Chu Che Ping and Others v. Wong Kou-shee and Another

HCA003927/1978

Running down - Fatal Accidents & Law Reform Ordinance claims - Accident on light-controlled pedestrian crossing - Relative duties of motorist and pedestrian - Sudden brake failure - Deceased labourer aged 32 - Surviving husband aged 37 and five children aged 9 to 2 - Multiplier of 14 - Damages for loss of services as wife and mother - Cost of hire of amah to care for children - Deductibility of public assistance payments - Interest on damages for post-trial economic loss.

Coram: Commissioner Rhind in Court

Date of Judgment: 31 January 1980

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JUDGMENT

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I Nature of the Claim

1. Yiu Pui Sheung (hereinafter called "the deceased"), who died on 3rd June 1977, at the age of 32, was the wife of Chu Che Ping who is one of the administrators of her estate.

2. It is common ground that the deceased was a pedestrian who died as the result of injuries she sustained in a traffic accident on 2nd June 1977 when she was knocked down in Tai Po Road, Kowloon by public light bus registration number AZ2896, driven by D1 and owned by D2.

3. The deceased's administrators bring this action for damages for the benefit of the deceased's dependants under the provisions of the Fatal Accidents Ordinance, Cap. 22 and for the benefit of her estate under the provisions of S.20 of the Law Reform and Amendment (Consolidation) Ordinance, Cap. 23.

4. Also Chu Che Ping, in his personal capacity as widower, claims damages for loss of consortium and services of the deceased.

5. Liability and quantum of damages are both in dispute.

II Liability

A The First Defendant

6. There is no dispute about where the accident took place. It was on a light-controlled pedestrian-crossing on the northern carriageway of Tai Po Road just north of Maple Street. At the time of impact, the deceased, who had been attempting to cross Tai Po Road from east to west, was struck by the nearside front part of the vehicle which D1 was driving in a northerly direction along the outer lane of the north-bound carriageway which has two lanes.

7. Both sides accepted that the accident occurred shortly after 10 p.m. on a flat, straight, well-lit stretch of road in good weather with the road surface dry.

8. There was no dispute about the positions where the deceased and D1's public light bus finished up after the accident. The position of the public light bus is shown on the plans Exh. P3 and P4 which went into evidence without any objection, and were relied on by both sides to show the position at the scene. (Exh. P3 was signed by D1 at the scene, so he was in no position to dispute it). Those plans, which were prepared by the police shortly after the accident, also show the final position of taxi registration number BC9875 which features in this case. It was alongside the off-side front wheel of that taxi that the deceased finished up.

9. A slight complication was added to the case when the defence introduced another plan of the location - Exh. D5. That went into evidence without objection from the plaintiffs. Exh. D5 was prepared while the trial was in progress. Comparing photographs (part of agreed bundle Exh. P1) taken of the location shortly after the accident with what is to be observed at the scene now - I visited the locus in quo accompanied by both counsel - it is clear that the lay-out at the scene has not materially changed since the accident.

10. Exh. D5 differs from Exh. P3 and P4 in that Exh. D5 shows the width of the pedestrian-crossing to be 9.75 metres, while Exh. P3 and P4 show it to be 5 metres. My visit to the locus in quo satisfied me that the width of the pedestrian-crossing is now 9.75 metres, and I am satisfied it was the same at the time of the accident. Thus, Exh. P3 and P4 show the width of the crossing incorrectly, and, therefore, in perusing Exh. P3 and P4, allowance has to be made for that error.

11. The plaintiffs allege in effect that this accident was caused by D1's negligence in three different ways. Firstly, they allege he failed to accord the deceased precedence when the lights controlling the crossing were in her favour. Secondly, the allegation was that he drove the vehicle at the material time either knowing that the foot-brake was defective or being negligent in relation to its defects. Thirdly, there were allegations to the effect that his manner of driving in the sense of, for example, not keeping a proper look out caused the accident. The manner of driving is a compendious way of referring to several detailed allegations in the particulars of the plaintiffs' Statement of Claim.

12. All those allegations were disputed by the defence.

13. After weighing all the evidence, I find as a fact that D1 disregarded the red traffic light which was against him, and drove across the pedestrian-crossing striking the deceased when she was crossing with the green pedestrian light in her favour.

14. That finding flows from the view I formed of the credibility of the eye-witnesses who gave evidence before me.

15. For the plaintiffs there was Chung Tak Leong (PW3). He was a friend of the deceased, having at one stage worked with her in the past, and at the time of her death she was a customer of the frozen meat shop he ran. On the evening of her death they had both been guests at a feast held in the Kok To Restaurant on the east side of Tai Po Road close to the pedestrian-crossing where the accident occurred.

16. In evaluating his evidence, I was not unmindful of the risk of partiality on account of the deceased being his friend. However, I also took into account that he was a disinterested witness in that he had nothing to hope or fear from the out-come of this case.

