Lee Shuet-ling and Others v. Lai Ming-leung and Another
Read the full judgment text of HCMP 2339/1974 on BabelCite. This High Court CFI judgment.
1. This action is brought by the widow of the deceased as administratrix and by the co-administrator of the estates of the deceased.
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HCMP002339/1974
IN THE SUPREME COURT OF HONG KONG HIGH COURT -----------------
----------------- Coram: Morley-John, J. Date of Judgment: 12th March 1976. ----------------- JUDGMENT ----------------- 1. This action is brought by the widow of the deceased as administratrix and by the co-administrator of the estates of the deceased. 2. The action arose out of a traffic accident which occurred in Kwai Chung Road at about 8.00 p.m. on 13th December, 1972 when a private car driven by the 1st defendant came into collision with a stationary private car under the control of the deceased and as a result of the said collision the deceased was fatally injured and died some 12 hours later. The 2nd defendant was joined as third party by the 1st defendant on 25th October, 1974 and in an amended statement of claim dated 8th November, 1975 the third party was cited as 2nd defendant by the plaintiffs. 3. In accordance with section 47 of the Evidence Ordinance the plaintiffs gave notice that they intended to give in evidence at the trial two statements made to the police by one Ko Chung, who was a passenger in the deceased's car at the time of the accident, and the plaintiffs also gave notice in accordance with the provisions of section 49 of the Evidence Ordinance that they intended to give in evidence a transcript of the evidence of the said Ko Chung recorded in proceedings at Fanling Magistracy on 5th July, 1973. The reasons for such notice was that the said Ko Chung could not be called as a witness at the trial of this action because he was beyond the seas, namely, somewhere in Australia, and his whereabouts could not be ascertained. The relevant notices under the Evidence (Hearsay) Rules had been duly served. The defendant served a counter notice in accordance with rule 8 of the Evidence (Hearsay) Rules requiring the said Ko Chung to be called as a witness. 4. At the trial of this action counsel for the plaintiffs stated that as there were no certified translations of the two statements made to the police he withdrew his application in respect of those statements. As counsel for the plaintiffs pointed out such counter notice as served by the 1st defendant was out of order owing to the provision of rule 8(3) which states that a party is not entitled to serve such a counter notice where a statement falls within section 47 or section 49 of the Ordinance. The procedure that the 1st defendant should have adopted was to apply to the Court for directions under rule 10 and this has not been done. 5. Counsel for the 1st defendant contended that nevertheless if I should admit the transcript in evidence I should make it a condition that Ko Chung should be made available for cross-examination. In support of this contention counsel relied on the case of Trenelbye (Selangor) Ltd. v. Stekel(1). This is an English case arising out of the interpretation of Order 38 rules 28 and 29 of the Rules of the Supreme Court, such rules being analogous to rules 10 and 11 of our Evidence (Hearsay) Rules. That case, however, differed from the present case in that the witnesses were readily available for cross-examination and I considered that it would be in the furtherance of justice for such transcript to be admitted in evidence and I granted counsel's application accordingly. 6. Counsel for the 1st defendant then contended that if that transcript was to be admitted then the two statements made to the police should also be produced in evidence. Counsel for the plaintiffs said he had no objection to this and the two statements were then put in by agreement. 7. The defendant does not deny that a collision took place between his vehicle and a stationary vehicle under the control of the deceased at the time and place alleged, but he pleads that the collision was caused wholly or in part by the negligence of the deceased, and further, or alternatively, the collision was caused wholly or in part by the negligence of the third party. From the statements and transcript of Mr. Ko Chung's evidence, which were produced, it would appear that he was a passenger in the private car driven by the deceased along Kwai Chung Road. That the deceased thought that there was something wrong with the offside front wheel of the vehicle and so he pulled up close to the kerb and got out to inspect the wheel. That the car was equipped with what I think are called hazard lights and these were switched on. Mr. Wong Cheuk-kwong, the owner of the vehicle, gave evidence, inter alia, that when switched on these lights flashed regularly two white side lights at the front and two amber lights at the rear of the vehicle. Mr. Ko then said that he took a battery operated warning lamp out of the boot of the car switched it on and placed it in the road some distance to the rear of the vehicle. When switched on this lamp produced a flashing red and white light. Mr. Ko said that the deceased then jacked up the vehicle and removed the front offside wheel but that he found nothing wrong with the wheel, apparently it was only loose. That the deceased had some difficulty in replacing the wheel and was squatting down beside the vehicle when Mr. Ko said he heard a braking noise of a vehicle he jumped on to the pavement and saw the 1st defendant's vehicle smash into the rear of the stationary vehicle. The latter vehicle was pushed for ward and he found the deceased lying on the ground injured and pinned under the vehicle. He then described how the deceased was extracated from under the vehicle and taken to hospital accompanied, among others, by himself and the 1st defendant. He said that on the way to the hospital he asked the 1st defendant why he drove like that and the 1st defendant told him that a vehicle in front of him braked and so he had to swerve and ran and "ran towards our vehicle". That the 1st defendant said that the vehicle in front that braked was driven by a European from a construction site. 8. Mr. Wong Cheuk-kwong, the owner of the vehicle that the deceased had been driving, gave evidence that on the day in question he had lent his private car to the deceased, and that he had done so on previous occasions. He explained the operation of the hazard lights that I have already mentioned and he also said that he always kept a battery operated flashing warning light in the boot of his vehicle and had used it a couple of times when he had had a puncture. He also said that after the accident this lamp was missing. 