Chow Yuk-lan and Another v. Nai Kwok-leung and Another

HCA000370/1976

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

ACTION NO. 370 OF 1976

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Coram: McMullin, J. in Court.

Date of Judgment: 18th May, 1977.

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JUDGMENT

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1. On the 8th of August 1973 the second defendant, TAM Chi-hung, who was at that date employed as a shop assistant, was driving a car borrowed by him from his friend, the first defendant at about 8 o' clock in the morning in a northerly direction along Wai Yip Street. He had just deposited a friend at his place of work and was proposing to head for the waterfront towards his own place of business, a route which caused him to turn right from Wai Yip Street into Kei Yip Street along which he was intending to travel in an easterly direction before turning right again. At about the same time the husband of the plaintiff, CHONG Fat, was about his business as an employee in the refuse collection and disposal section of the Urban Services Department and he was heading westerly up Kei Yip Street towards its junction with the Wai Yip Street his intended destination being How Ming Lane several street junctions away. The second defendant bearing to his right rounded the corner of the junction between Wai Yip Street and Kei Yip Street and came into collision with the handcart a short distance after entering Kei Yip Street. As a result CHONG Fat was catapulted backwards and fell to the ground receiving injuries to his head from which he later died. It appears that after the impact he never recovered consciousness and despite surgical treatment, administered a shot time after his removal to hospital immediately after the accident, he died in the hospital the following day.

2. The only eye-witness to this accident was the second defendant himself, the driver of car No. AZ 9980. His account of the matter was that, after dropping his friend, he approached the junction between the Wai Yip Street and Kei Yip Street in low gear and as he turned the corner was travelling at a pace which he described as dead slow. He changed up to second gear immediately round the corner and picked up speed and was travelling at an estimated speed of 20 - 25 miles per hour somewhat to the right of the centre line of Kei Yip Street when suddenly a man emerged from a space between two commercial vehicles parked along the kerb to his right heading diagonally towards him into the road from the direction of the kerb and passing ahead of him a handcart. He said that the man pushing the cart was not looking in his direction but was in fact looking the other way. He was within 10 feet of the cart when he first observed it and the thing happened so suddenly that the best he could do was to swerve sharply to his right in an effort to avoid the cart thereby striking a goods van parked at the kerb side with his offside front mudguard. Notwithstanding this manoeuvre some part of the front of his car immediately thereafter came in contact with the cart with the result which has already been described. He got out at once and went to help up the deceased and certain of the deceased's companions also came up and took the injured man and placed him upon the cart and supported him until the ambulance came.

3. The only other witness who could say anything at all about the preliminaries of this accident was the foreman of the U.S.D. squad which employed the deceased. He described how he had seen the deceased make his way from the refuse collection centre which is sited further along Kei Yip Street towards the east in the general direction of the junction with Wai Yip Street. He was then pushing his cart in the roadway immediately opposite the refuse collection, centre which would be the side of the street along which were parked the vehicles seen by the second defendant when he came round the corner into that street. According to the foreman, it would have been some 6 minutes later that he heard the sound of screeching tyres or brakes and turning to look in the direction of the junction saw that his worker had been knocked down. He went to his aid at once and helped to support him until the ambulance came. Shortly after that a police officer, Sergeant KWONG Siu-lam (P.W. 1), arrived who made inquiries concerning the accident and drew a sketch plan of the scene as he found it which was put in evidence at the hearing of the case.

