Sung Hon v. Kwong Cheuk Him

HCA000122/1979

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Coram: Mr. Commissioner Litton, Q.C.

Date of Judgment: 13 December 1979

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JUDGMENT

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1. On the afternoon of the 2nd of November, 1977, at about 3.45 p.m., a teen-age boy SUNG Chiang-so was knocked down by a dump truck and killed in the vicinity of the 20 milestone on the Castle Peak Road, New Territories. It was a straight stretch of road about 6½ metres wide with pavements on both sides. The scene of the accident was outside the Ho Fuk Tong Middle School. School finished at about 3.30 p.m., and when the accident occurred not all the children had dispersed. There were a few children wearing school uniforms in the vicinity; the dead boy was one of them.

2. Arising from the accident the boy's father now claims damages, as the administrator of his estate, for pecuniary loss under the Fatal Accidents Ordinance, Chapter 22, and also for damages under the Law Amendment and Reform (Consolidation) Ordinance, Chapter 23.

3. A sketch plan, Exhibit P1, drawn by a police constable, PCI1982, shortly after the accident, which was adduced in evidence by consent and agreed between the parties both as to authenticity and content, shows the following:-

4. The first witness called for the plaintiff was a schoolgirl KEUNG Kau-wah, P.W.1. She is now sixteen years old and was, therefore, at the time of the accident, fourteen. She was studying at the Ho Fuk Tong Middle School. On the 2nd of November, 1977,school had ended at about 3.30 p.m., and P.W. 1 was standing on the pavement at the entrance to the school with three of her classmates waiting to cross Castle Peak Road. The time was about 3.45 p.m. There was traffic going in the direction of Kowloon, that is, from the girl's right to her left and she stood on the pavement facing across the road. The traffic was intermittent - mainly public light buses - such as to make it unsafe for her to cross the road. She then noticed an orange-coloured dump truck coming from her right and when it passed, she had to step back a pace or two because of the wind created by the passage of the truck, "....as if", she said "driven at a fast speed." She said she could not estimate the speed, "but it was faster than the normal speed of the public light buses." After the dump truck had passed, the traffic on that lane was clear, and when she looked to her left to see if it was then safe to cross the road, she saw the boy being knocked down. "It was", she said "the rear off-side wheel of the truck which struck the boy.", but when pressed in cross-examination, she said she was not certain that was so. Her exact words were, "As far as I could see, yes, but I don't know for certain that was so."

5. In weighing up the evidence of P.W. 1, I must bear in mind that the accident happened suddenly and unexpectedly; and whilst I have no doubt that she did her best to recollect what took place, the event was in fact two years ago. She was then only fourteen. A visual memory, registered in her mind in a fleeting moment of time when her faculties were not anticipating the event, was unlikely to be 100% accurate. Whilst I accept as accurate the evidence she gave of the events leading up to the moment of impact, I have grave doubts as to whether the dump truck struck the boy in the manner she described. Standing where she was on the pavement, her view down Castle Peak Road was oblique. Obviously at the moment when the dump truck went past, she was unable to see the off-side rear wheel. At what point of time the off-side rear wheel became exposed to her view, I am unable to determine; but I think it is unlikely that she could have seen the rear wheel striking the boy's leg. At any rate, the perspective would have made such an observation unreliable.

6. Unfortunately, the doctor who attended to the boy when he was admitted to the hospital was not called as a witness and from the memorandum made by the doctor, adduced in evidence as an agreed document, Exhibit P2, I am unable to conclude how the injuries were caused. I note however that the only fractures the boy suffered were on his head; and in all probabilities what P.W.1, in fact, saw and described was the fleeting moment in time after the boy had been hit. What became registered in her mind was an impression of proximity to the rear wheel enhanced by the oblique angle at which she, P.W.1, witnessed the event.

7. The only other witness called as regards the accident was Miss TSANG Shuk-kan, P.W.2, who was thirteen at the time and was also studying at Ho Fuk Tong Middle School. She was standing at a bus-stop on the other side of Castle Peak Road waiting for a bus coming from the direction of Kowloon. There were four or five other people at the bus-stop. She did not notice the dump truck, as it was coming in the opposite direction, until the accident happened. The significance of her evidence is this: she noticed the boy, SUNG Chiang-so, walking on her side of the pavement a few moments before the fatal accident took place. He was wearing his school uniform. He was walking normally, neither fast nor slow, carrying a blue-coloured file. The next thing she saw was the boy on the ground as shown He the plan, Exhibit P1.

8. The inference which is irresistible is that the boy, after walking past P.W.2 on the pavement, then went across the road and, just past the centre line, was hit by the truck. It is the plaintiff's case on this evidence that the allegations of negligence as pleaded in the statement of claim have been made out. Counsel for the plaintiff relies heavily on the fact that the defendant, the driver of the dump truck, who, of all the witnesses, was in the best position to tell the Court what actually happened, chose not to enter the witness-box as tipping the scale in his favour. It is this aspect of the case which has caused me the greatest concern.

9. Counsel for the plaintiff drew my attention to a sentence in Lord Denning's judgment in Chapman v. Copeland ⁽¹⁾ where he is reported as saying, "The very fact that a man had been killed called for an answer." Counsel at the same time, very properly, conceded that as a general proposition of law that cannot be sound and it is, I think, clear from the judgment as a whole that Lord Denning was not stating it as a general proposition.

10. In Chapman v. Copeland there was evidence that the driver was driving at speed. The brake marks were 184 feet long - suggesting that the emergency had erupted some distance before that. The victim and his moped had been thrown 34 feet by the impact, despite the driver's attempt, presumably, to bring the car to a halt. From these primary facts, the court could have inferred that the driver was going too fast. If the driver then chose not to go into the witness-box and say what speed he was driving at, the inference of excessive speed became irresistible.

11. In my judgment, the bare fact of a defendant electing not to give evidence is neutral. He is exercising an undoubted right. But where a plaintiff's evidence adduced at the trial leads to a prima facie inference of wrong-doing on the defendant's part - be it driving too fast, or not keeping a proper look-out, or whatever - and the defendant might have rebutted that inference by direct viva voce evidence but foregoes that privilege, the position is no longer neutral. Normally, there can only be one inference drawn - the defendant's evidence would have confirmed the plaintiff's case.

12. Now, is there in this case a prima facie case of negligence established against the defendant: He was driving a heavy dump truck, the unladen weight was 136 ½ hundredweights, down a perfectly straight piece of road. The truck was wide, 2.3 metres wide, according to the statement in Exhibit P1, almost the width of the driver's lane of the road. As he approached the entrance to Ho Fuk Tong Middle School, he would have or should have seen the schoolchildren on the pavement to his left and also the schoolchildren a little further along to his right. He would have known them as schoolchildren by their school uniforms. In those circumstances, he should have taken extra care and anticipated that some of those children might act foolishly and be heedless of their own safety. He should have slowed down, perhaps slowed right down, so as to give himself plenty of time to react in case any one of those children should wander on to the road as he approached.

13. The question "what is a safe speed?" is always relative to the circumstances; likewise, what kind of a look-out a driver should maintain. In normal circumstances, a motorist driving along would not expect children to dash across the road heedlessly; but here there was a situation of potential danger known to the driver which he should have guarded against. With schoolchildren on both sides of the road, (and it was end-of-school time), there was always the possibility of one or other of the children taking a risk and dashing across the road.

14. The evidence was that the defendant was going at some speed, enough to cause what counsel have referred to as a "whoosh" when the defendant drove past P.W.1 making her step back a pace or two. That by itself was inconclusive. Moreover, the truck did pull up within a relatively short distance after the accident. As to how short, I can make no finding. But the defendant was at the wheel of a vehicle which was extremely bulky and potentially dangerous. He knew or ought to have known that the slightest contact with a pedestrian was likely to result in very serious injuries. In all the circumstances I think there was enough evidence for me to infer that he was going too fast for the conditions prevailing at the time and that he should have kept a better look-out.

15. Counsel for the defendant invites me to hold that what happened was as follows: the boy was taking a risk standing in the middle of the road waiting for the Kowloon-bound traffic to go past; the front of the dump truck had gone past the boy safely and somehow he got himself tangled with the rear wheel.

16. If that was what happened, there was no fault on the part of the driver. Why then did the driver not go into the witness-box to say so? The failure of the driver to give evidence leads me to reject that possibility and strengthens the tentative view I have formed that he was not keeping a sufficient look-out for schoolchildren on the road and was, in the circumstances, going too fast.

17. Mr. Stone for the plaintiff submits that the defendant's failure to give evidence precludes a finding of contributory negligence. I disagree. Whilst the burden of establishing contributory negligence is on the defendant, that burden is discharged on a view of all the facts.

18. Facts are facts, whether they emerge from the evidence adduced by the plaintiff or the defendant. Here the conclusion is irresistible that the boy was to a large degree to blame. At the time when the boy went across the road, P.W.1 was waiting on the opposite pavement not a great distance away. She waited because it was unsafe to cross, as it probably was. It is immaterial for me to find why the boy should have left the safety of the pavement and gone across the roadway. He did - at a time when there was traffic coming from at least one direction. That was clear negligence on his part. He was then 13½ years old and should have known better. In the circumstances, I hold that the boy was 50% to blame.

19. I turn now to consider the quantum of damages. Although the claim under the Fatal Accidents Ordinance, Chapter 22, is brought for the benefit of the boy's father, the plaintiff, his mother, and four brothers and sisters, the evidence of pecuniary loss adduced at the trial was confined to that of the father, SUNG Hon. It was the responsibility of the father and the mother to bring up the five children and I do not think it realistic to regard the four brothers and sisters as dependants of the boy.

20. The plaintiff was in November 1977 operating a chicken farm at Yuen Long, New Territories. His total stock of chickens of various sizes was about 2,500. The dead boy was his eldest son, born in July 1964. The plaintiff gave evidence to the effect that although the deceased was attending school daily, he, nevertheless, spent some three hours each day helping the plaintiff with the chicken farm. The plaintiff had other children who might have helped: his daughter SUNG Chiang-mei, born in July 1963, his second son SUNG Chiang-chung, born in June 1965; but in practice they seldom did, and the heavier jobs such as gathering chicken waste and baskets and carrying it for dumping to the stream nearby were always left to the deceased. That was, the plaintiff said, because the deceased was at the time of his death already five foot tall and strongly built.

21. The plaintiff's evidence, and it was unchallenged in this respect, was that the net profits of the farm were $2,500 per month. This was achieved on sales of about 450 to 500 chickens per month. The plaintiff's estimate of his son's contribution to those profits was 3/8ths; that was because, according to the plaintiff, he himself was working daily about five hours on the chicken farm and the deceased three hours. The fact that the boy's father did suffer pecuniary loss arising directly from the boy's death is, in my judgment, established on the evidence, and likewise as regards the mother, LEE Kam-lan; but I have grave doubts as to whether it was to the extent as claimed by the plaintiff.

22. I accept the plaintiff's evidence that the deceased was, amongst his five children, the one who showed the most interest in the chicken farm, and that the deceased applied himself diligently to helping his father. It is perhaps natural in the circumstances that there was something special in the relationship between the plaintiff and his eldest son, a relationship enjoyed perhaps to a lesser extent by the other four children. I also accept the plaintiff's evidence that after the death of his son he folded up the business, the reason being a combination of grief at the loss of his son and the plaintiff's own disability. The plaintiff said, and I accept as true, that he suffered from a heart ailment which became much worse after the shock of his son's death; but I do not think that the extent of his son's contribution was as much as the plaintiff claims.

23. Mr. Stone submits, taking into account the amount which would have been expended on the son's maintenance and school fees, that the pecuniary loss suffered by the plaintiff was $600 per month. This was, of course, an approximation arrived at by taking 3/8ths of the net profits of $2,500 a month but deducting maintenance at the rate of $10 per day. To a large extent, the figure is, of course, conjectural and is, I think, at the high point of a shifting scale. Considering that the burden of proof is on the plaintiff and that any real doubt in the matter must be resolved against him, I think that a pecuniary loss of $340 per month is about right, and I so find.

24. As to the multiplier to be applied, the evidence (which was not seriously challenged) was that the deceased would have completed middle school had he lived but was most unlikely to have gone on to further education thereafter. When the plaintiff was asked what his expectations might have been with regard to his son continuing to help him with the chicken farm, the plaintiff replied, "At least I expected him to help until his twenties and then to get married. Of course, after that I couldn't expect him to assist. Whether he would or not was up to him."

25. What I am dealing with here is a close-knit family living in the New Territories and it would be realistic to expect the eldest son to contribute towards the maintenance of his parents for some considerable time. I must, of course bear in mind that there are other children who might reasonably be expected to help maintain the parents as time goes on and naturally the futher one gazes into the future, the more conjectural is the exercise.

26. Taking all the circumstances into account, I think Mr. Stone's submission of a multiplier of 14 - which he frankly admitted was at the top end of the scale - was rather too high and in my judgment 12 would be about right. The computation of damages, therefore, under the Fatal Accidents Ordinance, is as follows: Pre-trial loss from the time of the accident to the date of trial (which I take as two years): $340 x 12 x 2 = $8,160. This sum will carry interest at half the short-term lending rate for the period; as to this counsel are agreed it should be 8%. Hence, 4% of $8,160 for two years is $653, making a total for the pre-trial loss, including interest, of $8,813.

27. As to the post-trial loss, the computation will be as follows: $340 x 12 x 10 = $40,800. So the total computation of pre-trial and post-trial loss yields a total of $49,613. Taking into account the 50% contributory negligence as I have found, the award under the Fatal Accidents Ordinance is $24,860.

28. As to the claim under the Law Amendment and Reform (Consolidation) Ordinance, Chapter 23, the boy was killed almost instantaneously. He had fractures in the skull and died shortly after arriving at hospital. The figure of $10,000 for pain, suffering and loss of expectation of life would be appropriate. As this sum will go to the plaintiff and his wife, the recipients of the award under the Fatal Accidents Ordinance claim, it will, of course, "merge" with that award.

29. Special damages of $4,600 have been agreed and this will carry interest at 4% from the time those damages were incurred, that is, about November, 1977. I make that $368 to the date of trial, (taking the period for the calculation of interest as two years), making a total of $4,968 for the special damages.

30. There will, therefore, be judgment as follows: $24,806 plus $2,484 (being half of the $4,968) which makes a total of $27,290.

31. The award under the Fatal Accidents Ordinance will be apportioned equally between the plaintiff and his wife.

32. The plaintiff will have the costs of the action to be taxed and paid by the defendant.

33. It is further ordered that the sum of $10,000 which counsel informs me is in Court be paid out to the plaintiff, or his solicitors.

Representation:

William Stone (Poon & Sum) for Plaintiff

Suffiad (Peter Mark & Co.) for Defendant

(1) [1966] Vol. 110 S.J. 569