Yu Yuk Fung v. Pui Kee Iron Works (A Firm) and Others

HCA001375/1966

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

ACTION NO. 1375 OF 1966

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Coram: Blair-Kerr, J. in Court

Date of Judgment: 4 February 1970

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JUDGMENT

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1. The basic facts in this case are very simple. The sixth defendant is the registered owner of No.436 Chatham Road. It is a four-storey building situated at the corner of Chatham Road and Pak Kung Street. She purchased the premises in 1951 and the ground floor shop and upper floor flats have all been let to tenants. She and her husband, Ho Hoi Tin, reside elsewhere.

2. The water for the flushing system in the building comes from a well in the back yard facing Pak Kung Street. There is a pump in the yard; and the water is pumped up from the well through pipes to a tank on the roof.

3. In November 1965, Ho Hoi Tin received complaints from the tenants that the flushing system was not working properly. On the recommendation of some friend, he consulted one Kwok Pui who carried on a plumbing contractors business nearby under the name Pui Kee Iron Works (first defendants). He told Kwok that the water pump was not working properly, and he asked him to have a look at it. Kwok did so and his advice was that the pump had to be replaced and all the fittings repaired. Having discussed the nature of the work to be done, on 30th November 1965 Kwok gave Ho an estimate of the cost of the repairs. It reads as follows:-

Ho agreed to the work being carried out by the first defendants.

4. The old pump was dismantled on 5th December; and, on the 6th December, between 9 - 10 a.m., four workmen employed by the first defendants (second, third, fourth and fifth defendants) began to pull up the old pump. After the old pipe had been raised to a very considerable height, a piece broke off and struck Cheung Lung, a male pedestrian who was lawfully walking along the pavement in Pak Kung Street adjacent to the spot in the yard where the operation of pulling up the old pipe had been carried out. The pipe struck Cheung on the head causing a fracture of his skull and laceration of his brain from which injuries he died shortly afterwards.

5. The plaintiff is the widow of the deceased and administratrix of his estate; and she brings this action for the benefit of herself and her four children under the Fatal Accidents Ordinance and on behalf of the deceased's estate under the Law Reform (Miscellaneous Provisions) Ordinance. She claims that the second, third, fourth and fifth defendants were negligent in that they:-

6. The plaintiff says that if the second, third, fourth and fifth defendants were negligent, the court must give judgment against the first defendants because the second, third, fourth and fifth defendants were the servants of the first defendants, and that the first defendants are liable for the negligence of their servants committed in the course of their employment.

7. The first defendants vis-a-vis the sixth defendant were, of course, independent contractors. But the plaintiff says that the facts of this case fall within one of the well-recognised exceptions to the general rule that an employer is not liable for the negligence of an independent contractor or his servants in the execution of the contract. She says that the work which the first defendants were employed to perform was work adjoining a public highway, work which was, by its nature, likely to involve danger to persons using that highway; that, the sixth defendant had a duty to persons lawfully using the highway, a duty which she could not delegate, and that accordingly she herself is liable not only for her own negligence but for the negligence of the contractor and his servants.

8. In their statement of defence (as amplified by further particulars supplied) the first defendants alleged that their workmen took all reasonable precautions during the carrying out of the plumbing work at 436 Chatham Road, and that the deceased's death was due to an inevitable accident. They alleged that:-

9. No appearance was entered by the third, fourth and fifth defendants; and, before the Registrar, interlocutory judgment was entered against them, damages to be assessed. The second defendant entered an appearance; but he did not file a defence to the statement of claim. When the action came on for trial before me on 19th January, counsel for the plaintiff asked for judgment against the second defendant; and I acceded to that application.

10. A number of photographs (Exs.1A-E) were put in evidence. Ex.1A is a view of Pak Kung Street looking away from Chatham Road. Ex.1B is a photograph of the same area in Pak Kung Street but looking towards the junction of Chatham Road and Pak Kung Street, Ex.1D shows the boundary wall of the premises adjacent to the pavement in Pak Kung Street with the bamboo fence on the top of the wall.

