Chan Hung-wing and Anothers v. Lam Kam-ching and Others

HCA001930/1973

IN THE HIGH COURT OF JUSTICE

ORIGINAL JURISDICTION

ACTION NO. 1930 OF 1973

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Coram: Li, J.

Date of Judgment: 23rd March, 1977 at 3.00 p.m.

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JUDGMENT

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1. This is an action for damages pursuant to Section 20 of the Law Amendment and Reform (Consolidation Ordinance), Chapter 23 for the estate of the deceased and to the Fatal Accidents Ordinance, Chapter 22 for the dependants of the deceased.

2. May I at the outset express my horror and shock that no member of the public who witnessed the accident saw fit to come forward to give evidence. But for the fact that this is a clear-cut and straightforward case, the deceased and her dependants might well have been deprived of justice for the want of evidence. It rather reflects on the society in this part of the world where people are not public-spirited to assist their fellow citizens. One day they themselves might be faced with the same situation and be deprived of justice. Having said that, I will relate to the facts in evidence.

3. On the 14th September 1972 about 9.30 in the morning, the 2nd defendant was driving a lorry registration number 6748 up a street called Tung Ming Street in Kowloon up a slope from south to north. At a certain point the lorry slipped back owing to a brake failure, knocked down the deceased CHEUNG Kit-yu when she was carrying a child and killed her. Fortunately the child escaped. This was an accident that happened in an open street at a time of the day where there should be plenty of persons witnessing the accident but not a single witness had been called to testify as to the events on the occasion and to testify how the accident happened. Subsequent investigations revealed the following facts which could hardly be disputed and I find as facts in this case.

4. At the material time the 1st defendant was the owner of the vehicle, the lorry, No.6748. He sent it for servicing at a garage of the 2nd defendant who was the garage proprietor. Some days prior to the accident the 2nd defendant the proprietor, telephoned the 1st defendant saying that the vehicle, lorry No. 6748 had already been serviced and was ready for collection and that he, the 2nd defendant, was about to move his garage from Lyemun Road to another premises where he set up his garage at Tung Ming Street. The 1st defendant informed the 2nd defendant, the proprietor, that he was not ready to collect that lorry No. 6748 and requested the defendant to move the said lorry from his former garage to the 2nd defendant's garage at Tung Ming Street. The 1st defendant further told the 2nd defendant that he would collect the said lorry if and when he required that lorry. Subsequent investigation also revealed that at the time when the 2nd defendant drove that said lorry it had at least two patent defects. One was that the steering gear was not working properly in that it gave ten inches free way either way from neutral position. Further, there was a leakage in the brake seal which would impede the efficiency of the braking system of one of the wheels, that would cause and could cause a sudden and complete brake failure. Mr. John Goulay, the motor vehicle inspector of the Government who subsequently inspected the vehicle, said he found these defects. He further said that such defects were not caused by the accident at all but was there probably prior to the accident and could be easily detected by some one who really checked the vehicle.

5. At the time of the accident the deceased was a pedestrian carrying her child across the street at Tung Ming Street. The lory No. 6748 had already passed her up the slope. She crossed the street but when the lorry slid back it knocked her down and then went further to knock down a series of vehicles parked by the side of the road.

6. There was evidence that at the time of the accident the 2nd defendant was not only driving that lorry from his own old garage to the new garage at Tung Ming Street but also carrying some garage equipment and machine parts. But this additional load was not really the cause of the accident or the cause of the brake failure. This opinion was given by Mr. Gourlay who's an independent witness.

7. The deceased died as a result of the accident. Having regard to the evidence as a whole I have no hesitation to find that the cause of death of the deceased was due to the negligence of the 2nd defendant at least in two parts. First was that when he was asked to service a vehicle he failed to check the brake or to check the steering gear, and then wrongly and falsely reported to the 1st defendant that the car should be ready for collection. The second part of his negligence was that not only did he make such a false report but he saw fit and had the temerity to put the car on the road and drove it knowing full well that such a car was simply not fit for the road. He has not been charged with criminal negligence. He must consider himself extremely fortunate.

8. As to the 1st defendant, it has been said that he has committed also a breach of Statutory duty. Having considered the evidence, I would give him the benefit of the doubt that he had put his car for the repair and servicing by a garage proprietor whom he said he could trust. When the 2nd defendant said that the car was ready for collection, the lorry should be properly repaired and was road-worthy. However, it does not detract from the fact that the 1st defendant as owner of the lorry requested the 2nd defendant to drive that car for him from the old garage to the new garage at Tung Ming Street as his agent so that the car could remain at the new garage at Tung Ming Street until he was ready to collect it. These evidence are supported by the answers of the first and second defendants in their interrogatories and they are not disputed in cross-examination. In any event they have not been seriously challenged in cross-examination.

