Wong King Tai v. Lau Ka Kui and Another

HCPI000488/1996

In The High Court Of The

Hong Kong Special Administrative Region

Court Of First Instance

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Coram: Deputy Judge de Souza

Date of Judgment: 24 November 1998

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Judgment

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Introduction

1. These proceedings, arising out of a fatal traffic accident on 25 May 1993 at about 9.10 pm, are brought by the plaintiff, the lawful daughter and administratrix of Mr. Wong Tak Luk, deceased ("the deceased") for damages for the benefit of the dependants of the deceased under the Fatal Accidents Ordinance, Cap. 22 and for the benefit of the deceased's estate under the Law Amendment and Reform (Consolidation) Ordinance, Cap. 23. The deceased, having been born in 1921 was aged 72 when he died on 6 June 1993 as a result of the accident which involved a motor vehicle admittedly driven by the 1st defendant and owned by the 2nd defendant. Letters of Administration were granted on 25 June 1997.

2. The plaintiff by her Re-Amended Statement of Claim averred that the accident occurred through the negligence of the 1st defendant for whom the 2nd Defendant was vicariously liable. The 1st defendant was convicted of a charge of using a motor vehicle with unsuitable suspension system at South Kowloon Magistracy on 15 December 1993, a matter admitted by the defence and prayed in aid by the plaintiff as being relevant to the issue of the 1st defendant's negligence. The relevance of the conviction has been disputed as were liability and quantum save for the limited agreement on a number of heads of damages. There was in my view no evidence upon which a finding could properly be made that the use of the vehicle with the illegally altered suspension system at the material time by the 1st defendant was in itself a negligent act on his part or that it had contributed in any material way to the occurrence of the accident. The issue had simply not been ventilated at all.

3. The evidence, limited in scope and content such as it was, essentially addressed the 1st defendant's manner of driving and duty to keep a proper lookout for pedestrians at a light-controlled crossing. The conviction is, therefore, of no relevance or assistance to the issue falling to be determined.

4. On the question of liability, the defence has contended that the deceased was the sole author of his sad demise, or alternatively his failure to have any proper regard for on-coming traffic and for his own safety when attempting to cross the road had principally caused the accident.

Liability

5. The evidence revealed that the deceased set off on foot with his grandson then aged 12, PW2 Chin Wing Hong ("the grandson") from his abode at about 9 pm on 25 May 1993. They were heading for Temple Street to shop for clothing and food. Walking along Jordan Road, they soon arrived at the junction of Jordan Road and Nathan Road where there was a light-controlled pedestrian crossing. That section of the road was a major junction as was apparent from the evidence and the photographs produced. Without any apparent difficulty or incident, they had traversed the southbound section of Nathan Road, arriving safely at what was described as a safety island in the middle of the road. The safety island located in the middle of the two carriageways along Nathan Road was partially fenced in by railings.

6. Having just successfully crossed that section of Nathan Road leading towards Tsim Sha Tsui, they were about to make for the opposite pavement where the Yue Hwa Department Store was situated. To get there, they would have had to cross the northbound carriageway which was divided into two lanes of traffic. It was then about 9.10 pm Although it was nighttime, the street lighting at the junction was bright and visibility was adequate, if not good. Thus far, the evidence was non-controversial. What transpired thereafter was, however, the subject of much dispute.

7. The only witness to testify to the circumstances of the accident was the grandson who had turned 17 by the time of the trial. It was, therefore, not surprising that he was closely crossed-examined by counsel for both defendants with the view to establishing that his account of the incident was unreliable and more especially, inconsistent in material respects with his earlier recollections as recounted in his police statement and during the prosecution of the 1st defendant under SKC 10572 of 1993. Neither defendant had testified at the hearing before me, nor had they made any witness statements as they were entitled to for the purpose of the hearing. The only witness statement furnished had emanated from PW1 Madam Wong King-tai ("Madam Wong"), the lawful daughter of the deceased and mother of the deceased's grandson.

8. In passing, I should note that the plaintiff had attempted to adduce in evidence the statements given to the Police of Lam Wai Man, the front seat passenger in the 1st defendant's vehicle, the grandson, and Cheung Kin Yeung, an eye-witness to the accident. Hearsay notice and counter notice had been served in respect of these police statements, but in the event, no further steps had been taken and no orders made as to their use. That being so, they formed no part of the evidence that had to be taken into consideration, save and except the limited aspects of the grandson's police statement touched upon in cross-examination, of which more later.

