Leung Yun Shing v. Lee Heung and Another

HCA002017/1970

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

ACTION NO. 2017 OF 1970

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Coram: Briggs, Acting Senior Puisne Judge

Date of Judgment:

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JUDGMENT

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1. This case arises out of a traffic accident which occurred in the afternoon of December 13, 1969 near the 20 milestone, Castle Peak Road.

2. The Plaintiff is the husband and Administrator of the estate of LAM Yuet-ho who was killed as a result of the accident. The Defendant was the driver of a goods vehicle Numbered AD5979 which was involved in the accident.

3. At the time of the accident, the deceased, three of her five children and one Wong Yuen, a friend of the deceased's family, were walking along the pavement away from Kowloon. They were in single file. The children were in front. Behind them was Mr. Wong followed by the deceased.

4. The Court viewed the spot. The pavement is about 7 feet wide, there is a kerb and it is higher than the road. There is a shallow gutter along the side of the road. Mr. Wong gave evidence that he saw a truck being driven towards him. It was going very fast. It was driven very close to him. Immediately after passing him he heard a scream. He turned round to see that the deceased had been struck. Her whole body was lying on the pavement including her feet. She was bleeding profusely and was unconscious if not already dead.

5. Mr. Wong said that after the accident the truck did not slow down at first. But shortly afterwards it did slow down. It came to a stop at some considerable distance down the road, and then resumed its course towards Kowloon. That is the case for the Plaintiff. Mr. Wong said there was no necessity for the deceased to cross the road. They were on their correct side, the side which would lead them to their destination. He also said that the children were in front so that the deceased and he himself could keep an eye on them.

6. The defendant said he was driving his truck at the time at about 27 miles per hour. It is a 5 1/2 tonner and was half loaded. Sitting in the cab of the truck was another man and there was a third person on the back of the truck.

7. He said he saw a woman suddenly step down from the pavement. She was only about 5 feet in front of him. There was no time to take evasive action. So he neither braked nor used his horn. It was not possible to swerve since there was on coming traffic. In any event there was no time.

8. In examination-in-chief he said that he became frightened because he saw someone pointing at his truck and shouting. And he knew of a case when a driver had been man handled by passers by when he had stopped after an accident. However he stopped for a few seconds and then drove on. He added that he wanted to report the matter to the police. And that he was stopped by the police in Tsuen Wan on the way to a Police Station.

9. There is no mystery why his truck was stopped for Mr. Wong had noticed the name of the Defendant's firm which was on the rear of the truck in large characters. The police consequently formed a road block at Tsuen Wan which is quite some distance from where the accident occurred.

10. In giving evidence the Defendant said that when he was stopped he admitted he had been involved in an accident at once. There was no apparent damage to the vehicle.

11. The Plaintiff called Sergeant Tsang Siu Kam who was attached to the Traffic Branch of the Police in the New Territories at the time. He produced a sketch map which he made at the scene of the accident at the time. It shows the road to be quite straight. The Sergeant showed the Court the scene of the accident. The road is straight and visibility is excellent at that point. The Defendant would have passed a 30 mile an hour speed limitation sign about 36 yards before the place of impact. The road is divided by a white dotted line into two halves each of which is 10'6" wide.

12. A curious incident occurred in this case. The Plaintiff produced some photographs which it was said were taken of the scene of the accident a few days before the commencement of the trial. They show Mr. Wong the chief witness called by the Plaintiff standing on the pavement of part of Castle Peak Road. In Court, Mr. Wong was rather uncertain when questioned by counsel whether the photographs really depicted the actual scene. The Defendant said they were pictures taken "in the vicinity" of the scene of the accident though curiously enough he did not go further and say the photographs showed a quite different part of the road. The matter was cleared up by the evidence of Sergeant Tsang who showed the correct place to the Court as sketched in his plan on the ground. The Defendant and Mr. Wong both agreed with him.

13. The Sergeant was an independant witness and gave his evidence very clearly.

14. He said he interviewed the Defendant when he was brought back to the traffic office from the place where he had been stopped by the police in Tsuen Wan. The Sergeant said that the Defendant admitted he was the driver of the vehicle. He said he heard a bang near the scene of the accident but thought that that was caused by his load which I think was corrugated iron. He told the Sergeant that he was unaware that there had been an accident at all.

15. This part of the Sergeant's evidence was not challenged at the time. And the Defendant was in Court throughout. The Defendant's evidence was very different.

16. He said that as soon as he was intercepted by the police in Tsuen Wan he told them that he had struck a woman who had stepped out from the pavement unexpectedly. When the Sergeant's evidence was put to him he first of all said he only heard part of his evidence, later that he heard none of it. Finally, that though the Sergeant was the first officer to interrogate him, he had not denied that he was involved in the accident. At the time there was a fellow employee in the cab with the Defendant he was not called to give evidence as to what if anything the Defendant told the police at Tsuen Wan.

17. I have no hesitation in accepting the evidence of the Police Sergeant in preference to that of the Defendant. I found the Defendant an unreliable witness. He said that he knew the area where the accident occurred very well. He also knew that it was very close to Castle Peak Police Station. In fact that station is a few hundred yards away and the Defendant had to pass its very door in order to proceed to Tsuen Wan where he was caught. He must have known that he would have been perfectly safe from any crowd at the Police Station. I do not believe him when he says he was going to report the matter to the police. He clearly had no such intention. There was another man in the cab with him at the time of the accident. If the accident occurred as the Defendant alleges, if the deceased had without warning stepped in front of his truck he, as an experienced driver would at once have reported this to the Castle Peak Police Station. For no blame would have attached to him. Further if his story had been true he would have kept a careful check on the other man in the cab who would be able to give the best evidence possible in his favour. However as I have already said he was not called to give evidence.

