Chan Lai King and Another v. Tang Yiu-wing

HCA004337/1982

Headnote

Fatal accident - quantum of damages - claims under both FAO and LARCO - dependants were widow, children and parents. (pages 6-9)

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(Consolidated pursuant to Master Hansen's Order dated 13.1.83.)

Coram: Hon. Penlington, J.

Date: 9th June, 1983

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JUDGMENT

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Preliminary

1. These are consolidated actions brought as a result of a tragic motor accident which occurred on the 14th of May 1981 on the Sek Kong to Tai Po Road. The late Mr. Chan Ming Wah was driving a delivery van up the slope of the road leading from Sek Kong when a collision occurred between his vehicle and a heavy earth-moving lorry driven by the defendant, as a result of which Mr. Chan was killed.

2. The administrators of the estate of Mr. Chan ("the plaintiff") bring an action for damages on behalf of Mr. Chan's dependants under the Fatal Accidents Ordinance ("FAO") and on behalf of his estate under the Law Amendment and Reform (Consolidation) Ordinance ("LARCO"),against the defendant. The other action is brought by the late Mr. Chan's employer, the Sun Sea Mattresses Manufacturing Company Limited ("the employer") under Section 25(1)(b) of the Employer's Compensation Ordinance. This is on the basis that pursuant to a judgment given against the employer in the District Court, the employer was liable to pay to the plaintiff the sum of $151,200 plus costs as the deceased was acting in the course of his employment at the time of the accident.

Liability.

3. It was not in dispute that on the day in question at about 1340 hours the deceased was driving a Mitsubishi van from Sek Kong in the direction of Tai Po and he was accompanied in his van by a delivery worker, Mr. Tsoi Tam Kwong. He was making a delivery of mattresses which were in the back of the van. The defendant was the driver and owner of a large "Hino" earth-moving truck and he was coming down the slope from a construction site, loaded with spoil which he was taking to Yuen Long. The two vehicles collided, the tray of the defendant's lorry striking the cab of the deceased's van and the lorry then appears to have turned over depositing the soil on the road before coming to a rest on its side. There is a conflict as to the point of impact on the road but in any event it seems clear that the lorry went for a considerable distance after it struck the van. Photographs were taken by a Police Constable, Mr. MA Lit Ming, who also prepared a sketch plan of the scene from measurements he took at the time. In this he was assisted by the defendant. These photographs and the sketch are very graphic. They show that the deceased's van was very substantially damaged indeed and they also show brake marks, which I am satisfied were made by the defendant's lorry, which go well over the double white lines which run down the centre of the road at this particular spot.

4. The photographs and the sketch plan show an object on the road which the Constable said in evidence was one of the mud-guards from the van. He said that he interviewed the defendant at the scene and that the defendant told him that the mud-guard indicated the point of impact. The defendant denied making such a statement and put the point of impact some ten metres further towards Tai Po but I am satisfied that in fact the point of impact was approximately where the mud-guard was found on the road. On that basis and using the scale shown on the sketch the van came to rest 14 metres down the slope from the point of impact and the lorry some 19 metres. Evidence was given by Constable Ma that the road at this particular place is very steep. The width of the road is only 6.4 metres there are trees along each side. A driver coming from Tai Po Road would not get a clear view of the slope where the accident occurred until he had come round the bend just before it. The Constable also said that he spoke to the defendant at the scene and he admitted that his truck had made the brake marks shown in the photographs 1, 2 and 3. He said that the defendant at that time told him that he estimated his speed at the moment of impact was about 15 miles per hour. In a statement which the defendant made later that day he put his speed at about 25 miles per hour and when he gave evidence he said he thought was about 20 miles per hour.

5. Evidence was given by Mr. Tsoi, the delivery worker, who unfortunately was not particularly helpful. He said he saw the lorry coming towards him and that he shouted out to the deceased. He is not himself a driver but said that at the time of the collision the wheels of his van did not go over the double white line and the driver's side of the van was two to three feet from those lines. He also said the other vehicle was going very fast and he estimated its speed at 30 miles per hour. His estimate of the speed of the van was 17 to 18 miles per hour. While I must regard his estimates of speed as being very approximate I would of thought that a loaded van going up this hill would not be able to go much faster than that.

