Yiu Lam-ying and Another v. Au Yeung Yiu-kwong and Another

HCA001936/1972

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

ACTION NO. 1936 OF 1972

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Coram: Li, J.

Date of Judgment: 9th November, 1973

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JUDGMENT

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1. On the 29th January, 1971 at approximately 7.30 p.m. a fatal accident occurred in the vicinity of the junction between Ma Cho Lung Road and Castle Peak Road, which is situated between Sheung Shui and Yuen Long. One Mr. TSE Muk-keung was the victim of this traffic accident. His widow has brought this action against The Kowloon Motor Bus Co. Ltd. the 2nd defendant which is the owner of the bus involved in this accident and AU YEUNG Yiu-kwong, the 1st defendant who was the employee of the 2nd defendant and the bus driver. In the amended statement of claim the plaintiff alleges a number of particulars of negligence of the 1st defendant. They are set out in the writ and I shall not repeat them save that the writ also alleges a breach of statutory duty, namely: driving a vehicle with a defective speedometer and also with defective brakes. In their defence the defendants deny negligence and allege that the accident was caused solely by the negligence of the late Mr. TSE in not exercising proper care and, alternatively, contributory negligence.

2. It is common ground that at the material time on that day the 1st defendant was the driver of a bus belonging to the 2nd defendant, that the late Mr. TSE was then riding a bicycle on the road and was killed as a result of a collision between his bicycle and the bus driven by the 1st defendant. By the agreed bundle of documents it is evident that there is no dispute as to the injuries sustained as a result of which Mr. TSE died. From the documents and the photographs shown it appears that the spot at which the collision took place is a fairly straight stretch of the Castle Peak Road with a "T" junction leading to Ma Cho Lung Road. It is quite clear that the deceased left a widow - the plaintiff in question - and four children who are all minors.

3. The issue, therefore, is one and one alone. Did the accident occur as a result of negligence or breach of statutory duty on the part of the 1st and 2nd defendants or, alternatively, did the accident take place as a result of the negligence of the deceased or his contributory negligence? That must be the primary issue.

4. On this point the plaintiff calls one witness who claims to have seen the accident, Mr. LEE Hoi-yat. This elderly gentleman was a friend of the deceased and his family. He said that on the day in question he was riding a bicycle from Sheung Shui to Yuen Long along Castle Peak Road. Just before he reached the "T" junction leading to Ma Cho Lung Road the order of traffic was as follows: The deceased was riding a bicycle fairly near to the kerb on the nearside of Castle Peak Road; thirty odd feet behind the deceased's bicycle was a lorry; about 10 to 20 feet behind this lorry was the witness, Mr. LEE's bicycle travelling fairly near to the centre of the road; behind the bicycle of Mr. LEE was the defendant's bus. As they approached the junction at Ma Cho Lung Road the bus overtook Mr. LEE's bicycle and also proceeded to overtake the lorry as well. By that time he, Mr. LEE, saw the deceased's bicycle turning to the right into Ma Cho Lung Road. The deceased's bicycle barely managed to cross the centre white line over the other side of the road when the bus had overtaken the lorry and had not had time to go back to its own side of the road. As a result there was a collision and the late Mr. TSE was knocked down by the bus. Pausing at this stage, perhaps I should also add that the width of Castle Peak Road in this vicinity is approximately 20 feet wide in all. It is open to two-way traffic. Thus one side of the road would be approximately 10 feet. Continuing Mr. LEE's evidence, he said that he stopped for a couple of minutes but he did not approach the spot where the late Mr. TSE was knocked down to see how Mr. TSE's condition was. He simply rode home to his village and told his fellow villagers. That same evening he told the widow of the deceased that he had witnessed the accident but that he did not know whether the victim of the accident was or was not Mrs. TSE's husband. He never made a statement to the police. He explained that to go near an injured person as soon as an accident occurred or to go to the police station to make a statement would be bad joss for him since it was the third day of the Chinese New Year. He further said that he did not even dare say outright that it was Mrs. TSE's husband who was involved in the accident because he feared that it could be a mistake and he might be blamed. That is the evidence of this witness.

