Au Yeung Sin v. Lo Chiu Wah and Others

HCA004724/1982

BETWEEN

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Coram: Hon. Power, J.

Dates of Hearing: 12 & 13 December 1983

Date of Delivery of Judgment: 17 January 1984

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JUDGMENT

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1. In this matter Madam Au Yeung Sin (the Plaintiff) sues as the administratrix of the estate of Kong Man Kwan (the deceased). She is suing the 1st Defendant, Lo Chiu Wah, and the 2nd Defendant, Kwok Kam Chuen, for damages suffered by the estate of the deceased and by his dependants under LARCO and FAO.

2. At about 11 p.m. on the 22nd September 1979 the deceased was struck by a goods vehicle, registered No. BP3439, which was owned by the 2nd Defendant, was being driven by the 1st Defendant. He was, at the time, crossing Lyumun Road in a southerly direction near to Block No. 6 of Lyumun Estate. The particulars of negligence alleged against the 1st Defendant can be shortly stated by saying that it is alleged that he failed to keep a proper lookout, drove at excessive speed and was driving without headlights.

3. The deceased died about four hours after the accident as a result of injuries sustained therein. The 1st and 2nd Defendants denied negligence and said that the accident was caused or contributed to by the failure of the deceased to keep a proper lookout and by his dashing without warning into the path of the vehicle. There was no issue made of the allegation that the 1st Defendant was driving the vehicle and that he was doing so as the servant or agent of the 2nd Defendant. Nor was there any issue made of the allegation that the deceased died as a result of injuries sustained in the accident.

4. The first witness called by the Plaintiff was Mr. Poon Tak who had been employing the deceased at the time of his death and who said that he could earn between $2,500 to $2,800 per month as a polishing worker.

5. The next witness was Mr. Kong Man Cheong who said that on the evening in question at about 11 p.m. he was going with his elder brother, the deceased, and his younger brother to a cinema. He said that the three brothers were walking in a line abreast with the younger brother to his left and the deceased to his younger brother's left. He said that as they came to a bus stop on Lyumun Road a bus was pulling away at the time and that he then noticed the blue goods vehicle coming from the direction of a zebra crossing some distance away to the west. He said that people had got down from the bus when it had been at the stop that it was dry at the time and that several of the lights in Lyumun Road were not on. He said that he could not remember saying any lights on the goods vehicle and that when he first saw it, it was in the section of the road beyond the zebra crossing. The roadway at this point has two lanes going eastbound and one lane going westbound. He said that when the three brothers got to the middle of the road, by this he presumably meant to the middle of the eastbound carriage way, he heard a bang and saw that his elder brother had been knocked down by the goods vehicle. He said that he and his younger brother chased the good vehicle which dragged his elder brother along for three to four vehicle lengths.

6. Under cross-examination the witness said that when he got to the middle of the carriage way he tried to look but that when he tried to do so, the goods vehicle was already in front of him. His evidence was, in short, that before he commenced to cross the roadway he saw the goods vehicle at a considerable distance away, that he then proceeded with his brothers across the roadway and that, when he got to the middle of the eastbound carriage way and was about to look again, the goods vehicle passed in front of him and struck his elder brother.

7. PC 12606 was called and he said that he went to the scene immediately after the accident and made a sketch. He said that the skid marks which he measured were 38.4 m. in length. He also said that the street lights on Lyumun Road were not lit.

8. The next witness was another brother of the deceased, Mr. Kong Man Wai, who said that, on the evening in question, he went with the deceased and his brother Man Cheong and that, as he was approaching the bus stop with his brothers, he saw people descending from a stationary double decker bus. He said that he was flanked by his brothers, the deceased on his left and Man Cheong on his right and, when they are about to cross the road far away towards Lyumun, he could see the headlights of a vehicle beyond the zebra crossing. He said that he and his brothers then started to cross the road and that, when he had walked about three paces, both of his brothers were a little bit in front of him. He said that he looked to the right and found that the vehicle was approaching quite fast and that he therefore decided to stop. He said that he believed his second brother also stopped but that he did not know what the deceased did and that the next thing the goods vehicle was in front of him and that he then turned his head to the left and saw that his elder brother had been hit by the goods vehicle. He said that the road was dry and that the street lights near that area were not on.

9. It seemed clear that both of these witnesses were aware that the goods vehicle was approaching and allowed it to pass in front of them but that their elder brother, either because he was unaware of its approach or because he failed to estimate how close it was, stepped in front of it. Indeed it may have been that his two brothers were in his line of sight and prevented him from having a clear view of the approaching vehicle.

10. The Plaintiff gave eivdence that the deceased had contributed $1,600 per month towards the family expenses. She said that her husband gave her $500 towards the expenses and that two younger brothers who were working contributed a little towards the expenses she said that a fourth brother was still at school and did not contribute anything. She said that the total contribution was something over $2,000. She explained why the two sons who were working had not contributed very much by saying that they did not have regular pay days.

11. The only witness called by the Defence was the driver Mr. Lo Chiu Wah, the 1st Defendant. He said that he was driving home on the evening in question at about 11.15 along Lyumun Road. He said he stopped at a zebra crossing, which according to the sketch plan is about 56 m. from the bus stop. He said that some people used the crossing and that he started off again in the second lane of the two lanes on the eastbound carriage way. Initially he said that it was drizzling, however, later in his evidence, he said that it was not raining at the time. He said that when he was outside somewhere near the bus stop, he heard a bang and that he "then became aware that I had had a collision with some object. I can't remember anything in my lane before the bang". He said that before he started off from the zebra crossing, he noticed that there were some human figures at the bus stop but that he had been unable to see them very clearly. Later in his evidence, when he was being asked about whore he had first applied his brakes, he said that he had applied them "as soon as I saw a dark figure flickering across". He then said that he had seen this dark figure before the bang. He said that at the time his headlights were on dipped beam. It was agreed that, on the 28th April 1980, this witness had pleaded guilty to a charge of causing a motor vehicle, namely a goods vehicle bearing registration mark BP3439, to be in motion upon a road during the hours of darkness without providing such vehicle with lamps as required by the Road Traffic (Construction and Use) Regulations. It was further agreed that he had admitted the facts upon which this charge was founded which were as follows. "Near side inner headlamps not working, near side outer headlamp not working on dipped beam". If his evidence that his headlights were on dipped beam was correct, then it would seem that neither his inner and nor his outer headlights would have been working at the time of the collision. The witness seemed to be suggesting that his headlights were in fact working correctly on the night of the collision and that he had only pleaded guilty in order to save inconvenience and that any damage found to have been done to the headlights must have been caused by the collision. He was not a convincing witness in this, or indeed in any of the evidence he gave, and I have no hesitation in rejecting his suggestion that he pleaded guilty to save inconvenience. I am satisfied that he admitted the facts upon which the charge was found and reject his evidence that those facts did not correctly state the position. Under cross-examination he admitted that he had been working for 14 hours on the date in question but denied that he was feeling tired at the time of the incident. He said that he had been only driving the vehicle for three months. When questioned about the maintenance of the vehicle his replies were wholly unsatisfactory. I do not accept that he ever checked the vehicle himself or that he ever, during those three months, had it checked by any competent person. He said that at the time of the incident he was travelling at 20 to 30 miles per hour and sought to explain the long skid mark of 125 feet by saying that possibly he panicked and "did not push hard or the brake pedal". He agreed that this roadway was poorly lit but maintained that he was able to see the roadway in front of him clearly in the light of his headlights.

12. As I have already indicated the evidence of the 1st Defendant was far from convincing. Under cross-examination he continuously sought to explain his inability to answer questions by saying that he could not clearly remember the incidents of the evening. On his own admission he saw figures at the bus stop when he set off from the zebra crossing. He must, therefore, have been aware of the possibility that persons might attempt to cross the road from the bus stop. On his own admission he did not see any persons start to cross the road and indeed did not see anyone at any time on the road, except for the "dark figure" which he says he saw immediately before applying his brakes. I am satisfied that he failed to see the 3 brothers because he was not keeping a proper lookout.

