Pang Siu Fong v. Leung Biu and Another

HCA000242/1969

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

ACTION NO. 242 OF 1969.

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CORAM: Briggs J. in Court

Date of Judgment: 15th January, 1971.

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JUDGMENT

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1. This action arises from an accident which occured on March 1st 1968. The Plaintiff is the widow of one Kwan Kwong who was knocked down by a truck and who died from the injuries he then received on March 2nd, 1968. The Plaintiff is suing on her own behalf and on behalf of her children and she is claiming damages as administratrix of the estate of her deceased husband.

2. The first defendant was the driver of a truck numbered AD6025 and the second Defendant was the owner thereof.

3. The Plaintiff's case is that while the deceased, Kwan Kwong, was walking in Tin Lok Lane he was struck by the truck numbered AD6025. The driver of that truck did not stop but proceeded across Hennessy Road into Marsh Road.

4. The Plaintiff called one Wong Tong who gave evidence that he saw the accident occur. He was an excellent witness and gave a very clear account of what happened. He said he was walking on the pavement of Hennessy Road and reached the corner of that Road and Tin Lok Lane. There is a Restaurant there called the Kwok Kwan Tea House. The traffic light which controls the crossing of pedestrians across Tin Lok Lane turned red and he saw a truck coming down Tin Lok Lane as if it were going to cross or enter Hennessy Road. Mr. Wong said he saw the deceased who was in the roadway of Tin Lok Lane quite close to and about 2 feet from the kerb. The truck was in the middle traffic lane but very much to the right of it. There are tram lines there and the truck was partially across them. He saw the lorry strike and knock down the deceased with its right front mud guard. The truck did not slow down, stop or swerve to avoid the deceased. The traffic light on the further side of Hennessy Road was showing green at the time. Mr. Wong shouted to the driver of the truck to stop and he pursued the truck across Hennessy Road to the entrance to Marsh Road. The driver did not slow down or stop. Mr. Wong noted the numbers of the truck as being 6025 but was vague as to the letters preceding them. He told the police this when they arrived at the scene shortly afterwards and they traced the truck which was towed away for an inspection late that night.

5. The truck was in fair condition and nothing turns on that.

6. There was another witness to the accident, a workmate of the deceased called Ho Chi. He was shocked by the occurrence and did not notice the number of the vehicle which knocked his friend down. However his evidence as to the position of the vehicle which did the damage and the deceased corroborated the evidence of Mr. Wong. And both witnesses were emphatic that there was no vehicle between that vehicle and the kerb of Tin Lok Lane to its right.

7. The first defendant gave evidence and admitted that he drove his truck down Tin Lok Lane across Hennessy Road and then down Marsh Road on that occasion. However he said he did not knock any person down. Though the deceased received very severe internal injuries there was no extrusion of blood. No blood was found on the road by the police officer who dealt with the accident and who arrived at the scene very shortly after the accident. No blood was found on the truck AD6025 either: and there were no scratch marks relevant to the accident found on the truck. The first defendant said he did not hear the shouts of Mr. Wong and he suggested that the accident must have been caused by another truck or van which, he said, was level with him on his right when he was in Tin Lok Lane. He said he was travelling in the middle lane.

8. The first defendant said he did not see any pedestrians in the road as he travelled from Tin Lok Lane to Hennessy Road. However Mr. Wong and Mr. Ho said there were several pedestrians there. This I think must be so. For the deceased was there and the accident occurred at about 6.30 p.m. at the corner of two very busy streets in the heart of the town.

9. I will say at once that of the two versions of the accident I much prefer that given by the witness called by the Plaintiff to that given by the first defendant. Mr. Wong Tong was an independant witness and as I have already said gave his evidence most clearly.

10. I do not think that the first defendant was keeping a proper look out. And I find as a fact that the truck of the first defendant caused the accident to the deceased and that the first defendant was to blame. I can well believe the first defendant when he says he was unaware of the accident. I am not suggesting that having knocked a man down he deliberately drove on ignoring the consequences. The truck is a 5 1/2 tonner and the first defendant was returning his truck to its parking place at the end of a day's work. It is not at all extraordinary given the time and place of the accident that the first defendant did not hear Mr. Wong.

