Woo Kee Lam and Another v. Lee But Mui and Another

HCA001767/1981

1981, No. 1767

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

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Coram: Hon. Kempster, J.

Dates of Hearing: 12 and 13 January 1984

Date of Delivery: 13 January 1984

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JUDGMENT

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1. In this action the plaintiff, who is the father of the deceased, claims against two defendants damages resulting from the death of the deceased, his son, Wu Chi Fai, on the 20th May 1979. At that date the deceased was aged 22 and employed in the manufacture of watches at San Po Kong. The plaintiff has produced letters of administration granted to him out of the Probate Registry on the 2nd September 1980. His claims are on behalf of the estate of the deceased, pursuant to the provisions of the Law Amendment and Reform (Consolidation) Ordinance, Cap. 23, and on behalf of the dependants of the deceased under The Fatal Accidents Ordinance, Cap. 22.

2. The 1st defendant was the owner of a vehicle with which the deceased, who was at the material time driving a motor cycle, came into collision and also the employer of the driver of such vehicle. He has been present throughout the trial and represented himself. His employee, the 2nd defendant, has not been present and the 1st defendant has told me in evidence that he has been unable to trace him since about December of 1979 at which time, I am satisfied on the evidence, the 2nd defendant pleaded guilty to careless driving at the date and time which I have to consider. The 1st defendant tells me, and I accept, that at all material time he believed himself to have been insured; that the insurance company has failed to support him in his defence and that, in consequence, he is at a loss as to his position in law. I can say only that if he had a valid insurance policy at the material time and has complied with its terms he will prima facie be entitled to recover over against his insurers any moneys which he may be adjudged liable to pay to the plaintiff in this action.

3. There was called on behalf of the plaintiff, first of all, a Mr. Chung Muk Lam who told me that the 20th May 1979 was fine and that he was driving a private car along Hiram's Highway towards Kowloon at 30 to 40 m.p.h. at about 7 a.m. He knew the deceased who was driving a motorcycle along that road ahead of him in the same direction at about the same speed. Mr. Chung said he was driving less than a hundred feet behind the motorcycle. Coming round the bend adjacent to Ho Chung Football Field he saw goods vehicle coming towards him. The goods vehicle was in the middle of the road straddling the white line while overtaking another vehicle. The deceased was riding his motorcycle in the outside lane of the carriageway for traffic moving in the direction of Kowloon and, in crossing the white line, the goods vehicle struck the motorcycle. According to this witness it continued towards him and ended up on the verge on the vehicle's offside of the road. When Mr. Chung Muk Lam spoke to the driver, namely the 2nd defendant, he said to him "Have you made a mistake by driving your vehicle across this side of the road?" to which the 2nd defendant answered "What do you want to do since there was a collision?" The police were called and the deceased taken by ambulance to Queen Elizabeth Hospital. I heard a police witness.

4. On the medical evidence I am satisfied that the deceased died as a result of the injuries which he sustained in the collision. The 1st defendant has candidly conceded that the goods vehicle in question was his and being driven by his driver.

5. Another witness was Mr. Wong Chong Yip who also knew the deceased. At the material time and place he was driving ahead of the deceased; also on a motorcycle. He passed the lorry going in the other direction but noticed that it was over the continuous white line at that stage though not also over the dotted line in the Kowloon lane. In his opinion it was going faster than 50 m.p.h. After passing the goods vehicle Mr. Wong looked back to see if his friend was following and saw the deceased's motorcycle lying in the road about hundred feet back from him. The goods vehicle was in the Kowloon carriageway and had mounted the kerb. This evidence as to negligent driving on the part of the 2nd defendant has not been contradicted. The 1st defendant was not in a position to contradict it as he was not present at the time and is unaware of the 2nd defendant's whereabouts. I find that Wu Chi Fai died as a result of injuries sustained by reason of the negligent driving of the 2nd defendant for which the 1st defendant is vicariously liable. No question of contributory negligence arises.

6. Several members of the family gave evidence to assist me in computing the appropriate figure to be awarded to the plaintiff by way of damages. The plaintiff himself was the first of such witnesses. He is retired, aged 67, and lives with his wife Madam Tang Chun Tai at Tai Wor Hau. He told me that the deceased, born on the 3rd May 1957, was a factory worker making watch cases in San Po Kong and that effectively his wife was the family treasurer to whom the deceased made contributions from his monthly earnings. He described the members of the family. The eldest, Wu Sun Wai, aged 32, does not live at home and maintains his own family. Those who did live at home at this time apart from the deceased were Wu Kwok Fai, Wu Tak Keung, Wu Yu Hing and Wu Yuk Loi. Now Wu Kwok Fai is aged 30, Wu Tak Keung is aged 24, Wu Yu Hing is aged 20 and Wu Yuk Loi is aged 18.

