Wong Hing v. Ip Fat-kwong

HCA000820/1969

IN THE SUPREME COURT OF HONG KONG

ORGINAL JURISDICTION

ACTION NO. 820 OF 1969

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Coram: Mr. Commissioner Pickering in Court.

Date of Judgment: 17 February 1970

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JUDGMENT

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1. The plaintiff claims as administratrix of her deceased husband under the provisions of the Fatal Accidents Ordinance Cap.22 and the Law Reform (Miscellaneous Provisions) Ordinance Cap.271. The claim under the former Ordinance is brought by the plaintiff on her own behalf as the lawful widow of the deceased and on behalf of five named children of the marriage whoses ages range from 12 to 1 year old.

2. Prior to his death the deceased was employed as a concrete worker and it is claimed that his wage was $18 per day. At the time of his death he was employed at the site of the Chatham Road flyover which was then under construction. On the morning of the 19th of July 1968 some of the deceased's colleagues were engaged in scooping prepared concrete into a wooden framework encasing what was to become a supporting wall for the flyover. The deceased at that time was working at ground level beneath his colleagues and was running a pneumatic vibrator over the surface of the wooden framework as a means of inducing more even setting of the concrete.

3. Parallel with the wall under construction and adjacent to it was what has been described as a mud track some 12 feet wide and, it would appear from the photographs produced in evidence, at a level a little lower than the ground immediately at the foot of the wooden framework. Evidence was given that on that morning and during the whole of the preceding day, three lorries had been engaged in transporting earth from south to north along the mud track and tipping their loads on an open area of ground to the north of the track. The defendant was the owner and driver of one of these lorries. According to his evidence when he drove on to the site his vehicle, which has a capacity of 5 1/2 tons, was fully laden and heaped with earth. The defendant says that having manoeuvred his lorry into a position from which he could reverse up the mud track in order to tip his load, he alighted from the cab and looked down the mud track where he saw nothing and nobody in his path. He then reentered the cab, switched on the ignition, checked the view behind him by means of both wing mirrors and began to reverse at about 2 m.p.h. When the lorry had covered about two-thirds of the intended distance, he felt what he described as a slight shock and stopped the vehicle and alighted. He then saw the deceased under the truck between the front and rear wheels with his head below the truck and his feet sticking out from beneath it in the direction of the wooden framework. The rear wheel of the laden truck had passed over the body of the deceased.

4. I would here interpose that although the doctor who attended the deceased upon his arrival at hospital has emigrated and was not available as a witness, it was conceded by the defence that the deceased died on that day as a result of this accident.

5. There was evidence only from one eye-witness of the accident. I am unable to regard the defendant as an eye-witness since although he was reversing the truck, he did not see what happened and only felt a "slight shock". The eye-witness who gave evidence was Mr. Koo Nam P.W.4 who was standing on the scaffolding scooping mixed concrete between the sides of the wooden framework and was above the deceased. Mr. Koo said that he saw a big truck reversing along the mud track towards the piece of open ground and that when the truck was getting near to him he turned around and saw that the deceased, who had been working from three to four feet from the wooden framework, had been knocked down. In cross-examination he said: "When I glanced round, I found the deceased already lying on the ground." It was put to him severally that he did not actually see how the truck knocked down the deceased; that seeing the deceased on the ground was the first that he knew of the accident; that his first sight was of the deceased lying under the axle of the lorry. This determined attempt to get him to repeat what he had already uttered, recoiled when the witness went on to say, "I actually saw the reversing of the truck and saw the truck knock him down. I am quite sure I saw the truck knock him down. I saw it with my own eyes. I am sure. Shortly before he was hit by the rear of the truck the deceased was working, holding the pneumatic vibrator and hitting the wooden case of the wall with it. As he did so he sometimes moved back and forwards and sometimes stood still. He crouched, moving from side to side. He was very near to the wall. There was scaffolding where he was working."

6. This was the only eye-witness evidence as to the accident. There was police evidence that on the police enquiry file there existed a statement from another eye-witness, a Mr. Tsang Keung whom the defence wished to call but who, it was said, could not be traced. An application was made by Mr. Ming Huang for the defence for the statement of this witness to be received in evidence under the provisions of section 33(1) of the Evidence Ordinance (Cap.8). The grounds for the application were that "all reasonable efforts" to find the witness had been made without success. As a preliminary to his application counsel said that the defence had "tried everything possible" to locate the witness and had "been trying the whole of Hong Kong to find him".

s.33(1) of the Evidence Ordinance reads:-

"In any civil proceedings where direct oral evidence of a fact would be admissible, any statement made by a person in a document and tending to establish that fact shall, on production of the original document, be admissible as evidence of that fact if the following conditions are satisfied, that is to say -

Provided that the condition that the maker of the statement shall be called as a witness need not be satisfied if he is dead, or unfit by reason of his bodily or mental condition to attend as a witness, or if he is beyond the seas and it is not reasonably practicable to secure his attendance, or if all reasonable efforts to find him have been made without success."

7. In support of the application, a clerk of Philip K.H. Wong & Co., the defendant's solicitors, was called and said that on the 7th of January of this year he received instructions from his principal to investigate this traffic accident and was instructed to go to the Accident Enquiry Office at Mongkok to get the names and addresses of witnesses; that he there obtained the names of two witnesses, Tsang Keung and Lai Kwan Wai, but had not succeeded in locating Tsang. The only address which the Traffic Office had in regard to Tsang was care of the Chatham Road Flyover Construction Site (a circumstance which was explained by a police witness as due to the fact that Tsang had told the witness at the time of the taking of the statement that he had no fixed abode other than the construction site) and when the solicitor's clerk visited the site, he found that construction was complete and nobody was there. Mr. Lai, whom he was able to locate, could not assist him with Tsang's address. The witness then telephoned to the Paul Y. Construction Company Ltd., which company had been in charge of the work at the flyover, and obtained the telephone number of Messrs. Ng Chun Kee sub-contractors to Paul Y and whom he understood had been the direct employers of the deceased. He telephoned to the sub-contractors and asked for the foreman who had been in charge of the flyover work for that firm and the foreman, not being on the premises at that time, subsequently called him back. The foreman gave his name as Cheung Chun Hong but said he had no idea of the present whereabouts of Mr. Tsang Keung. Upon that, the witness said, he had no other means of locating Tsang Keung. During the course of the proceedings he had asked one of the plaintiff's witnesses and one of the defendant's witnesses if they knew Tsang's address but neither did. It is relevant to the fate of this application to receive the written statement in evidence without calling the maker, that the trial of this case began on the 12th of January 1970, having appeared in the Warned List on the 31st December 1969 as being liable to be heard during the week commencing on the 5th of January 1970. The accident, it will be recalled, occurred on the 19th July 1968. The writ was served on the 11th of July 1969.

8. In cross-examination the solicitor's clerk agreed that his firm had taken no statements from any witnesses before the 7th of January 1970, five days before the trial of the action began; that he had not asked at the Traffic Accident Bureau whether they had the identity card number of Tsang Keung; that he had asked the foreman of the sub-contractors on the telephone for Tsang's home address but that the foreman, upon hearing that the enquirer's firm was acting for the defendant, had refused the address saying that the deceased's widow was represented by a lawyer, Mr. H.H. Lau and that any information should be supplied by Messrs. H.H. Lau & Co. That was the answer received when the witness specifically asked the foreman for Tsang Keung's address. Following this refusal of the address, the witness apparently made no further effort to obtain it. He did not, for example, go to the offices of the sub-contractors to see anybody there who might have had a list of addresses of employees and former employees and no attempt was made by the defence to subpoena the foreman from the sub-contractors or anybody from that firm either ad testificandum or duces tecum.

9. These being the limits of the efforts made to trace the witness, despite counsel's exaggerated claim to "have tried everything possible" and to have been "trying the whole of Hong Kong to find him", I declined to admit the written statement of Tsang Keung in evidence since it did not appear to me that "all reasonable efforts" had been made to find him. No attempt whatever was made to find him or any witness until five days before the case came on for trial and indeed the case could have come to trial on the very day (7th January) that the first attempts by the defendant's solicitor to trace witnesses were made. The Warned List of 31st December 1969 contained three cases liable to be tried in the week commencing Monday 5th January. This case was the third on that list. Had the first case been disposed of or collapsed on Monday 5th and the second on Tuesday 6th this case would have come to trial on the 7th before any attempt whatever had been made on behalf of the defendant to trace witnesses. I think it proper to issue the warning that for my part I will not permit section 33(1) of the Evidence Ordinance to be used by solicitors as a charter for dilatoriness in the expectation of being able to adduce evidence by means of written statements without any opportunity for the opposing side to cross-examine upon the evidence so adduced. Such a severe handicap is not to be lightly imposed and certainly not in a case in which only cursory efforts have been made to trace the witness concerned.

10. It follows that I must reach a decision as to liability without the assistance of the evidence of Mr. Tsang Keung. I do not know what is in his statenent beyond a comment from defence counsel that it is a very specific statement nor do I know whether the term "specific" carries within it the exaggeration inherent in "have tried everything possible" and "have been trying the whole of Hong Kong to find him."

11. However that may be the only cogent admissible evidence on the issue of liability comes from the defendant and from Mr. Koo Nam. Mr. Ching for the plaintiff, has urged that in the circumstances of this fatality the doctrine of res ipsa loquitur must apply but it seems to me that the appeal to that doctrine is inappropriate since there is actual evidence as to how the accident happened so that the issue of negligence must be determined upon that evidence. I refer to the evidence of Mr. Koo Nam to the effect that the deceased was working at the foot of the wooden framework when he was knocked down by the defendant's lorry. There was evidence that the site was noisy and that the pneumatic appliance which the deceased was operating was itself noisy and this no doubt explains the failure of the deceased to hear the approach of the lorry. The site however was a construction site and in the nature of things it was to be expected that workmen would be moving around the site in the discharge of their work. In reversing a truck heaped with earth in such a place without guidance from anybody else and, as is apparent from the defendant's evidence, without being able to see a workman behind the truck, the defendant was negligent. There is no evidence of any contributory negligence on the part of the deceased.