4. There are two further factors of importance to be mentioned before I turn to consider the arguments of counsel. The second defendant was prosecuted in the magistrates court on the 10th of December 1973 upon a charge of careless driving. He was convicted of that offence and fined $150 and his licence was endorsed. The fact of this conviction was of course admissible in evidence for the plaintiff under the provisions of section 62 of the Evidence Ordinance. By agreement of the parties the record of proceedings before the magistrate was put in in toto. The second additional feature of importance on the question of liability is the fact, which is admitted, that Kei Yip Street is a one-way street along which the permitted direction of vehicular traffic is from west to east so that, on all the available evidence, it is patent that the deceased was pushing his cart the wrong way up that street shortly before the moment of the impact. This fact, which was somewhat surprisingly overlooked by the legal advisers of the second defendant until a very late stage in the proceedings, was, on the first day of the hearing, made the subject of an application to amend the defence by adding an additional pleading to cover this most important feature of the case. The application to amend was naturally opposed by Mr. Allman-Brown who appeared for the plaintiff but I permitted it to be made nevertheless upon a somewhat stringent order as to costs. Mr. Allman-Brown was moved to argue that the new pleading was a departure so radical from the case as originally framed that it might be said to contradict that case. That was indeed his principal ground in resisting the amendment as resolutely as he did. I cannot take that view however. However extraordinary it may be that such a feature should have been overlooked at the outset the original pleading of negligence on the part of the deceased, which alleges that he failed to ascertain if the road was clear of oncoming motor vehicles before attempting to enter on to it with his handcart, would not seem to be in factual conflict with new allegation. The evidence of the foreman, and the evidence of the second defendant himself, makes it clear that the deceased was maintaining a line of travel in a generally east to west direction whether or not he was in fact emerging from between two vehicles at the side of the road. The new pleading therefore I think must be regarded merely as a fortification of the pleading as it originally stood.

5. In a lengthy and rigorous cross-examination Mr. Allman-Brown sought to elicit from the second defendant admissions which would show that he had rounded the corner at an altogether excessive speed. Counsel maintains that the defendant was in fact not sufficiently in control of the car at the moment when he observed the handcart which, in counsel's submission, must have been proceeding directly along the road parallel to the kerb and outside the line of parked vehicles and not, as the second defendant suggested, emerging on a diagonal course from between two of those vehicles. In this regard counsel relied heavily upon the sketch map which does indeed purport to show the handcart in a position of final rest parallel with the pavement and facing the car driven by the second defendant which is shown in the sketch with its off front side making an acute angle with the side of the van. Counsel relies heavily on the fact that this sketch was drawn by Sergeant Kwong with the assistance of the second defendant who signed it under the legend "sketch made and measurement taken in my presence and agreed correct". Counsel also drew my attention to certain replies made by the second defendant in cross-examination before the magistrate, and in particular to one reply. In answer to the question: "Is the sketch accurate?" he said "More or less. Cart's position accurate. Victim lying behind cart roughly indicated by P.W. 1" Since it is common ground that the victim's position is not shown upon the sketch - nor indeed could it have been since the victim had already been taken from the scene by the time the police officer arrived - counsel asks me to say that this indicates clearly that, when he was before the magistrate, the second defendant was admitting that the position of the cart as shown in the sketch was roughly the position of rest achieved by it after the impact. Sergeant Kwong gave evidence that there was slight damage to the right front of the wooden cart. The only corresponding damage that might possibly have referred to that on the bodywork of the car was a slight indentation in the lower edge of the mudguard above the near front wheel slightly higher than the line of the bumper. The second defendant in answer to the suggestion that he had agreed the position of the cart as shown in the sketch said merely that he had signed the sketch as showing correctly what the police officer and he, the second defendant, had observed at the time the sketch was being made. I note also that, as against the questions and answers upon which the counsel for the plaintiff relies there is the fact that Sergeant Kwong who gave evidence in this court and also before the magistrate and said, in both courts, that the second defendant had told him at the scene of the accident that he had seen the wooden handcart being pushed out from between two parked lorries. The same witness, in the magistrates court, said that no damage was found on the cart whereas he said slight damage was found on the right front of it when he was giving evidence before me.

