SIU HING WOO FLORENCE v. WONG SHING CHEONG JOHNNY

HCPI 1301/96

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.1301 OF 1996

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J U D G M E N T

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1. In this action the widow of Raymond Kwan Kuen Woo sues as Executrix of his estate for damages arising out of his death on the 24th December 1994 as a result of a road traffic accident on the 19th December.

2. Her late husband was the Chief Fire Officer at Kowloon. He had been in the Fire Service for over 36 years. On his retirement in August 1991, his immediate family emigrated to Vancouver B.C., Canada. He was then aged 57 years. He was in good health and remained so following his retirement.

3. In December 1994, now almost 5 years ago, and when he was 60 years of age, he was invited to attend the Canton Road Fire Services Department Christmas Party. He was crossing the Canton Road by means of the Austin Road junction pedestrian crossing, which was controlled by traffic lights, at or about midday on the 19th December 1994. He was on his way to the party. Tragically he suffered fatal injuries having been struck by a motor car, which was being driven by the 1st Defendant.

4. The prime evidence is vitually unchallenged. Canton Road, at this point, is divided into four lanes. The nearside lane (1st) allows traffic to turn left when the lights permit into Austin Road. The 1st and 2nd lanes are separated by a small pedestrian refuge. There are then three lanes of traffic to cross before the central reservation is reached. The deceased was struck by the Defendant's car as he was crossing the 4th lane of the southbound carriage way of the Canton Road.

5. The traffic in the first three lanes had remained stationary whilst he crossed. The Defendant, travelling in the 4th lane, notwithstanding the fact that all lanes of traffic on his nearside were stationary, continued to cross the junction, and therefore the pedestrian crossing, at a speed, which he had increased because he believed he had the right of way, and because the road beyond the junction was clear. He hit the deceased at a speed which he estimated at between 50-60 k.p.h. These essential facts were admitted by the 1st Defendant when he pleaded guilty to, and was convicted of, careless driving.

6. At this stage I should indicate that on the evidence adduced before me the Defendant was fortunate not to have been prosecuted for causing death by reckless driving. It was a very clear case of such. The learned magistrate I note imposed the maximum disqualification of six months. He clearly took the view that this was a bad case.

7. Mr. H.Y. Wong, on behalf of the Defendants, realistically accepted that he could not argue against a finding that the First Defendant was negligent. His argument was that the deceased contributed to a degree to the accident.

8. In his first statement to the Police taken on the day of the accident and within 11/2 hours of its occurrence, he described traffic on his nearside, occupying three lanes, as stationary at the traffic lights at the junction. He estimated his speed at 40-50 m.p.h. (through I think in fairness to him he means k.p.h.) and said the traffic lights changed to green when he was about 7 or 8 car lengths away from the halt line. He maintained his speed and then when he was at the halt line the deceased emerged in front of him running, and was struck.

9. The second statement was made over two weeks later. He said he did not need to correct the first statement in any respect. He confirmed that no vehicles preceded him in the outside lane. When he saw the traffic lights change he increased his speed to 50-60 k.p.h. As he reached the stop line the vehicles in the nearside lanes started to move. He increased his speed because he saw no traffic in front of him. He explained his failure to see the deceased earlier because the first vehicle in the lane on his immediate nearside (the 3rd lane), was a big lorry with a covered hood. A third statement added little of consequence.

10. In his evidence before me he said the deceased dashed out diagonally across the road, but accepted that the goods vehicle on his immediate nearside obstructed his view.

11. The Police sketch is consistent with the photographs depicting the position of the Defendants' car following the collision, and the brake marks on the road. Those marks commence just within the crossing area. They indicate braking started when the car was at or near the white halt line just in advance of the pedestrian crossing.

12. His proof of evidence prepared for the purpose of this trial adds this matter of interest: "The traffic lights had just turned green in my favour and I had the right of way." Therein lies the key to the cause of this accident. He had no such right of way even if the lights were as he alleges, which I do not accept.

13. In my judgment the First Defendant tried to change his story from one that the lines of vehicles were stationary to one that had the traffic on his nearside starting to move. He had later realised that stationary vehicles indicated that lights were likely still to be in favour of pedestrians on the crossing, and that pedestrians might still be crossing the road. The lights may have been about to change but I am satisfied that they were not green in his favour when he proceeded pass the halt line at an increased speed. He made no allowance for pedestrians being on the crossing. He was convicted on his own plea of careless driving. This was more appropriately a case of causing death by reckless driving. Instead of making some reduction in speed as he approached the pedestrian crossing, as any sensible person would do, he accelerated. When the deceased was crossing, the lights were probably on the change with a blinking green man. Other traffic was stationary, properly according precedence to pedestrians. I do not believe the First Defendant when he says the deceased dashed out. The Defendant paid no attention to the circumstances and showed utter disregard. I find him wholly to blame for this tragic accident. The deceased was crossing the road at a time when the lights were still in his favour and all traffic except the 1st Defendant's vehicle, was stationary, properly according precedence to pedestrians.

14. Mr. H.Y. Wong, on behalf of both Defendants, argues that there is no evidence that the Second Defendant was vicariously liable. The vehicle belonged to the Second Defendant who appears to have been the employee of the First Defendant who was driving. I accept that there is no evidence of vicarious liability on the part of the Second Defendant who is therefore entitled to judgment against the Plaintiff. Mr. Wong asks for costs against the Plaintiff. There is no merit in this application. Both Defendants are represented by the same firm of solicitors. One Defence was filed and served. The Insurance company concerned is that insuring the 2nd Defendant's vehicle. The only issue throughout has been one of negligence. It mattered not to the Plaintiff or her solicitors whether the Second Defendant was vicariously responsible. The Defendants' solicitors had they wished could easily have stated that since they were acting for both Defendants with one Insurance company concerned vicarious liability was an irrelevance. They have certainly conducted the case on that basis, as have the Plaintiff's lawyers. There are no costs on this issue and accordingly I make no order - the Plaintiff will of course have her costs of this action.

Quantum

15. The Plaintiff's Revised Statement of Damages was filed on the 6th May 1999 in compliance with the order of Master Woolley dated 8th March 1999. The same order required the Defendants to file an Answer within 21 days of receipt of the Plaintiff's document - that is before the end of May 1999. In fact they filed no such document until the 16th September 1999, well out of time and only one week before this trial began. There is no excuse. It was unacceptably late. I declined to give leave for it to be filed out of time. The consequence is that there is no pleaded case on damages to counter the Plaintiff's claim. I have therefore had to do the best I can in the circumstances. I regret to have to say that the Answer as drafted is a wholly inadequate document and does not comply with the Practice Direction for the most part. Notwithstanding these shortcomings I invited Mr. H.Y. Wong to put forward some counter arguments under certain heads of claim.

Bereavement Award

16. This is fixed by statute at $70,000. There can be no dispute as to the Plaintiff's entitlement.

Funeral Expenses

17. These were agreed at $HKD12,606 and $CAD6,958.95.

Dependency (Pre-Trial)

18. The deceased was in receipt of a pension which was $26,000 odd monthly at the time of his death. His widow says that he retained $1,800 per month for his own expenses giving her the balance for all household expenses. That would leave her a little over $24,000 monthly to meet these. Some of that would be for the benefit of the husband e.g. food.

19. The pension is now $34,412 monthly. In September 1997 when the Plaintiff was able to estimate her expenses as approximately $28,823 (which included a tax payment) the pension was $32,326 (rounded up to nearest $) If the tax payment is ignored the expenses are $24,823 i.e. 76% of the pension. That is as near to the conventional notional 75% as makes no difference. Furthermore a quick check on the figures for 1994 reveals roughly the same sort of proportion. Out of $24,200 for housekeeping probably a further $4,500 or so represented the deceased's identifiable benefit. It is unrealistic to assess his benefit by reference to a division amongst all the members of the household of the rent, electricity, car and insurance etc. Those are incurred irrespective of the number of members of the household. The dependency at the date of his death was $19,500. In 1995/96 it would have been $21,197 (75% of $28,263); in 1996/97 $22,872 (75% of $30,496); in 1997/98 $24,244 (75% of 32,326); in 1998/99 $25,553 (75% of $34,071) and in 1999/2000, $25,809 (75% of $34,412).

