Yuen Wai Yee and Another v. Yeung Lam Fai and Another

HCA007011/1985

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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Coram: Hon. Mr. Justice Macdougall in Court

Date of Hearing: 14th, 15th October 1986

Date of Delivery of Judgment: 7th November 1986

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JUDGMENT

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1. On the 30th October 1983 the deceased, a girl of 12½ years of age, was run down and killed by a heavy goods vehicle driven by the 1st defendant during the course of his employment with the 2nd defendant, Her mother as administratrix of her estate brings this action pursuant to the Law Amendment and Reform (Consolidation) Ordinance and claims damages against both defendants, The only matter in dispute on the question of quantum of damages is whether the plaintiff is entitled to receive an award for the lost years.

Liability

2. Evidence given on hehalf of the plaintiff established that at about 7.30 a.m, on the day of the accident the deceased attempted to cross Tai Wo Hau Road at its T junction with Hing Fong Road, It was drizzling at the time and the young girl holding an umbrella above her head walked hurriedly across the road immediately in front of a dual control private car in the near lane and the 2nd defendant's goods vehicle in the outer lane. The drivers of both vehicles had drawn to a halt behind a white line and a yellow box in response to traffic lights and had been waiting for the lights to turn green and permit them to proceed.

3. From the evidence of the learned driver of the private vehicle and that of his instructor, who were the only two witnesses as to the movements of the deceased, it is plain to me that while she was crossing the road, she was looking downwards at the road surface immediately in front of her and was paying no attention to vehicular traffic.

4. Although there was some conflict between the testimony of the learned driver and that of the instructor I am satisfied that the deceased began to cross the road either when the lights facing the waiting vehicles were showing red and orange preparatory to turning green or had already turned green. There were no pedestrian lights at that point. Either the deceased had failed to, look at the traffic lights before crossing and had assumed that the vehicles would wait for her to pass before driving on or she had seen that the lights were displaying red and orange and decided to hurry across the road before the vehicular traffic had begun to move, It seems unlikely that she would have deliberately chosen to cross knowing that the lights had turned to green in favour of vehicular traffics.   If she had looked at the lights before crossing they would have been showing red and orange at the moment she made the decision to cross, I am satisfied that between the time she looked at the lights and decided to cross, and the moment when she actually stepped onto the roadway, the lights had turned to green.

5. I accept the evidence of the instructor that it was after the lights had changed to green in favour of vehicular traffic and his pupil had begun to drive forward that the deceased suddenly appeared in front of his vehicle. The instructor immediately applied the dual control foot brake and brought the vehicle to a halt, The deceased appeared not to notice what had happened and continued to hurry across the road.

6. According to the instructor, the goods vehicle in the adjacent lane was still stationary at this stage and it was not until after the deceased had cleared the private car that it began to move forward and knocked her down. The instructor also testified that as the deceased was short in stature and was passing close to the front of the goods vehicle it would have been difficult for the driver to see her even if he had been looking downwards, I have no doubt that the instructor was in a position to form this assessment and that it is correct.

7. Apparently the 1st defendant did not realise that his vehicle had struck the deceased for he continued to drive across the T junction and it was not until he had entered into Hing Fong  Road that he drew to a halt. It seems very likely that the near-side rear wheels of the goods vehicle passed over the prostrate deceased as the 1st defendant proceeded into the junction.

8. The driving pupil testified that he did not begin to drive the private car forward until after the deceased had passed , beyond it and that it was after he had moved forward that the instructor cried out in alarm and applied the brake, I do not accept this evidence, The instructor impressed me as being a far more reliable witness than the pupil, It is reasonable to assume that the pupil's attention was focussed on manipulating controls over which he had not yet achieved complete mastery, whereas the far more experienced instructor would have been vigilant to road conditions knowing full well that the vehicle was in the hands of a tyro and that at any time it might become necessary for him to take over the controls.

9. In cross-examination, the pupil conceded that he could not be positive as to the sequence of events and added that as he had not anticipated that an accident would happen he did not pay attention. The pupil also conceded that after the lights had turned, to green, he first released the handbrake and that being a learner driver, his movements were slower than those of an experienced driver. It seems unlikely that the instructor would have shouted in alarm and applied the brake if the deceased had already passed beyond the front of his vehicle.

