Wong Keung and Another v. Ng Kwok Leung and Another

HCA003143/1975

IN THE HIGH COURT OF JUSTICE

ORIGINAL JURISDICTION

ACTION NO. 3143 OF 1975

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Coram: Li, J.

Date of Judgment:

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JUDGMENT

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1. When the public authorities allowed public light buses to run in town, it was not exactly a blessing. Indeed it was convenient for the commuters from one part of a city to another. To the pedestrians, however, it was a hazard to life. One only has to see daily how drivers of public light buses conduct their vehicles. They can stop at any junction as they wish. They ignore any traffic signs as they wish and pick up passengers wherever and whenever they like. The present action is one of the classic examples of such hazard that is faced by the pedestrians of this city. However, I must put the blame where it lies. I cannot, for the unruly conduct of the majority of public light buses, put the blame invariably on the public light bus drivers.

2. On the 7th of February last year a traffic accident occurred at the traffic junction of Shantung Street and Shanghai Street in Kowloon in which a woman was knocked down by a public light bus and was killed practically instantly. The Shanghai Street runs from north to south and the Shantung Street from cast to west. If I understand the chart, Exhibit B, correctly, the traffic flows from north to south along Shanghai Street as a one-way street. There is a slight confusion as to what exactly was the route that this woman was taking when she crossed Shanghai Street. This is due to the fact that the plaintiff had the lack of understanding of the chart in the various directions indicated by Exhibit B, when he drew the trail of his late wife's last journey across Shanghai Street. However, one thing is certain. The spot where the accident took place was at a controlled pedestrian crossing, controlled by traffic lights both for vehicles as well as for pedestrians. It was also on a pedestrian crossing which was on the far side of the traffic flow, namely, that it was a crossing after one passed the whole width of Shantung Street along Shanghai Street. He described it as the second crossing of the junction where the public light bus hit the deceased after it had gone past Shantung Street.

3. The plaintiff sued in his capacity as administrator of the estate of the deceased on the ground mainly of negligence. The particulars of negligence are that the public light bus driven by the defendant was driven at an excessive speed in the circumstances, that the defendant failed to keep a proper lockout and observe the presence of the deceased, that he failed to apply his brakes or to avoid the collision, that he failed to maintain a proper and effective contrel of his vehicle and that he used a vehicle which was equipped with a defective speedometer.

4. The defence alleged that the accident was caused entirely by the negligence or contributory negligence of the deceased who failed to keep a proper lookout or indicate her intention of crossing the street at the time. Such is the issue.

5. Two witnesses were called on the question of liability. One was the plaintiff, Mr. WONG Keung. The other was the second defendant, who was the driver of the public light bus involved in the accident. Mr. Wong said that he and his wife took transport to as far as Shantung Street where he alighted on the pavement by the side of the Kam Tong Restaurant. He had to pay for the fare and his wife walked ahead of him. Eventually both of them crossed to the opposite pavement of the Kam Tong Restaurant by crossing Shantung Street. They walked along the pavement at Shantung Street to the pavement at Shanghai Street. There, the deceased started to cross the Shanghai Street pedestrian orossing - the crossing I have referred to earlier - well ahead of hor husband, the plaintiff. She was about three paces away from the pavement of the opposite side where she was knocked down on the pedestrian orossing by the defendant's public light bus. According to the plaintiff, when his wife was a few paces from the pavement of the opposite side he was about to cross from his side of the pavement to catch up with his wife. At that time he saw to his right two public light buses stationary on the lane of traffic nearest to him. He assumed that they stopped at the junction to allow he and his wife to cross the street. At the same time he saw farther away, well away from the junction a total of four public light buses in the outer lanes. Two of these four public light buses passed in front of his wife and the third one passed behind his wife. The fourth one knocked down his wife. He said that the public light bus that knocked down his wife was travelling at a very excessive speed of about 50 miles per hour. After his wife was knocked down he looked up and saw that the pedestrian light was green in their favour. That is the sum total of the evidence for the plaintiff on the question of liability.

