Lee Ping Tim v. Wong Kin Foon and Another

HCA000143/1977

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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Coram: Mr. Commissioner Liu, Q.C.

Date of Judgment: 12th July, 1978.

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JUDGMENT

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1. On the 7th September, 1975, shortly after 1 o'clock in the afternoon, in Tai Po Road, Shatin, near a cafe by the name of Yucca de Lac, a public light bus Registration No. BC 943 driven by the 2nd defendant as servant and agent of the 1st defendant collided with a private motor car Registration No. AW 6994 driven by one Mr. Chan, a Fire Officer of the Un Long Fire Station. It is admitted that as a result of the accident, the deceased, wife of the plaintiff's, being a passenger of the public light bus, sustained injuries from which she died soon thereafter on the same day.

2. This is an action by the plaintiff for Law Reform damages and Fatal Accidents damages against both defendants. The plaintiff called a number of witnesses amongst whom were some of the passengers of the public light bus driven by the 2nd defendant. From the totality of the evidence given, it transpired that on the day in question the public light bus driven by the 2nd defendant was travelling from Tai Po to Kowloon along the Tai Po Road and that shortly before the accident, it was travelling in the only single traffic lane from Tai Po to Kowloon in that stretch of the road in which the accident subsequently occurred. This single traffic lane was separated by an uninterrupted white line from the opposite dual traffic lanes from Kowloon to Tai Po.

3. The driver of the private motor car AW 6994, Mr. Chan, told the Court that the public light bus was behind him and that after he had stopped completely and given signals both by indicator and hand for turning to the right to Cafe Yucca de Lac, he was crashed into in the rear by the public light bus driven by the 2nd defendant. It is common ground that as a result of the collision, Mr. Chan's private motor car was propelled by the public light bus onto the opposite pavement and that the public light bus also landed on the pedestrian pavement on the opposite side of the road hitting against the rocky hillside and overturned. From photographs A and J in the Agreed Bundle, the location of the public light bus after the accident can be seen. In photograph E which, I believe, was also referred to at one stage of these proceedings, the offside front mudguard and wheel of the public light bus are both seen severely damaged.

4. Mr. Ng P.W.5, a motor vehicle inspector, conceded by the defence to be an expert on matters of vehicle inspection, testified that there was an incision of about four inches in length on the outer side wall of the front offside wheel of the public light bus. Mr. Ng was of the opinion that damage in such a region of the tyre could not have been caused by an object, be it small or big, lying on the road surface. Mr. Ng concluded that such incision could have been caused by the impact of the public light bus with the rocky hill or a sharp object fixed to the side of the road. Mr. Ng maintained that the signs he found on his inspection were not consistent with a type puncture, and he put it quite fairly that the damage was possibly caused by some contact with the tyre side wall in an accident.

5. None of the passengers called, nor the 2nd defendant heard any loud noise prior to the accident. One of the passengers, Mr. Chan Kwong Tin, an elderly gentleman, felt particularly aggrieved. He was as descriptive in his evidence as he was displeased with the manner in which the 2nd defendant allegedly had driven the public light bus. He was quite adamant that the 2nd defendant manoeuvred the public light bus at an excessive speed and in anger. I place no reliance on Mr. Chan's assessment which was based primarily on his personal opinion. There was an allegation, but not well substantiated, by some of the other passengers that the public light bus was travelling abnormally fast at the time of and immediately prior to the accident.

6. The 2nd defendant was the only witness called by and on behalf of the defence. He told the Court that at the material time he was travelling at about 28 to 30 miles an hour. There was traffic in front, a double-decker bus, a lorry and the private motor car involved. At one time he gave the impression that he was throughout following close to the private motor car in front, but he did say at page 46 of my notes under cross-examination that when he first noticed the right indicator of the private motor car and was aware that it was intending to turn to the right, he was 30 to 40 feet behind. Then, he claimed, he braked and slowed down. He agreed that he managed to slow down, but then he went on to explain to the Court, presumably with a view to substantiating the allegation of inevitable accident raised in his defence, that the moment he saw the driver of the private motor car signal for a right turn, he attempted to apply the brakes but discovered that his public light bus suffered a brake failure. That, to say the least, is inconsistent with the earlier part of his evidence. In his examination-in-chief, the 2nd defendant did claim that he was unsuccessful in his attempt to brake, but that was immediately followed by a somewhat baffling answer at page 44:

Then again in cross-examination he reiterated that he felt his public light bus shaky. When he was asked whether the public light bus was rocking from left to right, his reply was that it swerved from one side to another. Then, counsel for the plaintiff put the following question to him:

It may be taken that he meant to say that there was a violent shake or swerve before the accident, but earlier in his examination-in-chief at page 42 of my notes he described the situation as follows:-

"I discovered my car was a little bit shaky and not steady. I tried to apply the brakes but I did not succeed. So I swerved to the right. On my left there was a steep vale."

