Pak Wai Ching and Another v. Wong Yuen Yu and Another

Case No.HCA 2198/1977

Court

High Court CFI

Date—

Judge—

Case Document

100%Judiciary

HCA002198/1977

IN THE HIGH COURT OF HONG KONG	1977, No. 2198

	(Civil Action)

BETWEEN	PAK WAI CHING and TAM MEI SEE the administratrices of the estate of TAM SHU deceased	PLAINTIFFS
	and
	WONG YUEN YU	1ST DEFENDANT
	CHAN KAN MING	2ND DEFENDANT

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Coram: O'Connor, J.

Date of Judgment: 31st October, 1978.

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JUDGMENT

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1. This case arises out of an accident that occurred in the early hours of 5th December 1975, resulting in the death on 11th December 1975 of Tam Shu, a 49 year old man. The action is brought by the administratrices of his estate under the Fatal Accidents Ordinance Cap. 22 and the Law Amendment and Reform (Consolidation) Ordinance Cap. 23.

2. The accident occurred shortly after 2 a.m. in Boundary Street near Tai Hang Tung Road when the deceased, a pedestrian, was hit by a minibus owned by the first defendant and driven by the second defendant. At the time the minibus, which was empty save for the driver, was being driven towards Mongkok and was on its correct side of the road. The main issue on the question of liability is whether the deceased suddenly appeared in front of the minibus, from a gap between two parked vehicles on its near side, giving the driver little or no opportunity to avoid an accident, or whether the deceased had been standing on the roadway near the line of parked vehicles and in the path of the minibus when it struck him. The case is made somewhat difficult by the fact that there are more than the usual difficulties in reconciling the versions of the various witnesses, even the independent witnesses, and that the final stopping place of the minibus is also difficult to reconcile with their evidence. On the other hand the driver appeared to me to be untruthful in the box on a number of matters, and is hardly a witness to be relied upon. At the time of the accident the road was dry and a system of street lighting was in operation. A wholesale flower market was, as is usual at that hour, being held on the footpath on the opposite side of Boundary Street from where the accident occurred. Lines of vehicles were parked at each side of the street while their occupants visited the market. There were two lanes for traffic proceeding towards Mongkok, of which the outer lane was 3.5 metres wide and the nearside lane 5.4 metres wide. Part of the width of the nearside lane was taken up by the line of parked vehicles.

3. Lau King-lui had arrived by taxi at the opposite side of the road from the market, and was putting on her cardigan preparatory to crossing the road to the market when the accident happened. At that time she had her back to, and was she says leaning against a lorry, which I am satisfied was Mr. Fung's lorry, and was parked in the nearside lane facing towards Mongkok. She says she was near the driver's door and that whilst putting on her cardigan she saw the deceased Tam Shu to her right, standing behind and to the offside of the rear of the lorry against which she was leaning. She says he was facing her, which of course would mean that he would have had his back towards the defendant's minibus as it approached them. She puts him as on the roadway, and more or less at the offside rear corner of the lorry. The lorry was a covered lorry and it is clear that for her to have seen him he must have been further out into the roadway than the offside of the lorry. She heard him say 'Anything for sale?' to someone, then she turned her head away and almost immediately heard a bang, felt wind passing in front of her, felt an impact and was knocked to the ground. It is clear that the impact was not necessarily the minibus striking her, as it could have been the body of the deceased. People came to her assistance and she saw a vehicle, apparently the defendant's, stopped 3 lorry lengths away in the direction of Mongkok.

4. Ng Sin-yin had gone to the market to sell flowers. Each morning it was the habit of the deceased to buy flowers from her, and on the morning of the accident she was standing behind Mr. Fung's lorry when the deceased asked her for certain flowers. She bent down to her basket to get them for him, and while she was in that position she heard a bang, and on looking up she could not see the deceased who she says had previously been standing a few feet from her. Later she saw him lying under the lorry. She says that when she looked up she saw the defendant's minibus stopped with its front level with the rear of the lorry and a few feet from it, and that it then continued forward but stopped after being intercepted about 3 lorry lengths away by some pedestrians. Her evidence as to the minibus stopping and then continuing before it stopped again does not appear to be in accord with the rest of the evidence. If her evidence of the deceased asking for certain flowers and her bending to get them for him is true, and I found that it is true, then one would expect that the deceased would have waited nearby till she gave him the flowers. None of the witnesses heard any sound of horn or brakes prior to the accident.

5. The police officer who arrived on the scene shortly after the accident found nothing to indicate the spot on the road where impact occurred. He found the defendant's minibus stopped in the outer lane facing Mongkok, almost parallel to the central dividing line of the road. It would appear that if the minibus had been further away from the dividing line, at the moment of impact than it was when found by the police, it must have thereafter quickly swerved to its right and straightened out parallel to the central line before stopping. Whether this had occurred or whether the minibus came to a halt in a straight line with its pre-accident line of travel is one of the matters for consideration.

6. The 2nd defendant, the driver of the minibus, had at the time of the accident been driving it continuously for some 10 or 11 hours with only one break, that being 45 minutes for a meal. At the time of the accident he was on his way home. He says that he was driving at 25-28 m.p.h. when the deceased crossed the road in a hurried manner from between two lorries parked on the left side of the road. He says he was driving more to the right hand side of his carriage way, as he intended to turn right at the junction with Tai Hang Tung Road. He says when he first saw the deceased he was only about 10 feet from him. Defendant says he immediately applied brakes but could not avoid a collision. He says he came to a halt 10 feet beyond the point of impact and did not move his vehicle before police arrived. In a statement to the police he had said that when he first saw the deceased he was 2 or 3 public light bus lengths away.

7. The conclusion I come to on the evidence is that shortly before the accident the deceased was standing in the roadway with his back to approaching traffic and had asked Ng Sin-yin for flowers. At that time he was a few feet further out into the roadway than the line of parked vehicles. The driver of the minibus could, and should have seen the deceased from a considerable distance away and taken steps to avoid him. I am satisfied that the accident would not have occurred if the driver had been keeping a proper look out, and taken the action that a reasonable driver would have taken, on seeing the deceased standing in the roadway outside the line of parked vehicles. In my opinion after the collision occurred the minibus went to its right and straightened out before coming to a halt. While the accident was primarily due to the negligence of the driver, it was contributed to by the lack of care shown by the deceased for his own safety in standing on the roadway with his back to approaching vehicles. Mr. Sakhrani suggests that if I found the facts as I have found them, the proper apportionment of liability is 75% to the defendants and 25% to the deceased. I agree with that.

8. The deceased was aged 49 years at the date of his death on 11th December 1975. He died intestate leaving behind his widow then aged 49 years and eight children ranging in age from 8 years to 21 years. He was the sole proprietor of a flower shop conveniently located opposite the Hong Kong Funeral Parlour. I am satisfied that at the date of death the five youngest children were school students. The two eldest boys were employed in the flower shop business. I am satisfied that the eldest child Tam Mei-see was a dependant of the deceased to some extent, but would have ceased completely to be a dependant on her marriage in August 1976. The two eldest sons Tam Wai-tim and Tam Wai-tai were slightly dependent while the other children were fully dependent but the dependency would have lasted for different periods depending on the ages of the children. The widow was completely dependent on the deceased and would have continued so for their joint lives. I go on to consider what the family dependency amounted to in terms of dollars. The widow had kept house prior to the deceased death. She had no other occupation. The deceased had provided her with funds to run the household, and about 8 months prior to his death these payments had been increased, from a regular $50 a day plus additional sums as required, to a flat rate of $2,500 a month. In addition the deceased himself paid directly such matters as school fees, electricity charges, rates and he also provided the household with its requirements of rice. The defence took some issue with these figures but I am satisfied the widow was truthful in her evidence as to the provision the deceased made for his family during his life time. There is no direct reliable evidence as to the earnings of the business during his life time, but from the figures as to its earnings after his death I am quite satisfied that he could have, and probably did provide for his family to the extent that the widow said in evidence. I assess the financial benefit to the household from the deceased while he was alive at the figure of $3,000 per month. That figure includes his own support and maintenance which I would assess at $600 a month having regard to what appears to have been the standard of living, so the financial dependency of his family I fix at $2,400 a month. I have considered whether if the deceased had survived he would have been likely to have made greater financial contributions to his family, perhaps as the business profits increased. It appears that the deceased had put aside little or nothing in the way of savings during his life time, and that the increase from $50 a day to $2,500 a month in the sum he paid his wife was not so much a real increase in the financial provision for the family as an arrangement to pay a flat sum that would cover the sums previously paid in regular and irregular amounts. If he had not died the children as they grew older would become less dependent and eventually one by one cease to be dependent at all. Keeping these matters in mind together with the view I formed from the widow's evidence as to the type of person the deceased was, and his manner of disposing of his business profits, it appears to me unlikely that he would have made any significantly greater provision for his family in the future, if he had lived out his natural lifespan, than he had made in the past. On the other hand I do not foresee any significant reduction so I fix the multiplicand at $2,400. I consider that in the light of the respective ages of the deceased and the various dependants the proper multiplier is 10 from the date of death.

9. After the death of the deceased the widow took over the running of the business and had herself registered as sole proprietor. It appears from the figures available that the business is doing as well, if not better, since the death of the deceased than it had done previously. The difficulty is that there is no clear evidence from which one can arrive at a firm figure as to what the profits were while the deceased was alive, as no books appear to have been kept in that period. However some indication can be obtained from considering what we know of the monthly expenditure of the deceased. For this of course one is relying on the evidence of the widow. Her evidence indicates that he paid about $3,000 a month in one way or another for the upkeep of the family including himself. However her evidence also indicates that he sent some $900 a month to China and that he gambled a lot, though with what result I am not told. So using the deceased's expenditure as a guide it would appear to me that on the evidence of the widow the net profit of the business at the time of the death of the deceased was at least $4,000 a month.

10. As regards the profits of the business since the death of the deceased the widow kept some accounts and I have the evidence of the widow that:

a.	The net profit is $2,000 to $2,000 odd a month and she has had to borrow $12,000 in order to make ends meet.
b.	Twenty or thirty percent of the shop's turnover is net profit. She understands net profit to mean profit after deduction of wages, electricity, rental, licences and all expenses.
c.	Under cross-examination she was directed by defence counsel to look at her books for a particular consecutive period of 11 days. The average daily turnover in that period was $1,846. She was then asked to look at her books and pick what she considered an average 10 consecutive days turnover. She picked a period that showed an average turnover of $1,246. She stated there would be days when she did no business.

11. It will be appreciated that there are serious inconsistencies in the widow's evidence but from it the conclusion I draw is that shortly prior to the hearing the business had a turnover of about $30,000 a month and a net profit of about $7,500 a month. If that figure seems high it must be borne in mind that it is based upon her own books of account, her evidence as to what percentage of turnover is net profit and her understanding of the expressions 'turnover' and 'net profit'. It must also be borne in mind that the flower shop is opposite the Hong Kong Funeral Parlour and is one of the largest flower shops in the vicinity.

12. It may be that the business has developed greatly since the death of the deceased. It must be remembered that the business had only been established in 1972 so perhaps a continuing expansion even up to date of the trial would not be strange. It would seem unlikely that the widow has a considerably greater business aptitude than the deceased though I could well be wrong in that. However that may be, in the light of the evidence, sparse and unsatisfactory as it is, it appears to me and I find that the net business profits at the date of death were $4,000 a month, while at the date of trial they are $7,500 a month.

13. Mr. Yeung, Counsel for the defendant, submits that the benefits accruing to the dependants as a result of the death have to be set off against losses, and if the benefits exceed the losses then there is no loss in the result and no award of damages. He suggests that is the position in this case. He recognizes the authority of Howitt v. Head⁽¹⁾ but would distinguish it on the ground that the income from the flower shop does not represent the earning capacity of the widow, but the value to her of the deceased's business to which her managerial skills have been applied, and he says she should be taken to simply have the skills of a good manager. He in brief says that the dependants have a net financial gain rather than a loss as the result of the death of the deceased. Courts are reluctant to find no pecuniary loss has occurred as a result of the death of a husband and father. (See Daniels v. Jones⁽²⁾) I am not referred to any case where the dependants as a result of the death had acquired the business of the deceased which thereafter under the management of the deceased provided them with a considerably greater income than that provided for them by the deceased. I did however myself find the case of Coleman v. Commissioner for Railways⁽³⁾ and have given counsel the opportunity to address me on it. I find that case of considerable assistance, and in particular the judgment of Else-Mitchell J. at pages 100 - 101

