YEUNG WAN CHUN,THE ADMINISTRATRIX OF THE ESTATE OF YU CHI WAI, DECEASED v. KWOK WING KWAN TRADING AS GOLDEN HARVEST TRANSPORTATION AND ANOTHER

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN :

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JUDGMENT

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1. On the 13th August 1982, the deceased was one of the delivery workers in employ of the 1st Defendant company, the Golden Harvest Transportation, of which the sole proprietor was one Mr. Kwok. The 1st Defendant's lorry in which the deceased travelled was exclusively assigned to serve the 2nd Defendant in Diamond Hill New Village. The factory of the 2nd Defendant is situated some way down on the right hand fork of a path leading from the Diamond Hill New Village Road. As usual, on the 13th August the lorry had to be parked on that main road and delivery to the 2nd Defendant's factory was to be through that path as the only means of access. The path is about 2 meters in width. It leads from the Diamond Hill New Village Road to a distance of about 40 meters when it divides. The right fork goes down for another 19/20 meters before it reaches the 2nd Defendant's factory, immediately behind the Kam Fung Factory. Soon after the junction, there is a green lamp-post in between the two forks, and the accident occurred in the right fork, some 3/4 meters past the junction where the gradient is steepest at 1 in 6. Half way between the entrance to the path and its junction is the office of the 2nd Defendant, where a motor winch had been installed. The path slopes gradually all the way down from its entrance and, as I have said, comes to the highest gradient of 1 in 6 at the scene of the accident. The overall area can easily be understood from a graphic presentation in Appendix II to the report of the Factory Inspector, Mr. Lau.

2. The motor winch now outside the office of the 2nd Defendant had initially been installed just a little above the junction of the path. The original location could be seen by the dark stain shown in photograph 11 in Exhibit "P11". A year later, the motor winch was moved a little higher up to outside the office of the 2nd Defendant. The motor of the winch would only wind one-way to pull a trolley load up from the common factory entrance of Kam Fung and the 2nd Defendant.

3. The winch, when in use, has to be pulled out 6" from the wall, and it could be pushed back in place afterwards. What was hotly contested during the proceedings is whether there was a brake on the winch. The installation was done by Mr. Lee Ping. Both from him and Mr. Mak of the 2nd Defendant's current transportation firm, Hop Hing Transportation Co., evidence was led on the brake. Mr. Lee testified that the brake was installed right from the beginning and that he had used it ten odd times during the years 1981/1982. Apart from greasing and occasional replacement of ball bearings, he never found the brake inadequate or deficient. Mr. Mak told the Court that starting from the middle of 1982, sometimes in May, June, he had had occasions using the brake. He claimed that the system of work is the same to-day as it was in 1982. The brake, according to Mr. Lee Ping, is operated by a lever or handle. The brake handle can now be seen in colour photograph 12 in Exhibit "P19" as the metallic lever to the motor winch. The brake handle is, so Mr. Lee explained, detachable and has to be unscrewed when the winch is pushed back when not in use. Although Mr. Lee had used the winch at irregular intervals between 81/82 for about ten odd times, he could not assist the Court as to whether the metallic lever is or is not the original one that he had installed. In another words, he claimed to have no knowledge as to whether the brake handle has been changed. I would expect from Mr. Lee, at least, some qualification to his answer, to the effect, that the present metallic lever to the motor winch did or did not appear to be the same one that he had himself put in. There seemed to be some reluctance on his part on the handle as depicted.

4. Mr. Mak of Hop Hing Transportation Company only delivered goods to the 2nd Defendant two/three times a month in 1982. Whilst he subsequently pinned it down to May, June 1982 when he allegedly used the brake of the motor winch, he had earlier stated that it was not very long before August 1982, the month of the accident. His somewhat remarkable memory as to dates for his previous occasional deliveries to the 2nd Defendant's factory did not seem to help him when he came to describe the existing metal sheets or plates on the path. He claimed, quite erroneously, that there was no metal plates at all in 1982.