11. The parties asked me to view the premises; and I found this most helpful. Furthermore, as a result of the visit Mr. Swaine (counsel for the plaintiff) and Mr. Martin Lee (counsel for the sixth defendant) were able to agree a sketch plan showing the yard between the wall of the premises facing Pak Kung Street and the pavement in Pak Kung Street. It was put in by consent as Ex.9. Kwok Pui (the sole proprietor of the first defendant firm) was present at the scene when the measurements were taken. When he subsequently gave evidence he agreed that the measurements as shown in the sketch were substantially correct; and, although the sketch is not drawn to scale, there is no issue between the parties on such matters as the height of the boundary wall and the bamboo fence above it, or the height of the pump-house which was about the same height as the boundary wall, viz. 8 1/2 - 9 feet.

12. The plaintiff called a woman named Lau Lai Kuen who was described as a rubbish collector. She said that she was walking along Pak Kung Street in the direction shown in photograph Ex.1A, when she received a glancing blow on the left shoulder and left upper arm by a metal pipe. She said she heard two cries from a man walking immediately behind her, that she looked round and saw deceased lying on the ground bleeding from the head. She said that there was a piece of iron piping lying on the pavement close to his head.

13. She was present during the visit to the premises and she pointed out the position of the body. It was lying across the pavement at an angle with the head about 3 feet from the boundary wall. It was about 4 paces from the scavenging lane and about 8 paces from the old metal door of a shop (Joseph Chiu & Co., Ltd.) which occupied the ground floor of the premises at the corner of Chatham Road and Pak Kung Street. The scavenging lane and the old metal door are shown on the sketch plan (Ex.9) and the metal door is marked with an X on photograph Ex. 1B.

14. Lau Lai Kuen said she saw two pipes on the pavement, one rather shorter than the other; and that there was a rope tied round the end of the longer of the two pipes. No police witness was called to say what the police officers saw when they arrived on the scene. However, the photographs (Ex.1) were taken by the police. They appear to show one pipe lying diagonally across the pavement; and, in their closing addresses, counsel did not appear to regard the question of whether there were one or two pipes as one of importance. As Mr. Swaine said, it may well be that the deceased was struck with the end of the one pipe shown in the photo and that the pipe as it fell on the ground brushed the left shoulder and arm of Lau Lai Kuen. This witness obviously gave her evidence honestly and I have no reason to doubt the accuracy of what she said as regards the position of the body; but she was not very intelligent; and, after a period of 4 years, memories are apt to become dim as regards points of detail. The second and fourth defendants were called as witnesses on behalf of the first defendants; and their evidence was to the effect that one portion of this pipe which they were pulling up from the well broke off. Indeed, they both identified this pipe shown in photograph Ex.1A as being that portion. There is no doubt in my mind that it was the pipe shown in Ex.1A which killed the deceased.

15. Kwok Pui gave evidence. He admitted that he agreed to undertake the work of replacing the water pump and the pipe from the new pump down to the well. I reject entirely any suggestion in the evidence that he left it to the discretion of his workers as to whether the old pipe should or should not be removed. There is no question but that the job envisaged by all parties was the removal of the old pipe and the installation of new pipes of a slightly different diameter. The diameter of the old pipe was 1 1/4 inches; the diameter of each of the two new pipes to be installed was 1 inch. ...(illegible) go down the well because of the presence in the well- shaft of some poisonous gas. There was some suggestion in the evidence that but for this poisonous gas the second, third, fourth and fifth defendants would have gone down the well and have endeavoured to dismantle the pipe into three parts either by the use of a screw wrench or a hammer or both, and that the three parts of the pipe would then have been raised to the surface one by one means of a rope. I do not accept this evidence. The operation which was envisaged by all parties was that the old pipe should be disconnected from the old pump and pulled up from the bottom of the well by workmen standing in the yard.

16. Kwok Pui admitted that the second, third, fourth and fifth defendants were his servants and that he told them to carry out the work which he had contracted to do for the sixth defendant. He came to the premises with his workmen on 5th December 1965; but he was not present on 6th December; and he was not present when the old pipe was pulled up.

17. The second and fourth defendants said in evidence that they and the fifth defendant tied a rope round the end of the old pipe and began to pull it up from the well; that the third defendant was standing on the top of the pump-house shouting warnings to pedestrians in Pak Kung Street to keep clear as the pipe was lifted higher and higher; that he held in his hand a rope which had been tied round the end of the pipe to prevent it swaying in any direction; but that unfortunately 3 feet of pipe broke off and fell on the roadway.

18. I reject entirely all allegations that the third defendant (who did not give evidence) or any other person shouted warnings or that any person took any step to warn passers-by that the pipe was being pulled up from the ground.

19. It is clear from the evidence that the old pipe was very rusty. All efforts to unscrew the joints failed; and no effort was made to cut the pipe into sections by means of a metal saw.

20. There was no evidence as to the exact depth of the well; but Kwok Pui said that the new pipes to be installed were 35 feet and 30 feet respectively. It is reasonable to assume that the old pipe was in the region of 35 feet long - certainly not less than 30 feet.

21. The fourth defendant, with some reluctance, agreed that it was a matter of some importance that the end of the pipe should not fall against the building and break the windows of the upper floors. No doubt that was why the third defendant stood on the top of the pump-house with the rope in his hand. The pipe was pulled up to a very considerable height. It may or may not have been leaning against the wall of the pump-house; but clearly the top end of it had reached a height well above the top of the bamboo fence (which was 10 feet above the top of the boundary wall) when about 10 feet of it broke off. The pipe shown in the photographs is obviously about 10 feet long.

22. It should have been obvious to these workmen that this pipe was old and rusty and liable to break. In my view they never gave a thought to the safety of pedestrians walking along Pak Kung Street; and they were, one and all, clearly negligent. They were negligent in the course of their employment by the first defendants; and, unquestionably, the plaintiff must be given judgment against the first, second, third, fourth and fifth defendants.

23. As regards the sixth defendant, the facts are really not in issue. She left the matter entirely to her husband who in turn left the matter entirely to the first defendants. But the sixth defendant's husband knew from the tender that new pipes were to be installed in the well; and it is reasonable to assume that, if he had thought about the matter at all, he would have realised that the whole operation involved the removal of the old pipe from the well. It was not suggested that he knew how deep the well was. He took no steps to find out. As I have said, he simply left the first defendants to get on with the job and he took no precautions of any kind against injury to pedestrians in Pak Kung Street. The plaintiff says that the sixth defendant ought to have done so. She relies upon the following passage from the judgment of Bruce, J. in Penny v. The Wimbledon Urban District Council and Iles⁽¹⁾ which was approved by A.L. Smith L.J. on appeal⁽²⁾:-

".................... when a person employs a contractor to do work in a place where the public are in the habit of passing, which work will, unless precautions are taken, cause danger to the public, an obligation is thrown upon the person who orders the work to be done to see that the necessary precautions are taken, and that, if the necessary precautions are not taken, he cannot escape liability by seeking to throw the blame on the contractor."

In further support of the plaintiff's case against the sixth defendant, Mr. Swaine cited the following passage from 25 Simonds page 499 paragraph 962:-

"An employer who employs an independent contractor to execute a work from which, in the natural course of things, injurious consequences to others must be expected to arise, unless measures are adopted by which such consequences may be prevented, is bound to see that everything is done which is reasonably necessary to avoid those consequences. He cannot therefore relieve himself of his responsibility in such a case by proving that he had delegated the performance of this duty to the contractor employed to do the work or to some independent person, however competent the contractor or delegate may be."

