Yip Ping-nam and Another v. Chan Hing-yau

HCA001828/1976

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Coram: Mr. Commissioner Litton, Q.C.

Date of Judgment: 6 December 1979

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JUDGMENT

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1. The plaintiffs are two brothers and sue as administrators of the estate of their father YIP Shui-wah who was killed in a traffic accident on the 7th of September, 1974. The writ was issued in September 1976 and by this action the plaintiffs claim damages against the defendant CHAN Hing-yau for the benefit of their father's dependants under the provisions of the Fatal Accidents Ordinance Cap. 22 and also for their father's estate under the Law Amendment and Reform (Consolidation) Ordinance Cap. 23.

2. The accident happened at about 10 p.m. on the 7th of September 1974 at a straight stretch of road in the New Territories, Yuen Long Main Road, Yuen Long. This was a dual carriage-way with three traffic lanes on each side divided in the middle by a curb which was about two and a half feet (2½) wide. There were street lamps mounted on posts standing in the central curb. At the time of the accident, the street lamps were on. The accident occurred on the west-bound carriage-way. P.C. 9344 WONG Cheuk-fan, who was attached to the Accidents Inquiry Section of Yuen Long and knew the area well, arrived at the scene at about 10.15 p.m. He said that apart from the street lamps, there was no other source of illumination. That stretch of Yuen Long Main Road was at that time, he said, not busy and such shops as remained open did not throw much light onto the roadway. Approaching the scene of the accident from some way off, well in excess of a hundred feet (100'), he was however able to see the position where the bicycle was lying on the roadway. He was also able to see the private car AR 6719 some further distance away.

3. When P.C. 9344 arrived, the injured person had already been taken to hospital. There was however a considerable amount of debris on the road - scattered vegetables, a basket, a damaged bicycle, and then some sixty-eight feet (68') beyond the bicycle, the car AR 6719. All these were on the outside lane of the carriage-way. There was also some fresh blood on the road next to the bicycle. P.C. 9344 saw no tyre marks.

4. The defendant gave evidence before me. He said he was driving his car AP 6719 on the night in question with a passenger in the front seat. He said that the street lighting was moderate and his car had the headlights on at dip. He had stopped at traffic lights earlier on and had moved off in the fast lane travelling in third gear at about 30 miles an hour when "about half a vehicle's length away a bicycle suddenly appeared". He was then asked in evidence by his counsel to describe what happened and he said

"At the moment I first saw the bicycle, my car had come into contact with the rear of the bicycle."

I did not find the defendant an impressive witness. When he was asked whether he could have swerved to avoid hitting the bicycle, he said that by so doing he could have collided with a truck carrying cows on his left. When asked whether there was in fact such a truck, he said 'No'. The fact of the matter was, and I so find, that on the night in question there was virtually no traffic on the road. The defendant saw none in front and there was none to his left. I pause here to note that in the Defence filed in September 1976, the defendant's case was that the deceased suddenly and without warning pushed his bicycle off the central island into the path of the defendant's car - an allegation which the defendant does not now maintain in Court. In his evidence in Court, he said that the bicycle was being pushed along the roadway in the fast lane, and the inference his counsel invites me to draw is that the bicycle was virtually invisible, not having any rear lights showing at the time. On the evidence, the conclusion that the defendant was at the time not keeping a proper look-out is quite inescapable. The bicycle had at the time a big load of vegetables contained in a basket tied to the pillion seat on the back; it was probably showing no rear light; on the evidence, I am unable to find that the bicycle had a reflector on the rear bumper; it was being pushed along the side of the central curb where normally bicycles are not expected to be found. Taking all these facts into consideration, the defendant ought nevertheless to have seen the bicycle some way off, certainly further than half a car's length away. I find, as a fact, that the lighting at the time was not such as to throw a man pushing an unlit bicycle into sharp relief, but it was at least sufficient for the defendant to have seen the deceased some way off, well over a hundred feet (100'). It follows that if the defendant had seen the bicycle earlier, he would have or should have given the bicycle a wider berth. Given the absence of any other vehicle on the roadway at the time, the defendant could easily have steered into the middle lane long before he came abreast of the bicycle in which event the accident would not have happened. I find therefore negligence on the part of the defendant proved. I should add that I find no evidence of the defendant having driven at an excessive speed. Given the sudden eruption of the accident and the fact that the car's brake linings were worn at the time on all four wheels, the fact that the car did not come to a halt until about eighty feet (80') from the point of impact does not lead to an inference of excessive speed. There being no other evidence of speed adduced at the trial, I absolve the defendant of that allegation in the Statement of Claim.