6. The defendant gave evidence and said that this was the third trip he had made on that same day from the construction site carrying soil. He said that shortly before going down this slope he had pulled into a lay-bye and allowed other vehicles to go in front. He then proceeded ahead and said that when he went round the bend before going down the slope where the collision occurred he was in third gear. His lorry has six forward gears. He says that he was applying his brakes as he went round the bend and while going down the slope. He said the brakes appeared to be effective and that he had not noticed on that particular trip or the two previous ones that they were acting abnormally. He said that as he went round the bend the wheels of his truck were on the double white line but he denied that they went over it. He said that if the wheels of his lorry were not on the white line the near side wheels would go over the verge of the road.

7. The defendant said he saw the deceased's van coming up the slope at a high speed. He said he swerved to avoid a collision but did not. lose control and the lorry did not skid. There was a collision between his lorry and the van but that this was not a head-on collision and cab of his lorry was undamaged. This is confirmed by the photographs. The tray of his lorry however did strike the van and he then lost control of his vehicle. It eventually turned over crushing the van before coming to rest on its side. He said he was "not clear" as to whether his vehicle caused the tyre marks shown on the road. He said that his vehicle was not fully loaded and that it was equipped with an exhaust brake. This brake can be activated to cut out the flow of air to the engine and to obtain a better braking defect from the engine. He said his speed was very slow and the ordinary brakes were sufficient so he did not use the exhaust brake.

8. Having heard the evidence and having considered the photographs and the sketch plan I am in no doubt whatever that the defendant was responsible for this collision. The brake marks on the road, the damage to the van. and the respective places where the two vehicles eventually finished show beyond any doubt that the defendant was going down this slope and round the bend of a narrow road at a speed which under all the circumstances was much too fast. He was driving a heavily loaded lorry in too high a gear and was unable to negotiate the bend without crossing the double white lines into the opposing lane. Mr. Lai conceeds some negligence on his part but submits that there was contributory negligence on the part of the deceased.

9. The defendant was charged in the magistrates court with dangerous driving causing death and also with driving with defective brakes. The record of those proceedings was included in the agreed bundle of documents. The magistrate, having head the evidence, held that there was no case to answer on the charge of having defective brakes and he acquitted the defendant on the charge of dangerous driving causing death. I am satisfied that very important and cogent evidence was not admitted by the magistrate, including in particular the photographs, as they were not properly proved. While the magistrate was not satisfied beyond reasonable doubt of the guilt of the defendant on the criminal charge I am quite satisfied on the evidence before me that he was negligent and there was no contributory negligence on the part of the deceased. There were no reasonable steps he could have taken to avoid the accident.

10. I am also satisfied that while the brakes of the lorry may not have been so defective as to render the defendant guilty of a criminal offence, according to the agreed evidence of the motor vehicle examiner they were not as effective as they should have been. However I do not consider that the driver of a very heavy vehicle going down a steep slope should rely on his wheel brakes as a method of maintaining a safe speed. The primary means must be the use of the proper gear, plus an exhaust brake if fitted. In this case I am satisfied that the defendant should have been in a lower gear than third and in addition he should have used his exhaust brake.

The deceased's earnings.

11. In addition to the documentary evidence, which is between pages 64 and 21 of the agreed bundle, evidence was given by a fellow employee, Mr. Tam Ping Wah and also by the Managing Director of the employee company, Mr. Chan Kim Yee. The index of wages at pages 64 and 65 were not in dispute. The deceased's wages consisted of a basic salary plus a meal allowance of $200 per month which did not vary except when he received an annual increment the amount of which is dependant on how good the firm's business had been. He was paid an allowance of $10 each time he delivered a mattress direct to a customer other than on the ground floor of a building and was also paid an overtime allowance of $6 per hour if he had to work beyond 6 p.m. Both these items varied from month to month, but I am satisfied that, including the normal Chinese New Year bonus of one month's salary, his average earnings before the accident were $1,950 per month. Evidence was given by Mr. Tam Ping-wah a driver also employed by the plaintiff on the same terms as the deceased. Mr. Tam's evidence as to what the deceased's salary would have been was blurred by the fact that after February 1982 he was employed by the defendant as a contractor and was making profits, not salary. In February 1982 when Mr. Tam left the employee's company his salary was $2,200 per month. If the deceased had not been killed his wages would have been about $2,350 per month at the date of the trial. I fix a sum of $2,150 as representing the deceased's average monthly wages between the date of the accident and the date of trial. This represents an increase of 15% on his wages before the accident.