9. Before reverting once more to the circumstances attending upon the accident, I should also state that the following facts, unless otherwise stated, are as I find them.

10. After the deceased and his grandson arrived at the safety island, the deceased advised his grandson to quickly cross the remaining section of the road. By this stage, the deceased was no longer holding the hands of his young charge. The grandson proceeded as directed and he set off from the position he marked with an "X" on photograph 9 of P1. This was a position very close to and just beyond the right side of the opening in the railings. At the time, the deceased was separated from the grandson, being just behind and to the right of the grandson. He must still, therefore, have been on the safety island but near to the opening in the railings.

11. There were 2 to 3 people crossing and the grandson followed suit. In giving evidence, the grandson asserted that he had checked for on-coming traffic prior to traversing. He said he had looked to the left and noticed that traffic heading for Mongkok had stopped at the traffic lights on the other side of the junction in Nathan Road. He specifically recalled seeing that, adding that traffic had halted at the position where the single-decker bus in photograph 9 was. When he had nearly completed his crossing, he maintained in chief that he had again looked to his left and noticed that the northbound traffic had started off. It was his evidence in court that on reaching the opposite pavement, he saw a brown private car in the outer lane advancing particularly fast. He immediately tried to locate the deceased, and as he did so, he said he heard a braking sound and a bang. On turning round, he discovered that the deceased had already been hit by that vehicle and was lying on the ground. He disagreed that the bloodstains in the 2nd photograph on page 13 of the Bundle Of Agreed Documents correctly depicted the position where the deceased had lain immediately after the collision, saying that he had been moved there after the accident. When pressed, he did, however, concede that the deceased had fallen down at a position that was "close to the right front of the vehicle, namely its offside".

12. Despite his assertion that he had kept a proper lookout when emerging into the roadway and had looked to his right before crossing, I am satisfied that he had plainly not done so, which is not the least surprising given his young age at the time and his admission the he was following other pedestrians. When other pedestrians were crossing, he had instinctively followed. suit. This finding is entirely consistent with his own account to the police given on the night of the accident. He had told them that before emerging into the roadway, he had not checked for traffic condition to his left. Under cross-examination, he agreed that this aspect of his police statement was truthful.

13. I also find that before he had time to complete his journey, traffic on the opposite side of the junction on both lanes of the carriageway had begun to move off, heading towards the pedestrian crossing where he was. He was unable to recall having told the trial magistrate or the policeman recording his statement that there were a taxi and a KMB bus in the slow lane heading towards him at the time.

14. Despite the paucity of direct evidence, I am able to find that the grandson was crossing the roadway at a time when the pedestrian signal was either showing red to him or at the very least, was flashing green and just about to turn red. This must have been so as traffic had begun to advance in his direction even before he had completed his crossing and there was no suggestion (nor could such a case have been made out) that the 1st defendant had jumped the red light. On the evidence, the converse was indeed the case. It will be recalled that the grandson had admitted informing the magistrate that vehicles were heading in his direction in both lanes when he was half way across and furthermore, that this account had been truthful. Plainly, he and the deceased were attempting to cross the road at a time when they ought not to have done.

15. There was additional support for such a finding in the evidence and it was this. The deceased had clearly not set off from the safety island at the same time as the grandson. When cross-examined as to why this was, the grandson suggested that it might have been because "the traffic light was red or there were vehicles coming." I find that that was precisely the situation. Vehicles in the northbound carriageway had begun to move towards him.

16. For some unexplained reason, the deceased must have decided to follow the grandson to cross the road probably in the mistaken belief that he had sufficient time to traverse in safety. In view of his age, he must have stepped away from the safety island and begun his crossing at a slower pace than the grandson. He was quite obviously struck by the offside front of the 1st defendant's vehicle in the fast lane and had fallen down near the safety island by the offside front of that vehicle.

17. The 1st defendant's evidence before the magistrate was that the deceased, having reached the middle of the road, had somehow turned back and was making for the safety island when the collision occurred. It was submitted that this was on the balance of probabilities a likely scenario. Alternatively, in attempting to cross only after the grandson had moved well into the roadway, he was exposing himself to the increased risk of walking into the path of the 1st defendant's vehicle that was approaching at the time. Both scenarios would indeed explain why the deceased was struck by the offside front of the vehicle close to the safety island. On either scenario, it was submitted that the deceased was solely to blame for accident and the claim ought to be dismissed. Alternatively, it was contended that he was principally to blame for walking into the path of the vehicle at a time when the 1st defendant could have done little to avoid the accident. It was suggested that 75% of the blame should fairly be attributed to the deceased.

18. Although there was some suggestion in the grandson's testimony that the 1st defendant was approaching the pedestrian crossing in the fast lane "particularly fast", there was insufficient evidence to support a finding that he had been speeding. On the contrary, the photographs on pages 14 and 15 of the Bundle Of Agreed Documents showed that the 1st defendant's vehicle had come to a halt just beyond the pedestrian crossing. The grandson testified that he had heard the sound of braking immediately before the collision, a fact corroborated by the brake mark on the crossing as shown in the top photograph on page 15 of the same bundle of documents.

19. He had also explained that he was crossing from the "X" position on photograph 9 of P1 and that at the time the deceased was just behind him somewhere to his right. That would have placed the deceased approximately at a position near the edge of the railings to the right of the rear of the police motorcycle shown in the bottom photograph page 14 of the Bundle Of Agreed Documents. To put it another way, he must have been crossing the road quite close to the right edge of the crossing. It was also on that side of the pedestrian crossing that he had apparently been struck. Had the 1st defendant been driving at high speed just before the collision, his vehicle would in all probability have stopped well beyond the point of impact despite the application of the brakes. Whether he was driving at a speed that was excessive or safe in the circumstances was quite another matter.

20. On the totality of the admissible evidence adduced, I find that the deceased had stepped into the roadway and had attempted to cross when it was unsafe to do so. Had he kept a proper lookout he should have noticed that the pedestrian traffic light was against him. When he reached the middle of the road and noticed vehicles in both lanes approaching, he had attempted to retrace his steps and head back for the safety island. This was the 1st scenario advanced by the defence and the more realistic and probable of the two situations addressed in submissions. In coming to this conclusion, I have borne in mind the evidence of the grandson that he had set off on his own ahead of the deceased and that before he reached the opposite pavement, vehicles were approaching the pedestrian crossing. In view of the young age of the grandson, and seeing that he was out in the road on his own, the deceased must have intended to catch up with him. In crossing as he did, he had paid insufficient regard for his own safety.

21. With regard to the 1st defendant, as he approached the pedestrian crossing, he must have noticed, had he kept a proper lookout, the presence of the deceased in the middle of the carriageway somewhere near the broken white lines dividing the two traffic lanes, walking towards the Yue Hwa Department Store. Even though the deceased was no longer in his lane, in view of the presence of other vehicles in the inner lane, as a prudent driver, the 1st defendant should have anticipated that the deceased might well change his mind about completing his crossing and return to the safety island and in those circumstances a collision could well occur. That being the case, there was present a very real possibility of danger emerging that ought to have been reasonably apparent to him. It was not just a mere possibility which would never have occurred to the mind of a reasonable man: see Kong Chung Ching & anr v Lam King Ho & anr [1992] 1 HKC 104. In those circumstances, albeit the 1st defendant had the right of way, he should have proceeded with caution. At the very minimum, he should have slowed down, tooted his horn and be prepared to come to a complete halt where necessary. Had he reduced his speed to an extent that was safe in the circumstances, even with emergency braking, he ought not to have collided with the deceased. Although he had not been speeding, he was driving at a speed that was without doubt excessive in the circumstances.

22. Having considered the evidence and the submissions advanced, I find that he had been negligent, driving as he did. He had, however, also demonstrated on a balance of probabilities that the deceased was also materially to blame for his own tragedy. In the circumstances, I find that both parties were equally to blame for the accident. A number of cases had been referred to by counsel and I have perused them. As often stated, they were instructive, but at the end of the day, not especially helpful as each case must necessarily turn on its own facts.