13. This failure may have been contributed to by tiredness, by the poor lighting in the area and by his own defective headlights. If his view was made unsatisfactory by poor lighting then he was further negligent in approaching the area at a speed which was excessive in the circumstances.

Contributory Negligence

14. I must now determine whether there was the contributory negligence on the part of the deceased. Both of the other brothers saw the oncoming vehicle and both stopped in time to avoid it. It may be that they interfered with the view of the deceased, however it seems to me clear that he failed to keep a proper lookout. If he had done so he would have seen the oncoming vehicle and would either have not commenced to cross the roadway or, more likely, would have paused, as did his brothers, and would not have stepped, as he did, into the path of the oncoming vehicle. I must now determine what percentage of blame falls on the deceased. When I bear in mind that the 1st Defendant failed to keep a proper lookout when in charge of a goods vehicle travelling without proper lighting, I am driven to the conclusion that the greater blame for the incident must fall upon him. Bearing in mind the observations of Lord Reed in Baker v. Willougby (1970) A.C. 467, at 490, I am satisfied that it is proper to apportion the negligence at 75% to the 1st Defendant and 25% to the deceased. In this regard I have in mind particularly that if 1st Defendant had been keeping a proper lookout he would have seen that there was a group of persons crossing the road and would put himself in a position to assess that one or more of the group might be blocking the view of another. He would not then have been debarred, as he was by his own negligence, from doing what any prudent driver would have done in such circumstances i.e. to moderate his speed or sound his horn or both.

Assessment of Damages under LARCO

15. I turn now to the assessment of damages. This trial has taken place some 50 months after the accident. I am satisfied that the deceased's average earnings at the time of his death must be placed at a figure of $2,650. Allowing for inflation of 20%, I am satisfied that as at the date of the trial he would have been earning $3,180. His average earnings then over the 50 months between the accident and the trial would have been $2,915. It appears from the evidence, which is not very satisfactory, that the deceased had no savings and that apart from the $1,600 which he gave to his mother, he spent the remainder of his income, which would be a figure of $1,050 given average earnings of $2,650.

16. Miss Stewart who appeared for the Plaintiff asked that the assessment be done in accordance with the approach adopted in Gammell v. Wilson (1981) 1 All E.R. 578 at 593 where Lord Scarman said:-

"The loss to the estate is what the deceased would have been likely to have available to save, spend or distribute after meeting the cost of his living at a standard which his job and career prospects at time of death would suggest he was reasonably likely to achieve. "

Miss Stewart suggested that if one were to assess "the available figure" at the time of death it could be arrived at by approaching the matter upon the basis that the Defendants cost of living was made up of the $1,050 he kept for himself plus the proportion of the $1,600 that was spent on his upkeep. She suggested that, as the household of 6 persons was living on an income of about $2,400 a month, i.e. $1,600 from the deceased, about $500 from his father and minor contribution from two other brothers, the cost per head would be about $400. She suggested that this figure should be added to the figure of $1,050 to arrive at his cost of living. This gives a figure of $1,450 which produces an "available figure" of $1,200. This calculation is, however, made upon the figure as at the date of death and does not take into account any inflationary rise. If his average earnings are taken at the figure of $2,915 and the approach set out above is applied to that figure one arrives at an available figure of $1,320 (1,200/2,650 x 2,915) per month for 50 months period up to the trial. I am satisfied that $1,320 is "the available figure" from date of accident to date of trial. This figure then will have to be multiplied by 50 months and produces a figure of $66,000.