5. There was not very much evidence from the staff of the 2nd Defendant, except from the manager, Mr. Ma. The Court was given some history of the motor winch and its brake. He told the Court that he specifically advised Mr. Kwok of the 1st Defendant to use the brake. He was also unable to give evidence on what had or had not been done to the brake after the accident. In particular, he began by saying that it was impossible for a brake handle to be added and then he retracted this clear-cut answer by saying : "I think not." But he did confirm that the winch was to be pulled back when it was not in use, as otherwise it would protrude about 6" from the wall.

6. The co-worker of the deceased, Mr. Lo told the Court that there was no brake. The Factory Inspector, Mr. Lau, testified that he saw no brake handle at the time of his inspection after the accident. Mr. Kwan, the proprietor of the 1st Defendant, the deceased's employer, stated in his written statement that there was no brake at the time of the accident.

7. I accept that the motor winch was installed with a braking mechanism operated by a detachable  handle. I do not find the Mr. Mak's evidence as to the brake and its handle shortly before August 1982 as reliable. I find that the brake handle was not in place on the day of the accident. The brake handle must have been detached and not screwed on again. I accept the evidence of the deceased's co-worker, Mr. Lo as borne out by the written statement of Mr. Kwok and corroborated by the post-accident inspection of the Factory Inspector, Mr. Lau, that to all intents and purposes, to him, Mr. Lo, there was no braking system throughout his times of delivery to the 2nd Defendant's factory.

8. On the day of the accident, metal plates on the ground of the path fell just short of the junction where one finds the green lamp-post. At the scene of the accident, some 3/4 meters, about 2½ trolley lengths from the junction, there was a hole of 6" in diameter and deep enough to "nest" a wheel of the trolley. The uncovered ground next to the last plate was then wavy, uneven and rough. The hole had been there for a few days prior to the accident, clearly visible to Mr. Lo, the co-worker of the deceased, who described it as dangerous

9. I hope I have set the scene sufficiently for this case: The only access path to the 2nd Defendant's factory is steep and becomes steepest at the scene of the accident. The path is inaccessible to motor traffic and has to be served by trollies provided by the 2nd Defendant. In addition, the 2nd Defendant, together with other factories in the vicinity, had laid metal plates on the path up to somewhere just above the junction. The ground immediately next to the end of the metal plates paving was then wavy, uneven and rough. There was this additional hazard of a 6" diameter hole. The trolley is .71 meter wide. Its dimensions are shown in Appendix III to the report of the Factory Inspector, Mr. Lau. There are three parallel rows of wheels underneath the trolley with the middle row slightly lowered so that the trolley can be tilted forwards or backwards for shifting its direction. The trolley is of cast-iron construction. In front of the trolley, there are two vertical iron poles which are fitted into sockets but detachable A similar trolley is shown in the photographs, particularly in the first photograph in Exhibit "P2". Of course, there was the motor winch.

10. On the day of the accident, the trolley was loaded with rolls of corduroy cloth up to about 6 feet high with the crest of the load slightly above the tips of the iron poles. It matters not whether there were 21-22 rolls or 20-30 rolls. The trolley was clearly stacked beyond its maximum safe capacity. It was heavily loaded, thus raising its centre of gravity and obstructing vision in front for any one behind. The rolls of corduroy cloth were roped over once with the two iron poles in front, well pressed against so that they bent slightly forward. As a matter of usual practice, the trolley was hooked up with a wire from the motor winch so as to enable the trolley to be pulled up, presumably if loaded, on its return journey. The wire is just long enough to reach the common entrance. There were two men in front, the deceased and his co-worker, Mr. Lo, whose vision could not have been affected. There was one man in the rear. His identification was from time to time challenged. But again it matters not whether he was the driver of the 1st Defendant's lorry parked on the Diamond Hill New Village Road, or the sole proprietor of the 1st Defendant firm, Mr. Kowk. The two men in front leaned back against the poles and the load on the trolley. The man in the rear helped in pulling back the trolley, though with his vision obstructed. Thus, its descent speed was controlled. Both the two men in front and the man in the rear holding on to the handle of the trolley would, from time to time, steer the trolley in its descent. There was no suggestion that these three men had any difficulty in steering the trolley, in controlling its descent speed, in keeping a proper look-out by the two men in front, or otherwise, in manoeuvring the trolley down the path. However, with no vision the man in the rear must have been hampered in any attempt to steer clear of the hole.