11. Mr. Leung for the defendants urged that there was insufficient identification of the truck as being the one which knocked down the deceased. I do not agree. I found the evidence of Mr. Wong quite sufficient. And of course it is admitted by the first defendant that he was driving his truck in that street at that time.

12. The deceased was in the road at the time when he was knocked down and Mr. Wong's evidence was that the pedestrian traffic light was showing red. There was however no allegation made that the deceased himself contributed to the accident by his own negligence either in the pleadings or during the hearing of the case. So that point does not arise. For the reasons given above I find that the Plaintiff succeeds on the issue of liability.

13. At the time of his death the deceased was 56 years old. He worked as an interior decorator. He was in good health and according to the Plaintiff an excellent husband and father. He was employed casually but Mr. Ho Chi said that his average earnings were about $700 per month. Of this he gave the Plaintiff $500 per month for the household expenses.

14. There are seven children but we are only concerned with the three youngest. These are now aged 10, 9 and 6 respectively. The eldest of these three is a boy, the other two are girls. All are attending school.

15. The three eldest children were self supporting at the time of the accident since they were all earning something. They were all apprenticed to various trades. The Plaintiff said that they were not dependant on their father though they did not contribute or only contributed a casual amount to the household expenses of the family. At present all three are earning. At the time of the accident the whole family lived together. The deceased however never took morning tea or his mid day meal at home and according to his widow, was not often home for his evening meal. She said that she often had to ask him for more than the $500 per month which he allowed her. She said that she was responsible for the rent and indeed for all the household expenses.

16. The Plaintiff brings this action under the provisions of the Law Reform (Miscellaneous Provisions) Ordinance and under the Fatal Accidents Ordinance. I will deal with the former Ordinance first. The Plaintiff claims the sum of $1,580 as funeral expenses. A most detailed bill of these was produced and there is evidence that it has been paid. I think the Plaintiff is entitled to recover this amount. In the circumstances of Hong Kong it cannot be said to be other than a reasonable amount.

17. There is no evidence that the deceased suffered any pain or suffering. It would seem to have been the case that he never recovered consciousness after he was struck or at least never became fully conscious. I do not think it would be right to award anything under this head.

18. I think that the correct sum to award for the loss of expectation of life of the deceased to be $8,000. The total of damages therefore under the Law Reform (Miscellaneous Provision) Ordinance is $9,580. Of course the sum awarded for the loss of expectation of life must be deducted from any award made under the Fatal Accidents Ordinance but not the sum awarded as funeral expenses. Such sum will be in addition to any amount awarded under that Ordinance.

19. We now come to the Fatal Accidents Ordinance. I think the correct multiplier is eleven. And I assess the total dependency at 450 dollars per month. This gives a total of $59,400.

20. There will be judgment for the Plaintiff against the two defendants for the sum of $1,580 under the Law Reform Miscellaneous Proceedings Ordinance and for $59,400 under the Fatal Accidents Ordinance making a total of $60,980 in all.

21. It is reasonable to suppose that persons of the same way of life as the children of the deceased are expected to stand on their own feet at the age of 16. What is required for each of the children therefore is a sum to provide for the absence of the deceased as provider from the time of his death until each child reaches that age making due allowances for the normal hazards of life. I therefore propose that the damages awarded under the Fatal Accidents Ordinance shall be apportioned as follows: to Kan Fuk Lam, $5,800 to Kan Wai Ling $6,700; and to Kan Wai Yee $10,000. The balance of the sum awarded under the Fatal Accidents Ordinance and the sum awarded as funeral expenses are to be paid to the Plaintiff. This sum come to $38,480. The money apportioned to the three children is to be paid into court and suitably invested by the Registrar. The income is to be paid out for the benefit of the children. Liberty is given to the Registrar to pay out sums of capital for the benefit of the children or any of them from time to time as and when required.

22. Costs to the Plaintiff.

23. Costs of the Plaintiff to be taxed in accordance with the Legal Aid Regulations.

Representation:

William Chan (Peter Mo & Co.) for Plaintiff

H.Y. Leung (K.B. Chan & Co.) for both Defendants 

Judgment read in Court