Leung Chi Yuen and Another v. Tsang Shui Ching and Another

DCCJ000327/1971

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CIVIL JURISDICTION

ACTION NO.327 OF 1971

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Coram: Cons, D.J. in Court.

Date of Judgment: 30 September 1971.

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JUDGMENT

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1. This action arises from a fatal accident that occurred at approximately 8 o'clock in the evening of the 23rd of October last year. A boy of 11 years' of age was riding with two of his companions along Nam Cheong Street, Kowloon when he was struck and killed by the defendant's lorry as it overtook him.

2. There is no direct evidence as to the actual circumstances of the accident. One of the deceased's companion, a boy now aged 14 years, was riding at a distance about two car spaces behind the deceased. He noticed the approach of the lorry and shouted a warning to his friends in front. As the lorry passed him, he himself lost control of his own cycle and ran into a motor-cycle parked on the left-hand side. At the part of Nam Cheong Street in question there is a marked space for parking at the side for the whole length. I accept the evidence of constable 7755 that this space was fully occupied at the time. The motor-cycle into which the second boy collided was parked between vehicles at right angles to the kerb. It was obviously only a trifling collison, but it diverted his attention at the material time. When he had recovered and returned onto the thoroughfare the deceased had already been killed.

3. The defendant's evidence is that he was driving his lorry at an approximate speed of 10 m.p.h. when a shadow rushed out from between vehicles parked on his left hand side; that he braked immediately, at the same time swerving a little to his left and that he then felt the nearside rear wheel of his lorry bump over something. But he was not an impressive witness and I am not inclined to place reliance on his suggestion of a dark shadow. I think it probable that as he approached the three boys they were riding in line ahead about 1 foot out from the parked vehicles and that if the defendant did not see them it was because he was not paying sufficient attention to that quarter. A very high contributory factor in his favour is that none of the cycles carried a rear light despite the darkness. There was some dispute in the evidence as to what was the state of the light at that time, but I take judicial notice that sunset on that day was 5.53 p.m., which supports the evidence of the constable. Apart from the street lights and what light may have come from nearby houses it was dark.

4. The constable had arrived as a result of the defendant's dialling '999'. He made measurements of the road and the positions in which the lorry and the bicycle had finished. From this he prepared the usual sketch Ex.7. This indicates quite clearly to my mind that although the defendant may have been negligent in not observing the presence of the deceased there was no fault in the course upon which he took his lorry. The sketch shows that he was well over on the offside of the carriageway and that at the time of impact there must have been at least 6 feet between his near side and the parked vehicles. The evidence of the deceased's friend was that the deceased was riding immediately before the accident about 1 foot from the parked vehicles. To leave a further 5 feet is quite sufficient. The only inference that I can draw is that, like his friend, he lost control of his bicycle, but that unfortunately he ran out instead of in.

5. Two other matters of possible negligence may be mentioned. First it is suggested by the deceased's friend that the lorry was travelling "a little bit quick". Later he said it was about the speed of a taxi. A large noisy lorry may easily give a false impression of speed to a small boy on a bicycle but even at its full value this evidence does not entail excessive speed. Furthermore by the time the lorry had stopped the bicycle was still close to its rear and the bloodstains were adjacent. I am satisfied there was no excessive speed.

6. Secondly it is suggested that the defendant should have sounded his horn. I was referred to cases quoted at pages 57 and 58 of the 6th Edition of Bingham's Motor Claims Cases. These show beyond doubt that a motorist is negligent if he fails to draw attention to his presence where he sees children waiting by the side of the road. This rule may not apply to adults: Jankovic v. Howell (1970) 11 C.L. 215a. But I am not concerned here with the pedestrians crossing roads, I am concerned with one vehicle overtaking another. In such a case there is no need to hoot unless there is some movement on the part of the overtaken vehicle to put the overtaking driver on inquiry: Holdack v. Bullock Brother (1965) C.L.R. 2683. There is no evidence of such a movement on the part of the deceased.

7. For these reasons the plaintiff's claim must fail. In case I should be wrong on the question of liability I would say that I would have assessed the damages for loss of expectation of life at HK$8,000 following Pickering J. in O.J. Action 820 of 1969. I find it impossible to quantify any percentage of contributory negligence for the deceased's failure to control his machine properly for it naturally follows from my judgment that in my view it was one hundred percent. Lack of a rear light is a calculated invitation to being knocked down, would otherwise have reduced the damages considerably.

8. Judgment is therefore entered for the defendant with costs on Scale V. The plaintiff's costs to be taxed in accordance with the Legal Aid Ordinance.

Certified true copy.

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