Chan Lan v. Kan Wai Yan and Another
Read the full judgment text of HCA 1037/1979 on BabelCite. This High Court CFI judgment.
1. In this action the plaintiff, Madam CHAN Lan claims damages under the Fatal Accidents Ordinance in respect of the death of her husband which occurred as a result of a traffic accident on the 5th July 1978. There was originally pleaded in the Statement of Claim a further claim for damages for loss of consortium and services of the deceased, but that claim was clearly unsustainable in law and was at once and properly abandoned by counsel for the plaintiff when the action began.
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HCA001037/1979
----------------- Coram: Barker, J. Date of Judgment: 13th February, 1980. ----------------- JUDGMENT ----------------- 1. In this action the plaintiff, Madam CHAN Lan claims damages under the Fatal Accidents Ordinance in respect of the death of her husband which occurred as a result of a traffic accident on the 5th July 1978. There was originally pleaded in the Statement of Claim a further claim for damages for loss of consortium and services of the deceased, but that claim was clearly unsustainable in law and was at once and properly abandoned by counsel for the plaintiff when the action began. 2. The accident occurred at about 7.55 a.m. in the morning at Des Voeux Road near its junction with Wilmer Street Central in Hong Kong and the scene of the accident is depicted in the photographs which were produced before me P1 as is also the lorry which caused the injuries to the deceased which was being driven by the 1st defendant. The 1st defendant's lorry was going along Des Voeux Road in a westerly direction towards Kennedy Town and it so happened that at that time a lady called Mrs. YUNG Chim-Hing who lives on the 9th floor of a building on Des Voeux Road was putting some clothes up for drying and she looked out of the window and she saw a number of people standing on the pedestrian refuge which is in Des Voeux Road and which can be seen in photographs 7, 8 and 9. That refuge really consists of two bollards with a space in between and is depicted in the sketch plans P4 and P5. She said in evidence that she saw a lorry coming along the road travelling as she put it at quite a high speed. First she said "I did not pay any attention to it" and then she said she continued hanging up her clothes and then she heard a noise, a bang. She did not actually see the collision but she looked out and she said that she saw the deceased lying on the ground with his head towards the pavement and his feet towards the tram track. And she said earlier "I saw the vehicle going a little bit into the studded crossing", which is the area I was depicting which incidentally is governed by traffic lights. And the position of the vehicle after the accident can be seen on either of these sketch plans, two were produced to me, P4 and P5 largely because although there was no dispute as to the position of the vehicle after the accident the various parties that is Mrs. Yung and the 1st defendant had written into the plan the position of the vehicle slightly earlier on in the proceedings. 3. The 1st defendant himself gave evidence and there was produced to the court a statement which he gave to the police and which he confirmed in evidence was correct. That was produced P2 and the material part of that reads as follows:
and he said in evidence when he was examined, that he pulled the vehicle "a little to my right as I was passing the safety island, I was 2 to 3 feet away from the island" and then he agreed that the vehicle was eventually in the position shown on the sketch plan. He said that at the time he was approaching he noticed that there were persons intending to cross the road. That was his evidence which was indeed quite short. And there was also called before me the man who was riding as a passenger in the vehicle AU Chi-shing. He too had made a statement to the police. He too said that that statement, part of Exhibit P2 is correct and in that stagement he said that there were about 8, 9 pedestrians standing between two safety islands within the studded crossing of the traffic lights waiting to cross.
