Zee Peter and Tung Bean v. Yau Yat Shing and Another

HCA008977/1981

BETWEEN

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Coram: Mr. Commissioner Clough

Date: 21 March 1983

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JUDGMENT

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1. At about 3.25 a.m. on the 8th December 1980 a 28 year old man named Leonard Zee ("the deceased") was knocked down in Princes Margeret Road, Kowloon, just north of the Pui Ching Road junction by a white Honda Accord motor car, Registration No. BT4671 ("the white car'') driven by the first Defendant as the deceased stood at the rear of the off side of a green Mazda motor car, Registration No. BP816 ("the green car") belonging to his mother, the second Plaintiff. The deceased sustained fatal injuries and died in the Queen Elizabeth Hospital at 4.30 a.m. on the same day.

2. The deceased had never married and had no issue. He died intestate and on the 9th October 1981 his parents, the Plaintiffs, obtained a grant of Letters of Administration in respect of his estate out of the High Court.

3. The Plaintiffs now bring this action by their writ issued on the 18th December 1981 against the Defendants as the driver and owner respectively of the white car. The Plaintiffs sue in their capacity as personal representatives of the deceased and the first Defendant also sues in his personal capacity.

4. As personal representatives of the deceased the Plaintiffs by their Re-Amended Statement of Claim claim against the Defendants damages on behalf of themselves and the deceased's grandmother Ma Ling Tsai as dependants of the deceased for the purposes of the Fatal Accidents Ordinance (Cap. 22)("FAO"). As personal representatives of the deceased the Plaintiffs also claim against the Defendants damages on behalf of the deceased's estate under the Law Amendment and Reform (Consolidation) Ordinance (Cap. 23) ("LARCO") in respect of the deceased's loss of expectation of life and loss of future earnings The claim under LARCO also includes a claim for special amounting to $43,750.00.

5. Until the close of the trial the second Plaintiff claimed in her personal capacity, as the owner of the green car, the sum of $16,021.24 paid by the first Plaintiff in respect of the cost of towage and repairs necessitated by the damage caused by the white car to the green car at the same time as  the deceased was fatally injured. 

6. At the close of the trial the defence did not oppose the giving of leave to the Plaintiffs to amend the Re-Amended Statement of Claim so as to amend this claim to a claim by the first Plaintiff who had paid for the towage and repairs. The amendment was allowed on the basis that the Plaintiffs conceded that if contributory negligence by the deceased were established then the first Plaintiff would in effect be treated as identified with that negligence and this claim should be reduced accordingly and notice of contribution should be dispensed with.

LIABILITY

7. By paragraph 2 of the Re-Amended Statement of Claim the Plaintiffs pleaded that the collision of the white car (the property of the second Defendant, driven by the first Defendant as servant, agent or driver of he second Defendant) with the green car and with the deceased was due to the negligence of the first Defendant. In paragraph 3 of the Re-Amended Statement of Claim it was alleged by way of particulars of negligence that the first Defendant had :-

8. The Amended Defences of the first and second Defendants were in common form. By paragraph 2 of those pleadings it was admitted that "the deceased was involved in a collision with the white car" owned by the second Defendant and driven by the first Defendant on the date and at the place alleged in the Re-Amended Statement of Claim but negligence on the part of the first Defendant was denied and it was also denied that the first Defendant was a servant or agent or driver of the second Defendant.

9. However at the trial no evidence was adducted by or on behalf of the second Defendant on the issue of his vicarious liability for any damages attributable to an negligence found against the first Defendant. His ownership of the white car at the material time having been admitted his counsel informed the court that he conceded that he had called no evidence to rebut the presumption, arising from the admission of ownership in accordance with Barnard v. Sully (1931) 47 TLB 557, that the first Defendant had driven as the servant or agent of the second Defendant at the material time.

10. As to the issue of the first Defendant's negligence, both Defendants denied by paragraph 3 of their Amended Defences that the Collision was caused by the negligence of the first Defendant. By paragraph 4 of the Amended Defences it was pleaded that the collision was the result of an inevitable accident occurring notwithstanding the exercise of all reasonable care by the first Defendant.

11. By way of particulars to this defence it was pleaded as follows. A section of the road some 50 to 60 feet behind the scene of the collision was flooded with water from a fractured water pipe to a depth of about 6 to 7 inches but the road was dry apart from the flooded section.

12. It was further pleaded that at the time of the collision the first Defendant was driving at an estimated speed of about 30-40 m.p.h and upon seeing the flooded section of the roadway he had reduced his speed to 20 m.p.h. and changed to low gear. Notwithstanding these precautionary measures the white car skidded upon entering the flooded section of the road and the first Defendant was unable to avoid the collision.

13. In paragraph 5 of their Amended Defences the Defendants pleaded further or alternatively that the collision had been caused wholly or in part by the negligence of the deceased and particularised this allegation by alleging the following matters:-

14. On the issue of liability the Plaintiffs called three witnesses, namely Mr. Kwok Yin Bun (PW1) a taxi driver, and P.C. 11779 Lee Shun Leung (PW3) and Sergeant 14303 Chu Shui Kin (PW4) of the Royal Hong Kong Police Force.

15. PW1 who impressed me as being an honest and reliable witness gave the following account of the circumstances leading up to and of the fatal accident to the deceased. Immediately prior to the accident he was driving along in the middle of three lanes in Princess Margaret Road travelling in a northerly direction and going down hill carrying a passenger in his taxi, Registration No. BP7808. As he rounded a bend at 30 m.p.h. in fourth gear approaching the Pui Ching Road flyover which crosses Princess Margaret Road he saw that some vehicles with their tail lights swaying had applied their brakes and that there was water under the flyover When he saw this at some distance his head lights and rear lights were on and he changed down to third gear and reduced speed to 20 m.p.h.

16. The street lighting was normal as he came round the bend but there was no lighting under the bridge. There were fluorescent lights under the bridge but they were off. He saw the water shadow under the flyover and the entire section of the road was flooded across almost three lanes. As he went down towards the dip he noticed that some of the vehicles ahead of him skidded a bit and were driven away.

