Au Choi v. Chan So and Another

HCA001973/1970

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

ACTION NO. 1973 OF 1970

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Coram: Briggs J. in Court

Date of Judgment: 24th September 1971.

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JUDGMENT

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1. This action arises out of a traffic accident which occurred late at night on December 13 or early in the morning of December 14 1969. The Plaintiff is the administrator of the estate of his wife, Chan Hang Yin who died in a result of the accident. The second Defendant was the driver of a taxi which came into collision with the deceased.

2. The Plaintiff called an eye-witness to the accident. The Defendant gave evidence on his own behalf. Their versions of the accident could not be more different.

3. The deceased was a worker in the Winner Palace Restaurant which is situated in King's Road, North Point. After finishing her work at about midnight on December 13 1969, she was on her way to the dormitory of the Restaurant to change her clothes. In order to do this she had to cross King's Road which is a main thoroughfare. Tram lines divide this road into two sections. There are at least two ways of reaching her destination. She could have walked straight to the dormitory. This would mean crossing King's Road obliquely and at a point where there is a cross road: for North Point Road enters King's Road from the north and North View Street enters the Road from the south at this point. Alternatively, she could have walked down the pavement on the same side as the Restaurant, crossed over North View Street continued on the pavement and then crossed King's Road at a stud crossing which would land her on the pavement in front of the building housing the dormitory.

4. The Plaintiff called one Lau Yiu Ming who was at the time a cook employed at the Winner Palance Restaurant.

5. He said he was an eye-witness to the accident. He said that at about 12.30 on the night in question he was outside the Restaurant in company with the deceased and others. She proceeded in front of him along the pavement on the same side as the Restaurant in front of the witness. He saw her cross King's Road on the studded crossing I have referred to above. He said the light controlling the traffic moving in a westerly direction was red at the time, the inference being, that it was then safe for her to cross. He saw a car coming in a westerly direction and shouted to the deceased twice "car is coming". This car, the Defendant's taxi, he said, was travelling at more than 30 m.p.h. He saw the car hit the deceased while she was actually within the studded crossing.

6. He said that the impact caused the deceased to fall to the ground, but he was unable to pinpoint the exact spot on the ground. Two policemen who must have been nearby, came to the assistance of the deceased and the witness also ran to her side. He then returned to the Restaurant and fetched some tablecloths and placed them under her head. She was unconscious and it is possible that she was already dead. The post mortum report shows a dislocation of the spine and severe injuries to her ribs on both sides

7. The Defendant told a very different story. He said he was driving a fare in his taxi down King's Road at the time. His destination was a hotel in Central District. As he approached the crossing of North View Street and King's Road the traffic lights were in his favour. They showed green.

8. He was in second gear and changed into third so as to overtake a Minibus which was travelling in the same direction to his left. As he reached the traffic light he saw the Minibus swerve a little to its right, so he slowed down slightly in consequence. Suddenly he saw a person, whom he now knows to be the deceased, dash out from in front of the Minibus into his path. He did what he could, he sounded his horn and braked hard but his bonnet caught her and she fell from the bonnet when he had come to rest.

9. He said that he was travelling with dimmed head lights at about 28-30 miles per hour. Two policemen appeared at once and attended to the deceased.

10. The Defendant is certain that the impact occurred after he had passed the traffic lights and that the deceased ended up in the road in front of his stationary taxi about 90 feet from the traffic lights.

11. It will be seen that the two stories conflict, but I have no hesitation in accepting the version of the Defendant. He is a professional driver and gave his evidence in a straightforward manner. And I accept it unreservedly. He has always told the same story and there was no prosecution. The taxi was examined the next day and the Vehicle Inspector's Report shows the braking efficiency of the foot brake to be 85%. The all round condition of the taxi was described as 'satisfactory'.

12. I do not think that the Plaintiff's witness was telling a completely untrue story. I think he was present and saw something. The accident occurred as long ago as December 1969. His version amounts to seeing a taxi travelling too fast, ignoring a red light and running down a colleague who was on a studded crossing. Immediately after the accident the scene was swarming with policemen yet this witness did not tell them this. If his version of the accident was as he described in the box I feel sure he would have done so.

13. Further he said he saw that the traffic light was red. At the time he was looking at it, from the back of the light. And he was standing the whole width of that part of King's Road and more away a distance of 60 odd feet. He also said that the deceased would not have seen it, which of course is not so. She would have seen it clearly as she crossed the road.

14. When the witness returned from the Restaurant he said the deceased was lying near a "keep left" sign in the middle of the road. He thought she had been moved there. The Defendant puts her in a different position but quite close, about 15 feet from the said sign. The witness did not say that the body was moved, only that he thought this. The Defendant says that the body was not moved. Two policemen were the first to come to the aid of the deceased: it would have been against all their training to have moved the body. The traffic conditions and the position of the body would not have made the moving of the body necessary. I do not believe it was moved.

15. Finally the Plaintiff's witness pointed out exactly where the impact was. He placed this within the studded crossing. The sketch map shows that the taxi travelled 62 feet from the crossing before coming to rest and only the last 36 of those feet show any brake marks on the road.

16. It is beyond credibility that the body of the deceased could have been thrown so far. And I do not believe that after impact the driver failed to apply his brake for 26 feet.

17. The sketch map is corroborative of the version of the accident given by the Defendant. It shows that the brakes were applied when the impact occurred: that the body was carried by the vehicle to where it lay.

18. There must be judgment for the Defendant with costs. The Plaintiff's costs are to be taxed in accordance with the Legal Aid Regulations.

19. It is usual in these cases though a finding has been made in favour of the Defendant to deal with the question of damages. Under the Law Reform Miscellaneous Provisions Ordinance I would have awarded $8,000 for loss of expectation of life: but no sum for pain and suffering as none was proved

20. I now come to damages under the Fatal Accidents Ordinance. I think the sum claimed as funeral expenses is reasonable and I would have awarded that i.e. $1,450. The deceased was married and aged 46. She was a healthy woman working as a cleaner making $380 per month. She left a husband who is a coolie and three children. At the time of the accident the eldest, a boy was 10 years old and the other two, twins a boy and a girl, were 8.

21. The husband is not in good health and makes only about $120 per month on an average. He stated that the deceased gave him $280 per month towards the family expenses. This does not contain an element for meals for the deceased since she had three meals daily at the Restaurant where she was employed. Nor rent since the family are squatters. Also there must be taken into consideration the fact that there would be a lump sum payment and what are called "the normal vicissitudes of life".

22. Taking all this into consideration I consider that in the case of the husband, the Plaintiff, the dependency should be $100 per month and the multiplier 12.

23. This gives a figure of $14,400. I would have awarded him such a sum. The dependency so far as the children are concerned I would put at $60 per month each. The multiplier so far as the elder son is concerned would be 8 and for the twins 10. This gives a figure of $5,760 for the elder and $7,200 for each of the twins. The total is $34,560. The sums due to the infants would be invested by the Registrar with leave to pay out the income and any necessary sums of capital from time to time. The sum under the Law Reform (Miscellaneous Provisions) Ordinance would be merged in the larger amount. The sum of $1,450 for funeral expenses would be payable to the estate of the deceased.

24. But as I have said there will be judgment for the Defendant with costs, the Plaintiff's costs being taxed under the provision of the Legal Aid Regulations.

Representation:

...(illegible) for Plaintiff

Eddis (H.H. Lau & W.S. Lo) for Defendant

Judgment read in Court