6. The defendant's evidence is that when he was approaching that junction of Shantung Street he saw that the light was green in favour of the traffic flow of Shanghai Street. He maintained a speed of roughly between 20 to 23 miles per hour. At the junction of Shantung Street and Shanghai Street he saw two lanes of traffic being occupied by other public light buses. One lane, the first lane, had one or two public light buses stationary at the junction and the other one, the second lane, had a third public light bus also stationary. However, in his own lane the road was clear. So he continued at the same speed to cross the junction. Suddenly he saw the woman emerging out from the front of the two lanes of stationary public light buses. It was too late for him to stop and the woman was hit. There was not a chance for him to apply his brake and hence the accident.

7. The issue, therefore, is whether there was negligence on the part of the defendant or negligence on the part of the deceased that caused this fatal accident. In assessing the value of the evidence of the witnesses I cannot help feeling that there is some exaggeration on both parties. But the main exaggeration is to be found in the plaintiff's evidence. The plaintiff admitted that he made a statement to the police soon after the accident on the same day of the accident - within an hour of the accident. In this statement he first told the police this: "When I was walking near the said stationary light buses, I saw my wife suddenly running forward and subsequently a light bus arrived and knocked her down. I rushed forward to lift her up. She was then unconscious". In answer to the question whether prior to his walking aeress the road with his wife he noticed the colour of the traffic light, his answer was: "I did not see the colour of the traffic light, because I saw the two light buses were stationary there and that I was in my mind that they were giving way for us to walk across the road". Question: "Prior to your walking across the road, did you see any other vehicle travelling along in the road?" Answer: "No and therefore we walk across the road". Question: "Were any pedestrians coming in the opposite direction?" Answer: "No." Question: "How far was the light bus away from your wife when you first saw it?" Answer: "I came to see it at the time when my wife was being knocked down". Question: "Do you know that there are traffic lights at the pedestrian crossing?" Answer: "I don't know". This statement to the police is directly in conflict with his evidence in court. If he did not even know that there was any traffic light at the pedestrian crossing, he could not possibly see the green light in the favour of the pedestrian, after his wife was knocked down. Bosides against human instinct and human nature when one saw one's own wife having been knocked down by a car, the reaction was not to look at the traffic lights but rather at one's wife. For this reason I find that the plaintiff's evidence is not reliable. There is this documentary evidence in the pictures in Exhibit C which showed that the public light bus was dented and the windscreen was completely smashed as a result of this collision. It gives some idea of the force of impact and indicate that the public light bus that knocked down the deceased must be travelling at some speed. It may not be 50 miles per hour but it must be travelling in excess of 20 or 23 miles an hour.

8. I find as a fact that the deceased seeing that there were two public light buses stationary near the junction, a bad habit of public light bus drivers assumed that the whole of the traffic flow would be standing still to wait for her to cross. She proceeded to cross the road and then she found there were cars coming as she was crossing. She dashed forward but not in time to got away or get past the traffic flow and she was there and then hit by the defendant's public light bus.