7. The next family witness was Wu Tak Keung, the brother of the deceased. He gives to his mother for the family use $1,000 per month out of his earnings. He started earning at the beginning of 1980 and in May 1979 he was unemployed. Then another brother Wu Kwok Fai gave evidence. He too contributes now $1,000 a month to the family budget. In May 1979 he was earning more or less the same amount and making the same contribution. This witness had identified the body of his brother to the pathologist in the mortuary on the 25th May 1979. Madam Tang, the mother, described the contributions of the deceased; $1,000 a month to her on behalf of the family out of his wages $1,700 a month. She herself used to contribute $500 to the family pool every month but stopped working 3 years ago and no longer contributes. She said that now Wu Yu Hing has obtained a job he has started to give her $500 a month. She produced the account for the funeral expenses which amounted to $3,700. No suggestion has been made that the deceased paid or would, had he lived, now be liable to tax.

8. A witness was called from the deceased's employers, an accounting clerk. He did not know very much about the deceased because he was not working at the relevant factory at tae material time but he did say that anyone working in that factory at a rate of $1,700 per month in May 1979 would in all probability to day be earning $2,400 a month: in each case plus bonuses.

9. The consequential calculations which I make are as follows: under the Fatal Accident Act Ordinance I find that the amount expended on the deceased's own upkeep was some $357 a month. This falls to be deducted from the $1,000 he contributed himself to the family budget making a net monthly dependency of $643. Since the accident to date 56 months have elapsed making a loss to the dependants of $36,008. Future dependency will be calculated at the same monthly rate but effectively hereafter the dependants will be the father and the mother. The father being 67 and the mother 57 I accept that an appropriate annual multiplier is 8 and therefore the award for loss of future dependency is HK$61,728, making a total of HK$97,736 under that Ordinance.

10. The figure of HK$97,736 has to be subdivided in relation to two dependants who will not benefit from any sum awarded to the estate under the Law Amendment and Reform (Consolidation) Ordinance. They are the two brothers Wu Yu Hing, aged 17 at the time of the accident, and Wu Yuk Loi, aged 15 at that time. Wu Yu Hing started working in the middle of 1983. His period of dependency is therefore limited. It can be calculated by a process of division to $160 per month which totals, over a period of 3 years which is appropriate, $5,760. Wu Yuk Loi would have a dependency, in my view, of 5 years from the date of the accident. Again the appropriate figure for dependency is $160 a month and that gives a total in his regard of HK$9,600. So the total award under the Fatal Accidents Ordinance will relate only to those two young men and totals HK$15,360; the balance of the HK$97,736 being swallowed up by the amount which I am about to assess under the Law Amendment and Reform (Consolidation) Ordinance.

11. First of all comes the figure for funeral expenses $3,700, then a conventional figure for damages for loss of expectation of life, $15,000, and then a calculation in respect of the lost years to date. A median monthly figure is $2,050 from which falls to be deducted the sum which is attributable to the deceased's own expenses. It appears to be $700 a month and that, multiplied by the 57 months which have elapsed since the accident, amounts to $75,600.

12. In considering the future I have to determine what is the appropriate multiplier overall since the accident. Miss Chainrai, who appeared for the plaintiff, submits that having regard to the age of the deceased the optimum multiplier of 16 should be applied. I agree. Accordingly the loss hereafter will be the loss for another 136 months to be multiplied by what the deceased would have been earning, which is at least $2,400 per month, and subtracting each month $700 personal expenses or what he kept for himself to find "the free balance". That gives rise to a figure of $231,200. So the total award under the Law Amendment and Reform Ordinance is $325,500.

13. Now I have to consider interest. The $3,700 funeral expenses will carry interest at the rate of 7% per annum from the 20th May 1979 to date. The loss to date in respect of the lost years amounting to $75,600 will carry interest at the rate of 2% per annum from the date of service of writ, being the 8th April 1981, to date. The plaintiff is entitled to the costs of the action and there will also be an order for taxation of his costs pursuant to the Legal Aid Regulations. The counterclaim will be dismissed. I do not think any separate order for costs is required in that context and of course the judgment will be as against both defendants.

Representation:

Miss Bina Chainrai (Haldane Midgley & Co.) for plaintiff

1st defendant in person

2nd defendant absent (called in vain)