10. Counsel for the plaintiff submitted that the 1st defendant would have moved forward before the understandably less proficient learned driver had set his vehicle in motion. This, of course, is based on the assumption that the 1st defendant had begun to move his vehicle as soon as the lights turned to green and did not hesitate for any reason. Although I accept that Hong Kong drivers are usually prompt in their response to a green light, I am perfectly satisfied on the evidence before me that the pupil, slower than the normal experienced driver he would have been in manipulating the controls and moving off, did in fact drive forward before the 1st defendant moved the goods vehicle from its stationary position, and that the deceased was in front of the private car as the pupil drove it forward.

11. The only other witness to the circumstances of the accident was the driver of the vehicle that had drawn up immediately behind the goods vehicle at the traffic lights. This witness first saw the deceased when she was lying on the roadway after having been struck dow. Apart from confirming that the goods vehicle had moved off very slowly after the lights had turned to green, he was unable to shed any further light on the situation.

12. Although there was no zebra crossing or studded pedestrian crossing at the place at which the deceased had attempted to cross the road, there was nothing to indicate that pedestrians were forbidden to cross at that location. Indeed witnesses had seen pedestrians crossing there at other times, However, there was uncontested evidence that a short distance away and immediately beyond the yellow box which was flanked by a railing along the footpath from which the deceased had come, there was a studded pedestrian crossing across Tai Wo Hau Road. It is true that there was a small island in the centre of the road near where the deceased had attempted to cross but it can be seen from photographs produced in evidence that this is located opposite the iron railing on the footpath and does not lie in the direct route of any person minded to cross at the place used by the deceased. It is not a pedestrian island but one clearly designed for the protection of the traffic light situated on it. Bollards at each end of this small island emphasise the purpose for which it eras constructed.

13. It is apparent to me from the evidence that this is a part of the road at which it is not safe for a pedestrian to cross, that it was not intended that it should be used as a regular pedestrian crossing and that the driver of any vehicle waiting there for the traffic lights to turn in his favour had no reason to believe it was such.

14. It is incumbent on any person seeking to cross the road at such a place to see that it is safe to do so by maintaining a careful watch on the traffic lights so as to ensure that if they turn from red to red and orange preparatory to turning to green, he or she will, with due expedition, be able to reach the safety of the centre of the road between the opposing lanes of traffic or, if close to the near kerb when the lights do change to red and orange, will be able to return promptly to the footpath.

15. At the age of 12½ years, the deceased should have known that she was required to maintain a proper lookout both before stepping onto the road and while crossing it. There can be no doubt from the evidence that she had her attention fixed downwards on the road surface just in front of her and was paying no attention to the vehicles to her right which any reasonable person would have realised were clearly waiting for traffic lights to allow them to proceed and were likely to do so at any moment, Equally, the driver of such a waiting vehicle is not entitled to rely exclusively on the traffic lights and proceed without further ado on their turning to green. He must maintain a proper lookout and take such precautions as are reasonably necessary in the circumstances.

16. The 1st defendant did not testify nor did he call any witnesses in his defence. Counsel for the plaintiff seemed to suggest that I should view this unfavourably to the defendant. I do not do so. It was plain at the close of the plaintiff's case that, bearing in mind the burden of proof and the nature of the evidence given, the 1st defendant could have added little, if anything, to assist his case. In the circumstances, I consider that it was entirely reasonable for him to have taken the course which he did and thereby obtain the right of reply.

17. On a consideration of all the evidence, I am of the view that although the 1st defendant must accept some liability for not having maintained such sufficient lookout as would have enabled him to see the deceased, the major cause of the accident was the negligence of the deceased, I apportion liability 30% to 70% in favour of the defendants.

Quantum

18. Counsel agreed at the outset that on the basis that the plaintiff succeeded completely on the question of liability, there should be an award of $20,000 for loss of expectation of life. Funeral expenses were also agreed at $6,100.