11. The men were together paid a dollar per roll, which they shared. There was every incentive to stack the trolley with as many rolls of cloth as it could take. It was very tempting to make a quick descent for more trips. When the trolley left the edge of the last metal plate onto the wavy, uneven and rough ground near the junction of the path, in the words of the 2nd Defendant's staff in charge of receipt and despatch, Mr. Chan, the trolley would shake. Not only did the trolley shake, and so I find, on this fateful day, but it ran fast onto the steepest section of the path with a poor surface condition. I find that the instability so generated was worsened when the trolley had one of its wheels caught in the hole, causing it to overturn.

12. The co-worker of the deceased, Mr. Lo, was hit once by a vertical iron pole. The rolls of corduroy cloth came off the trolley and he was hit by one of them. Understandably, no evidence was given as to how the deceased himself was injured in such a transient event. The deceased was seen, after the accident, sitting on the ground groaning. The deceased had his neck broken, conscious but suffering from breathing difficulty and paralysis in all four limbs on admission. He died three months later on the 17th November. The deceased's immobility brought about bronchopneumonia. Tuberculosis infection was detected in his lungs, but the cause of death was a broken neck coupled with pneumonia.

13. On these facts, firm arguments were advanced. It was submitted that the 2nd defendant was not an occupier within the Occupiers Liability Ordinance of the path, being a parcel of unlicensed Crown land. Such was tenaciously urged upon me on the observations of Diplock, L.J., as he then was, in Wheat v. E. Lacon and Co., Ltd^.(1):-

"But at the end of the day, as is stated in Salmond on The Law of Torts, 13th ed., (1961), p. 506, in a passage which was cited with approval by Roxburgh J. in Hartwell v. Gravson, Rollo and Clover Docks Ltd., liability as 'occupier' rests upon the person who, whether by himself or his agent, 'has the immediate supervision and control and the power of permitting or prohibiting the entry of other persons'."

(The current 18th edition of Salmond & Heuston carries this same quotation at p.241, though previously commented upon by Lord Denning in Wheat v. E. Lacon & Co. Ltd. the House of Lords, [1966] AC 552 at p.579A)

14. Counsel for the 2nd Defendant, Mr Merry, further contended that exercising a public or private right of way over the path on the day of the accident could not bestow upon the deceased the attributes of an "invitee". Counsel relied on Greenhalgh v. British Railways Board⁽²⁾ for the proposition that "a 'visitor' does not include a person who crosses land in pursuance of a public or private right of way". This latter contention has given rise to much difficulty on account of the elusive concept of dedication to the public as a Highway and the prescriptive nature in the acquisition of a private right. On none of these aspects was evidence in fact adduced. On closer analysis in the instant case, it can be readily appreciated that the capacity of the deceased was not merely to be inferred from his presence on the path in the exercise of any rights over it. In another words, the deceased was not to be "regarded as" or "treated as" an invitee, licencee or stranger merely by his being in or upon the unlicenced Crown land. As an employee of the delivery firm, the deceased was expressly instructed by the 2nd Defendant to use the only access to its factory for a specific purpose on that occasion. He was an actual invitee. He was not just being tolerated but deliberately asked by the 2nd Defendant so to use and be upon the path on the day in question. However, whether ultimately the deceased was an "invitee" within the meaning of the Occupiers Liability Ordinance must depend on whether the 2nd Defendant was itself an "occupier" under that Ordinance.

15. I return then to the "occupier" submission. By the installation of its delivery system along the path, the 2nd Defendant perhaps used the path more than others during its operation. At no time did the 2nd Defendant have any priority over or in the use of it. If there happened to be other users, the pending delivery operation might even have to be postponed or suspended. It had no immediate supervision or control over it. The 2nd Defendant definitely had no power to exclude other persons from entering or using it. The 2nd Defendant bears no resemblance to a concessionaire of space at a fair-ground. Any installation or the use of it on Crown land would not, per se, make the installer an "occupier" within the Occupiers Liability Ordinance unless he assumes control by excluding or interfering with the intended entry to and use of it by others. There is no evidence that the 2nd Defendant had ever attempted to do so.

16. It is difficult to appreciate how the owner of an installation can, merely by such ownership, become an "occupier" of land. He certainly has supervision and control over his installation, whether or not the same is in use, but the plain import of the provisions of the Occupiers Liability Ordinance lies in their affinity with. "any land or other properties" as can be seen in its title. The Ordinance refers throughout to "premises". The 2nd Defendant had no supervision and control of the path merely by exercising supervision and control over its installation. The 2nd Defendant could exclude no other users. To the contrary, user by Kai Fong and other factories was mentioned time and again in the course of this trial. In conclusion, I hold the 2nd Defendant was not an "occupier".

17. Lastly, I come to negligence at Common Law. One should constantly bear in mind the somewhat peculiar situation of the deceased together with his co-workers in the employ of the 1st Defendant in affecting delivery of corduroy rolls to the 2nd Defendant's factory via that path as the only access. The delivery could be taken in two stages : The first was from source to Diamond Hill New Village Road where the lorry was parked ready for unloading, and the second part of the journey commenced from the unloading of cloth onto the trolley supplied by the 2nd Defendant for running down-hill to the factory entrance. For first stage, the 1st Defendant had the use of its own lorry for transport. All convenient routes were open to the 1st Defendant. The transportation equipments for the second stage came entirely from the 2nd Defendant. The path was the only means of ingress and egress. These equipments for the second stage comprised the trolley, the metal plates paving the path all the way to the junction and the winch. It is wholly unrealistic to expect fabric to be delivered without any artificial aid. The deceased and his co-workers had practically no alternative but to use these equipments provided by the 2nd Defendant.

18. I should begin by considering whether there was a sufficient relationship of proximity or neighbourhood between the deceased and the 2nd Defendant. Then, in applying the recognized principles to the facts, I shall examine if there was any lack of reasonable care. As to degree of proximity or neighbourhood, the deceased was a transport labourer in the employ of the 1st Defendant which was, on contract, the transportation company of the 2nd Defendant. Between the 2nd Defendant and the deceased, there was no direct contractual link. But in the transaction here, this 2nd Defendant provided these equipments for the use of the 1st Defendant. As an employee of and through the 1st Defendant, the deceased was therefore expected by the 2nd Defendant to use its equipments. The contract with the 2nd Defendant, presumably oral, was for delivery of cloth from source to factory by the 1st Defendant, The deceased was a member of the 1st Defendant's firm in the execution of this delivery contract. Between the deceased and the 2nd Defendant, it was as close a commercial relationship as it could possibly be envisaged short of privity of contract. The 2nd Defendant must have been conscious of the reality that as delivery workers, the deceased and his colleagues were no free agents but had to take on these equipments provided for and, more importantly, set up as a system by the factory. There existed the requisite degree of proximity. In every way, the deceased was thus within the contemplation of the 2nd Defendant as persons who would be using its system in delivery. Hence, there was a prima facie duty of care owed to the deceased. See Anns v. Merton London Borough Council⁽³⁾.The question to follow is whether there was any lack of reasonable care. Throughout, it is encumbent upon me to have regard to "any consideration which ought to negative, or to reduce or limit the scope of the duty or the class of persons to whom it is owed or the damages to which a breach of it may give rise". See page 1032 C/D ibid, per Lord Wilberforce.

