Choi Ngan v. Chung Wing-kwong

HCA001765/1974

IN THE SUPREME COURT OF HONG KONG

(ORIGINAL JURISDICTION)

ACTION NO. 1765 OF 1974

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Coram: Morley-John, J.

Date of Judgment: 11th April, 1975.

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JUDGMENT

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1. It was alleged on behalf of the plaintiff who is the widow of the deceased and the administratrix of his estate that her husband whilst walking across a zebra pedestrian crossing in Taipo on the 5th March, 1973 was struck and knocked down by a private motor vehicle owned and driven by the defendant. As a result of this accident the deceased died on 6th March, 1973, and it is alleged that such accident was caused by the negligence of the defendant.

2. The defendant did not dispute that the plaintiff was the administratrix of the deceased's estate, nor that the deceased died as a result of a collision between himself and the private car owned and driven by the defendant. However, the defendant contended that the deceased was not walking upon the zebra crossing as alleged, but that he suddenly ran out of a side street into the path of the defendant's car.

3. Two documents were submitted as agreed documents. Firstly a sketch plan made by the police at the scene of the accident, and secondly a receipt for the sum of $2,838.50 from the Wing Fook Ching Po Undertakers in respect of funeral charges.

4. The first witness, Mr. LEE Yau-shing, said that he witnessed the accident. The evidence of this witness was somewhat confused especially under sever cross-examination. He was a middle aged man, in my opinion, of below average intelligence working as an assistant in the Hoi Tong (Begonia) Cafe, which was operated by his nephew. This cafe was situated near to the pedestrian crossing, but on the other side of the road from where the accident took place.

5. During the trial all parties referred to this crossing as a zebra crossing and from the sketch plan and from Mr. Lee's evidence. I am satisfied that this crossing was an uncontrolled pedestrian crossing, established and delineated in accordance with the provisions of Reg. 3 of the Road Traffic (Road Crossing) Regulations.

6. Mr. Lee said that he was standing at the door of the cafe looking out into the street when he heard the noise of a car braking, and saw a car coming, he said too fast, from the direction of Sheung Shui, that is travelling towards the crossing on the other side of the road. He said that he saw the car hit the deceased who was on the crossing about half-way between the opposite pavement and the central street refuge (he did not actually use the words "street refuge", these are the words used in the Regulations). He said that the deceased was walking slowly across the crossing, and that the front nearside of the car hit the deceased. He then said that the deceased fell down on the crossing in front of the vehicle. That he walked across the road to have a look, but that he did not do much as there was another person helping the deceased, who at that time was still alive, and that soon afterwards two or three policemen arrived, and so he went back to the cafe. He said that he did not know who the person was helping the deceased, but that he did know the deceased, and had known him for sixteen to seventeen years.

7. This witness was severely cross-examined and when the sketch plan was put to him showing the position of the car as being on the other side of the crossing and, therefore, in front of the deceased if he had been lying on the crossing, Mr. Lee had first said that he did not agree with the sketch plan, then he said that the car had been moved to the position shown in the sketch plan later. At first he said that this was done after the police arrived then he said that it was before the police arrived, then he said that the deceased was carried to one side before the car was moved by this person, then he said that this person was assisted by the police. He was asked if the person who assisted the deceased was the driver, and he said he was not clear, although he previously had said that the person who helped the deceased had come from the pavement. In fact, under cross-examination he became completely confused as to these details, but his testimony remained unshaken as to the fact that he saw the deceased struck by the car whilst he was on the crossing, and furthermore that when he went up to the deceased the deceased was lying on the third white stripe of the crossing.

