Chan Kin Yee v. Leung Man Kin and Another

HCA001014/1968

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

ACTION NO. 1014 OF 1968

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Coram: Huggins, J. in Court.

Date of Judgment: 13 February 1969

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JUDGMENT

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Huggins,J:

This is a claim brought by the administrators of a deceased driver who was killed in a motor accident which occurred at 1 a.m. on the 2nd of September 1967.

1. The deceased was a Sworn Measurer who had left work with some of his colleagues at 9 o'clock the previous evening. Eight of them had gone to a restaurant where they had some food and some drinks. From there they drove to a ballroom in Sai Yeung Choi Street, Kowloon, where they spent between 45 minutes and 1 hour. The car, when they travelled to the ballroom, appears not to have been driven by the deceased, but after they left the ballroom the deceased took over the driving. It was not his motor-car and it is clear that the deceased had never driven this motor-car before. He has driven motor-cars, but not very often. His principal means of locomotion has been a motor-cycle and he has held a motor-cycle licence for several years. He drove from the Mongkok District along Cheung Sha Wan Road and the collision took place at the junction of Cheung Sha Wan Road and Un Chau Street. The motor-car was a large one: I am told that it was a Ford Consul. There were six persons in it.

2. The vehicle with which it collided was a nine-seater van driven by the 1st defendant. This was a dual purpose van plying between Jordan Road and Tsuen Wan and at the time of the accident the 1st defendant was carrying no passengers and was on the look out for possible passengers. He was travelling in an easterly direction having recently left Jordan Road and the car approached from his right, that is in a northerly direction along Cheung Sha Wan Road. These roads are to all intents and purposes of equal status. Cheung Sha Wan Road is 80 feet wide: Un Chau Street is 78 feet wide. Un Chau Street has a double white line down the middle of it. At the exit from each of these roads into the junction there is a pedestrian refuge on which stands a traffic bollard with a light. Across the southern entrance to Cheung Sha Wan Road there is a studded pedestrian crossing and on the north bound carriage way just short of that crossing there was a thick white line. There was a similar thick white line on the south bound carriage way on the other side of the junction. I have had great assistance from a plan which was drawn by a police constable who attended shortly after the accident occurred. Unfortunately there are one or two matters which he did not enter upon the plan. He told me, however, that there was in fact a studded pedestrian crossing across each exit from the roads leading out of this junction. He did not say whether or not there were thick white lines across Un Chau Street but I will assume, in the absence of any evidence, that there were not, although he said that there were pedestrian crossings that he did not put down.

3. In my view, there being on the evidence no other sign of any kind to indicate that one of these roads was a major road, these thick white lines constitute no grading of Cheung Sha Wan Road as a minor road. At this obviously very dangerous cross roads, there was a most unfortunate lack of assistance given to drivers who were approaching it and I sincerely hope that some form of a sign has since been erected. You have here two very wide roads, converging roads, both of which are straight for a considerable distance and where it is not unreasonable to expect that drivers will approach at something approaching the maximum speed allowed by law - and I take judicial notice of the fact that this, being in the middle of the urban area of Kowloon, is subject to a 30 mile speed limit. Each of these roads had three lanes of traffic in each direction. At the material time parking was not allowed in Un Chau Street but it was allowed in Cheung Sha Wan Road; and on that night there were vehicles parked along the northern exit from this junction. I am told that there was also at least a lorry parked in the southern exit from the crossing. I shall have to return to that in a moment.

4. The allegation by the plaintiffs is that the van entered this junction too fast without proper care and that when danger of collision arose the driver took insufficient evasive action. He in his turn alleges that the deceased was driving at a grossly excessive speed and that he was taking insufficient care, and there is a further allegation that he was under the influence of alcoholic liquor.

5. I readily accept that there is grave reason for suspicion that the deceased may have drunk more than he ought to have done before driving this vehicle, but I am unable to say on the evidence that that has been so proved. There is no doubt that this was a convivial party to which these gentlemen had been. They had been out very late and certainly there had been liquor on the table. It is a very remarkable thing that of all the four witnesses who gave evidence of the dinner party not one of them was able to say one way or the other whether the deceased took any liquor at all. I find it very difficult to believe that he alone was abstemious and that that fact passed unnoticed. The bottle, apparently, was placed on the table for people to help themselves. On the other hand, the evidence that he was unfit to drive is based really on two things: first an allegation by the 1st defendant that he smelt liquor - and I will assume that he meant by that that he smelt liquor on the breath of the deceased - and the second is that somebody at the scene of the accident alleged that the deceased had consumed half a bottle of brandy. The 1st defendant's evidence on this point was not sufficient, in my view, to justify any finding that the deceased was unfit to drive by reason of his imbibing liquor. It is notorious that even a small quantity of liquor will remain on the breath and that is no indication that he was unfit to drive. It is conceded by some of the witnesses called by the plaintiff that somebody at the scene did say that the deceased ought not to have been driving. None of them admitted to having heard the further allegation made by the 1st defendant that somebody said that he had had half a bottle of brandy. The view I have come to is that this was an embellishment by the 1st defendant. It is clear that the liquor which was being taken during this dinner party was beer and stout. As Mr. Swaine has pointed out, the total bill for eight persons was paid by one member of the party and came to only $50 odd. Even assuming a very modest meal and a comparatively modest amount of beer and stout, that leaves very little to pay for half a bottle of brandy and I am by no means satisfied that the deceased was drinking brandy at all. He could not, it is said, have obtained brandy at the ballroom, and there is certainly not a shred of evidence to suggest that he did consume further liquor there. It is true that the deceased might have been under the influence of alcohol when he left the restaurant, and although, no doubt, some of any incapacity might have worn off within the hour which followed, it does not necessarily mean that he was fit to drive at the time of the accident if he was unfit an hour earlier. But on the evidence I am not satisfied that he was unfit to drive or that the alcohol which he consumed was directly a material factor in this accident. I use the word "directly" because it may - I say nothing more than that - it may have led to what I am satisfied was a reckless speed at which he drove along Cheung Sha Wan Road.

6. The witnesses who were in the private car driven by the deceased were not able to give any really satisfactory evidence about his speed. Mr. Lo Kin Fai said at first that it was "quite fast". He later said that it was "very fast". He said that at the junction the deceased slowed down a little but "it did not seem as if the car had slowed down at all". The indication is that if there was any slowing it was not appreciable. However, his assessment was "over 35 miles an hour - 35 or 35 miles an hour". Mr. Lee Chee also estimated the speed as "around 30 miles an hour", but he himself is not a driver and I attach no weight whatsoever to his estimate.

7. The collision took place when the van was approaching the centre of the junction. Both vehicles intended to go straight ahead, that is at right angles to one another. The van entered the junction and as it approached the centre line - it was probably within three to six feet from the centre line - the private car came in from its right and "rubbed along the front of the van" - that is the description given by the defendant. The passengers in the car say that there was an impact at the rear near side of the car. One of my difficulties in the case is that I have no satisfactory evidence of any kind about the damage to either vehicle. I know that the damage to the van cost $1,285.80 to repair. Unfortunately it is not at all clear just how far this damage went. The front bumper was damaged, the bonnet was damaged, the radiator grille and the radiator itself were all damaged. The Assistant Manager of the garage which repaired the van was unable to say anything more than that it was the core of the radiator which was damaged and he thought it was damaged by the fan of the van. Now how that occurred, whether it was due to the displacement of the radiator or whether it was due to the displacement of the engine and how that was caused I have no satisfactory evidence, but looking at the photograph of the front of the van it is difficult to understand how the impact could have been very severe. There is no doubt that at some stage after the impact the private car rolled over from left to right and, having rolled, it also spun and ended up facing the direction from which it had come, and apparently lying on its offside - although that did not appear originally until the photographs were produced, because the plan suggests that at the time the constable saw it it had been upturned. Now I am quite satisfied that it would have been impossible for this motor-car to have struck the bollard in the middle of the north side of Cheung Sha Wan Road, rolled over and spun right round to face the opposite direction unless it had been travelling very fast. It is, of course, impossible to assess exactly what the speed was but in my view 35 miles an hour is clearly an under estimate.

8. The 1st defendant says that he approached the Cheung Sha Wan junction at 20 miles an hour; that he then slowed down to 15 miles an hour; that he looked in the mirror and saw that there was nothing behind him: he looked left: he looked right: he looked left again. When he looked right he saw that there was a stationary lorry parked in Cheung Sha Wan Road about one motor-car's length from the pedestrian crossing, but he saw no moving traffic and in particular did not see the deceased's car. According to him he then proceeded at about 15 miles an hour and when he was on the junction he saw the private car for the first time. He told conflicting stories as to the precise moment when he saw the private car and where it then was. One thing I am satisfied about is that he did not keep a sufficient look out down Cheung Sha Wan Road because at best, even assuming that this car was travelling at 45 or 50 miles an hour, he should still have been able to see that car before he placed himself in such a position that he could not stop and let the car through.

9. It was said by Lord Justice Sellers in McIntyre v. Coles⁽¹⁾:

"Whilst there is no rule of law or no rule comparable to the Regulations for Preventing Collisions at Sea it is a well-recognised and conventional practice, rather than a rule, that where vehicles are approaching in that way ......"

and the learned Lord Justice was referring to a collision which occurred at a Y-junction

"... with a risk of collision or where there is doubt as to the priority, the vehicle which has the other on its right-hand side is the give-way vehicle."

That is a conventional practice which is based on common sense in any country where vehicles drive on the left hand side of the road. The learned Lord Justice said that it was a well-recognized practice. It may perhaps not be so well recognised generally in Hong Kong but it is well-recognized by anybody who has been taught properly how to drive. As I say, it is based on good sense, and that applies in Hong Kong equally as it applies in England. It was therefore incumbent on the 1st defendant to approach this junction with caution. The road was straight down Cheung Sha Wan Road, and he ought, in my view, to have seen that the car was coming and should have been able to stop in time to let it pass. He was unable to give me any very satisfactory account of the movement of the car because I think he did not really see it until it was right on top of him.

10. The conclusion which I have reached is that both parties were to some extent at fault. I should say that some comment was made that the van had on its headlights and that no sound signal was given. As I said in another case only within the last fortnight, there is no occasion for the sounding of horns in a built-up area and, in this case, in the middle of the night. It would in fact have been an offence to sound the horn. The evidence of the 1st defendant was that the night was light and that the visibility was sufficient without headlights; therefore, to have headlights on would merely inconvenience other road users. It is true that the fact that the van had its headlights on was some further indication to the oncoming car and it is a further factor tending to support my view that the deceased was negligent, but certainly I do not accept for a moment that the deceased was under any obligation at all to turn on his headlights when approaching this road junction.

11. I should have said that at one stage in the evidence the impression I got was that the passengers that were in the deceased's car were alleging that what caused the car to roll over sideways was the impact with the van. I am not satisfied that that is what happened. I think that the van was not travelling at a sufficient speed to have caused that to happen. I do not think the damage on the van is consistent with such an impact and I do not think that the deceased's car would have ended up where it did if that had been what actually happened. I think that the deceased was forced to go to his right as a result of the presence of the van; that the rear of his car was struck and he then mounted the bollard but that it was the momentum of his car, which was then turning back towards the left, that made it roll and then spin so as to face the opposite direction.

12. It is extremely difficult in a case of this kind to assess what is the degree of blame which attaches to the two parties, but doing the best I can I assess the blame of the 1st defendant at 40 per cent and that of the deceased at 60 per cent.

13. I then come to the assessment of damages. The special damages claimed by the plaintiffs were under four heads. Two of those heads are no longer pursued - the damage to clothing and the expenses of administration. There is a claim for "loss of" a watch. I am not satisfied that I should allow anything in respect of this watch. In fact it was only damaged. It was repaired. I am told that it has not been working properly since it was repaired but unless I know whether that is due to some irreparable damage to the watch or insufficient repair I am not prepared to allow the value of the watch: I would have been prepared to allow the cost of the repairs but I do not know the figure. Therefore I disallow item (a). The funeral expenses are placed at $4,185. That seems to me a very high figure indeed but it is not challenged save that it is now agreed the figure should be reduced by $500 which has been paid by the employer of the deceased. Without ruling that that is in fact deductible, I do doduct it and the figure therefore is $3,685. I come then to the claim for loss of expectation of life under the Miscellaneous Provision Ordinance. I fix the figure of $7,500. The deceased was unconscious and no claim is made for damages for pain suffered. Under the Fatal Accident Ordinance there is a claim in respect of the widow and two children, Pang Mee Tak aged 12 years and Pang Yan Chee aged 9. The deceased was, as I have said, a Sworn Measurer. He had been employed by the Sworn Measurers since 1948 and had risen from the rank of Assistant Measurer to Weigher and then to Measurer and at the time of his death his salary had risen from an original $185 a month basic pay to $585 a month basic pay. He also earned over-time, which brought his "take home" pay to about $735 a month. Of this sum he gave $500 a month to his wife. This was not enough to cover all the expenses of the household, including children's clothes and medical expenses, but it did include a certain amount in respect of one meal a day together with, no doubt, an occasional other meal for the deceased himself. Mr. Swaine has submitted that the amount which should be added to the $500 and the amount which should be deducted from it balance out and that it is reasonable to take the figure of $500 as the dependency. Bearing in mind that the widow had to supply food already for three other members of the family, I think that probably $500 a month is a reasonable amount and I accept that figure as the dependency, that is $6,000 a year.

14. Then I have to decide how many years' expectancy I should allow. The deceased was 37 or 38 at the time of his death. I am told that he would have worked until the age of 60 with this association. The prospects of further promotion were good. There are some 80 Sworn Measurers and 16 Supervisors. The deceased is said to have had a good record. He had made good progress in the time that he had been with the company and I think there was a reasonable prospect of his becoming a Supervisor although the chance of further promotion beyond that, I think, was not very great. However, even as a Supervisor he could have risen to a salary of $1,200 a month. This is a case, therefore, where I have to take into account the possibility, and indeed the probability, that the deceased might have obtained an advance in salary, and the dependency of the family would have increased with that increase of salary. I prefer to calculate without making a separate discount for the receiving of the lump sum and I think this is a case, taking into account the possibility of advancement, where 15 years is a proper figure - which I think makes $90,000. Then I have to make the deduction in respect of the contributory negligence. Of that figure then, the plaintiffs get 40 per cent, which is $36,000. Deducting the damages under the Miscellaneous Provisions Ordinance that, I think, gives us the total figure under the Fatal Accidents Ordinance. There is no other deduction to be made.

15. Judgment accordingly on the claim and judgment for the defendant on the counterclaim for $834.48, being 60% of the agreed damages.

13th February, 1969.

Representation:

(1) 1966 1 W.L.R. 831 at p.834.