6. The defendant was closely pressed about certain discrepancies between his current evidence and things which he had said in two different statements made to the police shortly after the event as well as in the evidence given by him before the magistrate. There was, for example, the question whether it was he who had made the phone call to the police which was what he said in this court or whether this phone call was made by one of the U.S.D. officers which is what the defendant had said in the statements to the police. There was also the fact that in those statements he had said that it was still raining at the time of the accident, whereas he said in his evidence in court that the rain had ceased. I find very little substance in these discrepancies and when one considers that the witness was being queried about several statements made as long ago as 1973 that kind of variation is scarcely significant. It is true however that there was one matter of more significance which emerged in this cross-examination. According to the second defendant in giving evidence before the court he said that when he came back from making the phone call, which he had done with the assistance of one of the U.S.D. operatives, he saw some of the U.S.D. people moving the cart a distance of several car spaces from the position in which it had been after the accident. He called out to them and asked them to bring it back again and they did so at once. He was however unable to point out upon the sketch even approximately the position which he regarded as being the position of rest immediately after the impact. Sergeant Kwong, who drew the sketch, on the other hand positively averred that the defendant had told him that none of the vehicles had been moved. He concluded from this that the defendant meant the van, the car and the cart. The defendant said that in referring to vehicles he had not intended to include the cart.

7. There is no doubt that the position of the cart on the roadway immediately before the accident is a matter of the greatest importance. Although it would by no means dispose the issue of negligence on its own it would nevertheless be obviously a great deal more difficult for the second defendant to explain his colliding with the cart if it was proceeding straight along the road towards him and he was travelling at a reasonable speed.

8. Mr. Allman-Brown sets out to bring home the plaintiff's case against the second defendant from the standpoint of the conviction before the magistrate. By virtue of the provisions of subsection 2 of section 62 of the Evidence Ordinance the proof of a conviction before the court is to be taken as proved that he has committed that offence unless the contrary is proved. There is no doubt that counsel is right to contend that this provision does dislodge, in circumstances such as the present, the normal onus of proof from its position on the plaintiff's side of the case and places it upon the defendant. Counsel adopts the analysis of the equivalent English provision given by Buckley L.J. in Stupple v. Royal Insurance Co. Ltd.⁽¹⁾ where the learned judge said (at page 76):

"In my judgment, proof of conviction under this section gives rise to the statutory presumption laid down in section 11(2) (a) which, like any other presumption, will give way to evidence establishing the contrary on the balance of probability without itself affording any evidential weight to be taken into account in determining whether that onus has been discharged."