17. He told of leaving the feast with the deceased, and then standing chatting with her and others on the eastern pavement of Tai Po Road where there are some railings near the north-eastern corner of the pedestrian-crossing. He saw her walk across the pedestrian-crossing to the north bound carriageway of Tai Po Road with a firm green pedestrian light in her favour. After turning away to resume his conversation with his friends, he heard a bang whereupon he looked and saw D1's public light bus moving to the position where it came to rest just north of the crossing, and he also saw the deceased lying where she finished up beside the front off-side wheel of taxi BC9875.

18. Under skilled cross-examination there are very few lay witnesses of traffic accidents who cannot be made to look ridiculous and inaccurate when questioned on peripheral details, no matter how honest the witness might be. Yes, PW3 was caught out on peripheral detail, but I was satisfied, nonetheless, he was an honest witness who was accurate in the part of his evidence about the pedestrian light being green in deceased's favour when she crossed. It is totally artificial to expect ordinary lay witnesses to remember such details as which of a particular pair of traffic lights they were looking at at a particular moment, or precisely where the witness himself or someone else was standing at a particular moment.

19. It is hardly realistic to suppose that any driver is going to admit either to the police or in court that he drove through a red light at a time when a pedestrian gets killed.

20. D1 was able to produce the driver of taxi BC9875 in court to say that at the material time the traffic lights were in favour of the vehicular traffic. That driver, Tsang Chan Kan (DW3), had been travelling north in Tai Po Road in the near side lane, and, as already mentioned, his taxi finished up in the position shown in the plans Exh. P3 and P4.

21. DW3 turned out to be of no assistance to the defence, because the court concluded no reliance could be placed on the word of such a man. At 1.30 a.m. on 3rd June, 1977 he gave the police a version (Exh. D1A & B) of the accident substantially at variance with what he later told them on 8th June 1977 and in court. The earlier version was to the effect that he had seen the deceased running out from the opening in the middle of the road on his right hand side, that she was hit by the public light bus on his right hand side and that the whole of her body then struck DW3's taxi again. In the subsequent version, that gets watered down to DW3 merely seeing a dark shadow falling down near the out-side front of his taxi without his vehicle hitting her at all.

22. The impression I formed of DW3 is that he is prepared to say whatever will minimise his own involvement in this accident. He could not admit D1 went through the red light without admitting he did the same himself.

23. Because of the bad impression I got of DW3 as a witness, the effect of his evidence was nugatory.

24. In weighing up all the evidence, I considered the probability or otherwise of two vehicles jumping the red light at the same time. I surmised it would be unusual but by no means impossible, and I am satisfied it did in fact occur here. It looks rather as if D1 just drove straight through the lights intending to proceed on his way, while DW3 just slipped past them intending to deposit his passenger on or near the crossing.

25. For a vehicle to ignore lights at a road junction is comparatively rare, but even then not unknown; ignoring them at light-controlled pedestrian-crossings on straight stretches of road is not so rare, as anyone with experience of traffic conditions in Kowloon will be aware.

26. Having eliminated DW3 as a witness who was not credit-worthy, the problem of the state of the traffic lights at the material time boiled down essentially to a straight contest between PW3's and D1's word, with PW3 emerging ultimately as the more credible.

27. It is convenient at this point to move on to the second major allegation of negligence which was that D1 knew his foot-brake was defective or was negligent in relation to its defects, because D1's evidence on this topic had an adverse effect generally on his credibility, and his general credibility was, of course, important on the first allegation, which was of driving through the red light. As frequently happens in cases, the evidence on different issues is interrelated.

28. On D1's version of events, his vehicle which was proceeding at what he described as "ten odd miles per hour" in third gear had just reached the line of studs on the southern border of the crossing when he saw the deceased running out from the centre of the road across the path of his vehicle. At that stage, he had no inkling that something might be wrong with his foot-brake, so he claimed. On his description, he merely released the accelerator. It was only when the deceased stepped back, having passed the front of his vehicle, that he attempted to brake, according to him. He claims it was only then, for the first time, that he became aware that there was something wrong with the foot-brake, and getting no response from the foot-brake he brought the vehicle to a halt with the hand-brake.

29. From the sketch plans Exh. P3 and P4, and from what the witnesses including D1 himself said, it is clear that D1's vehicle came to a halt no more than one and a half vehicle lengths north of the crossing. It can be inferred from the size of the dent on the nearside front of his vehicle and from the damage to his side-lights in that vicinity (see photo No. 7, Item 13 of Agreed Bundle Exh. P1) that he must still have been travelling fairly fast when he hit her on the crossing. Nonetheless, he was able to bring the vehicle to a halt just on the hand-brake at a point not more than one and a half vehicle lengths north of the crossing. I find this extraordinary if D1 really did not suspect beforehand there was something wrong with his foot-brake.

30. The ordinary person jamming on his foot-brake only to find that there was no response would take a little while to recover from the shock sufficiently to have the presence of mind to then have resort to the hand-brake.