17. When PW1 reached the water a green car was abreast of him and just overtaking him. As they went into the water he noticed that the green car's brake light was on. The rear part of the green car skidded and swerved and its right rear bumper corner came into contact with the left front bumper of PW1's taxi. PWI's taxi did not skid because he had noticed the water and did not use his brake. As he had entered the water there was a car ahead in the right hand lane. He did not see it skid, it slowed down and proceeded on slowly. There were one or two vehicles ahead.

18. After the green car had touched PWl's taxi it travelled on quite a distance and stopped. PW1 overtook the green car and stopped and reversed to within about three to four feet of the front of it. Under cross-examination PW1 marked on a photograph (Ex. P5a) a red cross to indicate where the green car had stopped. This photograph was one of a group of photographs (Ex.P1 to P12 inclusive) which were never formally proved by the Plaintiffs but counsel for both sides made use of them as if they fairly represented the vicinity and scene of the accident in daylight.

19. PW1 had stopped his taxi at a level spot where there was a pavement on the left hand side with iron railings to be climbed over or gone through to get on to the pavement. He alighted from his taxi and after looking at the front of his vehicle, walked to the rear of the green car. He left on his taxi's tail light and yellow flashing light.

20. The driver of the green car walked to the rear part of his car and stood at the right rear part of his car looking at the damaged part. He was about two feet from his car, standing behind the right rear corner side.

21. Whilst PW1 moved down to that position he saw two to three other cars came through the water. Under cross-examination he said that as he walked along the pavement he was looking at the water all the time because he was afraid of a skidding car. The cars he saw skidded slightly only. He agreed it was a dangerous place to park and it was not his choice He would have parked further up the road but there was no room for parking at that section. One had to go further. He admitted that there was no damage to either vehicle to have prevented them going to a safer spot. Under re-examination he said that when his car was hit or he hit another car his practice was to find a place to stop as near as possible to the place of the accident, and of course a safe place.

22. PWl did not notice if the green car had any light on after it stopped.

23. He saw a white coloured vehicle in the mdidle part of the road. He noticed that when it touched the water it spun to the right and it then flew towards their position very fast. It spun more than once for a few circles.

24. He cried out "a vehicle is coming up" and it seemed to him that he tried to pull the driver of the green car away. PWl immediately ran up to the railing and went through it. He was lying on the railing and in pain. He heard the sound of a vehicle's impact. He did not know if he was hit. Later he saw the other driver lying still three to four feet away from the kerbside with his head pointing towards the outer lane and his feet towards the pavement. The other driver's head was almost in line with the rear right corner of his vehicle with his body crumpled up and his face towards the vehicle.

25. PW1's evidence was that except for the water at the dip the rest of the road was dry. Pressed under cross-examination PWl said that he had seen another vehicle behind and to the right of the white vehicle, in the fast lane, but he did not pay particular attention to it. The spinning car seemed the faster of the two. PW1 also said that he did is not move taxi and he had no idea if the green car was moved before the police arrived.

26. PC11779 (PW3) had been called to the scene of the accident at 0328 hours and made a plan time dated 0335 on the 8th December 1980 which he subsequently used as the basis for a sketch map made at 1700 on the same day. He produced the sketch map (Exhibit P21) showing the position of the three vehicles as he saw them at the scene and using a lamp post and iron railings as datum points which, in conjunction with the Pui Ching slip road, are readily identifiable on the photograph Exhibit P12 and others.

27. PW3's sketch map showed the position of blood stains at the rear near side of the green car (BP816) which is depicted as being on the edge of a section of road extending back to the flyover and described as having a wet and slippery surface. PW3 explained that the wet and slippery area was caused by vehicles coming through the flooded area and depositing mud. The whole of the section of road under the flyover is re shown as "flooding with mud" to a depth of 7 inches, the flooding emanating from a salt water pipe just north of the flyover on the nearside of the road.

28. The distance from the southerly extremity of the flyover to the blood stains is shown as about 110 metres. Applying a scale to the section of the road covered by the flyover I estimate that that section measures about 34 metres and the section between the northerly extremity of that section (the flooded area) and the blood stains measures about 76 metres.

29. PW3 produced photographs (Ex. P13-20) which he had taken at the scene showing the positions of the cars and the extent of the damage sustained by them. He also produced a statement (Ex. P22 and P22A) which he had recorded from the first Defendant at 6.30 a.m. on the day of the accident.

30. In his statement the first Dependant is recorded as saying inter alia that his car had automatic gears, that before the accident he was driving in the middle lane of Princess Margaret Road going north at about 40 m.p.h. down a slope near Pui Ching load and -

"At that time, at a distance of 15 feet ahead on my left hand side of the pavement, I saw a pool of water flowing out and causing flooding on the road. I saw a pit in the ground, I applied low gear and quickly slowed down my vehicle. As my vehicle crossing (sic)over the water pit, I lost control of my vehicle and it turned round to the left. Then my vehicle skidded forward for about 50 to 60 feet. I saw on my left-hand side, 2 private vehicles which parked on the first lane. 2 men were at the right rear corner of a green private vehicla. I still could not control my vehicle and bumped into the rear of the green private vehicle. The green vehicle was hit by the left side of my vehicle, my vehicle was still turning round .......'

31. PW3 could not remember if he saw any lights of the taxi or the green car on when he arrived at the scene.

32. Sergeant 14303 (PW4) attached to the Special Accident Enquiry Section of Kowloon Traffic Branch had made enquiries into the accident but did not go to the scene on the night of the accident. However he was familiar with the road and there was a 30 m.p.h. speed limit As far as he knew there were no stopping restriction signs at the scene of the accident.

33. He was cross examined with reference to the photographs taken by day (Ex. P1, 2 and 6) to bring out the point that a speed higher than 30 m.p.h. is permitted until the bend approaching the flyover where there is a sign for reduction of speed prior to the imposition of the 30 m.p.h. limit just before the flyover (see Photos. P1 & P2).