19. The deceased's mother, the plaintiff, testified that the deceased had completed her primary education and that her academic performance had been average, A month before her death, the deceased had commenced studies at a technical school, According to the plaintiff, she had originally intended to send the deceased to the secondary school adjacent to the primary school that she had previously attended but that as the deceased had indicated during the course of her last or second last year at primary school that she wished to become an interior designor, she decided to allow her to attend the technical college because it offered ''designing lessons".

20. The plaintiff also claimed that at as early as the age of 10, the deceased had informed her that after she had completed her education and begun employment, she would give her the "larger part of her earnings", The plaintiff herself expected that if the deceased were to earn $1,500 a month, she would contribute $1,300 to the family income in order to cover her own living expenses at home and those of the family which consisted of the plaintiff, her husband, and, apart from the deceased, two other children, a girl and a boy two and three years respectively older than the deceased, As the deceased's earnings increased the plaintiff would have expected her contribution likewise to increase.

21. Assuming she passed an elimination examination in form 3 and her final examination in form 5, the deceased would have taken five years to complete her education at the technical college before earning income, During those five years she would have been dependent on the family for her living and education expenses.

22. The Chief Principal of the deceased's primary school gave evidence that her school records disclosed that she was above average academically and that it would have been within her capability to pass the necessary examinations at the technical school, She added however that the deceased was emotionally unstable.

23. Finally, the general manager of a firm of interior designing contractors testified that he would pay a trainee interior designer fresh from school $1;500 per month until such time as he considered that the trainee had become qualified as an interior designer, Thereafter he would pay a wage of $3,500 to $4,000 per month, The witness added that the average training period for a trainee would be three years and that he would not accept a trainee until he or she attained the age of 18.

24. Counsel for the plaintiff submitted that I should make an award for the lost years using a multiplier of 16 and a multipli-cand based on a notional contribution by the deceased to her family of $1,000 per month during her three year training period and $1,500 per month thereafter, Thus the loss to the estate from 1989 to 1992 would be $1,000 per month, that is, $36,000, and from 1992 to 2002 the loss would be $1,500 per month, that is, $180,000, The total amount for the lost years would thus be $216,000.

25. The plaintiff's evidence was far from satisfactory. I found her to be a witness who would say whatever she thought served her interests best. Her testimony, both as to the deceased's proposed intention to turn over the greater part of her future income to the family and her alleged indication that she wished to become an interior designer, was wholly unconvincing and I do not accept it, The plaintiff was unable to say what subjects the deceased had been studying at the technical school and was deliberately vague as to the expenses incurred in maintaining the deceased, She gave the distinct expression that she was attempting to minimise these expenses so as to induce me to arrive at a higher figure for the free balances The evidence of the headmistress and the interior designer was essentially unchallenged and I accept them as being truthful witness.

26. The task before me therefore in attempting to make an assessment for the lost years is, as counsel for the defendant submits, wholly speculative. Despite their efforts neither counsel has been able to cite any comparable case in which there has been an award for the lost years. Counsel for the plaintiff referred me to Lee Kai Cheung, the administrator of the estate of Lee Kai Sheng deceased v Yim Tat Kuen action No. 1374 of 1983, an assessment of damages heard by Master Barrington Jones, and to a decision of Liu J in Lee Fat, the administrator of the estate of Lee Chun Kit, deceased v Yuen Kan and Au Lai Man action No. 4092 of 1982, but I do not find either of these cases to be of any assistance to me. In the former case the deceased was 16 years of age and employed at the date of his death. In the latter, the deceased was 15 years of age at the time of his death and, had he survived, would have taken his school leaving examination eighteen months later, He was also engaged in paid part time work after school hours.

27. On the other hand, counsel for the defendants has referred me to a number of decisions to support his contention that no award should be made to the plaintiff in respect of the lost years, In the first of these, Pickett v British Rail Engineering Ltd [1979] 1 All ER 774 at 781 Lord Wilberforce uttered the following dicta:

"My Lords, in the case of the adult wage earner with or without dependants who sues for damages during his lifetime, I am convinced that a, rule which enables the 'lost years' to be taken account of comes closer to the ordinary man's expectations than one which limits his interest to his shortened span of life, The interest which such a man has in the earnings he might hope to make over a normal life, if not saleable in a market, has a value which can be assessed, A man who receives that assessed value would surely consider himself and be considered compensate; a man denied it would not, And I do not think that to act in this way creates insoluble problems of assessment in other cases, In that of a young child (of Benham v Gambling) neither present nor future earnings could enter into the matter; in the more difficult case of adolescents just embarking on the process of earning (of Skelton v Collins) the value of 'lost' earnings might be real but would probably be assessable as small."

28. Counsel's contention was that because of the extreme youth of the deceased and the long educational road necessarily ahead of her before she would be able to commence her career, the court would be obliged to embark on a purely speculative exercise in order to arrive at an award for the lost years and that the situation here was precisely what Lord Wilberforce had in mind.

29. Although she had entered, albeit barely, the period of "adolescence" defined in the Shorter Oxford English dictionary as being ".....; the period between childhood and maturity extending from 14 to 25 in males, from 12 to 21 in females", it seems to me that it is impossible for the plaintiff to maintain that the deceased was "just embarking" on the process of earning. Accordingly it would be inappropriate to make even a small assessment for the lost years.

30. That Lord Wilberforce was adverting to cases in which a child does not survive was made clear by Lord Scarman in Jamil bin Harun v Yang Kamsiah (P.C.) [1984] 1 AC 529 at 536, where His Lordship said:

"The appellant's first point is a question of law, It is that in the case of an infant plaintiff the loss is so speculative that it ought not to be considered in the assessment of damages.

Counsel relied on passages to be found in the speeches of Lord Wilberforce and Lord Salmon in Pickett v. British Rail Engineering Ltd. [1980] A.C.136. In that case the House of Lords decided that an adult wage-earner whose expectation of life had been shortened by the injuries which he had sustained was entitled to recover damages for loss of earnings which he would have had if he had lived, It was a 'lost years' case, Lord Wilberforce, after giving his view that to allow such damages created no insoluble problems of assessment in the case of an adult plaintiff, had this to say in respect of children and adolescents, at p. 150:

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In that of a young child (cf, Henham v, Gambling [1941] A.C. 157), neither present nor future earnings could enter into the matter: in the more difficult case of adolescents just embarking upon the process of earning (cf, Skelton v, Collins (1966) 115 C.L.R, 94) the value of 'lost earnings might be real but would probably be assessable as small."

In their Lordships' view Lord Wilberforce was directing his attention to the process of assessing a child's loss of future earnings in cases in which the child does not survive, i.e., in a 'lost years' case, His comment was not directed to a case such as the present where the infant plaintiff is expected to live for her normal span or, at the very least, for a substantial number of years.

Lord Salmon also adverted to the problem in his speech in Pickett's case. He said, at p, 156, of Benham v. Gambling that:

"Not surprisingly, no claim was made for damages in respect of the earnings that this infant might have lost because such damages could only have been minimal;..."

He also was considering the point in the context of a 'lost years' case.

When one turns to consider the case law where the plaintiff survives, one finds that the courts have recognised that such damages are recoverable, In Tan Chwee Lian v. Lee Ban Soon (1963) 29 M.L.J. 149 the Court of Appeal of Singapore, in a case of a girl aged 9 years, awarded damages for loss of future earnings. The girl was 'for all practical purposes, unemployable and .... her chances of marriage were virtually non-existent' (p. 150).

In Croke v. Wiseman [1982] 1 W.L.R. 71 the English Court of Appeal held (Lord Denning M.R. dissenting) that a gravely injured child of 21 months, who was expected to live for many years into adult life, was entitled to damages for loss of future earnings during his period of likely survival, Such loss was not to be treated as being so speculative that it could not be assessed, In the course of his judgment Griffiths L.J. distinguished the case of a plaintiff who was expected to live from the 'lost years' cases and made a comment, with which their Lordships wholly agree: he said, at p. 82, that, in the case of a gravely injured child 'There are compelling social reasons why a sum of money should be awarded for his future loss of earnings.' Shaw L.J.,  agreeing with Griffiths L. J., at p, 84, refused to accept that there should be any difference of principle between a child plaintiff and an adult plaintiff."

31. It is also apparent from this passage that Lord Scarman approved of the distinction made by Griffiths L.J, between a "lost years" case and one in which a gravely injured child survives.

What Griffiths L.J. had said is as follows:

"As a consequence of the decision in Pickett's case, the House of Lords in Gammell's case felt compelled to apply the same principle to a claim brought on behalf of the estate of the deceased person. If it could be shown that part of the deceased's  income was available to be spent on his dependants, then a claim for that part of the income was available to cover the lost years of working life, In the case of a child, however, there are no  dependants, and if a child is dead there can never be any dependants and, if the injuries are catastrophic, equally there will never, be any dependants, It is the child that will be dependent, In such circumstances, it seems to me entirely, right that the court should refuse to speculate whether in the future there might have been dependants for the purpose of providing a fund of money for persons who will in fact never exist. It was this consideration that led me in Kandalla v British Airway Board [1980] 1 All ER 341, [1981] QB 158 to refuse to assess a sum for the lost years in respect of two unmarried doctors by speculating whether or not in the future they would have married and set aside some part of their income for husbands or children, I refused to enter into the realm of speculation about an impossible and hypothetical situation.

However, when one is considering the case of a gravely injured child who is going to live for many years into adult life, very different considerations apply, There are compelling social reasons why a sum of money should be awarded for his future loss of earnings, The money will be required to care for him, Take the present case: the cost of future nursing case has been assessed on the basis of nurses coming in to care for him for part of the day and night, It is not a case where damages have been awarded which will provide a sufficient sum for him to go into a residential home and be cared for at all times. Damages awarded for his future loss of earnings will in the future be available to provide a home for him and to feed him and provide for such extra comforts as he can appreciate. It cannot be assumed that his parents will remain able to house, feed and care for him throughout the rest of his life, If of course damages have been awarded on the basis of the full cost of residential care so that they include the cost of roof and board, any award for future loss of earnings will be small because there will be a very large overlap between the two heads of damage. The plaintiff must not be awarded his future living expenses twice over; this would be unfair to the defendants."

32. Finally counsel referred to the following passage in the speech of Lord Scarman in Gammell v Wilson (H.L.(E.)) [1982] AC 27 at 78:

"The correct approach in law to the assessment of damages in these cases presents, my Lords, no difficulty, though the assessment itself often will, The principle must be that the damages should be fair compensation for the loss suffered by the deceased in his lifetime. The appellant in Gammell's case was disposed to argue by analogy with damages for loss of expectation of life, that, in the absence of cogent evidence of loss, the award should be a modest conventional sure, There is no room for a 'conventional' award in a case of alleged loss of earnings of the lost years, The loss is pecuniary, As such, it must be shown, on the facts found, to be at least capable of being estimated, If sufficient facts are established to enable the court to avoid the fancies of speculation, even though.not enabling it to reach mathematical certainty, the court must make the best estimate it can, In civil litigation it is the balance of probabilities which matters, In the case of a young child, the lost years of earning capacity will ordinarily be so distant that assessment is mere speculation, No estimate being possible, no award - not even a 'conventional' award -should ordinarily be made. Even so, there grill be exceptions: a child television star, cut short in her prime at the age of five, might have a claim: it would depend on the evidence, A teenage boy or girl, however, as in Gammell's case may well be able to show either actual employment or real prospects, in either of which situations there will be an assessable claim, In the case of a young man, already in employment (as was young Mr. Furness), one would expect to find evidence upon which a fair estimate of loss can be made, A man, well established in life, like Mr. Pickett, will have no difficulty, But in all cases it is a matter of evidence and a reasonable estimate based upon it."

33. From the foregoing authorities and the unsatisfactory nature of the evidence itself in this case, I conclude that no award should be made for the lost years.

34. Accordingly, on the basis of my finding on the matter of contributory negligence, I award the plaintiff the sum of $7,830 being 30% of the agreed sums of $20,000 for loss of expectation of life and $6,100 for funeral expenses, I therefore give judgment for the plaintiff in that sum and will now hear the parties on the matters of interest and costs.

Representation:

Mr. John McLanachan assigned by D.L.A, for the Plaintiff.

Mr. A, Ismail instructed by M/S Stevenson Wong & Co. for the Defendants.