18. On January 16 1970 the Defendant after some hesitation it would seem, pleaded guilty to the offence of failing to stop after an accident and was sentenced to pay a fine of $500.

19. Again the Defendant measured the width of the truck at the instance of his solicitors and said it was over 9 feet. This is plainly untrue. It is 8 feet. This was shown as a result of an inspection of the truck. The point of this is, of course, that the traffic lane in which the Defendant was travelling was 10'6" wide and if his truck had been "over 9' " wide he would have had less room for manoeuvre.

20. In answer to the Court the Defendant admitted that he was travelling in the gutter at the time of the accident. The body of this truck, as was seen from the inspection and from the photographs put in by agreement, is wider than the distance between the outside rim of the tyres. Therefore if it is driven in a gutter part of this body will be above the pavement. The body would appear to be some 5 inches so wider on either side.

21. In my view the Defendant drove the truck too close to the pavement in consequence the deceased was knocked down while she was still on the pavement. This is shown by the fact that her whole body including the feet were left lying on the pavement. And that the injuries were to her face and the front of her body. She had been thrown on to her back. I think that the reason the Defendant did not stop at the Castle Peak Police Station and later denied he had been implicated in an accident was because he knew he was at fault in that he had struck the deceased while she was still on the pavement.

22. I find therefore on the balance of probabilities that the Defendant was liable for the accident.

23. This action is brought under the provisions of the Fatal Accident Ordinance and the Law Reform (Miscellaneous Provisions) Ordinance.

24. I will deal with damages under the latter Ordinance first. There was no evidence that the deceased suffered. Indeed it appears that she never regained consciousness. I will award $8,000 for loss of expectation for life. There is a claim of special damages for $50 which I will allow. This makes a total of $8,050. There will be judgment for this amount which must be paid to the husband of the deceased as administrator of her estate.

25. The deceased was a woman of about 43 and at the time of the accident was working as a seamstress at home. She enjoyed robust health. There are five children of the family. At the time of the accident their ages ranged from 19 - 11.

26. Leung Yun Shing, the husband of the deceased told me that the deceased earned up to $500 per month. She was the main support of the family but he did not suggest that she supported him himself. Indeed he made her an allowance from his own wages. However she paid for the rent and for all the food for herself and the children and the school fees for the youngest child, a daughter then aged 11 which was $60 per month.

27. Before she became a seamstress, the deceased had been a hawker. Then she only made $150 per month. She had only been a seamstress for one year at the time of her death. Mr. Mills-Owens for the Defendant suggested that the figure of income of $500 per month was exaggerated that a deduction must be made for the expenses of the deceased herself and that the proper course would be to average her income over the three years preceding her decease.

28. I have very little evidence to go on because as is to be expected of persons living in the way of life of the deceased, no accounts were kept. I will take the figure of $250 per month as the total dependency: or $3,000 per annum. I think that it would be invidious to award one dependant child more per month than another. The amount of rent should be equally divided and the amount for each child for food, clothing and general living expenses will be much the same in each case. This comes to $600 per annum. I think it will be necessary to deal with each dependant, each child separately. Unfortunately I have not seen any of the children. There must, also be taken into consideration the fact that there will be lump sum payments and of course the ordinary vicissitudes of life.

29. The eldest girl Leung Siu Ying was 19 at the time. She was not earning but she was learning the trade of a seamstress. Since the death of the deceased she has been looking after the family taking the place of her mother. I will presume that she has an average chance of being married. There is no evidence before me that she is in any way exceptional. I think that the multiplier in her case should be three. This gives a total of $1,800.

30. The eldest son Leung Nai Hing was 17 at the time. He has had polio and has a withered leg so he is incapacitated for work. The evidence of the father as to the amount of incapacity was vague but it is certainly not a total incapacity. He was not in employment at the time but engaged in what was termed 'a little homework' at the time. I think that the multiplier in his case should be seven. This comes to $4,200.

31. The second son, Leung Nai Hung was an unpaid apprentice in a garage at the time. He was then 15. I think the multiplier in his case should be three. This comes to $1,800.

32. The third son Leung Nai Cheong was at school which was free at the time. He was 13. The multiplier in this case should be five. This comes to $3,000.

33. The younger daughter, Leung Sau Ying was at school at the time. She was 11 her mother paid the school fees. The multiplier here should be seven. This comes to $4,200.

34. There remains the matter of funeral expenses. This was in fact paid out of the savings of the deceased the rest was borrowed by the Plaintiff. The amount wrongly taken from the deceased's estate will have to be accounted for. $2,000 is claimed and I think that that is a reasonable amount. This of course is payable to the Plaintiff, the husband of the deceased, who paid for the funeral.

35. There will be judgment therefor for the Plaintiff, Leung Yun Shing for $10,050. And judgment for

The Plaintiff is entitled to costs which will be taxed in accordance with the Legal Aid Regulations. The sums awarded to those dependants who are infants are to be paid into Court and suitably invested for them by the Registrar. Leave is given to pay out sums of capital from time to time for the benefit of the infant concerned.

36. Sums to be paid into Court within 10 days.

Representation:

William Chan (C.P. Tsang & Co.) for Plaintiff

R. Mills-Owens (Deacons) for both Defendants

Judgment read in Court