Tsui Kuen-sing v. Low Yien-fong and Another

HCA000135/1979

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Coram: Mr. Commissioner Mayo in court.

Date of Judgment: 23 October 1979

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JUDGMENT

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1. The Plaintiff is suing the Defendants as the administrator of the estate of his son, Tsui Chi-kong (hereinafter referred to as Chi-kong) who was killed in a traffic accident which occurred on the morning of the 1st March, 1977. The 1st Defendant was the owner of the taxi which was involved in the accident and the 2nd Defendant was the driver. The action is brought under the Law Amendment and Reform (Consolidation) Ordinance, Cap. 23 and The Fatal Accident Ordinance. Cap. 22.

2. It is common ground that Chi-kong, who was aged 14 years 11 months at the time of the accident met his death as a result of the accident and that he was on the pedestrian crossing at the intersection of Prince Edward Road and Kadoorie Avenue which is controlled by lights. It was also agreed that 1st Defendant was the owner of the taxi bearing registration number BE 3271 and the 2nd Defendant was the driver involved in the accident and that he was after the accident charged with and found guilty of causing death by dangerous driving. Also there was agreement that the sketch plan prepared by a police officer who attended at the scene shortly after the accident was accurate and receivable as evidence.

3. Mr. Mok, who represented the Defendants, conceded that the 2nd Defendant had driven the taxi negligently at the time of the accident and the main issue on the question of liability was whether Chi-kong had been guilty of contributory negligence. Mr. Mok argued that on the basis of the evidence before the court it had been established that Chi-kong had dashed on to the crossing without looking to see if the road was clear and while he was on the crossing he had been run down by the taxi driven by the 2nd Defendant.

4. Although the accident occurred at shortly after 11 a.m. on the morning of the 1st March there was only one independent witness who gave evidence as to what transpired. The only other evidence before the court was the evidence given by the 2nd Defendant himself.

5. He gave evidence that he was proceeding along Prince Edward Road in a westerly direction. He said that he was driving at approximately 20 to 30 m.p.h. and that in approaching the junction of Kadoorie Avenue he started to reduce speed. When he was about 30 feet from the traffic lights at the junction he looked at the traffic lights and observed that they were showing green. He gave evidence that he was in the second lane of traffic and that there was traffic on both sides of his vehicle. He also observed that a public light bus was stationary at the crossing. However as the light was green he drove on and when he had passed two-thirds of the public light bus he saw a young boy running across the front of the public light bus. He applied his brakes, the vehicle skidded and the front part of his taxi came into collision with the boy. He maintained that the traffic lights were at all times in his favour.

6. The only witness called by the Plaintiff who was able to give evidence of the accident was a 15-year-old boy, Chan Lai-yin. He was aged 13 at the time of the accident. At that time he was a student at New Method College which is in close proximity to the scene of the accident. He said that he was standing at the back of a classroom as a punishment as he had forgotten one of his textbooks. He heard the squealling of tyres and turned around to look out the window and he saw a taxi coming into collision with what appeared to be a school boy on the crossing at the junction and the boy was thrown clear as a result of the impact. He said that he noticed that the traffic light was showing red at that time. Master Chan did not immediately inform anyone of this accident and it was only some days later that he made a report to the police.

7. Clearly this accident occurred over a very short period of time and while I do not think that Master Chan deliberately intended to tell a lie I do have some difficulty in attaching credence to his evidence that he noticed that the traffic light was showing red. He admitted that he only looked out the window for a very short period of time and I think it is highly probable that the accident itself would have engaged his attention rather than his noticing what colour the traffic light was showing.

8. I regret that I also experienced some difficulty in accepting the evidence of the 2nd Defendant. He was emphatic in stating that his speed at the time of the accident was not in excess of 20 m.p.h. However, as I have stated above, the defence agreed on the accuracy of the sketch plan prepared immediately after the accident. The brake marks of the taxi are depicted on the said sketch. They show that the brake marks extended for a length of 26 metres or approximately 80 feet. This fact was put to the 2nd Defendant and he was unable to put forward any satisfactory explanation for the disparity in the speed indicated by these brake marks and the evidence he had given of the speed he was travelling at the time.

9. Miss Yuen, who represented the Plaintiff, referred to the case of Frank v. Cox ⁽¹⁾ which deals with an accident which occurred on a controlled pedestrian crossing. It is clear from this case that a motorist has a duty to keep a look out for pedestrians and should give way to pedestrians who are on a crossing even after the lights have changed against them.

10. I am satisfied that the 2nd Defendant was driving negligently. At the same time I am not satisfied that the pedestrian light was against Chi-kong or that he was improperly on the pedestrian crossing. His contributory negligence has not been established. I propose therefore assessing damages for this accident on the basis of the Defendants being 100% responsible for this accident.

11. Both Chi-kong's parents gave evidence concerning the family circumstances and the extent of Chi-kong's contribution towards the financial well being of the family. Both parents gave evidence that Chi-kong in his spare time assisted his mother in turning gloves which the family took in from a nearby glove factory and worked on as a cottage industry. The father also gave evidence that Chi-kong would have left school the next year and become apprenticed so as to enable him to assist in supporting the family. The mother gave evidence that in all probability he would, like his brother and two of his sisters, have continued his studies to at least Form V. At the time of the accident Chi-kong was in Form II and doing quite well with his school work. In this respect I find the evidence of Chi-kong's mother more convincing than the evidence of his father.

12. His father gave evidence that the factory providing the work kept a separate account which showed how much work was done by Chi-kong and how much was done by his mother. The mother's evidence contradicted this. She gave evidence that at most Chi-kong only assisted her when he was free and that she would always encourage him to accord a priority to his homework at school rather than assisting with the gloves.

13. Both parents gave evidence that only Chi-kong amongst their children who were living with them undertook this work and no satisfactory explanation was given as to why Chi-kong who was the youngest child should have been the only child to do this work.

14. While I am satisfied Chi-kong was a dutiful son who did assist with this work I am satisfied that both parents have exaggerated the amount of his contribution. Also I am satisfied that Chi-kong would have continued with his studies but for this tragic accident. The amount of work done by Chi-kong would, in financial terms, have been less than the amount of money which would have been spent by his parents in maintaining him as a student.

15. All of Chi-kong's three elder sisters have gone out to work and on the evidence of the father at least one of them makes some financial contribution towards the family. Chi-kong's brother will shortly complete his studies at the Polytechnic and there is no reason to suppose that he would need to be supported by his younger brother.

16. The father was employed as a watchman with a salary of $900 per month at the time of the accident. His salary has now increased to $1,200.

17. I regret that so far as damages under the Fatal Accidents Ordinance are concerned I find it difficult to accept that I can award damages under this head.

18. I find the circumstances of this case close to those pertaining in Buckland v. Guildford Gas Light & Coke Co. ⁽²⁾. The prospect of Chi-kong making a financial contribution to his family in the future must be regarded as speculative on the facts as I have found them.

19. Turning to the claim for damages under the Law Amendment and Reform (Consolidation) Ordinance, Cap. 23, there can be no doubt that the usual award of $10,000 is payable as also are the funeral expenses of $2,100.

20. However, Miss Yuen placed before me a submission that I should also make a substantial award under this head on the principles propounded in Pickett v. British Rail Engineering Ltd. ⁽³⁾ relating to the loss of expectation of life of the deceased. Put simply it was held in that case that where a claim is made for loss of expectation of life the period to be used for calculating the loss should not be the actual life expectation of the claimant but his life expectation prior to the accident which forms the claim. Miss Yuen also referred to passages in Skelton v. Collins ⁽⁴⁾ which tended to support the contention that the lost years concept in Pickett's Case could be extended so as not to only apply to cases where the death of the applicant was postponed. She said that there was nothing inherently objectionable in the idea of a substantial award being made for loss of expectation of life in addition to substantial awards being made to dependants who may not necessarily be the same persons as the beneficiaries of the deceased's estate.

21. I have considered these authorities carefully but regret that I am unable to agree that it would be justifiable extending awards in this way in circumstances such as the present case.

22. There shall be judgment for the Plaintiff against both Defendants in the sum of $12,100 under the Law Amendment and Reform (Consolidation) Ordinance. Interest at 8% from service of writ to payment on $10,000 i.e. Law Amendment and Reform (Consolidation) Ordinance. Interest at 4% from date of accident on $2,100 i.e. special damages. Costs shall be to the Plaintiff on the District Court scale. Certificate for counsel.

Representation:

Miss M. Yuen, instructed by (Ng & Lee) for the Plaintiff.

Y.C Mok, instructed by (Peter Mark & Co.) for the Defendants.

(1) Times 11th May, 1967 (C.A.)

(2) 1949 1 K.B. 410

(3) (1979) 1 All E.R. 774.

(4) 115 C.L.R. 94.