Read the full judgment text of HCA 005581/1980 on BabelCite. This High Court CFI judgment was delivered on 13 October 1981 before Mayo, J..
Civil law – Fatal Accidents Ordinance Cap. 22 – Law Amendment and Reform Ordinance Cap. 23 – motor vehicle accident – pillion passenger killed in collision with bus at intersection – both motorcyclist and bus driver employees of ICAC and KMB respectively – contributory negligence – apportionment of liability – vicarious liability – 'Lost years' damages – dependency assessment – multiplier – deduction between FAO and LARCO awards – prevention of double recovery – gross salary percentage approach Facts: Leung Yin Yee, aged 31, an ICAC employee, was killed on 20 September 1979 when the motorcycle on which she was a pillion passenger, driven by her ICAC colleague (2nd Defendant), collided with a bus owned by the Kowloon Motor Bus Co. (3rd Defendant) and driven by Tong Hoi (4th Defendant). The bus was pulling out from a bus bay into the main carriageway of Nam Cheong Street at the intersection with Tai Hang Sai Street. The 4th Defendant had been convicted of dangerous driving causing death, reversing the burden of proof. The deceased, her husband (the Plaintiff), and her parents lived together in the parents' flat with family finances pooled. The deceased earned $2,460 per month plus a 25% gratuity at the end of each contract, and contributed $2,000 per month to her mother for general family living expenses. Liability: The court found the 4th Defendant negligent in failing to keep a proper lookout when pulling out from the bus bay, and the 2nd Defendant contributorily negligent for not keeping a proper lookout and driving at excessive speed downhill. Apportionment was 1/3 to the 2nd Defendant and 2/3 to the 4th Defendant. The 1st Defendant (Attorney General sued on behalf of ICAC) was vicariously liable for the 2nd Defendant, and the 3rd Defendant (KMB) was vicariously liable for the 4th Defendant. Quantum under Fatal Accidents Ordinance Cap. 22: The Plaintiff, the deceased's parents were accepted as dependants. The court assessed dependency at $1,000 per month in total – $500 to the Plaintiff and $500 to the parents (equally divided). A multiplier of 8 years was applied, giving $96,000 to the parents. The Plaintiff received no FAO award because he claimed lost years damages under the Law Amendment and Reform Ordinance Cap. 23. Quantum under Law Amendment and Reform Ordinance Cap. 23: Loss of expectation of life was assessed at $15,000 (following Yeung Wing v. V.S.L. Engineers). The court upheld the 'lost years' head of damages following V.S.L. Engineers and Gammell v. Wilson [1981] 1 All ER 578. The court adopted 20% of the deceased's gross earnings ($2,460) plus gratuity ($615 monthly equivalent) as savings, multiplied by 8 years, giving $59,040. Following McMullin JA in V.S.L. Engineers, FAO payments to the Plaintiff were notionally deducted to prevent double recovery (this did not affect the parents' FAO award). Funeral expenses were agreed at $10,000. Outcome: Total damages: $96,000 (FAO to parents) + $15,000 (loss of expectation of life) + $59,040 (lost years) + $10,000 (funeral). 1st and 2nd Defendants liable for 1/3, 3rd and 4th Defendants liable for 2/3. 1st Defendant given credit for $60,000 already paid under the Workmen's Compensation Ordinance. Costs reserved.
Legal issues: Negligence of bus driver and apportionment of contributory negligence · Assessment of dependency under Fatal Accidents Ordinance Cap. 22 · Lost years damages under LARCO and deduction of FAO payments to prevent double recovery
Outcome: Judgment for the Plaintiff; the 4th Defendant and 2nd Defendant found negligent/contributorily negligent with liability apportioned 2/3 and 1/3 respectively; the 1st and 3rd Defendants held vicariously liable; damages awarded to the deceased's parents under the FAO and to the estate under the LARCO