Therefore, it would seem that the 2nd defendant sought to qualify what he earlier described as a slight shaking motion and slight unsteadiness to a violent swing or swerve. The 2nd defendant is a driver of considerable experience. He started to drive as early as 1962, and he obtained his 9-seater bus driving licence in 1964. He attempted the 14-seater public light bus in 1975. A man of his driving experience ought, in my view, to have been aware of any puncture, especially a puncture that is said to have caused this particular accident and the life of the wife of the plaintiff's.

7. The defence raises the issue of inevitable accident, and the particulars given are that when the public light bus driven by the 2nd defendant approached the entrance of Yucca de Lac Cafe, the offside front tyre burst causing the public light bus to wobble unsteadily. In my view, the 2nd defendant failed to substantiate this allegation. His evidence on the causation of the accident or the alleged violent swerve to the right is highly unsatisfactory. As a driver of his experience, he would have the Court believe and did testify that he knew not what the cause of the accident was. He did not know whether there was a puncture or, if there was a puncture, whether that was the cause of the accident. At one time he attempted to attribute the cause of the accident to brake failure, but he was ultimately content to take shelter behind a veil of ignorance. I do not find him an impressive witness. Insofar as his evidence conflicts with that adduced on behalf of the plaintiff, I do not accept it.

8. However, the burden of proof of negligence lies fairly and squarely on the shoulders of the plaintiff. The elderly passenger of the public light bus, Mr. Chan, P.W.2, seemed to have been provoked by the conduct of the 2nd defendant as a driver, and I am not unmindful, therefore, that his evidence was or might be coloured. But he told the Court that on the same day prior to arriving at or near the scene of the accident, about five minutes before, the 2nd defendant had an unpleasant verbal exchange with a man who seemed to have hailed the public light bus and that thereafter the 2nd defendant overtook two vehicles forcing them to give way by stopping. Whilst I pay little regard to the evidence of Mr. Chan as to the alleged rage of the 2nd defendant and the alleged speed of his vehicle, I accept his evidence that the 2nd defendant did drive fast after the verbal exchange with the pedestrian and did overtake two vehicles causing them to stop. This, however, has no direct bearing on the manner in which the 2nd defendant allegedly manipulated his public light bus immediately before the accident.

9. I find that shortly before the accident along Tai Po Road, the public light bus, driven by the 2nd defendant in the direction from Tai Po towards Kowloon, near its junction with the side road for Cafe Yucca de Lac, was then travelling within the single traffic lane. I also find that the 2nd defendant, as he claimed at one time, first noticed the presence of the stationary private motor car signalling for a turning to the right some 30 to 40 feet behind. I further find that the 2nd defendant attempted and did manage to slow down slightly in the hope that the extra time gained might be sufficient to afford enough opportunity for the private motor car to make its right turn thus making room for him to pass. It was a careless misjudgment on the part of the 2nd defendant, I find, that he negligently ignored the possibility of the private motor car remaining stationary yielding to oncoming traffic from the opposite direction and failed to apply sufficient brakes and that as a consequence, he was in the end left with little alternative but had to swerve to the right in order to avoid a collision with the private motor car. Although he was travelling at 28 to 30 m.p.h. or slightly less than 28 to 30 m.p.h. prior to the accident, he was driving at an excessive speed in the situation he found himself. He also swerved so carelessly that he collided with part of the rear of the stationary private motor car of the Fire Officer. He also failed to keep a proper lookout in that he failed to anticipate that the private motor car might remain stationary by the time of his approach. By his own carelessness, the 2nd defendant put himself in a position so that he had to cross over to the double-lane on the other side and crashed his public light bus over the opposite pedestrian pavement against the rocky hillside. It remains for me to say that on these facts, the 2nd defendant did drive without sufficient care or attention thus causing the traffic accident in this action and the tragic loss to the plaintiff. On the question of liability, I find against both defendants in favour of the plaintiff.

10. Mr. Wedderburn, P.W.6, gave evidence that he examined the plaintiff sometime at the end of 1976, and he produced his report, Ex. P.1, which was by consent taken as read. The plaintiff had been under the care of a Dr. Pang in Sheung Shui, and the conclusions reached by Mr. Wedderburn were more favourable than the view held by Dr. Pang. Mr. Wedderburn stated that the plaintiff had a history of tuberculosis but was fit for light carpentry work and that his disease was satisfactorily contained.