5. As to the defendant's conviction in the Magistrate's Court for having used the vehicle in question when the hand and foot braking system was not maintained in good and efficient working order, that only becomes of relevance in the case if the fact of conviction is material to the issues at the trial: see Section 62(1) of the Evidence Ordinance. Given the circumstances in which the accident happened, the efficiency of the brakes was of no relevance. This is not the kind of case where had the brakes been maintained efficiently the accident could have been avoided.

6. I turn now to consider the question of contributory negligence. The facts, as I find them, are as follows:

7. I reject the suggestion made by the 1st plaintiff in cross-examination that the deceased was hit near the pavement and thrown by the impact on to the outside lane. Why the deceased was pushing his bicycle along the fast lane of the carriage-way that evening will remain a mystery. I pause here to note that the suggestion made in the Defence that the deceased was in the act of crossing Yuen Long Main Road by pushing his bicycle over the central curb is no longer maintained by defence counsel. In my view, the deceased was to some extent legally responsible for the accident that evening which unfortunately resulted in his death. Whilst the defendant ought to have anticipated the presence of bicycles in the rural areas of the New Territories, and even of unlit bicycles at night, the deceased was undoubtedly taking a risk by pushing his bicycle along the fast lane. The probabilities are that the deceased's view of the rear was obstructed to some extent by the heavy load on the back of the bicycle. Given the weight of the load and the fact that the deceased must have been tired after having been at work since morning, a question does arise as to whether the deceased had full control of his bicycle at all times. A fact of significance, and I so find, is this: the damage to the bicycle on the evidence of the motor vehicle examiner, Mr. NG Ho-cheung, was mainly to the front wheel and front fork of the bicycle. There was no damage to the rear wheel which remained inflated after the accident. This removes the suggestion that the car ran into the back of the bicycle. The probabilities are therefore that the accident happened because the deceased turned the bicycle to the left just as the car was about to pass alongside. Whether it was because the deceased was unaware of the approach of the car or because he had momentarily lost control of his bicycle and his load is not of relevance to the case. In either case, the deceased was at fault. Accepting that the motorist at the wheel on the vehicle with his greater potential for harm in case he should be careless owes generally a higher duty of care to other road users than a man pushing a bicycle, it nevertheless remains in this case that a large share of the legal responsibility for the accident falls on the deceased. In analysing the respective degree of blame, the fact that it was the deceased who was killed as a result of the accident is quite irrelevant. Whilst one has every sympathy for the deceased, I think that the degree of contributory negligence must be assessed at 50%.

8. I turn now to the assessment of damages. The question in all its simplicity is this: if the deceased had not been killed, what sums would he have applied out of his income to the maintenance of his family in China? Here, I find myself considerably handicapped by the fact that the plaintiffs were unrepresented at the trial. In estimating future provision, the amounts the deceased usually applied in this way before his death are relevant and are often the best evidence available. Of course, his means might have expanded or shrunk, but unless there is evidence to indicate the position one way or the other, the Court would be engaging in speculation. Thus, the basis for estimating future maintenance must, in a case like this, depend upon the view I take as to the amounts the deceased was in fact contributing at the time of his death. Here, the position is shrouded by uncertainty. The deceased was not in regular employment earning steady income. He depended solely on the profits of his business to provide maintenance for his family. The facts, as I find them, are these: the deceased, together with his elder son, the 1st plaintiff, came to Hong Kong in December, 1973; the 2nd plaintiff had come a few months earlier. The deceased was then in his mid or late 40s. The evidence as to age was sketchy in the extreme; the plaintiffs stated in the witness-box that they did not even know their own ages. The deceased came with nothing except the clothes he stood in. He left in China his aged parents, his wife and four children said to be his dependants. I pause here to add that although the 1st plaintiff said in evidence that there were eight brothers and sisters in the family I have only heard evidence as regards four in China and of course the two plaintiffs, making six. The deceased and his sons, the plaintiffs, were farmers in China although as regards the deceased it was said in evidence that he had come to Hong Kong before for business, that is, before December 1973. The plaintiffs were unable to tell me what business that was. In March 1974, the deceased took over a frozen meat business at Hung Shui Kiu and at about the same time rented some plots of land at Sha Po Village for growing vegetables. The 1st plaintiff spent his full time looking after the vegetable plots whilst the deceased took care of his forzen meat business in the mornings and helped the 1st plaintiff with the vegetable plots in the afternoons. The deceased, in starting the two businesses, incurred considerable debt and was required to effect repayments monthly. As to how much, the evidence was totally blank.

