Law Siu Ping v. Kwong Cheuk Kai and Others

HCA000094/1982

IN THE SUPREME COURT OF HONG KONG.

HIGH COURT

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BETWEEN

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BETWEEN

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Coram: Garcia, J. in Court.

Date: 9th August, 1983

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JUDGMENT

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1. These two actions, which have been consolidated, arise out of an accident which occurred between two private cars at about 10 p.m. on the 9th day of April 1980, on the Tuen Mun Highway.

2. One of the cars involved in the accident, No. BZ4910 is registered in the name of the 1st defendant. Kwong Cheuk Kai, and on the day in question was driven by the 2nd defendant. Lui Wing, while the other car, No. BX9278 was owned and driven by the 3rd defendant, Chan Wing Cheung. The 2nd defendant was driving towards Yuen Long, while the 3rd defendant was driving in the opposite direction towards Tsuen Wan.

3. On that day, the 1st defendant lent his car to the 2nd defendant through the 2nd plaintiff. Miss Iaw Siu Ping to enable him to drive her and her friends to the New Territories for an evening meal. There were altogether six persons in the car including the 2nd defendant. He and the deceased, Fok Kam Fai, were in the front seat while the rear seat was occupied by Tang Chun, Wong Sing Kau, Law Siu Ping and law Tai Chun in that order from the left side of the car.

4. The car driven by the 2nd defendant crossed into the Tuen Mun Highway from the 2nd plaintiff's home at the Cheung Sha Wan. Estate and according to the 2nd defendant while driving upslope along the Highway he overtook one car in front of him going into the outer lane in order to do so. After he had done this he says that there was another car in the inner lane preparing to overtake him on his offside and because of that, he continued to drive along the outer lane. At this stage he was very near a bend and when negotiating the bend in the outer lane he saw a car coming from the opposite direction at a high speed. The opposite carriageway at that spot held only one lane of traffic, which was merged from two lanes and the car, No. BX9278, which was overtaking a slower moving vehicle had swerved across the double white lines dividing the carriageway onto the N-bound carriageway where the 2nd defendant's car was. Further through unfamiliarity with the car which he was driving that day was the first time he had ever handled that particular car or though driving inexperience generally the 2nd defendant instead of steering his car to the left, drove it towards the right with the intention of avoiding a collision but unfortunately he was unsuccessful and the accident resulted.

5. The 3 passengers who were on the left side of the car including the deceased, died as a result of the accident whilst the plaintiff, law Siu Ping, suffered in juries, of which the most serious was a fracture of the left superior pubic ramus. Both the 2nd defendant and Miss Law Lai King, who were sitting on the right side of the car escaped serious injury.

6. Of the witnesses for the plaintiff Law Siu Ping her younger sister law Lai King, says that the 2nd defendant had been travelling all along in the outer lane once the car had crossed into the Then Mun Highway, whereas the plaintiff herself says that the 2nd defendant's car was not driven in that lane although when questioned about this, she says that she did not know which was the outer or the inner lane and that the car had not changed lanes on the Highway before the collision occurred. Both these witnesses testify that the car was driven at a moderate speed.

7. Following the accident, the 2nd defendant was summonsed for the offence of "Disobeying a traffic sign" in relation to his driving the vehicle along the Tuen Mun Highway in the outer lane, that is, that he should not have travelled in the outer lane unless he was overtaking. He readily admitted the offence but he says by way of explanation in this case that he had only driven in the outer lane because he was not sure whether there was a vehicle in the inner lane at that time and a vehicle had already overtaken him on his left once he had negotiated the bend. In my view, if he were a reasonably prudent driver it would not have been too difficult for him to have ascertained the situation by looking in the rear view mirror in the car and to have returned to the inner lane as soon as he had completed the overtaking manoeuvre which he says he did on his way upslope along the Tuen Mun Highway.

8. Having regard to what he has pleaded guilty to and the circumstances leading to the collision and the evidence of both the Law sisters. I find that (i) he had driven along the Tuen Mun Highway up to the time of the collision in the outer lane and (ii) he should have steered his car towards the left instead of the right just before the collision and therefore by these actions had not exercised that degree of care and skill which is expected of prudent drivers of motor vehicles. Although an appearance was entered for the 3rd defendant and a defence filed by him, he did not attend in Court on the day of trial. Therefore there is no explanation from him as to why he had driven his vehicle in the manner described by the 2nd defendant. That is by crossing the double white lines and landing up in the North-bound carriageway. The collision, based on post-accident reports on both cars and the photographs taken of the cars after the accident and the fact that both cars were found in carriageways opposite to those in which they were originally driven, was a very violent one and gives lie to the evidence of the witnesses for the plaintiff and for the 2nd defendant that the car in which they were travelling was driven at a moderate speed at the time of the accident.