31. It is possible that D1 has such fantastically fast reflexes that he could stop as quickly as he did in the circumstances he described, but a more probable explanation is that he knew beforehand that his foot-brake was defective.

32. This was clearly a long-standing defect in the vehicle. The Government Motor Vehicle Inspector, Mr Potter (PW1) explained how the whole foot-braking system including the foot-brake fluid reservoir should contain only about two pints of foot-brake fluid. However, he found what he estimated to be from four to six pints of brake fluid in the vacuum tank of that system. The brake fluid reservoir would hold about one third to one half pint of brake fluid.

33. The inference was that someone must have been continuously topping up the brake fluid reservoir over a long period of time.

34. D1's evidence on this aspect of the case was ambiguous. At first he claimed he never had anything to do with topping up that reservoir, but later, under cross-examination, modified his answer so that he seemed to be saying he sometimes might top it up, but could not remember.

35. Bearing in mind that D1 had been driving this vehicle on the afternoon shift for almost a year prior to the accident, as a matter of common sense I regard it as unlikely that D1 could have been unaware that his vehicle had been losing brake fluid over a period.

36. The significance of losing brake fluid, as every competent motorist knows, is that there is something wrong with the foot-brake. Here, there was something very wrong with the foot-brake - the seal on the master cylinder was leaking.

37. D1 did not deny knowledge of the significance in general of losing brake-fluid. What he denied was knowing that this particular vehicle was losing brake fluid.

38. I think he probably did know, and I think also he probably knew the foot-brake was likely to fail.

39. To some extent, D2 let the cat out of the bag for his drivers through what was said by a solicitor on his behalf in mitigation in the Magistrate's Court when he pleaded guilty, as registered owner, to using the vehicle on the occasion of the accident when the foot-brake was not maintained in good and efficient order and properly adjusted.

40. This is what was said:

"Understand driver responsible for maintenance in topping up without finding out why could happen. Over 1 or 2 days brakes soft, top up hardness returns. So driver can say nothing really wrong because it seemed to be alright."

41. D2 disclaims responsibility for those words which he says were not pursuant to his instructions, but I regard that as unlikely.

42. If, as I think probably was the case, D1 knew his foot-brake had a tendency to go soft, it helps to explain what appears to have been an unnaturally quick resort to the hand-brake. If you know your foot-brake is not too good, you are likely to drive around with a contingency plan in mind.

43. Even supposing that D1 had been telling the truth in his claim that before the accident he was not aware of anything which might make him suspect there was something wrong with his foot-brake, I would still have had to hold he was negligent in failing to be aware the foot-brake was defective.

44. He told how he drove that vehicle twelve hours a day. Although he was only the hirer of the vehicle, he was not absolved from all responsibility for ensuring that the vehicle he took on to the road was in a reasonably safe condition. That he had such a responsibility he acknowledged to some extent by describing how he saw fit to test the brakes, for example, before starting his shift. However, he was not prepared to admit that he had any responsibility to check the brake fluid reservoir. (It would have been an inconvenient thing for him to have to admit. If he had claimed he had actually checked it, the question would have arisen how could he have failed to detect the undoubted loss of fluid from the reservoir).

45. According to D1, it is not the responsibility of a driver to check the brake fluid: that is up to the owner who should get a garage to do it. Considering himself without responsibility for any preventive routine, D1's professed attitude was that only if he found that the foot-brake did not actually work need he do anything about it. Then he would tell the owner to get it fixed.

46. If what D1 said about his indifference to the brake fluid reservoir is correct, then he did not exercise reasonable care in maintaining the foot-brake system. Even the reasonably prudent private motorist checks the level of his brake fluid reservoir at least whenever he fills up with petrol, and, a fortiori, a professional driver taking a public service vehicle on to the roads twelve hours a day should make routine checks of his brake fluid reservoir. I would have thought that anything less than a daily check by someone in D1's position was unreasonable.

47. Those seeking to rely on latent defects such as sudden mechanical failure carry an evidential burden of establishing care in maintenance. Henderson v. Jenkins (1) is authority for that and so is Wong Ting etc. v. Yuen Hing Kwan etc. (2). D1 has failed to show that he exercised reasonable care in relation to the brake system on the vehicle he regularly hired.

48. Of course, the defective foot-brake is only relevant if it was a cause of the accident. As a matter of common sense, on almost any view of the facts, the probability is that the accident would at least have been less serious and maybe would not even have happened at all if D1 had had proper brakes. On that basis, the causation requirement is satisfied. In this context, account also has to be taken of the fact that D1 pleaded guilty in the Magistrate's Court to having used the vehicle when the foot-braking system was not maintained in good and efficient working order and properly adjusted. On the view I take of the circumstances in which the accident happened, the efficiency of the brakes was of relevance, so that in accordance with S.62(1) of the Evidence Ordinance the Court was entitled to take cognizance of D1's conviction.

