Lam Kang Fai v. Tong Miu and Another

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

ACTIONS 1698 AND 1699 OF 1967

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Coram: Mills-Owens, J.

Date of Judgment: 5 December 1969

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JUDGMENT

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1. In this case there is really no dispute that the deceased woman, Wong Tai Cheung had crossed the dual carriageway from approximately the point where the bus-stop is shown on the right-hand side of the photograph Exhibit G to the traffic island and had reached the traffic island at a point marked "X" on the photograph by the witness Mr. Chan. She was carrying a baby on her back and holding a child of about four years of age by the hand, and there is no dispute that she and the baby on her back were both killed in the accident and that the little boy, four years of age was injured.

2. On the question of liability, I have come to a clear conclusion. The two main witnesses were a Mr. Chan and a Mr. Lau, and both of them agreed that the lady with her two children reached the centre traffic island safely, and at a normal walking pace. The main point of the case is how she then proceeded to cross the other road, that is the further road of the dual carriageway farthest away from the point where she started near the bus-stop; secondly, how the van approached her as she was crossing this road; and, thirdly, what was the state of traffic on the road at the time. I am now referring, of course, to the road, consisting of a fast lane and a slow lane, opposite to the bus-stop, that is to say, the carriageway on the other side of the traffic island from the bus-stop, which is where the impact occurred.

3. Now Mr. Chan said he saw no other traffic on that road. Mr. Lau said he did not notice any traffic on it. Mr. Chan said there was no stationary vehicle on that road and Mr. Lau said that he did not notice any stationary vehicle. Mr. Chan says he saw the lady and the children step off from the traffic island and cross the road, and he says they were within a pace or two of the centre white line when the impact occurred. He further says that they were proceeding normally. There is no suggestion from any witness that they rushed across the road. Mr. Chan also says that they crossed the road directly, that is at right angles, and not diagonally either to the right or to the left. Mr. Lau's evidence, on the other hand, stopped short at the traffic island. He says that he did not see the impact, nor did he see how the lady and the children crossed the road from the traffic island. Both Mr. Chan and Mr. Lau agree that the lady and the children paused on the traffic island, and they both agree that after the impact the van went into the slow lane, and here, perhaps in order to make it clear to anyone who might read this judgment, I ought to say that the van was approaching from her left, that is to say, looking at the sketch, it was approaching from Kowloon and going towards Tsuen Wan.

4. Mr. Lau says that when he saw the lady and the children on the island he also saw the van approaching and he says it was approaching in the slow lane and was a distance of about 100 feet away. He gave an estimate of the speed at which the van approached, saying it was 40 or 45 miles an hour, but he agreed that he was not a driver. Mr. Chan, on the other hand, is a driver of some considerable experience and he said that the van was travelling at great speed, but not at a speed above that at which vehicles normally travel on that stretch of road. When he says that the van was travelling at a great speed, he obviously meant at the point of impact because he agrees that he did not see the van approaching from any distance. On the other hand he said that when he did see the van strike the lady and children, it was then, as he says, on the fast lane; that is to say at the point of time when, according to him, the woman and the two children were one or two paces short of the centre white line.

5. I think there is not much difference between the evidence of Mr. Chan and that of Mr. Lau, except possibly on the point of speed. They both agree that no born was sounded. They agree that there was no noise of any braking. Mr. Chan says there was no swerving by the van and Mr. Lau, as is obvious from his evidence, was unable to say otherwise.

6. I find them both truthful and fair witnesses, and the circumstantial evidence is consistent with the oral evidence of both of them.

7. The circumstantial evidence is, first, that the van driver, after the accident, pointed out to the police constable, P.C.495, who had come to the scene, a dent in the bonnet of the van, slightly to the left of the centre of the bonnet, and he pointed that out as damage done in the accident. That dent, as it appears to me, would indicate that the van had moved from the slow lane to approximately the middle of the road, to the crown of the road. That may have been due - if Mr. Chan is correct in saying the van was being driven at a great speed - that may have been due to the pull of centrifugal force, owing to the fact that the van was approaching around a bend, but certainly not a severe bend; but perhaps in that I am guilty of speculation. The other points of the circumstantial evidence, demonstrated by the sketch made by the police constable, are, in particular, two pools of blood and a trail of blood, all of which are in the slow lane; that in my view is not inconsistent with the impact having occurred at about the crown of the road. If, on the contrary, the impact occurred in the slow lane it means that the van driver had much more time in which to see the lady and the children crossing the road - he had that much more time, but I accept Mr. Chan's evidence that the impact occurred at about the centre of the white line.

8. The fact of the accident and the identity of the driver defendant and owner defendant, is not denied. The driver admitted that there had been an accident to the police constable, and as I have said, he pointed out the dent on the van to the constable. The driver has not given evidence, and he, therefore, cannot complain if reasonable inferences of probability are drawn against him on the question of negligence.

9. On the face of it, that is to say as the evidence stands, he, the van driver, had the whole road in which to take evasive action, but he failed to sound his horn, and he failed to apply his brakes with sufficient force to avoid the accident. So far as the evidence goes, he could not but be aware, beforehand, that the woman and her children were about to or might cross the road from the traffic island. It is obvious, when one looks at the photographs exhibited, that she would have been visible as she stood on the traffic island for a very considerable distance away in the direction from which the van was coming. The fact that there was a bend in the road along which the van was approaching, is in favour of the greater distance of visibility rather than the contrary, having regard to where she began to cross and the direction in which the van was going. The inescapable conclusion, in my view, is that either the van driver left it to her, the woman and children, to get out of his way rather than taking action himself to avoid them, or he was not keeping a proper lookout. If he did see her he was bound to take note of her circumstances, that is to say that she had a baby on her back and a child by the hand, and bound to make allowances for her situation as it were, her restricted mobility. If he did not see her then he was not driving properly.

10. Mr. Arculli for the defence suggested that as the witness, Mr. Lau, has said that the lady did not turn her head to the left as she crossed from the traffic island, then it must be taken that she was crossing without regard to the traffic, but as I see nothing in this point. She would have had no need to turn her head to any noticeable degree to view traffic in the position in which she stood on the traffic island. I think it is a clear case of liability on the part of the defendants, and give judgment accordingly with costs.

11. The total liability, that is under the Consolidated Actions, has been agreed at $28,300. It remains now to deal with the manner in which that is to be apportioned.

12. In the Action O.J. 1699 of 1967, that is for injury to the child, Lam Tak Shun, I award him a sum of $1,800, which is to be invested by the Registrar on his account, that is to say in trust for him.

13. In the other Action, O.J. 1698 of 1967, there are a number of claims and various figures:-

14. First, the loss of expectancy of life of the baby, Lam Lin Fung, I would award the sum of $2,000, and that sum is to be paid to the father, Lam Kang Fai, as administrator of the baby's estate.

15. The second is the loss of expectancy of life of the mother, Wong Tai Cheung. Here I will award the sum of $6,000, which also is to be paid to the father, her husband, Lam Kang Fai, as administrator of her estate.

16. Thirdly, there is the Fatal Accidents claim, in respect of which it has been intimated to me that the husband, the father, intends to remarry; therefore, the figure which I award to him is less than it would otherwise be. I award to him, in respect of his dependancy on his late wife, the sum of $4,500. I award the funeral expenses of $1,250 each making a total of $2,500 in respect of funeral expenses of the deceased mother and the deceased baby, and that leaves $11,500 to meet the claims for dependancy under the Fatal Accidents Ordinance of the four children of the deceased; that divided into four, comes to $2,875 each, and those monies, $2,875 each, making a total for the four of $11,500, are to be invested by the Registrar in trust for them respectively. So far as the four children are concerned I approve the settlement of quantum.

17. There are further orders which I should make - an execution stay of 7 days in order to enable the defendants to pay the money. The amount of $1,800 for the injury to the child, Lam Tak Shun and the amount of $11,500, the dependancy claims of the four children, should be paid into court for investment, also the sum of $4,500 awarded to the husband under the Fatal Accidents Ordinance should be paid into court.

18. Next the plaintiff's costs are to be taxed under Regulation 15 of the Legal Aid Regulations.

19. Next the Director of Legal Aid is to have the first charge on the monies in court in respect of costs.

20. The $2,000 for loss of expectancy of life of the baby, Lam Lin Fung, may be paid out to the father, as administrator, immediately and the $6,000 payable to the father as administrator of the mother, Wong Tai Cheung, may also be paid out to him immediately. In addition to those two figures, the $2,500 for the funeral expenses, may be paid out to him immediately; otherwise the moneys remain in court until the costs are taxed and the Director's first charge is satisfied thereout.

21. With regard to the sums apportioned to the four children under the Fatal Accidents Ordinance, and the $1,800 awarded to the child Lam Tak Shun for his injury, which are to be invested on their behalf respectively by the Registrar, the Registrar is to apply to a Judge for directions as to the investment thereof.

22. And finally, liberty to apply.

23. The $8,000 paid into court by the defendants may be paid out to the husband, Lam Kang Fai forthwith on account of the sums which I have directed may be paid to him forthwith.

Representation:

A.Zimmern(F.Zimmern) for Plaintiffs

Arculli(Deacons) for Defendants.