5. Another matter which might affect the issue on the question of liability is the plan that was produced by Sergeant CHUNG Sai-yau. He is not the person who made that sketch of the scene of the accident immediately afterwards. He was merely in charge of the accident enquiry office and a keeper of the record. The constable who prepared the sketch signed by the 1st defendant has left the force and he was not available for cross-examination. The sergeant was merely called to produce the sketch plan.

6. The evidence of the defence is supplied by the driver, the 1st defendant himself. According to him, at that time there was no lorry in front of him. There was no overtaking of any vehicle. He said that approaching the junction at Ma Cho Lung Road he first set eyes on the deceased's bicycle while it was about 100 feet in front from his bus. The bicycle was ridden about 1 or 2 feet away from the kerb and was going straight on towards Yuen Long. When his bus was catching up with this bicycle and at about a distance of 20 feet from it he sounded the horn, a warning, to warn of the approach of the bus. The deceased took no notice of this warning and rode on with his head lowered. When the bus came up to about 5 or 6 feet from this bicycle the deceased's bicycle suddenly swerved to the right, towards Ma Cho Lung Road. He at once applied his brakes, swerved the bus to the right, but it was too late and he could not avoid the diaster. Whatever followed is immaterial. Evidence was called that everything that ought to have been done obviously was done.

7. Such is the evidence on the question of liability. There you have one witness for the plaintiff, one witness for the defendant. Their evidence is diametrically opposite in the aspect concerning negligence. Judging from the evidence I cannot help feeling that both witnesses have not told me the whole truth and both have exaggerated.

8. I shall deal with the defendant's evidence first. If what he told me were completely true then he would have run over the bicycle many many times. He could not possibly have stopped his bus without running over the bicyclist if he started to notice the swerving when the bus was only about 5 or 6 feet away from him. Further, commonsense will tell that unless a person worked in a circus it will be practically impossible to do a right angle turn or a sudden swerve such as he indicated that the deceased was doing. But the 1st defendant's evidence was corroborated to a certain extent and supported to a certain extent by the plaintiff's witness in that originally the deceased's bicycle was near the kerb and he turned to the right in order to enter Ma Cho Lung Road at the junction.

9. Mr. LEE, the plaintiff's witness, said that he had the deceased's bicycle in view all the time and when the deceased was knocked down the deceased had already crossed the white line. He said that he saw the collision himself. When Mr. LEE was cross-examined as to whether he saw the deceased giving any signals whatever or any indication he was turning to the right, he said he did not observe the deceased giving any indication although he said that he was in full view of the traffic. Mr. LEE was the type of person that did not even go and have a look to see the condition of his friend after the accident, never cared to make a statement to the police of what according to him must obviously have been a very grave piece of dangerous driving on the part of the 1st defendant. Even if I made allowance for the standard of education common to that class of people and the village superstitution, I am driven to the conclusion that had he told the deceased's widow that very night and told the villagers what he had observed there would have been no difficulty in the police getting in touch with him and asking him for a statement. The failure to make a statement to the police arouses great suspicion.

