Chan Kum Yee and Another v. Kowloon Motor Bus Co (1933) Ltd

HCA009665/1982

BETWEEN -

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Coram: The Honourable Mr. Justice Jones in Court.

Date: 21 October 1983

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JUDGMENT

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1. The plaintiffs (the widow and son of the deceased) are the administrators of the estate of the deceased who died intestate on the 16th December 1980 as a result of an accident which occurred during the course of his employment with the defendant. Letters of administration were granted to the plaintiffs on the 13th July 1982.

2. The plaintiffs claim damages on the grounds of negligence on behalf of the estate of the deceased under the Law Amendment and Reform (Consolidation) Ordinance (Cap. 23) and on behalf of the dependants under the Fatal Accidents Ordinance (Cap. 22).

3. The deceased was an unskilled electrician at the defendant's Lai Chi Mok depot and had been employed by the defendant for about 19 years before his death. His duties were to top up the battery water and to start the engines of buses before they went into service each day at about 5.00 a.m. Mr. Au Hang a colleague of the deceased who performed the same duties gave evidence which I accept that instructions had been given by the defendant that the workers were required to sit in the driver's seat in order to check the handbrake clutch and to start the engine. About six or seven workers were employed by the defendant in December 1990 to do this work on about 100 buses. At the present time the work load is less.

4. It is clear that on the date of the accident at about 4.00 a.m. the deceased started the engine of bus registration No. HK4041 from outside the driver's cabin. The bus moved forward and trapped the deceased between this bus and another bus parked alongside. The deceased died later the same day from the injuries that he sustained.

5. Mr. Peterson a motor vehicle examiner testified that the first gear of the bus was engaged when the accident happened, but that he found nothing wrong with the system. However when lie tested the bus with the engine and handbrake on the bus moved forward slowly when it was engaged in both first and second gear.

6. The following particulars of negligence are set out in the amended Statement of Claim: -

I accept the evidence of Mr. Au and the witnesses for the defendant that the workers were required to start the engine of a bus from inside the driver's cabin. The evidence of Mr. Poon Keung the manager of the defendant's servicing department, which I accept, shows that the workers were instructed to ensure that the handbrake was pulled up to its fullest extent and that the gear was in neutral before the engine was started. He said that if an employee disobeyed these instructions a warning would be given on the first occasion but if there was a repetition there would be instant dismissal For a person to start the engine from outside the driver's cabin was to court danger. Mr. Au know the danger involved and I am satisfied that a man of the deceased's experience must also have been fully aware. There was evidence front Mr. Kwok who was in charge of the night shift that he had seem the deceased start a bus from outside the cabin on one occasion, but that it was along time before the accident.

7. It was urged on behalf of the plaintiffs that the deceased was under pressure to do his work within a limited time which explained the reason why he started the engine outside the cabin. However, there was no evidence to support this contention.

8. The deceased was employed by the defendant to do a relatively simple job which he had performed for many years. Common sense alone dictates that it would be dangerous to start the engine from outside the cabin, and I find that the deceased would have been fully aware of the danger involved. It necessarily follows that by starting the engine from outside the deceased did not test the gear lever which he was required to do. If the deceased had carried out his duties properly this tragic accident would not have occurred. The plaintiffs have not proved negligence nor established that the defendant failed to provide a safe system of work. The deceased was the sole author of his own misfortune by his failure to perform his duties in accordance with the defendant's instructions. The plaintiffs action must therefore he dismissed.

9. I will assess the damages that I would have awarded if I had found in favour of the plaintiffs. All the damages would be received by the deceased's widow. The award under the Law Amendment and Reform (Consolidation) Ordinance will extinguish the claim under the Fatal Accidents Ordinance. The deceased was aged 59 at the time of his death and was in good health. His earnings were about $2,000.00 per month, but to-day would probably be in the region of $3,000.00. Taking into account the usual vicissitudes of life I consider that the appropriate multiplier should be 5. Taking into account the deceased's living expenses, I shall adopt a figure of $2,500.00 for the dependency. The assessment is therefore as follows: -

Interest on the general damages will beat the rate of 2% from the date the service of the writ until judgment, and at 7% on the special damages.

10. There will be judgment for the defendant with costs. Costs of the plaintiffs to be taxed in accordance with the Legal Aid (Scale of Fees) Regulations.

Representation:

Mr. Benjamin Yu (Alfred Lau & Co.) for plaintiffs.

Mr. Adrian Bell (Denton Hall & Burgin) for defendant.