9. It has been argued that in the circumstances the defendant had not a clear view of the whole of the road, and therefore he was either negligent in common law. Alternatively, when he approached a controlled crossing he was not able to, or did not put himself in a position to stop the vehicle as soon as was necessary. The case of London Passonger Transport Board versus Upson (1949) Appeal Cases 155 was cited in support of this proposition. That the case was decided solely on the provision of Regulation 3 of the Pedestrian Crossing Places (Traffic) Regulations, 1941, of which we have no equivalent and no counterpart in Hong Kong. That regulation provides that the driver of every vehicle approaching a crossing shall, unless he can see that there is no passenger thereon, proceed at such speed as to be able if necessary to stop before reaching such crossing. The court of first instance found that the driver who knocked down a pedestrian in the circumstances was guilty of negligence in common law. It was found that as he did not have a clear view of the road for about five feet and knowing the propensity of pedestrians to cross in front or behind vehicles by rushing out, he should be keeping a lookout and be prepared for the eventualities. Such a finding was reversed in the Court of Appeal but the driver was found in breach of the Pedestrian Crossing Places Regulations, 1941. Having regard to the decision in that case I am of the opinion that there was no negligence in common law on the part of the defendant in the present case when he continued in the same speed while the road ahead of him was clear and the deceased rushed out in front of his bus. I find as a fact that the accident took place simply because the deceased was unmindful of the traffic lights in the pedestrian crossing, as the plaintiff was at the time. I also find that the defendant had no chance to stop his public light bus in time. Needless to say that the stationary public light buses in the first and second lanes of the traffic flow contributed a false sense of security to the deceased. There was no negligence in common law on the part of the defendants. There is no traffic regulations in Hong Kong requiring a driver to be propared if necessary to stop at controlled crossings. For this reason I hold that the defendant is not liable because the accident was caused by the negligence of the deceased as a pedestrian. That ought to dispose of this action.

10. However, counsel for both parties have addressed me on the question of damages. In the event that I am wrong either in law or in fact in my findings, I now proceed to consider this question. At the time of her death the deceased used to earn some thirty dollars por day as an unlicensed hawker. The evidence is that she contributed something like seven hundred dollars a month for the maintenance of the household of her husband who was then unemployed. Her son who was about to finish his apprenticeship and her daughter who was 19 and was doing nothing. Since her death the son had already finished his apprenticeship and was earning about five hundred dollars per month. The daughter was married and lived away from the plaintiff. Neither the son nor the daughter gives or contributes anything to the maintenance of the plaintiff, the widower. The widower, the plaintiff in this case, has now found work as an odd job worker. He is earning approximately three hundred dollars per month. It has been argued that in the light of the case of Tam Choi v. Ho Wai Hing and the Kowloon Motor Bus Company, Civil Appeal No. 19 of 1974 which approved the extension of the principle laid down in the case of Burns v. Edman in 1970 Queen's Bench, page 541, the earning of an unlicensed hawker, is termed an illegal earning. As such whatever contribution out of such earnings, whatever dependoncy there might be on such carnings would not give a right of action on the principle of "ex turpi causa". While for myself I find it rather difficult to assimilate the earning of an unlicensed hawker with the illegal earning of a criminal - criminal in the sense as we understand it - I am bound by the decision of the Court of Appear here. I would not express any further opinion on this matter. Sufficient it is to say that when the contribution comes from the earnings from unlicensed hawking it appears that that decision puts a stop to any claim on that basis.

11. Apart from that there is the question of dependency. The son obviously ceased his dependency practically the same time upon the death of his mother, the deceased. The daughter is married so that she is no longer dependent on the deceased woman's earning at all. There leaves the widower who earns about three hundred dollars per month now. He appears to manage without any contribution from his son or his daughter. I come to the conclusion that if there was any dependency at all, the dependency is of a very slight nature.

12. As to the claim founded on the Law Reform Miscellaneous, Law Amendment and Reform (Consolidation) Ordinance there must be proof of loss of an expectancy of a happy life. I can only repeat the words in Burns v. Edman to say that the life of an unlicensed hawker cannot be a particularly happy one. There is the hazard of running away from Hawker Control Force, from the Police Force, not to mention any rather uaruly elements who squeese money out of any hawker. As a woman of over fifty years of age and she had to support a husband who was unemployed and a son who had to go through apprenticeship twice over. It is evident that neither son nor daughter contributed anything to the upkeep of the father. It would be rather unlikely that, had the deceased been spared and is still living, she would have any contribution from her children or be cared for by her children. But all these are rather academic in view of the decision in Tam Choi's case and my decision on the question of liability. I find that as far as dependency is concerned, it is practically nil. Even if there were dependency, the earning of the woman would not be a guide as to any damage that can be recovered because the earning is from illegal hawking. In view of the circumstances I dismiss the action and there remains the question of costs.

13. Action is dismissed with costs to be taxed.

Representation: