YU SHUK YING v. PROFICIENCY INDUSTRIAL PRODUCTS LTD. AND OTHERS

HCPI 1019/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES NO. 1019 OF 1997

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J U D G M E N T

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1. This is a fatal accident claim, in which the plaintiffs, the joint administratrices of the estate of Mr Lam Sze Ching, deceased ("the deceased") claim damages from the defendants in respect of the death of the deceased on behalf of the dependents as well as the estate of the deceased.

The facts

2. The deceased was the sole proprietor of the Maintain Ease (Hong Kong) Company, a cleaning company, but in which the deceased carried out much of the cleaning work himself. In the early hours of the morning of 24 October 1994, the deceased was performing cleaning works for the Hang Seng Bank Ltd at the external wall of the Hang Seng Bank Building in Connaught Road Central. For that purpose, the deceased had hired, from the 1st defendant, a special purpose truck (Registration No.FK4399) which was mounted with a folding crane with a jib cabin which could be extended to enable workmen to execute work at height. The 2nd defendant was employed by the 1st defendant to drive the truck and also to operate the crane.

3. At about 5:10 am that morning, the truck was parked on the pavement beside the Hang Seng Bank Building with the crane extended over the second lane of the westbound carriageway of Connaught Road for the purpose of enabling the deceased to clean a part of the external wall of the pedestrian walkway which extended from the 1st floor of the Hang Seng Bank Building over Connaught Road Central. Both the deceased and the 2nd defendant were in the jib cabin of the extended crane at that time - the 2nd defendant was there operating the crane while the deceased was cleaning the wall of the pedestrian walkway. At about 5:15 am, a double decker bus (Registration No.DU4314) owned by the 3rd defendant and driven by its employee, the 4th defendant, travelling along the first and/or second lane of the westbound carriageway of Connaught Road Central hit the jib cabin, in which the deceased and the 2nd defendant were, throwing them both onto the ground. The deceased died later the same morning from the injuries which he received as a result of this fall.

Liability

4. There is no dispute that, at the time of the accident, the truck was parked on the pavement with its crane extended over the second lane of the westbound carriageway of Connaught Road Central but without any of its hazard lights on. There is also no dispute that no part of Connaught Road Central was closed or blocked off by cones, nor were any warning lights or other means of warning set up to warn other road users of the cleaning works being conducted from the jib cabin of the special purpose truck over the second lane of Connaught Road Central.

5. The main thrust of the plaintiffs' case in so far as liability goes is that the main cause of the accident was due to the failure of the 4th defendant, the bus driver, to keep a proper lookout and for which the 3rd defendant is vicariously liable. In this, the plaintiffs rely on the statements given by both the 2nd and 4th defendants to the police shortly after the accident. Secondly, the plaintiffs also allege that the 2nd defendant was at fault for failing to ensure that there was sufficient warning given to other road users when the special purpose truck was engaged in such a dangerous operation over the road and for which the 3rd defendant is vicariously liable.

6. The 1st and 2nd defendants deny any negligence on their part, alternatively the deceased was himself contributorily negligent, in that he, being the hirer of the special purpose truck, was under a contractual obligation to the 1st defendant to apply for road block permits from the Highways Department for the road works, and therefore was under a duty to ensure that the warning signs and cones blocking off the road for the cleaning works were set up. Furthermore, the 1st and 2nd defendants rely on the negligence of the 4th defendant in failing to keep a proper lookout as the cause of this accident.

7. The 3rd and 4th defendants also deny negligence on their part but allege negligence on the part of the 2nd defendant and/or contributory negligence of the deceased in failing to set up any warning signs of the works over the road which they were undertaking.

The evidence

8. As already indicated above, the plaintiffs rely on the statements given to the police shortly after the accident by both the truck driver (2nd defendant) and the bus driver (4th defendant).

9. The relevant part of the 2nd defendant's statement to the police states that before he operated the crane to lift himself and the deceased up to the pedestrian walkway over the road, he had suggested to the deceased to set up the traffic cones and to block off the road. However, the deceased said to him that the operation would only take less than three minutes, as a result of which, they went ahead without setting up the cones or blocking off the road.