19. Once a sufficient degree of proximity was reached, then reasonable care must be taken to avoid acts or omissions which could be reasonably foreseen to cause likely injury to your neighbour within the principle enunciated with all its limitations in Donoghue v. Stevenson⁽⁴⁾. Later in this judgment, I shall endeavour to explain my conclusion that there was indeed lack of care or negligence on the part of the 2nd Defendant.

20. What considerations there are to affect the scope of the prima facie duty of care? It was suggested that the Court could only have regard to policy consideration. In Junior Books Ltd. v. Veitchi Co. Ltd.⁽⁵⁾,Lord Brandon in his dissenting judgment took into account as one of such considerations a legal ingredient in a cause of action. In the instant case, I can envisage no policy or other considerations as having a role to play. Therefore, I need not seek further assistance from counsel on Junior Books Ltd., a decision not cited in arguments. In my view, the prima facie duty of care owed to the deceased was not in any way displaced. The 2nd Defendant's position cannot be compared with that of a Highway Authority.

21. I have held that the 2nd Defendant was not an occupier. If it were, I would not feel disposed to find that it had reasonably discharged its occupier's common duty of care for virtually the same reasons I give for the 2nd Defendant's. breach of duty of care at Common Law. I do not propose to dwell on it. Suffice it to say: The hazards to which the deceased was exposed were no risks ordinarily incidental to his undertaking. Further, the occasional maintenance jointly with the other factory owners in the vicinity would not be sufficient or reasonable enough in all the circumstances to discharge an occupier's liability.

22. The Defendant provided the trolley, the winch, and the metal plates for the use of the 1st Defendant and his workers, including the deceased. The trolley is a local contraption in common use, made of cast iron and well constructed. Counsel for the Plaintiff was critical of the size of its wheels, but in essence, the significance lies not so much in the size of the wheel that was caught, but the size of the hole on the ground that nested it causing the trolley to overturn, and its load to slip. Even with a bigger wheel, there could be always a larger hole. It was not, in effect, suggested that any of these wheels was not properly designed or did not adequately serve the trolley. I find the criticism levelled at the size of the wheels unjustified and unsubstantiated.

23. The two support poles were fitted into sockets on each side in front, but detachable. Again, they are well constructed and, when pressed hard by the load, would provide reasonable stability. It was not suggested that the deceased was struck by any of these poles, or that the slippage of the load was caused or accelerated by any of these detachable poles coming off the sockets. It is pure speculation of course, but if the poles had been permanently welded onto the trolley, and if the more than maximum load had been securely fastened to it, the whole trolley, when overturning, would probably have caused more damage and instant casualty as one unit instead of disintegrated components. In my judgment, such condemnation against the support poles has not been justified or substantiated.

24. Mr Lo, the deceased's co-worker, had noticed the hole for a few day in the past. He was fully conscious of the danger created by its presence. He was also aware of the wavy, uneven and rough road surface. I find that the deceased must have shared like information. The workers should have taken extra precaution because of these hazards. If there had been any duty to warn the deceased and his co-worker, such warning would probably not have been taken heed of, thus being futile and serving no real purpose.

25. The handle operating the brake of the winch must have been detached and not reinstated during the whole period of deliveries made by the deceased's co-worker and on the day of the accident. The workers chose to run the trolley down the path in the way it did. There was no evidence that they could not or found it difficult to manage or steer the trolley or otherwise control its speed. In fact, if the workers had found it impossible or difficult to slow down the heavy load, the two of them would not have exposed themselves to the imminent danger by standing in front. The three of them were jointly paid at a dollar per roll. The quicker they delivered the cloth down-hill, the higher wage they would earn. They ran the trolley down. Even if the handle had been reinstated ready for use, I conclude that very likely the workers would still have left it aside.

