Chan Yuk Sum v. Wong Pai Kwan and Another

HCA003091/1972

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

ACTION NO.3091 of 1972

-----------------

-----------------

Coram: Briggs, J.

Date of Judgment: 7 May 1973

-----------------

JUDGMENT

-----------------

1. The case arises out of a road accident which occurred on June 22, 1971 at about 9.40 p.m. and which resulted in the death of Ma Keung, a young man aged about 20.

2. The evidence called by the plaintiff as to the circumstances of the accident was very sketchy. The driver of the motor vehicle, which was involved in the accident, the first defendant, also gave evidence. And I find the following facts proved.

3. The scene of the accident is a road junction in Tsuen Wan, where Fu Yung Street joins Sha Tsui Road. Though Fu Yung Street cannot be properly desoribed as a minor road, Sha Tsui Road is a main Road. The weather was fine and the junction was well lit by street lights at the time. Sha Tsui Road is divided into two halves by a traffic island which runs down its centre. There is room for at least two lanes of traffic to travel on each separate half of the road. At the junction with Fu Yung Street there is a break in the traffic island so as to allow traffic coming from Fu Yung Street to proceed across Sha Tsui Road and to proceed down that road towards Kowloon.

4. On the night in question the 1st defendant was driving a car numbered AP 4826 along Sha Tsui Road in the direction of Kowloon. He was in the lane nearest to the centre of the road. The deceased came out of Fu Yung Street apparently with the intention of going to his right down Sha Tsui Road in the same direction as the defendant. The defendant first saw him when he was nearly across the first half of Sha Tsui Road i.e. when he was all but in the centre of that road. The defendant swerved towards the kerb of the road on his left as the bicycle turned to its right towards the direction of Kowloon. The result was that there was a collision between the two vehicles: the right or off side of the defendant's car colliding with the left side handle bars of the bicycle. The collision was of considerable force. For the defendant's car was badly scratched in its off side by the bicycle and the bicycle was damaged on its left hand or near side. In the result, the deceased fell to the road surface and received a fractured skull. He was removed to hospital but died the following morning.

5. A sketch plan made very shortly afterwards shows that the 1st defendant's car had made a skid mark on the road which was more than 68 feet long before coming to a rest. The 1st defendant said he applied his brakes when he saw the deceased, and sounded his horn. The reason for the skid marks was that at that part of the road there was some sand on the surface of the road, which was bordered at that point by a building site. The 1st defendant said that the deceased was riding without lights. He also said that he used his horn when he saw the bicycle and that he braked hard.

6. It is obvious that blame attaches to both parties. Sha Tsui Road is wide and straight. The junction with Fu Yung Street is easily detectable because it is marked with traffic beacons which, it is clear from the sketch plan, were lit at the time.

7. The deceased was on a bicycle. He must have heard the noise of the 1st defendant's car coming in his direction - there was no other traffic on the first defendant's side of the road. And he must have seen his lights. On the other hand the 1st defendant knew of the existence of the junction and should have taken care to keep a proper lookout against the possibility of traffic coming from that side. Also I think he was travelling much too fast. There is a speed limit in Sha Tsui Road of 30 m.p.h. But the 1st defendant must have been travelling faster than that as is evidenced by the length of the skid marks and the force of the collision. It was suggested that the accident was due to the defective brakes of the car driven by the 1st defendant. And after the accident he was convicted and fined, inter alia, for having defective brakes. But it would appear that the conviction referred to the hand brake and not to the foot brake. This is shown from the Vehicle Inspector's report which was put in by consent of the parties.

8. I think that the deceased was far more to blame than the 1st defendant and I have reached the conclusion that the deceased was 70% to blame and the 1st defendant was 30% to blame for the accident.

9. I now come to damages. First, damages under the Fatal Accident Ordinance. The special damages were agreed at $620. This sum represents damage to the clothing of the deceased and his funeral expenses. A sum of $120 was claimed for damages to the bicycle that the deceased was riding at the time of the accident. This should not have been included in the claim as the bicycle was the property of the employer of the deceased and not of the deceased himself. So no award will be made under this head. A claim was made for travelling expenses amounting to $300, but this was not substantiated at the trial and I make no award on this head. So the award of special damages is $620.

10. There was some dispute as to the age of the deceased. I will accept the evidence of his mother who said he was 20 at the time of his death. He was employed as a delivery boy by the Ming Fung Noodle Factory, Tsuen Wan, and was working for that firm when he met his death. He was receiving about $400 per month and in addition had free board and lodging. Out of his wages he allowed his mother $200 per month. He did not of course live at his parents' home which is in Tai Po.

