Ngai Yuk-kwong and Another v. Chan Kam and Another
Read the full judgment text of CACV 4/1977 on BabelCite. This Court of Appeal judgment.
1. On January 13th, 1973 there was an accident in Cheung Sha Wan Road. When he was crossing the road, a carpenter, named Mak Kim, was knocked down by a private car driven by NGAT Yuk-kwong as agent for TAM Yat-tong. He died as a result of his injuries. The administrators of his estate brought an action under the Fatal Accidents Ordinance and the Law Amendment and Reform (Consolidation) Ordinance and recovered the sum of $58,112.00.
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CACV000004/1977
Coram: Briggs, C.J., Pickering, J.A. and Leonard, J. Date of Judgment: 19 September, 1977. ----------------- JUDGMENT ----------------- 1. On January 13th, 1973 there was an accident in Cheung Sha Wan Road. When he was crossing the road, a carpenter, named Mak Kim, was knocked down by a private car driven by NGAT Yuk-kwong as agent for TAM Yat-tong. He died as a result of his injuries. The administrators of his estate brought an action under the Fatal Accidents Ordinance and the Law Amendment and Reform (Consolidation) Ordinance and recovered the sum of $58,112.00. 2. This is an appeal against that award. 3. In reaching his decision, the trial judge found that both MAK Kim, the deceased and NGAI Yuk-kwong, the driver were to blame for the accident. He found that the driver was 75% to blame and the deceased 25% to blame. And the sum of damages awarded reflects this decision. 4. There are two grounds of appeal: (1) that on the evidence the trial judge should have found that the deceased was more than 25% to blame for the accident and (2) that the sum of damages awarded was excessive in that the trial judge used a wrong multiplier. 5. The circumstances of the accident were as follows. MAK Kim, a man of about 60 years of age, was crossing Cheung Sha Wan Road at about noon. He was crossing from the north to the south side of the road and was returning to his place of work after his midday meal. 6. Cheung Sha Wan Road is a dual carriageway divided by a metal fence down its centre. The carriageway, used by traffic travelling westwards, where the accident occurred, is 53 feet wide and divided into four lanes marked by intermittent white lines. 7. MAK Kim, the deceased, was making use of a studded pedestrian crossing. But before he reached his further side of the road he walked some feet to the east of the crossing and the accident occurred when he was clear of the crossing. 8. There were three eye-witnesses to the accident. One was the brother of the deceased, who gave evidence for the plaintiff. The defence called the first appellant, the driver of the vehicle concerned, and his passenger, a man called CHU Chun Wai. 9. The brother of the deceased said that he witnessed the accident from the centre of the - road. He saw the deceased walk along the studded crossing but as he drew near to the kerb he walked away from it. He was struck by the car driven by the first appellant which was travelling in the traffic lane next to the kerb. The witness also saw a double-decker bus travelling in the third lane from the kerb. He saw the car overtake the bus to the left of the bus and estimated that its speed was about 40 m.p.h. He said that the front nearside wheel of the car struck the deceased who was thrown over the car to its other side. The bus continued on its way: the car did not swerve, but stopped. In effect, his evidence was that the deceased was walking straight towards the car when he was hit: and that where he was hit was very close to the kerb. 10. The first appellant and his witness gave a different version. They said that their car was travelling in the second lane from the kerb and not in the lane nearest to the kerb. There was a bus travelling in the same direction in the third lane from the kerb. While their car was running parallel with the bus the deceased rushed from the side where the bus was and came in contact with the left part of the windscreen of the car which was smashed. The deceased fell to the left side of the car which was travelling under 30 m.p.h. at the time of the impact. If this version is right, it means that the deceased crossed the road in front of the bus and then passed in front of the car. 11. It will be seen that the two versions of the accident given differ considerably, especially as to which lane the car was travelling in, and as to the speed of the car. 12. The trial judge appreciated this and said that he was "not convinced" that the first appellant was travelling in the lane nearest to the kerb. He also considered that the speed at which the car was travelling was greater than that stated by the first appellant. It was on these two grounds that he based his finding of negligence of the first appellant. 13. He also found that the deceased was negligent in the manner in which he crossed the road in leaving the studded passenger crossing and not keeping a proper look-out for the considerable traffic that this road always carries. The trial judge did not say in so many words which of the two versions he accepted, whether he believed the version of the first appellant and his passenger or whether he believed the version of the brother of the deceased. He found as I have said that the first appellant was three quarters and the deceased was one quarter to blame. 14. We do not think that this was correct. In our view, whichever of the two versions of the accident is accepted it is clear from the evidence that both parties were equally at fault. Neither the deceased nor the first appellant kept a proper look out and both were equally responsible for the accident. We would vary the finding of the trial judge to the extent that each party must bear 50% of the blame. 15. The second ground of appeal can be quickly dealt with. The deceased was 60 years old. Evidence was given of his earnings, and the trial judge made an estimate of the annual loss to the family caused by his death. He then applied a multiplier of 8. It was urged by counsel for the appellants that this was too high for a man of 60. The deceased was employed as a carpenter in a shipyard. He was said to be in good health, and the evidence was that his work was relatively skilled but not especially arduous. Counsel for the respondent produced a table of recent cases showing the multiplier chosen by the court in various cases, where awards of damages have been made in respect of men aged between 50 and 68. We found this of limited assistance since each case depends very much on its own facts. However, we notice that a multiplier of 8 was applied in two cases in 1975 where the deceased was well over 60 at the time of his death. 16. It was also objected to that the sum awarded was excessive anyway. It is true that the trial judge did not refer to the matter of inflation and to the question of rising wages. However, these are matters which tend to cancel each other out. And we see no reason to interfere with the quantum on the grounds of its excess especially in view of the guidelines laid down in Mallet v. McMonagle(1). 17. The appeal is therefore allowed to the extent that there will be judgment for the plaintiff-respondent for $38,741.50. The trial judge made certain apportionments of the sum he awarded among the various dependants of the deceased. These must be proportionally adjusted. 18. The respondent must pay half of the costs of this appeal.
Representation: R. Wong (J.S.M.) for appellants Pirie (Gunston &Chow) for respondent (1) (1970) A.C. 166. |