49. On the basis of my findings that he knocked the deceased down when she was on a pedestrian-crossing with the lights in her favour and that at that time he knew or ought to have known that his foot-brake was defective, I hold that her death was caused solely by D1's negligence, and that he is therefore one hundred per cent liable.

50. That conclusion is reached even before going on to consider the plaintiff's third major allegation of negligence, which was to the effect that the manner of D1's driving was a cause of the accident. Having already found D1 liable, this further allegation becomes somewhat academic and, if substantiated, only introduces an element of over-kill.

51. A convenient way of considering whether D1's manner of driving was negligent so as to be a cause of the accident is to assume for the sake of argument that the defence version of the facts is the correct one. Positing that assumption, I would still have been impelled to find D1 fifty per cent to blame for this accident.

52. On D1's version, as he approached the crossing in third gear at about 10 odd miles per hour with the lights in his favour, he saw the deceased dash out across the path of his vehicle from the gap in the central railings at a time when his vehicle had reached the line of studs just before the crossing. His estimate of the distance between the front of his vehicle and the deceased when he first saw her was one public light bus length. All he did when confronted with the emergency he described was to release the accelerator. At the same time he knew there was taxi BC9875 travelling practically neck and neck with him in the inside lane in the same direction. Then when, on his version, the deceased steps back into his path, he attempts to brake for the first time, but, getting no response from his foot-brake, he has to resort to his hand-brake to bring the vehicle to a halt, the deceased meanwhile having sustained the impact from the nearside front of his vehicle which led to her death.

53. Even if the traffic lights were in his favour, he was not absolved from the duty to behave reasonably in the circumstances towards other road users. Au Cheung v. Choi Lai Fan (3), is authority for that. As someone in charge of a lethal weapon such as a public light bus the standard of care required of D1 was far higher than that expected of a mere pedestrian such as the deceased who was likely to be a danger only to herself.

54. On D1's version of events, he is revealed as exercising less than reasonable care by failing to anticipate that the deceased might step back from the path of the oncoming taxi. The presence of a pedestrian on the road in the circumstances described by D1 should have alerted him to the need to reduce his speed to a crawl as soon as he saw the deceased.

55. One is also left wondering from D1's version of events whether he could have been keeping a proper look-out if he failed to see the deceased before he reached the line of studs just before the crossing. On that straight stretch of Tai Po Road, one might reasonably expect that he would have seen her sooner, and would have started making allowances sooner for the presence of a pedestrian on the crossing disobeying the lights.

56. Of course, on the hypothesis that D1's version was correct, the deceased would have contributed substantially to her own misfortunes by disobeying the lights.

57. However, that is all academic in view of my findings on what actually did happen, and, as already indicated, I hold D1 to be wholly liable for the deceased's death.

B The Second Defendant

58. It was admitted that at all material times D1 was D2's servant and or agent so that on the ordinary principles of vicarious liability arising from the relationship of master and servant or principal and agent D2 is liable for D1's negligence.

59. Besides being vicariously liable, D2 is also liable for his own personal negligence in so far as the deceased's death was caused by the defective foot-braking system of D2's vehicle. It was up to D2 to take reasonable steps to ensure that the public light bus which he caused to go forth on to the roads by hiring it out to others on a daily basis was in a reasonably safe condition.

60. Mention has already been made of how D2 has pleaded guilty as registered owner, to using this vehicle when the foot-brake was not maintained in good and efficient order and properly adjusted. The significance of this type of conviction in the circumstances of the present case has already been dealt with when considering D1's position.

61. For D2 it is urged that the defective foot-brake resulted from a latent defect in respect of which he is entitled to be excused.

62. I do not accept that the defect here, namely the broken seal on the foot-brake master cylinder, was latent. On the contrary this defect was patent, its existence being manifested by the constant need to top up the brake fluid reservoir.

63. Even if this mechanical defect did fall into the category of latent, D2 is only entitled to be excused in respect of it if he can show that he exercised reasonable care by relying on a proper system of maintaining the vehicle.

64. Assuming that everything D2 told the court about the steps he took to ensure the vehicle was properly maintained was true, he would still stand revealed as having failed to institute an adequate system of maintenance.

65. According to D2, his brother, who also hired this public light bus from his on the morning shift, took it to the Sam Luen Garage for a fortnightly service, and if either the brother on the early shift of D1 on the later shift found something actually wrong with the vehicle, that one was responsible for taking the vehicle for repair. (Strangely D1 did not seem to know anything about this system: on his evidence he told D2 if there was anything wrong with the vehicle and it was up to D2 to get it fixed.).

66. Thus, under the system of maintenance D2 established, the only provision for the inspection of the level of fluid in the brake fluid reservoir would be if this were included as part of the service on the routine fortnightly trip to the Sam Luen Garage. For a public service vehicle to be running two shifts a day for up to fourteen days without any provision for checking the brake fluid reservoir does not commend itself to me as an adequate system of maintenance. Actually, anything short of a daily check would be inadequate.