11. The deceased was the eldest son and his dependants for the purpose of the Fatal Accidents Ordinance are his mother and a brother aged 13 and a younger sister aged 10. The statement of claim also mentions two other sisters. One aged 33 and one aged 16. Counsel for the plaintiff told me that the former was not a dependant: and the latter is now earning her own living and so is only minimally involved in these proceedings: at the time of the death of the deceased she was 15.

12. The deceased was not engaged to be married and his mother said that he did not have a regular girl-friend at the time of his death. However it is most probable that he would have married and that in a very few years. Upon marriage he would most probably have ceased to make contributions to the family household expenses since his wages would not have been enough. He would have needed all his money to establish himself as a married man. And the second daughter would soon be earning and making her contribution to the household expenses.

13. The dependency was stated to be $200 per month. The plaintiff was obviously an honest witness and I think I can safely accept her evidence as to this. In my view the correct multiplier to take is seven. Counsel for the plaintiff suggested a multiplier of 16.

14. If this had been a claim by a widow for the loss of her husband, of the family bread-winner, that might well not have been an incorrect figure. But this is a totally different type of claim. The deceased was making voluntary monthly payments to his mother, payments which would in all probability cease as soon as he branched out into life on his own. There is no question here of a duty of a husband to maintain his family for the duration of his working life. So the total is $16,800. Adding the special damages makes a total of $17,420; 30% of which is $5,256.

15. I now turn to damages under the Law Reform (Miscellaneous Provision) Ordinance. I will award the more or less conventional sum of $8,000 for loss of expectation of life. There was evidence that the deceased was conscious though unable to speak for a period of time after the accident and before his death. I will award $2,500 for pain and suffering. This makes $10,500 in all: 30% of which is $3,150.

16. On May 9, 1972 the plaintiff was awarded $16,020 under the Workmen's Compensation Ordinance in respect of the accidental death of the deceased. The matter was pleaded in the statement of claim and the plaintiff there prays that that sum shall be deducted from any sum which the Court may find to be due to the plaintiff in this action.

17. The relevant portion of section 25 of the Workmen's Compensation Ordinance reads as follows:-

This section first appeared in the Law in 1969: and I have been unable to find any reported case in which it has been discussed or interpreted.

18. It is obvious that the principle is that a person should not be entitled to recover damage for the same injury more than once. So far as we are here concerned the amount of a claim awarded under the Workmen's Compensation Ordinance is based on the wages earned at the time of the death of the workman in respect of whom a claim is made. Any sum awarded is intended to provide a sum like to that that the workman would have received had he not died, for a limited period. The compensation is for the benefit of his family. It is not a payment to the estate of the deceased. Similarly any sum awarded under the Fatal Accidents Ordinance is for the benefit of the dependants of the deceased. The two awards are analogous. It follows that under section 25 of the Workmen's Compensation Ordinance which I have quoted above, any sum awarded under that Ordinance must be deducted from any sum awarded under the Fatal Accidents Ordinance. In the present case the sum awarded under the former: hence the plaintiff will recover nothing under the Fatal Accidents Ordinance in this case.

19. The position so far as the Law Reform Ordinance is very different. Any sum recovered under that Ordinance is part of the estate of the deceased and will devolve according to the law of inheritance applicable at the time.

20. In a case like the present there is no question of any benefit being confined under this Ordinance to the dependants of the deceased. The deceased died intestate in June 1971 at which time the law was that the whole of his estate would descend to his father. His father is not a party to these proceedings but that is immaterial. The plaintiff as administratrix, can recover any amount due and will be accountable to the person who is entitled to it in law, namely to her husband.

21. I do not think that section 25 of the Workmen's Compensation Ordinance applies in such a case so as to deprive the person entitled to the intestable estate of that estate. It is true that the expression "workmen" includes the legal representative of the workmen: in this case the plaintiff for the purpose of section 25 of the Ordinance is "the workman". But the section does not go so far as to state that any award of compensation made under the Ordinance must be deducted from or set off against any sum of damages payable in an action brought by "the workman" against a third party: the Court is only to "have regard to the amount" of such award of compensation.

22. As I have said this is not a case where damages are in effect being claimed twice for the same injury.

23. It could happen that some deduction would have to be made. Supposing for example as was the case here, the employer of the workman paid the funeral expenses of the deceased. And further suppose that funeral expenses were claimed under the Law Reform and not under the Fatal Accidents Ordinance: in that case any amount so paid would have to be set off against an award under the Law Reform Ordinance.

24. In my view the plaintiff in this case is entitled to recover $3,150. This will be hold in trust by the plaintiff for the father of the deceased.

25. The plaintiff is to have her costs on the District Court Scale. The costs of the plaintiff are to be taxed under the Legal Aid Regulation.

Representation:

H.C. Miu (Peter Mark & Co.) for Plaintiff

Donnelly (H.A. Hoosenally & Co.) for Defendants.