9. A police constable produced a sketch plan of the scene which was really of no assistance. It was not signed by the 1st defendant, and the 1st defendant and Mr. Ko said that it was not accurate and reference to the plan shows that at least one measurement is inaccurate. The widow of the deceased gave evidence but her evidence was confined to the question of the quantum of damages and I shall deal with her evidence when I come to consider this aspect of the case. 10. At the close of the plaintiff's case counsel for the 2nd defendant third party submitted that there was no case to answer on the part of the 2nd defendant as such, as no evidence had been adduced by the plaintiffs connecting him with the accident in any way. I agreed with this submission and dismissed the action by the plaintiffs against the 2nd defendant; the third party action between the 1st defendant and the third party nevertheless continued. I now realize that I was wrong in doing this at this stage of the proceedings but in fact matter ...(illegible) out my premature action did not affect this case in any way. 11. The 1st defendant gave evidence that he left his place of work just after 8.00 p.m. on the evening in question. He was driving his private car in which two of his fellow workers were travelling as passengers. That he halted at the traffic lights at the junction of Kwal Chung Road, and while he was waiting for the lights to change in his favour he noticed along side him a light blue coloured van belonging to a firm called the American Dry Cleaners. This firm's premises were situated next door to the 1st defendant's place of work. The 1st defendant said that the van was being driven by a bearded European whom he identified in Court as the third party, and that he had seen this van frequently parked outside the dry cleaning firm's premises before the accident and he had occasionally seen the third party driving this van. The 1st defendant said that when the traffic lights changed he turned into Kwai Chung Road and travelled along the road in the right hand lane towards Kowloon. That the van driven by the third party overtook him on the inside and then changed into the right hand lane and he followed behind the van in the right hand lane. When asked how close behind the van he was travelling the 1st defendant said at a distance from the witness box to the opposite wall of the Court. This turned out to be 23 feet, and when he was told this the 1st defendant said that it was not as great a distance as that, and that he was between 17 to 18 feet behind the van. He said that his speed at the time was between 30 to 35 miles an hour. He said that in this position he could not see what might be ahead of the van in either the left hand or right hand lane because the van in front was taller and wider than his vehicle. He said that after travelling for some distance in this position the red brake lights of the van in front suddenly came on and the van slowed down. He said that because of his speed he could not slow in time to avoid running into the back of the van, and so he swerved into the left hand lane where he came into collision with the deceased's vehicle which was stationary by the road side. He said that when he began to swerve he could not see the road ahead because of the proximity of the van and that when he first saw the deceased's vehicle it was only some 10 feet away from him. That he saw this vehicle only for a split second before the collision but he did notice that it was stationary. He said that he did not see any flashing lights on the other vehicle. The 1st defendant said that if there had been flashing lights on the deceased's vehicle he thought that the accident would not have taken place, that he could have used the distance of 10 feet to avoid the deceased's vehicle. I do not agree with him. Flashing lights or no I am satisfied that in the split second that the 1st defendant saw the deceased's vehicle 10 feet away (at one stage in his evidence he said that the vehicle was some 7 or 8 feet away) he could have done nothing to avoid the collision. The 1st defendant then described how the deceased was moved from under the other vehicle and how he, Mr. Ko and others took the deceased to hospital. 12. The two passengers in the 1st defendant's vehicle gave evidence. Mr. Wong Ngai, who was travelling in the back seat was unable to be of much assistance. He said that he could remember very little of the events of that evening because it all happened such a long time ago. He said that he did remember being driven along Kwai Chung Road and being overtaken by a van that was bigger than the 1st defendant's vehicle, and that they seemed to follow behind it. That the brake lights of the van came on and there was an accident when their vehicle collided with another vehicle. That was all that he could really remember. When asked if he felt the vehicle in which he was travelling brake he said that he did not quite remember but he felt a jerk. 13. On the other hand Mr. Cheng Mok-chun, who was the passenger travelling in the front seat of the 1st defendant's vehicle corroborated the 1st defendant's evidence to a great extent. He stated that the van which braked and slowed down in front of their vehicle was from the American Dry Cleaning firm and that it was driven by the third party whom he identified. He described how the 1st defendant followed this van along Kwai Chung Road at a speed of between 30 to 35 miles an hour and at a distance behind the van of between 15 to 20 feet. He said that when the van in front braked the brake lights came on and the 1st defendant also braked and he said, and I quote his evidence
