Ng Kung v. Kowloon Motor Bus Co. (1933) Ltd. and Another

HCA008470/1981

Lost years - Death of Butcher's assistant aged 17 supporting parents and brothers and sisters - LARCO and FAO claims - Double benefit. Award under LARCO of $481,300, and under FAO $108,000.

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

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Coram: The Hon. Mr. Justice Mayo

Date of Hearing: 22 to 26 November 1982

Date of Judgment: 14 December 1982

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JUDGMENT

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1. The plaintiff is the father and administrator of the estate of a young man called NG YUK MAN, who I will be referring to as the deceased, who died in a traffic accident on the 31st of May 1979. The accident occurred at about 3.00 p.m. when be was riding a pedal cycle in an easterly direction along Prince Edward Road outside the airport. At the time of the accident it was raining and the deceased was on the left hand lane proceding towards San Po Kong. When he was at the entrance of the slip way road which leads off from the left over a flyover to the airport maintenance area he came into collision with the right rear side of a motor bus which was proceeding up the slipway. The motor bus was owned by the 1st defendant and driven by the 2nd defendant. The only witness who actually witnessed the accident was the 2nd defendant. None of the passengers who were aboard the bus were available as witnesses. Immediately after the accident had taken place the 2nd defendant pulled in to the left side of the slipway road and went back to assist the deceased and summoned assistance. Shortly after this the police arrived and the deceased was taken to hospital where he died on the 7th June without recovering consciousness. The police were able to give evidence of the conditions which were prevailing at the time of the accident and were able to prepare a sketch plan giving details of the site including the location where the bicycle was lying after the accident.

2. At the invitation of Mr. Pirie who was representing the defendants I attended at the scene of the accident. This visit was of some assistance to me as it did provide me with an overall impression as to how this accident must have occurred. I realise however that a period in excess of three years had elapsed since this accident occurred and I understand that some of the physical features have changed. In particular the line of the pavement to the north of the road has been taken back having the effect of widening the mouth of the entrance to the slipway. It was however possible to reconstruct the position so as to enable an impression to be obtained as to what the scene would have been like at the time when this accident occurred. A further advantage of the visit was that it was possible to examine the triangular marking on the road prior to the division of the lanes into the slip road. A police officer at the scene measured the apex of the triangle as being 60 feet from the commencement of the division. This was of some significance as two of the police officers who gave evidence marked photographs which had been taken shortly after the accident with the position where the deceased's bicycle had been situate when they had arrived at the scene. The inspection also revealed the unevenness of the road surface and the fact that the surface of the slipway road was approximately an inch higher than the surface of the main road. It also revealed the presence of the various stormwater drains which could have constituted an additional hazard to a cyclist if the surface of the road was wet and slippery.

3. The allegations of negligence contained in the amended Statement of Claim were as follows:

The defendant took issue with all of the allegations of negligence I have referred to and claimed that the accident was either caused wholly by the deceased's negligence or he had been guilty of contributory negligence.

4. The second defendant gave evidence concerning the circumstances surrounding the accident. He had been a driver with the Kowloon Motor Bus Company for approximately 4½ months at the time of the accident. Initially he was a reserve driver and he had then graduated to plying the 25 route which goes from the Star Ferry Concourse in Tsim Sha Tsui to the Maintenance Depot at Kai Tak. On the 31st of May 1979 he had started his shift shortly after 5.00 a.m. in the morning and he had worked until 12.00 o'clock when he took a rest for his lunch. He resumed his duties at 12.30 and he was due to go off duty at 3 o'clock. At about 3 o'clock he was returning to Kai Tak by way of Prince Edward Road. He had previously stopped at a bus stop to pick up and put down passengers and thereafter was proceeding along Prince Edward Road in an easterly direction towards the slip road which leads to the flyover to the maintenance area. As he reached the mouth of the slipway he was travelling in excess of 10 miles an hour. It was raining lightly. He noticed a cyclist in the left lane of Prince Edward Road in the path he would have to follow if he was to enter the slip road. When he entered the slip road the cyclist was approximately 10 feet from him on his right. He did not slow down or take any action to alter his path so as to avoid the cyclist. He then looked in his rear mirror and saw the bicycle about 2 feet from the rear of the bus. It was in a verticle position. He then saw the bicycle leaning over and coming into contact with the bus and the bicycle and its rider fell to the ground. He drove the bus to the left hand side of the slipway road and stopped it and went back to render assistance to the cyclist. In cross-examination he changed his evidence. He said that it was on hearing a sound that he looked into his rear mirror and that the impact had already taken place when his attention had been drawn to the cyclist. There were also other problems concerning the second defendant's evidence. Shortly after the accident he made a statement to the police in which he said that when he first passed the cyclist he was only about 1 foot from his cab. In endeavouring to account for this discrepancy he said that he would expect the distance between him and the cyclist to reduce as a result of the way in which he was manoeuvring the bus to follow a course up the slip road. Having carefully considered the 2nd defendant's evidence I have no doubt whatever that he was driving far too close to the bicycle and that he should have reduced his speed so as to ensure that the bicycle was well clear of his bus. I am satisfied that the 2nd defendant was driving the bus in a negligent manner and this accident was entirely attributable to this fact. By the same token the deceased was not guilty of any contributory negligence. I propose assessing liability on the basis of the defendant's being 100% liable for this accident.