This is in contradistinction to the view of Lord Denning M.R. who, in the same case seems to suggest that the section not merely creats the presumption upon proof of the conviction thus shifting the onus of proof but that the conviction is to be regarded as weighty evidence on its own. For my own part with the utmost deference to the other opinion I prefer to follow the view of the matter taken by Buckley L.J. It has been noted also that in Wachope v. Mordecai⁽²⁾ the Court of Appeal does not seem to have regarded the burden cast on a convicted defendant as being a very heavy one. I must also have regard to the fact that although the magistrate convicted the defendant he does not give his reasons and nowhere that I can see upon the record of the hearing was it brought to his attention that Kei Yip Street is a one way street. And it is to that fact I must now turn in weighing it against the value to the plaintiff of the conviction and befoee referring to the relative probabilities as they present themselves upon the evidence given in this court. There is one thing to be said about the evidence as to the one way street: there is no doubt at all that this evidence does show the plaintiff to have been in breach of the provisions of Regulation 8 of the Road Traffic (Roads and Signs) Regulations. That regulation provides that, subject to Regulation 8A (which does not apply in the present case), "any person who fails to conform to the indications given by - (a) a prescribed traffic sign; ... shall be guilty of an offence" The prescribed one way street sign appears in the first schedule to those regulations. It is a very familiar sign and it is clearly visible in some of the photographs produced in the case. It is of course not to be thought that this breach of statutory duty can, upon its own, be resorted to resolve the central issue as to what negligence was effectively the cause of this accident still less to dispose altogether of the plaintiff's claim. But it is clearly to be regarded as a contributory factor promoting in some degree the emergency which arose. I think it must also be regarded as considerably weakening any initial presumption as to negligence which may stand again against the second defendant as a result of the conviction in the magistrates court. Now it is clear that two very dissimilar situations are presented to the court: one testified to by the defendant as what he saw and experienced; the other strongly pressed by the plaintiff on the basis of alleged weaknesses in the defendant's evidence coupled with reliance upon inherent probabilities of the situation and such assistance as may be derived from the sketch map and the photographs. As I see it it makes a very great deal of difference to the claims of the plaintiff if it be shown that the deceased was moving steadily along the road in full view rather than suddenly emerging from between the parked vehicles and masked by one of them until it was too late for a critical encounter to be avoided. It need hardly be said that if the event occurred in that way then, in the absence of any indication of excessive speed or other negligence on the part of the defendant, it would be impossible to impute any blame to the defendant whatsoever. If on the other hand the cart was approaching in full view along the road then, although it was going in the wrong direction it would be difficult to avoid the conclusion that any motorist negotiating the corner at a slow speed would have seen it almost at once upon entering Wai Yip Street. In those circumstances the court might be compelled to say, as the Divisional Court said in Page v. Richards and Draper (an unreported decision quoted in footnote 47 to page 95 of the 4th Edition of Charlesworth on Negligence), either that the motorist was not keeping a sufficient lookout or, if he was keeping the best lookout possible, he was going too fast for any lookout that could be kept. Both counsel have sought to fit the damage said to have been seen on the right front of the cart into the particular version each proposes as to how the accident must have occurred. On either version however it is difficult to see how that damage, if it was indeed observed, could have been caused by the offside mudguard of the car or any part of it coming into contact with that side of the cart. The evidence that there was an injury to the car corresponding to some injury on the cart is so unsatisfactory that I think it must simply be disregarded. There is more advantage to be gained by considering the evidence relating to the position of the cart as shown in the sketch, Exh. P8. It is there shown as parallel with the kerb and some eight feet out therefrom. If that is its final position after the accident there is much substance in Mr. Allman-Brown's contention that it could scarcely have achieved that position after a violent contact with the front of the car with the deceased pushing it at an angle from the edge of the kerb between the two parked vehicles into the path of the oncoming car. It is of course the defendant's case that the cart was moved from its true position of rest but he could not indicate upon the sketch what that position was. The defendant's evidence was that he struck the side of the van immediately before he felt the impact between his vehicle and the cart. The damage to the van, which like the damage to the cart was not photographed or otherwise described, appears to have been on the near side in the area somewhat behind the passenger seat. That at