9. The 2nd plaintiff is illiterate and his evidence is of no assistance on this score. He claims that his memory was defective because of his illiteracy.

10. The evidence of the 1st plaintiff is that all business was conducted in cash. There were no books of accounts. He was therefore quite unable to give me any idea what the turnover of the frozen meat business was, a matter I view with some surprise because after his father's death the 1st plaintiff took over the business and now runs it as his own. All he could say was that the business was, in 1974, very slack. As to the Sha Po Village farm, again, the 1st plaintiff could give me no idea how much income was yielded at the time of his father's death. The 1st plaintiff stated in evidence that his father had told him on one occasion that the net profits of the frozen meat business were $3,000 a month - a piece of evidence I view with scepticism. Overlooking the absence of a hearsay notice under the Evidence Hearsay Rules, the plaintiffs being litigants in person, and exercising my discretion under Rule 11(1) to entertain that piece of evidence at the trial despite the absence of a hearsay notice, I feel that I can attach no weight to a bland assertion of that kind, particularly so when in cross-examination the 1st plaintiff appears to agree with counsel for the defence that the repayments to the creditors would have come out of the $3,000 profit. Moreover, there was no suggestion that the profits of the frozen meat business were $3,000 each month regularly. The 1st plaintiff also asserted in evidence without any factual basis that the deceased remitted about HK$1,000 a month back to China. In this context, I note the extravagant claims made by the plaintiffs in their previous assertions:-

11. In my judgment, the probabilities are these:-

12. The only documentary evidence of remittances to China by the deceased was Exhibit P3(B) which discloses remittances as follows:-

13. I must bear in mind the fact that in 1974 the social conditions in China were probably stricter than they are now and that often people in Hong Kong remitted money to China clandestinely. The 1st plaintiff suggested in evidence that that was what the deceased did, but in the total absence of any evidence, I cannot speculate as to that and, more cogently still, guess at what the deceased might have remitted in this way. I cannot help feeling that if the plaintiffs had been legally represented, their case might have been stronger in this respect. As it stands, I can only go on the evidence of remittances adduced at the trial and that is Exhibit P3(B).

14. Mr. Kwok, who conducted his case with ability and restraint, invited me to hold that as those were the only remittances proved, dependency should be assessed at $1,000 per annum. In my judgment, it would be a legitimate inference to draw from the fact of the three remittances that there would have been others if the deceased had lived. The last remittance was in August, and, of course, it was at the beginning of September that the deceased was killed. Given the short time between the commencement of the businesses and his death, it is open to me to infer that had he lived the deceased would probably have continued remittances in approximately the sums as those disclosed in Exhibit P3(B). Exercising my best judgment, I hold the dependency to be at $320 per month.

15. As to the actual dependants, here again, the evidence was unsatisfactory. There is little doubt that the aged parents of the deceased, YIP Yu, his father, and LEE Ping, his mother, and also the deceased's wife, LEE Ngan-yuk, were to some extent dependent upon the deceased. As to the children of the deceased in China, I am left in considerable doubt since neither plaintiff was able to give any evidence as to their ages. I note in paragraph 8 of the Amended Statement of Claim that of the four children said to be dependants two are stated to be of age. As the actual identity and number of the dependants cannot increase or decrease the sum awarded and in the absence of any evidence as to their ages, I have concluded that I should make no finding as regards the deceased's children. Undoubtedly, any sum received by the widow would to some extent be expended for the benefit of the children in any event. This approach avoids the difficulty that in regard to awards to infants, the practice of the Court is to order such awards to be paid into Court to be invested at the discretion of the Registrar. In my judgment, this will probably not inure to the benefit of the children as such (if they are in fact infants) because there will undoubtedly be difficulty with regard to applications to the Registrar for payments out for their benefit.

