NG KIN MING v. WAH WAY HONG LTD. and Another

1996, No. PI397

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

PERSONAL INJURIES LIST

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J U D G M E N T

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1. I am trying first the liability for a personal injury case. The facts are very straightforward. The incident happened at the junction of Hong Ling Road in Kwun Tong. There were road works being carried on near that junction. I have looked at the photographs and plans. It is clear that there was a divider in the road, and the deceased was crossing the road. There was a large box junction and road works going on, anyone driving a car should have been driving with care for the prevailing circumstances.

2. The defendant, a very inexperienced driver, had been given a BMW to drive and he was obviously driving at a speed which he thought was his right, namely, 50 kmh. He came up to the junction with the road works. A gentleman, Mr Yuen, a wholly independent witness whose evidence I whole-heartedly accept, was a lorry driver with considerable experience and he had stopped his lorry at the traffic lights of the junction. He noticed this lady. I accept she was not in a position where it was an acknowledged pedestrian crossing, but she had earlier crossed half of the road and she was going across quite quickly which was perfectly safe. The traffic light had turned red and 3 taxis were coming down from Hong Ling Road to turn right, the BMW driver may have slowed down but he clearly accelerated, probably to miss the taxis, but did not avoid this lady. He drove through the red light. He should have seen her and should have driven much more carefully. He was charged with reckless driving. I think he is exceptionally fortunate not to have been convicted of reckless driving but only of careless driving, this was a very bad case of driving. The only issue is whether the deceased was guilty of contributory negligence. On my finding of what occurred, I can see no negligence on her part. She would have thought the road was safe to cross.

DAMAGES

3. I have decided liability here at 100% on the defendants. As for the calculation of damages, I must confess at the outset, I am not as familiar with this as other branches of the law. In fact, I have not done one of these cases for a number of years but I am grateful to counsel, particularly Mr To who has kindly provided me with some interesting authorities and calculations, each side obviously putting their cases as high or low as they should.

4. Some matters are in agreement which are bereavement and funeral, hospital expenses and loss of services. As for the claim for pain, suffering and loss of amenities, this lady was in a coma. I have looked at the report and I think I am entitled to make some award but it should be very low. I think for that figure, it should be no more than $10,000. I am going to give gross figures and the interest can be calculated later. That should be $10,000. The funeral and hospital expenses, as I said, are agreed as is the bereavement and the loss of services. The interest on these can be calculated.

5. The two difficult areas are first the dependency. As far as this lady is concerned, at her age, I would take a multiplier of 10. The area of dispute between the parties is 9 or 10, but I would take 10. She clearly was a hardworking, thrifty lady who looked after her husband and 2 sons who were grown up -- both are now married. The approach to the loss of dependency is somewhat different. Mr To has taken a global or what is called an overall dependency, relying on the case ofHarrison v. Empress Motorsand adopted different multipliers.

6. As far as the pre-trial loss is concerned, there does not appear to be a great deal of difference between the parties. The figure I take as pre-trial loss is 40 months x $6,000, which comes to $240,000. The interest on that can be calculated.

7. It is the post loss of dependency which is difficult. There are two sons who have both given evidence in front of me, and in my judgment, the elder son, Ng Wai Man is earning good money and his loss of dependency would be zero. Insofar as the other son is concerned, he is also earning, albeit a lesser sum, and I do not think there would be any dependency for more than 2 years and it would not be greater than $1,000. I would therefore allow for him a loss of dependency only at $24,000. My approach is slightly different to that of Mr To, but I think he is right when he says that one should adopt a different figure.

8. Insofar as the husband is concerned, I think the correct figure to adopt for him would be 5 years which is 60 months, and the figure I would allow for him would be $2,000 a month, at 60 months, which is $120,000. I therefore think that the loss of dependency is $384,000 only. The figures of the Plaintiff, in my judgment, are inflated, and I would not permit those, so the figure would be $384,000 which is a gross figure. What interest is permitted on that is a matter for later argument. Together with the earlier agreed figures ($170,600), the total is now $554,600.

9. As far as Accumulation of Wealth is concerned, the authorities indicate a figure that is taken of 10% for what is called standard savings. Each case depends on its own facts. I am in no doubt at all that this lady was very hard-“working and was a good saver, and would have continued to save in a way that because of the dependency decrease would have permitted her to save more. The post-trial salary would have been over $15,000 and, in my judgment, she would have been saving somewhere in the region of 30-35% of her earnings. I think the correct figure is to take a one-third figure, namely 33.3% for her earnings. Her salary was $15,373, and her monthly savings would have been in the region of $5,100 per month and I think I am permitted to take a figure for post-trial of 80 months, or $400,000. This is less than the figure claimed of $553,000.

10. As far as pre-trial is concerned, I would take a figure of 20% which would be $12,940 x 20% x 40 equal to $103,520.

11. As I said, I am grateful to counsel for providing me with skeleton submissions on the calculation of damages.

12. Having heard further argument as to interest, the amount I award is $1,135,525.

13. Plaintiff's costs are to be taxed under the Legal Aid Regulations.