Tam Mei-chun and Another v. Wong Sai-chuen

HCA001711/1980

Quantum of damages"

Coram: Liu, J. in Court.

Date of Judgment: 17th October, 1981.

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JUDGMENT

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1. At about 1.30 a.m. on the 6th April, 1979, a New Territories taxi collided with a private car, a Ford Capri, in or near a bend of the Kam Tin Road. Both drivers were killed. By this action, the administratrices of the estate of the deceased New Territories taxi-driver claim damages against the personal representatives of the estate of the deceased driver of the Ford Capri. No issue was taken of the descriptions and capacities of the parties to these proceedings.

2. The point of collision with the front of the New Territories taxi was at the mid-section of the nearside of the Capri causing damage also to portion of the roof in that region. Prior to the accident, the Capri and the taxi were travelling in an opposite direction, the former towards Yuen Long and the latter Kam Tin. After the collision, the two locked vehicles came to rest in the traffic lane of the taxi with the Capri on the wrong side mounting the pavement facing in the direction of Yuen Long and the front of the taxi ramming into the nearside mid-section of the Capri. The New Territories taxi was pulled back after the accident for the rescue. The disturbed positions of the two vehicles are as shown in the rough sketch "P2(2)" and more particularly depicted in the photographs "P3".

3. The cause of the accident was unknown. Shortly before the accident, another night-shift New Territories taxi-driver Mr. Man was immediately behind the involved taxi driven by the deceased, Mr. Au. He testified that he was himself travelling 30 odd miles per hour but slowed down on approaching the same bend. He recounted his position as being seven to eight car spaces behind Mr. Au. He lost him when Mr. Au's taxi entered the bend. He told the Court that Mr. Au had been driving within his own lane. Mr. Au's taxi could have been mishandled in negotiating the bend during the brief interval out of sight prior to the collision. No real inference may be drawn from the known manner of Mr. Au's driving prior to his disappearance into the bend just as none can be drawn from the final resting position of the wreck in this case.

4. But there was no evidence, as at the close of the plaintiff's case, that the taxi had ever been over the centre white line or in any way improperly manoeuvred. The taxi collided, not with the front or off-side of the Capri, but with its nearside mid-section. In the absence of any evidence of lack of care on the part of the plaintiff, looked at before the probabilities advanced by Mr. Chandran of the defence, the manner in which the two vehicles collided has given rise, in my view, to a reasonable inference that the accident must have been attributable to some act or omission of negligence on the part of the Capri. In the ordinary course of things, the mid-section of the nearside of the Capri coming from an opposite direction could not have been exposed to or aligned for a collision with the front of the oncoming taxi if the Capri had exercised proper care. There is sufficient evidence, in the absence of any explanation, that the accident arose from some want of care on the part of the deceased driver of the Capri. In this state of the evidence, the plaintiffs have succeeded in invoking the doctrine of Res Ipsa Loquitur in their favour.

5. The off-side rear tyre of the Capri was completely bald. The other rear tyre of the Capri had only 20% of the treads remaining. There was hardly any dispute that rear tyres in this condition constituted a great hazard on a wet road. At the time of the accident, it was drizzling and the surface of the road was wet. Mr. Bleach fairly conceded that with the condition of the Capri's rear tyres, the defendants did not seek to wholly exculpate its deceased driver, but Counsel contended that negligence on part of the Capri's driver could not exceed 50%. However, the concession made was not specifically on the basis of late Mr. Au being himself entirely blameless, but it seemed to have been founded on some negligence or contributory negligence on the part of the taxi.