16. As regards the multiplier, the evidence was that the deceased was in perfect health. There was no reason why he should not have lived a long and healthy life. Assuming that the aged parents would in the normal course of events die before the period of time covered by the multiplier, there is no reason to suggest that the deceased would have cut down on the amount of remittances to his wife as a result. Mr. Kwok, in his submission, urged on me the figure of 10 as the multiplier, but in all the circumstances, I feel that a multiplier of 12 years would be appropriate. In the result, the award of dependency is $46,080, made up as follows: 320 x 12 x 12; taking into account the contributory negligence, the award is therefore reduced to $23,040.

17. The usual reason for assessing damages by considering pre-trial and post-trial losses is that where the deceased is a working man in regular employment there is often cogent evidence as to (a) what he earned at the time of his death, and (b) what he would have earned at the time of the trial given normal increments and normal promotions. These considerations cannot apply on the facts of the present case where, to use the language of Lord Diplock in Cookson and Knowles⁽¹⁾, the deceased's disposable income pre-trial or post-trial is equally "conjectural". Such apportionment, however, is relevant as regards interest. On pre-trial loss, the dependants can, in justice, say that but for the death they would have received at intervals the sums now computed as the award and they have been kept out of those sums only on account of the fact that judgment was not pronounced until some time after the accident took place. The award of interest is therefore compensation for that deprivation. In this regard, the provisions of Section 48 Sub-section (4) of the Supreme Court Ordinance are of course relevant: where in any proceedings judgment is given for a sum which exceeds $3,000 and represents damages in respect of personal injuries, then the Court shall exercise that power so as to include in that sum interest on those damages as the Court considers appropriate unless the Court is satisfied that there are special reasons why no interest should be given in respect of those damages.

18. Mr. Kwok has urged me to exercise my discretion to disallow interest because of the plaintiffs' delay in prosecuting the claim, the action having become dormant from about December 1976 until about January 1979, and Mr. Kwok drew my attention to the fact that the defendant had to take out a Summons dated the 21st of March, 1979, for the Court to prescribe time limits for the plaintiffs. The fact is, of course, that Order 25 Rule 1(4) provides that if a plaintiff does not take out a Summons for directions within 14 days after the time when pleadings are deemed to be closed, the defendant may do so or apply for an order to dismiss the action. If, therefore, the defendant had a legitimate complaint as regards the plaintiffs' lethargy in prosecuting the claim, the defendant could have taken steps to ensure that the action proceeded to trial expeditiously. I reject, therefore, the submission made on behalf of the defendant in this regard.

19. For the calculation of interest, I take the pre-trial loss on the basis of 5 years. This would come to a sum of $9,600. This sum will carry interest at 4% from the date of the accident, 7th of September, 1974, until today which, to the nearest dollar, I calculate to be a sum of $1,920. Hence, the pre-trial loss is as follows: 9,600 + 1,920 = 11,520; post-trial loss: 13,440, making a total of $24,960. I apportion the sum as follows:

20. As regards the claim under the Law Amendment and Reform (Consolidation) Ordinance Cap. 23, I assess the sum of $10,000 for pain suffering and loss of expectation of life. Now where the dependants are the same persons as the beneficiaries of the estate and the estate has incurred no debts, the sum awarded under Cap. 23 must obviously be taken into account in computing the Fatal Accidents claim; to the extent that the dependants have received or will receive a capital sum awarded on account of the liability incurred by the tortfeasor, so to that extent the dependants had been compensated as regards their financial loss arising from the accident. Hence it is often said that the Cap. 23 award is "merged" in the Fatal Accidents judgment.

21. Here, the position is rather different:-

22. In these circumstances, it will not be appropriate to deduct any part of the sum of $10,000 from the Fatal Accidents claim; in the circumstances of this case, that sum will not "merge" with the Fatal Accidents award. The sum of $6,000 by way of funeral expenses had been agreed and will become part of the judgment.

23. In relation both to the sum of $10,000 and to the sum of $6,000 by way of funeral expenses, there will have to be a 50% reduction to take into account the contributory negligence. Therefore, the judgment will be as follows:-

24. I am now told by counsel for the defendant that there is in Court a sum of $29,000 previously paid by the defendant, the order of the Court is therefore as follows: that there be paid into Court a further sum of $3,960 within 7 days, making a total sum in Court of $32,960, and if within 42 days of today's date no notice of motion is filed, the same be paid out to the plaintiffs, subject:

Representation:

Plaintiffs in person

Lester Kwok (Deacons) for Defendant

(1) [1978] 2 All E.R. 604 & 609 (D)