Chan Kin Tai and Another v. Tin Ho

HCA001600/1970

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

ACTION NO. 1600 OF 1970

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Coram: Briggs, J. in Court.

Date of Judgment: 29th April 1971

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JUDGMENT

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1. This case arises out of a traffic accident which occurred at about 1.00 p.m. on October 16th, 1969, which resulted in the death of one Choi Ching Chun. Letters of Administration were taken out by the widow and a daughter of the deceased who are the plaintiffs in this action which is brought under the Law Reform (Miscellaneous Provisions) Ordinance and under the Fatal Accidents Ordinance. The action was commenced in September 1970.

2. Choi Ching Chun, the deceased was the proprietor of a rice shop in Tai Po. On the day in question he was engaged in delivering a bag of rice to a customer who lived near the 18 1/2 milestone on the Tai Po Road. He travelled there in a lorry which was driven by Cheung Koon Ching who is engaged in the same trade, and who was a neighbour of the deceased. When they arrived at the spot Mr. Cheung saw the deceased alight. A foki employed by Mr. Cheung was also in the lorry and he assisted the deceased to place a sack of rice on his, the deceased's, shoulder. The foki then jumped back on to the lorry which moved away almost at once.

3. The bag of rice weighed 133 lbs. and Mr. Cheung saw the deceased with it on his right shoulder.

4. When he stopped, Mr. Cheung had driven his lorry on to the pavement across the road from where the rice was to be delivered. It was necessary therefore for the deceased to cross the road to make delivery of the rice.

5. After Mr. Cheung saw the deceased proceed to cross the road, he started up his lorry and left travelling in the direction of Fanling. The road at that spot is designed to take a single line traffic in each direction: it is 23 1/2" wide. It is also quite straight for some 400 feet in either direction. There is a white dotted line down the centre of the road. None of this was disputed. In addition it was agreed that the weather was fine and the road was dry.

6. There was very little traffic on the road at the time. Mr. Cheung said after starting his lorry he looked up and down the road saw no traffic and moved off leaving the deceased crossing the road.

7. He actually saw the deceased begin to walk across the road with the sack of rice on his right shoulder. It was a big sack but it being on his right shoulder he could have seen traffic coming from his left which was the direction from Fanling. After Mr. Cheung had travelled about 250 feet he said he saw a light brown Volkswagon car coming towards him. It was travelling, he said, very fast. It passed him when he was approximately 300 feet from where he had left the deceased. Mr. Cheung estimated the speed of the oncoming car as over 50 m.p.h.

8. After it had passed him he said he heard a sound as of brakes. Looking in his driving mirror, he then said he saw the private car travelling very close to the kerb and then there was an impact and he saw rice thrown as he put it up to the sky. It was, he said, like a funkbursting in a film. What Mr. Cheung had seen was the impact of the car with the deceased, though of course the car was between him and the deceased at the time. He was not asked nor did he mention if he had heard any horn sound.

9. Mr. Cheung turned his lorry and parked it near the deceased. He said the deceased who was unconscious, if not dead, was lying on the road two feet from the kerb.

10. The defendant admits he was driving his light brown Volkswagon on the road at the time in question. He said that he was going towards Tai Po. He is familiar with that part of the road. He said he was travelling at 40 m.p.h. approximately, and was in top gear. The defendant said that he first saw the deceased when he was 50 feet from him. He was in the middle of the road about two feet from the white line to his right. That is he had not yet crossed the white line. He said he noticed that the deceased carried a large bag of rice on his left not on his right shoulder. When he saw the deceased the defendant said he braked and sounded his horn. The deceased stopped not quite reaching the white line. The defendant slowed down to 30 m.p.h. when the deceased began to walk again so the defendant braked very hard and tried to swerve to his left. He said he was unable to prevent a collision and that he struck the deceased with the right part of his front bumper.

11. The defendant said that his car collided with the legs of the deceased. After impact the car continued to swerve to its left and landed up stationary half over the kerb on the road side. The defendant said that the deceased appeared to be thrown on to the top of his car and then to fly forward.

12. There is no suggestion here that there was anything wrong with the braking system of the car which was examined after the accident and found to be in good condition.

13. The police were quickly on the scene and a sketch plan was made which was exhibited. This shows various brake marks which the constable who made the plan said he saw on the road at the time. It is apparent at once that if the defendant braked when he first saw the deceased he was much further away from him than fifty feet which was the distance given by him in his evidence.

14. The defendant marked the place at which he said the impact occurred on the plan. This was at a spot which was after he had begun sharply to swerve to his left.

15. The first question for me to decide is whether the plaintiff has proved that the defendant was negligent. In my view the evidence clearly establishes this. I think that the defendant was going too fast. And that he did not keep a proper lookout. As to the speed we have the evidence of Mr. Cheung and of the very lengthy brake marks. The deceased suffered very severe injuries indeed. It is unnecessary for me to particularise them here. It is enough to say that they show that the impact was of very considerable force. There is also the evidence that the vehicle was badly damaged. This likewise points to a very severe impact.

