Kwan Yu Biu v. Nip Chung on and Others
Read the full judgment text of HCA 844/1969 on BabelCite. This High Court CFI judgment.
1. On the 22nd of November 1968 at about half-past 9 in the morning, the first defendant was driving motor lorry registered No. AE1022 along King's Road, Hong Kong near its junction with Kam Hong Street. He was towing a heavy air-compressor which was attached to the rear of the lorry by a special locking device. As the lorry was passing shop No.480C on King's Road, the compressor became detached from the lorry and swerved sharply mounting the pavement and coming to rest squarely in the middle of
Cited by 4 cases
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HCA000844/1969 IN THE SUPREME COURT OF HONG KONG ORIGINAL JURISDICTION ACTION NO. 844 OF 1969 -----------------
----------------- Coram: McMullin J. in Court. Date of Judgment: 26th November, 1970. ----------------- JUDGMENT ----------------- 1. On the 22nd of November 1968 at about half-past 9 in the morning, the first defendant was driving motor lorry registered No. AE1022 along King's Road, Hong Kong near its junction with Kam Hong Street. He was towing a heavy air-compressor which was attached to the rear of the lorry by a special locking device. As the lorry was passing shop No.480C on King's Road, the compressor became detached from the lorry and swerved sharply mounting the pavement and coming to rest squarely in the middle of the entrance to that shop with half its length intruding upon the interior of the premises which are known as King's Furniture Company. The proprietor of that company, Mr. Chu Chan, coming out to see what had happened, discovered a middle aged woman lying upon the pavement close to one of the wheels of the compressor with her head resting upon the stone sill of the shop front which abuts upon the pavement. She was evidently injured and unconscious and he formed the opinion that she must have been struck by the compressor. He phoned the police who arrived shortly afterwards. The woman was taken to the hospital together with her husband who is the plaintiff in the present case and who had been called to the scene. She was found to be dead shortly after arrival in the hospital and her husband later identified her to be authorities as Yuen Yin Ping, his wife. 2. Post mortem examination disclosed fracture and dislocation of the third and fourth cervical vertebrae causing section of the spinal chord. These injuries, to which the doctor ascribed her death, were consistent with her having been involved in a traffic accident. It may be said at once that, although there was no eye-witness of the actual impact, it is admitted by the 3rd defendant in this action that the woman died from injuries received when she was knocked down by the compressor under the circumstances already described. 3. The plaintiff brings in this action as the administrator of the estate of Yuen Yin Ping. The action is brought for the benefit of himself and his four children under the Fatal Accident Ordinance and on behalf of the deceased's estate under the Law Reform (Miscellaneous Provisions) Ordinance. He claims that there was negligence in the coupling, management and control of the air-compressor and that prior to the accident the 1st defendant was driving the vehicle and the compressor as servant or agent of the 2nd and 3rd defendants, and that they are consequently vicariously liable for his negligence. 4. The writ of summons in this action was filed on the 10th of July and subsequently appearances were entered on behalf of the three defendants. The plaintiff filed his statement of claim on the 30th of January 1970 and a defence to this claim was entered by the 3rd defendant on the 4th of February. The 1st defendant never attempted to file any defence at all and judgment was given against him in default of pleading on the 17th of March 1970. It would appear that the 2nd defendant did seek to put in a defence by a document headed "Statement of Defence" which was sent to the Supreme Court on the 22nd of January before the filing of the statement of claim by the plaintiff. By letter of the 26th of January he was informed by the Registrar that the time for filing defence had not yet come and that the document submitted by way of defence could not be placed upon the court file unless the relevant fees were paid. It would appear that this was never done and on the 9th of May judgment by default of defence was entered also against the 2nd defendant. 5. The action proceeded to hearing against the 3rd defendant only. Neither the 2nd nor the 3rd defendant appeared to give evidence on either side at the hearing of the action. The plaintiff called evidence to show that the lorry AE1022 was registered in the name of the 3rd defendant and that it bore the name Ho Yu and Company painted upon its side. At this point, it appeared that the plaintiff wished to base his case upon the admitted fact that the deceased had been killed when she was knocked down by the compressor coupled with the fact that the 3rd defendant was still upon the register of the motor vehicles as the registered owner of the lorry. No witnesses were called to describe how the accident had occurred nor any to say who was driving the vehicle at the time, who was on the lorry at the time or what business the lorry and its crew were engaged upon in and around the time of the accident. The clerk to the Coroners' Court Mr. Lam Hin Yam was called to produce the file in the inquest proceedings concerning the deceased woman and he afterwards identified two photographs as having been exhibited in those proceedings. He also identified the signature of the driver of the lorry Nip Chung On on the ...