26. The 2nd Defendant provided the equipments in the winch, the trolley, and the metal plates on the ground as a system for the use of the 1st Defendant and his workers, including the deceased. The deceased had no other system of work to choose from. The 2nd Defendant clearly owed a duty to the deceased in providing him with a safe system of work and in securing a safe passage for the trolley down-hill. It must have been visible to all concerned, as it was to the staff of the 2nd Defendant, that the trolley would vibrate violently when it left the edge of the last metal plate onto the uncovered ground. The shaking of the trolley would obviously be even more hazardous if the road surface onto which it would run, was wavy, uneven and rough. In addition, there was this hole 6 inches in diameter there on the day of the accident. In my view, the 2nd Defendant should have provided a safe system of work or ensured a safe passage either by filling the hole and paving the road surface, or by extending the coverage of the metal plates as it has done together with the other factory owners after the accident. Well knowing that stretch of the road surface would be used by workers engaged in delivery using the paraphernalia supplied by the factory, the 2nd Defendant, in my view, also failed to maintain the same as part of a safe system of work and part of a safe passage for delivery to the common entrance, routinely used for transporting its fabric.

27. In allowing the deceased to use the equipments supplied by the 2nd Defendant, which were, as a whole, inadequate in the circumstances, the 1st Defendant failed to provide any safe or adequate equipment for use by the deceased. Whether or not any warnings had been given to the deceased, the 1st Defendant further failed to disallow by proper supervision the deceased or his colleagues  to overload the trolley in question. In allowing the deceased to use the defective system provided by the 2nd Defendant, the 1st Defendant failed to provide any safe and proper system of work and failed to ensure a safe passage of the trolley in delivery. The 1st Defendant was thus also negligent and in breach of the implied terms of employment as regards these matters.

28. Was the deceased negligent? I believe he was. The deceased was himself negligent in either overloading or allowing his colleague to overload, thereby, raising the centre of gravity of the trolley and its load and obstructing vision of the man in the rear. The deceased must have known of the presence of the hole as well as the uncovered wavy, uneven and rough road surface. He must have realised the additional hazard brought about by the vibration caused by the trolley leaving the edge of the last metal plate. He certainly had not exercised due care or paid proper attention. He also failed to reduce speed so as to make it less likely for the trolley to overturn. Further he failed to steer away from or avoid  the 6 inches diameter hole on the ground, by himself or in conjunction with his colleagues.

29. In conclusion, I find both the 1st and 2nd Defendants negligent and I find the deceased himself also negligent.

30. Counsel for the 2nd Defendant confined the defence of volenti non fit injuria to allegations of contributory negligence. It is invariably not very promising to attempt to set up a defence of consent. Consent to the assumption of risk without compensation must be clearly established. It is not an easy task particularly when the injured workman, like the deceased, had little free choice of equipments or system of work or route. Counsel was not unwise to have himself so limited.

31. Apportioning blame is always difficult. Doing the best I could, evaluating the situations of all concerned against the background as known, I would put the deceased's contributory negligence at 25% against the 2nd Defendant. He had every incentive to run the trolley fast, and to have the trolley overloaded. He succumbed to such temptation, a sad financial reality. He had become a victim of circumstances, though considerably negligent himself.

32. However, the 1st Defendant could have exercised more supervision and control over the deceased and his co-workers in the discharge of their delivery duties. Doing the best I could again, I would assess the contributory negligence of the deceased not as 25% but as 20% against the 1st Defendant.