10. But that is not fatal to his evidence. What I cannot get over is the sketch of the scene of the accident immediately afterwards. It maps out all the marks that were left, it shows that prior to the braking the bus involved in the accident must have been substantially within its own side of the road following the line of traffic. It shows the skid mark starting about 1 ft. 4 ins. over the centre right line and that skid mark was left by the offside rear wheel. That being so, making allowance for the width and size of the bus, I would say at least 80 per cent of the bus was within the nearside of Castle Peak Road in the direction the bus was travelling. If it was in that position when the skid mark started that bus could not have been overtaking a lorry and could not have hit a bicycle which had already crossed the white line. It would be easy for any driver, driving a bus in the position that bus was in, to swerve to the left and immediately miss the bicyclist. There would be no necessity and no reason to swerve to the right. In any event, looking at the direction of the final position of the bus when it came to a stanstill as supplied by the photographs in exhibit B and the sketch position, it does not lend any force to any suggestion that the bus was at the time of braking on the wrong side of the road or that the bicycle was hit in the circumstances as described by Mr. LEE, the plaintiff's witness. Photographs cannot lie and sketches cannot lie. Both the sketch and the photograph show that the bicycle was hit by the near side of the front part of the bus. If the bus was overtaking the lorry and was coming back to its own line of traffic and at that point hit the bicycle it would not have been the near front portion of the bus that hit the bicycle. It should be either a head on collision right in the front of the bus or somewhere else. Looking at the distance of that straight stretch of the road it would be most unlikely that the bus would come to a final stop in that position, hitting the bicycle in that way. Apart from that the 1st defendant who gave evidence readily conceded that the "T" junction of Castle Peak Road and Ma Cho Lung Road is a fairly busy junction. There was constant traffic coming out into Castle Peak Road from Ma Cho Lung Road. there would be traffic going in from Castle Peak Road into Ma Cho Lung Road. Unless the 1st defendant was mad or criminally negligent he would never dream of overtaking a lorry just as he approached that junction. To do so would not only court disaster for others but would court disaster for himself. This is yet another element to be taken into consideration. When I find that the defendant's evidence contained some exaggerations, it may be a deliberate lie or it may be a miscalculation of distance. When I consider the evidence of Mr. LEE, the plaintiff's witness, the sketch and the photograph certainly do not support his allegation that the defendant was overtaking the lorry. Indeed, Mr. TANG, counsel for the plaintiff, invites me to ignore the sketch and to look at the photograph. But I must say that this sketch is part of the case for the plaintiff. It was the plaintiff's witness who produced it. Photographs always create an optical illusion in that the portion of a photograph nearest to the lens is always magnified and therefore one sees a greater distance between the white line and the skid mark. As I said, the evidence of Mr. LEE principally is not supported by the sketch. Suspicion is further strengthened by the fact that he even failed to report to the police or that the police, alternatively, failed to get in touch with him to obtain a statement on what, if his evidence is to be believed, amounted to manslaughter, or at least dangerous driving causing death.

11. Bearing in mind that the burden of proof - admittedly only on the balance of probability - lies with the plaintiff, I regret to say that the plaintiff in this case has failed to discharge the burden. I have great sympathy indeed for the widow and the children of the deceased. But this court is not an adjudicator in accordance with sympathy. Accordingly, the action fails.

12. I would have stopped here, disposed of this action as such. But I am indebted to counsel who, in response to a couple of points I raised on the quantum of damages, has done some research and addressed me on the point. Also in case I am found wrong in my finding of facts from the evidence in this case, I shall proceed to deal very briefly with the quantum of damages.

13. There is evidence that the deceased before his death ran a poultry farm and grew vegetables. His income was roughly about $1,000 a month which he gave to his wife, and the domestic expenses amounted to about $850 per month, leaving $150 savings. After his death the poultry farm had to be closed down and the poultry sold and the widow and the children now work the vegetable farm earning about $300-$400.

14. At the time of his death the deceased was 53 years old. I have been asked by counsel for the defendant that having regard to the deceased's age and the income to the family prior to and after his death I should adopt a multiplier of five and take into consideration the $300 earned by the widow and the children. Dealing with the multiplier having regard to the type of work in which the deceased was engaged prior to his death and having regard to his age and the environment in which he worked I would have thought that a person doing that sort of work would at least have another 10 years of active life. Accordingly - had I been asked to assess damages - I would have adopted a multiplier of 10, that is following the case of CHEUNG Wo v. LEE Voon-sang, 1965 Hong Kong Law Reports, p.799 to which my attention has been directed by counsel for the plaintiff. As to the monthly income I do not feel that I should take into account the earnings of $300. It may well be said that the vegetable farm would not have been worked by the widow and the children but for the death of the deceased. But the earnings of $300 or $400 a month to my mind can only reflect the fruits of their own labour. The damages to be considered in a fatal accident is the pecuniary loss to the family consequent upon death. This is not a direct result of the deceased's death, the earnings are the result of their own labour. Taking all into consideration I feel that to reckon a monetary loss of $750 a month is fair. I shall not work out in detail how much damages I would have awarded had I found for the plaintiff. But the basic principle would be there should be a multiplier of 10 on a monthly income of $750 subject to some deductions, bearing in mind that if any damages were to be awarded it would be in the form of a lump sum. This question now becomes academic in view of my finding on the question of liability.

15. For these reasons I dismiss this action with costs, to be taxed in accordance with legal aid regulations, as I understand this is a legally aided case.

(Submission by Mr. Bokhary on money paid into court)

COURT: The money paid into the courts will be returned to the defendants.

Representation: