Cheung Kun Yeu v. Attorney General and Others

HCA005581/1980

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Coram: Mayo, J.

Date of Judgment: 13 October 1981

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JUDGMENT

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Background

1. The Plaintiff is suing the Defendants as widower and administrator of the estate of Leung Yin Yee who died in an accident which occured on the 20th September, 1979.

2. She was riding as a pillion passenger on a motor cycle which was driven by the 2nd Defendant which came into collision with a motor bus owned by the 3rd Defendant and driven by the 4th Defendant. Both Madam Leung and the 2nd Defendant were employees of the Independent Commission Against Corruption and the accident occured in the course of their employment, hence the involvement of the 1st Defendant.

3. The accident occured at approximately 12:20 p.m. on the 20th September in Nam Cheung Street near the intersection with Tai Hang Sai Street. The bus in question which was proceeding down Nam Cheung Street in a southerly direction had just moved out from a bus stop bay near the intersection when the motor cycle on which Madam Leung was a passenger came into collision with the offside of the bus. She suffered serious injuries from the accident and was pronounced to be dead on arrival at the Kwong Wah Hospital.

4. At the request of Mr. Pirie who represented the 3rd and 4th Defendants, I agreed at the commencement of the trial that a visit should be made to the site of the accident. Going in a southerly direction down Nam Cheung Street there is a moderately steep decline which, approximately 150 metres from the intersection of Tai Hang Street curves to the right and the curve straightens out some 100 metres from the said intersection. The ground becomes even after the curve. The width of the lefthand carriageway of Nam Cheung Street is approximately 6 metres at the traffic island at the commencement of the Tai Hang Sai intersection and this means that there is sufficient space for two private cars to travel side by side but not enough space to accommodate comfortably two large vehicles. The space would be particularly restricted adjoining the traffic islands.

5. To the north of the said intersection there is the bus stop I have referred to and to facilitate buses stopping there is a bay to enable buses to stop off the main carriageway.

6. Shortly after the accident PC 11636 attended at the scene and prepared a plan which indicated the position of both vehicles involved on his arrival. Also another officer attended and took photographs of the scene. It is not possible to reconcile the position of the vehicles described on the plan with the photographs and I am satisfied that the plan is not entirely accurate. I have therefore treated it with a measure of caution and conclusions which I have reached have been arrived at by weighing other factors.

Liability

7. There was no independent witness who saw this accident. It is therefore necessary for me to derive whatever assistance I can from the evidence of the 2nd Defendant and the 4th Defendant.

8. The 2nd Defendant gave evidence that on the day in question he was detailed by his supervisor officer in I.C.A.C. to prepare plans of various M.T.R. stations together with Madam Leung who was a colleague of his. His own motor cycle was out of order and so he borrowed one from his superior officer. He had ridden it before and was familiar with its operation. After visiting various stations he was proceeding with Madam Leung as a pillion rider to the Shek Kip Mei station. He drove down Nam Cheung Street in a southerly direction. He said that at the relevant time he looked at his speed meter to check his speed. He negotiated the bend in Nam Cheung Street at a speed of between 22 - 25 m.p.h. and when he had done so he noticed a bus in the bus bay in front of the intersection of Tai Hang Sai Street and Nam Cheung Street. He proceeded down the slope and as he saw that there was no hand signal from the driver and the indicator was not operating he considered that it was safe for him to pass the bus. When he was about 8' from the bus it suddenly moved to the right towards him. He tried to take evasive action by breaking and moving the motor cycle to the right. He also sounded the born. However the bus continued to move to the right and he almost came to a halt when the motor cycle reached the traffic island in the centre of the road. Madam Leung then shouted out and they then both fell to the ground. He then realised that the bus had collided with him. He could see that Madam Leung had sustained serious injuries. He was asked by his Counsel whether he thought that there was anything he could have done to avoid the accident and he replied that he thought that he had done everything possible to avoid it and that he had been in no way to blame.

9. However under cross examination a number of his answers to questions were less than satisfactory. In particular he expressed an opinion that the distance from the place where the bus stopped to the first traffic island at Tai Hang Sai Street where his motor cycle came to a halt was only a bus length or slightly more than a bus length. Having attended at the scene of the accident myself I am satisfied that this estimate is grossly inaccurate. The distance is much further than that.