24. My note of Mr. Swaine's submission on behalf of the plaintiff reads:-

25. Mr. Swaine also referred to Honeywell v. Larkin⁽³⁾ and Walsh v. Holst and Co. Ltd. and others⁽⁴⁾.

26. Mr. Martin Lee submitted that the replacement of an old pump and the piping down to a well in the backyard of a person's premises cannot possibly be regarded as an inherently dangerous operation; and that in this case the sixth defendant was not obliged to take any precautions to prevent injury to passers-by in Pak Kung Street. Counsel referred to Padbury v. Holliday and Greenwood (Limited) and another⁽⁵⁾, and laid stress on the distinction drawn by Lord Justice Fletcher Moulton at p.495 that:-

".......... before a superior employer could be held liable for the negligent act of a servant of a subcontractor it must be shown that the work which the subcontractor was employed to do was work the nature of which, and not merely the performance of which, cast on the superior employer the duty of taking precautions."

He also referred to Dalton v. Angus⁽⁶⁾, Pearson v. Cox⁽⁷⁾ and Tarry v. Ashton⁽⁸⁾.

27. The general principles of law are not in issue between the parties. In the 4th Edition of Charlesworth on Negligence it is said:-

"An employer is not liable for the negligence of an independent contractor or his servants in the execution of his contract. Unquestionably, no one can be made liable for an act, or breach of duty, unless it be traceable to himself or his servant or servants in the course of his or their employment. Consequently, if an independent contractor is employed to do a lawful act, and in the course of the work he or his servants commit some casual act of wrong or negligence, the employer is not answerable. For example, if a man has his lorry repaired by competent motor repairers, or his lift repaired by competent engineers, or his premises rewired by experienced electrical contractors, in each case he is not liable for damage caused by their negligent work: Likewise a building owner who engages an architect, whom he reasonably believes to be competent is not in general responsible for the architect's negligence, since he has no control over the manner in which the architect does his work."

28. There are a number of exceptions to this general rule; and, as pointed out in Charlesworth (para. 180) the law casts a special duty upon owners or occupiers of property who employ contractors "to perform, upon or adjoining the highway, work which is likely to involve danger to persons using the highway". However, as pointed out in Charlesworth (para. 182), "even when an employer is liable for the negligence of an independent contractor in doing what he has contracted to do, he is not liable for the casual or collateral negligence of the contractor". Lord Blackburn in Dalton v. Angus⁽⁶⁾ said:-

"Ever since Quarman v. Burnett it has been considered settled law that one employing another is not liable for his collateral negligence unless the relation of master and servant existed between them. So that a person employing a contractor to do work is not liable for the negligence of that contractor or his servants. On the other hand, causing something to be done, the doing of which casts on him a duty, cannot escape from the responsibility attaching on him of seeing that duty performed by delegating it to a contractor."

29. In Penny⁽²⁾, Romer L.J. said:-

"When a person, through a contractor, does work which from its nature is likely to cause danger to others, there is a duty on his part to take all reasonable precautions against such danger, and he does not escape from liability for the discharge of that duty by employing the contractor if the latter does not take these precautions. I desire to point out that accidents arising from what is called casual or collateral negligence cannot be guarded against beforehand .........."

The headnote to the report of Penny⁽²⁾ reads:-

30. In Tarry v. Ashton⁽⁸⁾, the occupier of property maintained a lamp which projected over the highway. He employed a person to carry out certain repairs to it during the course of which the lamp fell on the highway and injured a pedestrian. An examination of the lamp revealed that the fastening by which it was attached was in a decayed state. It was held:-

".......... if a person maintains a lamp projecting over the highway for his own purposes, it is his duty to maintain it so as not to be dangerous to the passengers; and if it causes injury owing to want of repair, it is no answer on his part that he had employed a competent person to repair it."

