Ng Choi-kiu v. Wong Fook and Another

HCA002457/1978

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Coram: Mr. Commissioner Mayo

Date of Judgment: 27 September 1979

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JUDGMENT

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1. The plaintiff is suing as the administratrix of the estate of CHOW To-kwong (hereinafter referred to as the deceased) who was run down by a public light bus on the 14th November 1975 while crossing the road at the junction of Tokwawan Road and Mok Cheong Street. He died the next day from the injuries he sustained.

2. The plaintiff is the deceased's mother, who was financially supported by him and the first defendant was the driver of the minibus and the second defendant the owner thereof.

3. The accident occurred shortly before 8.30 a.m. The deceased, who himself had only partial eye sight was an employee of the Society for the Blind and was proceeding to work at the Society's premises at the corner of Mok Cheong Street which are in close proximity to where this accident occurred.

4. The plaintiff was able to call a witness who saw the accident a Mr. Fung Keung. He gave evidence that he was approximately 30 yards to the west of the junction on the south side of Tokwawan Road when he noticed the traffic, both eastbound and westbound in Tokwawan Road and from Mok Cheong Street had come to a stop. He also saw that the traffic light facing him in Tokwawan Road was red. Notwithstanding this a public light bus did not stop and hit a pedestrian who was on the pedestrian crossing.

5. The first defendant gave a very different version of what transpired. He said he was following another vehicle closely when he approached the junction from the east. He said that he was driving at approximately 15 or 16 m.p.h. and when he was about 10 feet from the crossing he saw that the traffic lights were green and a man suddenly dashed out into the crossing and he had no opportunity whatever to either stop or take sufficient evasive action to avoid coming into collision with the deceased. In cross-examination he admitted that everything happened so quickly he couldn't really recall with any accuracy what had happened.

6. Mr. Fung was an excellent witness who was not shaken at all in cross-examination. I am satisfied that the traffic lights were showing red when the deceased was on the crossing.

7. As the crossing is in close proximity of the premises of the Society for the Blind there is an installation attached to the lights which sounds a bell which operates when the lights are red and it is safe for pedestrains to cross. On the balance of probabilities it seems to be highly likely that the light had turned to red thus activating the bell I have referred to and this would account for the presence of the deceased on the crossing.

8. For the reasons I have given I am satisfied that the first defendant did proceed over the crossing on the red light and accordingly was driving the public light bus negligently. Equally I am satisfied that the deceased was not negligent in crossing the road in the way he did and there is no question of there having been any contributory negligence.

9. I will now consider the question of damages. The plaintiff gave evidence that the deceased, who was aged 26, was her only son and until about 6 weeks before his death he had been living with her and contributing $500 per month towards family expenses. He had then formed a relationship with a woman and gone and lived with her. This lady has not made any claim in respect of the accident. The plaintiff gave evidence that as she was without any other means of financial support she expected that the deceased would have continued to make payments to her of $300 per month.

10. I regret that I do not think that this expectation was very realistic. The deceased was only earning HK$550 per month at the time of his death and it appears to be unlikely that he would have been able to continue to make payments of $300 per month to his mother particularly as he would no longer have been living with her. I do however accept that he would in all probability have attempted to contribute whatever he could to his mother as she had no other means of financial support. I propose basing my calculations upon the deceased contributing $150 per month to the plaintiff.

11. A number of factors have to be weighed in determining an appropriate multiplier. There was evidence which indicated that the deceased had a steady job and would have received small increases in salary which would have enabled him to cope with increases in the cost of living. However I do not think that these increases would have been sufficient to enable him to contribute more towards the plaintiff.

12. The plaintiff is in normal health for a woman of 65 and having regard to all the circumstances I am satisfied that a multiplier of 6 years is reasonable.

13. I therefore award general damages of $10,800.00 under the Fatal Accidents Ordinance. The plaintiff was unable to produce any documentary evidence relating to the payment of funeral expenses but I am prepared to accept her testimony that she expended the sum of $3,000 in this connection. Accordingly I award $3,000 for special damages.

14. No claim has been framed under the Law Amendment and Reform (Consolidation) Ordinance and so I do not propose considering a claim under this Ordinance. Interest of 4% per annum shall be payable on the special damages of $3,000 from the date of the accident to the date of payment. The plaintiff shall have judgment against both defendants in these sums.

15. I award costs to the plaintiff.

Representation:

Mr. Donnelly (K.M. Lai & Li) for plaintiff.

Mr. B.K. Ho (Kenneth K.C. Wong & Co.) for defendants.