9. On the question of liability I have no doubt at all that the deceased died as a result of the accident which was caused by the negligence of the 2nd defendant for which the 1st defendant must be held vicariously liable.

10. It only remains for me to consider the quantum of damages. The deceased when she died on the 14th of September 1972 was 23 years old. She was a skilled worker as a paint-mixer and a sprayer of toys in toy factories. She was married to a husband of her age, namely the age of 23, and had a child by him who at the time of the accident was about 6 months old. Soon after their marriage in 1971 the husband and wife took up residence together and set up a joint business in May, 1971. According to the evidence, it was a growing business growing from strength to strength. The husband kept some sort of a haphazard record for the period from May, 1971 up to about October, November, 1972, that is during their joint lives and a month or two after the death of his wife. I may at once observe that the record kept by the husband, one of the plaintiffs, is not an entirely satisfactory record. That is understandable because he has no knowledge of how to keep accounts and he is certainly not an accountant of any description. These are exhibited in Exhibit 9A, B, C, D and E. According to the husband CHAN Hung-wing, sometimes he went to collect payment for work, sometimes his wife collected payment for work. It is clear that the joint business was that they obtained orders from factories, one of which was the wife's previous employer, to spray paints on toys and they got paid for it. They employed assistants from time to time and from month to month. The number of these assistants varied also from month to month. They were paid for the job of spraying. The wife was more of an expert paint-mixer and was a very quick and hard worker in spraying work as well. In addition, she used to supervise the employees as to how spraying work should be done. In short, she was the moving force of the family business.

11. According to the records they received income from month to month as from the month of June, 1971. Going through the record in Exhibit 9A, I find that on the average the business showed net intake after paying for various expenses and for wages to employees and for paints of about $3,000 or more without taking into consideration the wages for the husband CHAN Hung-wing and his wife, the deceased. That was one way of looking at it. But in view of the husband's haphazard record, I asked him from the bench what was his average income or gross intake per month since May 1971 up to the day when his wife died. The answer was that it was $5,000 and the expenditure for rent, wages, electricity and paints came to about $1,800 per month. That left the couple a sum of $3,200 per month. Out of this one must consider their personal wages at their worth to the business.

12. In view of the authorities in Burgess v. Florence Nightingale Hospital for Gentlewomen and Another⁽¹⁾, at page 349. I am not going to consider the loss of profit caused by the deceased of a partner. I should then proceed to consider the loss of contribution to the husband on the ground of dependency. According to the plaintiff CHAN Hung-wing, they shared the $3,200 intake as a joint income. He himself would take approximately $800 per month which is recorded in Exhibit 9A for his personal expenditure, for entertainment of employees and for occasional use for himself. The net profit I worked out according to the evidence of CHAN Hung-wing as he gave to me is not quite $3,200 but the net should be $3,150. Having heard his evidence, I feel that the husband might be unduly modest that he is only worth $800. Indeed he readily conceded and agreed with time that his worth was probably a thousand. That leaves $2,000 as the wages of the wife. I have been asked by learned counsel for the defence in a rather ingenious argument to find that the wife's contribution was no more than $375 to $500 per month. I am not able to accede to that argument. My finding in this case is that, according to the evidence of CHEUNG Chung, a sprayer and paint-mixer in the days of 1972 would be worth over a thousand dollars. But one must bear in mind that the deceased was not merely a paint-mixer. She worked in the business as a paint-mixer, as a supervisor to the workmen and as a sprayer as well who worked overtime to the late hours of the night. It is all very well that in such a case she must be treated as a business partner. As I have said I would not consider this case as that of a business partnership but rather of a wife's contribution to her husband's business in a family business. Her worth, had she been working outside, would be in the vicinity of $2,000 in any case as a sprayer, a supervisor and a paint-mixer who was prepared to work overtime to the late hours of the evening. I have no hesitation to assess that the remaining of whatever is called the business profit was the wage that was deservedly earned by her to the extent of $2,150 per month, that is by deducting a thousand dollars of the husband's wages from the total wages of the two which I would not regard as a profit but as a wage earned by the couple. And out of this $2,150, according to CHAN Hung-wing, the couple spent roughly a total of $1,050 per month in the form of food, clothing and entertainments between herself and her husband. The wife must of course be allocated the benefit of half that share, that is $625. Her contribution to the home in this is at least $625. Out of the balance there is evidence that the wife also paid the husband's mother an allowance, her own mother an allowance and $400 for the upkeep and maintenance of their son who has been taken care of by somebody else. I assess the wife's income as such not entirely on the basis of the calculation aforesaid. I also accept CHAN Hung-wing's evidence that in certain months, on certain occasions the wife collected payments which had not been recorded and that she defrayed expenses in various things and then she put the balance into the bank as their common savings for the family. I then proceed to look at the family's savings in the course of their 15, 16 months of joint life as well as joint business. Examining the bank deposit books at the date of her death when the deposit box was opened I found that there was at least a joint income of $3,000 per month. I have worked out and compared the figures in Exhibit 9A month by month on the average. I have also taken into consideration the list exhibited in the agreed bundle produced by the husband CHAN Hung-wing. There was a total of $15,752 in the deposit box. That worked out that in their joint life of 15 or 16 months there was an average of $1,000 saving per month. These savings can be divided, to my mind, into three parts. They were not the savings of the deceased alone nor was it the saving of one or two persons but three of them. Needless to say that the couple were young. Had the deceased been living, naturally there would be other children and the savings would further be divided and the deceased's share would be probably one quarter, one fifth or one sixth. But there might be more income in the future. That is speculation which I do not propose to undertake. Suffice it to say that if I divide the thousand dollars per month saving into three parts, I would take the deceased's part as, say, $350, that leaves a total of $650 for the husband and the child.