34. Under cross-examination he admitted that (as seems clear from the photographs) the section of the road shown in Ex. P1 & P2 before the flyover, the bus stop section shown in the Ex. P6, and the section where the Pui Ching access is situated and beyond where there are iron railings along side the pavement, are all sections where vehicles are not supposed to stop, pedestrian should not get on to the road and passengers should not alight from vehicles. However under re-examination he reiterated that there were no "urban clearway" stopping restrictions on that section of the road.

35. The evidence of the first Defendant was to the following effect. His estimated speed at the bend approaching the flyover was about 30 odd m.p.h. with head lights full on. He noticed the water under the flyover when he reached the spot which he marked with a red cross on the photo-graph Ex. P2. Under cross-examination he said that he was 10 feet away from the water her he first saw it. He then slowed down to about 20 m.p.h. and he had done this by the time the car fist went into the water. He went cautiously through the water and did not apply his brakes or turn the steering wheel. After he had gone through the water his car skidded. There was another car, a taxi, going through the water, on his right, as he went through. He thought his car and the taxi were doing the same speed.

36. When his car skidded it spur round to the left towards the rear part of the green car which the first Defendant had noticed with its lights off in the first lane when he was going through the water. It seemed to him that when he noticed the green car there was a person standing there. Under cross-examination he indicated the spot where he said he skidded by marking PW3's sketch plan (Ex. P21) with a red cross in the middle lane just clear of the flooded area.

37. In chief the first Defendant first said that he did not apply his brakes when in the skid. He also said that he did not turn the steering wheel when in the skid because there were other vehicles on his right hand side. Later in chief the first Defendant said he could not remember if he applied his brakes before hitting the green car and he might have turned the steering wheel before he hit the deceased. He then went on to say he did steer the steering wheel a bit, to the right because he was skidding towards the direction of the green car. When he did this his car was out of control.

38. Later under cross-examination the first Defendant said that he did not know if he swerved or not before hitting the deceased because at the time he had his hands on the steering wheel and his head lowered down.

39. The first Defendant was cross-examined at length about the circumstances of the accident and at the conclusion of all the evidence I was satisfied that on the balance of probabilities the Plaintiffs had proved the negligence of the first Defendant. Indeed the evidence was so strong that counsel for the Defendants addressed me at the end of the trial without reference to the defence of inevitable accident and on the assumption that I would find negligence proved against the first Defendant.

40. Briefly, my reasons for so finding are as follows. I accepted the evidence of PW1, PW2 and PW3. PW1 and the drivers of several other cars had successfully negotiated the hazard of the flooded section PW1 had demonstrated that notwithstanding the absence of lighting under the flyover the water could be seen from the approaching bend by a driver using headlights and paying due care to the driving conditions and in time to slow down to a safe speed. Moreover a sign at the approaching bend required drivers to reduce speed at the bend and there was a 30 m.p.h. restriction at the flyover itself.

41. PWl's evidence also established that drivers who applied their brakes (as indeed the deceased had done) skidded in the water but all of them had negotiated the water and the slippery area beyond without going into a spin.

42. The photographs (Ex. P15, 16, 17, 18 and 20) taken by PW3 at the scene indicate damage to the green and white vehicles of such a severe nature that the impact of the green car must have been the result of considerable velocity which in turn can only be explained by the first Defendant having been driving at excessive speed when he approached the water. The inference of excessive speed is made stronger by the distance tavelled by the spinning car before reaching the green car and striking the deceased and the green car with considerable force.

43. I found the first Defendant an unreliable witness. Moreover he insisted that he went in to a skid when he was clear of the water but he told PW1 in his statement (Ex. P22) that this happened as his vehicle was "crossing over the water pit" and in paragraph 4(iii) of his Amended Defence it is pleaded on his behalf, presumably on instructions, that the car driven by the first Defendant "skidded upon entering the flooded section ......."

44. Accordingly I find that the Plaintiffs have proved negligence on the part of the first Defendant in that he drove at excessive speed when approaching the flooded section of the road and failed to have sufficient regard to the road conditions and to control his vehicle so as to avoid the collision.

45. The effective issue regarding liability was that concerning contributory negligence pleaded by both Defendants and it is for that . reason that I have set out above the substance of the evidence of PW1 which I accept as a reliable account of the circumstances of the accident reinforced by the additional evidence of PW3 and PW4 the substance of which I also accepted.

46. To establish contributory negligence on the part of the deceased for the purposes of section 21 of the Law Amendment and Reform (Consolidation) Ordinance (Cap. 23) the Defendants must prove that the damage suffered by the second Defendant's car and the fatal injury suffered by the deceased was partly the "result" of the "fault" of the deceased as defined in section 21(9) to include any act or omission which would, apart from section 21, give rise to the defence of contributory negligence.

47. To establish "fault" for the purposes of contributory negligence it is sufficient to show that, in the present case, the deceased failed to take reasonable care for his own safety and for the safety of his mother's car: Davies v. Swan Motor Co. (1949) 2 K.B. 291 (C.A.). As to the relevant standard of care I respectfully adopt the dictum of Lord Denning in Jones v. Livox Quarries Ltd. (1952) 2 Q.B. 608 (C.A.) at p.615 to the effect that a person is guilty of contributory negligence "if he ought reasonably to have foreseen that, if he did not act as a reasonable, prudent man, he might be hurt himself; and in his reckonings he must take into account the possibility of others being careless".

48. If "fault" or negligence on the part of the deceased can be proved in this case by the Defendants they must also go on to prove that the damage to the green car and the injury to the deceased was partly the "result" of that "fault" or negligence. As Lord Denning pointed out in Jones v. Livox (Supra) at p.p. 615 and 616 this is a question of causation to be determined as a matter of common sense more than anything else and "Once negligence is proved, then no matter whether it is actionable negligence or contributory negligence, the person who is guilty of it must bear his proper share of responsibility for tic consequences. The consequences do not depend on foreseeability, but on causation. The question in every case is : What faults were there which caused the damage? Was his fault one of them?"

49. Approaching the issue of contributory negligence in the light of the above authorities 1 accept the contention of the Defendants that the deceased was guilty of contributory negligence in this case.

