Wong Suk Yee v. Wong Chap and Another

HCA002164/1972

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

Action No. 2164 of 1972

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Coram: Trainor J. in Court.

Date of Judgment: 13th April, 1973.

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JUDGMENT

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1. These proceedings were instituted by the Plaintiff as Administratrix of the estate of her late husband on behalf of the estate, by virtue of the Law Amendment and Reform (Consolidation) Ordinance, and on her own behalf as well as her five children by virtue of the Fatal Accidents Ordinance.

2. The Plaintiff is claiming damages for the death of her husband caused, it is alleged, by the negligence of the 1st Defendant in the driving of a motor car owned by the second defendant which was in collision with the bus driven by the deceased.

3. At the outset may I say that I found the presentation of this case most unsatisfactory.

4. An Inquest was held at which the plaintiff was represented but not the defendant. On the hearing of the Summons for Directions it was agreed and consequently directed that the notes of the proceedings at the Coroner's hearing be admissible in evidence at the hearing without calling the witness. Needless to say the purpose of the Inquest was very different to that of this Court hearing a negligence action, and the mind of the Coroner was directed along another line altogether. The result is that the notes were most unsuitable. But even then, no copy of the notes was filed and it was only at the hearing that a solitary copy, part of which was badly photostated, was produced. One witness who had given evidence at the Inquest was called was frequently referred to the notes of evidence and the Court was expected to try to reconcile the notes with the evidence being given. Counsel for the defendant wanted to know if she was to cross examine on the notes or on the examination, but then it was, I presume, her solicitor who consented to this procedure. In the order made on the Summons for Directions it was further directed that there should be a plan other than a sketch plan. The only plan produced in Court was the sketch plan made by a police officer who visited the scene and, of course, was not to scale. There was only one plan available. Photographs of the scene were also produced but again there was only one set.

5. The deceased was the driver of a Public Light Bus. On the 30/4/71 he was driving along the Kwai Chong Road towards Kowloon at about 8.30 p.m. The conditions were good. The road is divided in two. One side is used by traffic proceeding towards Kowloon and the other for traffic proceeding from Kowloon towards Tsuen Wan. The two sides are separated by a grass margin which is about 1 foot high. There is a dotted line down the middle of the side of the road with which this case is concerned. The two vehicles were travelling in the same direction; the bus being on the outer or right hand side, the other vehicle, the car, being to the left of the bus. The collision took place shortly after a curve on the road.

6. A mechanical expert was called by each side each of whom suggested conflicting theories as to how this accident happened. While some assistance can be derived from their evidence I think that the picture to be derived is to be drawn from: the notes of the evidence of witnesses at the Coroners Inquest; the plan and photographs; and the evidence of the 1st defendant. As I said earlier the evidence to be derived from the notes is far from satisfactory but as the defendants have accepted it without challenge I must attribute to it such weight as I think it warrants.

7. The fourth witness at the Inquest Li Siu Tong, said he was sitting in the near side front seat of the bus, parallel to the driver, which he, a non-driver, considered to be travelling at about 50 miles per hour. The bus, he said, was on the outer side of the road and there was nothing in front on that side of the road. He saw, what he called, a mini-Cooper travelling on the inner side of the road strike the bus at the near side middle door. He thought the bus was travelling faster than the car but in reply to Mr. Woo for the next of kin (and the plaintiff in this Court) he agreed that the car might have been overtaking the bus. He earlier told Mr. Woo that he only saw the car just after the impact. He could not say if there was any vehicle ahead of the car. He said the bus was proceeding in a straight course.

8. The fifth witness at the Inquest, Yuen Pun Chuen, said he was in the bus and heard the horn of the bus being sounded 2 or 3 times. The bus veered to its right and across to the other side of the road. The witness said he lost consciousness. He did not see the collision and could contribute nothing further.

9. Another passenger in the bus, Lee Hing Fan, told the Coroner that he was sitting on the second row of seats on the right hand side next to the window. He said the bus was in the outer lane travelling at a fast speed. He said that at the time of the accident he heard the horn of the bus. He said that the bus was travelling in a straight line as was a small private car which was travelling abreast. This witness said that for about 50 feet they were parallel to each other. He said that before he heard the horn, the two vehicles were racing each other at very high speed, and repeated this to Mr. Woo. He said there was an impact, the bus driver braked hard and the bus veered across the road stopping at a place which he described, and which is over the dividing grass margin and on the other side of that part of the road leading to Tsuen Wan.

10. To Mr. Woo the witness said while the horn of the bus was being sounded, the private car was still moving towards the right, and the bus not having enough room drove to the other side of the road. This I understood to mean over the grass margin to the other side of the road leading to Tsuen Wan. Later this witness said he was not sure if the bus braked or not.