least denotes the position of final rest of the motor car. Travelling at the speed which the defendant claimed at the point when he observed the cart (i.e. 20 - 25 miles per hour) and allowing for reaction and braking time, according to the rough guide provided by the Highway Code for such matters, it is possible in this case to form a reasonable estimate of the distance between the car and the cart at the motorist's first sight of the latter. I say that for the following reason. The damage to both vehicles, the van and the car, was very slight and that would seem to indicate that the application of the brakes had almost brought the second defendant to a halt at the moment he hit the van. He himself said that he had travelled a distance of two or three car lengths after entering Kei Yip Street when he suddenly observed the cart. Unfortunately we have no measurement to show the distance from the front of his car to the point of the corner round which he came. It would be dangerous to use the sketch map or the photographs alone or in combination to form an estimate of what that might be. But in any case the overall stopping time of 40 feet allowed by the Code would almost certainly put the car just past the curve of the corner and still short of the first of the parked vehicles. If the emergency had been quite as abrupt as the defendant described it, then, travelling at the speed which he admits, one would not have expected, allowing for the reaction time, that there would then have been left between himself and the cart a sufficient distance of road surface for the braking action to have taken effect to such a considerable degree. In other words one would then have expected that his action in swerving to the right, which he says was taken in avoidance of the cart and in the realisation that he was going to hit another vehicle, would have resulted in a far greater impact and more damage to both vehicles. Moreover it should be noted that he said he had time to blow the horn after observing the cart and before braking and swerving to the right. Again there is the fact that the evidence, such as it is, is to the effect that the cart was only very slightly damaged. All of this conduces to the view that he must have observed the cart at least 40 feet or probably more back from the point of impact. Admittedly no skid marks have been recorded but it is common ground that the road was wet and greasy at the time. That in itself is a further factor allowing for somewhat longer distance between the car and the cart at the moment of observation since the efficiency of the braking effect would necessarily have been somewhat reduced by the nature of the road surface. Yet, as I have said, it must have been almost fully effective to avoid collision with the van and presumably also the cart. Again it is not contended that the deceased was on his way to a destination in Kei Yip Street itself. To leave it, his convenient line of travel would be either upon the pavement inside the line of parked vehicles or else upon the roadway itself and in a straight line parallel with the near side of each of them. The cart was it seems a cumbersome affair with wooden wheels the body being about 4 ft. wide by 5 ft. long and it had baskets upon it. There seems to be no good reason why, upon leaving the collection depot further down the street, he should have gone straight across to the other side of the street and mounted his cart upon the pavement thus at some labour choosing a far less convenient line of travel than the, admittedly, not legitimate, line of travel on the roadway itself. I take account also of the fact that the sergeant's memory of the matter was that the defendant had never told him that the cart had been moved and on this matter the evidence of P.W. 2 the foreman was quite clear. He said it never had been moved after he came up and with others placed the deceased upon it. Notwithstanding that the second defendant is the only surviving eye-witness of this event and notwithstanding that he gave his evidence on the whole well and maintained his story, given originally to the sergeant, that the deceased had precipitated the accident by his own gross negligence, I have come to the conclusion that the accident could not have happened in the way the defendant described it. I think the sketch map does show substantially the position of the cart immediately after the accident and that if it had not done so the defendant would have been insistent upon the sergeant's noting the information that the cart had been moved. Such information was never given according to the sergeant and no inkling of it appears in either of the statements made originally to the police by the second defendant. I do not think that he was telling lies, but it is all too easy to reconstruct, immediately after an accident, a sequence of events which fits more readily to one's recollection of one's own behaviour, given the human fallibility of observation and the common human tendency to edit out or play down features which might be adverse to one's own conviction of having acted in all the circumstances as wisely as was possible. I think the plaintiff must have been coming round the corner somewhat faster than he suggests that he was not expecting to meet such an oncoming danger and was not keeping a lockout adequate to the nature of his speed. There is no doubt that the deceased contributed very considerably to his own disaster and I would apportion blame between the parties on a fifty-fifty basis.