6. The defendants called only one witness, Mr. Chandran. This gentleman has, I accept, the necessary qualifications. He is a Senior Lecturer in Engineering Design in our Polytechnic. He is specialised partly in design of vehicles and has for the past two years been engaged in motor traffic accident investigations. He has never testified in any Court. He has furnished us with known and assumed scientific criteria for testing the acceptability and accuracy of his conclusions. For lack of concrete data, he had to be content with theories than realistic probabilities. Of the many possibilities, he favoured two probable causes of accident. In both probabilities, at the end he postulated an excessive taxi speed of 40 m.p.h. in a 30 m.p.h. zone. From the spread of debris and the resting positions of the vehicles, he draw a line of action to demonstrate the angle. He was driven to agree that it was not an exact science, but he opined that along that line of action the impact was most likely to take place. He drew two vertical lines crossing that slanting line of action in "P2(2)(a)" and concluded that the impact of the vehicles most probably occurred within the area bounded by these two vertical lines along his line of action. The spread of debris from which he deduced his probabilities had been taken from the sketch "P2(2)" and also partly from the photographs. The photographs did not show the entire spread, and the spread of debris indicated in "P2(2)" was represented by dots put down by the police constable which could not be expected to be too accurate. His line of action was supposedly the centre line of the taxi driven by Mr. Au, and he would allow the overlapping of a car's width by way of tolerance. He explained that therefore there should really be a band along his line of action, in which the New Territories taxi wavered. On the assumptions that the impact of the two vehicles was to take place within the area of the two vertical lines along his line of action, that the locked wreck had to travel 20-25 metres, that the masses of the two vehicles were about equal and that the velocity of the Capri was negligible as it was presumably careering on its two nearside wheels AND on the scanty in formation of actual metal damage from the impact and the spread of debris, Mr. Chandran concluded that the taxi must have been travelling "40, around 40 m.p.h. or more - 40 or more". He estimated the taxi's speed as at least 45 m.p.h. in his report, "D1". At one time, Mr. Chandran said that at 25 m.p.h. the damage to the wrecks would probably be less, but in cross-examination he said that he was ...(illegible) to say if damage would be more or less at 25 m.p.h. Subsequently when he was pressed, he said that it would probably be slightly less. He was not a metallurgist, and he was driven to concede that his opinion was based on ...(illegible), experience and feeling. He also admitted that even travelling at over 40 m.p.h., a reasonably skilled driver could have negotiated the bend successfully within its own lane, otherwise he gave the desired speed for negotiating the same bend as 20-25 m.p.h. He further admitted that on all his assumptions even at more than 40m m.p.h. the taxi could be on, over or within the white line.

7. Mr. Chandran agreed that one of the most useful pieces of evidence i.e. skid marks was not present. He was theorizing. He piled assumptions on assumptions. Finally of all the possibilities, he came down on two probabilities both of which postulated a speed of at least 45 m.p.h.

8. On the distance which the two locked vehicles travelled after collision to their resting place, Mr. Chandran's evidence was also less than impressive. He assumed the line of action basing on the spread of debris which was itself imprecise and the resting position of the vehicles in "P2(2)" which was only an endeavour to record the position of the taxi after it had been moved. Mr. Chandran, however, hastened to add that the shifting of the taxi would make no significant difference. He adopted the friction coefficient which, he thought, would suit the circumstances best. He recognized the possibility of its change at all stages. It was claimed that 25 metres was a reasonably assumed travelled distance of the wreck calculated on his taken friction coefficiency. In his estimate of the probable distance from impact to rest, 20 to 25 metres was given in his report "D1", 25 metres in his evidence which was brought up to 30 metres in his cross-examination.

9. Mr. Chandran put the probable impact on the extreme light of his probable area of impact. In that position, he explained that the taxi would be over the centre line. He further testified that even if the impact had been in the middle of the probable area of impact, the taxi would probably have been also half over the white line.

10. Mr. Chandran took into account the curve of the Kam Tin Road, yet he never visited the location, but he maintained that an accurate curvature could not have assisted him. He also maintained that the taxi would probably have time to brake, but he made hypotheses on assumptions.

11. It cannot be denied that Mr. Chandran worked on limited available materials and information. He agreed that there could be no fixed theory; nor did he claim to be able to pinpoint the cause accurately. Of the possibilities, he selected that two as probabilities in his report. In his examination-in-chief, he was unable to find favour with any one probability, but in his re-examination, he categorically preferred the probability in which the deceased taxi-driver Mr. Au was more to blame.

12. Mr. Chandran was no more than theorizing and he was only invited to reconstruct the incident more than a year after in late 1980. Some of the materials on which he relied had not been tested and could be of the most dubious evidential value. I have had opportunities of observing Mr. Chandran as a witness, and I must say that from time to time Mr. Chandran was shown to be over-zealous. Essentially, he is a man of integrity, but he displayed some inclination to be true to the cause of those for whom he was called to speak. I would attach no weight to the theoretical postulations of Mr. Chandran.

13. In conclusion, I find on the evidence as a whole that the driver of the Capri was solely negligent.

14. I turn to damages. The deceased Mr. Au was an employee of the Agriculture and Fisheries Department. He was then a Field Assistant. He was on the then maximum point of ".13" on the Master Pay Scale for his post earning $1,925. Instead of taking accommodation allocated for a ".13" officer on the Master Pay Scale, Mr. Au was living in quarters for a ".7" officer on the Master Pay Scale. His contribution for his subsidized housing was $63, being 5% of $1,260 on ".7" on the Master Pay Scale. These quarters were testified to as worth $500 by Mr. Liu of the then Valuation Manager with Asia Appraisal (H.K.) Ltd. who was, at the trial, the Property Manager of Wah Kwong Properties Ltd. There fore from his subsidized accommodation, Mr. Au reaped a real benefit of $437 a month ($500 less $63). As at the 1st of July, 1981, a Field Assistant of the Agriculture and Fisheries Department had been upgraded to ".14" on the Master Pay Scale attracting a salary of $3,010 a month. We know for a fact that the deceased worked every evening in the month preceding his death. His widow would have the Court believe that the deceased had previously worked 20 evenings in a month and also on holidays, therefore, up to 24 shifts a month, but the owner of the accident taxi, Mr. Lam, told the Court that the deceased had only worked 10 odd days per month in the past during his leave, Sundays and public holidays. Part of the evidence on the management and maintenance of the taxi as well as the arrangement for hiring out the taxi to the deceased was somewhat unusual, but I accept the evidence of Mr. Lam, the owner of the accident taxi, that he did hire the taxi to the deceased at $1,500 per month and that the taxi would have been continued to be made available for him but for the accident.

15. On a long-term basis, the deceased would not likely have been able to sustain his stamina of keeping two full-time jobs. I can only accept that he would have continued with 10 to 15 shifts (say 12 shifts) in a month after another period of maximum effort of, say, 12 more months. 12 shifts in a month is a heavy commitment, but with an extra child (born after his death) the deceased would have put in his best endeavour. According to the other taxi-drivers' evidence which I accept, the earning of taxi-driving was $100 net a shift. The deceased was a civil servant without permission to take on an outside job. The deceased was an energetic young man. If driven by circumstances, he would have turned to another outside job for obtaining permission or he would have taken up different employment so as to continue with his part-time work. He would have searched for and found ways and means to raise extra income to subsidize his family and himself. Naturally, as I said he could not have been expected to keep two full-time jobs for any sustained period of time.

16. The deceased was a healthy strong young man, and he died at the age of 29. I would give him a 15 years' purchase. The plaintiffs are claiming Fatal Accidentsdamages, for the Defendants as well as Law Reform damages on behalf of the estate. For Fatal Accidentadamages, I would calculate them as follows:

17. The widow disclosed that the deceased handed over his total income and was returned $600 to $700 a month for his private expenses. Almost invariably, he had lunch at home but occasionally for breakfast or dinner. The widow's estimate of milk powder and expenses for the view born baby appeared to be exaggerated, but I am satisfied that the household expenditure was about $2,500 per month comprising various items the break-down of which I do not propose to repeat, but out of it I would apportion $500 for the plaintiff's own monthly maintenance. Therefore, the deceased own maintenance was about $1,200 ($700 + $500) per month.

18. Only commencing from March 1979, a month before his death, the deceased opened three bank accounts into which he deposited moderate sums of $800, $200 and $400 respectively, and he withdrew $100. Two further sums of $200 each were paid into two of the accounts in April. The widow herself managed to save $530 a month.

19. Next I come to future loss of dependency, bearing in mind that the deceased gave his family his entire salary and taxi income. The deceased left a young family, and even after cessation of his responsibility as a father, the widow would have absorbed the entire benefit.

20. Funeral expenses were agreed as claimed under the Fatal Accidents Ordinance at $7,000.

21. Therefore, the sum total of $99,770 being loss of dependency up to the date of trial and $517,050 being future loss of dependency and $7,000 for funeral expenses is $623,820. Mr. Au deposited $1,300 in March in his three accounts but only saved $400 in April. Immediately prior to the accident, his total earning was $4,225 ($1,225 salary and $3,000 taxi income), and a saving of $400 a month would be approximately 10%. Therefore, with his earnings up to the date of trial of $135,770 plus his post trial income of $4,210 ($3,010 increased salary + $1,200 taxi income) but ignoring the housing allowance, for 150 months that would be $631,500. His total income for life would come to $767,270 ($631,500 + $135,770), and 10% of that would be $76,727.

22. I would award $15,000 for loss of expectation of life. Therefore, the loss to the estate by way of 10% of his life earnings which he would have saved in the sum of $76,727 plus $15,000 for his loss of expectation of life would come to $91,727.

23. In conclusion, the loss of dependency under the Fatal Accidents Ordinance is $623,820 ($99,770 + $517,050 + $7,000) and Law Reform damages are $91,727. The total would be $715,547. I would give interest on $99,770 and $7,000 at 7% per annum from the 6th April, 1979 to to-day. I would also award costs against the defendants in this action in favour of the plaintiffs. Liberty to the plaintiffs to apply by letter to any judge re apportionment.

Representation:

Mr. F. Eddis and Mr. Cunningham instructed by Ho & Wong for Plaintiffs

Mr. John Bleach instructed by Hastings & Co. for Defendant.