Damages.

12. The parents : Evidence was given by the deceased's father, Chan Pui Kwong, who is aged now 65. He said he no longer worked and he was not in particularly good health although he felt better since he had. stopped working. He said that he was totally supported by his children namely the deceased and a daughter who is shortly to be married. He said that the deceased gave him about $100 per month which was literally tea money and this was on a regular basis was somewhat doubtful about this evidence and in any event there has been no claim made for it in the writ. I therefore did not accept the deceased's father's evidence relating to this extra $100 per month but I do accept his evidence that he was dependant on the deceased. The deceased's mother, TSOI Koo Ying, said that she was 63 and now has high blood pressure for which she takes regular medication. She said that immediately before the accident her son was paid her $400 per month. She also said that she was totally dependant on contributions from her son and from her daughter. I accepted this evidence which indeed was not seriously challenged.

13. I would assume that the deceased would have increased the payments made to his parents by the same percentage as his own wages increased. I therefore assess their dependancy during the period between the date of the accident and the trial at $450 per month and after the date of the trial at $500 per month. Considering the age of the deceased's parents and their state of health I consider a multiplier of 6 is correct in their case. In the case of the widow and young children it was agreed that the deceased was 30 at the date of his death and L would apply a multiplier of 14.

14. Chan Lai King, the deceased's widow said that at the time of the accident they wore living in a but at Kowloon Tong which they had bought from savings. They had 2 children, Chan Kim-ho, a boy aged 2 at the time of accident and Chan Kim-yam, a daughter then aged 10 months. She said her husband gave her $700 cash each month, he bought the children's milk-powder which cost $300, he paid for the electricity $30, and he brought some food home each month to a value of about $100. There may well have been other small items he paid for but that was her evidence of the deceased's contribution, a total of $1,150. I would assume that as the deceased's income increased he would also increase the amount spent on maintaining his family and would increase that to an average of $1,350 at the date of the trial. To that must be added the deceased's payment to his parents of $450, giving a total dependancy of $1,800.

15. Adopting the approach approved in Wong Sai Chuen C.A. 133/1981 I take the deceased's average nett income of $2,150 between death and trial (I make no allowance for tax as he was well below the tax level) and $2,350 after trial less the cost of maintaining himself which I find to be $350, i.e. 15% of his earnings. With both a young family and two parents to support clearly the deceased had little over for his own expenses.

16. It was agreed that of the $151,200 paid by the employer under the Employee's Compensation Ordinance, $30,000 had been paid to the deceased's parents and the balance of $121,200 to the widow and children. It was also agreed that he died intestate and his estate therefore falls within the provisions of Section 4(3) of the Intestate Estates Ordinance.

17. I therefore assess damages as follows :-

18. FAO Damages

Difference : $350 i.e. 15% of income 14 years (the multiplier = 168 months)

19. There will in addition be judgment for the funeral expenses claimed, $8,810.

20. There will be interest at 7% on the pre-trial FAO and LARGO damages and on the funeral expenses from the date of the accident to the date of trial. There will be interest at 14% on the damages for pain, suffering and loss of expectation of life from date of service of the writ.

Action No. 4446 of 1982,

21. This is a claim brought by the employers of the deceased who paid the deceased's dependants the sum of $151,200 pursuant to their obligations under the Employee's Compensation Ordinance. I am satisfied that that amount was payable and most of it has in fact been received. There was a claim in respect of the costs incurred by the employer in defending that action and there was some dispute as to whether such costs were recoverable, on the basis that the employer had no defence to the claim. L am satisfied that these costs were properly incurred and the employer is entitled to recover them. For the reasons I have given above as to liability and pursuant to Section 25 of the Employee's Compensation Ordinance Cap. 282 there will therefore be judgement for the plaintiff for the sum of $151,200 plus an order that the defendant shall indemnify the plaintiff in respect of his own costs incurred in Kowloon District Court No. 283 of 1981. There will be interest on that amount at 7% from the 23rd of September 1982 to the date of payment. I assess interest at that rate because in fact the payments have been spread. The plaintiff is entitled to its costs.

Representation:

N. Pirie instructed by Rowdget W. Young & Co. for Plaintiff.

Thomas Lai instructed by H.M. So & Co. for Defendant.