13. As to the fact that the deceased contributed $400 per month for the upkeep of the child, it has been argued that that is not a contribution because whatever contribution the deceased made to the family she had sacrificed for the upkeep of the child and paid $400. With due respect I find that the argument should be in the reverse. It is natural for a mother to take care of the child. Because she had to work over hours, because she had no time to take care of the child, therefore she paid $400 in lieu of her duty to take care of this child. The $400 was earned by working overtime and that must be taken as her contribution to the family. I don't see how by any length of imagination can I say that out of this $400 the deceased should be allocated any form of benefit except that of satisfaction of a happy parent. In any event she paid, as I have calculated in my way, the $400 out of her earnings which she undoubtedly must be deemed to have contributed to the family. Working it out this way, I find that the deceased would normally have earned an income of $2,150 out of which I must deduct $625 being her share of food, entertainment and clothing leaving a sum of $1,525. Of this $1,525 she either paid into the bank deposits saving accounts or spent on jewellery which was mostly gold ornaments which could readily be converted into cash. If I divide the sum of $15,752 by 15 the result is about $1,000 per month. At least she must have contributed $650, being two-thirds or roughly two-thirds of her savings. In other words, she has, out of the $2,150, saved $1,000, $650 of which enured to the benefit of her husband and child. As to the rest of the contribution, she had contributed another $400 to the upkeep of the child, that means $1,050 - not to mention that there was another part-contribution to the rent that had been paid for the house. That makes her monthly contribution exceed $1,000 per month. However, I take into consideration that whatever I award is going to be a lump sum payment. Learned counsel for the plaintiffs suggested that the savings and earnings of the wife's contributions out of the wife's savings and earnings would be at least about a thousand dollars. I shall take that as a guide and adopt a multiplicand of a thousand dollars a month which means $12,000 per annum. I have been asked to consider whether the multiplier should be cut down from its conventional maximum of 15 years. Having regard to the fact that I have drastically cut down the multiplicand and having regard to the very, very young age of this young woman when she died and the years of happiness she might have with her husband, I will be inclined not to cut down the multiplier. I adopt the multiplier of 15 which gives the total damages on that item to $180,000.

14. I have seriously considered the question of prospect of remarriage. Perhaps I might observe that whereas women are more adaptable and in a more fortunate position in that in a young widow - if she is a widow, she might subsequently remarry and would not find a great deal of difference between the first husband and the second husband - I hope I do not sound sarcastic - but men are different when they are used to a wife. He is very lucky to find the wife an asset and when he remarries it is very often that he may find the second wife a burden. That might or might not happen to the plaintiff in this case. I am not prepared to say that because of his young age he must of necessity find a wife who will be as able as his first wife.

15. I have to consider the damages for the loss of consortium to the husband CHAN Hung-wing. However, I find that the plaintiff is entitled to only one set of damage. It will be futile if I, say, assess his damage for the loss of consortium to the sum of, say, 10,000, 20,000. It will be off-set by the sum I award under the Fatal Accidents Ordinance.

16. Again I have been asked to award a sum pursuant to the Law Amendment and Reform (Consolidation) Ordinance for the estate of the deceased. Well, she was a young woman, she had a long expectancy of life. Again if I should award any amount to the estate of the deceased it will have to be taken out of the award under the Fatal Accidents Ordinance. If I must perform my function and award to the husband for the loss of consortium I give him $5,000 which would be deducted anyway from the award under the Fatal Accidents Ordinance. If I must award a sum to the estate, I again would award, say, $5,000 for the estate which must be deducted from the award under the Fatal Accidents Ordinance. The net result is that the total damage would still be $180,000 unless I am wrong in not awarding any sum for the loss of consortium which will be $5,000 to $10,000 in the addition. Having said what I have done, I would award the total damage of $180,000 plus funeral expenses of $2,662.40 and costs and interests to date from the day of the accident at the rate of 8% per annum.

Representation:

(1) (1955) 1 Queen's Bench.