(illegible) made by him in those proceedings. The file was put in without objection by the other side. Up to this point, I had assumed, in view of the fact that the maxim "res ipsa loquitur" had been specifically mentioned in the plaintiff's statement of claim, that the plaintiff, apart from giving the necessary evidence concerning support and maintenance, was going to base his claim wholly upon the following inferences: that the 3rd defendant, being the registered owner of the vehicle, was the employer of the 1st and 2nd defendants and therefore liable for their acts and, secondly, that the fact that the woman was knocked down by the compressor when it became detached from the lorry raised a presumption of negligence such that the onus of proof shifted to the 3rd defendant to show that his employees had not been negligent in their control and management thereof. However, at the conclusion of the plaintiff's evidence my attention was drawn to the agreed bundle of documents which contained, among other matters, a copy of the full transcript of the proceedings before the Coroner, including the evidence given by the 1st and the 2nd defendants. The original depositions of the witnesses who gave evidence before the Coroner appear upon the Coroner's file which was admitted as an exhibit. I asked Mr. Mills-Owens, who appeared for the 3rd defendant, whether he had any objection to these depositions being put in evidence and he stated that he had not. I was informed that, since the commencement of the proceedings, the 1st and 2nd defendants had, in fact, disappeared. Mr. Mills-Owens said that he had actually issued a subpoena to procure the attendance of the 2nd defendant but that he could not be found. The position therefore is that documentary evidence both in the agreed bundle and in the Coroner's file, which might have been made the subject of vigorous protest as to admissibility on the part of the defendants, has by mutual agreement between the parties been drawn to the attention of this court and tendered in evidence and it is a wish of both parties that, in deciding upon the facts of this case, I should have recourse to the evidence given by the principal witnesses before the Coroner. These include the 2nd defendant Tse On, the 1st defendant Nip Chung On the driver of the lorry and the driver's assistant, Ko Por, none of whom can now be traced. It includes also the evidence of the vehicle inspector Mr. Buck who has since the events of this case left the colony. The evidence of the latter would, in any event, have been admissible notwithstanding any objection that might have been taken thereto under the provisions of section 33 of the Evidence Ordinance. The evidence of the other witnesses named might well have been made the subject of a successful objection on the basis that those witnesses were within the meaning of subsection 3 of section 33, interested persons whose evidence could not therefore be admitted under the section. In the circumstances it appears to me proper that I should have regarded to this evidence as the parties are content to adopt it and since indeed a fair portion of the argument of counsel on both sides was based upon points drawn from it. 6. At the conclusion of the plaintiff's case it became apparent why Mr. Mills-Owens was anxious that this evidence should be resorted to by this court. He pointed out that, whereas the plaintiff was approaching the case on the basis that he was entitled to rely upon the implications of the maxim "res ipsa loquitur", the evidence before the Coroner, which the plaintiff himself had introduced, tended to destroy the plaintiff's claim in that it showed three things: firstly, that Tse On, the 2nd defendant, claimed be the owner of the motor vehicle; secondly, that this evidence displayed clearly how the accident had come about so that the maxim could not apply; and thirdly, that this evidence, and in particular that of Mr. Buck, clearly showed that there had been no negligence on the part of any of the defendants. I amy say it once that I think he is correct in his contention that the introduction of this evidence does undermine the basis of the plaintiff's case in so far as it was supposed to rest upon the doctrine of res ipsa loquitur. To explain this conclusion, and leaving aside for the moment the question of vicarious responsibility in the 3rd defendant, it may be helpful to describe what that evidence appeared to disclose. The operation of the lorry and the compressor were under the general supervision of Tse On as were the operators upon it Nip Chung On, the 1st defendant, and his assistant Ko Por. On the morning in question they had attached the compressor to the lorry in the way in which they had previously done on many occasions. The lorry had been adapted by Tse On for this purpose by affixing to its rear a device consisting of two strong metal plates, one above the other, pierced with holes through which a thick bolt (referred to as a locking pin) can be passed. From the front of the compressor projects a metal tow-bar curved into an "eye" at its distal end. The "eye" of the tow-bar is introduced between the upper and the lower plates at the rear of the lorry and is manipulated so that it falls in line with the holes in the plates. Through the three holes thus alligned is passed the locking pin which projects a little way below the lower plate. To prevent the locking pin from jumping out of the holes in the course of towing, a smaller pin, called the transverse pin, is passed at right angles through a hole in the lower end of the locking pin. The transverse pin, which is secured by wire or light chain to the body of the lorry, is a straight piece of metal and has itself no "keeper" to prevent it being dislodged from the hole in the locking pin. Mr. Chan referred me to the two photographs which were produced before the Coroner which appeared upon that file as Ex.C1 and C2. They give a fair idea of the device which has just been described. 7. In the Coroner's court Mr. Richard Buck, the motor vehicle inspector told the Coroner how he had inspected the fittings and what he went on to say is recorded as follows:-
In answer to questions put to him by the court and by the Coroner's officer, he said:
