Cheung Suet Lan v. Li Chun Man and Another

HCA000968/1970

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

ACTION NO. 968 OF 1790

ACTION NO. 1585 OF 1970

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Coram: Briggs, J. in Court

Date of Judgment: 12th February 1973

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JUDGMENT

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1. This is a consolidated action arising out of a traffic accident which occurred on July 13th 1969 on the Kwai Chung Road, when a young police constable named Yeung Kee Wah lost his life. The plaintiff is the mother and administratrix of Yeung Kee Wah.

2. A writ was issued claiming damages under the Fatal Accidents Ordinance on June 27th 1970, that is a little more than a month before the expiration of the period of limitation for an action to be brought under that Ordinance. The period has since been increased. Letters of Administration were not taken out until August 27th 1970. And on September 28th 1970 a second writ was issued claiming damages under the Law Reform (Miscellaneous Provisions) Ordinance. The two actions were consolidated by an order dated November 21st 1970 and a statement of claim covering both claims was filed on December 1st.

3. In my view there was time to obtain a grant of Letters of Administration before the expiry of the period of Limitation under the Fatal Accidents Ordinance, but the plaintiff's solicitor was taking no chances.

4. The consolidated action is brought for the benefit of the estate of Yeung Kee Wah whose dependants were his mother, a widow, and two sisters and one brother.

5. A defence was filed on December 7th 1970. It was admitted that the first defendant was the owner of the motor-bicycle involved in the accident and that the second defendant was driving it.

6. The defendants were not present at the trial and no one appeared on their behalf. However there were before the court certain interrogatories answered by the second defendant.

7. At the time of the accident the deceased was riding as a pillion passenger on a motor-bicycle driven by the second defendant. At about 1 a.m. on July 13th 1969 the parties were proceeding along Kwai Chung Road in the direction of Tsuen wan. Close to the Tin Hau Temple the road curves to the right and it was here that the accident occurred.

8. A sketch plan of the scene of the accident, prepared by a Police constable at the time, was produced. This shows that the Kwai Chung Road at that point is divided into two halves separated by a raised island running down its centre. This is about 4" high and is grassed over. The width of the road on which the second defendant was travelling is 24'9". And that half of the road is divided into two traffic lanes. The sketch shows three marks in the lane nearer to the centre of the road. One measures 13' and starts 80' from where the motor-cycle is shown as having come to rest. The other two marks, one of 11' and one of 4' are nearer to the motorcycle which is shown as leaning on the kerb in the centre of the road.

9. No one has come forward who claims to have been an eyewitness. And, as I have said, the second defendant did not appear and give his version of the occurrence. There is no evidence that there was a second vehicle or another person involved in the accident.

10. The plaintiff relies on the doctrine of res ipsa loquitur. He called Chiu Poon Yee who was at the time a vehicle inspector attached to the Transport Office. He examined the motor-cycle. Soon after the accident: and, as was his duty, made a report on the condition.

11. He found no defect which could account for the accident but said that the tail light unti was damaged, the plastic shield broken and the foot rest on the left side was bent. The marks in the road may well have been caused by the foot rest coming into contact with the surface of the road.

12. In my view this is a clear case for the application of the doctrine of res ipsa loquitur. The bicycle was without defect: and the sketch plan clearly indicates that the driver lost control as he negotiated or tried to negotiate the curve and the accident resulted. I therefore find that the defendants are liable.

13. I now come to the question of damages. I will take the claim under the Law Reform (Miscellaneous Provisions) Ordinance first. I will award $8,000 for loss of expectation of life. The deceased died from the effects of damage to his brain as a result of a fractured skull and from other injuries. He was rendered unconscious by the accident and did not recover consciousness before he died after being taken to the Queen Elizabeth Hospital. There will therefore be no award in respect of pain suffered by the deceased. The plaintiff claims $3,500 as funeral expenses. This sum was borrowed from friends and of course must be repaid. The sum is reasonable and the plaintiff is entitled to recover. The damages under the Law Reform Ordinance therefore total $11,500.