11. Miss Lee Chu who is now married, the eldest daughter of the plaintiff, P.W.8, was also called by the plaintiff. She explained to the Court that for several years prior to the death of her mother, the plaintiff, her father, rested at home. For whatever reason, the deceased was the sole bread-earner of the family with some contribution prior to her death from Madam Lee Chu who contributed $350 a month. She confirmed that her mother cooked and shopped for the family and made $600 to $700 a month in processing gloves by turning them over. A co-worker and co-passenger of the same public light bus, Madam Leung Mui, P.W.7, was also called. At the time of the death of the decased, she was taking on the same type of factory work. She testified that she made also $600 to $700 a month. I accept her evidence as well as the evidence of Madam Lee Chu.

12. Therefore, the joint family income with the contribution from the eldest daughter would be $950 to $1,050 a month. At the time, there were seven mouths to feed. On the average, therefore, individual consumption would be approximately $130 to $150 a month. The deceased's income varied from $600 to $700 a month, and allowing her own expenses at approximately $150 a month, her contribution was $450 to $550 per month. I find on the evidence that her contribution was $500 per month for the benefit of the surviving widower, the plaintiff, and the other dependants.

13. The plaintiff himself is an elderly gentleman at 62. Mr. Wedderburn indicated that his normal life expectancy in the region of about 16 years would be reduced by half on account of his diseased lungs affected by tuberculosis, i.e. to about eight years. The surgeon's estimation was approximate, and he intimated that certain statistics had yet to be consulted. Lee Chu, the eldest daughter, has since married. She is living with her own husband. Therefore, if she had been dependent on the deceased, it would have been only for another year, but her own contribution was $350 a month. The second daughter, Lee Lin, was 16 at the date of the death of the deceased, and she left school one year thereafter. She is now assisting in the household chores, presumably assuming the duties of her deceased mother, caring for her invalid father, brothers and sisters. All the children had always been fairly independent, typical of a family at this level. The children looked after themselves well even at the time when their mother was alive. I mentioned the eldest daughter's subsequent marriage and the second daughter's cessation in her education one year after the mother's death to reflect the way of life in a family such as that of the plaintiff's. The children tend to leave school and set out on their own at a comparatively younger age. The youngest daughter is still in school and so, I assume, are the two younger brothers. They are now, I am told, over fourteen, over eleven and over eight. At the time of death of the deceased, they were just about thirteen, ten and seven.

14. I would adopt the usual multiplier and multiplicand procedure. Taking all into consideration the somewhat reduced normal life expentancy of the widower, his limited earning capacity and the tendancy of children leaving school at a comparatively younger age, I would accept the submission of Mr. de Souza and apply a multiplier of eight. I find a multiplier of ten, though generally justified by the life expectancy of the deceased, a healthy woman of 45, as being quite unwarranted in the circumstances of this particular case. Not only is the multiplier of eight offered by Mr. de Souza generous, but it comes close to the ceiling in view of the brief period of dependency. However, I would not be prepared to be uncharitable by not accepting the proposed figure of eight.

15. I have found the contribution from the deceased as $500 per month, and a eight years' purchase would give $48,000.00. In addition, she rendered her services as a mother and a wife. She was doing the shopping and cooking for the family. Such loss is to be measured by the commercial cost for engaging a part-time amah in taking over the chores undertaken by a deceased mother or wife. On this aspect, I find the suggestion of $200 per month of Mr. de Souza reasonable, and I accept it. During her life, the deceased had the assistance of the eldest daughter, and if she were living today, she would enjoy the assistance of the second daughter. Therefore the service of a part-time amah would, in my view, be adequate to compensate for the loss of services so rendered. Applying my own knowledge of local circumstances and bearing in mind that the plaintiff's family live in an unnumbered hut in Fanling Lau, New Territories, a sum of $200 is enough to acquire the same services in the commercial labour market in that locality of this community. $200 per month, on a eight years' purchase, would yield $19,200.

16. As for special damages: Funeral expenses, the coffin was $2,400, and although only $2,000 was paid, the estate of the deceased remains liable to pay the balance of the $400. I would allow $2,400 for the coffin. The $70 for the tourist car impliedly hired for the funeral was unchallenged, and I would also allow that. $800 for the tomb stone is allowable. Five undertakers at $30 each, $150, would also be allowed. A Taoist priest was engaged at $200; that obviously cannot be disputed. Therefore, it comes to a total of $3,620.00. Mr. Lai, brother of the deceased, gave evidence that he laid out various sums of money for the funeral, but he did not specify precisely the nature of such expenditure. I can only sympathize with counsel for the plaintiff that due to the desire of leaving the past in the past as much as possible, small trivial items were not probed into with great enthusiasm. Mr. Lai mentioned two pieces of cloth. I am entitled to take judicial notice of the usual paraphernalia in a Chinese funeral, I would allow the white cloth and put it at an expense of $80. That would make a total sum of $3,700.00 for the funeral.

