Yau Chi Chuen and Another v. Lam Wai Chung and Another

HCA001910/1980

Fatal accident - assessment of damages for loss of earnings of deceased for "lost years" - dependencies irrelevant for this purpose - total award would devolve upon dependents and since greater than sum due under Fatal Accidents Ordinance, claim thereunder extinguished.

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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Coram: Hon. Fuad, J. in Court.

Date of Judgment: 30th April 1981.

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JUDGMENT

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1. At about 8.35 a.m. on the 26th April 1978, Madam Tsang Mei was knocked down by a van driven by the 1st defendant and owned by the 2nd defendant. She died almost immediately from head injuries. The plaintiffs (the husband and daughter, respectively, of the deceased) as the administrators of her estate bring this action on behalf of the estate under the Law Amendment and Reform (Consolidation) Ordinance (Cap. 23) and also on their own behalf as dependants under the Fatal Accidents Ordinance (Cap. 22). Liability is denied and the quantum of damages is in issue.

2. The accident occurred on Clear Water Bay Road which runs from Kowloon to Sai Kung, near the entrance of a road leading to Cheng Lan Shu Village where the deceased used to live. Clear Water Bay Road is very narrow at that place, with double white lines painted down its centre. I understand that it is presently being widened there.

3. From the evidence of the three witness who testified for the plaintiffs about the accident, it is clear that the deceased was standing on the pavement waiting to cross the road from North to South, a few paces to the side of some pedestrian railings, just before it happened. As was quite common at that time of day and at that place, she had been waiting for an opportunity to cross for about 10 minutes, when the defendants' van collided with her. There is no pedestrian crossing in the vicinity. None of the witnesses saw the actual impact, but Madam Tsang Mei was thrown into the gutter at the side of the road immediately after the collision, and although she made some movement as she was being carried to a vehicle, she was found to be dead on arrival at the hospital.

4. Madam Lam Ying, a neighbour and clanswoman of the deceased, told the court that she had been waiting with her to cross the road, the deceased standing just in front of her and slightly to her left. She saw the van coming round the bend from the general direction of Kowloon, travelling very fast. She heard a bang and saw the deceased fall down; and the van stopped some way down the road at the bus stop.

5. Mr. Wong Wing Kwan was standing outside a shop about 10 paces behind the deceased. Although he had seen her waiting to cross the road, he had taken no particular notice of her, and he did not see the van strike her. He only saw the van after the collision, and after hearing a bang.

6. The third witness, Mr. Leung Ping Kin, was waiting to cross the road in the opposite direction after he had put his daughter on to a school bus. According to his evidence, the Kowloon-bound lane of the road was very conjested at the time, while traffic in the Sai Kung direction was light. He had noticed the little group of people standing on the opposite pavement and saw the van drive pass them at a very high speed (he estimated it at over 40 m.p.h.). He heard the noise of the collision and saw the deceased fall to the ground, but did not witness the moment of impact.

7. The 1st defendant was present in court on the first day of the trial of the action but did not attend on the second and final day. Efforts to trace him failed and so, in the event, no evidence was called by the defendants.

8. The evidence shows to my mind, quite clearly, that in all the circumstances the 1st defendant was driving at an excessive speed. Traffic was heavy, the road was very narrow, and he was approaching a place where a small group of pedestrians were obviously waiting to cross the road. There is therefore some evidence of negligence in the absence of any explanation, but should he be held entirely responsible for the accident? I think not. There is no evidence that he mounted the pavement or allowed his vehicle to overlap that part of the highway reserved for pedestrians. Unfortunately no one could tell the court precisely where the deceased was standing, or what she was doing, immediately before the collision. Although it is notoriously difficult to be certain how a person will fall when struck by a moving vehicle, it does seem more likely than not, from the position in which the deceased lay after the accident, that she was struck when she was on the road itself. In my judgment it must be inferred either that the deceased stepped into the road in a moment of inadvertance or that she started to cross the road without keeping a proper look out. She was therefore also to some degree negligent. In the absence of evidence that the 1st defendant was more to blame for the accident than the deceased, I think that this is a case in which blame should be apportioned equally.

9. I now turn to consider the issue of damages. At the time of her death, Madam Tsang Mei was aged 45 years. The 1st plaintiff is now aged 56 and the 2nd plaintiff 24. The 2nd plaintiff, Miss Yau Yuk Mui, who is unmarried, gave evidence that her mother had been working as a casual worker on construction sites at the time of her death. She used to work for about 20 days a month and earn $60 a day. She also used to raise pigs, and the evidence about this source of income is far from precise. Miss Yau Yuk Mui told the court that her mother had been raising pigs for sale for about 10 years before her death. They would be bought as piglets, kept for about 4-5 months and then sold. At one time her mother had kept between 40-50 pigs but this number had been increased to about 80-90 when the family had needed more money to build a new stone hut. The new home had been finished about six months before her mother died, and had cost $170,000. She thought that the family's income from the pigs had at one time been between $30,000 to $40,000 a year. After her mother's death she had sold the remaining batch of about 20 pigs for something in the region of $13,000. She was unable to tell the court how much the piglets had cost to buy, but she did know that their food cost about $2,000, and estimated that the profit to the family after the final sale had been about $7,000 to $8,000.

10. Miss Yau Yuk Mui said that the total monthly expenses of the household ran to about $2,000 and that her mother spent at the most about $300 a month on herself. Her father, who did not give evidence, is in poor health and, so far as I can gather, is unemployed. When he was working as a seaman it seems that he used to contribute "less than" $1,000 a month to the household's expenses. We know nothing of Miss Yau's own earnings as a garment worker or of the contribution she herself made to those expenses. The only other member of the family is her younger brother and all that we know about him is that he was a student at the time of the tragic death of his mother.

11. I have no doubt that Miss Yau was doing the best she could to assist the court and I accept that it is no longer a practical proposition for the family to raise pigs.

12. Mr. Wally Yeung, for the plaintiffs, asked the court to award damages to the estate of the deceased for her loss of earnings in respect of the "lost years", under the Law Amendment and Reform (Consolidation) Ordinance (Cap.23). In Yeung Wing v. V.S.L. Engineers (Hong Kong) Ltd. and Another H.C.A. 1979 No. 3072, the Chief Justice reviewed the authorities and followed the decision of the English Court of Appeal in Gammell v. Wilson and Another [1980] 2 All E.R. 557, in holding that s.20(1) of Cap.23 had preserved the right of the deceased to recover damages for the lost years and that s.29(2) did not affect that right. The Chief Justice announced his decision on the 22nd January 1981 and a fortnight later [Law Report - The Times, 5th February 1981] the House of Lords upheld the decision of the Court of Appeal upon which the Chief Justice had relied. It is now well established, therefore, that damages in respect of such loss are recoverable in the present state of the law.

13. In Yeung Wing's case, the Chief Justice also decided that the time had come to adjust the conventional award for damages for loss of expectation of life under Cap. 23 by raising it from $10,000 to $15,000. I respectfully agree with the reasons he gave for this revision and since uniformity is desirable I will follow his lead.

14. While the evidence regarding the deceased's earnings as a worker on construction sites is reasonably clear, that which relates to her income from the raising of pigs is not. However I do not regard the evidence before me as so inadequate that the estate should receive nothing under this head. I accept Miss Yau's testimony that the cost of the stone hut in which the family now live was paid for mainly out of that source of income, but in view of the lack of more definite evidence, I do not think it would be fair to the defendants if I were to assess the profit from raising and selling pigs at higher than $10,000 per year. When one adds her wages to this sum ($1,200 a month x 12) one arrives at a figure of $24,400 a year.

15. As Gammell v. Wilson makes clear, the deceased's own potential living expenses fall to be deducted. On the evidence, I accept that these would be modest and assess them at the rate of $3,600 per annum. Deducting this sum from her total annual income, a figure of $20,800 per annum is reached.

16. In calculating damages for the "lost years" it seems plain that no account must be taken of the ages of the dependants, or indeed, whether or not the deceased had any dependants. In view of the age of the deceased and her state of health, I consider that a multiplier of 10 would be appropriate. This would produce a sum of $208,000.

17. Special damages in respect of funeral expenses and damage to the deceased's clothing have been agreed at $3,386.

18. Mr. Yeung for the plaintiffs has conceded, in my judgment correctly on the authorities, that the total award under the Law Amendment and Reform (Consolidation) Ordinance will entirely extinguish the claim under the Fatal Accidents Ordinance. The 1st plaintiff does not appear to be in very good health and the deceased was about 11 years younger than he. The 2nd plaintiff is a young woman and might well get married in the next few years. For the purposes of the Fatal Accidents Ordinance, therefore, lower multipliers would have been selected. All the damages recovered by the estate will, I understand, go to the plaintiffs and I therefore make no award under the Fatal Accidents Ordinance.

19. Since I have found the deceased and the 1st defendant equally to blame, under the Law Amendment and Reform (Consolidation) Ordinance, I give judgment for the plaintiff with costs for -

20. As regards interest, no interest can be awarded on the general damages for the loss of future earnings, but I see no reason why the estate should be deprived of interest on those damages for the period of almost precisely three years from the date of the accident to the date of the judgment. Interest is therefore awarded as follows on the sums I have just read out -

Representation:

Mr. Wally Yeung (Kwan & Kwan) for Plaintiffs.

Mr. Thomas Lai (Vincent Lo & Co.) for Defendants. (Mr. Thomas Lai was replaced by Mr. Wesley Wong from the second day onwards)