17. I turn now to the post-trial earnings. The Defendant would at the time of the trial have, I am satisfied, been earning a figure of $3,180. Adopting the same proportion as was applied to arrive at the available figure at the time of depth, we arrive at an available figure of $1,440 at the time of trial. Given the age of the deceased, I am satisfied that the proper multiplier is 15 which gives a total of 180 months. From this total there must be deducted the period of 50 months dealt with above. The figure for post-trial damages then will be $1,440 multiplied by 130 equals $187,200. To this must be added the pretrial damages figure of $66,000, the figure of $15,000 for loss of expectation of life and the figure of $5,400 which was as much as could be proved as regards funeral expenses.

18. Adjusted for contributory negligence the total figure is $205,200. It is not necessary to consider the FAO claim as the amount awarded under LARCO clearly must exceed any dependency claim.

19. There will be judgment for the Plaintiff in the sum of $205,200. The Defendants are ordered to pay Plaintiff's costs of the action to be taxed.

20. There was a Third Party action brought by the Defendants against American United General Insurance Limited. This action was not defended.

21. I was also asked to give judgment against the Third Party. The order made on the Third Party notice on the 21st June 1983 was that the question of the liability of the Third Party to indemnify the 1st and 2nd Defendants be tried at the trial of this action but subsequent thereto. Although I was asked to give judgment in this matter, no evidence was adduced before me to establish the liability of the Third Party. Indeed, given the following facts, it seemed to me doubtful whether the Third Party was ever made aware that these proceedings were being heard.

22. The trial in this matter was originally set down for hearing as a running list matter on the 8th February 1983. On the 22nd March 1983, an order was made removing the matter from the running list with leave to restore and leave was granted to the 1st and 2nd Defendants to issue a Third Party notice against the Third Party, American United General Insurance Limited. This Third Party notice was issued on the 26th March asking for a declaration that the 1st and 2nd Defendants were insured by, and were entitled to be indemnified by, the Third Party against any judgment in the action and for an order that the Third Party pay the costs of any judgment given together with the costs of the Third Party proceedings and the costs incurred by the 1st and 2nd Defendants in defending the Plaintiff's action. This Third Party notice was duly served and Fairbairn and Kwok became the solicitors on the record for the Third Party. However, on the 2nd May, Fairbairn and Kwok filed an interpartes summons asking for an order declaring that they had ceased to be solicitors acting for the Third Party. To their affidavit in support, they exhibited a letter dated the 27th April 1983 from their client in which the client stated that they "would advise you that we do not wish to continue defending the proceedings in question". Fairbairn and Kwok were given leave to withdraw on the 20th May 1983. A copy of this order was served by Fairbairn and Kwok, upon the Third Party by sending it by post to their registered office. On the 21st June 1983, a summons for Third Party directions was heard. The Third Party did not attend on that summons. In that summons that it was ordered that the Third Party be at liberty to appear at the trial of the action and that the question of liability of the Third Party to indemnify the 1st and 2nd Defendants be tried subsequent to the trial. A copy of this order was served on the Third Party by leaving the same at its registered office on the 28th June 1983. On the 18th July 1983 a list of documents in the possession of the 1st and 2nd Defendants was served on the Third Party by leaving the same at their registered address and on the 21st October 1983, notices under the Evidence Ordinance were served on the Third Party in the same way. There was an application made to set the matter down for trial on the 3rd November 1983 and the matter was set down for trial in the running list on that date. There is nothing in the file before me to show that Third Party was ever made aware that the matter had been set down for trial on the running list. There is, further, nothing before me to show that the Third Party ever became aware of the date of hearing. A copy of the warned list sent by the Court to the Third Party by registered post was returned.

23. As this matter stands, then, I am not satisfied, that the Third Party was ever aware that the trial was taking place. This, in itself, would preclude me from proceeding to give judgment against the Third Party. Even, however, had the Third Party been aware that the trial was taking place, judgment could not be given as the 1st and 2nd Defendants did not call any evidence to establish its liability. In the circumstances then I adjourn the hearing of the Third Party action with liberty to the Defendants to restore it upon application.

Representation:

Miss Stewart instructed by P.T. Fung & Co. for Plaintiff.

Mr. B. van Buuren instructed by P.T. Yeung & Co. for 1st & 2nd Defendants.