Wong Chiu Yuen v. Chan Sang

DCCJ003171/1977

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT KOWLOON

CIVIL JURISDICTION

ACTION NO. 3171 OF 1977

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Coram: B.L. Jones, D.J.

Date of Judgment: 2nd October, 1978.

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JUDGMENT

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1. The deceased a boy aged 12 died on the 18th July, 1976 as a result of personal injuries that he suffered in a road traffic accident that occurred on the - 27th March, 1976.

2. On the date of the accident at about 12.15 p.m. the deceased was crossing Argyle Street when he was knocked down by a Datsun Station Wagon driven by the defendant.

3. The Plaintiff as the father and administrator of the deceased's estate claims damages under the Law Amendment and Reform (Consolidation) Ordinance and the Fatal Accidents Ordinance on the grounds of the defendant's negligent driving.

4. The deceased who was a student was with twelve colleagues who were on their way to the Pentecostal School. They had alighted from a bus outside the Kowloon Hospital in Argyle Street so that it was necessary for them to cross the road to the other side.

5. A sketch plan of the scene was produced, but it is not wholly accurate. In particular the bus stop where the boys alighted should be further to the left.

6. At the request of the parties I attended the scene during the course of the proceedings. There have been changes since the accident for the gap through which the deceased and other pedestrians passed to enable them to cross at this point has been replaced by a permanent railing. A temporary railing about three feet high that was present at the time of the accident is the same height as the permanent railing. However it is clear that during the daytime it is a very busy road both traffic wise and with large numbers of pedestrians. At the point where the boys started to cross Argyle Street there were two lanes of traffic coming from their right hand side and a third from the flyover. They successfully crossed the first two lanes to a space at the foot of the flyover. One of the three students who gave evidence had crossed the first two lanes with the deceased said the space at the foot of the flyover could accommodate about ten people walking abreast. Apart from the thirteen boys there were also some adults present crossing Argyle Street in the same direction. It is clear from the evidence and I accept as a fact that the deceased was on the extreme left of the group.

7. None of the three students who were with the deceased and gave evidence was paying particular attention to the traffic situation before they were about to cross over the third lane.

8. P.W.1 said he was about to cross the third lane when an adult restrained him pointing out that a car was coming. Each of the three witnesses described the defendant's vehicle that passed was travelling very fast. P.W.3 said that his attention was drawn to the approach of cars so that he did not continue walking. However, I am not satisfied that any warning was heard by the deceased. P.W.3 saw the deceased knocked down by the near side of the defendant's vehicle but was not able to say how far he had gone across the road.

9. It is not in dispute that there was a road sign at the place of crossing indicating that pedestrians were prohibited from passing beyond the sign.

10. The defendant said that he was driving with a passenger in the front passenger seat. No traffic was in front of his vehicle. As he came down the flyover he was travelling at 30 m.p.h. in third gear with his foot pressing slightly on the brake. When he approached the junction of the flyover, and the flat road he saw at a distance of about three feet a child dash out from his left hand side. He applied the brake and steered to the right. He did not have time to sound his horn. Prior to the accident the defendant said that he did not notice the group of pedestrians waiting to cross because the bars of the railing, obstructed his view and it was impossible to see to the bottom of the flyover. The defendant explained that he travelled in third gear at 30 m.p.h. as his car was a small one being only 988 c.c. which began to sway at a faster speed when the road surface was rough or when there were hidden turns by which I understand him to mean an uneven surface.

11. During my inspection I travelled across the flyover. The road from the top of the flyover to the point of impact is straight and is a distance of about one hundred yards. From the top to the place where the accident occurred pedestrians who had been standing there would have been visible to anyone who was keeping a proper look out. After the accident the defendant's vehicle was illegally moved before the Police arrived. Accordingly the position of the defendant's vehicle after the accident is not known.

12. I do not accept that the defendant was driving at 30 m.p.h. in third gear for the reasons that he gave. The road was straight, clear ahead and the surface smooth. Conditions were dry and visibility was good.

13. I am quite satisfied that the defendant was travelling at a much faster speed than 30 m.p.h. and that he was in top gear. The defendant was an inexperienced driver having held a licence for just under nine months at the time of the accident. If he had been keeping a proper look out he would have had no difficulty in seeing the pedestrians at the foot of the flyover and should have adjusted his speed so that he could take evasive action if someone decided to cross unexpectedly. His evidence that his view was obstructed cannot be accepted. He was not alert to the danger that arose and failed to act promptly. I therefore find the defendant to be guilty of negligent driving in that he was driving too fast and failed to keep a proper look out. I do not consider his failure to sound the horn to be negligent.

14. The test to be applied to determine whether the deceased was liable for contributory negligence is to ascertain whether he exercised the care to be expected from a child of like age intelligence and experience. From the evidence given by his parents the deceased was an intelligent boy. He was no doubt educated in road safety at school and through the mass media.

15. Together with his fellow students and the adults present that day he was attempting to cross at a very dangerous place. Cars would inevitably be travelling down the flyover at a fast speed. A sign warning pedestrians not to cross was in existence.

16. Nevertheless it appears that facilities for crossing the road in that area at that time were inadequate with the result that pedestrians in the past had taken steps to make a gap in order that they could cross.

17. I am satisfied that when the deceased started to cross he was not exercising proper care for his own safety and was contributorily negligent. Taking all factors into consideration. I hold the defendant 70 percent to blame and the deceased 30 percent to blame.

18. Four items of special damage were agreed viz $2,000 for funeral expenses, $50 damaged clothing, $500 special nutritious food and $622 taxi fares. Both parents of the deceased have claimed loss of wages during the period that they were away from work when they attended hospital to see their son before he died. The mother's claim at $500 per month is a continuing loss. Whilst I sympathise with the parents and accept their loss for the period up to the deceased's death I am of the opinion that only one loss can be reasonably claimed from the defendant. In the circumstances I shall award the sum of $500 per month for the mother's loss for a period of four months i.e. $2000. There can be no justification for the continuing loss claimed by the mother. The claim by the deceased's father is therefore disallowed. As a result the special damages amount to $5,172.00.

19. There is a claim for pain and suffering. The deceased's parents said that their son was unconscious until he died. An agreed medical report was before the Court, but it is not possible to determine accurately the degree of pain and suffering that the deceased sustained. Undoubtedly he suffered considerable pain before he lapsed into a coma. I shall assess damages for pain and suffering at $2,000.00.

20. The conventional figure of $10,000.00 is awarded as damages for loss of expectation of life under the Law Amendment and Reform (Consolidation) Ordinance.

21. Mr. Eddis who appeared for the Plaintiff argued strongly that an award should also be made under the Fatal Accidents Ordinance for loss of dependency as the deceased was the eldest child of the family. He based this upon the custom in Chinese families whereby the eldest son would in due course be expected to provide some support for his parents. I do not dissent from this submission. Passages were cited from Taff Vale Ry v Jenkins⁽¹⁾ where Lord Atkinson at page 7 said:

"..... all that is necessary is that a reasonable expectation of pecuniary benefit should be entertained by the person who sues. It is quite true that the existence of this expectation is an inference of fact - there must be a basis of fact from which the inference can reasonably be drawn; but I wish to express my emphatic dissent from the proposition that it is necessary that two of the facts without which the inference cannot be drawn are, first, that the deceased earned money in the past, and, second, that he or she contributed to the support of the plaintiff. These are, no doubt, pregnant pieces of evidence, but they are only pieces of evidence; and the necessary inference can I think be drawn from circumstances other than and different from them."

Lord Moulton in the same case said at page 10:

"The fact of past contribution may be important in strengthening the probability of future pecuniary advantage, but it cannot be a condition precedent to the existence of such a probability. This is especially evident where, as in the present case, the non-contribution is fully accounted for by the fact that the deceased had been devoting her time to preparing herself for skilled work in the future to the exclusion of immediate earnings. Her not having contributed in the past does not therefore militate in any way against the probability of that willingness to assist her parents which the jury here might reasonably find."

22. However, a mere speculative possibility of benefit is not sufficent. The deceased performed some work during the school holidays for two months in the year when he earned $300 per month which monies he gave to his mother. He also provided some assistance in the home. At such a young age there was no information as to the future prospects of the deceased. no value of dependency or a multiplier could possibly be calculated. In the circumstances I consider that any dependency in this case must be regarded as purely speculative. As a result there will be no award under this head.

23. The total damages assessed therefore amount to $17,172.00 which I will round off to $17,200.00. Taking into account my finding of contributory negligence there will be judgment for the Plaintiff for the sum of $12,040.00. In accordance with the principles enunciated in Cookson v Knowles⁽²⁾ interest is awarded on the special damages at 4% from the date of the accident until to-day.

24. There will be an order for costs in favour of the Plaintiff on the upper scale with a certificate for counsel. The plaintiff's costs will also be taxed in accordance with the Legal Aid (Scale of Fees) Regulations.

Representation:

(1) (1973) A.C. 1

(2) (1978) 2 ALL E.R. 604