He said that he had seen the deceased in between these two safety islands as they approached and in effect what he said was that he saw the deceased looking in both directions away from the direction where the vehicle was travelling towards it and then away again. No one saw the deceased move in any direction at all and it is apparent from the photograph No. 10 and from the sketch plan that he was found after the accident still in between those two safety bollards. 4. In those circumstances I have to decide first whether there is any negligence on the part of the 1st defendant. And in my judgment there was. I find that what happened in this case was that the 1st defendant pulled out a little probably because he realised that if he kept on as he was there was a danger that he might strike one or more of the people the pedestrians who were standing in that refuge ground between the two safety islands. Thereafter he did as he said pull to the left but pulled too soon and pulled too much and that in so doing he struck the deceased with the rear nearside of the lorry which from the photographs No. 1, 2, 3 can be seen just overhang the rear wheels somewhat and it was in those circumstances the deceased sustained the injuries from which he died. 5. It was alleged in the defence that the deceased ran out running into or along or across the road way without regard to other road users including the 1st defendant. As I have already said there was simply no evidence whatsoever that the deceased did so run. 6. Mr. Ho in his address to me submitted that nevertheless I ought to conclude that the deceased must have moved otherwise he would not have sustained these injuries but I see no reason why I am compelled to draw that inference and I do not do so. He also submitted to me that if the deceased had been keeping a careful lookout he should have realised his danger and should have stepped back out of the way of the oncoming vehicle. That is in my judgment a counsel of perfection and one which ought not to be attributed to the deceased who may well have been taken by surprise and probably was by the movement of the vehicle to its left or nearside. In those circumstances in my judgment the plaintiff succeeds in full. It has not been argued in this case that the 1st defendant was driving other than as servant or agent or the 2nd defendant and indeed a certificate of ownership was admitted and put in before me, Exhibit P3. In the result therefore I find there will be judgment for the plaintiff against both defendants. 7. I then turn to the question of quantum. At the date of his death the deceased was 51 years of age so far as one knows in good health and working. The plaintiff was 54 years of age and the first question I have to decide is what is the appropriate multiplier to use in assessing the damages under the Fatal Accidents Ordinance. A number of cases were cited to me in one of which the Judge with a married woman of 50 took a multiplier of merely 7. That was the case which I shall have to refer hereafter of CHU Cheung-hing v. LEUNG Chin-chiu(1). I do not find that case of any assistance to me in assessing the multiplier for very often totally different considerations apply in the case of a woman from those which apply in the case of a man. In my judgment the proper multiplier to take, and it is the multiplier I do take, is one of 11. I pass then to consider the multiplicand. 8. At the time of his death the deceased was working for the Wai Shing Artificial Flower company. He had worked for them for just over 13 months and he was a clerk who kept the company's accounts. When he began work with that company he earned $1,100 per month. By the time of his death he was earning $1,200 per month because the company at the end of 1977 had given all its employees a pay rise of $100 a month. He had asked for and his employers were prepared to grant a further increase of $200 per month and that he would have got shortly after July 1978. In addition to that pay he got a bonus in the shape of one month extra pay after one year's work and two months extra pay after two years. And the evidence was and I accept it that if he had been working and earning now he would have been earning $1,540 per month, the reason for that being that it is apparently the company's policy to give a pay rise of 10 per cent at the beginning of their financial year which is the 1st April. So much then for the deceased's earnings. So far as I know he had no source of income other than his earnings in that employment. 9. One of his sons CHENG Wah-shun gave evidence before me. He had prior to his marriage about a year before his father's death had lived with his parents and he had seen the way in which his father looked after his mother; his mother is in fact illiterate and it is perfectly clear that the deceased did a great deal for the plaintiff and CHENG Wah-shun's evidence was that before his death his father gave 8 or $900 a month sometimes a little more, the rent being $320 a month. The plaintiff herself gave evidence. She said that her husband would give her $800 or $900 a month but when he got his bonus he would also give her $1,000 and in addition to that he would also buy her such clothes as she needed. In those circumstances I am of the view and I so find bearing in mind all the evidence as given that at the time of death the dependency was $950 per month. Shortly thereafter I am of the view and I so find that it would have risen to $1,050 per month and now it would be $1,150 per month. Evidence was given before me and in particular by CHENG Wah-shun that his father sent money to his children in Mainland China. According to CHENG Wah-shun it was usually between $200 and HK$300 per month. He produced four or five receipts which it is to be noted were not of that order and there was a letter from the bank P9 the Bank of Communications which confirmed those sums had in fact been sent but it is to be noted that the bank appears to have no record of any other remittances to Mainland China by the deceased or by his son on his behalf. It was said in evidence that it was the deceased's practice not to keep receipts after he had heard from Mainland China that the money had been received but I find it very difficult to understand why if remittances had regularly been sent and always via the Bank of Communications, and that was the evidence, that the bank would have no record of them. Yet the only records the bank has are those between February and May of 1977. 