9. At the time of his death the deceased was in his 40th year. He had been in employment for some 10 months with the Urban Services Department having received his appointment thereto on the 5th of October 1972. At the time of the accident he was in receipt of a regular monthly salary plus allowances totalling $695. There was occasional overtime work paid at a certain fixed scale and in the 10 months that he had been employed he had earned $749.52 in that way. This averaged a monthly overtime take home pay of $74.95. A few months after his death the salary scale for his level of employment was revised and he would then have been in receipt of a basic salary of $840 for the ensuing five years, if no further salary revisions had occurred. To this would have been added the usual "obnoxious duty" allowance of $45 a month. Assuming the continuance of overtime duty at roughly the same average frequency and rate this would have brought his salary to over $900 a month as against a rough total per month of $814 at the time of his death. Retirement age is 55 in that employment although leave might be given to continue for 2 yearly periods thereafter up to the age of 65. On retirement he would have been entitled to a retirement benefit based upon one-eight hundredth of his annual salary at date of retirement for every completed month of service. He would then have been entitled to elect to commute 25% of that. Miss Chen the secretary of the Personnel Section of the Urban Services Department told the court that on his rate of pay and allowances at the date of his death and assuming he that were it not for the accident he would have retired at the age of 55 he would have been entitled, had he opted to commute 25% of his retirement benefit into a lump sum payment, to a sum of $5,580 plus a reduced annual allowance of $1,339.20 thereafter for life. The plaintiff is a woman of 32 years and there are five children of the marriage ranging in age from 5 years to 15 years at the date of trial. The deceased's mother, FAN Chiu-tai, now age 63 years is also claimed as a dependent. The widow is now working to support the family but was not working during the marriage. She told the court that she used to receive $600 a month from the deceased who presumably kept the remainder plus certain sums that he made in his own time by the collecting and sale of various forms of useful rubbish. I think it fair to assume that the dependency of the wife and one or more of the children would have continued during the 10 remaining years to the age of retirement. The amount of the deceased's supportive payments would no doubt have gone up with his salary but against that there would be the likelihood of some of the children also contributing to the family budget. I take no account of the dependency of the mother there being no evidence on that matter before me. I also take no account of the fact that the deceased did receive a benefit himself from the $600 that he paid in the form of an evening meal since that would not necessarily have been a regular occurrence and there was evidence that he also contributed out of his own personal funds certain small items such as food and fruit for the benefit of the children. The deceased was said to be a healthy man and there is no reason to suppose that he would not have continued in his employment with the department and become entitled upon his retirement to the retirement benefits I have mentioned. Thereafter his wife, had she been living, would undoubtedly have shared in the benefit of the lump sum and the annual payments. Included amongst the various imponderables which have to be assessed in all such cases there are to be considered in the present case the possibility of further revisions in salary or possible promotions to a higher grade offsetting against this the possibility that he might have lost his employment or become disabled and having regard also to the possibility that his children having come of age might have contributed to the family finances. It is fruitless to pursue such speculations too nicely. Nor do I propose to enter into any mathematical computations of the likelihood of the final lump sum and retirement benefit money being calculated and paid upon a higher rate of annual salary than he was earning at the time of his death. I think it is reasonable however as Mr. Allman-Brown suggests that I should assume that the deceased would have retired at 55 and that he and his wife would have enjoyed the benefit of his retirement payments for a further 10 years. I do not accept the argument that because these retirement benefits accrued upon a non-contributory basis they should be disregarded. Mr. Pirie asks me to take a multiplier in the lower bracket, something about the figure 10; Mr. Allman-Brown argues for something in the region of 15 as the proper multiplier. In preference to any attempt to work out in detail the actual figure which might have accrued over 10 years after retirement upon some hypothetical higher rate of final retirement pay and then discounting that by a third or some other figure to allow for the deceased's own participation in that benefit I propose to choose my multiplier on the basis that it takes that into account together with all such matters as lump sum payment, inflation, vicissitude of life, increased earning power through salary revisions after the date of his death and to calculate the value of the loss of dependency on the basis of his rate of pay at the date of his death applying thereto the figure of 15 by way of multiplier. Nothing will be awarded by way of pain and suffering since it seems clear that the deceased was unconcious from the time of the accident. I award a figure of $8,000 for loss of expectation of life but that will of course merge with the award under Cap. 22. On his existing rate of pay at the date of his death I accept the figure of $600 as the monthly value of the dependency and that is to say $600 by 12 by 15 or $108,000 in total. This is reduced by 50% on the negligence finding and becomes a figure of $54,000. From this must be further taken the sum of $21,964 which is the amount of the award under the Workmen's Compensation Ordinance already received, and the final figure of general damage therefore is$32,036. $750 will be allowed for funeral expenses. Interest will be awarded on the prescription of Jifford v. Gee viz.: 8% on general damages from 23rd February 1976 and 4% on special damages from 8th August 1973.

10. The sum awarded by way of general and special damages to be apportioned as follows: $3,500 to each of the four older children; $5,000 to the youngest child. The balance to the widow. The sums apportioned to the children to be held upon trust for them by the Registrar until they shall each achieve their majority or until further order of this court.

11. Costs to be the plaintiff's and to be upon the common fund basis up to the date of the amendment of the defence.

12. Costs to be taxed in accordance with the Legal Aid Regulations.

Representation:

Allman-Brown (D.L.A.) for Flaintiffs.

N. Pirie (Haldane & Co.) for Defendants.

(1) (1971) 1 Q.B. 50.

(2) (1970) 1 All E.R. 417.