50. As regards the damage to the green car I find that by parking the car where he did within a little more than about 76 metres of the flooded section of the road in which he had himself skidded and had an accident the deceased failed to take reasonable care for the safety of the car.

51. He had just driven along Princess Margaret Road which is clearly designed to carry three lanes of traffic in a northerly direction with barriers erected to deter people from getting on to the carriageway from the pavement or from alighting on the pavement from stationary vehicles. It was about 3.25 a.m. and the deceased must have seen the same traffic on the road which PWl had seen and he must have realised that the relatively sudden confrontation with the flooded section of the road under the unlit flyover with its attendant risk of skidding would be a hazard to all traffic and a particularly serious hazard to drivers who might be driving too fast on principal highway and without proper care and attention to the condition of the road.

52. Under such circumstances when there existed to his knowledge in unexpected and major hazard likely to put careless drivers out of control of their vehicles the deceased ought reasonably to have foreseen that if he did not get well clear of the flooded area there was a possibility that a vehicle might get out of control in the flooded area and crash in to the green car.

53. By parking as he did I consider that the deceased put his vehicle in a hazardous place under the circumstance and the damage it sustained was within the scope of the risk created by his negligence. By exposing the green car to such a risk he contributed to the damage to the car.

54. It was contended on behalf of the Plaintiffs that the place where the deceased stopped the green car was visible for hundreds of yards away and was an eminently sensible place, there being no evidence that the road was an urban clearway. For the reasons given above I could not accept this argument, and emphasise that PWl, the taxi driver and a witness for 'the Plaintiffs, himself said in evidence that as he walked back from his taxi he kept looking at the water because he  was afraid of a skidding car and it was a dangerous place to park and not of his choosing.

55. It was argued on the Plaintiffs' behalf that the deceased was obliged to stop at the scene of the accident by resection 27(1) of the Road Traffic Ordinance (Cap. 220) and Lee v. Knapp (1967) 2 Q.B. 442 was cited to support this proposition.

56. Although section 27(1) of the Road Traffic Ordinance was applicable in the situation that had arisen it provides that the driver "shall stop" and give the relevant information. It does not, in my judgment, require that the driver shall stop dead or preclude him from travelling a reasonable distance to a safer place before stopping so as to avoid stopping in such a manner as to create or aggravate a hazardous situation.

57. In Lee v. Knapp (Supra) a decision on section 77 of the Road Traffic Act, 1960 in similar (but not identical) terms to section 27 of the Road Traffic Ordinance, it was not disputed that the defendant had stopped his vehicle in compliance with the statute. The court was concerned only with the obligation of the driver to remain and give particulars. In the judgment of the court delivered by Winn L.J. he said that the phrase "the driver of the motor vehicle shall stop" was properly to be construed "as meaning that the driver of the motor vehicle shall stop it and remain where he has stopped it for such a period of time as in the prevailing circumstances, having regard in particular to the character of the road or place in which the accident happened will provide a sufficient period" to facilitate the giving of the relevant information.

58. Winn L.J. also approved the finding of the stipendiary magistrate that the Defendant "did not remain at the scene of the said accident" long enough to facilitate the giving of the relevant particulars. However, having regard to the issue before it I find nothing in the judgment of the court delivered by Winn L.J. to persuade me to construe section 27((1) of the Road Traffic Ordinance as precluding a driver from driving his vehicle a safe distance away from an obvious hazard before stopping in compliance with that provision. Put another way, section 27(1) is not in my judgment, to be construed as requiring a driver to stop his vehicle, after an accident, in dangerous place.

59. On the issue of causation counsel for the plaintiffs cited Dymond v. Pearce (1972) 1 Q.B. 496 (C.A.) as reported at first instance in (1971) R.T.R.417. In my judgment that case is clearly distinguishable on its facts and as not being concerned with contributory negligence.

60. As regards the injuries sustained by the deceased I repeat the reasons for my finding of contributory negligence in the case of the damage to the green car but add the following. I accept the contention on behalf of counsel for the Defendants that when the deceased stood at the rear of the offside of his car in the road looking at the damage he was not carrying out any duty imposed upon him by section 27(1) of the Road Traffic Ordinance but was acting in a manner which was negligent and showed a failure to take reasonable care far his own safety.

61. Having full knowledge of the hazard existing in the flooded. section of the road he ought reasonably to have foreseen that if he stood in the road at the relevant hour when traffic was passing he might be hurt, particularly as was putting himself in a position where, unlike PW1, his eyes were diverted from the traffic behind him. Again, in my judgment, the injury the deceased sustained was within the scope of the risk created by his negligence and his conduct clearly contributed to the injuries he received.

62. Accordingly I conclude that the deceased. was contributorily negligent in relation to the damage to the green car and to his own fatal injuries. Considered from the point of view of both causative potency and blameworthiness I consider that the deceased's share of responsibility for the damage to the green car and for his own injuries to be one third and the Defendants' share to be two thirds.

DAMAGES

(A)    Under FAO

63. The dependency claim under FAO was made in respect of the Plaintiffs as parents of the deceased and Madam Ma Ling Tsai  as his grandmother. At the date of the deceased's death, the first Plaintiff (the deceased's father) was 56, the second Plaintiff (the deceased's mother) was 54 and the deceased's grandmother was 77.

64. By paragraph 4 of their Re-Amended Statement of Claim as further amended at the trial the plaintiffs pleaded that prior to his death the deceased was earning $5,000.00 per month plus yearly bonuses and that a from July l981 he could have expected to have been promoted to Production Manager with the minimum annual salary of $130,000 plus a yearly bonus of $6,000 to $30,000. It was also pleaded that the deceased contributed the monthly sum of $3,000 to the support of the plaintiffs and $500 per month to his grandmother.

65. Under this head of claim the Plaintiffs relied on the evidence of the first Plaintiff (the deceased's father) (PW6) and that of the deceased's grandmother. They also relied on the evidence of Mr. Alton Yallaz (PW7) as to the deceased's actual and prospective earnings. Prior to the giving of his evidence Law Yee Ha (PW5) a lady who is the personnel manager of the company which employed the deceased gave evidence regarding the earnings of the deceased but when it was discovered that Mr. Alton Yallaz (the Production Manager) was available as a witness the Plaintiffs relied solely on his evidence regarding his earnings and the earnings of the deceased.

66. The second Plaintiff did not give evidence and the defence admitted her age at the trial.

67. The evidence of the first Plaintiff regarding the dependency claim was to the following effect. At the time of the deceased's death he was living with the Plaintiffs and his younger brother (who is now married but was then unmarried) in the Plaintiffs' flat at 331 Prince Edward Road, Kowloon. The flat comprises about 1,300 square feet. The deceased was contributing $3,000 per month to the household expense. He had been contributing to those expenses for 2 or 3 years. Originally he contributed $2,000 per month and the amount was increased to $3,000 about a year before his death.

68. In chief the first Plaintiff said he was employed at a stocks and shares company and that his wife was not employed. It emerged, however when he was cross-examined that he had previously run a tailoring business in Germany whence he had returned to Hong Kong in about 1971 with about $200,000 and acquired his flat for $159,800. He also disclosed under cross-examination that the Plaintiffs and the deceased had been partners in a tailoring business in Hong Kong and that in 1982 he and his wife had made a profit of about $60,000. He said he earned a fixed salary of $3,500 per month in the stock broking business.

69. He was clearly upset by being cross-examined about his means when making a claim arising out of his son's tragic death. Under cross-examination he was asked what he was worth and replied that he had the flat and he and his wife had the tailoring partnership into which the deceased had put $20,000. He had shares worth about $8,000 and he and his wife had $20,000 on deposit.

70. He said that his surviving son gave him $1,000 per month as a contribution to household expenses and insisted under cross-examination that the disparity between that sum and the $3,000 he said the deceased had paid him as a filial act was the result of the higher salary earned by the deceased.

71. Under cross examination the first Plaintiff gave a rough estimate of his family's household expenses as being about $5,000 per month, including $1,500 for a servant, $1,500 for food and $5-600 for electricity and other charges and unquantified expenditure on fruit and sea food. He did not segregate the $4,000 per month paid him by his sons from the the other moneys of himself and his wife and treated these contributions as his own, using part of them for massage treatment. He admitted that what his sons gave him about covered all the household expenditure with a little over. He did not pay for the deceased's clothing or entertainment and the deceased seldom used the second Plaintiff's car.

72. The deceased's grandmother said she lived at No.497 Nathan Road and that the deceased had called and given her $500 every month. She could walk without the aid of a stick. Her sight was blurred and she was deaf in one ear and she had been in hospital twice during the last 3 years for periods of 2 weeks and 3 weeks respectively.

73. I accepted the evidence of the first Plaintiff regarding the amount he said the deceased had paid him towards the household expenses and that he had not segregated the sum of $3,000 from the other moneys available to him and his wife. In my view the first Plaintiff was net, as the defence contended, concocting an inflated figure as the deceased's contribution and I accepted the submission of counsel for the Plaintiffs that the cases noted in Martin and Rhodes on Damages for Personal injuries and Fatal Accidents in Hong Kong indicate that it is not unusual for a single young Chinese man to contribute a substantial part of his earnings to his parents.

74. The evidence of the deceased's grandmother was not challenged and I accepted it.

75. The deceased's service contract (Exhibit P24) was expressed to operate from the 1st January 1980 to the 31st December 1984 and to make the deceased eligible for the post of either Production Manager or Assistant Production Manager depending on the success of his training programme due to end on the 31st December 1981. "Guideline salaries" for these posts were expressed to be $8,000 and $6,000 per month respectively and in a letter (Exhibit P25) dated the 7th May 1982 (the admissibility of which was not challenged by the Defendants) the company's managing director asserted that the ultimate goal of the deceased's training was to take over as Production Manager in January 1982 at a minimum salary of $130,000 per annum with a yearly bonus of $6,000 to $30,000.

76. However at the trial Mr Alton Yallaz (PW7) who gave evidence about the deceased's earnings and prospects and who impressed me as an intelligent and informed and credible witness presented a more favourable picture. He is a director and responsible for production and personnel of Ron Walker Ltd., the company which employed the deceased. Ron Walker Ltd. is owned by a German company and produces and exports garments.

77. I accepted his evidence that the deceased who was originally employed by his company as a translator had shown such promise that it was decided to train him for the position of Production Manager. Mr. Yallaz was actively concerned with the deceased's training and had written out in German the training programme attached to the deceased's employment contract (Exhibit P24) which provided for a training programme from the 1st January 1980 until the 31st December 1981. The deceased trained in Hong Kong and in Germany and Switzerland. He had been sent abroad for three months of his training.

78. Mr. Yallaz said that at the deceased's death in December 1980 he had finished his basic training and was about to start working with Mr. Yallaz for six months. At the end of that period the plan was that the deceased would take over the functions of Production Manager from Mr. Yallaz because the latter planned to leave the company in 1981. He had in fact remained on after the deceased's death because no suitable applicants could be found to be trained for his post despite advertisements by the company.

79. Mr. Yallaz was the person who, subject to the final word of the General Technical Manager in Germany, would decide the fate of the deceased in the company. Mr. Yallaz had evaluated the training of the deceased as being very successful before his death.

80. Mr. Yallaz himself, as an expatriate who had been with the German company 10 years and came do Hong Kong in 1976, was drawing a salary of over $300,000 per annum at the date of the trial in January 1983 and with bonus and benefits he received over $500,000 per annum.

81. Although originally the deceased's contract only provided for a salary of $8,000 per month for the post of Production Manager he would expect that in January 1983 the deceased as a non-expatriate would have been paid a basic salary of $200,000 and an overall minimum of $250,000 with benefits. If the deceased had lived Mr. Yallaz had in mind at the end of December 1980 that the deceased should be paid at least $7,000 per month from the beginning of 1981 as Assistant s Production Manager.

82. Mr. Yallaz envisaged that in mid 1981 his company would have paid the deceased a minimum of $130,000 per annum and by December 1981 Mr. Yallaz would have recommended a bonus for the half year for the deceased of around $20,000. For the year 1982 he considered that the deceased would have received a bonus of about $25,000.

83. Under cross-examination he said bonuses were geared to productivity and efficiency. He insisted that the company had had confidence in the deceased. As regards the effects of the recession on the company's business he said that it had the effect of stopping production for the U.S.A. but not Europe. He expected orders to remain the same but it was very difficult to say.

84. Although Mr. Yallaz's evidence of the prospective earnings of the deceased during the pre-trial period subsequent to the deceased's death were substantially in excess of the guide line salaries specified in the deceased's contract which was due to run until the 31st December 1984, I accepted his evidence as being an informed and realistic estimate of what the deceased would probably have been paid by the company during 1981 and 1982 had he lived.

85. As regards the post-trial earnings of the deceased (effectively his earnings from January 1983 onwards) which Mr. Yallaz put at a basic minimum of $200,000 and an overall minimum of $250,000, I consider that in projecting into the future with all its uncertainties I should accept a discounted overall figure of $200,000 as a probable and reasonably conservative estimate of the deceased's likely gross earnings during the post trial parts of the multiplier periods of 5, 7 and 15 years adopted below.

86. Accordingly I find that, had he lived, the deceased's likely gross earnings would have been at the following rates: -

Pre-trial

Post-trial

87. It was contended on the Plaintiffs' behalf that it was reasonably to be inferred that as a dutiful eldest unmarried son the deceased would have increased his payments to his parents and grandmother as his earnings increased.

88. On this question I accepted the argument of counsel for the Defendants that whilst such an inference might be justifiable in the case of low income families it was not to be drawn in the case of the parents of the deceased who already received an amount going beyond the necessaries of life and who admitted, through the first Plaintiff, to the ownership of their own flat and a tailor's business and a combined monthly income of $8,500. I also accepted the argument of counsel for the defence that there was no evidence adduced to show any reason for an increase being probable in the case of the grandmother.

89. Furthermore I consider that the prospect of the marriage of the deceased, particularly when his earrings increased, should not be discounted and that this prospect not only militated against any increase in the dependency paymonts (c.f. Dolbey v. Goodwin (1955) 1 W.L.R. 553) but was if anything a factor tending to bring about a reduction in such payments.

Dependency claim in respect of the deceased's parents (the Plaintiffs)

90. Having regard to the notes of cases noted in Martin and Rhodes and to the suggestion of both counsel that a multiplier of 7 or 8 years would be appropriate in Hong Kong in the case of a deceased single young man of 28 who had been making payments to parents in late middle age I adopt a multiplier of 7 years or 84 months.

91. In assessing the injury resulting to the Plaintiffs from the death of the deceased I deduct from the monthly sum of $3,000 paid by the deceased to the Plaintiffs the figure suggested by counsel for the Plaintiffs, namely $500 as representing $350 (being one quarter of the total cost ($1,500) of feeding the four members of the Plaintiffs household) rounded off to $500 so as to include other imponderables provided by the parents for the deceased which ceased on his death. This leaves a multiplicand of $2,500 per month.

92. The pre-trial period between the deceased's death on the 8th December 1980 and the commencement of the trial on the 19th January 1983 is 2 years and 42 days, which I take as approximately 25 months of the multiplier of 84 months (7 years). On the footing that the dependency sum remains constant at $2,500 per month I assess the dependency damages of the Plaintiffs as being -

Pre-trial Loss

Future Loss

Dependency claim in respect of deceased's grandmother

93. In the-case of the grandmother's dependency I have taken a multiplier of 5 years (60 months). This is on the high side, but she has survived 2 years since the deceased's death and on her own evidence she appears to be in reasonable health for a person of her age. In her case I assess the dependency damages as being -

Pre-trial Loss

Future Loss

94. Damages under the FAO head therefore amount to a total sun of $160,000. Funeral expenses were not claimed under section 9(3) of FAO but they were claimed under section 20(2)(b) of LARCO.

(B)    Under LARCO

95. Counsel for the Defendants urged me to employ the alternative method of assessment indicated by the Court of Appeal in Personal Representatives of the Estate of Wong Sai Chuen (decd) v. Tam Mei Chun & Others (1981 No. 133) as being open to a trial judge when assessing damages in respect of the "lost years".

96. I decline to take this coure. On the facts of the present case where the deceased was a young unmarried man and the dependency claim under FAO is made by his parents in late middle age and his aged grandmother it is in my judgment, wrong to equate the LARCO damages for lost earnings in the "lost years" with the amount of the FAO dependency claim plus a rule of thumb 10% savings factor. I am fortified in this view by the observations of Croom-Johnson J. in Ashley v. Vickers briefly reported in the "Times" newspaper of the 18th January 1983 to which I referred both counsel at the trial.

97. The basis for the alternative method is the dictum of Lord Diplock in Gammell v. Wilson (1982) A.C. 2B at p.65 (cited by the Chief Justice at page 8 of his judgment in the Wong Sai Chuen case) where, on the footing that savings are ignored as being likely in most cases to be small, Lord Diplock equates damages for loss of earnings during the lost years with tic damages recoverable under the Fatal Accidents Acts by the widow of a deceased person. However Lord Diplock does this only by express reference to "...... the case of a married man of middle age and of a settled pattern of life, which was the case of Mr. Pickett ..." and the dictum occurs immediately after Lord Diplock. had pointed out at p.64G of the report that if Mrs Pickett had been able to claim under the Fatal Accidents Acts she would have been able "..... to recover the value of the provisions that he would have made for her needs out of his earnings during those 11 'lost years'."

98. This qualification to Lord Diplock's dictum is reflected in the words "unless there is evidence that the amount of dependency might have varied during the lost years'' occurring at p.12 of the Chief Justice's judgment in the Won Sai Chuen case, qualifying the alternative method of assessment.