20. To the 1st October 1999 the Sums are:

19,500 x 3	=	58,500
21,197 x 12	=	254,364
22,872 x 12	=	274,464
24,244 x 12	=	290,928
25,553 x 12	=	306,636
25,809 x 9	=	232,281
		$1,417,173
		=========

[See Harris v. Empress Motors Ltd. 1984 1 W.L.R. 212 and Tsang Mei Ying & Anor. v. Lam Pak Chiu 1999 3 H.K.C. 59]

Dependency (Post-trial)

21. Although the extent of the daughter's dependency has already been significantly reduced and the deceased's mother has already died, I take the view that it is unlikely that the deceased would have applied the available surplus, probably of the order of at least $5,000 per month, to himself. I think he would have applied some of it to his wife and daughter by way of extra benefit, some he would have saved. In practical terms therefore the level of dependency would have continued up to date.

22. Thereafter for the future I think his proportion of the benefit would have increased but he would also have accumulated savings. Although his handicapped son is being provided for by the state and/or institution he remains, a dependant. I do not accept the defendant's contention that he should not be regarded as a dependant simply by virtue of that fact. His parents - by this time his mother - buys him clothes, presents and there are visits to him. There is always the possibility that the family will be called upon to pay for, wholly or in part, his maintenance especially if means testing were to be introduced.

23. The dependency from now onwards would probably be about 66 2/3% (of $34,412) $22,940 x 12 = 275,280 per annum. Statistically the deceased could have expected to have lived until about 77 or 78, an expectation of life of about 17 or 18 at the time of his death. A multiplier of 12 would have been appropriate, almost five years have elapsed - 71/4 remains of that multiplier. The post-trial dependency is therefore $1,995,780.

Loss of Accumulation of Wealth

24. The financial history of this family indicates care, prudence and concern for the future and for the family.

25. Over the almost five years until trial I think that there would probably have been some savings out of the pension. I think this would have started at the latest when he was no longer paying anything for the support of his mother. She died about 15 months ago. At about the same time the daughter became independent though she is still living at home and therefore a dependent to some extent.

26. The very least that he would have been able to set aside was then $4,500 per month. Over 15 months that would be $67,500. Because I think he would in any event have accumulated savings for the earlier period of at least three years - probably of the order of $1,000 per month I estimate his pre-trial savings would have been about $110,000.

27. Post Trial they would have increased marginally probably to $5,500 per month, or $66,000 per annum. The balance of the multiplier is again 7 1/4 producing $478,500.

Interest

28. The bereavement award and funeral expenses will bear interest at the judgment rate. The pre-trial loss of dependency and pre-trial loss of accumulation of wealth will bear interest at half the judgment rate.

29. There will be judgment for the Plaintiff for:

Bereavement Award	70,000
Funeral Expenses	50,184
Pre-Trial Dependency	1,417,173
Post-Trial Dependency	1,995,780
Loss of accumulation of wealth:
Pre-Trial:	110,000
Post Trial:	478,500
	4,121,637
	========

plus the interest to be calculated, and costs on a common fund basis. The Defendants have contested this claim on every aspect even though they have failed to advance any positive case in respect of quantum. On liability the Defendants' own case was devoid of rational argument. There was not even a payment into court. There were two dependants until recently one of whom remains under a disability. The deceased and his family lived in Canada. The Plaintiff has had to travel to Hong Kong for this trial. Any common fund items of costs should be borne by the Defendant.

30. I am satisfied that this is not a case in which I should make any apportionment amongst dependants, past and continuing. The Plaintiff is a mature and highly competent lady who is already managing investment and there is already provision for the handicapped son.