It was with reference to this evidence particularly that Mr. Mills-Owens maintained that the plaintiff had disposed of his own case. He asked me to say that the plaintiff had not only not shown enough (a) to prove any vicarious liability in his client or (b) that any body connected with the lorry and its fittings had been negligent but that Mr. Buck's evidence, which the plaintiff himself relied on, showed that there had been no negligence. I asked him at that point if he was thereby electing to stand upon a submission of no case. Mr. Mills-Owens adroitly and properly, asked me, in turn, whether I was challenging him to stand upon his election. I confess that at this interesting, not to say critical point in the plaintiff's case, it appeared to me very likely, on the evidence as it stood, that the 3rd defendant had been mis-joined and that if called upon it would transpire that he had disposed of the lorry and had severed any connection he might previously have had with the other named defendants. Nevertheless it appeared to me advisable that he should be called upon to say so since the point as to negligence seemed to me to be fine and since it would not fall to be decided should it transpire that the defendant could show, notwithstanding the evidence concerning the registration of the motorvehicle, that he had no longer any connection with the lorry and its operations. Accordingly I told the counsel that I wish to hear from his client. The 3rd defendant thereupon gave evidence. It can be said that the impression I had of the case up to that point was considerably altered by what I then heard. 8. The 3rd defendant is the sole proprietor of the Hung Yue Company. It is a company which has operated for about 30 years in the construction business. Mr. Cheng does work for various companies in Hong Kong amongst them the Hong Kong Electric Company. With this company, it appears, he has a kind of standing contract for maintenance, repair, and other works connected with their installations and he described it as a sort of order consisting of many items with a fixed rate of pay for each item. He had done work for the Hong Kong Electric Company in this way continuously for a period of about 10 years. Amongst the type of works understaken by him are cable laying and trench excavating. About 6 years ago he began subcontracting this part of the work to another firm known as Kwong Shing Kee Construction Company of whom the proprietor is said to be a person called Tsang Chi Kwan. The position of the 2nd defendant Tse On is of cardinal significance in considering the question of vicarious liability. It appears that Tse On has worked for the 3rd defendant for about 10 years in the position of supervisory foreman overseeing various of the 3rd defendant's works though it is not very clear from the evidence whether he has such power in relation only to the sites where cable laying and excavating are going on by way of sub-contract to Kwong Shing Kee or whether he also supervises other works done by the Hung Yue Construction Company. He is, in addition, what the 3rd defendant called a bonus partner in the Kwong Shing Kee Construction Company. He explained this expression by saying that if the Kwong Shing Kee Company made a profit in respect of any given contract, Tse On would take a share in it and he added that Tse On and Tsang Chi Kwong are related. 9. The lorry which was involved in the accident was the property of the 3rd defendant who purchased it about 10 years ago. About 6 years ago, when the subcontracting to Kwong Shing Kee of the excavating work began, arrangements were made between the 3rd defendant on one side and Tse On and Tsang Chi Kwan on the other whereby the lorry was purchased by the Kwong Shing Kee Company on a basis which the 3rd defendant described as one of hire-purchase without initial deposit. That is to say they used the lorry in connection with the subcontract, and possibly other works as well, and paid a thousand dollars every month to the 3rd defendant for the use of it on the understanding that after the agreed price, which he thought was in the region of $16,000, had been paid, the lorry would become their property. 10. The 3rd defendant said that the lorry had passed into their possession on final payment about 4 years ago. During the period when it was being paid for he used to deduct, in addition, at his contractual cut of 12% of the value of the contract given to him by the Hong Kong Electric Company and subcontracted to Kwong Shing Kee, a sum of $1,000 per month from the moneys due by him to the Kwong Shing Kee Company in respect of work carried out under the subcontract. Although the property in the lorry had passed, by mutual agreement between themselves and Mr. Tsang the lorry remained registered in his name and the licensing authorities were never notified of the transfer. It also continued to be insured in his name although he said the premiums were paid to him by Mr. Tsang and he would pass them on to the Insurance Company. He explained these curious arrangements by saying that it was important that his various clients, including the Hong Kong Electric Company, should not know that he a had divested himself of the lorry as this might reduce their confidence in him as a can of substance and one well-equipped to carry out work of the sort which he undertook. For myself I would think that the more likely explanation is that he simply did not wish his principals to know that he had sub-let the work given to him to another contractor. Be that as it may, Mr. Cheng has no hesitation in admitting that upon the day on which the accident occurred the lorry was under the general supervision of Tse On and was being used in connection with the work subcontracted by him to the Kwong Shing Kee Company. He maintained however that the driver and his assistant, Ko Por, were employees of the Kwong Shing Kee Company and being employees of an independent contractor he could not therefore be made liable for any negligence of theirs. 11. I have no evidence before me, other than that which has now been outlined, to indicate the nature or existence of the Kwong Shing Kee Company. Its alleged employees have vanished and Mr. Mills-Owens told me that, although he had contemplated calling the proprietor, Mr. Tsang, the latter was unwilling to come and give evidence. Mr. Chan, who appeared for the plaintiff, stressed the fact that, before the Coroner, Tse On had never mentioned being employed by the Kwong Shing Kee Company but had referred to himself as the contractor. He pointed also to the admission made by Mr. Cheng that the proprietor of the Kwong Shing Kee Company, Mr. Tsang, does not know anything about this particular kind of work and engages in other contracts concerning works of a different description. This was volunteered in answer to a question put to the witness as to whether Mr. Tsang carried out any supervision of the work under the subcontract. The position as to supervision appears to be that Tse On would take instructions from the office of Hong Kong Electric Company in different districts where the works are being carried out and would supervise the labour and exercise his own discretion as to how it should be carried out upon the site. The 3rd defendant would only be called in if any dispute arose as to delay by reason of labour troubles or similar matters. 12. Mr. Chan asked me to say, in effect, that the evidence concerning the Kwong Shing Kee Company is so shadowy that I should regard the alleged subcontract as a colourable pretence on the part of the 3rd defendant to have divested himself of immediate responsibility for the manner of its performance and that in fact Mr. Tsang should be regarded as nothing more than a kind of financial backer of the 3rd defendant's company which remained effectively in control of all the works under the contract from Hong Kong Electric Company. He pointed in addition, to the fact that Mr. Cheng had admitted that the workers employed upon this contract were insured under policies taken out by him although, once again he alleged that the premiums were paid to him by a Mr. Tsang. He also agreed that claims had been made under the Workman's Compensation Ordinance and that the insurance company had dealt with him in relation thereto. 13. Notwithstanding the equivocal nature of the 3rd defendant's arrangements and the ambivalent quality of Tse On's relationship to the two companies I do not find myself prepared to say, without more, that Mr. Cheng's pretences extended also to the invention of a company which does not exist. Although it must have been disconcerting for him to have to make the admissions that he did make, it appeared to me, that Mr. Cheng was a truthful witness. It would have been easy for him to deny all direct relationship with Tse On whatsoever. Nevertheless he not only admitted that Tse On was still working for him but that he was working for him specifically upon that day and he even went so far as to say that at the time of the accident the driver and his assistant Ko Por were indirectly working for him. I am prepared to believe that there was a Kwong Shing Kee Company and that Tse On has some share in the owning and operating of it. Mr. Mills-Owens asks me to ay, therefore, that the ordinary rule of law that a man who has employed an independent contractor is not liable for his negligence must apply. Mr. Chan on the other hand presses the view that the defendant is clearly liable in any one of three ways: firstly, as owner of the vehicle which at the time was being driven under the supervision of a person employed by him and about business in which he has an interest; secondly and alternatively, as a direct employer of Tse On and therefore of the persons who were under Tse On's supervision and who should, for the purpose of this work, be considered his employee as well; and thirdly, and, further in the alternative, that even if Tse On and the Kwong Shing Kee Company be regarded as independent contractors, nevertheless the operation of towing a heavy compressor upon the highway is to be regarded as one of those inherently dangerous acts which cast upon any person who performs them a duty to take all reasonable precautions against danger from which he cannot be relieved merely by employing an independent contractor. 14. Counsel on both sides cited to me a number of authorities in support of their several propositions. Among these were several very recent authorities relating to the liability of a master for the acts of his servants and which dealt with the occasions upon which a person employing an independent contractor may also be liable for the negligence of such contractor. Counsel must forgive me if I do not deal with these cases in detail because it appears to me that the principles to be applied in this case, on the facts as I find them, are to be found adequately stated in certain passages in Charles worth on negligence to which my attention was drawn by counsel in the course of the argument. Before considering those passages I should say that I am satisfied upon the evidence of the 3rd defendant that he is no longer the owner of the motorvehicle and consequently the first of the grounds relied upon by Mr. Chan as showing his liability is without substance. Again I am not prepared to say that towing a compressor upon the highway is to be regarded as one of those inherently dangerous acts which cast upon the employers of a subcontractor a duty to see that the subcontractor and his servant carry out the work in a safe manner. In this regard I adopt the words of Fletcher Moulton L.J. at p.495 of Padbury v. Hollidly and Greenwood (Ltd.) & Anor. ((1912) 28 T.L.R.):
The cases upon which the plaintiff has relied in this connection mainly concern works undertaken by persons owning properties adjoining the highway and which involved user of their own property in a way which obviously created a continuing hazard to passers-by upon the highway. What is obvious from the authorities as a whole, however, is that the basis upon which a man may exclude his own liability by employing an independent contractor is that he is entitled to rely upon the latter's skill and competence to perform works of the nature of those which have been entrusted to him. Thus at page 78 of the 4th Edn. of Charlesworth it is said:
These principles are not in doubt and they can I think be employed to resolve the curious ambiguity introduced into the several contractual relations here involved by the dual role played by Tse On. The facts are these: Tse On, a regular employee of the 3rd defendant, who received for his services a wage of $600 a month from the third defendant, is employed for the specific purpose of supervising, on behalf of the 3rd defendant, the carrying out of those very works which had ostensibly been committed to the care of the Kwong Shing Kee Company under the subcontract. Tse On is, additionally, a "bonus partner" in the Kwong Shing Kee Company. What rights this gives him in respect of the resources or organisation of that company is not clear, but I think it must be assumed that, for the purpose of considering the execution of the work in the course of which the accident occurred, he must be considered as identified with that company and as not simply subordinated to it in the role of a servant. Mr. Tsang, whom I take to be the proprietor of the Kwong Shing Kee Company, is himself a person with no special skill or understanding of the type of work comprised in the subcontract. The employing and dismissing of labour to be used in the discharge of that contract is left to Tse On as is the supervision of that labour although the labourers are paid out of Kwong Shing Kee funds. The only special skill or competence upon which the 3rd defendant and his company can rely in the executing of the work under the subcontract is the skill and competence of his own employee Tse On. Regarded as the property of Mr. Tsang the Kwong Shing Kee Company adds nothing to this operation other than subordinate unskilled labour the wages to pay the same and some equippment including the compressor. Mr. Mills-Owens relied on a passage in Charlesworth which appears on p.55 in which the learned authors repeat the words of Willes J. in Murray v. Currie ((1870) L.R. 6 C.P. 24, 27) where he says:-
Applying that, he says, that if, there was any act of negligence on the part of the driver or of his assistant upon the lorry one might ascribe that to the employer of those person i.e. Tse On on behalf of the Kwong Shing Kee Company but that one cannot go beyond that to draw the employer of Tse On into the net of responsibility. To place that observation in its proper perspective it is necessary to look at the facts giving rise to the allegation of negligence. It seems clear that on the day in question the compressor was affixed to the lorry in the usual way by Ko Por, Nip Chung On and another foki who was there. In doing so they carried out orders which had been given to them on many previous occasions by Tse On who had not merely constructed the towing and locking mechanism but had also instructed them in its use. In no way had they on this occasion departed from the procedure approved by Tse On and employed by them on many previous occasions. Now it seems to me evident that if there is negligence at any point in this series of actions that negligence must be ascribed to Tse On. There is simply no suggestion that the lorry was being driven improperly and nothing is more certain than that the accident occurred because the transverse pin slipped out of its position in the locking pin and that the locking pin jumped out of the retaining holes in the plates at the rear of the lorry allowing the eye of the tow-bar to whip loose and strike the deceased as the compressor stewed towards the pavement on its left. The only conceivable negligence relative to the present claim is negligence in this matter of locking the compressor on to the lorry in the towing position. The person responsible for that is Tse On. The person who employed him to do specifically this kind of work, leaving it within his competence to choose the manner of that work, was his direct employer the 3rd defendant. This seems to me to be the reality of the situation and no juggling with the separate legal identities of the two companies will serve to alter it. Whatever Tse On's position in the Kwong Shing Kee Company is, or may have been at the time, effectively he was being employed by the 3rd defendant to see that work which the 3rd defendant purported to have put in the hands of the Kwong Shing Kee Company was properly carried out by the employees of that company. It is clear that he was under no orders from any body in the Kwong Shing Kee Company as to the way in which he was to discharge that duty. As it seems to me, therefore, the truth is that even if Tse On is identified with the Kwong Shing Kee Company that company is not in the position of an independent contractor at all relation to the carrying out of this work. Either Tse On or the Kwong Shing Kee in his person was the employee of the 3rd defendant for this purpose. If Tse On is to be identified with the Kwong Shing Kee Company, insofar as the latter was concerned with the discharge of obligations under the subcontract confided to it by the 3rd defendant, then, since he remained the employee of the 3rd defendant for the sole purpose of supervising the proper carrying out of this work, one can only say that the Kwong Shing Kee Company, although ostensibly subcontractor, was effectually the servant of the 3rd defendant who therefore remains liable for the manner in which the work was performed. On this basis Ko Por and the driver are in the category of fellow servants of Tse On under the general control of the 3rd defendant. If, on the other hand, Tse On is regarded as the agent of a subcontractor, i.e. the Kwong Shing Kee Company, it is clear that all necessary supervisory power over that work was conferred upon him by the Kwong Shing Kee Company so that, even in this case, no wider duties were imposed upon him by that company than were imposed upon him by his contractual obligation to the 3rd defendant in respect of such supervision. If the duty associated with his special skill was owed to Kwong Shing Kee Company equally was it owed to the 3rd defendant. I find, therefore, that the 3rd defendant was vicariously responsible for the acts of Tse On. 15. I am left with one question to consider: whether there was in the performance of Tse On of the task entrusted to him by the 3rd defendant, anything which can be described as negligence. But before I consider that it is perhaps as well to say for the sake of completeness that in my view the driving of lorries and the towing of compressors are alike tasks which fall within the natural ambit of the operations which the 3rd defendant purported to subcontract to the Kwong Shing Kee Company. If Tse On is wanting in care in the manner in which he caused the compressor to be attached to the lorry or in the manner in which the compressor was towed by the lorry his default is to be ascribed to his principal, the 3rd defendant, as fully as would any act of negligence arising from the actual excavation of a trench or the laying of a cable therein. It is regrettable and to my mind surprising that I have been left, on this vital point, without expert testimony other than such as may be gleaned from the short and far from adequate testimony of Inspector Buck as it appeared upon the record of the proceedings before the Coroner. Since that testimony to some extent favours the defendant's view of the matter it is perhaps not surprising that Mr. Mills-Owens did not seek to supplement it with an expert of his own. It is more difficult to understand why the plaintiff or his advisers did not bethink themselves of procuring the opinion of an engineer or other qualified person as to the mechanical efficiency and safety of the locking device provided by Tse On for the towing of such trailers. What I am left with, therefore, is evidence that on the morning in question the trailer was attached to the lorry in the usual way and that the transverse pin was inserted in the locking pin. The whole fitting is described by Mr. Buck as being a normal kind of fitting and of a safe design. He gave it as his personal opinion that it would be better if the transverse pin was curved to form a closed ring. It was the evidence of Tse On that the vehicle had been used in this way for towing over a hundred times without any trouble. Some mention was made before the Coroner of the wire used to secure the transverse pin to the lorry. I one examines the photograph C1 it will be observed that the transverse pin appears to be fastened by a kind of very light chain to the upper structure of the lorry. This light chain was referred to as wire by the driver Nip Chung On when he was referred to the photograph and when he said that it represented the correct position of the pin as reconstructed after the incident. The photograph was in fact taken by a police officer after the vehicle had been towed to the Morton Terrace Vehicle Compound. It is obvious that this chain or wire could not have had any effect and was not intended to have any effect in the way of preventing the transverse pin from coming out of the hole in the locking pin. Its purpose appears simply to have been to secure it to the body of the lorry at such times as it was not in position within the locking pin. It is clear that there was nothing to prevent its sliding out of the locking pin but no doubt the experience of the operators of the lorry was that that simply did not happen. It is equally clear that the accident did not come about because of any latent defect in the metal of the locking pin or of the transverse pin or of any part of the locking device. Nothing gave way, nothing broke, nothing malfunctioned. But, due to the motion of the lorry and the trailer, and possibly due to the camber of the road the transverse pin must, at some point of the journey, have slipped from its position leaving the locking pin free to jump free of its metal keepers. Certainly the accident was unexpected and against the run of experience, but was it so untoward as to be beyond the power of a reasonable man to foresee its possibility? Authority on this point in relation to motor vehicles is scarce. At page 290 of the 4th Edn. of Mazengarb's Negligence on the Highway, under the heading "Defective condition of vehicle", the learned author says:
This however is stated in connection with the proposition that the driver may be found to be negligent if there is some defect in the vehicle of which he should have been aware, and the case which is cited in support of the observation (O'Neill v. Brown (1961) 1 All E.R. 571) is not of great assistance because, although it is a case in which a trailer became disengaged from a lorry while it was being towed along a road and struck a motorcycle killing its driver it appears from the recital of the facts that there had been a finding by the justices that the coupling device was in itself sound if properly employed but that, on the occasion in question, the person charged with the duty of coupling the trailer to the lorry had failed to do so properly with the result that, in the course of the journey, the trailer became detached. The driver appealed from his conviction by the justices for a breach of regulation 73(1) of the Motor Vehicle (Construction and Use) Regulations 1955. That Regulation is in identical terms with Regulation 99(1) of the corresponding Hong Kong regulations:
It is interesting to note that, in dealing with the argument that the regulation did not apply to a faulty use of equipment as distinguished from equipment which was itself inherently faulty, the Court, in rejecting that argument, found that the word "maintenance" as used in the group of regulations to which the relevant regulation belonged was wide enough to cover not merely the notion of a vehicle being in good repair, but also the notion of its being in efficient working order. In coming to that conclusion the court relied upon the meaning given to the word "maintenance" in the Factories Acts. It is for this resort to assistance from the Factories legislation, coupled with the consideration of the duty laid upon a driver under the Traffic legislation, that I regard O'Neill's case as affording some illumination in the task of balancing rights against responsinilities when considering the present nexus of circumstances which seems at first sight unlikely to yield other than a narrow preference between blame and absolution. The case is one in which the opinion of the jury would have been welcome upon the issue of negligence. There is no doubt that Mr. Mills-Owens makes a valid point when he says that the only technical evidence which we have is the evidence produced by the plaintiff and that that tends to favour the defendant's case. Mr. Buck, the vehicle inspector had stated not merely the accident of this kind is very rare, but also that the fitting for locking the compressor to the lorry was the normal type of fitting and that it was, in his opinion, safe. In the absence of contrary evidence of an expert type, to contradict this opinion it might be said that that is the end of the matter. I cannot take that view. For one thing, the evidence of Mr. Buck did not stop at the opinion I have just quoted. When his attention was directed to the transverse pin, he said:
later in answer to questions by the Court he said:
Now this appears to me to be the most obvious common sense. It constitutes what I regard as a sensible dilution of his original expression of confidence in the nature of the arrangement which, if it is stood alone, would seem surprising and even inexplicable. What it amounts to is that there is upon the face of it a defect in the nature of the fitting which even to the nontechnical eye is capable of suggesting a possibility of failure given the requisite circumstances. If one considers the heavy traffic to be encountered in Hong Kong, the twistive nature of the roads, and the many hills and corners to be negotiated in even quite short journeys, the many stops and starts necessitated by pressure of traffic and the frequently indifferent nature of the road surface, it is far from difficult to envisage circumstances under which a pin of this description could slip from its position. 16. Although the cases under the Factory legislation in England concerning the fencing of dangerous machinery deal with a different area of responsibility I think some useful analogical assistance is to be had from some of them relative to the responsibility of persons in charge of machinery of any nature. In many cases under the Act, Judges of the Court of Appeal in England have, in deciding whether or not a given piece of machinery was dangerous, adopted the wellknown words of Wills J. in Hindle v. Birtwiftle, ((1897) 1 Q.B. 192):
In Williams v. Sykes & Harrison Ltd., ((1955) 3 All E.R. 225), both the Judges in the Court of Appeal adopted this dictum, Singleton L.J. remarking: "There will never be a more helpful guide on this in the judgment of Wills J. in Hindle v. Birtwiftle" while the other Judge Hodson L.J. equates this principle with the test of forseeability. That, to my mind, is a useful test to apply even the cases which do not fall within the ambit of the Factories legislation when one considers that the duty imposed by the law relating to such trailers, and indeed to vehicles generally is to see that no danger is likely to be caused to any person by the vehicle or trailer. A simple way of looking at this matter is to assume the position of some competent person who is examining the fitting when the compressor and the lorry are attached to each other with a view to deciding whether, in his opinion, any danger may reasonably be anticipated from that manner of connection when the compressor is actually being towed. I find it difficult to believe that the possibility would not suggest itself to such a person that the transverse pin might, under certain circumstances, become detached and leave the locking pin free to escape from its keepers. The fact that this manner of attachment had been used on many previous occasions without mishap cannot upon its own resolve the question in favour of the defendant. In Kinder v. Mayor, Aldermen & Councillors of the Metropoliton Borough Camberwell ((1944) 2 All E.R. 315), which was a case under the Factories Act 1937 the facts given in the headnotes are as follow:-
The Lord Chief Justice, Viscount Caldecote, having quoted the dictum of Wills J. to which I have referred above, goes on to say:-
It will be seen that he was there exploring a dilemma arising from the special obligation placed by statute upon the owner of a machine which is not dissimilar to the dilemma which may be said to arise from the facts in this case viewed in the light of the duty cast upon the owner of the vehicle under the Traffic legislation. He resolves the matter in these terms:
It is true of course that the learned judge was considering statutory as distinct from common law negligence, but I think his words afford some assistance in relation at least to the forseeability of harm and the duty not to use a vehicle so as to be likely to cause danger. I think one may the more readily resort to that assistance in view of the fact that there is also a statutory duty cast upon operators of a vehicle under the Traffic legislation though I do not say the duty is so stringent as that which he was considering. There is nothing inherently dangerous in driving a motorvehicle upon the road nor in towing a trailer behind a motorvehicle upon the road provided the operation is carried out in much a way that, so far as it is humanly possible, no danger can be anticipated from the manner in which it is being done. 17. On balance, therefore, I find that the plaintiff has shown that Tse On was negligent in the manner in which he caused the compressor to be attached to the lorry and that it was as a result of that negligence that the deceased received her injury. I have already found that Tse On was the agent of the 3rd defendant in causing the lorry and the compressor to travel upon the road on this day in this manner. 18. Turning to the question of damages under the Fatal Accidents Ordinance, as often happen in these cases, the court is left with some not very satisfactory evidence. The peculiar feature of the case is that, if the plaintiff's evidence is to be believed, it was his wife, the deceased and not he himself who was the principal support of the family which consisted of husband, wife and four children aged between 17 and 5 years of age. The deceased was 40 years of age. Her husband, the present plaintiff, is 58. The deceased had been working for some eight years for P.W.2, Madame Ho, at a wage that progressed from $220 per month to $330 per month at the date of her death. Madame Ho mentioned various other sums which the deceased used to get by way of tips from Madame Ho and her family as well as "Red Packets" at the new year. If these were counted in as salary, it would give a figure of something like $470 a month. I think, however, that these additional payments are too casual in their nature to be included in any assessment. It is noticeable that her husband when giving evidence mentioned only her wage which is $330. I am willing to accept that the situation was that she spent all that wage upon the maintenance of herself and her family. Anything over and above no doubt she had for her own pocket money. 19. Her husband's evidence was that he makes only $100 a month by selling old news papers to meat and fish vendors. He is not incapacitated in any way and does not seem to be a person of poor physique or troubled by ill health. The children are all at school and seemed decently dressed. None of them appears to be earning anything at the moment. Mr. Mills-Owens asked me to deal with the husband's evidence cautiously. In cross-examination he sought to elicit information concerning other sources of income. The husband maintained however that since his wife's death he continued to make only this meagre living and he explained the fact that the children continued to go to school and to be maintained by him by saying that he had augmented his monthly salary by assistance from the Social Welfare Department. No evidence was produced concerning the rent of his premises and although I am doubtful that he has been candid as to the family's sources of income I am prepared to accept that $330 earned monthly by his wife was in fact spent upon the maintenance of all of them. The family has lost her support to that extent and that I take to be the figure which fairly represents the family's degree of dependency upon her at the time of her death. The calculation that follows can at best be a rough approximation to the figure which, accordinglto the classic principle applicable in these cases, will put the family as near as possible back in the same pecuniary position which it enjoyed prior to her death. According to the papers prepared by the Commissioner for Census and Statistics in Hong Kong, the deceased, who appeared to be a healthy woman, would have a life expectency of about 75 years. I think it would be fair to assume that she would continue at full earning capacity up to the limit of her husband's life expectency which would be in the region of 72 to 75 years of age by which time she would have been in her early sixties. So far as the children are concerned I accept that none of them is earning and that all are still at school. I shall assume that all will continue at school, as the eldest daughter has done, and that they will leave school at the age of 18 years. In the absence of evidence upon the matter I am assuming that all 5 dependants including the father shared equally in the benefit of the $330 contributed every month by the deceased. As the children leave school and get jobs or marry I assume that they will be in a position thereafter to contribute to the support of those who still remain at school and of their father. The degree of such support is very speculative and rather than speculate upon it I think it would be fair, in the alternative, to assume that, on attaining the age of 18 years, each of them would have ceased to be a dependant to any extent. I will therefore make no discount in respect of contributions which they might have made to the others. In respect of this calculation I take it that the ages stated in the writ are the ages of the children at the date of the accident which is the date upon which support was lost. Assuming that each of the six members of the family, including the deceased had she lived, would have shared equally in the pecuniary benefit coming to the family from her earnings. i.e. $55 each per month, and taking each dependant separately the calculations are as follows: (i.e. amount of annual dependency multiplied by number of years dependency):
The total of these sums is $28,380.00. If this figure represented a lump sum payment to a single individual for a single stipulated period of a number of year's dependency, it would be necessary to offset the benefit of receiving it in one lump sum by decapitalizing the amount awarded to arrive at a figure which if invested at a given rate of interest would yield, over the estimated period of dependency, an annual sum equivalent to the pecuniary benefit of the annual support lost through the death of the deceased. To do so in the present instance would require that each of the separate sums listed above should be decapitalized in this way. The resulting total of all the decapitalized sums would be very much less than the amount I have mentioned. In view of the fact that I have stimated the loss of benefit in respect of each of the dependents separately and as the resulting figures are, apart from those relating to the youngest child and to the father, not large sums and as they refer to comparatively short periods of time I do not think that the benefit in the total figure. I have not made allowance for the possibility that the wages of the deceased might well have gone up in the immediate future and might have mounted steadily throughout the remainder of her working life. Allowing for this possibility a figure reduced by reference to the non-decapatalization of the full sum, it seems to me that in all the circumstances, a fair recompense to this family as a whole for the loss resulting to it from the death of the mother would be represented by the sum of $30,000 and that is what I award. 20. As far as damages under the Law Reform Ordinance are concerned, I was given no evidence at all as to the state of the deceased woman's estate, but it has not been alleged that any pecuniary advantage will result to the dependants out of her estate other than the damages to be awarded under the Law Reform Ordinance. No proof was offered of the matters claimed as special damage, i.e. $1,500 for funeral expenses and $750 legal expenses in respect of obtaining a grant of letter of administration. Nothing therefore is allowed in respect of these claims. It is common ground that the beneficiaries under the Administration of the deceased's estate are the claimants in this action. I allow a figure of $4,000 in respect of loss of expectation of life and this sum must be deducted from the amount awarded under The Fatal Accidents Ordinance: $26,000; under the Law Reform Ordinance: $4,000; i.e. $30,000 in all. Costs to the plaintiff to be taxed in accordance with the Legal Aid (Scale of Fees) Regulations, Cap.91.
Representation: Judgment handed down. |
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