The headnote to the report of Padbury⁽⁵⁾ reads:-

In Walsh⁽⁴⁾, the headnote to the report reads:-

31. In Walsh⁽⁴⁾ the Court of Appeal had grave doubts as to the correctness of the trial judge's finding that the plaintiff had been hit by a brick from the building. Sellers L.J. said (p.40):-

"The more I have heard of this case the more difficult have I found it to accept the probability that the plaintiff was hit on the head by a brick from the building in question having the scaffolding erected in front of it; but before this court the finding of the learned judge that that is how the accident happened was not seriously attacked .......... the question of liability of the defendants has therefore to be considered in that light."

At page 36, Hodson L.J. said:-

"No one knows how or why the brick fell, and the plaintiff contends that res ipsa loquitur for the brick speaks just as the barrel of flour in Byrne v. Boadle [(1863) 2 H and C 722]. In his judgment Pollock C.B. used the following language (ibid at p.728):

And at p. 37 Hodson L.J. said:-

"I am of opinion .......... and in this I differ from the learned judge, that the plaintiff established a prima facie case against both the contractors and the occupiers, and in the absence of any evidence to show that there was no negligence in the conduct of the operations, the plaintiff would, I think, have been entitled to succeed."

32. In this case it is admitted that the sixth defendant took no precautions of any kind to prevent accidents occurring, and I have found that the other defendants took none. ...(illegible), therefore, the dissenting judgment of Morris L.J., most enlightening. At pp.37 and 38 he said:-

"I would be in favour of allowing this appeal. As Denning L.J. pointed out in his judgment in Mint v. Good [(1950) 2 A.E.R. 1159] the law of England has always taken particular care to protect those who use a highway and puts on the occupier of adjoining premises a special responsibility for the structures which he keeps beside the highway .................... When the occupiers decided to have work done which involved cutting away parts of a wall abutting the highway, which might mean that some of the bricks in the wall would be insecure in positions above the highway, they became in my judgment under a clear duty to take care to avoid the risks of injuring passers-by. The law does not impose unreasonable burdens, but it exacts a standard of care which is directed by the circumstances. If someone chooses to take away bricks from a wall which is at a height above a street, it is not unreasonable to require that he will not thereafter leave them so placed or poised that they will not fall in the street. Nor, if he loosens bricks and leaves them perilously supported so that if they become dislodged they would fall into the street, is it unreasonable to require that he must arrange a place to receive them if they do come away. The seriousness of consequences must be a factor in assessing the quality of the care which is requisite. A falling brick might easily cause a death .......... Any reasonable man would foresee these potential perils to users of the highway. While standards of reasonableness must be adhered to, it is no answer if an accident occurs which by using care could have been avoided to say that certain safety measures or precautions were taken which nearly succeeded .......... While the plaintiff was lawfully and ordinarily using the highway a brick fell on his head which came from this building."

And at p.39 Morris L.J. said:-

"The duty of the occupiers to take care that bricks are not dropped from their building on to passers-by in the street is not in abeyance because they employ contractors to do work on their building. They cannot in the present case claim absolution on the basis that there was some 'casual act of wrong or negligence' on the part of their contractors. Neither the occupiers nor the contractors can explain the matter. How then can the occupiers say that it resulted from some casual act on the part of the contractors. The removal of bricks from the wall abutting the street and the reconstruction of such wall were essential parts of what the contractors were employed to do .......... It is manifest that the contractors and occupiers owed a duty to take great care to ensure that bricks should not fall on passers-by."

