Low Har v. Yip Chi-ming
Read the full judgment text of HCA 4316/1979 on BabelCite. This High Court CFI judgment.
1. In this action, the plaintiff LOW Har claims damages under the Fatal Accidents Ordinance and under the Law Amendment and Reform (Consolidation) Ordinance in respect of the death of her only son LAU Kan-fu, which occurred consequent upon injuries which he sustained in an accident which happened just before noon on the 3rd of January, 1978. The death did not occur until the 17th of July, 1978, more than six months later.
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HCA004316/1979
Coram: Barker, J. Date of Judgment: 6th February, 1980. ----------------- JUDGMENT ----------------- 1. In this action, the plaintiff LOW Har claims damages under the Fatal Accidents Ordinance and under the Law Amendment and Reform (Consolidation) Ordinance in respect of the death of her only son LAU Kan-fu, which occurred consequent upon injuries which he sustained in an accident which happened just before noon on the 3rd of January, 1978. The death did not occur until the 17th of July, 1978, more than six months later. 2. The deceased was knocked down by a station wagon driven by the defendant YIP Chi-ming whilst the deceased was crossing Fung Mo Street opposite Block 1 at the Wang Tau Hom Estate in Kowloon. The weather apparently was fine, and the visibility good. 3. It would appear from a document called Brief Facts of the Case - to which I shall have to refer later in this judgment - that there were eye-witnesses of what occurred; but no such witnesses have been called before me, and it is my duty therefore to decide this case upon such evidence as the parties have chosen to place before the court. 4. There was produced before me by a police officer a sketch plan - the original of which is P.5, but in fact which forms part of the agreed bundle, P.1 - from which it is clear that the defendant's vehicle had been travelling along Fung Mo Street from south to north, that is from right to left of the plan, and that it had gone from its correct side of the road right across the other carriageway and come to a halt with the front part of it having mounted the pavement by a maximum of some 1½ feet. At the time when the officer arrived, there was another vehicle BK 3968 actually on the pavement, the relevance of which is not apparent. But the police officer did say that he found blood stains under that stationary vehicle which was undamaged. There was damage to the defendant's station wagon. The front of it was damaged, and also the windscreen. And the probability is that some, if not all, of that damage was caused to the defendant's vehicle when the defendant's vehicle struck the deceased. 5. The police officer spoke to the defendant, and the account which the defendant then gave to the police officer was as follows: the defendant said that he was following behind a private car and travelling north along Fung Mo Street. When they got near to the scene of the accident, the private car overtook a dump truck, and he, the defendant, could not tell what the registration number of that private car was. The defendant said that he also intended to move out - the word the officer used in giving evidence was "swerved out", but I strongly suspect it was "moved out" in reality to overtake the dump truck as well, and it was at this moment he saw a Chinese man standing on the centre broken white line. 6. The defendant said his vehicle at that time was about 5 feet to 6 feet away from the Chinese man, and so he, the defendant, swerved to avoid the man; but the Chinese man suddenly ran backwards. The defendant told the police officer that he then swerved further to his right to avoid the man, and as a result his vehicle mounted the pavement on the right hand side; and he said it collided with the dump truck on the pavement, but the officer found no damage to that truck, as I have said. He told the police officer that he did not know whether he had knocked down the man or not; but he did say that his brakes were functioning properly. 7. The defendant elected not to give evidence. And were I compelled to do so on that version alone, having regard to what I see on the sketch plan, I would have found that the defendant was negligent. He did not see the deceased until the very last minute, and in my judgment, there is no reason why he could not have done so much earlier if he had been keeping a proper lookout. 8. But the matter does not end there; for the defendant pleaded guilty to an offence of careless driving at the North Kowloon Magistrate's Court on the 6th of June, 1978. And the effect of such a plea of guilty has been described by Lord Denning, M.R. in the case of Stupple v. Royal Insurance Co. Ltd.(1). The relevant passage of the judgment is at page 72C. The judgment is, of course, dealing with the effect of the Civil Evidence Act, 1968, but the Evidence Ordinance in Hong Kong is in like terms. 9. And what Lord Denning said was this:
10. It is not necessary in order to discharge that burden of proof for a defendant to call evidence. He can, if he is able, rely on the evidence called by or on behalf of the plaintiff. But in this case he has not, in my judgment, discharged the legal burden of proof which lies upon him of showing that he was not negligent. And for that negligence, and for that ground also, I hold that the plaintiff succeeds. 11. But the matter does not end there either, because when the defendant pleaded guilty at the Magistrate's Court, there was read out to him - as is apparent from the original record of the hearing which has been produced before me, P.2 - a document to which I have earlier referred called Brief Facts of Case, which read:
it says towards the south, but clearly it was towards the north -
12. Those brief facts were read out to the defendant. They were translated to him in Punti, and the defendant in court admitted their accuracy. And the admission of the accuracy of those facts amount, in my judgment, also to an admission of negligence on the part of the defendant. 13. Mr. Kwok did not strenuously argue - indeed, in fairness to him, he did not argue at all eventually - that I should not find that the defendant was negligent. But he submitted to me that on all the facts of the case, I ought to hold that the deceased was himself in some part to blame for the accident, or rather for his injuries. 14. It has to be remembered that the burden of establishing contributory negligence on the part of a plaintiff - or as in this case, the deceased - lies upon the defendant. It is not at all clear, in my judgment, precisely what occurred. It is certainly not clear precisely what the deceased was doing prior to his being struck. The fact of the matter is that the defendant does not know because it was not until the very last minute that he saw the deceased at all. It may be that the deceased was walking across the road keeping a proper lookout and would have been quite safe had it not been for the fact that the defendant moved out to overtake at a time when, by reason of the presence of the deceased on the road, it was manifestly unsafe to do. It may be that the deceased was in fact standing on the centre line keeping a lookout, seeing the defendant's vehicle approaching and waiting for it to pass. The court does not know and will never know. Merely to do either of those things, in my judgment, would not amount to contributory negligence. 15. But the plain fact of the matter is that, as I have said, the court does not really know what did happen. And bearing in mind where the onus of proof lies, I hold the defendant has failed to satisfy me on the balance of probabilities that there was any contributory negligence on the part of the deceased, and therefore this claim succeeds in full. 16. I pass therefore to consider the question of quantum. As I have earlier said, this claim is brought not only under the Fatal Accidents Ordinance, but also under the provisions of the Law Amendment and Reform (Consolidation) Ordinance. And in fixing damages, I therefore have to bear in mind that some, though not all, of the damages awarded under what I shall call the Law Reform Ordinance, for the sake of shortness, will have to be deducted from those awarded under the Fatal Accidents Ordinance. 17. In approaching this task, I adopt what is said in McGregor on Damages, the 13th edition, at paragraph 1259. In that paragraph, the editor is dealing with what does have to be deducted from what he described as the Fatal Accidents Act claim in respect of damages for the Law Reform Act award. And he deals with various matters which do not have to be deducted, and he ends by saying this:
18. In my judgment, that passage correctly states the law, and I propose to follow that approach in making my award. 19. I shall deal first with the Law Reform damages. As I have said earlier in this judgment, the deceased was struck on the 3rd of January, 1978, and died on the 17th of July of the same year, just over six months after the accident. Evidence was called as to what he had been earning before the accident. His employer YIP Chun-ki gave evidence. He said that he employed the deceased as a cutter to cut iron and to bend iron bars. The deceased had in fact worked for him on that particular contract for just about two months plus before the death, but he had worked for him some years before. The deceased was, according to Mr. YIP Chun-ki, quite a diligent worker. The evidence was that prior to the accident, the deceased was paid on a daily basis of $95 a day. The deceased could, if he wanted to, because of the pressure of work, work seven days a week and take a rest. But, said Mr. YIP Chun-ki, usually at that time the employees, including the deceased, worked 26 or 27 days a month. 20. The loss of earning is pleaded at about $2,000 per month, and if one were to multiply 95 by 26, one would get more than $2,000. No application was made before me to amend the claim pleaded in the amended Statement of Claim for loss of earnings, and therefore under that Act I award the sum claimed which is $12,000. 21. The funeral expenses were proved to my satisfaction in the sum of $2,830. 22. There was an item, small item claimed for damaged clothing pleaded at $100, but I am not satisfied that any clothing was damaged in the accident; or if it were, I am not satisfied as to any sum to be awarded in respect of it. And so I award no sum for damaged clothing. 23. By amendment, a claim was put forward for travelling expenses for visiting the deceased prior to his death claimed in the sum of $1,000. And in support of that claim, a Mr. LAW Hung, who is the uncle of the deceased, gave evidence to the effect that between the time of the accident and the time of the death, he visited the deceased in hospital twice a day every day. And he spent, so he said, about $1,000 in total for all these travelling expenses. He also incidentally gave evidence that his brothers and his uncle also visited the deceased, and they spent about a similar sum. I do not accept that anything like that amount was expended in travelling expenses, and I have to fix what I consider to be a fair figure in respect of that item. Of course, in so far as they are proved, such travelling expenses are recoverable as a matter of law, the plaintiff holding such expenses in trust for the person who has incurred them. In all the circumstances, I assess the travelling expenses in the sum of $400. 24. Therefore, if my arithmetic be correct - and I hope that counsel will at a later stage check that it is - the total in respect of loss of earnings, funeral expenses and travelling expenses is $15,230. 25. The deceased was unconscious for the whole of the time between receiving his injuries at the beginning of January and his death in the middle of July. And were the Law Reform claim to stand on its own, clearly there would also be a claim in respect of pain and suffering and loss of amenities suffered by him during that period. But as there is a claim under the Fatal Accidents Ordinance, any award I might make under that head would inevitably have to be deducted from the sum awarded under the Fatal Accidents Ordinance. I was, therefore, minded not to make any award under this head. However, counsel on both sides asked me to make an assessment because they say cases of this nature had occurred infrequently in Hong Kong, and there are very few reported cases to assist members of the Bar and the legal profession generally in assessing damages in those circumstances where it is important to know the Law Reform damages. And so with some reluctance, I will make an assessment, though my remarks on this aspect of the matter must be taken to be obiter in view of the principles of law which I have decided are the correct ones to apply to this case. 26. The accident occurred, as I have said, on the 3rd of January. And there is in the agreed bundle P.1 a medical report written by Dr. S.T. Chan from which it appears that the deceased had a U-shape laceration of the scalp over the right occiput; a smaller laceration of the left cheek below the left ear; an abrasion over the left cheek and right forearm; and was unconscious. There was no response to question or order, but react - reaction that must be - to painful stimuli with non-specific flexor response. The left pupil was dilated and non-reactive, while the right was sluggish and smaller in size. Cranial nerves were apparently intact. Spontaneous movement of all four limbs was present. There was bilateral clonus; planter reflex being flexor on both sides. X-rays revealed no fracture of the chest or scalp. Lacerations were sutured. He was managed conservatively with special attention to the airway, and physiotherapy was started. Nevertheless, for the next six months, the condition remained unchanged. He was unconscious. He had episodes of urinary tract infection, and chest infection which subsided with anti-biotic treatment. He was transferred to the Kowloon Hospital on the 11th of July, 1978, and died there six days later of bronchopneumonia and lung abscess. And when a post-mortem was carried out, brain softening in the region of the brain stem was found. 27. Quite clearly, the deceased suffered severe injury to the brain. From the agreed medical report, and indeed from the evidence of the deceased's uncle, it is apparent that the deceased never regained consciousness, and the probability is, therefore, that he was not conscious of his misfortune. Nevertheless, although consciousness on the part of an injured person of the extent of his injuries and the extent of his deprivation may serve to increase the amount of damages awarded, the lack of consciousness should not serve to decrease what would otherwise be awarded for very serious injuries. 28. Taking all these circumstances into account, had it been necessary for me to assess damages for pain and suffering and loss of amenity, and bearing in mind that for six months this man was deprived of everything that life can provide, everything which he enjoyed, everything which he held dear, I would have assessed those damages in the region of $5,000. 29. I pass then to consider the claim under the Fatal Accidents Ordinance. The deceased, according to his mother, at the date of his death was 36 years of age. His life expectancy is not of any great relevance in this case. But of course the multiplier is to be gaged rather by the age of the two dependants, namely his mother, the plaintiff, and his father. His mother is 67 years of age, and according to her, his father is 67 years of age also; although it should be observed that in the Statement of Claim it is alleged that the mother is 66, and the father is 69. However, I accept the evidence of the plaintiff in the witness box that each is 67 years of age. 30. The plaintiff has been in Hong Kong since 1978, but her husband has been all along, and still is, living in Mainland China. Neither, according to the evidence, is in good health. Both suffer from high blood pressure which necessitates each of them going to the doctor, the father more often than the plaintiff. She is also anaemic. There is, however, no medical evidence before me as to the life expectancy of either. 31. I was referred, during the course of argument, to a number of cases which it was suggested were similar to this one to assist me in arriving at an appropriate multiplier, but I do not regard them as of any great help. In all the circumstances, I consider that the appropriate multiplier is 5. 32. The multiplicand is difficult. The deceased was earning upwards of HK$2,000 a month. It is pleaded that he sent about HK$1,000 per month to his parents. The plaintiff gave evidence herself about this. I mean no disrespect to her when I say that she is obviously a person of little intelligence whose evidence was often contradictory and sometimes unintelligible. She said at one stage that she got from the deceased HK$1,000 per month, but then at a later stage she said that she received 20 Chinese dollars, 30 Chinese dollars or 40 Chinese dollars perhaps twice a month. It has been agreed between the parties that the relevant rate of exchange is HK$3.25 to $1 Chinese. And if that evidence be right, it is apparent that she and her husband were getting a good deal less than $1,000 a month. She never in fact got money from the deceased in Hong Kong dollars at all. All that she would get was some kind of document, which I assume was a bank draft or something of that nature, which she would take along to the bank and be paid in Chinese dollars. She said at one stage when it was put to her, "Well, that means that you could never get more than $100 per month", she then said: well, that is not right, because she would get more if the deceased remitted $500 a month. All in all, her evidence was very confusing. That the deceased did send money to support his parents, I am quite satisfied of. He was her only son, and no one else supported her or her husband before the accident. 33. It was suggested to me that the deceased was unmarried, that he might have got married, and that in those circumstances any support he might give might have been less than heretofore or might have gone altogether. But in my judgment there is no force in that submission. From what I have heard, I take the view that he was a diligent and dutiful son who would have gone on supporting his parents at least for the period of five years which I have held to be the appropriate multiplier. In arriving at that conclusion, I have taken into account the submissions which were made to me about the possibility of the deceased's marriage. 34. The fixing of a multiplicand in this case therefore of necessity must rest in the realms of speculation. In my judgment, the proper figure for a multiplicand is HK$500 per month, in other words, HK$6,000 per year. And thus the damages under the Fatal Accidents Ordinance, applying the multiplier of 5, are $30,000, to which must be added the Law Reform damages of $15,230. The total, therefore, damages recoverable and the award I make is $45,230. 35. I turn then to the question of interest. Interest is payable on the Fatal Accidents Act damages from the date of the service of the writ to today, but it is only payable on that part of the Fatal Accidents Act damages which represents a loss of dependency to date, and that is also, of course, from the date of the service of the writ. I make that 3½ months, and I would award damages at the rate of 4½%. In view of the fact that I have said that the multiplicand is HK$500 per month, I award interest on the Fatal Accidents Act damages at 4½% on HK$1,750. Interest is payable on the Law Reform damages from the date of the accident to today's date, that is just over 1½ year's interest on $15,230. And in my judgment the proper rate of interest for that is 4½% also. And I add in case this judgment is considered elsewhere that in each case I have taken a rate of interest of 9%, and divided that by two in accordance with the principles laid down in Pickett v. British Rail Engineering Ltd.(2). I have not worked out the exact sums which are due to the plaintiff by way of interest, but no doubt if those sums can be agreed between the parties, they can be entered as part of the judgment. 36. I give judgment for the plaintiff for $45,230 plus interest in the form I have outlined. I order the defendant to pay the plaintiff's costs, to be taxed, if not agreed, and I order that the plaintiff's own costs be taxed for the purposes of the Legal Aid regulations. Representation: Frankie Leung (Poon & Sum) for Plaintiff Kenneth Kwok (Cheng & Lam) for Defendant (1) [1971] 1 Q.B. 50, 72C (2) [1979] 1 All E.R. 774 |
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