10. In these circumstances there is much force in Mr. Ho's submission to me that although the deceased may have made remittances from time to time these were not regular and were in fact more in the form of presents. I am not satisfied on the balance of probabilities that such remittances were made and I am not satisfied in these circumstances that there was any dependency over and above what I have already found. It is important from the point of view of interest that I should divide up the Fatal Accidents Damages because interest is payable on the dependency which I find existed between the date of the writ and today whereas no interest is payable on the future loss of dependency. So I award as follows. I award three months at $950 per month that makes $2,850 and I award seven months at $1,050 per month making $7,350 those two items totalling together $10,200 and there will be interest on that sum at a rate about which I will hear argument in due course. There will further be ten years and two months at $1,150 per month making a total of $140,300 on which there will be no interest and thus the total damages under the Fatal Accidents Ordinance for loss of dependency is $150,500. There was also a claim in the Statement of Claim for funeral expenses in the sum of $16,285. In my judgment the plaintiff is entitled to recover a reasonable sum in respect of the funeral which has been accorded to her late husband and in arriving at such reasonable sum due regard should be paid to the tradition, customs and religious rites of the deceased. But I emphasize that such a sum is only a reasonable sum. What is reasonable must depend on a large measure on the status and the standard of living of the deceased and the plaintiff. 11. There was a claim for the price of a grave and the site of a grave and the digging of the grave, the total of that being $5,450 and a further $200 for a tombstone. I was referred in argument to a case which I have already mentioned in this judgment CHU Cheung-hing v. LEUNG Chin-chiu(1), a decision of Mr. Justice Garcia. In that case the report reads:
I cannot help thinking that that case was misreported. If it was not misreported I respectfully disagree with it. In my judgment the cost of the grave and the grave site and the tombstone is a recoverable item and I therefore award under those heads $5,650. There is also a claim in total for $3,700 in respect of memorial services. In my judgment something is allowable for a memorial service but that sum is excessive and unreasonable and in respect of that item I allow the sum of $1,500. A claim was also made in the sum of $1,050 in payment of the booking of a niche for a memorial tablet at character Yu in the east block of the Tak Kow Chi Cheng Kok Co. Ltd. It may well be that such an act was proper but in my judgment that expense is not one which it is reasonable to lay at the feet of the defendants and I do not allow it. 12. It was the custom of the religion practised by the deceased and by the plaintiff that there should be food at the funeral and that there should be items of paper figures which are more particularly set out in the receipts which have been produced before me. Once again I am of the view that a reasonable sum should be allowed in respect of that but in my judgment the sum claimed by the plaintiff is excessive and I allow in respect of those items a sum of $2,000 and therefore in my judgment the total allowable in respect of funeral expenses is $9,150. Thus in total there will be judgment for the plaintiff against both defendants for the sum of $159,650. Let me make it clear in case this matter should go higher that in arriving at the dependency which I did, in arriving at the multiplicand, I did take into account the fact that in the future the plaintiff will no longer have to feed the deceased. It is always in cases like this exceedingly difficult to put a precise figure on what a deceased person costs in the family budget. In this case the evidence was that the deceased would normally have breakfast at home and the evening meal but it is quite impossible to quantify what the cost of his share of those meals would be and indeed the cost of one extra mouth in circumstances like that would be in my judgment very little but as I said and in order to make matters clear in arriving at the figures that I have given that is a matter which I have taken into account. 13. There will therefore be judgment accordingly. There will be interest on $10,200 at 5% from the date of the service of the writ which was the 6th April, 1979 to today's date and there will be interest on $9,150 from the 8th July of 1978 to today's date. The defendants to pay the plaintiff's costs to be taxed if not agreed the plaintiff's own costs to be taxed for the purpose of the Legal Aid Regulation. 14. This is a case where as I have found there was first of all no dependency in Mainland China. It follows that as the plaintiff is sui juris there is no question of this money having to come into court and I make no further order in this case. Representation: R.K. Sujanani (D.L.A.) for Plaintiff B.K. Ho (John Ip & Co.) for 1st & 2nd Defendants (1) [1979] H.K.L.J. 379 |