67. Moreover, I did not think much of D2 as a witness, with the result that I was not even satisfied from his evidence that he did cause his vehicle to have a fortnightly routine check. Also, from what he said, the Sam Luen Garage did not sound the type of establishment to which one should entrust a public service vehicle with the reasonable expectation of competent service. As D2 described it, it did not operate out of a shop: it was in an open space. There was nothing in the evidence to indicate that Sam Luen Garage had any qualified personnel or proper equipment.

68. In view of the above, I enter judgment against both defendants on the aspect of liability.

III Assessment of Damages

69. The deceased, who, as already mentioned, was aged 32 at the time of her death, was survived by her husband (PW5) who was five years older than her, and by their five children, who, at the time of their mother's death, were aged 9, 8, 7, 4 and 2.

70. By the time she died, the deceased had been working for the previous two years or so as a labourer, re-bagging cement from damaged cement bags. According to PW4, who was responsible for hiring the deceased for the company in which they worked together, the deceased's daily rate of earnings at the time of her death was $53. Finding PW4 a truthful witness, I accepted her evidence on this. Likewise, I accepted her evidence that the deceased's replacement, who has had two cost-of-living increases since the time of the deceased's death, is now paid at the rate of $68.50 per day.

71. Thus, I find that the going rate for the deceased's job is now $68.50, which is the daily amount the deceased could expect to be earning at present had she survived.

72. For the purpose of calculating the deceased's loss of earnings for the period from the time of her death till now, I am going to take the average of the daily rate at the time of her death, namely $53 and now, namely $68.50, giving a result of $60.75.

73. Whilst the deceased was described as a casual labourer, I am satisfied, nonetheless, that regular work was available to her, PW4 estimating the average number of days she worked per month as 26 and the deceased's husband putting the figure at 25.

74. I will accept the lower figure with the result that the average monthly loss of earnings for the deceased in respect of the period from her death till now amounts to $1,518.75 ($60.75 x 25).

75. From the evidence, it is clear that the deceased had the prospect of a long working life ahead of her in her chosen occupation. Women in that line of work continue into their sixties, and, as the deceased enjoyed good health, there was every reason to expect she had many years of work ahead of her yet.

76. Like his wife, the husband (PW5) was also a labourer at the time of her death. His earnings were about $1,300 per month.

77. Apart from about $10 each per day for personal expenses, the deceased and her husband pooled their earnings for the support of themselves and their five children. At the time of the deceased's death, their combined earnings totalled about $2,625 per month. They had no other source of income.

78. In view of the modest amounts involved, I reach the unsurprising conclusion that, apart from the $10 per day each that the deceased and her husband had for personal expenses, the whole of the balance of their income went for the family's support. In reaching that conclusion I do not overlook that the husband said that they saved $100 to $200 per month. Those so-called savings were accumulated to buy articles for the family's use. In effect this was only a form of deferred expenditure. As soon as there was something the family needed, the savings would go.

79. After deducting the $10 per day each for the deceased's and her husband's personal expenses, their joint pool of income available for the family at the time of her death was $2,025. The relief to that joint family fund in no longer having to support the deceased since her death, I estimate at $200 per month. (If any authority were needed for the proposition that this type of calculation is not done by the simplistic method of dividing the family income by the number of members I refer to Dodds v. Dodds (4).

80. As already shown, the deceased's average monthly earnings till now would have been $1,518.75. If from that one deducts $10 per day ($300 per month) for her personal expenses together with $200 as the part of the family fund attributable to her upkeep, one reaches a figure of $1,018.75 for the monthly amount by which her dependants have so far been financially worse off since her death.

81. That is only a starting point.

82. Although both the deceased and her husband went out to work, the shifts they chose were such that throughout most of the day there was at least one of them at home to take care of the children. While the deceased's hours of work were 8 a.m. to 4 p.m., her husband's job occupied him from 2 p.m. to 8 p.m. or 9 p.m. Thus, apart from the interval between 2 p.m. and 4 p.m., there was always one of them with the children. Between them, the deceased and her husband shared the task of raising the children and performing the household chores, each of them doing some shopping, cooking, cleaning, and the like.

83. With her death, a radical change has come about in the family's circumstances. Having no one to take care of his children while he was out at work, the husband gave up his job immediately following his wife's death so that he could stay at home to look after them. His earnings fell to about $300 per month, which he can now make from finishing garments at home, and this has been supplemented by public assistance payments averaging $1,100 per month from the Social Welfare Department.

84. Perhaps a word can be said about the children at this point. At the time of the deceased's death, the four older children all lived at home, where as the youngest child stayed with the deceased's mother, to whom $200 per month was paid from the family budget for the support of this child. Since the deceased's death, the same arrangement has continued, with the four older children staying at home with their father while the youngest child still stays with the deceased's mother, to whom the deceased's husband continues to pay $200 per month for this purpose. How long that youngest child is likely to remain in a separate household from her brothers and sisters was a topic which went unexplored during the trial.