99. In the present case I consider that a multiplier of 15 years is  appropriate for assessment of this head of damages. I have assessed the FAO dependency on the basis of a year dependency in the case of the deceased's parents, taking into consideration, in the usual way, the likelihood that the deceased might have married soon after the date when he in fact died. This clearly is a situation where the dependency right have varied and where the addition of the dependency damages (calculated on a 7 year multiplier) and a notional 10 per cent savings figure cannot be equated with the "free balance" of net income after deduction of the notional "personal expenses" of the deceased during the lost years.

100. In my judgment the proper way to make the assessment under the circumstances of this case is to follow the method outlined by the Chief Justice at P.10 of the Wong Sai Chuen case notwithstanding the guesswork inevitably involved in arriving at the figure on exiguous evidence to quantify this anomalous head of damages.

101. Counsel for the Plaintiffs sought to persuade me to apply the "alternative" method of assessment with variations which would, in his submission, produce a fair result Thus he advocated extending the multiplier for the dependency claim of the parents under PAO to 10 years on the footing that the deceased would. remain single and the FAO calculation was only being made for the purposes of calculating the LARCO "lost earnings" claim. It was reasonable to assume, he contended, that the deceased would have supported other dependants after the expiration of the FAO multiplier.

102. Counsel for the Plaintiffs also contended that the savings factor should be treated as anything between 10 and as much as 25 per cent because the deceased had been able to save during his life time and would have earned substantial income with relatively modest dependency payments.

103. In my judgment all these proposed variations to the "alternative" method of assessment demonstrated that that method was by itself inappropriate in this case and the proposed variations themselves involved an artificial and speculative PAO dependency calculation and further guesswork regarding the savings factor. There was no evidence to explain how the deceased had obtained the $20,000, his father said he had put in to the tailor's business and no evidence to explain the origin of the credit balance of $1,124.60 in the deceased's bank account referred to in the schedule to the Plaintiffs' grant of Letters of Administration obtained on the 19th October 1981. I do not consider there is any evidential basis for concluding that the deceased would have saved any particular percentage of his net income had be survived.

104. Accordingly, difficult though it is, I have done my best to assess this head of damages in accordance with the method outlined at page 10 of the Wong Sai-Chuen case on the basis that if I have to take a "leap in the dark" it is preferable to do so by that method.

105. As indicated above, I consider a 15 year (180 months) Multiplier to be appropriate in the case of the deceased who was 28 years of age at the date of his death. Having accepted Mr. Yallaz's evidence regarding the deceased's prospective earnings during the lost years (with an element of discount for the post-trial period) and made a finding above of the rate of those earnings I quantify the deceased's prospective net earnings during the lost years as follows, both counsel having agreed that income tax is to be deducted at the rate of 15 per cent where the gross income is or exceeds $10;000 per month

106. Pre-trial (25 months)

107. Total post-trial net income : $2,239,750

108. In accordance with the approach laid down by the  Chief Justice at p.10 in the Wong Sai Chuen case when applying Gammell v. Wilson (Supra) I have to deduct from the ascertained net income for the lost years only the costs the deceased would have incurred in maintaining himself (''personal expenses"). These expenses will include the deceased's cost of housing, food, clothing, travel ling, insurance, a holiday, entertainment, social activity and perhaps a car and these expenses should "reflect the deceased's own pattern of expenditure when alive and the general standards of reasonable expectation of persons of his background, status and income.

109. Personal savings and any contributions the deceased would' have made to his family do not form part of the cost of maintaining himself. Counsel for both parties pressed me to accept that the court should not allow for any possible marriage of the deceased and contended that the dictum of the Chief Justice at page 9 of Wong Sai Chuen's case expressed the ruling 'of the Court 'of Appeal that in assessing damages for the lost years the court was bound to treat a man who was single at his death at if he would have remained so.

110. The relevant passage in the Chief Justice's judgment is as follows:-

"It is worth noting that in White (1982) 1 All E R. '' 410, the deceased plaintiff was unmarried at his death, so that the notional cost of supporting a non existent family increased the award under this head. This seems to me to be an unnecessary leap in the dark. I would have thought that the effect on the estate of the deceased should be based upon the facts as they were when he died and that a single man should be treated as if he would have continued to be so."

111. I do not understand the dictum to be going so far as obliging me not to take into account (as Croom Johnson J. did in Ashley v. Vickers (Supra) the prospect of marriage of a young man of 28 consistently with the settled practice of the courts in FAO dependency claims in respect of dependants of young single men and women.

112. However, as the free balance of net income of the deceased to be ascertained comprises what the deceased had hoped to have available as spendable surplus income after allowing only for the deduction of the cost of maintaining himself in accordance with his background and states the marriage factor can in my view only be relevant in the present assessment because on marriage many of a bachelor's expenses are directed into supporting his wife and family. To this extent the prospect of marriage can, in my view, properly be taken into account as one of the relevant considerations without making any assumptions that marriage would necessarily have occurred.

113. In the present case the deceased was on the threshold of what promised realistically to be a successful career in the garment industry. His earnings were modest but the probability is that they would have increased dramatically in 1981 and that by July 1982 his monthly salary would have more than doubled. By January 1982 his salary after tax would have been virtually trebled.

114. At the time of his death his expenditure on his personal expenses was probably confined to the balance of $1,500 (30 per cent of his income) per month after making payments amounting to a total of $3,500 to his parents and grandmother. His background was not one of riches but he came of a family who were well off enough to own their own flat and a motor car, the latter evidently acquired from the money made available from the family tailoring business.

115. A young man of the deceased's background would in my view have been likely to expand his personal expenditure very soon after entering a substantially increased salary bracket. Whether or not he would have married and had family I consider it probable that he would very soon have entered into an appreciably more independent and expensive manner of life than that he enjoyed before his death. There must have been a realistic prospect of his acquiring a motor car and acquiring or renting a flat of his own and spending money, albeit not extravagantly, on entertainment, a holiday and insurance in addition to the ordinary necessaries of life.

116. Doing the best I can when attempting, necessarily by guesswork, to assess all these imponderables and bearing in mind the high cost of accommodation and living generally in Hong Kong I consider that taking the 15 lost years as a whole the deceased would probably have spent about 45 per cent of his net income on his personal expenses as contemplated by that expression in Wong Sai Chuen's case. I make no attempt to ascertain a different percentage for any particular period of the lost years because the very substantial increase in income would have occurred by July 1981 and I consider it likely that the deceased would have adjusted his standard of personal expenditure to his increased income.