17. Mr. Lai further testified that a dinner of two tables was given to the mourners presumably after the funeral. I am inclined to the view that judicial notice may be taken of the accepted practice of providing a dinner of that kind as part of the usual Chinese funeral rites. It was the consensus at bar that such a claim was to be ignored. The case to which counsel alluded dealt with expenses in the nature of entertainment. Chan Mei-Kam v. Hong Kong Tramways Ltd.⁽¹⁾ It has been universally recognised that the burial expenses of the dead with due ceremony are to be allowed. The evidence in this case falls short of explicitly establishing that the dinner given formed an integral part of the burial rites. However, Mr. Lai was called by the plaintiff to give evidence in the capacity of a man who held the purse string and paid all the bills for the funeral expenses. In my view, his evidence, though not specific, may be taken as sufficient to establish, on the balance of probabilities, that the dinner was given as part and parcel of the rites in a usual burial ceremony for a Chinese in this community. I do not find anything inconsistent in the case commended for my consideration by both counsel. Insofar as a dinner can be established to form part of the burial rites, a local custom well observed, no authority has been cited to me that it should be disallowed. However, Mr. Huggins, counsel for the plaintiff, made no claim to the $400.00 for the two tables of dinner. When a right is abandoned or waived, the court ought not interfere. For that reason, no further consideration need be given to that sum of $400.00.

18. Finally, I would allow, as counsel rightly submitted, a sum of $1,000 for loss of society.

19. In the result, I award $48,000, $19,200, $3,700 and $1,000 - $71,900 in all with cost.

20. I also award damages for loss of expectation of life in the sum of $10,000.00 by way of Law Reform damages and a nominal sum of $50 for pain and suffering, but of course these are to be deducted from the Fatal Accident damages. Thus, the final award stands at 71,900.00.

21. Lastly, I pass to the question of interest. I was referred to Jefford v. Gee⁽²⁾ which was not followed by Cookson v. Knowles⁽³⁾. In Hong Kong, the principles enunciated in Cookson v. Knowles have been followed⁽⁴⁾. I am told that in a recent case in which interest merits serious consideration, a point of law was stated for the determination by the Court of Appeal scheduled to be heard some time next year. It would be futile, therefore, for this court to venture into the same arena. Suffice it for me to adhere to the guidelines laid down by Cookson v. Knowles and hitherto followed on occasions in the High Court with the following remark. When the number of years purchase is considered, it is essential to take account of all the contingencies, for example the life expectancy of the deceased and the dependants, the extent and duration of of the earning capacity, the period of dependancy and the immediate lump sum payment with the incidental benefit of acceleration. There does not seem to be any compelling reason for excluding from such consideration the question of interest accrued on the delayed payment of the actual loss suffered up to the date of the award. An attempt to measure more accurately the loss to the dependants by payment of interest on part of an approximate quantification in a global award seems to be unrealistic. All matters should best be taken into consideration in the selection of the appropriate multiplier.

22. With that observation, I would now seek the assistance of counsel in severing the portion of damages which would attract the of-canvassed 4% from the date of death to the date of judgment.

23. I have now had assistance from counsel. Within full view of this court, there are no less than three electronic calculators. After a protracted period of calculation and confirmation, the figure arrived at on the basis of Cookson v. Knowles⁽³⁾ comes to $2,718.70, being the 4% interest on the portion that represents losses accrued prior to date of judgment. Certain pitfalls became centre of discussion in the process of implementing the principles laid down in Cookson v. Knowles, in particular the unjustified apportionment of the $3,700.00 award for various items of funeral expenses which had been incurred long before judgment. They have, in some measure, undermined the demonstrably unrewarding endeavour to introduce an appearance of precision to a basically imprecise global assessment.

24. Therefore, judgment in the sum of $74.618.70 is to be given in favour of the plaintiff. I order payment into court by the defendants of the said sum of $74,618.70 within 14 days from to-day.

Representation:

Mr. A. Huggins instructed by Director of Legal Aid for Plaintiff.

Mr. de Souza instructed by John Ip & Co. for Defendants.

(1) (1978) 1 HKLJ 111.

(2) 1970 1 AER 1202.

(3) 1977 2 AER 820.

(4) Cheung Fung Yiu v. A.G., (1977) H.C. Action No. 2476 of 1976; Pang Yau v. Cheung Kwok Hing, (1977) H.C. Action No. 2215 of 1976.