10. The 4th Defendant, the driver of the bus also gave evidence. He said that he had been driving since 6:30 a.m. that morning and had only had a rest of ½ hour. He said that he had drawn into the bus bay and stopped the bus to allow passengers to disembark and embark. He had looked in his mirror to check that his passage was clear to proceed and then activated his traffic indicator and put out his hand to show that he was starting. He again looked in the mirror and as he saw nothing he proceeded out onto the carriageway. He changed from 1st gear to 2nd gear and when the front portion of the bus had passed the traffic island at Tai Hang Sai Street he noticed a slight sound from the body of his bus. He stopped the bus and got out and then saw that a motor cycle was on the ground. In the same way as the 2nd Defendant he maintained that he had not been guilty of any negligence and he was in no way responsible for the accident.

11. He was charged in the North Kowloon Magistracy with dangerous driving causing death and convicted of this offence and amongst other penalties was disqualified from driving for 18 months. The reason he gave for not appealing against this conviction was that he could not afford financially to do so. The effect of this conviction is to reverse the usual burden of proof.

12. The 4th Defendant was subjected to a searching cross examination by Mr. Graham who represented the Attorney General and substantially he maintained his version of the events. However he was quite unable to explain how it was that he had failed to notice the 2nd Defendants motor cycle when he had looked in his mirror on 2 occasions. He also said that he had not heard the 2nd Defendant's horn.

13. I was impressed by the 4th Defendant as a witness. I formed the impression that he was attempting to truthfully give his evidence. Where his evidence conflicts with that of the 2nd Defendant I am disposed to accept the 4th Defendant's evidence as to what transpired. However having said this I am still satisfied that the 4th Defendant's actions were to a large extent responsible for this traffic accident. I find as a fact that he did indicate that it was his invention to move out into the main carriageway. I regret though that I also find as a fact that he was not keeping a proper look out as is alleged in the statement of claim. Undoubtedly the 2nd Defendant's motor cycle was proceeding down Nam Cheung Street and the 4th Defendant failed to observe it. Having regard to the fact that he was pulling across into the carriageway and obstructing it, it was vitally important that he should take sufficient measures to ensure that his way was clear. Perhaps if in addition to looking in the mirror he had also looked around at the road he might have seen the 2nd Defendant and the accident could have been avoided.

14. I regret that I must also find the 2nd Defendant guilty of negligence. I find as a fact that he was not keeping a proper look out. This finding of fact follows from my earlier finding that the 4th Defendant did indicate his intention to drive out into the carriageway. I do not think that this finding inevitably leads me to the conclusion that the 2nd Defendant was deliberately telling lies. It may well have been the case that he did not see the signal but this would have been due to the fact that his attention was not concentrated upon the bus. I also find as a fact that he was driving at an excessive speed having regard to all the prevailing conditions. When I say an excessive speed I do not mean to indicate that he was driving at a grossly excessive speed. However all of the surrounding circumstances, including the fact that Madam Leung was riding as a pillion passenger, he had been going down hill and his view of Tai Hang Sai Street would have been obstructed by the bus all demonstrate a necessity to have driven very cautiously at a slow speed. Had he kept a proper look out and driven the motor cycle at a slower speed this accident could most likely have been avoided.

15. In addition to my findings of negligence it is necessary for me to apportion the extent of contributory negligence of the parties. I have indicated above that both the 2nd and 4th Defendants were guilty of serious negligence and in both cases the cause of the accident can be attributed to each of them. Having considered the matter carefully I have come to the conclusion that the negligence of the 4th Defendant was more serious than the negligence of the 2nd Defendant. In percentage terms I apportion liability on the basis that the 2nd Defendant is 1/3 to blame for the accident and the 4th Defendant 2/3rds.

16. In addition to this finding I also hold that the 1st Defendant is vicariously liable for the contributory negligence by the 2nd Defendant and the 3rd Defendant is vicariously liable for the contributory negligence of the 4th Defendant.

Quantum

17. The Plaintiff and Madam Leung's mother gave evidence concerning the financial affairs of Madam Leung and the contributions she made to the Plaintiff and her parents. The Plaintiff said that he and Madam Leung managed their financial affairs on a joint basis and that he contributed $2,000 to $3,000 per month to Madam Leung and she in turn paid $2,000 a month to her mother. He said that he and his wife and her parents all lived together prior to the accident and it would appear to be realistic to regard the said payment by Madam Leung to her mother as representing partially rent and general living expenses. Little is achieved by scrutinising accounts in the names of the husband and wife when the reality of the situation is that all family resources were pooled.