117. On this basis I assess the damages in respect of the net lost income for the lost years as follows :-

Pre-trial loss

Future loss

118. It was agreed that the conventional sum of $15,000 was appropriate and, allowing for one third contributory negligence of the deceased, I award the sum of $10,000 as damages under this head.

119. Counsel for the Plaintiff contended that all these items were genuine and appropriate and, after referring to the note appearing in (1980) 10 H.K.W. 198 on the decision of Barker J. in Chan Lan v. Kan Wai-yan where the cost of a grave site and tombstone was allowed but not that of a memorial tablet, he conceded that the claim for $18,000 for the grave platform might be excessive.

120. Counsel for the Defendants did not cross-examine the deceased's father on any aspect of the claim for funeral expenses in respect of which receipts had been produced. However he invited the court to consider the range of funeral expenses which the court had allowed in fatality cases in Hong Kong as noted in Martin and Rhodes. Whilst many items claimed by the Plaintiffs were, he acknowledged, individually recoverable, the amounts claimed were more than reasonable and absurdly excessive.

121. Of the five items set out above I consider that, subject to the distinction between a grave stone and a memorial, all except item (5) (newspaper obituary notices) are funeral expenses. The cost of the obituary notices are expenses incurred as a consequence of the deceased's death but, however reasonable they may be, they were not incurred in respect of the deceased's funeral. I therefore disallow that item.

122. I would follow Chan Lan's case and allow the cost of an item in respect of a grave stone finishing off, describing and marking a grave but to the extent that a grave stone is in fact also a memorial to the deceased, I do not consider that its cost should be allowed: See the judgment of Deputy Judge Hytner Q.C. in Gammell v. Wilson appearing in Kemp & Kemp, Vol.. 2, pares. 13 803 where this distinction is made at para. 13 851.

123. As to the test of reasonableness in relation to the items claimed, I have born in mind that in Mak Yuk-Kiu v. Tin Shing Auto Radio Ltd. (1981) H.K.L.R. 77 the Chief Justice allowed a claim for as much as $17,000 in respect of funeral expenses where he was satisfied that the expenses had been paid and there was an absence of any evidence as to the degree to which the expenses were said to be excessive.

124. Here the evidence of the deceased's father was not challenged as to the expenditure nor was it put to him that any of the items were not reasonable. However the total claim is more than twice that allowed in Mak Yuk's case. Bearing in mind that the deceased came from a family in the middle rather than the higher income bracket and that the Plaintiffs' own counsel submitted that they were far from well off, I consider that there is a redolence of excess about a claim for funeral expenses amounting to a total of $39,692.50 and that persons in the station of life of the Plaintiffs cannot reasonably be permitted to recover such a large amount from the Defendants.

125. Accordingly, on the grounds that the expenditure incurred was unreasonably high far a family of the deceased's status I reduce the amount attributable to the grant of the grave site from $10,000 to $5,000 (a figure reasonably comparable to that claimed and allowed in Chan Lan's case in 1980) and I reduced the amount attributable to the grave platform to $5,000 as being a reasonable amount for a grave stone, as distinct from a memorial atone, for a person of the deceased's status. The overall reduction in respect of those two items and the obituary notices will therefore be $19,522.50, leaving the sum of $20,170 which, in the absence of any evidence of unreasonableness. I allow. Allowing for the finding of one third contributory negligence of the deceased I reduce this sum to $13,447.

(ii)     Damage to clothing

126. A claim for $250.00 in respect of damage to the deceased's clothing was admitted and, allowing for one third contributory negligence I award $167 under this head.

127. A claim of $2,500 for fees incurred in obtaining a grant of Letters of Administration was abandoned.

(C)    The first Plaintiff's claim for $16,021.24 and interest

128. The first plaintiff's evidence was that he had paid a towing charge of $40 in respect of his wife's car after the accident and that he had paid $15,696.24 for the repairs of the car, together with $285 in respect of a survey fee and photographs. He produced receipts for all these payments amounting to a total of $16,021.24 except the sum of $285. His evidence was not challenged and, it having been agreed by the parties that he was entitled to claim re-imbursement against the Defendants on the basis that his claim was liable to be discounted by the degree of any contributory negligence found against the deceased, I find the Defendants liable for two thirds of the total sum of $16,021.24, namely $10,681.

Merger of plaintiff's FAO entitlement in LARCO Award

129. The deceased having died intestate, unmarried and without issue the Plaintiffs, being his parents, are beneficially entitled in equal shares absolutely to his residuary estate under section 4(6) of the Intestates' Estates Ordinance (Cap. 73) and it is they who will receive the benefit of the sums awarded under LARCO. After allowing for the payment of estate duty at the rate of 14 per cent on all those sums except the funeral expenses, the amount of the LARCO award far exceeds the amount of the FAO award for the benefit of the parents.

130. Applying the principle applied in Davies v. Powell Duffryn Collieries Ltd. (1942) A C. 601 and in Won Sai-Chuen's case the damages awarded to the parents under FAO must take into account and are accordingly merged in and eliminated by the LARCO award for their sole benefit.

131. The FAO award for the grandmother's dependency is unaffected by the LARCO award.

Summary

132. I award the following damages under the following heads, after allowing for the one third contributory negligence of the deceased in relation to the damage to his mother's car and his personal injuries.

To plaintiffs under FAO

133. Dependency of deceased's grandmother

To Plaintiffs under LARCO

Total LARCO Damages

To first Plaintiff personally

134. I accordingly give judgment against the Defendants to the Plaintiffs as personal representatives of the deceased for the total sun of $20,000 under FAO and the total sum of $934,578 under LARCO and I give judgment against the Defendants to the first Plaintiff personally for the sum of $10,681.

135. I will hear counsel on the question of interest and costs.

Representation:

Mr. Eddis instructed by Kwan & Kwan for Plaintiffs.

Mr. Michael Bunting instructed by Deacons for Defendants.