23. To render the 2nd defendant liable in damages for the negligence of the 1st defendant, the plaintiff had the burden of establishing on the balance of probabilities that the 1st defendant was at the material time the servant or agent of the 2nd defendant. This would ultimately involve an issue of fact. On the whole of the admissible evidence, there was no positive evidence of the purpose of the 1st defendant's journey. The defence was completely silent on the point as neither defendant had led any evidence of the true facts. They had simply been content to let the plaintiff prove her case. It was however admitted that the registered owner of the vehicle was the 2nd defendant.

24. Ownership of a motor vehicle at the time of an accident affords prima facie evidence that the driver was the agent or servant of the owner, but that presumption may readily be displaced by any credible evidence from whatever source pointing the other way: Rambarran v Gurrucharran [1970] 1 All E R 749 (PC). In the circumstances of the case, there being a complete absence of any evidence bearing on the issue, such an inference can and should be drawn. I, therefore, hold that the 1st defendant was the servant or agent of the 2nd defendant when he collided with the deceased. The plaintiff's onus of proving vicarious liability has been discharged and the 2nd defendant is accordingly liable in damages for the loss sustained.

25. In passing, I note that counsel for the defence has stated that, whatever my findings on the question of service or agency may be, once the 1st defendant is held liable for the accident, the insurers for the 2nd defendant would meet the damages assessed to be payable.

Quantum

26. At the time of his death on 6 June 1993 the deceased, then aged 72, having been born in 1921, was unemployed. Prior to the accident on 25 May 1993, he was engaged by a company named A Card Company Ltd. as a deliveryman at a monthly wage of $3,000 plus $2,500 travelling allowance each month. His monthly salary therefore amounted to $5,500. He first took up that employment on 1 February 1993, resigning apparently of his own accord on 2 May 1993, some 3 weeks before the accident. Accordingly to PW3, a director of his employer, the deceased had found the work requiring him to frequently take goods to China too arduous. This was understandable, given his age and the nature of the work entailed. It would seem that had he so wished he could have remained in the job for sometime as his performance had been satisfactory. He had also enjoyed reasonably good health for a man of his age.

27. Apart from his employment at A Card Company Ltd., there was no evidence of what he had done for a living previously or whether he had worked full-time. This issue was never addressed in evidence. His bank passbook of 5 pages covering the period between 17 April 1990 and 9 December 1993 showed regular, insignificant autopay credit entries first of $343, and latterly increasing to $425. Madam Wong explained that these were food subsidies or allowance from the Government. It is plain from the evidence of the deceased's monthly financial commitments for himself and the passbook that he did not have a habit of saving. It is equally obvious that his salaries from A Card Company Ltd. had not been paid into his bank account. Had he been working at other jobs, full-time or otherwise, his remunerations might well have been paid in cash. In light of his working class background, it was more than probable that he had had to work regularly for a living before he commenced working for A Card Company Ltd.

28. The evidence of Madam Wong was that he had also been working nightly as a casual worker at the night market in Temple Street. Aside from Madam Wong's bald assertion made under cross-examination, there was simply no evidence concerning this part-time manual job. She had also made no reference to it in her witness statement. When he started in that employment, his working hours and remuneration were matters of which no evidence had been led. On the night in question, although the deceased was heading for Temple Street, it was incontrovertible that the purpose of the trip was to shop with the grandson. I find this aspect of Madam Wong's evidence unreliable and unsatisfactory. I am unable to conclude that he had been working casually at the time of the accident. In view of the reason offered for his resignation and his age, it was more than probable that he had left the workforce more or less permanently. There was also no evidence before the court whether he had sought alternative employment in the 3 weeks leading up to the accident or of any intention on his part to return to work at some future time. For present purposes, I find that he had effectively ceased working and was in retirement when he met with the accident.

His income and expenditure

29. On a total monthly salary of $5,500, the deceased had ongoing substantial payments to meet. When his expenses, augmented to a significant extent by Madam Wong, are analysed, it is obvious that his outgoings regularly exceeded his income. But for the subsidy, he would have had to significantly trim his expenditure. Plainly, his income had been inadequate for his own needs. In those circumstances, it is hardly surprising that he had no savings to speak of. He was in reality subsisting on a fairly tight budget and all claims that he was contributing to his family members in China must be scrutinised in that light.

30. The deceased occupied rented accommodation of his own in Yaumatei for which he had to pay about $2,500 each month. Madam Wong said she had to subsidize the rental to the tune of $1,000 each month with the deceased meeting the balance of $1,500 himself. She had also to pay for his utilities, management charges and rates. On her testimony, the deceased, who took all his meals away from home, paid for his own food, clothing and transport. When he informed her that he needed to regularly spend $4,000 to $5,000 each month on himself, she had inquired if he had enough money, commenting at the same time that she thought he was over spending.

31. It seems reasonably clear on the evidence that the deceased did not have any free balance from earnings with which to save. The revised statement of damages quantified the claim for loss of accumulation of wealth at $50,000. In this respect, for such a claim to be sustainable, the court must be satisfied on a balance of probabilities from the material placed before it that the deceased would have accumulated wealth by the time of his natural death. The absence of any established savings pattern, as here, does not conclusively determine the matter, as it remains pertinent to ascertain from all the evidence whether there existed a probability of accumulation: see Ho Pang-lin v Ho Shui On & Anr [1994] 3 HKC 294 and Kwan Lai Kuen v National Insurance Co Ltd, PI No. 960 of 1995. The same exercise must be undertaken even where some savings can be identified at the date of the tortious death for the existence of such savings cannot tantamount to saying that accumulation would necessarily have occurred at the date of natural death: Chan Sim Lan v Sheen State International Ltd [1994] 1 HKC 460.

32. Factors which may indicate the probability of accumulation are the deceased's lifestyle, his thrift, age at death as older people have more settled lifestyles, his family circumstances and the manner he was coping with them financially, his employment situation and prospects. In the circumstances of this case, the evidence revealed no identifiable savings pattern. From the little that was known of his lifestyle, the deceased had in truth consumed all he was able to earn every month and had to rely on Madam Wong's generous contributions to make ends meet. He was fairly advanced in age and had, as I found, left open employment for good. Even if I were wrong to conclude that he had finally retired, in view of his age (he would have been 3 months shy of his 77th birthday at the date of the trial), his lack of any special skill and the limited type of work that he was able to undertake, namely, manual work, and his reason for resignation from A Card Company Ltd, his prospects of securing re-employment had he survived in a highly competitive market in times of economic downturn and rising unemployment would have been at the very least bleak. He would necessarily be competing against younger and possibly better qualified candidates in the labour market. Time would have been against him and obtaining alternative employment would have been uncertain at best. Whether he would have been able to find steady employment paying sufficiently to satisfy his own requirements remained speculative and unpredictable.

33. Furthermore, unlike a young person with years ahead of him to earn and improve upon his situation, the evidence did not demonstrate a probability that the deceased would at some future time commence to save or that any such savings would have been retained at the time of his natural demise for the benefit of the estate. Had he lived, it was more than probable that his partial dependence upon Madam Wong's good will would have continued. That being so, the claim for accumulation of wealth, both pre-trial and post-trial under the Law Amendment and Reform (Consolidated) Ordinance, Cap. 23 ("LARCO"), has not been made out, and must accordingly fail.

Loss of dependency

34. The persons for whose benefit the claim under the Fatal Accidents Ordinance, Cap. 22 ("FAO") has been brought are Liu Pei Xiao, the lawful widow of the deceased, aged 66 at the date of the accident, now 71 and of poor health, having been born on 21 October 1927, and three grown up daughters, Huang Yian Xin, aged 44 at the date of the accident and currently 49, Huang Chen Yan, aged 42 at the date of the accident and presently 46, and Huang Xiao Yun, aged 31 at the time of the accident and 36 now. They were and still are residing in China.

35. The case as presented was that they were all dependent on the monthly contributions of the deceased before his death. It was said that the deceased regularly provided provisions as well as $1,500 pm to his widow and $500 to each of the three named daughters from his income of $5,500. The total dependency, it was said, amounted to 54.55% of the deceased's income. Total pre-trial loss of $219,304.09 as at 25 January 1998 calculated on a median salary of $7,179 arrived at on the basis of a 10% annual increase in salary has been claimed. Post-trial loss has been assessed at $46,993.73 using a multiplier of a year. This head of damages has been strenuously resisted, it being contended that both the fact of dependency and the figures put forward in support were wholly unrealistic and unsustainable on the evidence. Such a finding is inevitable on a close scrutiny of the whole of the evidence in my considered view.