33. Clearly the facts of the present case can not be equated with the case of a person employing an architect to build a house. The average house-holder cannot be expected to criticise an architect's plans and tell him that he has miscalculated his stresses and strains. On the other hand, some of the decisions are not altogether easy to reconcile; and the distinction between the nature of work and the performance of such work is sometimes a subtle one. If it is true to say that the law takes particular care to protect those who use a highway and puts on the occupier of adjoining premises a special responsibility, it is difficult to see how in Padbury⁽⁵⁾ the occupier was held to be not liable for the negligence of a subcontractor's workman who placed a tool on a window sill where it was liable to be knocked over and to fall on the highway. It seems to me that in the light of some of the dicta in Walsh⁽⁴⁾, the decision in Padbury⁽⁵⁾ might well have gone the other way.

34. I do not think there can be any doubt but that the sixth defendant's husband, if he had thought about the matter at all, should have realised that the work which he had employed the first defendants to do, involved the pulling up of the old pipe out of the well. It is no answer for him to say: "I did not know how deep the well was and I never thought that the length of piping to be pulled up would be 30' at least i.e. 10 feet higher than the top of the bamboo fence." The well was on the sixth defendant's property; and it was up to her to ascertain the depth of it. The well-shaft was narrow; and she ought to have realised that a pipe which had been down a well for many years might well be rusty and liable to break; and that the pulling up of 30' of such piping was an operation likely to cause danger to persons lawfully using the adjoining highway. There is nothing technical about the pulling up of such a pipe. It is a matter of common sense if one stops to think about it. I do not think that this is a case of casual or collateral negligence on the part of the contractor's workmen. The pulling up of the pipe was part of the work which had been contracted to be done; and I do not think it is a sufficient answer for the sixth defendant to say:- "I never thought the workmen would have been such fools as not to dismantle the pipe, if need be by sawing it through in several places." The fact is that she and her husband did nothing to mitigate the danger involved in the pulling up of this 30' rusty pipe; and in my view they were negligent, and liable for the negligence of the first defendants' servants.

35. There will therefore be judgment for the plaintiff against the sixth defendant.

36. As regards the items of special damage, it was not in dispute that the cost of taking out letters of administration was $273; and that the expenses relating to the funeral were $1,200. As regards pain and suffering, the evidence was that deceased's brain was lacerated. Lau Lai Kuen said that she heard two cries. But having sustained such brain injuries, deceased could not possibly have retained consciousness for any appreciable length of time. I do not think this calls for any special award of damages.

37. As regards loss of expectation of life, I think that, in all the circumstances, an award of $7,500 would be appropriate.

38. Turning now to the damages to be awarded under the Fatal Accidents Ordinance, as so often happens in these cases, the court has been left with very little information. At the time of his death in 1965, the deceased was 47 years of age, and his wife was 44. The eldest child is a boy who is now aged 17. He works at a bean curd stall and earns about $150 per month. According to the plaintiff, he lives at his place of work but returns home on 3 or 4 occasions per month. She said in cross-examination that he gave "all his money" to her. That, of course, can not be accurate. Clearly he is self-supporting and he is not dependent upon his mother at all; and what she probably meant by stating that he gave her "all his money" was that he gave her $150 per month.

39. The deceased also had three other children by his wife, all girls. They live with the plaintiff; they are now aged 13, 8 and 5; and they are dependent upon her.

40. The plaintiff said in evidence that in 1964 her husband was earning about $500 per month as a paint scraper; but that in 1965 he gave up this work and set up a stall in Pak Kung Street selling cups of coffee. She said that in 1965 he gave her $8 per day to enable her to buy food for the household; and that he paid the rent of $18 per month for their accommodation in a Resettlement Estate, that he paid for all their clothing and indeed for all other family expenses; but she was unable to say what his total monthly earnings were, presumably because he had not told her; and, it may be, he had not been running the coffee stall for a sufficiently long period to enable her to give the court any reliable figure.

41. During his life time she helped her husband at the coffee stall as well as doing her housework. Since his death she has run the stall herself; and she said that she was now making about $200 net profit per month.