10. When the two of them were in the jib cabin over the second lane of the road, the 2nd defendant told the police that he had kept a constant lookout for traffic on the road over which the jib cabin was. He saw a double decker bus approaching along Connaught Road Central and initially thought the bus might turn into Queen Victoria Street before it reached the position where the jib cabin was. When he saw that the bus did not turn into Queen Victoria Street but continued towards their direction, he at once tried to raise the jib cabin, and also told the deceased to hang on to the rail and to lift his legs. Unfortunately, his efforts could not prevent the top of the double decker bus from hitting the jib cabin throwing both of them from the jib cabin onto the road below. After he landed on the road, he felt pain at his left face and his left chest. He was on the road behind the bus. He moved himself to the pavement to sit down. After resting for a while, he noticed the deceased lying on the pavement at a spot in front of the bus.

11. In the witness box however, his evidence differed somewhat from what he told the police. He said in court hat when the deceased suggested not to set up the traffic cones to block off that part of the road, he was hesitant in going along and even tried to call up his office but that nobody was in the office that time of the morning to take the call. He further said in court that when he was in the jib cabin with the deceased who was cleaning the pedestrian walkway, he had his back to the traffic approaching in their direction. When he suddenly turned round, he saw this bus heading towards them but by then it was too late to take effective action to avoid the collision.

12. The 4th defendant, in his statement to the police, said that he was on early morning shift duties on the day of the accident, and he had taken that bus from the Chai Wan depot to pick up colleagues to work. After picking up some colleagues along Connaught Road Central near the junction with Pottinger Street, he then travelled along the nearside second lane travelling westward. At that time, a white van from his right hand lane had cut into his lane and then turned into Queen Victoria Street on his left. This had caused him to brake to decelerate the bus. He then saw the special purpose truck parked on the pavement on his left but did not pay much attention to it. Only after the accident that he came to know that the truck had a crane mounted on it. He did not see any traffic cones or any flashing lights warning other road users. He then put on his right indicator signal to move to the lane on his right side. As he passed under the pedestrian walkway over the road, he heard a loud sound. Not knowing whether he had hit something or whether something had fallen down, he stopped his bus. He then found two persons lying on the road, one near the front wheel of his bus and one near the middle door, both to the left side of his bus. The person lying near the front wheel was bleeding from his head. He then went into the Hang Seng Bank Building to call for the police and ambulance.

13. In answer to questions at the end of his police statement, the 4th defendant said that when he was driving his bus, there was absolutely no warning of any kind to indicate that there were works being carried out over that part of the road, nor any one controlling traffic on the first lane of Connaught Road Central. He also said that he did notice one part of the jib of the crane was above the pavement of the road but he was not sure where the second part of the jib was nor did he know at what height.

14. The 1st defendant called a witness, Mr Wong Siu Ping, the Project Manager of the 1st defendant. He gave evidence that the deceased had hired, from the 1st defendant on one earlier occasion, special purpose truck with a mounted crane in May 1994. His evidence was that, on that occasion, he himself had dealt with the deceased and had faxed to the deceased written conditions of hire which included a safety code designed by the 1st defendant in relation to the use of the special trucks by the hirer. His evidence was that it was only upon the oral agreement of the hirer to comply with those conditions including the safety code that the 1st defendant would agree to the hire of the special purpose truck. One such condition stipulated that it was the responsibility of the hirer to ensure that the safety code was conformed to, during the execution of the works, by the special purpose truck. He also gave evidence that the driver of the special purpose truck took his instructions from the hirer as to the operation of the truck, and was only responsible for assisting the hirer in setting up the cones and road blocks in compliance with the safety code. He further said that, under the contract between the 1st defendant and a hirer, it falls upon the hirer to apply to the Highways Department for road block permits for any road works which requires using such special purpose trucks of the 1st defendant.

15. In cross-examination, however, he agreed that the drivers of the special purpose trucks were all trained not only as to the technical aspects of the operation of the truck and the crane mounted on it, but also trained as to the safety aspects of such operation as per the safety code produced by the 1st defendant. In fact, he himself was one of several persons involved with the training of new drivers employed by the 1st defendant. In this respect, his evidence was that the drivers were also made aware of their responsibility in seeing to it that the safety code is complied with at all times by the hirer, and were instructed that they can refuse to follow the instructions of the hirer if the hirer will not comply with the safety code.