8. The defendant gave evidence that he was driving his car along the road at about 20 m.p.h. Under cross-examination he said that the speed could have been a little more, 20 to 22 m.p.h. He said that he had just driven over the crossing when he first saw the deceased who was rushing out from the pavement, and he indicated on the sketch plan the position on the pavement a little to the right of Tung Cheong St. Later in his evidence the defendant said that the deceased actually ran out from Tung Cheong St. Whether the defendant made this slight amendment to his evidence because he noticed from the sketch plan that railings on the kerb ran from the edge of the crossing to the corner of Tung Cheong St. I do not know. He said that he braked, and tried to swerve to the right. Later when he was shown the sketch plan which showed that his car was pointing very slightly to the left he said that he was frightened and could not remember what he did with his hands. He said that the deceased was running very fast diagonally towards his car as he described him, "with his head sticking out and his body leaning forward" and that as a result of this the deceased ran into his car, coming into contact with the nearside corner of the windscreen and as a result the wind-screen was shattered. The defendant said that he stopped his car, got out, and saw the deceased lying about one to two feet from the rear nearside of his car, between his car and the crossing. He said that he gently dragged the deceased to the kerb, and then police arrived, he said that approximately three policemen arrived. He said that before the arrival of the police he did not notice if anyone else approached him and the deceased because his attention was fully engaged with the deceased. He said that his car was not moved prior to the sketch plan being completed, and he agreed that the sketch plan was correct.

9. I cannot possibly believe the defendant's evidence as to how the accident occurred. The defendant said that his car was travelling at at least 20 m.p.h. when he first saw the deceased and that his car had already passed over the crossing. Reference to the sketch plan shows that the defendant's car came to rest some 10 feet the other side of the crossing. It is well established that at the speed of 20 m.p.h. the overall stopping distance of a car is 40 feet. Therefore I cannot believe that the defendant's car had crossed the crossing when he first saw the deceased and that he therefore stopped his car in 10 feet. It is also well established that a car travelling at 20 m.p.h. travels at 29.33 feet per second. Therefore, according to the sketch plan and the defendant's evidence if his car had only travelled some 10 feet after he had first seen the deceased running out of Tung Cheong St. even allowing for braking he would have seen the deceased for not more than half a second. According to the sketch plan the front of the defendant's car when it had stopped was 13 ¼ feet from the kerb at the junction of Tung Cheong St., but the defendant said that the deceased ran at his car at an angle, and was found on the road behind his car after the accident. Therefore, if the deceased had approached the defendant's car at an angle he would have travelled a little further than 13 ¼ feet. Again it is well established that a vehicle travelling at 10 m.p.h. will travel 14.66 feet per second. For the deceased to have run into the defendant's car as described by the defendant he would have had to have covered a distance of something like 15 feet in half a second thus running at a speed in the region of 20 m.p.h. Evidence was given which was not disputed that the deceased was a man of 68 years of age and although the deceased's son gave evidence that the deceased could run quite fast in a normal way, I do not believe that he could have run at the speed of 20 m.p.h.

10. It was put to the eye-witness, Mr. Lee, that he had no knowledge of the facts which he gave in evidence, and it was further put to him that he was not at the scene of the accident at all. This he denied. Counsel for the defendant alleged that this was shown by the fact that Mr. Lee could not even say whether two or three policemen arrived on the scene, but it is interesting to note that the defendant in his evidence said that approximately three policemen arrived on the scene. Mr. Lee was also sure that after the accident he saw the deceased was lying on the third white stripe of the crossing. Reference to the First Schedule of the Road Traffic (Road Crossing) Regulations shows that every crossing shall be indicated, inter alia, by alternate black and white stripes not less than 20 inches nor more than 24 inches in width. Therefore, if the deceased was lying on the third white stripe he would be at the most 12 feet or at the least 10 feet from the kerb. According to the sketch plan when the defendant's car had stopped the front nearside of the car was 13 ¼ feet from the kerb and the rear nearside of the car 14 feet from the kerb, so if the deceased whilst on the crossing was struck a glancing blow from the edge of the car's windscreen I see no reason why he should not have ended up in the position as described by Mr. Lee. Unfortunately although the particulars of the injuries allegedly sustained by the deceased were set out in the statement of claim no evidence of such injuries was given at the trial and I therefore have no evidence of injuries before me to assist me in coming to a conclusion as to which part of the deceased's body came into contact with the car. I note that the sketch plan indicates the presence of broken glass in front of and to each side of the car where it was stopped after the accident some 10 feet the other side of the crossing. In a case such as this where a person is struck by a moving vehicle which went past him before coming to rest I do not consider that in such a case the presence of broken glass on the road indicates the actual point of collision. As I have said a car travelling at an average speed of only 10 m.p.h. travels 14.66 feet per second, and under such circumstances I consider that glass would be found some distance past the point of collision.