42. Mr. Swaine submits that in calculating damages under the Fatal Accidents Ordinance, I should disregard the fact that the plaintiff is now earning $200 per month from the coffee stall. His authority for this is the decision in Buckley v. John Allen & Ford (Oxford) Ltd.⁽⁹⁾. This was a case in which a widow, after her husband's death, continued to occupy the original family house as a protected tenant and earned a certain amount of money by sub-letting three of the rooms. At p.542 Phillimore J. said:-

"It seems to me that my duty is to award a sum that will put her back in the position that she enjoyed at the time of the deceased's death, and in my judgment she is not to receive less if she has taken in lodgers, any more than if she had sold this house and started a lodging house somewhere else."

Similarly, Mr. Swaine asks me to disregard the fact that the eldest son now helps his mother to some extent by giving her $150 per month because the principle is that the widow should be restored to the position she was in prior to the death of her husband. Counsel reinforced this by the further submission that the court should not speculate on what the position might have been if the deceased had remained alive and had been able to give his son, say, a secondary education of some kind.

43. When dealing with a case involving persons living at minimum subsistence level, the wife helping her husband to make ends meet, and then he is killed and she struggles on to keep alive as best she can, it is by no means easy to say to what extent she and her children were "dependent" upon him. As a paint-scraper he was earning $500 per month. In the pleadings it is alleged that he was making $400 per month profit at the coffee stall; but, as I have said, the stall had not been going for very long and there was insufficient evidence for me to say what the average takings would have been.

44. In the circumstances, Mr. Swaine submits that no court can do more than rough and ready justice; and he asks me to fix the dependency at $8 per day, this being the sum which the deceased gave his wife to buy food for the family.

45. I do not think that I should take any account of the fact that the eldest son is at present helping his mother financially. In a few years' time, he will presumably marry and have his own family obligations to discharge. The eldest girl is 13 and, in a few years it may be presumed that she will cease to be dependent upon her mother; but it will be some time before the two younger children aged 8 and 5 are able to fend for themselves.

46. There is no evidence that the deceased and his wife did not enjoy normal good health; and, according to the Hongkong Life Tables prepared by the Commissioner for Census and Statistics, the deceased's expectation of life in 1965 was 27 years, and that of his wife somewhere between 33 and 37 years. In the normal course, therefore, it may be assumed that, barring accidents, the deceased should have lived till he was 74; but it is probably safer to assume that the wife's dependency would have continued during the period of the deceased's working life; and I shall assume that he would have continued to work at his coffee stall till he was 65.

47. If the dependency is taken at $8 per day, this is equivalent to $240 per month or $2,880 per year. If it is assumed that the deceased would have continued to work till he was 65, that is to say for another 18 years, on this basis the total of the annual sums which, it may be assumed, the plaintiff would have received would have been $51,840. If this sum is decapitalised to its present value on the basis of 7%, the result is $28,969.92. This figure is obtained by multiplying the annual dependency ($2,880) by the number of years' purchase viz. 10.059, as given in Parry's Valuation Tables (8th Edition) at page 30. If the decapitalisation is carried out on the basis of 8% the result is $26,991.36. This figure is obtained by multiplying the annual dependency by the number of years' purchase viz. 9.372 as given in Parry's Tables at page 30.

48. Mr. Swaine, using the capitalisation method asks me to adopt a multiplier of "15 or perhaps a little less". If multipliers of 15, 14, 13, 12 and 11 are used, we get the following figures:-

49. In asking me to take $8 per day as the basic figure upon which to calculate dependency, Mr. Swaine was working on present-day prices; that is to say no allowance had been made for depreciation in the purchasing power of the dollar over the next 18 years. No doubt Mr. Swaine took account of this factor when he suggested that I should use a multiplier of "15 or perhaps a little less" instead of multipliers of 9 or 10. I know that there are two schools of thought on the question of whether any allowance should be made for depreciation in the value of money. In Taylor v. O'Connor reported in the Times of 22nd January 1970, Lord Reid is reported as having said that:-

".......... he was aware that there was a school of thought which held that the law should refuse to have any regard to inflation and that calculations should be based on stable prices, steady and slowly increasing rates of remuneration and low rates of interest. He said that must be based either on an expectation of an early return to a period of stability or a nostalgic reluctance to recognise change. Few believed that a return to the old financial stability was likely in the foreseeable future. Though taking account of inflation would no doubt cause complications and make estimates even more uncertain, it would be quite unrealistic to refuse to take it into account."