36. The dependants were described as being unemployed. The widow did not work on account of her failing health and the daughters had no income, they being engaged in raising poultry and subsistence farming. From the declarations they have put in, it is clear that their combined household expenses were no more than about RMB 1,000 each month, a requirement that had been amply and readily met by Madam Wong's contributions to them. It was Madam Wong's evidence that she would remit $5,000 to $7,000 every 6 months to her mother and sisters or an average of $1,000 a month. Additionally, she said her other sister, married and living in Hong Kong would also send about $2,000 at around Chinese New Year to their mother.

37. The deceased's own spending pattern and regular needs coupled with his reliance on Madam Wong to meet a sizeable portion of his expenditure render the claim for loss of dependency quite unrealistic. His earnings, barely enough to support himself, simply could not have stretched to maintaining his widow and daughters as claimed, especially when the evidence of Madam Wong about him regularly having to spend between $4,000 to $5,000 each month comes to be considered.

38. It is not inconceivable that the deceased could well have given his widow small sums of money and supplied some provisions to her and the daughters from time to time, but these unquantified contributions would have been modest and irregular at best, given his limited income, needs and dependence upon Madam Wong. Madam Wong testified that the deceased had no habit of saving and that whenever he had some money, he would take it to the widow in China. Such gifts, in my judgment, being necessarily sporadic and infrequent, if made, would have been unreliable and could not have been the basis of a dependency claim. They remain unquantifiable and any attempt to derive a notional dependency from the state of the evidence would be speculative in light of the deceased's limited earnings. The evidence seemed to point to the widow and daughters being funded by the two daughters in Hong Kong, rather than by the deceased when he was alive. Based on the deceased's inadequate earnings and the fact that he had given up work for good, the allegation of dependency lacked foundation.

39. In those circumstances, I find that the claim for past and prospective loss of dependency incompetent and it must be dismissed.

Pain, suffering and loss of amenities

40. In the revised statement of damages, this head of claim has increased from $20,000 to $40,000.

41. When the deceased was admitted to Queen Elizabeth Hospital on 25 March 1993, he was observed to have been semi-conscious. Following diagnosis, neuro and orthopaedic surgery was performed. According to the memorandum dated 30 July 1993 from Dr. Liang Chang-chung of the Department of Neurosurgery, QEH, post-operatively, the deceased had never regained consciousness and eventually died on 6 June 1993. Although the medical evidence was silent as to the length of time the deceased had remained semi-conscious or when the surgery was performed, in the usual order of things, it was more than likely that he was operated on very soon after his admission on the night of the accident. In view of his mental state prior to surgery, any appreciation that he might have had of his serious injuries and possible death and any suffering caused or likely to have been caused by such awareness would have been affected or lessened to a degree, and in any event, relatively brief lasting no more than a matter of hours at most. As respects the physical pain and suffering that he might have experienced, he would have been rushed to the nearby hospital where every effort would undoubtedly have been made to make him comfortable as quickly as possible before surgery. That, of course, is not to say that he had experienced no pain and suffering.

42. In those circumstances, it was the defence contention that an award for non-pecuniary loss in relation to pain and suffering was inappropriate, alternatively that it should not exceed $5,000.

43. A distinction between pain and suffering on the one hand and loss of amenities on the other has to be drawn. In Lim Poh Choo v Camden and Islington Area Health Authority [1979] 2 All ER 910, Scarman LJ made this observation:

"There is a clear distinction between damages for pain and suffering and damages for loss of amenities. The former depends upon the plaintiff's personal awareness of pain; her capacity for suffering. But the latter are awarded for the fact of deprivation, a substantial loss, whether the plaintiff is aware of it or not."

In other words, recovery under the head of pain and suffering would be dependent upon the deceased's realisation and ability to experience physical pain and mental anguish whereas the claim for loss of amenities would not be so dependent. Such deprivation would have occurred regardless of whether he was conscious, semiconscious or unable to experience anything at all. This was precisely the view expressed by Lord Morris in H West & Sons Ltd v Shephard [1964] AC 326 at 349.