9. In the absence of any explanation from the 3rd defendant following. Baker v. Market Harborough Co-op. Society, Wallace v. Richards (Leicester) Ltd., ⁽¹⁾ I would apportion the blame for the accident on the 2nd and 3rd defendants equally.

10. After the accident, Law Siu Ping was examined by Dr. K.C. Woo of Princess Margaret hospital on 20th April 1980 and she was found to have sustained the following injuries:

11. She was admitted on that day and discharged on 27th April 1980 after the fracture to her pelvis was treated. She says that when she left the hospital she has had to use crutches for a period of about 3 weeks.  She says she felt pain throughout the period she was confined at home and required support and assistance when going to the toilet.

12. A claim has been made for certain items, $40 for jeans shoes - $140 spectacles - $150, all of which were damaged or lost in the accident. These claims totalling $330 have not been challenged and they are allowed  under the item of special damages. She says that she consulted a bone-setter and her claim for reimbursement of fees paid to him amounting to $840 have not been resisted - and this is also allowed. Whilst there have been conflicting decisions over claims for bone-setter's fees, this is a case where there has been no conflict between the conservative treatment for fractures in Western medicine and the methods and practice of Chinese traditional medicine in this field, since one followed the other.

13. The claims made for reimbursement of money spent on special foods have also been the subject of much controversy. It has been said that whilst the prescribing of special foods is commendable on grounds of experience and custom such foods have no scientific or logical bases to support them. Even so-called tonic foods carrying well-established reputations as such and some of which have become household names have been debunked as being of less nutritional value than the average diet." However in this case the claim, for special foods is not excessive and such foods may be in the nature of additions to the diet of an invalid: no challenge has been made to this claim and this item is accordingly allowed.

14. The plaintiff says that she earns $1,600 per month as a garment worker and as a result of the accident she was granted 4 months' sick leave with consequential loss of earnings for that period amounting to $6,400.

15. She also claims this amount and I have no reason to disbelieve her evidence in this regard so that in the result the total amount of special damages awarded her is as follows:

16. Madam Law Siu Ping states that she had suffered some pain at the end of her spinal column and had not been able to take an active part in her outdoor activities as she had done so before, such as swimming badminton and kicking the shuttle-cock. She also complains of headaches and of dizziness but Dr. Wedderburn who examined her on 23rd September 1981, says that this latter condition which is due to concussion as a result of the accident would clear up completely after 2½ years, presumably from the date of the accident. He further states that with regard to her fractured pelvis that she had suffered no impairment and that she would be able to have normal labour and normal delivery if she were to bear a child.

17. She is now married and does not work any more although she had re-commenced work four months after the accident.

18. It has been submitted on her behalf that she should be awarded a sum of between $35,000 to $40,000 for pain and suffering and loss of amenities following the cases of:

19. The awards for the plaintiffs which were cited on behalf of the 2nd plaintiff law Siu Ping indicate that there was permanent disability in each of the victims and the injuries suffered were more serious. The 2nd plaintiff has now recovered almost completely and aside from her complaints of occasional headaches and dizziness which Dr. Wedderburn says would completely disappear in 2½ years time presumably from the date of examination she has not suffered any permanent disability.

20. She complains of some pain when taking part in her former sporting activities but these are not such as would interfere with her normal duties as a housewife, or even as a factory worker.

21. Taking all these circumstances into consideration I would award her a sum of $15,000 in respect of pain and suffering, and loss of amenities.

22. The deceased, FOK Kam-fai, died as a result of the accident and under the provisions of the Intestate Estates Ordinance, Cap29, his parents became entitled to a beneficial interest in his estate. As such, they sue in Action No.92 of 198w for damages under the law Amendment and Reform (Consolidation) Ordinance, Cap.23, and the Fatal Accidents Ordinance behalf of themselves, the estate and the surviving dependent brothers of the deceased - (1st plaintiffs).

23. Of the deceased's parents, only his mother, Madam CHEUK Wai-chi, gave evidence of his financial condition when alive, and of the contributions made by him and the other members of the family towards the family's household expenses.