85. It is the husband's intention to go out to work again as soon as he can find someone to look after his children while he is away. By consent, a report (Exh. P6) from the Labour Department went into evidence, showing that an amah working at least six hours per day six days per week would on average cost $750 per month.

86. In view of the present ages of the children, and bearing in mind the uncertainty of whether the youngest child will come back to live with the others, and also taking into account other imponderables such as the possibility of the husband's re-marriage, I am going to work on the basis that the husband will require the services of an amah to look after the children for the next eight years. At $750 per month, the cost of that will be $72,000.

87. Already I have shown that between the deceased's death and now, her dependants have been on average $1,018.75 per month worse off as the result of her wages no longer being available for their support, and from this point forward the figure has increased to $1,212.50 per month ($68.50 per day x 25 minus $500 personal expenses and support). However those figures do not represent the full extent of her dependants' loss, for they have also lost the value of her services as a mother and a wife. In so far as those services can be evaluated in financial terms her dependants are entitled to be compensated for them. Regan v. Williamson (5), Mehmet v. Perry (6), and Lam Nai Yan v. Lee Shu Chor (7) are authorities for that. All that the court is concerned with is the financial loss to the dependants; nothing is payable in this class of case for injured feelings or emotions. In this connection the following words of Lord Denning M.R. in Morris v. Rigby (8) are relevant:

"Under the statute he is only entitled to his money loss by reason of his wife's death. This includes the reasonable cost of replacing his wife's services. Mr Justice Scrutton so held in Berry v. Humm & Co. (1915) 1KB 627. The question here is what is the reasonable cost of replacing his wife's services."

88. With respect, I find myself in disagreement with the approach adopted in Lee Ping Tim v. Wong King Foon (9) of making a payment by way of solatium.

89. Making all due allowance for the fact that in future an amah will be able to substitute for the deceased in the performance of domestic duties, and also bearing in mind that because of her job as a labourer there were limits to the time the deceased had available to perform her domestic role, it, nonetheless, remains true to say that her death has deprived her husband and children of the personal care and attention of a wife and mother for which they are entitled to be compensated. Undoubtedly, from the evidence, she was a good mother and wife. An illustration of how the services of a mother and wife differ from those of an amah is in the matter of hours worked. An amah could only be expected to work a fixed number of hours worked. An amah could only be expected to work a fixed number of hours for at most six days a week whereas a mother and wife do not work to those kinds of rules. I do not think I need labour the point about how a mother's and wife's services differ both qualitatively and quantitatively from those of an amah. It is the value of that difference for which the dependants are entitled to be compensated.

90. Various approaches suggest themselves on how to work out the value of the services lost to the husband and the children. One approach would be to work out a separate value for the services lost to the husband and a separate value for the children, and maybe to choose separate multipliers for the husband and the children. Alternatively, one gross figure and one multiplier could be selected to cover a joint claim by the husband and all the children. The result will be the same in the end. It is this latter approach which commends itself to me. The figure I set for this head of loss is $200 per month. The multiplier will be the same as the one I am going to select for dependency arising from loss of the deceased's earnings. What this multiplier should be is the topic I will turn to next.

91. Bearing in mind the respective ages of the deceased and her husband and their children at the date of her death, the prospects of his re-marriage and the various uncertainties of life embraced by the term "vicissitudes", I have settled upon fourteen as the appropriate multiplier. Each case must depend on its own facts, but fourteen can be seen to be no more than "conventional" for Hong Kong when considered in the light of such decisions as Tam Pak Chow v. The Official Receiver (10) and Lau Hong Wah v. Jim Pak Chung (11).

92. True, we are now living in an era of exceptionally high interest rates so that the return on any capital sum will be correspondingly high, but, of course, those high interest rates in their turn merely reflect the fact that this is an era of exceptionally high inflation. That multipliers should not be reduced from their former levels because of current high interest rates is shown by Cookson v. Knowles (12). In this way allowance is made in a rough and ready fashion for the inflation factor. A not dissimilar approach is to be found in Lau Hong Wah v. Jim Pak Chung (11).

93. Of the period of 14 years (168 months) chosen for the multiplier, 31 months have elapsed so far. Throughout that 31 month period, the monthly dependency on the deceased has been shown to average $1,018.75 for her lost earnings plus $200 for the loss of her services as a wife and mother, making an average monthly figure of $1,218.75. The result for that 31 month period is therefore $37,781.25 ($1,218.75 x 31).

94. As the result of his wife's death, the husband has had to stay home during that 31 month period. His wages from his labouring job at the beginning of that period were $1,300 per month and I accept his evidence that by now they would have been $1,700 p.m. I find his average loss of earnings from his labouring job over that period to have been $1,500 per month. Against that has to be set the average of $300 per month he has been able to make from sewing garments at home, thus reducing his average monthly loss of earnings to $1,200.

95. The question which next arises is whether the $1,100 per month he has received as public assistance from the Social Welfare Department for the family's support should be set off against his $1,200 per month loss of earnings resulting from the deceased's death? My answer is that it must be set off, so that this head of loss is reduced to $100 per month.

96. It is well established that in Fatal Accident claims the courts have to perform a balancing act, setting off financial gains against financial losses resulting from the death. I am not minded to get bogged down in a sterile argument on causation. Suffice it to say that, viewed realistically, the Social Welfare Department payments result from the deceased's death. I am familiar with the gamut of arguments to the effect that payments like this result from the exercise of discretion by a government official rather than the death. An approach similar to mine was adopted in Mehmet v. Perry (6). Different considerations apply in personal injuries cases (Lee Pui Kee v. Ng Chak Tong (13) is an example) where the courts are not required to engage in the same type of balancing exercise.

97. It is not entirely satisfactory that the liability of a tort-feasor should be relieved as the result of the Social Welfare Department's munificence, but that is a consequence that has to be accepted under the law as it stands. If provision is to be made for the Social Welfare Department to claw back public money from tort-feasors in circumstances like those prevailing in the present case, the intervention of the legislature will be required.

98. In the result, the extent to which the dependants have been worse off financially by the husband not being able to pursue his former work since his wife's death has been $100 per month. For the 31 month period under consideration, the amount involved is therefore $3,100.

99. Another 137 months remain of the fourteen year period chosen for the multiplier. I have already shown how, on the basis of what the deceased would have been earning now, the future loss to her dependants in respect of her earnings is at the rate of $1,212.50 per month. To that has to be added $200 per month for the value of the loss of her services as a mother and a wife. For this 137 month period the loss thus becomes $193,512.50 (i.e. $1,412.50 x 137).

100. That the correct level of earnings to be used for calculating future loss is the rate the deceased would have been earning at the date of trial can be discerned from Hay v. Hughes (14) and from Cookson v. Knowles (12).

101. Although the husband could only produce receipts for $4,200 of the funeral expenses, I accepted his evidence that the total expenses were $6,000. I regard that figure as reasonable and will allow it. Included in it is an item of $800, being the cost of a meal for two tables of mourners. In Lee Ping Tim v. Wong Kin Foon (9) judicial notice was taken of the custom among Chinese people to provide such a funeral dinner, and I am going to allow this item.

102. Under the Law Reform and Amendment (Consolidation) Ordinance Cap. 23 there will be a conventional award of $10,000 for the benefit of the deceased's estate in respect of her loss of expectation of life, but this will merge with the Fatal Accident Ordinance damages.

103. Relying on observations in Chan Hung Wing v. Lam Kam Ching (15) the defence urge me to treat the damages I have awarded for loss of the deceased services as a mother and a wife as part of the deceased's estate, with the result that those sums would also merge with the Fatal Accident Ordinance damages.

104. With respect, such an approach is, to my mind, misconceived. Amounts awarded to a dependant husband or children for the loss of the services of a wife or a mother, as the case may be, are for the benefit of that husband or those children because of their loss. Those amounts have nothing to do with the estate of the deceased: there was no discernible loss to the deceased.

105. The total of the damages for which I give judgment is $312,393, made up as follows:

106. Following the principles laid down in Cookson v. Knowles (12), interest at 4 ½% per annum will be paid for the thirty-one month period between the date of death and now in respect of the pre-trial loss represented by the first three items of damages set out above. That rate of interest is meant to represent half the short-term interest rate between the date of death and now. (See also Lam Mei Lan v. Leung Yuk (16)).

107. On the strength of the authority of Lui Kwong Kam v. Yeung Fat Construction Co. (17) and Chiang Ying Ching v. Ho Lai Ping (18) - both of which are Fatal Accident claims - I am urged on behalf of the plaintiffs to award interest at the full rate for the period between the issue of the writ till now on the general damages comprised by items (iv) and (v) above. With respect, I find myself in disagreement with the approach adopted by those two cases to the question of interest to be awarded for post-trial economic loss.

108. Whether one likes the decision or not, the House of Lords made it abundantly clear in Cookson v. Knowles (12) that in Fatal Accident awards interest for the period up to the trial is not generally appropriate in respect of post-trial economic loss. Lord Fraser in his speech at pages 616 and 617 explains why this is so:

"The Court of Appeal, having split the damages into two parts, pre-trial and post-trial, gave interest on the former part at half the appropriate rate and gave no interest on the latter part. That was in line with the decision in Jefford v Gee which was a case of personal injuries. In my opinion the Court of Appeal made its award of interest on correct principles. The only argument to the contrary that seems to merit consideration is to the effect that interest ought to have been given on the post-trial damages as well as on the pre-trial damages, on the ground that the whole sum of damages was due at the date of death and ought in theory to have been paid then. An argument to that effect prevailed with the majority of the High Court of Australia in Ruby v Marsh on a construction of s79A(3)(b) of the Supreme Court Act 1958 of Victoria. Section 79A is in terms broadly similar to those of s1A of the English Act of 1934, as amended by the Act of 1969, and insofar as the decision in Ruby v Marsh turned on considerations that would apply to the English legislation, I would respectfully prefer the view of the minority. The realistic view seems to me to be that damages for the period after the date of trial are compensation for a loss dependency which the plaintiff has not suffered at that date and that she is therefore being compensated for future loss. This part of the compensation ought, in theory, to be discounted because it is being paid in advance, but the information that was put (without objection) before the House showed that, in this case, it had not been effectually discounted. The realistic view has hitherto prevailed both in England (see Jefford v Gee) and in Scotland where similar, although not identical, statutory provisions apply. In Macrae v Reed and Mallick Ltd (a case of personal injuries) Lord Patrick said "What can never be justified, in my opinion, is an award of interest on loss which the pursuer has not yet sustained at the date of the trial from a date anterior to the Lord Ordinary's interlocutor ...' and in Smith v Middleton (a claim by a widow in respect of the death of her husband) Lord Emslie expressed his general agreement with Lord Patrick's opinion in Macrae v Reed and Mallick Ltd. I am of the opinion that the Court of Appeal rightly awarded interest on the damages in respect of the period before the date of trial, and rightly declined to award interest on the damages for the period after the date of trial."

109. There is nothing I am aware of in the Hong Kong position which calls for any different principle.

110. Both Lui Kwong Kam v. Yeung Fat Construction Company (17) and Chiang Ying Ching v. Ho Lai Ping (18) sought to derive support from a later House of Lords decision, Pickett v. British Rail Engineering Ltd (19), which, in turn, was followed by the Court of Appeal in Hong Kong in Leung Chat Nui v. Chau King Wai (20).

111. However, Pickett v. British Rail Engineering Ltd, in so far as it is relevant for present purposes, was a personal injuries case, dealing with interest on damages for pain and suffering, which is a form of non-economic loss. The authority of Cookson v. Knowles (12), which concerned a Fatal Accidents claim for future economic loss, is in no way impaired on the interest point by Pickett v. British Rail Engineering Ltd (19).

112. In Leung Chat Nui (20), the learned Chief Justice speaking for the whole Court of Appeal had this to say,

"Cookson v. Knowles is not on all fours with the present case. It was a case which dealt with a fatal accident, and the appropriate assessment of damages for the estimated earnings of the deceased and whether interest should be given on post-trial as well as on pre-trial damages. In the present case there was no death and we are only concerned with pre-trial damages."

113. There is no hint there that the learned Chief Justice was in any way doubting the correctness of Cookson v. Knowles (12), and I regard it as unrealistic to suppose that he would have been any less willing to apply that decision of the House of Lords in Hong Kong than he was to apply its decision of some six months later in Pickett v. British Rail Engineering Ltd (19).

114. Moreover, there is no suggestion in Pickett v. British Rail Engineering Ltd that the House of Lords was itself having second thoughts about its earlier decision.

115. In Chiang Ying Ching v. Ho Lai Ping (18), the learned Registrar sought support for the conclusion he reached in part of Lord Scarman's speech in Pickett v. British Rail Engineering Ltd (19). However, Lord Scarman's speech on that occasion was concerned with non-pecuniary loss, not with future economic loss.

116. Lord Scarman had himself been one of the Law Lords who decided Cookson v. Knowles (12), and he there explicitly agreed with the reasons given by Lord Fraser.

117. When Lord Scarman made his speech in Pickett v. British Rail Engineering Ltd (19), he gave no indication that he was now minded to resile from the position he had taken in Cookson v. Knowles (12).

118. In view of the foregoing, no interest is awarded on items (iv) and (v) of the damages for the period between the issue of the writ and now.

Representation:

Miss C. Remedios (D.L.A.) for Plaintiffs

Mr. B. Van Buuren (Johnny T. K. Cheng & Co.) for Defendants

(1) (1969) 3 WLR 732

(2) High Court Action No. 727/77

(3) Civil Appeal No. 6 of 1978

(4) (1978) 2 All E 539 at 546

(5) (1976) 1 WLR 305

(6) (1977) 2 All ER 529

(7) HCA 915 of 1978

(8) (1966) C.A. No. 280; (1966) 110 SJ 834

(9) (1978) HKLR 347

(10) HKLJ (1975) 115

(11) (1975) HKLR 492

(12) (1978) 2 All ER 604 at 611

(13) O.J.A. 1429 of 1973

(14) Hay v. Hughes (1975) 2 WLR 34 at 39

(12) at 609

(15) (1977) HKLR 505

(16) H.C. 676/79

(17) H.C. 1714/78 (summarised in (1979) 9 HKLJ 378)

(18) H.C. 2390/74 (summarised in (1979) 9 HKLJ 380)

(19) (1978) 3 WLR 955

(20) (Civ. App. 13/78)