18. Madam Pang, the deceased's mother gave similar evidence concerning the families financial affairs. She also gave evidence that her daughter had paid to her $2,000 per month and that she had used these money for the general well being of the family. She also gave evidence that her husband has been blind for many years and that it has been necessary for her to look after him. He had not been able to support her financially as a result of his affliction. He received a small disability allowance from the Social Welfare Department.

19. Clearly Madam Leung must have spent some money on herself. The Plaintiff estimated that she would have spent $400 to $500 for this purpose.

20. I found both the Plaintiff and Madam Pang to be truthful and honest witnesses and in all important respects I accept their evidence.

21. I will deal first with the claim for damages under the Fatal Accident Ordinance Cap. 22 (FAO). The Plaintiff and Madam Leung's parents are making claims under this head of damages. Their claim is based upon their dependance upon Madam Leung. I accept that claims can be sustained by all 3 of these claimants.

22. As I have said I accept the evidence of the Plaintiff and Madam Pang that the family pooled their resources together and that it would be artificial to attempt to consider the financial position of any of them in isolation.

23. Madam Leung's salary, including the allowance she got from I.C.A.C. for her work was $2,460 at the date of her death. She was also entitled to receive a gratuity of 25% of her gross salary at the successful conclusion of each contract with I.C.A.C. I realise that her salary would have been revised upwards since her death but I propose disregarding this factor for the purpose of calculating the multiplicand I will be adopting.

24. In determining the amount of the multiplicand I propose taking cognisance of the fact that all the family finances were pooled together. I will also have regard to the fact that when Madam Leung effected payments to her parents she and her husband the Plaintiff received material benefits from the parents. In particular they were allowed the use of a room in the parents flat and Madam Pang applied some of the money towards purchasing food which was consumed by all members of the family. In addition to the monthly payment of $2,000 which Madam Leung paid to her mother the Plaintiff gave evidence that various other payments such as electricity and gas bills were paid by him and his wife. The Plaintiff gave evidence that he paid $2,000 to $3,000 per month to Madam Leung and I am satisfied that these payments in effect were reimbursing his wife in respect of the payments she made to her parents. I propose adopting calculations on the basis that the Plaintiff and Madam Leung paid to Madam Pang a total of $2,500 per month and that $500 of these monies represented the rental of the room they occupied. This leaves $2,000 for living expenses for all 4 family members. As they were all adults I propose making an equal division of these expenses and finding that $500 is attributable to each family member. I realise that this is a somewhat rough and ready approach but I am doubtful if it is possible to deal with the matter with much greater precision. I realise that in some respects the parents may have consumed more of the expenses than the Plaintiff and Madam Leung. For example they would have been at home for more meals. As against this it is likely that the Plaintiff and Madam Leung would have tended to adopt a more extravagant type of life style as they were both young people likely to be mixing with more affluent friends and accordingly acquiring more expensive habits.

25. The Plaintiff, after the accident left his in laws household and they have not seen fit to rent out the room which the Plaintiff and his late wife had occupied. This is quite understandable in all the circumstances. Madam Pang and her husband had to look to their elder daughter for financial support after the death of the deceased and in real terms they lost support of $1,000 per month being the amount of the family expenses I have apportioned to them, i.e. $500 each.

26. In view of my finding of fact that the Plaintiff and Madam Leung pooled their financial resources together the loss of Madam Leung's salary is a direct loss to the Plaintiff. I am however mindful of the fact that it is necessary to make various deductions in respect of Madam Leung's out of pocket expenses. The Plaintiff estimated these at $300 to $400 per month. I accept these estimates as being reasonably accurate.

27. It will be noted that I have not taken into account the gratuity of 25% which Madam Leung received at the conclusion of each contract. I am satisfied that the amount she would have received in respect of this gratuity, if the monies had been received monthly, would have been sufficient to pay for her personal expenses and any tax which would have been payable on her salary.

28. In conclusion I find that dependence of the Plaintiff and each of Madam Leung's parents amounted to $500 per month and I propose adopting this figure as the multiplicand.

29. I now have to consider appropriate multipliers to be adopted. The factors I bear in mind for this purpose will be different for Madam Leung's parents than they are for the Plaintiff.

30. Madam Pang is aged 58 and her husband is 60. They both appear to enjoy reasonably good health.

31. The Plaintiff is a young man aged 30. He gave evidence that his late wife and himself were not considering having a family in the immediate future. On the other hand they had not ruled out this possibility but it seems likely that in the normal course of events they may well have desired to have children. When this would have happened is impossible to say. If Madam Leung had had children she may have been able to continue working. Also she may have been able to persuade her mother to assist her in working after any children. On the other hand it may have been necessary for her to engage the services of an amah.

32. If the Plaintiff and Madam Leung had decided to start a family it seems likely that they would have done so sooner rather than later. I come to this conclusion on the basis that the Deceased was aged 31 at the time of her death and if she were to wait for too many years before starting a family it is possible that she might encounter problems with her childbearing.

33. A further factor which has weighed in my mind is that the Plaintiff has given evidence that he had a good job as an Engineer. He has also given evidence that he and his late wife were jointly saving up to purchase a flat. It is possible that when this objective was achieved there would have been less reason for his wife to continue working. This factor would become more compelling if they started a family. Having regard to all these factors I have come to the conclusion that a similar multiplier should be adopted for Madam Leung's parents as it is for the Plaintiff. The multiplier I propose adopting is 8 years.

34. On account of the fact that the Plaintiff has also made a claim under the Law Amendment Reform Ordinance Cap. 23 on behalf of the Deceased's estate, I do not propose awarding any monies to him in respect of the dependency I have found.

35. I find that the dependency for the Deceased's parents totals $1,000 x 12 x 8 which equals $96,000 which shall be divided between them equally. I will hear Counsel for the parties on the question of the amount of interest which should be payable on these monies.

36. I will turn now to the damages which are claimed under the Law Amendment and Reform Ordinance Cap. 23 (LARCO). I propose allowing damages for loss of expectation of life at $15,000. I do so in accordance with the principles laid down in Yeung Wing v. V.S.L. Enqineers (Hong Kong) Ltd. and Technic Construction Co.Ltd.¹ (V.S.L. Engineers). In accordance with the principles laid down by the Court of Appeal in that case² this sum will not merge with the damages awarded under the Fatal Accident Ordinance.

37. The parties agreed funeral expenses at $10,000.

38. There was also a claim for the legal costs of obtaining Letters of Administration to the estate of the Deceased. I consider it to be more appropriate that these costs should form part of the legal costs of maintaining this litigation and accordingly I propose leaving this part of the claim to the Taxing Master to consider the items in conjunction with the overall bill of costs which will be awarded.

39. The final head of damages I must consider under LARCO are damages for prospective loss of earnings for the period which the Deceased's working life would have lasted but for the accident. I am satisfied that such damages are payable on the authority of V.S.L. Engineers². This head of damages in now referred to as "Lost years" damages. In V.S.L. Engineers the Court of Appeal was upholding a Judgment of the learned Chief Justice at first instance, where he held that damages were payable under this head. It is clear from the Judgment of the learned Chief Justice that he placed considerable reliance upon the case of Gammell v. Wilson³. Gammell and Wilson had, at the time of the learned Chief Justice's judgment been heard in the Court of Appeal in England and by the time the Court of Appeal in Hong Kong heard the V.S.L. Engineer's Appeal The House of Lords had upheld the English Court of Appeal.

40. Lord Scarman, at page 593 of the House of Lords Appeal in Gammell v. Wilson has stated the principles upon which damages under this head should be assessed as follows: "The loss to the estate4 is what the Deceased would have been likely to have available to save, spend or distribute after meeting the cost of his living at a standard which his job and career prospects at the time of his death would suggest he was reasonably likely to achieve. Subtle mathematical calculations based as they must be on events or contingencies of a life which he will not live, are out of place; the Judge must make the best estimate based on the known facts and his prospects at the time of death". In V.S.L. Engineers the learned Chief Justice was placed in a difficult position as the Deceased at the time of his death was only aged 19. It was therefore necessary for the learned Chief Justice to speculate upon a number of factors as it was impossible to predict in any satisfactory manner how the Deceased would have led his life. The learned Chief Justice adopted what seems to me can best be described as a robust common sense approach to the situation. He held in very general terms that the Deceased would have retained 10% of his earnings after payment of all his expenses.

41. I have already in this judgment commented in some detail upon the financial circumstances of this family and it will not be necessary to reiterate my findings of fact. It does however appear that my task is somewhat simpler than the task facing the learned Chief Justice as Madam Leung was aged 31 at the time of her death and I think that it could fairly be stated that she and her husband, the Plaintiff had already given some indication of the sort of life style they were likely to adopt.

42. It was strongly my impression from the Plaintiff's evidence that he and his wife were basically of a thrifty disposition and were attempting to save as much as reasonably passible for their future.

43. Mr. Lester Kwok who represented the Plaintiff, submitted that the Deceased income was $2,460 per month and that she spent $300 - $400 on herself. Her husband earned $5,500 and gave $1,000 to his parents. On the basis of his having expenditure of $1,500 per month on personal matters he would be left with $3,000. This figure should be treated as savings. He further suggested that if regard was paid to the respective earnings of the Plaintiff and the Deceased it would be reasonable to find that 3/5 of the savings were attributable to the Plaintiff and 2/5 to the Deceased. On this basis the multiplicand which should be adopted should be $1,200. He then went on to submit that an appropriate multiplier should be 14.

44. Mr. Pirie who was representing the 3rd and 4th Defendants suggested a rather different approach to the problem. He argued that it was necessary for me to have regard to 1. The dependency of the parents and the Plaintiff should I hold that he was a Dependant. 2. Self-expenditure and 3. Savings. He also emphasized that incidence to taxation should be considered as well as the fact that a lump sum was payable and accordingly an accelerated benefit was being received.

45. He submitted that if I made the deductions he proposed it would leave a net figure of $2,070.00 per month. He then suggested that I should adopt a similar figure to the learned Chief Justice in V.S.L. Engineers of 10% which represents a fair estimate of the benefit to the estate for the lost life. He then suggested a multiplier of 10 years.

46. I do not consider Mr. Pirie's approach to the problem to be a realistic one. The main fallacy in his approach is that he makes all the deductions referred to and then argues that I should only allow 10% of the net figure he calculates. However I also find myself in disagreement with the approach suggested by Mr. Kwok.

47. Having regard to the fact that the Plaintiff and the Deceased managed their finances on a joint basis I consider that the only realistic way to assess the amount which should be payable is to adopt a percentage of earnings, in the same way as the learned Chief Justice did in V.S.L. Engineers. In doing so I should have regard to all the factors which have been referred to by Mr. Pirie. However instead of initially making deductions as he proposes I intend to base my calculations on the gross salary of the Deceased, including the gratuity which was payable and then ascertain the percentage to be adopted by reference to the overall position of the Plaintiff and the Deceased.

48. The percentage to be adopted will be higher in this case than most others. The main reason for this is that both the Plaintiff and the Deceased had good jobs and accordingly it would have been much simpler for them to effect savings. A further factor I would bear in mind is that this couple did not have to pay a large portion of their earnings on rent as is usually the case for people in Hong Kong where they do not enjoy the benefits of public housing. As against this I have given due weight to the fact that the Deceased supported her parents, notwithstanding the fact that she and the Plaintiff derived some benefit from this.

49. It is clear from McMullin J.A.'s decision in the V.S.L Engineers Court of Appeal case that payments under the F.A.O. to a Plaintiff should be deducted from any award which is made in respect of "lost years". This principle is obtained from the judgment of Lord Scarman in Gammell v. Wilson³ at page 591 from which it is clear that there should be no double recovery both by the estate and the dependents of damages calculated by reference to the lost years; for the Defendants claim will be reduced or extinguished by the benefits they receive from the estate. This rule is applicable to the Plaintiff but not as I understand the position to her parents. The fact that I am making this deduction is clearly relevant in determining the percentage of savings which the Deceased could have saved from her earnings.

50. Having regard to all the circumstances I have referred to I have come to the conclusion that the correct percentage I should adopt is 20%. My award under this head is therefore 20% of $2,460 plus $615 being the monthly amount of the gratuity which should then multiplied by 12 to reach the yearly amount and then multiplied by 8 to adopt the multiplier I referred to earlier in connection with the Plaintiff's dependency. I find that the factors I considered in determining this dependency are valid in deciding the multiplier for "lost years". This amounts to $59,040.00.

51. The total amount of general damages I have awarded is $96,000.00 under F.A.O. $59,040 and $15,000.00 under LARCO and special damages under LARCO amount to $10,000 being the agreed funeral expenses.

52. The 1st and 2nd Defendants are liable for 1/3 of these damages and the 3rd and 4th Defendants the other 2/3rds.

53. The 1st Defendant has already paid $60,000.00 under the Workmen's Compensation Ordinance and they will be given credit for this.

54. I will hear the parties as to costs.

Representation:

Mr. Lester Kwok (Tang & So) for Plaintiff

Mr. Peter Graham (Legal Department) for 1st and 2nd Defendants

Mr. N. Pirie (Munro & Co.) for 3rd and 4th Defendants

1. Case No. 3072/79. So far unreported.

2. Civil Appeal 27/80

2. Civil Appeal 27/81

3. 1981 1 All England Report 578