24. In her evidence she says that the deceased was her eldest son, and at the time of his death was aged 19 years. He was employed as a delivery boy by the Tai Wah Metal Works Co. earning wages of $1,200 per month and according to his erstwhile employer Mr. WONG Ho-ming he was also entitled to a year-end bonus of $1,200, and a daily meal the value of which has been assessed at $7. The length of his working month was 26 days and the total monthly income, including the value of the meals which the deceased would have received, at the time of his death was:

$l,200 + $100 (1/12 of bonus) + $18w (26 days x $7)

= $1,482

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These figures, that is, the level of wages and bonus payable to persons in a similar occupation, have not been challenged, and are in my view reasonable having regard to the age of the deceased. The deceased had been working only for a period of 7 months prior to his death, and no account has been taken of the anticipated bonus payment in the amount of his contributions to the family's household expenses.

25. The deceased's mother says that out of his monthly wages of $1,200, he handed the whole of that sum to her, out of which she gave him $w0 per day and she calculates the total amount returned to him as $480 per month or $1w0 per week without considering that there are 7 days in a week and 30 days on the average in a calendar month. Her assertion that $720 per month, that is, $1,200 - $480 was the amount of his contribution towards the family's household expenses is incorrect although Counsel for the 3rd defendant has not challenge & this figure. In my view the maximum amount of his contributions, accepting her evidence as being true would have been $600 per month, and it is on this figure that the awards under LARCO and FAO claims will be based.

26. Madam Cheuk testifies that she is a hawker by occupation and at the time of her son's death, she was earning approximately $1.000 per month and this amount formed her contribution towards the family's household expenses. She does not know how much her husband earns, he, having been variously described as a clerk and a real estate broker, and his contributions to the household expenses amounted to only $500 per month. Of the other members of the family the deceased's w younger brothers, FOK Kam on now aged 16, and FOK Kam-kwan, now aged 13, are still in school. Of his two sisters, FOK Chui-yuk, aged 21, was working in a restaurant and she contributes the sum 6f $300 per month, while FOK Chui-ling, aged 18, works as an apprentice seamstress and out of her wages, she contributes the sum of $200 per month. The actual amount of the family's monthly income derived from the above mentioned contributions including that of the deceased is $2,600.

27. Seven members of the family lived in the same household but of these only five had all their meals at home - Mr. Fok had all his meals outside the house whilst the deceased shared only in the evening meal.

28. Madam Cheuk states that the whole amount of the contributions is used on household expenditure every month but she does not furnish a breakdown of how much is spent on each of the essential items which are included in household expenses, e.g. rent, food, clothing and school fees. The submission that the total sum of $2,600/7 or $370in round figures, would be the amount assigned to each member of the family as his share of the expenditure, whilst having some attractions does not take into account the non-participation of Mr Fok at all meals or of the deceased's participation as he shared only in 2 out of the 3 daily meals eaten by the family. Obviously his contribution to the family's expenses would be greater than $600 - $370 = $230 because at most, and this assuming that the deceased's share of the household expenditure is in other respects equal: the amount expended on him would not be in excess of $200. In the absence of tangible evidence, amore accurate figure cannot be postulated nor could this figure be more than pure guesswork. In this respect, I take comfort from (6) what Lord Diplock said in Gammell v. Wilson (H.L. (E.)): ⁽⁶⁾

"My Lords, if the only victims of fatal accidents were middle-aged married men in steady employment living their lives according to a well-settled pattern that would have been unlikely to change if they had lived on uninjured, the assessment of damages for loss of earnings during the lost years may not involve what can only be matters of purest speculation. But as the instant appeals demonstrate and so do other unreported cases which have been drawn to the attention of this House in cases where there is no such settled pattern - and this must be so in a high proportion of cases of fatal injuries - the judge is faced with a task that is so purely one of guesswork that it is not susceptible of solution by the judicial process. Guesses by different judges are likely to differ widely - yet no-one can say that one is right and another wrong."

29. As to whether FAO damages should be assessed first before considering LARCO damages. I will adopt the approach recently approved in Kowloon Motor Bus Co. (1933) Ltd. and Cheung Chi Shing v. Ng Kung (Administrator of the Estate of Ng Yuk Man, deceased): ⁽⁷⁾

For the purpose of estimating the LARCO award, I have to follow the principles enunciated in the WONG Sai-chuen⁽⁸⁾case for the assessment of the free balance of the deceased's income which would have passed into his estate, by

30. In the instant case, the deceased did not have to pay any tax so that the net income at the time of his death would be $1,200 + $120 or $1,320 per month. I have omitted from these figures the food allowance of $7 per day as this sum will have been expended on food and would in any event have been deducted as part of the cost of maintaining himself. There are no indications either that the deceased had any savings at the time of his death.