12. The one aspect of Mr. Koo Nam's evidence upon which there appears to be some doubt is his estimate of the deceased's distance from the wooden hoarding as he worked - a distance which the witness put at 3 to 4 feet. On the basis of photographs put in by agreement and upon which there was no cross-examination, defence counsel suggested that had this been the case the deceased would have been inside the scaffolding adjacent to the wooden framework so that the lorry could not have hit him. As I have said there was no cross-examination upon the photographs or upon the distance of the scaffolding from the wooden framework. It may be that the photographs are misleading in regard to this distance but the fact remains that there was no evidence of any damage to the scaffolding and the deceased was killed on the mud track adjacent thereto. Either the photographs are misleading or Mr. Koo Nam's estimate of 3 to 4 feet is inaccurate. Whichever be the case it remains true that the deceased was killed on the mud track and was seen to be killed by the defendant's lorry which was being reversed in circumstances in which the defendant had no guidance from anybody else and no clear view behind him. As I have already observed there is on evidence of any contributory negligence on the part of the deceased.

13. I find the defendant liable for the death of the deceased.

14. Turning to the quantum of damages I award $8,000 for loss of expectation of life. This is, I think, coming to be regarded as about the conventional figure in Hong Kong just as £500 has been the recent conventional figure in England. (see Wong Wai Chan v. China Navigation Co. Ltd.⁽¹⁾, Yorkshire Electricity Board v. Naylor⁽²⁾, Cain v. Wilcock⁽³⁾ Andrew v. Freeborough⁽⁴⁾) Certainly if $8,000 was appropriate before the devaluation of the pound sterling as representing the equivalent of £500 the figure should not be altered by reason of the devaluation of sterling since internally the Hong Kong dollar bought no more one week after the devaluation of sterling than it had one week prior thereto. On the unchallenged evidence of the plaintiff, special damages are awarded at $1,590 as claimed.

15. Damages under the Fatal Accidents Ordinance must be related to the dependency of the widow and children. The deceased was said to be earning $18 per day, to have all meals provided by his employers and to lodge for approximately half of the year at whatever site he happened to be working at. Mr. Ming Huang has not seriously disputed the figure of $18 a day but queried the frequency of the plaintiff's employment and went so far as to suggest that the deceased might have obtained his income from any source, for example by pursuing the profession of a pick-pocket. There is not a scintilla of evidence to support any suggestion that the deceased derived his income from unlawful activities.

16. Despite various arguments as to the plaintiff's credibility, none of which makes the least appeal to me, I accept her evidence as to the deceased's earnings. According to the plaintiff the deceased was very seldom without work and had employment on almost every day of the year at one site or another. In the 12 months preceding his death he had usually given her for household expenses $250 every 15 days though this figure dropped to $220 or $230 during periods when he worked less overtime. More often than not however his monthly contribution to the household expenses was $500. The deceased was a healthy man aged 38 and was the sole support of the family.

17. On the basis of contributions to household expenses varying from $440 per month to $500 per month with the latter figure predominating, a probable average of the deceased's contributions is $480 per month. Some deduction must be made from that figure in respect of the deceased's own maintenance but on the evidence such deduction should be slight since the deceased was provided with food by his employers, bought his own clothes from moneys which he retained after giving money to his wife for household expenses, and slept at home during only half the year. The household rental was $35 per month and having regard to the habits of life of the deceased a deduction of $40 from the monthly sum of $480 would appear adequately to discount his share of that monthly sum.

18. The resultant figure of dependency is $440 per month. The deceased was a healthy man of 38. There appears to be no reason why he should not have worked for another 27 years, that is, until the age of 65 if not as a concrete worker at any rate in some capacity which would have earned him a commensurate income. Indeed his life expectancy, according to the tables of the Census and Statistics Department of the Hong Kong Government was 36.33 years. His wife was younger than the deceased and so has a greater life expectancy. I have assumed a working life of another 27 years and in order to offset the advantage of receiving 27 years financial dependency in a lump sum, have discounted at 8% per annum the lump sum represented by 27 years dependency. With the assistance of "Parry's Valuation Tables" the figure at which I arrive is $57,737 from which must be deducted the sum of $8,000 awarded under the Law Reform (Miscellaneous Provisions) Ordinance. The award under the Fatal Accidents Ordinance is therefore $49,737 which is within a few hundred dollars of the figure calculated by Mr. Ching although on a different basis. The award under the Law Reform (Miscellaneous Provisions) Ordinance is $8,000 which is for loss of expectation of life there being no claim for pain and suffering; special damages are awarded at $1,590. The plaintiff is entitled to her costs. Stay of execution except as to $5,000 for 30 days.

17 FEB 1970

Representation:

Charles Ching (H.H. Lau & Co.) for the plaintiff.

Ming Huang (Philip K.H. Wong & Co) for the defendant.

(1) O.J. 792/67 (unreported)

(2) (1968) A.C. 529

(3) (1968) 1 W.L.R. 1961

(4) (1966) 2 A.E. 721.