5. Mr. Pang Chi Lun who is presently carrying on business as the proprietor of a pork butcher's stall at the Ngau Tau Kok Market gave evidence that he had employed the deceased during his life time. The deceased had first obtained employment when he had failed to secure a place in a secondary school and he had trained him in the duties he performed as a butcher. At first the deceased had only been able to undertake simple duties such as scrapping the hair off the backs of carcasses but as he became more experienced and stronger he had been able to assume more onerous duties. He had also proved to be effective as a salesman of meat and had built up good relationships with his customers. He claimed to have paid the deceased a salary of $2,500 per month at the time of his death in May 1979. In addition to this he had paid the deceased a bonus of an extra month's salary at the Chinese New Year together with 15% of the net profits of his business for the year. In 1979 this had amounted to approximately $9,000. Since the date of the accident it had been necessary for him to transfer from the old Ngau Tau Kok Market to a pitch in the new market. This had resulted in a temporary diminution of his profits but his business was again beginning to pick up and he anticipated that by the end of this year he would have been able to pay a similar amount of bonus to the deceased if he had still been alive and in his employment. Since the deceased's death he had engaged two other assistants who had undertaken duties similar to those performed by the deceased. Mr. Pang agreed that the wages which he had been paying were quite high. The main explanation he put forward for this was the long hours and the arduous working conditions. In the summer months it was very hot in the market and working conditions were unpleasant. In cross-examination Mr. Pirie asked him of other butchers in the market offer comparable terms to their employees. Mr. Pang said that the main difference was that other employees were entitled to keep part of the carcass of the pigs for their own account whereas he did not permit this. It was for this reason that he offered as an alternative the bonus which he had referred to in his evidence. Mr. Pirie also asked him how it had been possible for him to calculate the amount of the bonus which would be payable to the deceased in the light of his evidence to the effect that he did not have any documents relating to his financial affairs. He said that previously when he had been in the old market he had kept some financial records but on moving to the new market he had discontinued maintaining such records and had destroyed the previous records he had kept. Mr. Pang also gave evidence concerning the salaries which were payable to different types of employees such as salesman, butchers who cut up meat and apprentices performing more menial tasks. Salesmen got more than men who cut up the carcasses and an average salary for a salesman was between $2,500 and $2,700.

6. Mr. Pang's evidence was corroborated by a former employee Mr. Ng For Ming, who worked for Mr. Pang for just over a year after the death of the deceased. With no experience in the business he started with a salary of $1,200 per month. Shortly after this his salary was increased first to $2,000 and subsequently to $2,600. For the last month of his employment it was increased to $2,800 per month and at the end of 1980 he received a bonus of $8,200 per month at the Chinese New Year. He did not seem to have any accurate idea how this bonus had been calculated. After leaving the employment of Mr. Pang he did various odd jobs in the butcher's trade and then joined his father who has a business as an undertaker.

7. Mr. Pirie challenged the evidence relating to the deceased's remuneration. He called the proprietor of an adjoining meat stall in the Ngau Tau Kok market a Mr. Chan Hoi. Mr. Chan was a most reluctant witness and it was necessary for me to issue a bench warrant to secure his attendance. However, Mr. Chan did give helpful evidence. He said that in 1979 he had been an employee at the Ngau Tau Kok Market and had been receiving a salary of $3,000 per month. He is now aged 29 and accordingly would have been older than the deceased in 1979. It may however well be the case that an able bodied young man of 17 would be as much use to any employer than a man who is some years older. A young man of 17 may be able to perform any of the duties which are undertaken in the butcher's trade. According to Mr. Chan's evidence his salary was not exceptionally high in 1979 for employees in the meat trade. He said that his assistant received $2,500 per month but that a person who only performed tasks such as washing giblets would receive about $2,000 per month in 1979. Since that date there had been increases in salary but the lower paid employees had received larger increases of salary than men selling meat. Mr. Chan said that when he had been an employee he had received double salary at the Chinese New Year but he had not received any other bonus such as the one Mr. Pang claimed to have paid to the deceased. Mr. Chan said that each individual proprietor of a meat stall negotiated his own terms with employees and there may well be wide variations in the different ways in which remuneration was arranged.

8. The plaintiff and the deceased's mother both gave evidence concerning the financial affairs of the family and the contribution which had been made by the deceased. I regret that the plaintiff was not a very satisfactory witness. He was unable to give any accurate information concerning financial contributions which had been made by his various children. In 1975 he had himself been involved in a traffic accident and had sustained serious injuries including an injury to his left forearm which limited the scope of the employment he could obtain. Between 1975 and 1979 he had had a succession of odd jobs. In 1979 he had had a job as a caretaker at a salary of $1,400 per month. It had been the practice of family members who were making a contribution towards the well being of the family to make payments to his wife who in turn took charge of financial affairs. At the time of his accident in 1975 two of his children had made contributions supporting the family. At this time the deceased had only just started his apprenticeship with Mr. Pang and accordingly his contribution had been a small one. He emphasised however that the deceased had been a good son and that he had continued to support the family. His son had led a frugal existence and had worked very hard in supporting the family.

9. The deceased's mother Madam Lam was able to give more detailed evidence concerning the family finances. She did not agree with the evidence which had been given by her husband concerning the financial contributions which he himself had made. She claimed that he had not been a major contributor to the family funds until after the death of the deceased. There was also some confusion concerning the identity of the daughter or daughters who had been assisting financially and this arose out of the very similar romanizations of the names of the two eldest daughters. It appears that the eldest daughter did make some financial contributions prior to her marriage but after this she discontinued this practice. The second daughter had, however, been making financial contributions and at the time of the deceased's death she had been contributing $600 per month. Madam Lam claimed that at this juncture it was only the second daughter and the deceased who were making financial contributions to the family. She said that the second daughter was contributing $600 per month and the deceased was contributing all of his salary of $2,500 per month. She had paid the deceased $5 per day to cover his out-of-pocket expenses. These had not been very great as be was able to walk to work and his employer Mr. Pang supplied him with luncheon. The rent for the premises occupied by the family was quite moderate as the flat was in one of the Government's rehousing estates. She reckoned that the family paid approximately $200 a month for electricity and between $100 and $200 for gas and kerosene. It was not necessary for the family to pay any school fees in respect of the four children who are still attending school at the present time. Madam Lam calculated that the family spent somewhere in the region of $60 to $70 per day on food. As a result of all of these out-goings the expenditure of the family was approximately the same as its total income. Some months there would be a small surplus and other months there would be a deficit.

10. The final witness to give evidence on the financial circumstances of the family was Ng Yuk Kin, the deceased's sister. She is the second eldest daughter in the family. She was an excellent witness. She said that she had been making financial contributions since she started work. In 1979 she had been contributing $600 per month. She confirmed that it was the practice for members of the family who were making financial contributions to make payments to her mother who would arrange the financial affairs of the family. She was aware of the fact that the deceased was making a financial contribution but she did not know how much it was. She was also asked a number of questions about her father's employment. She said that the accident he had been involved in was in 1974 and not 1975 as suggested in the papers. Her father had been unable to work immediately after his accident as a result of the injuries he sustained. However he had obtained odd jobs since then and he had had irregular employment up to the time of her brother's death. After this he had obtained a more permanent job. She surmised that her father had not been making regular financial contributions to the family. She ba based this surmise on the fact that her mother made continued complaints concerning her father's inability to support the family. She accordingly assumed that her father kept the money he earned without making contributions to the family well being. This evidence may well throw some light upon the discrepancies which existed in the evidence given by Mr. Pang and Madam Lam. If Madam Lam had not been receiving regular financial contributions from her husband she might well give evidence to the effect that he was not in regular employment. Whilst strictly speaking this evidence is not truthful the overall effect to Madam Lam would be much the same, namely that she did not receive regular financial support from him.

11. Having considered all of the evidence concerning the deceased's financial position and his family circumstances I have come to the following conclusions. Whilst I have been concerned about the absence of any financial records or accounts being maintained by Mr. Pang I am satisfied that he was basically telling the truth when he gave his evidence concerning the deceased's employment with him. In any event I am prepared to accept that the deceased was at the time of his death receiving a salary of $2,500 per month and that he received double-pay at the Chinese New Year and a bonus in excess of $9,000. If these figures are rounded out it leaves us with a monthly figure of $3,500 per month. I also accept Mr. Pang's evidence that there was some falling off in business when he transferred his meat stall from the old market to the new market. The result of this is that I propose proceeding upon the assumption that the salary and remuneration of the deceased would not have increased from the date of his death up to today's date.

12. In broad terms, I am prepared to accept the evidence of the plaintiff and Madam Lam and Miss Ng. More specifically I find as a fact that the deceased was a very good son and that he did make a substantial financial contribution to his family. I believe that he paid his salary, his double pay and his bonus to his mother. However I am not prepared to accept Madam Lam's evidence that she only paid him $5 a day as pocket money. It is highly unlikely that the payments would have been as small as this. I propose proceeding on the basis that he received $500 per month for his out-of-pocket expenses. It is also necessary for me to make a notional assessment of his share of the family expenses. There were four adults and four children living in the household. As no school fees were payable for the children I propose proceeding on the basis that the adults in the family consumed twice as much of the expenditure as the children did and accordingly I propose dividing the family expenditure into twelve equal parts and dividing two such parts to the deceased for his adult share. This means that I have calculated that one sixth of the expenditure is attributable to him.

13. I must next attempt to calculate what was the income and expenditure of the family. Again in general terms I accept Madam Lam's evidence that the family led a frugal existence and that the income of the family was just sufficient to meet its expenditure without there being any balance left over for saving. I am satisfied that the deceased's financial contribution to the family was by far the greatest. However I also accept the evidence that the second daughter was contributing $600 per month to the family in 1979. The position concerning the plaintiff is rather more difficult. I do not think that he was making any very significant financial contribution towards the family and I propose discounting any contribution he may have made. As a result of my findings of facts in this connection it is clear that the deceased was supporting his parents and the four younger children referred to in the Statement of Claim. I propose assessing damages on this basis.

14. I next have to consider how damages are to be assessed. As I understand the position this is a case where damages will be recoverable under 2 separate heads. Damages will be payable under the Law Amendment and Reform Consolidation Ordinance Cap. 23 (hereinafter referred to as "LARCO") and under the Fatal Accident Ordinance Cap. 22 (hereinafter referred to as "FAO"). Under the provisions of the Intestate Estates Ordinance Cap. 78 the plaintiff and Madam Lam are the persons entitled to a beneficial interest under the deceased's estate. It is clear from the circumstances of this case that LARCO damages will exceed FAO damages payable to the plaintiff and Madam Lam and accordingly there will be a merger of their claims in this respect. I do not propose making a detailed calculation of damages payable to these beneficiaries as dependents under the FAO as this exarcise would appear to me to be redundant.

15. In assessing LARCO damages, I propose following the principles set out on page 10 of the judgment of Roberts C.J. in Wong Sai Chuen⁽¹⁾. Roberts C.J. said that in calculating the amount which should be payable in respect of this head of damages the following approach should be adopted by the trial judge. (a) He assesses the net income (i.e. the income after tax) which the deceased would have been expected to receive during his lost years. In the present case the deceased did not pay salaries tax and I propose disregarding this aspect of the matter. (b) He deducts from this figure only the "cost of maintaining himself" (otherwise described as personal expenses). (c) These "personal expense" would include the cost of housing, food, clothing, travelling, insurance, holiday, entertainment, social activities and perhaps a car. (d) The "personal expenses" should reflect the deceased's own pattern of expenditure when elive and a general standard of reasonable expectation of persons with his background, status and income. (e) The contributions which the deceased would have made to his family do not form part of the cost of maintaining himself. Nor of his savings if any.

16. I propose adopting this formula to the LARCO damages in this case. I have to consider the position first in respect of pre-trial damages and then for loss of future earnings inasmuch as this is applicable. As I have stated previously I have found as a fact that the deceased's earnings at the date of his death was $3,500 per month inclusive of his double salary and bonus. It is necessary for me to make two deductions from this amount in adopting the Wong Sai Chuen formula. The first is in respect of what I would describe as being the deceased's pocket money. That is the money the deceased's mother, Madam Lam gave to him for his personal expenditure. This amounted to $500 per month. The second amount is the proportion of the family expenditure which is attributable to the deceased. For this calculation it is necessary for me to take cognisance of the total family income. This calculation is worked out by taking the net contribution of the deceased of $3,500 less $500 and then adding the contribution made by the second daughter of $600 per month. The total is therefore $3,600. On the basis that adults in the family are deemed to consume double the expenditure for children the expenditure is divided into twelve parts two of which are attributable to the deceased. One sixth of $3,600 amounts to $600. I hold this to be his share of the household expenses. If the $500 pocket money is then added to this figure we have a total of the two sums of $1,100 per month. This means that the multiplicand to be adopted for the LARCO damages is $2,400 i.e. $3,500 less $1,100. The accident took place 3½ years ago and accordingly this multiplicand is multiplied by a factor of 42. This total amounts to $100,800.

17. I now have to consider the position concerning future loss of earnings for want of better nomenclature. It is necessary for me to direct my attention to the estate of the deceased and his personal situation rather than the position of beneficiaries of his estete. I accept that the deceased was a healthy young man aged 17 at the time of his death and his expectation for a working life would inevitably be almost as good as any which could be envisaged. While it is accurate to state that he pursued an arduous occupation there is nothing to suggest that it was so arduous that one could reasonably expect that he would be in any way unable to maintain it. I therefore propose adopting a multiplier of 16. Form this a deduction has to be made in respect of pre-trial awards. As I stated in my findings of fact I do not think that the deceased's earnings would have increased since the date of his death. The reason for this being that Mr. Pang had to remove from the old market at Ngau Tau Kok to a pitch in the new market. He himself said in evidence that there had been a falling off in his takings and having regard to all the available information I consider that the most satisfactory approach to adopt is to also use the multiplicand of $2,400 for this purpose. There are 192 months in 16 years. If 42 months are deducted from this it leaves a total of 150 months. 150 times $2,400 equals $360,000. Added to these totals will be the conventional award of $15,000 for pain and suffering and $5,500 which are the agreed funeral expenses. I have adopted the conventional award for pain and suffering as I understand from the evidence that although the deceased died seven days after the accident he did not in fact recover consciousness at any time. The total of the LARCO award amounts to $481,300.

18. Finally I have to determine damages under FAO. I accept the evidence of Madam Lam that there are four younger children who were partially supported by the deceased. I also accept that the particulars of the children are as follows: Yuk Wor now aged 17, Yuk Chun now aged 14, Yuk Man now aged 11 and Yuk Wai now aged 8. All of these children were at school at the date of the deceased death and are still attending school at the present time. All of them have established a dependency under FAO and it is necessary for me to assess damages which they should receive. All of them will be entitled to support from the date of the accident to the date of the trial. In determining the amount of the multiplicand I propose adopting similar figures to those I used for the LARCO claim. However instead of having regard to the total family expenditure I propose using the net contribution of the deceased to the household of $3,000 per month. On the basis of the division I adopted for the LARCO damages each of the children is entitled to one-twelfth of the money contributed by the deceased. All of the children are entitled to pre-trial damages of 42 times $250 being one-twelfth of $3,000. So far as the future position is concerned I propose adopting a similar yardstick for all of the children. None of the older children went on to receive a tertiary education and I propose proceeding on the assumption that each child would have been maintained by the family and supported by the deceased until they attained 18 years of age. This means that Yuk Wor has one extra year of support, Yuk Chun has 4 years, Yuk Man has 7 years and Yuk Wai has 10 years. For the sake of convenience I will calculate the amount which is due to each child as follows.

Yuk Wor is entitled to 42 x $250 = $10,500 for pre-trial damages and $3,000 being one years expectancy post-trial damages.

Yuk Chun is entitled to $10,500 pre-trial damages and 4 years expectancy which equals $12,000.

Yuk Man is entitled to $10,500 pre-trial and 7 years expectancy being $21,000; and

Yuk Wai is entitled to $10,500 pre-trial and 10 years expectancy being $30,000.

The money apportioned for each of the infants will be paid into court pursuant to the provisions contained in Order 80 of the Rules of the Supreme Court and will be invested by the Registrar in the usual manner and he will be empowered to exercise the usual powers of maintenance and advancement etc.

19. To summarise the position the damages payable under LARCO amount to $481,300. The total of FAO damages amount to $108,000. Thus the total damages payable amount to $589,300. I will hear the parties as to what interest will be payable on these damages. The plaintiff will be entitled to his costs.

Representation:

Mr. M. Bunting (D.L.A.) for Plaintiff.

Mr. N. Pirie (Munro & Co.) for 1st & 2nd Defendants.