Pak Yen Hol v. Lee Kim Fung and Another

HCA000881/1971

IN THE SUPREME COURT OF HONG KONG

(ORIGINAL JURISDICTION)

ACTION NO. 881 OF 1971

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Coram: Trainor J. in Court

Date of Judgment: 30 April 1973

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JUDGMENT

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1. On the 30th May 1970 at about 8.30 a.m., a motor car driven by one S.J. Armstrong, and a mini-bus driven by the second defendant were in collision about the 9 1/2 milestone Castle Peak Road in New Territories as a result of which the driver of the car was killed as was a passenger in the car, one Pak Mei Lai. These proceedings are brought by the Plaintiff, who is the father of Pak Mei Lai as her administrator on behalf of her estate pursuant to the Law Reform (Miscellaneous Provisions) Ordinance, and on behalf of himself and his wife pursuant to the Fatal Accident Ordinance. Briefly, the facts are as follows :

2. The second Defendant was driving his bus from Jordan Road Ferry towards the New Territories; the car was proceeding in the opposite direction. At the place the accident occurred there is an acute bend to the right as the mini-bus travelled.

3. Two witnesses gave evidence : the driver of the bus, the second Defendant, and a passenger in his bus. The driver maintained that he approached the bend on his correct side travelling in third gear. He said he had been travelling this route for the last 4 or 5 years and that by reason of the incline of the road and the bend he changed down to 3rd gear. He said there was a car approaching him from the opposite direction driving on its correct side. He said it was followed by another car, travelling on its incorrect side of the road and, apparently, trying to pass out the car in front. The second Defendant said that his bus was about level with the first car when he saw the second car. At that time it was 7 - 8 yards away from him. He said his immediate reaction was to swerve to the left, but at that moment he saw 4 or 5 people standing on the left side of the road. He implied that had he swerved he must have crashed into the people, so instead he applied his brakes. The car struck his bus which overturned.

4. The passenger in the bus said she was seated on the near side of the bus to the right of the door as one entered. She said the bus was not travelling fast, but quite fast. She said that before the collision she saw a car not very far from the bus, she estimated 7 to 8 yards, travelling very fast. She said the bus was travelling on its correct side and the car was in fact travelling on the same side of the road. She said the car struck the driver's side of the bus and the bus immediately turned over. By consent, a sketch map was produced, but no great help can be obtained from it. Perhaps a little help may be gained from the fact that most of the broken glass shown on the sketch appears to be on the double lines that run down the middle of the road or to the left of them as the bus travelled.

5. The plaintiff relied largely on two points, one, res ipsa loquitur and the other that the bus driver did not steer his bus to the left when he saw the on-coming car. He would suggest that in the circumstances of this case at least both drivers were guilty of negligence and, therefore, each of them is liable. He cited the case of Baker v. Market Harborough Industrial Corporative Society Limited, and Wallace v. Richard's (Leicester) Limited⁽¹⁾ in support. Those cases, however are not analogous, in that in them there was evidence that the conduct of each driver was negligent in that each was hugging the centre of the road and neither tried to avoid the other. In the instant case, I have the evidence of the second Defendant and his passenger. There was further evidence given by a doctor, who said that a post-mortem examination of the deceased driver of the car established that there was an alcohol level of a 135mgs% to blood. At that level, the doctor said very positively, a driver would be affected and his capacity to drive definitely impaired.

6. In my opinion, the only ground on which the Plaintiff could succeed is that the Defendant was negligent in not steering away from the car when he saw it. From the evidence available it would seem clear, that up to that moment he had been driving circumspectly. When he saw the car the second Defendant had such time available to act as it would take the vehicles in the circumstances to travel the distance separating them, say 10 yards. (The Defendant and the witness said 7 - 8 yards). If the combined speeds were 60 m.p.h., this represented about 1/3 of a second. In my opinion, allowing for a time to re-act the accident was inevitable from the moment the second Defendant saw the car and there was nothing he could have done to avoid it. In the agony of the moment, to flash through his brain the choice of swerving and risking killing those people standing to his left or braking hard, as he said he did, showed very considerably mental capacity. That mental capacity was I thought reflected in his evidence. In addition, I thought he was a truthful and reliable witness who endeavoured to give his version of what happened honestly. I formed a similar impression of the passenger in the bus. In the circumstances I find there was no negligence on the part of the second defendant and I dismiss the claim with costs taxed according to the Legal Aid Ordinance.

7. Had I found for the Plaintiff I would have had to assess damages. The deceased, who was 17 at the time of the accident, was, according to her father, a waitress in the Go Go Night Club which has since closed down. He said that she earned $1,200 a month of which she gave him $700. The Plaintiff is aged 51 and his wife is 46. Of the $700 which the Plaintiff said he received from his daughter, he spent $200 of this buying clothes for her. I think that one may allow another $100 a month towards board and lodging. That would leave a net benefit of $400 a month. I am not satisfied, however, that this girl did pay anything as much as $700 to her father and I would hold that the loss sustained by the dependants is no higher that $250 a month.

8. Had I found for the Plaintiff and assessed the loss at this figure, my difficulty would then be to capitalise it. This young girl almost certainly would have got married in the near future, and the contribution to her parents would equally certainly have diminished if not ceased. There is also the fact that her occupation was precarious as evidenced by the fact that her place of employment has closed down. I would not have been disposed to adopt a multiplier higher than 3. I would have assessed the amount at $6,000. This amount would of course have to be reduced by a percentage represented by the extent of the negligence of each driver. In the curcumstances of this case I would have directed the amount found be paid to the Director of Legal Aid and after his deductions, the balance to be paid to the Plaintiff. I would not propose to allocate between the Fatal Accident Ordinance and Law Reform (Miscellaneous Provisions) Ordinance.

9. So far as the first Defendant is concerned, judgment by default has already been entered against him as owner of the car driven by S.J. Armstrong

Representation:

Mr. C.Y. Lee (Philip K.H. Wong & Co.) for Plaintiff.

Mr. Donnelly (H.A. Hoosenally & Co.) for second Defendant.

(1) (1953) 1 W.L.R., 1472.