14. I now come to the claim under the Fatal Accidents Ordinance. The deceased was aged 20 at the time of his death. He was a Police constable earning $550 per month. This sum is made up of pay at the rate of $408 per month and certain allowances. These consisted of a post allowance of $4 per diem and a further cost of living allowance of $60 per month. In the statement of claim the total figure is given as $530 per month. The plaintiff was a little vague as to the exact amount. I base the figure of $550, which does not pretend to be exact, upon the evidence given by Chief Inspector Crosbie, an officer attached to the Finance Branch R.H.K.P.F. who gave evidence for the plaintiff. The post of constable is pensionable, the amount of the pension being based on the pay. Allowances are not pensionable. A constable may serve until he is 55 years old. The deceased had an excellent record in the Force and there were good chances of promotion. In addition the pay of constable has been considerably increased since the death of the deceased. For example if he were alive to-day the deceased's pay would be based on a scale running from $685 to $980 per month.

15. The deceased was the sole support of his family. He allowed the plaintiff $400 per month. He was unmarried and lived in police quarters though he visited his family from time to time and spent certain holidays etc with them.

16. The family consisted of the plaintiff, a widow, aged 40 and three other children: A girl aged 19, a boy aged 17 and a second girl aged 14. These figures are the ages of the persons at the time of the accident. The elder daughter of the family is now over 21 and is earning: the mother is now in employment and the two youngest children are at school.

17. The most important factor to consider when assessing damages is the fact that in all probability the deceased would marry. It is true that as the eldest son, and at the time, the chief support of the family, he had the strongest traditional and moral obligations to continue that support. But the probability of marriage is very real. And upon marriage it is only reasonable to suppose that any contribution made to the plaintiff for the family would decrease. However the position is not as clear cut as that. For it is also likely that if and when he married, his wife would live with and become part of his family in the old fashioned way.

18. There must also be taken into consideration that the elder daughter is now earning her own living which would have been the case even if there had not been any accident. In addition, weight must be given to what is usually known as the vicissitudes of life, to the fact that there will be a lump sum payment, and there is also the matter of the depreciation of money.

19. In view of the fact that the pay of the deceased would rise and rise considerably - as it has indeed done I will take $400 as the dependency.

20. I was very impressed with the evidence of the plaintiff there was no attempt at any exaggeration of her claim and I accept her figures as to her household expenses without reservation.

21. In my view the correct multiplier is seven years. This makes $33,600. Taking the other matters mentioned above into consideration both these which result in a depreciation and these which result in an appreciation of that sum will award the sum of $30,000.

22. The sum awarded under the Law Reform (Miscellaneous Provisions) Ordinance less the amount for funeral expenses will merge into this sum. There will be judgment for the plaintiff for $33,500. The sum of $3,500 representing the funeral expenses will be paid to the estate of the deceased. The sum awarded under the Fatal Accidents Ordinance will be apportioned as follows: the sum of $2,000 for the elder sister of the deceased Yeung Yue Mui: the sum of $4,000 for the brother of the deceased Yeung Kwai Man: and the sum of $8,000 for the younger sister of the deceased, Yeung Yue Lin: the balance of $16,000 for the plaintiff's Cheung Suet Lan.

23. The sums apportioned to the plaintiff and the elder sister, Yeung Yue Mui are to be paid to them direct. The sums awarded to the brother, Yeung Kwai Man, and to the younger sister Yeung Yue Lin are to be paid into Court. These sums of course are intended to take the place of provision by the deceased until these two persons reach the age of 21. Any income from such sum is to be paid to the plaintiff for the benefit of the infant concerned. The Registrar may pay out sums of capital in respect of these two sums when he is satisfied that it is in the interest of the infant so to do.

24. The plaintiff is to have her costs.

Representation:

Patrick Woo (J. Ip & Co.) for plaintiff

1st defendant in person

2nd defendant in person