44. In Yeung Wan Chun (1987) HKLJ 256, Liu J (as he then was) on 13 March 1987 allowed a claim for pain and suffering in the sum of $5,000 in a case where the deceased had survived for 3 months after the accident. A similar claim was heard and allowed by Hunter J on 15 April 1986 in Chim Kwan Tai (1986) HKLJ 452. There the deceased had survived for 12 days.

45. A more recent decision awarded $150,000 for pain, suffering and loss of amenities where the deceased aged 54 had survived for nearly six weeks after the accident during which time he had been fully cognitive and had undergone two operations overseas: Lam Po Yuk & Anr v Mercury Shipping Co Ltd, PI No. 750 of 1996, 3 Nov 1997, Master Cannon.

46. In the present case, as the deceased was semi-conscious on admission and had only survived for about 12 days, without ever regaining consciousness, an award of $30,000 under this head of claim would be appropriate. This quantum should adequately reflect the fact of deprivation of the ordinary experiences and amenities of life and a degree of pain and suffering that I find he would have experienced before his operation.

Bereavement

47. Damages for bereavement under the FAO have been agreed at $70,000.

Special damages under LARCO

48. Damages in respect of expenses incurred for the funeral, cremation and hospitalization of the deceased have been agreed in the sum of $35,791 as claimed.

49. As for the damaged gold Rolex watch and jade pieces that the deceased had on his person or was wearing at the time of the accident, the amount sought of $20,000 has been challenged in its entirety for lack of supporting evidence. That these possessions of the deceased were damaged in the collision was, however, uncontested.

50. Madam Wong testified that the Rolex watch had been flattened and she saw some shattered jade pieces lying scattered on the ground at the scene of the accident. None of these damaged items had been retrieved. She was unable to say how many jade pieces were involved as no attempt to count them had been made, which was perfectly understandable given her immediate priorities and concerns at the time.

51. Madam Wong described the watch as having been purchased by the deceased some twenty years previously after his arrival in Hong Kong. No valuation for this item or for a watch of similar type and vintage had been obtained. Indeed, the same situation obtained in relation to the jade pieces that the deceased had been wearing on a string tied to his belt. The only evidence led about them had emanated from Madam Wong. As regards the Rolex watch, it was her evidence that on some unspecified date prior to the accident, both she and the deceased had visited a watch company selling Rolex watches to enquire about the retail price of the watch. Whatever they might have been told had not been relayed to the court. So far as concerned the jade pieces, Madam Wong said the deceased had a habit of collecting them over the years. He would purchase jade for which he had a particular fondness and add to his collection over the years whenever he had some money to spare. She added that he had informed her that he had paid between $2,000 to $3,000 a piece for them.

52. Although no valuation has been adduced, the gold Rolex watch and the jade pieces clearly had some value beyond their sentimental worth to the deceased. Despite the lacuna in the evidence and the inherent difficulty of quantification, I am of the view that the amount claimed was not so wholly unreasonable that it should be disallowed or that only nominal damages should be considered. The damaged items were not simply just an unspecified number of jade pieces, but also a gold Rolex watch. That being so, I am prepared to allow the amount sought in full.

Conclusion

53. Damages on full liability would be as follows:

Pain, suffering and loss of amenities $30,000

54. There will be a 50% reduction of the damages to reflect the deceased's contributory negligence. The award that will be made is a reduced sum of $77,895.50.

55. There will be judgment against the defendants for the sum of $77,895.50 with interests as follows. Damages for bereavement reduced to the sum of $35,000 would, as agreed, attract interest at the rate of 2% from the date of the accident to the date of the trial. There will additionally be interest on the special damages reduced to $27,895.50 at half judgment rate from the date of the accident to trial as agreed. Even though no specific claim for interest on damages for pain, suffering and loss has been set out in the revised statement of damages, there remained a general claim for appropriate interests on the amounts to be awarded in paragraph 16 of the Re-Amended Statement of Claim. Accordingly, damages for pain, suffering and loss of amenities reduced to $15,000 for contributory negligence will attract interest at 2% p.a. from the date of the writ until the date hereof. There will of course be interest on the judgment sum together with the interests thereon set out above at judgment rate from the date hereof until payment.

56. Costs nisi of the action is awarded to the plaintiff save that the defendants shall have the costs of the adjournment and thrown away on 19 March 1998. If proper and timely steps had been taken to secure the attendance of PW3, a whole day's costs would not have been wasted.