It is sometimes said that in recent years money has lost its value, and will continue to lose its value, at the rate of 3% per year. Be that as it may, I certainly feel that some account should be taken of inflationary tendencies.

50. In a number of decisions during the last 20 years or so, courts have suggested that whatever gross figure is reached either by the capitalisation method or by the decapitalisation method, the figure arrived at should be further discounted to take account of further possible contingencies such as the wife remarrying, the husband being killed by a bus or becoming blind and unable to work. But I think that the courts tend to give too much weight to this approach. In some future case, I hope I shall be given some evidence as to how life expectancy tables are compiled. Presumably they are based largely on the records of deaths in the office of the Registrar of Births and Deaths; and I should have thought that when a court looks at a column of figures headed "mean expectation of life", it is entitled to assume that such figures take account of the chances of premature death by accident and disease. Of course, they do not take account of ill-health resulting in total or partial incapacity for work; and courts must make some allowance for that.

51. I do not think that selling coffee at a street stall can be said to be a hazardous occupation; and I have no hesitation in saying that in this case I am making no allowance in respect of the possibility of the wife remarrying.

52. In capitalising the present value of loss of future earnings, I think that 8% is a reasonable figure; and, taking the broad view, I think that the present value of loss of future earnings should be fixed at $34,000. In doing so, I am, in effect, saying that I think the loss in purchasing power of money over the next 18 years will be considerably more than any deductions which I might otherwise have been disposed to make from the $26,991.36 in order to take account of such contingencies as premature incapacity for work. However, the $7,500 awarded under the Law Reform (Miscellaneous Provisions) Ordinance has to be deducted from the $34,000, and the net figure is therefore $26,500.

53. There will therefore be judgment to the plaintiff against all defendants in the sum of $35,473, that is to say:-

54. However there was evidence (which I accept) that after the accident the sixth defendant paid the plaintiff $500 and the first defendants paid her $200. They should be given credit for having made these payments.

55. The plaintiff will have her costs.

56. I should like to hear counsel's submissions regarding the manner in which the damages should be apportioned.

4th February, 1970.

Coram: Blair-Kerr, J. in Court.

Court:- I accept counsel's submissions as regards the manner in which the award of damages be apportioned, that is to say, giving the 6th and 1st defendants credit for the $500 and $200 already paid by them:-

57. It is ordered that $2,000 be paid to the widow within 3 days; the balance of $32,773 to be paid into Court within 14 days. Liberty to the Defendants to apply for a stay of execution.

58. The Plaintiff's costs to be taxed and paid under Legal Aid (Scale of Fees) Regulations.

Representation:

J. Swaine (Messrs. Hastings & Co.) for the Plaintiff.

Martin Lee (Messrs. Woo & Kwan) for the 6th Defendant.

1st Defendant in person.

(1) (1898) 2 Q.B. p.212 at p.217.

(2) (1899) 2 Q.B. p.72 at p.76.

(3) (1934) 1 K.B. p.191.

(4) (1958) 3 A.E.R. p.33.

(5) (1912) 28 T.L.R. p.494.

(6) (1881) 6 A.C. p.740 at p.829 and p.831.

(7) (1877) 2 C.P.D. p.369

(6) (1881) 6 A.C. p.740 at p.829 and p.831.

(2) (1899) 2 Q.B. p.72 at p.78.

(8) (1876) 1 Q.B.D. p.314.

(9) (1967) 1 A.E.R. p.539.