a supervisor of the cleaning department of the 3rd Defendant, gave a statement setting out the nature of the cleaning duties performed by Deceased and how the work was organised.

34. The cleaning department had 6 cleaners under a foreman who allocated work and, where necessary, placed them with co-workers for various duties. Uniforms and cleaning equipment were provided.

35. Because the work was simple the only instruction provided by the 3rd Defendant to its workers was about the scope of their responsibilities, which instruction was given on the first day of their employment. No further instruction was deemed necessary.

36. No reference was made to any safety instructions being given, nor was any provision made to ensure a safe system of work was in place. The only reference that might be regarded as safety connected was Mr. Chan's reference to the lighting being sufficient and satisfactory. P.W.2 confirmed no safety instructions were ever given to the cleaners.

37. Counsel for the 3rd Defendant referred to Madam Hui's evidence that there had been no accident in the car park in the time she had worked for the 3rd Defendant, although there had been one accident in the area outside the car park.

38. I was referred by Plaintiff, on this aspect of a safe system of work, to Hollis v. Denholm Ship Management [1993] P.I.Q.R. P.104 where the trial judge stated

"The duty is on the employer to provide a safe system of working for employees. That was not done here. It is also said there had been no other accidents, which I accept. In some circumstances, such considerations are of course valid; but here there was an obvious potential danger. It only needed a driver to be distracted and a shout not to be heard and the signalled was likely to be killed."

39. While accepting that the facts of that case exposed a grossly unsafe working system, there are similarities with the potential risks in the present case.

Findings

40. No attempt was made to close off portions of the car park for cleaning purposes. There were no warning signs, either permanent or temporary, to warn drivers entering the car park that cleaners were, or might be, at work. The Plaintiffs submitted that the accident was caused by a combination of a system of work which placed the deceased potentially in a dangerous position and a failure by the 3rd Defendant to give proper warnings, equipment and supervision.

41. The evidence was that the cleaners, once hired, were given very little instruction in their duties. This is not altogether surprising because their duties were comparatively simple. They were to keep the common parts of the building clean and dispose of rubbish. In setting up that system of work however, it was incumbent on the employers to give proper instructions as to safety precautions and, given that the cleaners were working in a building, with vehicles entering and leaving frequently, the least protection they should have been given was some form of reflective clothing. It could also have been expected that 3rd Defendant would provide signs, either permanently fixed in the car park, or moveable at need, warning that cleaning work was taking place in the vicinity.

42. This accident occurred in an industrial building where vehicles could come in and out on a short-term basis regularly throughout the day and, possibly, at night. The presence not only of cleaning workers, but workers in the building and delivery workers could be expected in the car park area. Even if it was impractical to expect that areas to be cleaned were cordoned off, nevertheless a moveable warning sign indicating cleaners were working in the vicinity was possible.

43. I am satisfied that the Deceased was placed by the lack of a safe system of work in a dangerous position and that the 3rd Defendant failed to ameliorate the position by giving proper warnings, equipment or supervision.

Decision on Liability

44. In the circumstances, I find all three Defendants are liable to the Plaintiffs, the accident having been caused by a combination of unsafe working system and a failure by 2nd Defendant to keep a proper look-out when driving out of the loading bay.

45. I assess the 1st and 2nd Defendants jointly as being 75% liable and the 3rd Defendant as being 25% liable. I do not find there was any contributory negligence on the part of the Deceased.

CONSIDERATION OF QUANTUM OF AWARD

2. Fatal Accidents Ordinance

46. The Plaintiff claimed that as Deceased had to support her family in Hong Kong, as well as her parents who lived in China and her daughter who lived with them, the value of the dependency should be 80%.

47. Plaintiff relied on the case of Ho Pang-lin and Wong Hop-hing co-administrators of the estate of Wong Hup-yim deceased [1994] 2 HKLR where Deputy High Court Judge Jones discussed the approach whereunder conventional percentages of income are applied in assessing the overall dependency. The apportionment of the resulting award is made after this calculation and does not form part of it.

48. Reference was made by Deputy Judge Jones to Harris v. Empress Motors Ltd. [1983] 3 All E R where O'Connor L.J., at page 565, stated (after referring to "the tedious enquiry" of the earlier method of calculation)

"modern practice is to deduct a percentage from the net income figure to represent what the deceased would have spent exclusively on himself. The percentages have become conventional in the sense that they are used unless there is striking evidence to make the conventional figure inappropriate because there is no departure from the principle that each case must be decided on its own facts."

49. Deputy Judge Jones while recognising the "attractive simplicity" of this approach recognised too the possibility of injustice being done to defendants by the application of an overall multiplier where there are various dependants at different stages of their dependency.

50. I accept that Deceased was supporting her maiden family and her daughter in the amount claimed, that such support would have continued to the death of her parents and that it was likely her support for her daughter would have continued at some level, despite her marriage. I accept too that part of her salary was applied to the expenses of her family in Hong Kong.

51. The Plaintiff submits that the value of the dependency is 80%. On the facts as they appear from the evidence I consider that assessment too high and not borne out by the evidence. P.W.1 said that his wife contributed to her maiden family and her daughter in China. His salary, less $1,000.00, was applied to household expenses and his wife's salary went to cover whatever was needed in addition. It appears that Deceased over the period that she worked applied 1/3 of her salary as regular savings which do not appear to have been drawn on for her personal or family use. For that reason I consider that the dependency is more correctly stated as 60%.

52. That this percentage more accurately reflects the dependency, is supported by various amendments to the budget set out in P.W.1's witness statement, which amendments had the effect of reducing the total monthly expenditure. For instance the water charge appeared to be a quarterly total claimed as a monthly one. Transport was over-estimated, as Plaintiff agreed in cross-examination that $900.00 would be more accurate than the $4,150.00 claimed. Books and stationery of $667.00 for the two sons appears to be on the high side.

b. Deceased's earnings at date of death, including special allowances, overtime payments and attendance bonus was $5,977.60 p.m. This was agreed by the Defendants.

c. Notional earnings at time of trial (April 1998) were assessed by Plaintiff at $8,751.80 based on a 10% notional annual increase. The only evidence on this point was that of Deceased's co-worker, Madam Hui Kam-mui (P.W.2) who stated that in the 4 years she and Deceased had been employed by the 3rd Defendant, their annual pay increases had not been very satisfactory. At the time P.W.2 ceased working for the company in 1996 she was earning between $5,400.00 - $5,900.00 p.m. Her earnings at the time of the accident were around $5,000.00 p.m.

53. It appears that the actual annual increase was lower than 10% p.a., possibly because of the nature of the work and/or because the cleaners were women. Plaintiff submitted that at a time of high inflation in a (then) booming economy, workers would not accept an increase lower than 10%, and would seek better-paid employment if they did not receive such an increase. Clearly, P.W.2, Madam Hui, did not do so. She left D.3's employment in 1996, not because of the niggardly annual increases in salary, but because she wished to look after her child. There seems no reason why Deceased would not have continued to work for the 3rd Defendant in a similar fashion; she had remained in that employ for 4 years knowing the low rate of annual salary increase.

54. Accordingly I assess the notional increase at 6.03% (as agreed by D.1 and D.2 in their Answer to the Revised Statement of Damages) this amount being supported by the evidence of earnings.

55. Notional earnings at the time of trial are assessed at $7,632.40.

d. Median earnings for the pre-trial period would be $5,977.60 + $7,632.40 ( 2 = $6,805.00

e. Pre-trial dependency calculated to date of trial (end of April 1998) would be $6,805.00 x 48 months x 60%. = $195,984.00

3. Future Loss

(a) Plaintiff claimed the appropriate multiplier should be 14 years from the date of death i.e. 10 years from the date of trial. This was based on Deceased's age of 40, her future employment prospects and her family circumstances.

56. It is very likely that Deceased, given average health, would have been able to continue with cleaning work of this nature for around twenty years more to age 60. Even when her sons had left home and even if her husband continued with his work it is likely that Deceased would continue to work both to provide for her and her husband's retirement and, in the short term, to meet commitments to her family in China.

57. In assessing the multiplier I take into account Deceased's age, the nature of the cleaning work she was doing and her family circumstances. I consider 14 the appropriate multiplier.

(b) Loss of dependency for post-trial period is
$7,632.40 x 12 x 10 x 60% = $549,532.80

(c) Loss of housekeeping services and/or loss of a mother's service.

58. Plaintiff claimed $200,000.00 under this head, on the basis that Deceased in addition to her full-time employment performed full domestic services for her husband and 2 sons who, after her death, had to perform those duties themselves.

59. Plaintiff relied on the case of Cheng Siu-ling & Anor (Administrators of the Estate of Tsar Lao Sha, Deceased) v. Hui Wai-hung & Anor [1990] 2 HKC 367 where a claim was made for loss of a deceased mother's services, in looking after young children where the mother had worked at home as a factory out-worker.