31. With regard to the deceased's personal expenditure his mother says that she gave him the sum of $20 per day and taking into account the deceased's background, status and income this amount would all have been expended on his clothing, travelling and entertainment and the total amount of $600 would be a reasonable deduction from his net income in the assessment of the LARGO award. Another deduction which would have to be made in arriving at the multiplicand would be the sum of $200 per month which I have calculated as being the amount attributable to his share of the family's household expenditure.

32. The free balance, allowing for these deductions, works out at $520 per month.

33. The pre-trial LARGO damages would therefore be $520 x 40 or $20,800 (A).

34. The deceased's erstwhile employer, Mr. WONG Ho-ming, states that if the deceased were still working for hit his wages would be $1,800 per month plus 1 month's wages as bonus at the end of the year and a meal allowance of $10 per day.

35. Even if I were to assume that the deceased's daily allowance from his mother had increased to $25 per day absorbing $750 of his wages, and that his share of the household expenditure had risen to $300 per month the free balance after these w deductions would yield a figure of $930 per month. This does not however take into account such purely speculative matters as his marriage and future offspring which would or would not reduce the amount of his free balance. Too many unknown factors would have to be brought into the calculation and I have therefore confined the assessment of the free balance for the post-trial lost years to the figure of $930 per month as being the multiplicand for the LARGO award. The deceased was 19 years of age at the time of his death and in similar cases a multiplier of 16 has been considered to be appropriate. The second portion of the LARGO award would therefore be $930 x( [16 x 127 - 40) or $141,360. (B)

36. The total LARGO award is $20,800 (A) + $141,360 (B) = $162,160. To this amount would be added the sum of $15,000, the conventional award for pain and suffering, and the amount expended on the deceased's funeral, $6.584, which has been accepted as being reasonable.

37. The 2 younger brothers of the deceased, (i) FOK Kam-on, born on 28th February 1967 and still a student, and (ii) FOK Kam-kwan, born on 28th January 1970, also a student, were partially dependent upon his contributions to the joint family income. Their dependency on the deceased falls to be decided in accordance with FAD but as there were several contributions to the family income pool besides the deceased their entitlement under FAO cannot be substantial. In arithmetical terms, their monthly dependency upon the deceased's contributions would be:

The proportion which this amount bears to the total amount of the family income multiplied by the deceased's contribution would yield the amount of their individual dependence upon the deceased's contributions, that is:

$460

______ x 600 or $106 per month each.

$2,600

38. None of the children of the Fok family furthered their studies beyond the age of 18 years and the award under FAD for future dependency of the w brothers will therefore be assessed on the basis that such dependency would have terminated when they reached the age of 18 years.

39. Each of the w brothers will therefore be entitled to an award of $4,240 for pre-trial FAD damages.

40. Using the projected income and contributions which the deceased would have earned and made at the date of trial and applying the aforementioned formula the dependency of each of the brothers would have increased to $131 per month.

41. The post-trial damages under FAD to be awarded to (i) FOK Kam-on are $131 x 18 or $2,358 and (ii) FOK Kam-kwan are $131 x 53 or $6,943.

42. The total damages awarded under FAD to

As between the 3rd defendant and the 1st and 2nd third parties, sicne I have apportioned their blame for the accident equally, the 3rd defendant is responsible for all losses and damage sustained by him and accordingly his claim against the lst and 2nd third parties is dismissed. I will now hear the parties on the interest to be paid on the various awards and also on costs.

(1) (1953)W.L.R. 1472

(2)H.C. Action No.3299 of 1977

(3)H.C. Action No.2528 of 1978

(4)H.C. Action No.2059 of 1979

(5) H.C. Action No.3982 of 1978

(6)  (1981) 2 W.L.R. p.253

(7) Civil Appeal No.7 of 1983

(8) Civil Appeal No. 133 of 1981

Representation:

Mr. Ramesh Sujanani (D.L.A.) for Plaintiffs.

Mr. Frankie Leung (Woo, Kwan, Lee & Lo) for 3rd. Defendant.

1st Defendant and 2nd Defendant in person.