11. Although perhaps little importance can be given to the evidence of the deceased's son, Mr. CHEUNG Chiu-kwan, as he was not always in attendance with his father Mr. Cheung did say that his father did not run across roads but always used to cross the road at a pedestrian crossing no matter how far he had to walk to such a crossing.

12. Although Mr. Lee gave confused, and at times contradictory, evidence, his evidence was never shaken as to the actual collision and place of collision between the deceased and the defendant's car. He struck me as being an honest witness although below average intelligence, and it must be remembered that this accident took place nearly two years ago.

13. Considering the evidence as a whole I am satisfied that the deceased while walking across this crossing was struck and fatally injured by the car driven by the defendant, this being so I must now decide as to the liability of the defendant in respect to this accident. As I have said I am satisfied from the evidence that the crossing in question was an uncontrolled pedestrian crossing established and delineated in accordance with the provisions of Reg. 3 of the Road Traffic (Road Crossing) Regulations. Reg. 4 of the same Regulations provides:

"Every pedestrian within the limits of an uncontrolled crossing shall have precedence within those limits over any vehicle, and the driver of the vehicle shall accord such precedence to the pedestrian, if the pedestrian is on the road within those limits before the vehicle or any part thereof has come on to the road within those limits."

14. In the case of Gibbons v. Kahl⁽¹⁾ it was said it is the duty of any motorist approaching a pedestrian crossing to approach it in such a way that he can deal with the situation on the crossing when he gets there, he must be in such a position and driving at such a speed that if anybody is on the crossing he is in a position to stop. In the later case of Lockie v. Lawton⁽²⁾ this principle was taken a shade further when it was said that once a pedestrian is on such a crossing the driver of any vehicle approaching that crossing must accord him precedence however unexpectedly or suddenly he crosses. Both these cases were concerned with the Pedestrian Crossings Regulations 1954 (S.I. 1954 No. 370) Reg. 4. This regulation contains the same provisions as the Hong Kong Regulation 4.

15. I am satisfied that the defendant as he approached the crossing in question was negligent in that he was not keeping any, or any proper, lookout to observe or heed the presence of the deceased on that crossing and that as a result of the defendant's negligence his car came into collision with the deceased and that the deceased died as a result of that collision. I find the defendant 100% responsible for the accident.

16. I now come to the question of damages to be awarded. Dealing firstly with the assessment of damages under the Law Amendment and Reform (Consolidation) Ordinance. No evidence has been adduced before me as to any pain and suffering and so I make no award under this head. Following the decision in the case of WONG Kam-ying and another v. MAN Chi-tai⁽³⁾ for the loss of expectation of life I award the sum of $7,500.00.

17. As to funeral expenses, these were paid by the son of the deceased, CHEUNG Chiu-kwan, and as he is not cited as a dependant in this action I consider that this sum is a debt owed by the estate to him, therefore, I consider that this sum is also recoverable under the Law Amendment and Reform (Consolidation) Ordinance. A receipt for the sum of $2,838.50 was submitted as an agreed document, agreed to the extent that the sum had been paid to the Wing Fook Ching Po Undertakers. Mr. Cheung gave evidence that this account from the undertaker only represented the cost of the deceased's coffin, although reference to the said receipt indicates that the account covered charges for "funeral utilities" of the deceased. Mr. Cheung said that in excess of this sum he paid out over $2,000 for the deceased's funeral. After this evidence had been adduced counsel for the plaintiff applied to amend the Statement of Claim to increase the claim for funeral expenses to the sum of $5,000.00. This application was granted. Mr. Cheung said that this extra sum of over $2,000 was incurred because the deceased died at the Queen Elizabeth Hospital and that many people went to pay their last respects to the deceased, and Mr. Cheung said that he paid the travelling expenses of all these people. That these people also burned joss sticks which he provided and that he also bought things, he did not specify what things, to put into the deceased's coffin. Counsel for the defendant contended that the sum of $2,800 was more than enough for the funeral of the deceased who was a fishmonger, and he contended that the further expenditure as described by Mr. Cheung was wholly unreasonable. Counsel for the plaintiff likened the funeral of the deceased to an Irish wake, where he said that buses were hired to take mourners to the ceremony. I am not conversant with the details of an Irish wake, but I do understand that certain things are put into the deceased's coffin at a Chinese funeral. However, I do agree with counsel for the defendant that the sum claimed for travelling expenses is excessive, and I therefore assess funeral expenses in the sum of $3,150.00. Funeral expenses had been claimed as special damages, and therefore upon this sum of $3,150.00 I award interest at 4% per annum from the date of the accident to the date of the trial, which amounts to $248.62, therefore, under the Law Amendment and Reform (Consolidation) Ordinance I award the sum of $10,898.62.