"	................. In the first instance, his Honour directed the jury to assess the financial loss which was occasioned by the death of the deceased and to do so in the light of his future prospects in business; secondly, he directed the jury to take into account the benefits which his widow and dependants received as a consequence of his death and explained that the accelerated enjoyment only of testamentary benefits was relevant; thirdly, in considering the value of the business for this purpose he informed the jury that they could act on the valuation of a business agent, that being the only evidence of value of the business as a capital asset; and fourthly, he refused to allow the jury to treat the profits derived from the business since death as a deduction from the damages because those profits were not a consequence of the death of the deceased but of the application by the plaintiff of her own efforts subsequent to her husband's death.
	I think each of these directions was quite unimpeachable for there was no basis upon which the actual profits produced by the business after the date of death could be set off against the loss occasioned by the death of the deceased; neither the deceased's nor the widow's share of profits could in any sense be a benefit arising from death because, on the evidence, those profits were derived from the conduct of a business in which the widow and skilled persons engaged by her were employed, and there was no material on the basis of which an assessment could be made of the income which the deceased's capital interest in the business alone might yield. In any case, I am not sure that figures of income or profits could have any relevance for the only benefit which the death of the deceased conferred upon the widow was the acquisition of a five-eighths share in the capital assets of the partnership business (and any profits earned up to the date of death). The valuation of the business as a capital asset as at the date of death by a business agent was properly admitted because it was a share in that business which passed to the plaintiff by her husband's will but no attempt was made to prove the value of the business on any other basis, as, for example, by capitalizing the profits up to the date of death or for any later period. Accordingly, the evidence as to the profits earned by the business after the death of the deceased could have no relevance except as showing the potential income which the deceased could have made in the conduct of the business had he not met his death at that time. The jury was entitled, in conformity with the principles referred to in Willis v. The Commonwealth (4) to regard this evidence as showing the prospects of the business and in this way as increasing the potential loss suffered by the dependants of the deceased; I am quite unable to appreciate how the profits after death can operate in any way to diminish that loss or the damages recoverable by the plaintiff on behalf of herself and her children."

14. I consider I should approach the matter by considering what is the value to the dependants of the accelerated receipt by them of the business of the deceased, and that this should be arrived at from a consideration of capital value of the business at the date of deceased's death. For estate duty purposes it was valued at $3,000 but I am satisfied that was a gross undervalue of little assistance to me. I have little in the way of evidence to assist me in coming to a conclusion as to the capital value of the business but doing the best I can, and remembering that as the figure is required in order to arrive at a collateral benefit, it was for the defendant to provide the evidence, it appears to me that the capital value of this business must have been at least $50,000 which would have been about or perhaps a little over one years' purchase. Having regard to the age of the deceased and the age of the widow and the other dependants, considered together with how long the dependants other than the widow were likely to be dependent, and the degree of their dependency it seems to me that the value of the dependants interest in the business at the date of death was 20% and that I should therefore deduct 80% of the value of the business as being the value to the dependants of the accelerated receipt of it, regard being paid to the fact that they have certainly received an estate that but for the death they were only likely to have received. I do not consider that the deceased would have made any savings in future that would be likely to come into the hands of the dependants. The deceased does not seem to have been a man who put aside savings.

15. I conclude from the evidence that pain and suffering was confined to one day and I award $2,000 for that. The sum of $1,600 is agreed for special damages. I would award $10,000 for loss of expectation of life but it merges in the damages under the Fatal Accidents Ordinance

	$2400 x 12 x 10	$288,000
	less 80% of $50,000	- $40,000
		-----------
		$248,000
	plus special damages	+ $1,600
	Total:	$249,600
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Having regard to the deceased's 25% responsibility for the damages there will be judgment for the plaintiff for $187,200.

16. There will be interest at 4% on $54,600 from 11th December 1975 to today's date.

17. Defendant to pay plaintiff costs.

18. Judgment debt to be paid into Court with in 21 days.

Apportionment

	Tam Mei-see	$1,500
	Tam Wai-tim	$2,500
	Tam Wai-tai	$2,500
	Tam Wai-tong	$3,500
	Tam Mei-kuen	$5,000
	Tam Mi-ling	$7,000
	Tam Mei-mei	$7,000
	Tam Mei-shan	$8,500
	Balance to Pak Wai-ching.

19. On payment in pay out to Pak Wai-ching. Tam Mei-see, Tam Wai-tim and Tam Wai-tai the sums apportioned to them Pay out the interest to Pak Wai-ching. The sums apportioned to other children to be invested by Registrar at his discretion with liberty to apply to him to pay out and leave to him to pay out at his discretion.

Representation:

Mr. A. H. Sakhrani (Poon & Sum) for plaintiffs.

Mr. Wally Yeung (Gallant Y.T. Ho & Co.) for 1st and 2nd defendants.

(1) (1973) Q.B. 64

(2) (1961) 3 All E.R. 24

(3) (1964) 65 S.R. (NSW) 80

(4) (1946) 73 C.L.R. 105.