Mr. Cheng said that he did not notice any flashing lights on the deceased's vehicle but he agreed that he only saw the vehicle for very short period of time. He said that the vehicle in which he was travelling swerved, and this swerve and him seeing the other vehicle were almost simultaneous, that he had just time to give a yell but not time to say anything specific before the collision. He agreed that before the vehicle in which he was travelling swerved out he could not see the deceased's stationary vehicle because of the proximity and the width of the van in front. 14. The last witness for the 1st defendant was Mr. Yau Ma-wing. He said that he saw the 1st defendant and his passengers leave the premises where they all worked a little before him. He said that he followed very soon afterwards driving a landrover, and that the 1st defendant's vehicle was ahead of him, separated from him by some three to four cars. He said that he was driving the landrover at nearly 30 miles an hour. He said that he saw the car in front of him brake and that he braked but not very hard as he was not very close to the car in front of him. He said that he did not observe the accident between the 1st defendant's vehicle and the deceased's vehicle but when he discovered that there had been an accident he parked the landrover and assisted in extracating the deceased and then drove him to hospital. He said that as he approached the scene of the accident he did not see any flashing lights in the inner lane, but earlier he had said he could not see ahead into the inner lane. He said that he did not pay much attention to the vehicles at the scene of the accident as his attention was concentrated on the task of trying to rescue the deceased. Mr. Yau did say that Kwai Chung Road was a very well-lit road. 15. The third party, Mr. McCrary, gave evidence. He agreed that on 13th December, 1972 he was employed by the American Dry Cleaners, and that during his employment he did drive a blue Ford transit van. That during his employment he used to drive the van along Kwai Chung Road at least once a day. Mr. McCrary said that his normal hours of work were from 9.00 a.m. to 6.00 p.m. He said that he was not aware that it was alleged that he was involved in this incident until late in 1974. He said he knew nothing about the accident which occurred on 13th December, 1972. He thought it unlikely that he would be driving along Kwai Chung Road at 8.00 p.m. because he usually finished work at 6.00 p.m. He agreed that it was possible but unlikely as there was no record of any break down at the plant which would have required him to work late. He said that if the accident had happened as described by the witnesses he would in all probability have seen it in one of the three driving mirrors that were in his van, and he also probably would have heard some noise. He said that Kwai Chung Road was a well-lit broad road. In short Mr. McCrary's evidence amounted to the fact that he knew nothing of the incident and could not say for sure whether he was in Kwai Chung Road at the time of the accident or not, that he had only been made aware of the accident late in 1974, some two years after the event. 16. On behalf of the 1st defendant it was argued that the deceased was negligent in that he parked his vehicle where he did without lights and that the serious injuries that he received were caused by his own fault for being under the vehicle. Counsel for the 1st defendant contended that if there were no flashing lights on the deceased's vehicle the van would not have noticed the presence of the vehicle until a fairly late stage and then would have had to have braked hard. On the other hand if there were flashing lights on the deceased's vehicle then there was negligence on the part of the driver of the van for not slowing down earlier. I must point out that there was no evidence adduced that the deceased was lying under the vehicle before the accident. On the contrary in the transcript of his evidence Mr. Ko said that the deceased was squatting down beside the front offside axle, and it was only after the collision that the vehicle had fallen off its jack onto the deceased. Also there was no evidence adduced as to why the van slowed down. So I am left with the questions was the deceased negligent in parking his vehicle where he did, and did the vehicle display flashing lights, and if not was the deceased negligent in not so displaying such lights. Also was the third party negligent in slowing down his vehicle in the way it is alleged that he did, as I am satisfied on the balance of probability that the third party was the driver of the van in question. 17. I am satisfied that the deceased was not negligent in parking his vehicle where he did under the circumstances. Kwai Chung Road at the place where the collision occurred was a straight well-lit wide road and on the authority of Parish v. Judd(2) I am satisfied that the deceased's vehicle was sufficiently illuminated. I am inclined to believe from the evidence of Mr. Ko Chung and Mr. Wong Cheuk-kwong that the hazard lights on the deceased's vehicle were working and a battery warning light had been placed behind the vehicle. However, I am of the opinion that these considerations need not be given any great weight as the cause of the collision was the act of the 1st defendant in pulling out suddenly from behind the van travelling in front of him and I am satisfied from the evidence adduced that in the split second that the 1st defendant saw the deceased's vehicle he could not have avoided colliding with it whatever the lighting conditions. As I have already stated there is no evidence as to why the third party's van slowed down. I am satisfied that it did, but on the authority of Jung nickel v. Laing and others(3) a driver who intends to slow down albeit suddenly while driving along a motorway is under no duty to give any warning of his intention, it is the duty of those who follow to keep clear. In the same case Davies, L.J. said:
In this present case there was warning in that all the witnesses said that they saw the warning brake lights of the van come on. I hold that there was no negligence on the part of the third party. 18. The accident was caused solely by the negligence of the 1st defendant in travelling at a speed and at a distance behind the third party's van which made it impossible for him to avoid running into the back of the van when the latter slowed down without pulling out on to the inner traffic lane, having put himself in such a position that he was unable to ascertain if it was safe to do so. 19. I now come to the question of damages to be awarded. Dealing firstly with the assessment of damages under the Law Amendment and Reform (Consolidation) Ordinance. No evidence has been adduced before me as to any pain and suffering so I make no award under this head. For the loss of expectation of life I award the sum of $10,000. Funeral expenses have been agreed between the plaintiffs and the 1st defendant at $3,500, and therefore the total award under the Law Amendment and Reform (Consolidation) Ordinance I assess at $13,500. 20. As to damages claimed under the Fatal Accidents Ordinance. At the time of his death the deceased was aged 22 years and was earning $1,600 a month, and of this sum his widow used to receive $1,300 a month, out of which she used to pay all household expenses, including food, electricity and rent. The deceased retained the balance of $300 a month for his own personal expenses. The deceased used to take his mid-day meals and evening meals at the factory where he worked with the exception of Sundays when he ate at home. I therefore assess damage suffered by the widow in the sum of $1,200 a month. As to the question of years of purchase and the multiplier to be selected, as I have said, the deceased was 22 years of age at the time of his death, he left a widow, who is now aged 24 years and two sons, now aged nearly six and nearly five years. The deceased's employment at the time of his death was in a factory operated by his younger brother. He had been so employed for just over one year. Prior to this the deceased had been an employee in another factory earning $2,000 a month, but as his younger brother's factory was operating at a loss he left his employment to assist his younger brother in operating his factory and after he had joined his brother, with his assistance the factory ran at a profit. Thus he was a young man aged 22 years working with his brother in a factory operating at a profit. A young man who previously had an earning capacity of $2,000. Counsel for the plaintiffs has suggested a multiplier of between 16 and 18. Counsel for the 1st defendant has said that the damages should be assessed at $1,100 a month with a multiplier of no more than 13 years. He said that properly invested such a sum could bring in an income of $1,100 a month. However, I think that such rate of interest to bring in such a sum would involve some risk to the original investment. I have considered a great number of English cases and I found that in cases of a man in similar employment as the deceased, with a young wife and two young children, multipliers had varied between 14 to 18 years. The latest case I can find is Thomas v. Punter 1973(4). In that case the deceased was a male aged 18 years, he was a plumber's mate earning about $18 a week net. He was a conscientious young man who hoped to better himself and become a plumber on his own account. He left a widow aged 18 at the date of the trial and a son aged 3. In that case a multiplier of 18 years was applied. 21. During the trial the 1st plaintiff was cross-examined as to her possible intention of remarriage. I feel I must point out, in case some counsel are not aware of the fact, that section 9(4) of the Fatal Accidents Ordinance enacted in 1972 provides that in assessing damages payable to a widow in respect of the death of her husband in any action under that Ordinance there shall not be taken into account the remarriage of the widow or her prospects of remarriage. 22. Taking all the circumstances of this case into account I consider that a fair multiplier would be that of 16 years, which makes a total to be awarded under the Fatal Accidents Ordinance of $230,400. From this sum must be deducted the damages I have already awarded under the Law Amendment and Reform (Consolidation) Ordinance which I have assessed at $13,500. The final award under the Fatal Accidents Ordinance, therefore, is $216,900. 23. There will be judgment accordingly for the plaintiffs against the 1st defendant with costs. 24. The plaintiff's action against the 2nd defendant is dismissed with costs. However with respect to such costs I make what is commonly called a Bullock Order in that I add those costs to the costs which I have already ordered are to be paid by the 1st defendant to the plaintiffs. 25. The third party proceedings brought by the 1st defendant against the third party are dismissed with costs.
12th March, 1976. Representation: Mr. F.A.L. Eddis, instructed by (H.H. Lau & Co.) for the plaintiff. Mr. William Waung, instructed by (Deacons) for the 1st defendant. Mr. Wesley W.F. Wong, instructed by (Patrick Chan & Co.) for the 2nd defendant/third party. (1) [1971] 1. W.L.R. 226 (2) [1960] 3 All E.R. 33 (3) [1966] 111 Sol. J. 19 C.A. (4) Vol. II of 4th Ed. of Kemp & Kemp "The Quantum of Damages" p.13012 |