18. I now turn to the damages claimed under the Fatal Accidents Ordinance. Evidence was given by Mr. CHEUNG Chiu-kwan, the son of the deceased, that his father's average income was in the region of $70 to $80 per day during busy periods between the 8th to the 12th moon and the 1st to the 3rd moon and less during the slack periods between the 4th to the 7th moon. He said that he had knowledge of his father's income because he supplied him with the fish that his father sold and he knew what profits his father made. I am satisfied on Mr. Cheung's evidence that the average monthly earning of the deceased at the time of his death was in the region of $1,500.00 per month as set forth in the Statement of Claim. Mr. Cheung also gave evidence that out of this income of $1,500.00 per month the deceased gave to the plaintiff $650.00 per month for household expenses. He said that he knew this because his father had told him so. At the time Mr. Cheung gave this evidence no objection was raised by defence counsel. In fact defence counsel although not agreeing that the amount was correct used this figure of $650 per month when cross-examining Mr. Cheung. For some reason unknown to me counsel for the plaintiff did not call the plaintiff to give evidence, perhaps because she was an elderly lady and that Mr. Cheung's evidence as to his father telling him that he gave $650 per month to the plaintiff was not objected to. However, in his final address counsel for the defendant raised the point that Mr. Cheung's evidence was hearsay evidence, which strictly speaking as his evidence appears in the record it was. Counsel for the plaintiff contended that out of an income of $1,500 per month it is perfectly consistent that the deceased would have provided his wife with $650 per month. Counsel for the defendant argued that even if this sum of $650 was correct, then as it was for household expenses and the deceased had one meal a day at home this sum should be reduced.

19. I find myself in a very difficult position. I have no evidence from the plaintiff as to how much the deceased gave her a month for household expenses, and no evidence as to what this sum was to cover, did it cover the rent, and the fuel bills, or did the deceased pay for these separately? There is no evidence before me what the deceased did with the balance of $850.00 per month.

20. Taking into account the income of the deceased and his status in life I assess damages suffered by the plaintiff in the sum of $600 per month. As to the question of years of purchase, counsel for the plaintiff produced some statistics purchase by the Census and Statistics Department of the Hong Kong Government which showed that in this Colony the future expectation of life of a 70-year-old man is between 10 to 13 years, and he suggested a multiplier of between 8 and 10 years. Counsel for the defence suggests a multiplier of 5 to 6 years.

21. In the case of Duffin v. Young and Another⁽⁴⁾, the deceased was aged 63 at the time of his death and the trial judge applied a multiplier of 10. However the Court of Appeal reduced the award to the equivalent of the multiplier of about 7 ½.

22. In the case of Bartlett v. Horex⁽⁵⁾ the deceased was 71 years of age at the time of his death and the Court of Appeal confirmed a multiplier of 6 or 7.

23. In this case the deceased was 68 years of age at the time of his death. Therefore I select a multiplier of 8 and that makes a total of $57,600.00. From this sum must be deducted the damages awarded under the Law Amendment and Reform (Consolidation) Ordinance, which I have found to be $10,898.62. The final award then under the Fatal Accidents Ordinance therefore is $46,701.38.

24. There will be judgment accordingly.

25. Costs to the Plaintiff.

11th April, 1975.

Representation:

Mr. F. Eddis, instructed by (H.H. Lau & Co.) for the plaintiff.

Mr. Herman Poon, instructed by (T.S. Tong & Co.) for the defendant.

(1) [1956] 1 Q.B. 59

(2) [1960] 124 J.P. 24

(3) [1967] H.K.L.R. 201

(4) [1962] C.A. No.38 13/2/62

(5) [1965] C.A. No.29 12/2/65