16. He also said in cross-examination that in this case, as a result of this accident, the truck driver (i.e. the 2nd defendant) was verbally censured by the 1st defendant for failing to adhere to the safety code, thus causing the accident. The aim was to ensure future compliance of the safety code by him as well as other drivers of the 1st defendant.

Findings of fact

17. From all the evidence in this case, I make the following findings of fact :-

1. more likely than not, the safety code was faxed to the deceased by the 1st defendant before the hiring agreement for the special purpose truck was effected between them and the deceased was aware of the need to comply with the safety procedure during work operations on the road;

2. the 2nd defendant was sent along as the driver of the special purpose truck due to the fact that he was skilled in the operation of the crane mounted on it. The 2nd defendant was also trained by the 1st defendant in the safety procedure to be followed when such works had to be undertaken on or over a road. Whilst the 2nd defendant may have been instructed that he had to follow the instructions of the hirer during such operations, it is clear from the evidence that as an independent contractor (which the 1st defendant clearly is in so far as the hiring of the special purpose truck is concerned), he is not without say when it comes to the manner, in which the work is to be performed (as opposed to what is to be done);

3. on the morning of the accident, the majority of the cleaning work (which had been completed at the time of the accident) took place on the external wall of the Hang Seng Bank Building in Connaught Road Central which did not have to be performed over the road on which traffic was running but rather over the pavement of the road, and for that reason, the lanes of the road had not been blocked off to traffic. Moreover that also explains why the special purpose truck was parked on the pavement since it was more convenient to do so;

4. after the major part of the works had been completed, and after the deceased and the 2nd defendant had gone off and returned from morning tea which was then shortly after 5:00 am, the deceased requested the 2nd defendant to extend the jib of the crane once more because he noticed some dirt on the external wall of the pedestrian footbridge which was over the second lane of the westbound carriageway. I accept that the 2nd defendant's evidence that he had mentioned to the deceased that it would necessitate the cones being placed on the road to block off traffic, but when the deceased told him that it would only take less than three minutes to clean the dirty spot, the 2nd defendant decided to take the risk of not blocking off traffic in the second lane before embarking on that task. Neither did the 2nd defendant take any other steps such as turning on the hazard lights of the truck parked on the pavement or any other form of warning lights to other motorists using that part of Connaught Road Central;

5. the deceased and the 2nd defendant then got onto the jib cabin or platform with the 2nd defendant operating the control installed in it to work the crane. The 1st section of the jib was raised perpendicular to the pavement over which the truck was parked while the 2nd section of the jib extended out to the second lane of the westbound carriageway of Connaught Road Central against the pedestrian footbridge. The bottom of the jib cabin was hanging below the bottom of the footbridge, at a level which could come into contact with the top of a double decker bus if one were to pass by. From his evidence that he tried desperately to raise the jib cabin when he saw the bus approaching and also to warn the deceased, I can and do infer that the 2nd defendant was well aware of the fact that the cabin was at a level at which it could be hit by a double decker bus;

6. I do not accept the evidence of the 2nd defendant given in the witness box that he only saw the bus driven by the 4th defendant when he turned round while in the jib cabin at which time the bus was already at a position almost level with the junction of Queen Victoria Street. I find that the truth of the matter is better reflected in his statement to the police, in which he stated that he had seen the bus approaching all along but thought that it might turn into Queen Victoria Street. When it did not make that turn, he then realised that the bus was headed straight for the jib cabin and it was only then that he tried desperately to raise the jib cabin, but it was already too late and it was hit by the bus; and

7. I further find that the 4th defendant bus driver never saw the jib cabin extending out to the road hanging at a level beneath the bottom of the pedestrian foot bridge at which level it was lower than the top of the double decker bus which he was driving until after it was hit by the bus due to the fact that he had failed to keep a proper lookout, albeit of an object dangling in mid air, but nevertheless in the path of the double decker bus which he was in control of.

Liability

18. Turning now to deal with the question of liability, the first matter I need to decide is the cause of the accident. From the findings of facts which I have made above, it must be apparent that the immediate (but not necessarily the primary) cause of the accident was the failure of the 4th defendant to keep a proper lookout, and thus his failure to see or notice the jib cabin of the crane dangling below the footbridge. However, a further and possibly equally significant cause of the accident, from the facts found, must be the failure to warn other road users of the fact that there was such an operation going on at that part of the road which posed a danger or hazard to motorists using the road, and/or the failure to close off that part of the road in which the operation was being carried out.

19. Accordingly, both the 2nd and 4th defendants were negligent in causing this accident. Since there is no dispute that they are respectively the servants or agents of the 1st and 3rd defendants, both the 1st and 3rd defendants are also vicariously liable for the negligence of their respective servants.

Contributory negligence

20. It also follows from the facts found by me above that the deceased was well aware of the need for safety measures to be taken if any part of the operation with the crane took place over a road on which there would be other motorists. Moreover, since I have also found that it was the deceased who suggested to the 2nd defendant to carry out that part of the operations over Connaught Road Central without closing the second lane of the road to traffic by placing traffic cones over that part of the road, it must also follow that the deceased was himself contributorily negligent as well.

21. In so far as the apportionment of contributory negligence goes, I shall deal with it at the same time when I deal with the apportionment of liability of the defendants.

Apportionment

22. In dealing with the apportionment of liability, not only as between the defendants in this case, but also taking into account the contributory negligence of the deceased in bringing about the accident, the roles of the 2nd and 4th defendants as well as that of the deceased need to be considered.

23. The part played by the 2nd defendant can readily be looked at together with the part played by the deceased since both of them were parties to the agreement to assuming the risk of not blocking off the road. However, in my view, the 2nd defendant had a much greater part in bringing about the accident. Quite apart from agreeing with the deceased not to block off the second lane to traffic when they undertook that fateful operation, the 2nd defendant further failed to switch on the warning or hazard lights of the special purpose truck parked on the pavement. If he had done so, this would at least have given some indication to other road users including the 4th defendant that something was going on at that place and who may then be more vigilant than they otherwise would be particularly when the operation concerned was taking place at a height, not something normally to be expected by other road users.

24. Moreover, the 2nd defendant was instrumental in controlling the operation of the jib cabin (while the deceased was doing the cleaning work on it). Again, from the facts as found, the 2nd defendant had seen the bus driven by the 4th defendant some way off when it was approaching but chose to take the further chance that the bus may turn into Queen Victoria Street. When that did not materialise, it was too late to manoeuvre the jib cabin to a safe height tried as the 2nd defendant did. The deceased shared no part in this further omission on the part of the 2nd defendant.

25. As for the 4th defendant, I have some sympathy with him, in that he was not given any warning of the operation which was taking place with the jib cabin hanging out at a spot underneath the bottom of the footbridge. However, the undeniable fact remains that as the driver of a double decker bus, he is under a duty to keep a proper lookout not only as regards any other road user which may be on the road in the path of his bus, but also anything with may be in the path of his bus though not on the road itself as for instance, this jib cabin dangling in mid air but low enough for the top of his bus to come into contact with.

26. The lack of any warning sign or signal, while it may reduce the amount of his liability, is itself no excuse for the failure to keep a proper lookout by the 4th defendant.

27. In all the circumstances of this case, I would apportion the deceased's own contributory negligence as being 30% to blame. Of the remaining 70%, I would apportion the blame between the defendants as the 2nd defendant being 40% to blame (the 1st defendant being vicariously liable for same), and the 4th defendant being 30% to blame (the 3rd defendant also being vicariously liable for same).

Quantum of damages

28. The deceased was aged 40 at the time of his death, having been born on 29 July 1954 and was the sole proprietor of a cleaning business by the name of Maintain Ease (Hong Kong) Company since about 1983.

29. The deceased had married the 1st named plaintiff, Madam Yu Shuk Ying on 24 December 1981 in the People's Republic of China and had a son by her, Lam Ka Kit, who was born on 8 July 1983. Madam Yu and her son came to Hong Kong in November 1992.

30. Since about 1986, the deceased had cohabited with the 2nd named plaintiff, Madam Fong Yin Ha, in Hong Kong which resulted in the birth of two children, Lam Chau Han, a daughter born on 27 October 1988 and Lam Ka Hei, a son born on 7 July 1994.

31. There is no dispute that both Madam Yu and Madam Fong and their respective children were dependants of the deceased under the Fatal Accidents Ordinance. Indeed, it is agreed between all parties that the multiplier for the dependencies should be 12.

32. The defendants also agree that apart from Madam Yu and Madam Fong and their children, the deceased's mother, Madam Chan Mui, is also a dependant of the deceased.

33. The real issue between the parties is the amount of such dependencies and the amount of the accumulation of wealth to the estate of the deceased.

Loss of dependencies

34. I shall deal firstly with the loss of dependency of Madam Yu. As a starting point, there is clear evidence from the bank account passbook of Madam Yu (the entries of which closely correspond to withdrawals from the accounts of Maintain Ease (Hong Kong) Company) that the deceased paid Madam Yu sums of money quite regularly on a bi-monthly basis. It can also be seen that such payments gradually increased from two payments a month, each of $2,000.00 in January 1993 to two payments a month, each of $5,000.00 in October 1994 just before his death. Effectively that translates to the deceased making payments to Madam Yu of $4,000.00 per month in January 1993 and which gradually increased to monthly payments of $10,000.00 in October 1994 immediately before the accident.

35. Although these payments were made through the bank account of Maintain Ease, I accept Madam Yu's evidence that she was not working for the deceased and was not employed by Maintain Ease. I also accept her evidence that she was doing some work which was introduced to her by the deceased, namely collecting cardboard boxes and cartons from certain factories, and selling those cardboard boxes, but that this work had nothing to do with the business of the deceased. It followed therefore that the money paid to her by the deceased was for the maintenance of her and her son by the deceased, albeit paid from the company's account.

36. The defence submitted that I should take the average amount of these payments from January 1993 to October 1994 as a first step in ascertaining the amount of the dependency. I do not agree with that suggestion for this reason. These payments have been shown to gradually increase over that period of over 20 months. That clearly indicates that the deceased was gradually increasing his maintenance payment to Madam Yu and her son with regularity, and as such, it is the amount of maintenance which the deceased was paying to Madam Yu prior to his death which is relevant in calculating the dependency, not the average of those payments over the 20 months period since that evidence, in no way, indicates that the monthly payments were likely to decrease to what it used to be had the accident not happened.

37. On the other hand, I am also not prepared to accede to the suggestion by counsel for the plaintiffs that I should use the sum of $13,238.00 (being the amount of her monthly household expenses in the evidence of Madam Yu) as the starting point in calculating the dependency of Madam Yu.

38. I shall therefore use the sum of $10,000.00 being the amount of money which the deceased was maintaining Madam Yu and her son with at the time of his death. From this amount, I shall deduct $1,000.00 to take account of the deceased own share of having dinner at home. That leaves a monthly dependency of $9,000.00. The pre-trial loss of dependency therefore comes to $9,000.00 x 76 months, giving $684,000.00. Using the agreed multiplier of 12, the future loss of dependency would be $9,000.00 x (12 x 12 - 76) giving $612,000.00.

39. I turn now to deal with the loss of dependency in respect of Madam Fong. Like Madam Yu, the bank account passbook of Madam Fong also shows regular payments on a bi-monthly basis. These amounts and the dates of the payments closely correspond with amounts withdrawn from the company's account of Maintain Ease. Similarly, these payments can be seen to have gradually increased from $3,000.00 paid twice a month in mid 1992 to bi-monthly payments, totalling between $7,000.00 to $10,000.00 per month for the six months before the death of the deceased (with one isolated payment of as little as $3,500.00 in June 1994 while all the other monthly total amounts for 1994 were not less than $7,000.00).

40. Once again, I accept Madam Fong's evidence that she was not in fact employed by Maintain Ease. The fact that her name was on the payroll of the company was only to facilitate the deceased paying her these sums as maintenance for her and her two children. I also accept her evidence that the only work she did for the deceased was to collect some fax for him at home, and sometimes to collect some mail for him. Those chores, in my view, were what any wife would have done by way of assistance to her husband in his business.

41. In view of the fact that the payments made to Madam Fong in the last six months before the deceased's death do not show any regular trend (whether increasing or decreasing), I would adopt the total amount paid to Madam Fong in October 1994 which is $8,200.00 as a starting point to calculate the dependency. Moreover, this amount of $8,200.00 is near enough to the mid-point between $7,000.00 and $10,000.00 which is the high and low point of the monthly payments made in the last six months before the deceased's death if one discounts the isolated payment of $3,500.00 made in June 1994.

42. From this amount of $8,200.00, I will once again deduct a sum of $1,000.00 to take account of the deceased own share of dinners which he takes at the home of Madam Fong on average of several times a week. The pre-trial loss of dependency of Madam Fong comes to $7,200.00 x 76 giving $547,200.00. The future loss of dependency, using the same agreed multiplier of 12 comes to $7,200.00 x (12 x 12 - 76), giving $489,600.00.

43. Turning to deal with the loss of dependency of the deceased's mother, Madam Chan Mui, who was 68 at the time of the accident, the evidence shows her monthly dependency to be $1,000.00. Using a multiplier of 9 in her case, the pre-trial loss of dependency comes to $1,000.00 x 76 giving $76,000.00 and the future loss of dependency comes to $1,000.00 x (9 x 12 - 76), giving $32,000.00.

Loss of accumulation of wealth

44. The evidence from the plaintiffs was that the deceased's business generated profits of around $60,000.00 per month. On the other hand, the defendants have urged me to find, on the basis of what is stated in the police statement of Madam Fong which was given by her shortly after the accident, that the income of the deceased was around $13,500.00 per month. The defendants further say that that amount is supported by the 1993/94 tax return of Maintain Ease.

45. When cross-examined, Madam Fong did offer the explanation that what was stated by her in her statement of the police after the accident, she was in fact telling the police that the deceased was paying her $13,500.00 each month, but that it had been erroneously recorded by the officer.

46. There is also evidence before me which has not been challenged by the defendants firstly, that the deceased's business did employ some 20 workers before the accident and secondly, the deceased had purchased a property in China and which he was regularly paying off the mortgages at the time of his death of $5,811.00 per month. When he died, there was still 73 monthly instalments outstanding, totalling some $424,203.00.

47. In view of the size of the deceased's business employing some 20 workers, the monthly payments that the deceased was making to both Madam Yu and Madam Fong, and the regular mortgage payment he was making up to the time of his death in respect of the property he purchased in China, I accept the evidence of the plaintiffs that the deceased's business did generate profits of about $60,000.00 per month.

48. In so far as accumulation of wealth is concerned, I take the view that, more likely than not, the deceased would have kept up the mortgage payments for the property in China for the next 73 months had it not been for his death. However, I do accept the defendants' submission that I should discount the sum of $424,203.00 by 50% to take account of accelerated receipt and of the uncertainties of life. That would give $212,101.00. The defendants have further conceded, in their Answer to the Revised Statement of Damages, the sum of $100,000.00 being claimed by the plaintiffs as general savings of the deceased. Accordingly, the total amount of accumulation of wealth comes to $312,101.00.

Funeral expenses

49. This has been agreed at $52,000.00.

Bereavement

50. The statutory sum of $70,000.00 has been agreed by the defendants.

Interests

51. Interests will be awarded at 6.25% per annum from the date of accident until judgment on the total pre-trial loss of dependencies and for the funeral expenses. Interests at the suitor's fund rate of 5.82% per annum will be awarded on the bereavement award from the date of death (see paragraph 16-031 Kemp and Kemp).

Summary

52. The claims can be summarised as follows :-

a)	Total pre-trial loss of dependencies	$1,308,200.00
	Interest thereon	$517,550.00
b)	Future loss of dependencies	$1,133,600.00
c)	Loss of accumulation of wealth	$312,101.00
d)	Funeral expenses	$52,000.00
	Interest thereon	$20,572.00
e)	Bereavement	$70,000.00
	Interest thereon	$25,788.00
	Total :	$3,439,811.00

53. From this total amount will have to be deducted 30% to take account of the deceased's own contributory negligence. That gives $2,407,867.70.

54. There will accordingly be judgment against the defendants for $2,407,867.70. Such amount to be paid into court pending directions as to payment out in view of infants' interests being involved.

Costs

55. There will be a costs order nisi that the defendants do pay the plaintiffs the costs of this action, to be taxed if not agreed. The plaintiffs' own costs to be taxed in accordance with Legal Aid Regulations.