33. Lastly, it remains for me to deal with quantum. Counsel for the 2nd Defendant and the Plaintiff, both assumed and accepted 55%  of the gross earnings as what has been loosely described as the free balance. The evidence from the deceased's co-worker, Mr Lo, is that the deceased did not report for work with the 1st Defendant for some periods of time. I cannot deduce from Mr Lo's evidence that the deceased was less diligent or had a less than satisfactory working habit. Mr Lo himself now works 20 days a month, but that is obviously also no proper yardstick for judging the deceased's working capacity for or willingness to work. I would take 26 days a month for the deceased. At the time of his death, the deceased was 30. Apparently, he suffered from tuberculosis infection, but otherwise in good health. His daily earning was $70 a day at the time of his death. I would regard as appropriate to give a workman of his class and calibre $100 a day in 1987. His funeral expenses of $4,800 are admitted. There was no dispute that loss of expectation of life should attract $20,000. The deceased was conscious on his admission. There is no clear evidence as to his mental condition thereafter. Doing the best I could, I would allow $5,000 for pain and suffering in the three months' hospital confinement.

34. The father of the deceased survived him for some four years. He was dependent on the deceased partially to, I find, an extent of $700 a month. During this four years' period in which the deceased would have made contribution towards the father's maintenance, I would reduce the accepted 55% free balance by 30%. There is no clear indication that out of this contribution from the deceased, the father had to re-contribute any part of it for the benefit of his son, though they were sharing accommodation, and living together. In any case, the substantial reduction in the free balance has, to a degree, taken into account possible re-contribution, because one would expect the reduced 25% free balance to rise on any re-contribution.

35. The mother of the deceased shared about a fifth of remittances sent to China for his family, which I find to be on the average of $700 per month. Therefore, whilst she was in China, she stood to benefit by, on the average, $140 a month. If the deceased had not died, she would probably not have come to or stayed behind in Hong Kong. She is now earning $1,000 odd a month. At the beginning, if the mother had come to Hong Kong for other reasons, it would not have been unreasonable to say that the deceased would have the mother maintained out of his contribution to his father and/or his remittances to his family in China. Therefore, it would not have, in any case, affected the free balance or reduced free balance for the four years. Even earning $1,000 odd a month herself, if the deceased were alive, he could reasonably be expected to continue to pay his mother a small monthly allowance. Doing the best I could, I would take $140 per month as benefit to the mother for a total of 10 years' purchase, 4½ years having elapsed since the accident.

LARCO

36. Deceased's earnings:

37. Average pre-trial 1982 - 1987 earnings:

38. Multiplier 14 = 168 months

39. Pre-trial loss (54 months)

40. Therefore pre-trial loss:

41. Post-trial loss (114 months)

FAO

42. Widow and surviving children's entitlements merge with LARCO

ADDITIONAL

43. The pre-trial loss is to attract half short term interest rate which I assess at 3% per annum from the day of the accident to the day of  judgment. There will be no interest for post-trial loss. I would award the usual 2% per annum from the $5,000 for pain and suffering and $20,000 for loss of expectation of life from service of the writ to judgment. I would award interest at 6% per annum on the special damages for funeral expenses from the date of writ until date of judgments. There is no reason why this sum should not have been paid at the institution of this action.

44. I was informed by counsel that the amount of Workmen's Compensation actually paid had to be ascertained, and a deduction of such payment will be as advised jointly by counsel for the 2nd Defendant and the Plaintiff.

45. The award would have to be reduced by ¼ as far as the 2nd Defendant is concerned, and reduced by 1/5 as far as the 1st Defendant is concerned. Judgment is accordingly given against the 1st and the 2nd Defendants with costs, such costs to be taxed in accordance with the Legal Aid Regulations.

46. Proceedings between the 1st and the 2nd Defendants will have to be concluded in a manner suggested by Counsel for the 2nd Defendant.

(1)    [1965] 1 Q.B. 335 at page 368

(2)   [1969] 2 Q.B. 286 at page 293 A - B, per Denning, M.R.

(3)    [1977] 2W.L.R. 1024 at page 1032C

(4)    [1932]AC 562

(5)    [1982] 3 A.E.R. 201 at page 217j to 218a