11. Another passenger in the bus Leung Wan told the Coroner that he was seated in the bus behind the driver. He said the bus increased speed to 60-70 m.p.h. He said he could not tell the exact speed but it was very fast and accelerating. He said he heard a bang and saw the bus and a small vehicle collide. The bus then swerved to the right, he said, and went over the other carriageway and he lost consciousness.

12. This witness told Mr. Woo that the bus had been travelling at a high speed all the time but it accelerated before the impact.

13. Another passenger in the bus Yue Ting Wah gave evidence at the Inquest that he was awakened by the sound of the impact. He said that he glanced to the left and saw the "mini Cooper" in "the centre lane" near the passenger door of the bus.

14. Another witness said at the inquest that he was drowsy at the time but felt that the bus was travelling neither "too fast or slow".

15. None of these witnesses gave evidence in Court and no other evidence was given of what occurred at the accident.

16. The 1st defendant gave evidence.

17. He said that he was travelling towards Kowloon on the Kwai Chong Road on the evening in question. His speed he said was about 50 m.p.h. He said the carriageway on which he was driving was divided into two lanes and he was driving in the inner lane. He said he had been driving in that lane all the time and there was no vehicle in front of him in it. He said he heard a bang, then hit his head and lost consciousness. He said he did not know what caused the bang. He said he did not notice any vehicle as he was not overtaking any nor was he slowing down. He had been driving at a steady speed. He did not see any vehicle behind either as not intending to pull out, he did not look in his mirror. He said further that he was within the marking of his lane. He said he applied his brakes immediately after the bang but he hit his head and felt dizzy.

18. In cross examination the defendant said that he was completely unaware of any other vehicle. He was asked if he had heard the sound of a horn immediately before the impact and he said no. To me he said he could not remember if he heard one at any time. It was pointed to him that the Coroner's notes record him as saying "It seemed there was the sound of hooting" to which he replied "it is so long ago. It's hard to remember".

19. It is extremely difficult to appreciate how this accident could have happened. The evidence is capable of being interpreted as indicating that the car came up on the left hand side of the bus with the intention of passing it. This would seem to be borne out by the 1st witness Li Siu Tong and, perhaps, Lee Hing Fan who said the vehicles were racing and he saw them travelling a breast for about 50 feet. It would appear as being rather odd that if the bus were passing out the car that none of the passengers noticed it ahead, even slightly so before the impact; particularly the person in the near side front seat and the other who saw the vehicles ruhning abreast. It is odd that neither of the witnesses nor indeed any witness was asked if they saw, or could have seen, a motor car in front of and to the left of the bus.

20. On the other hand it is difficult to understand why the 1st defendant should have come from behind and run into the side of the bus. There is no doubt that the horn of the bus was sounded and this might be taken us a sign that the bus driver was indicating his intention of passing out and the acceleration would also seem to support this as indeed would the fact of the running abreast for a time.

21. There is some assistance to be gained from the damage done to the vehicles. The near side front bumper of the bus was bent forward. If the bus were overtaking the car and struck it one would expect the bumper to be bent back. In addition, the damage to car indicates that the force which caused it drove parts of the body work backwards. If the damage were done by an overtaking bus one would expect, it was submitted, that the body work would have been forced forward which was not the case. All of this is very true, but these results could also be produced if the bus having passed had braked suddenly thereby forcing the car to assume an overtaking attitude. Whichever way one looks at it, however, there is the evidence of Lee Hing Fan who said that even though the horn was sounded the car kept moving to the right.

22. Having considered all the possibilities my conclusion, and it is a firm one, is that what happened was this:

23. Some distance back from the scene of the accident the part of the road on which the defendant was travelling is capable of carrying three lanes of traffic and the defendant was travelling in the outer lane. The road narrowed to two lanes and the defendant drove in the centre. His speed was more than 50 miles per hour. He overtook the bus which was travelling in the outer lane, decided to pass it and proceeded to do so. In doing so he was close to the near side of the bus which I believe was travelling at about 50 miles. At that time the bus driver saw the car in his mirror and to prevent the car from passing accelerated. I think the driver of the car did also and they ran abreast for a short time. I think that at that time the car began to drift or stray towards the bus whereupon on seeing this the bus driver sounded the horn as a warning, but it was too late. The collision ensued with the unfortunate death of the bus driver as a result.

24. In such circumstances the driver of the car was grossly negligent in that he was endeavouring to pass on the inside and was far too close to the bus. Moreover, when endeavouring to pass as he did he gave no warning of his intention so to do. In addition he was already travelling at a fast speed and when he accelerated he lost control of his vehicle with the consequent drifting or straying. He should never have accelerated.

25. The other alternative is that the car was driving in the way I have just said and towards the centre of the road. As the road is about 26' 8" wide there would have been a space of about 14 feet through which the bus could pass and the driver decided to do so. He did and the car, either because the driver who was unaware of the presence of the bus allowed it to wander or because of the speed at which it was travelling was unable to control it moved to the right at a time when the bus was partly past the car. The driver of the bus seeing that he was being squeezed between the car and the grass margin braked and so the car assumed the position of the overtaking vehicle.

26. In either event the responsibility of the car driver is predominant.

27. That of course does not exonerate the bus driver from all blame.

28. If in the first case the bus was being overtaken and the driver saw that the car intended to pass he should never have accelerated from the fast speed at which he was travelling to the greater speed estimated as high as 70 miles per hour; even though he was travelling in the faster lane. He most certainly should never have entered into a race.

29. If on the other hand the bus was overtaking and accelerated to do so he was taking quite a risk in trying to pass out in the space available having regard to the width of the bus. He most certainly in the circumstances should have warned of his approach and not waited until he was being squeezed.

30. I find that the deceased was 20% responsible for this accident which ever way it was caused.

31. In either event my decision would be the same. It only remains to assess the damages.

32. The plaintiff gave evidence of her husband's earnings, and of the family she has. The deceased who was 48 years of age at the time of his death was employed by the Public Light Bus Company as a driver and had been with the company for 4-5 years. He died leaving the plaintiff, his widow, now aged 39 and 5 children:

33. Tsang Hin Chung, son, aged 14

34. Tsang Pui Chung, daughter, aged 12

35. Tsang Pui Lim, daughter, aged 11

36. Tsang Pui Chun, daughter, aged 7

37. Tsang Hin Chin, Son, aged 5.

38. The plaintiff said that her husband earned $40 a day on an average. Of this he used to give the plaintiff $700 a month and I accept that figure. Out of this the plaintiff ran the house and in addition paid $150 a month school fees for her children.

39. In assessing the dependency I think that from the sum of $700 a deduction of $100 a month would be a reasonable sum for the boarding of the deceased. I find, therefore, that $600 a month is the extent of the dependency. As in all these cases the real problem is to assess the amount of compensation to be awarded. The plaintiff is 39 years of age and is unlikely to remarry. Such marriage prospects as she may have are not enhanced by the fact that she has five children to support. For them she has the hope and the ambition to provide a good secondary education, and, if she can avoid it, she does not intend they should work until they have attained that.

40. I have heard nothing of the deceased's personality but the fact that he has been in his taxing and difficult occupation for between 4-5 years before his death would indicate that he was a steady type and likely to have continued in his position. This suggests that he could have looked forward to a permanent position so long as his ability to fulfil his duties remained. I think it is safe to assume that he would have received some increase in salary but one must also consider the exigencies of life; he might have been struck down in health and unable to carry on. One must also consider that his life as a bus driver would probably have been shorter than, say, a chauffeur though a position as such might well have been open to him for some years after he ceased to be a bus driver. I think one could assume that the deceased might have looked in the absence of anything untoward, to steady employment to, say, the age of 63.

41. Taking everything into account and allowing for the immediate receipt of the compensation I would consider a factor of 10 to be about right. This gives a sum of $72,000 as the amount of the dependants loss. So far as the claim under the Law Reform Ordinance is concerned as there was no question of pain or suffering, the deceased must have died immediately I assess the damages thereunder at $7,000. There is then remaining the matter of the funeral expenses. The plaintiffs claim for $1,500 in respect of them was undisputed and I accept that.

42. These awards must be reduced by 20% by reason of my finding on the extent of the liability of the deceased for this accident.

43. My findings, accordingly, are that the defendants are jointly and severally liable to the plaintiffs under the Fatal Accidents Act in the sum of $53,200 (which sum includes funeral expenses) and $5,600 under the Law Amendment and Reform Consolidation Ordinance.

44. I would apportion to the dependant children as follows:

45. I direct that the sum awarded be paid to the Director of Legal Aid.

46. As I am satisfied that the plaintiff will apply the sum apportioned to each child to its benefit I further direct that the balance remaining in the hands of the Director of Legal Aid after all deduction have been made by him shall be paid out to the plaintiff.

47. The plaintiff is entitled to costs taxed under the Legal Aid Ordinance.

Representation:

Mr. Patrick Woo (T.M. Chow & Co.) for Plaintiff

Miss J. Leong (H.A. Hoosenally & Co.) for Defendants.