16. The defendant agreed that where the accident happened the road is straight and that there was no other traffic about at that spot at that time. In particular, he said, there were no other pedestrians than the deceased. The deceased was therefore alone, crossing a straight road; obviously the defendant was not keeping a proper lookout. If he had been he would have seen the deceased long before he did and could have slowed down and thus avoided the accident. In addition the evasive action taken by the defendant was not to swerve to the right and to pass at the back of the deceased. He swerved to his left and so came in contact with him. I feel therefore that the defendant was going too fast and that he did not keep a proper lookout. His negligence is clearly proved.

17. I am not saying that the defendant deliberately put up a lying story to this court. I think that he genuinely believed that what he said happened did happen. But he was intimately involved in the accident and must have received a great shock. Also, this accident occurred in October 1969, a long time ago.

18. The second point I have to decide is whether the deceased contributed to the accident by his own negligence.

19. I was very impressed by the evidence given by Mr. Cheung and I accept his evidence that the deceased was carrying a bag of rice on his right and not on his left shoulder. This is the sort of thing that a man in his trade would notice and remember. I do not accept the contrary story as given by the defendant that the bag was on the left shoulder which might have obstructed the view of the deceased.

20. The only evidence as to the movements of the deceased comes from the defendant. He said that after he first braked and sounded his horn the deceased stopped: that the deceased then started walking again. I think that I can infer from this that the deceased knew the defendant was approaching yet continued to cross. When he stopped he was, according to the evidence, almost in the centre of the road - very close to the white line.

21. After much hesitation I have reached the conclusion that in this case the deceased was guilty of negligence although to a minor extent. There was excellent visibility and the deceased seemed to have been aware of the defendant's car. He stopped and then proceeded obviously expecting the car to pass behind him. He certainly would not expect the car to swerve forward and into him which appears to have happened. But in my view he should have remained stationary. He should not have proceeded across the second half of the width of the road. In my view therefore both parties were to blame for the accident. But this is a case where the defendant was very much more to blame than the deceased. As was recognized in the case of Baker v. Willoughby⁽¹⁾, there are cases when both parties are to blame which show that the conduct of one party was more to blame than the other. This in my view is such a case. I apportion 80% of the liability to the defendant and 20% to the deceased.

22. I will now deal with the question of damages. First under the Law Reform (Miscellaneous Provisions) Ordinance.

23. The deceased was about 53 to 4 years old and was a healthy man with a large family. In my view the correct sum to award for loss of expectation of life in this case is $8,000. I do not think I can award anything for the pain and suffering of the deceased, who, from the evidence, was instantly killed.

24. There is a claim for a sum of $90 representing the value of the rice lost by reason of the accident. This must be allowed.

25. As the death of the deceased occurred before the coming into operation of the Fatal Accidents (Amendment) Ordinance 1970 the matter of funeral expenses falls to be dealt with under this Ordinance also.

26. In the statement of claim this was stated to be $11,694.45 cents. However in her evidence Choi Kin Ying a daughter of the deceased and one of the plaintiffs only produced evidence of a much smaller sum. I will allow the sum of $5,552 which was the sum she mentioned.

27. Only two items forming part of the sum were backed by receipts. However the circumstances of the family of the deceased are not such as one would expect receipts for payments made for the family's attendance at the funeral and the ceremonies connected therewith to be retained.

28. Under Cap. 271 therefore the amount of damages is $8,090 plus $5,552.45 for funeral expenses.

29. There were claims put forward for special damages for loss of earnings in the business due to its having to be closed down for 10 days consequent upon the death of the deceased: and the necessary employment of a foki to assist in running the business. These claims were not pleaded as items of special damages and I will ignore them.

30. I now come to the claim under the Fatal Accident Ordinance.

31. The deceased as I have said was a healthy man of 53 or 54 years. He lived and supported his family which for the purposes of this action consisted of his mother, a lady of about 70: his wife who is about 53 and five children aged 15, 12, 11, 8 and 5 years respectively. There are two elder children who are self supporting and who were employed by the deceased in the family business at the time of the accident. One of these two is CHOI KIU LING. She is an administratrix and gave evidence. She said that her father spent about $1,300 per month as expenses for the family. This did not include provision for her elder sister and herself. She mentioned various items of such expenses and they total more than her estimate of $1,300. I was impressed with the evidence of this witness. She did not exaggerate and I had the impression that she was an efficient person doing her best to arrive at reasonable figures for the various items she mentioned.

32. The deceased ran a rice mill an occupation which requires the ability to hump heavy sacks of rice. Though he might continue as a successful proprietor of such a business, it is reasonable to suppose that as time progresses an employee would have to be recruited to do the heavy work. Taking this into consideration and also taking into consideration the viscisitudes of life together with the fact that there will be a lump sum payment I consider that the proper figure to take for the dependency is $1,000 per month and that the correct multiplier is 8. This comes to $96,000.

33. In view of my findings as to the contributary negligence of the deceased there will be judgment for $94,080 for the Plaintiff.

34. This sum will be apportioned as follows:-

The remainder i.e. $42,080 to the widow Chan Kin Tai. The money apportioned to the 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 and leave 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.

35. In addition there will be payment against the Defendant for $4,886.45 being the amount of funeral expenses claimed less 20%. This sum is to be paid to the Plaintiffs as administratrices.

36. Costs to the Plaintiff.

37. The costs of the Plaintiffs are to be taxed in accordance with the Legal Aid Regulations.

Representation:

(1) 1969 3 AER 1528