60. Such an award should represent the pecuniary value of even gratuitous services likely to have continued but for the death. The right to compensation arises even although replacement services are not actually purchased. The children in Cheng Siu-ling were very much younger and required full-time care, whereas in the instant case Deceased's sons were aged 15 and 13 and in full-time schooling at date of death. Nevertheless such points of difference affect the quantum rather that the principle of such an award.

61. Here Deceased carried out full domestic duties as well working at a full-time job. Given the ages of Deceased's sons there would have been some degree of self-help and, possibly, some minor assistance with household tasks. Nevertheless the main burden of cooking, cleaning and laundry would have been on Deceased. The cost of replicating such services would have been around $3,000.00 - $3,500.00 p.m. at a conservative estimate based roughly on a domestic helper's salary in 1994.

62. I award a lump sum of $100,000.00 to compensate for loss of housekeeping services.

63. There is also a claim for loss of the personal attention of a wife and mother which award is to be distinguished from that for housekeeping services and will be to both the husband and the children.

64. In considering this sum I take note of Decease's attendance on her husband and sons and recognise that any award for loss of housekeeping services is distinct from the loss of the personal attendance and caring of a wife and mother.

65. Bearing in mind the considerations inherent in such an award I award a total of $100,000.00 for loss of the services of a wife and mother based on $40,000.00 for each of the sons and $20,000.00 to the Plaintiff widower. I realise that such an award is attempting to quantify the unquantifiable and compensate for the incompensable but the Court should recognise the special aspect of maternal and wifely attention that is given over and above housekeeping services. As the award for loss of housekeeping services is conservatively assessed I do not consider that there is an unacceptable element of overlap between the two awards.

66. The total sum for the two awards is $200,000.00. This exceeds the amount claimed by the Plaintiff in the Revised Schedule of Damages but I consider that amount overly conservative.

Law Amendment and Reform (Consolidation) Ordinance

1. Loss of Accumulation of Wealth

67. Plaintiffs submitted that Deceased was a responsible wife and caring mother who from her earnings had accumulated savings of $94,742.80 by the time of her death. A lump sum of $300,000.00 was claimed under this head on the basis that it was likely Deceased would work until she was 65 and that, once her sons were working, it was likely she could save more than the $2,000.00 which was her apparent rate of monthly savings.

68. P.W.1 gave evidence that his wife had a frugal life-style and did not smoke or gamble. Her wages were applied to her own expenses, contributions to her maiden family and daughter in China and any family expenditure not covered by P.W.1's contribution of $7,000.00 p.m.

69. In this case I accept that Deceased had an established savings pattern and that it was likely she would continue to work for a further 20 years to around age 60. Her rate of savings was likely to continue at a minimum of around $2,000.00 p.m. given that her sons would complete their schooling; that her daughter was likely to obtain employment and/or marry and that one or both her parents would die all of which would mean an increase in the amount of her wages available to be used as savings.

70. I am satisfied on the balance of probabilities that Deceased would have accumulated wealth by the time of her natural death. The figure should be assessed conservatively and take into account the nature of Deceased's life style and earning capacity. There is, of necessity, a certain arbitrariness in assessing such accumulation. Nevertheless that is no reason to refrain from making the award.

71. Accepting that Deceased was likely to work for another 20 years and continuing the monthly savings of $2,000.00 p.m. it is likely that by the time of her death Deceased would have accumulated savings of $480,000.00. Discounting that by 50% for accelerated receipt I make an award of $240,000.00 under this head.

(2) Damages for Bereavement

72. Damages for bereavement are awarded as $70,000.00.

(3) Funeral Expenses

73. Defendants, agreed the claim for funeral expenses at trial, those expenses are supported by receipts and awarded as follows:

(a)	H.K. Funeral Home Expenses	36,100.00
(b)	Cemetery expenses	23,600.00
(c)	Miscellaneous funeral expenses	10,700.00
		$70,400.00

Figures for Award

F.A.O.

L.A.R.C.O.

E.C. Claim

74. Plaintiffs were awarded the sum of $403,751.49 inclusive of interest and that sum will be deducted from the total award in these proceedings.

Total Award after Deduction of E.C.C.
(excluding interest) $922,165.31)

Interest

75. The pre-trial dependency award and the claim for funeral expenses shall bear interest at half the judgment rate from date of death.

76. Following Chu Kang Yee v. Giant Ocean Ltd [1996] 1 HKC 284 the award for bereavement will attract interest at the prevailing rate of interest payable on suitors funds from the date of Deceased's death.

77. There will be an order nisi for costs of this action to the Plaintiffs to be taxed if not agreed and the Plaintiff's own costs will be taxed under Legal Aid Regulations.

78. I will hear counsel on the apportionment.

79. Liberty to apply.