Wong Lee Heung v. Ho Sik Hung and Another
Read the full judgment text of HCA 1261/1979 on BabelCite. This High Court CFI judgment.
1. The Plaintiff's husband was killed on 20/1/78 by a heavy lorry driven by the 1st Defendant as the servant and/or agent of the owner, the 2nd Defendant. The Plaintiff claimed against the Defendants for the benefit of herself and her 5 children as dependents of her deceased husband.
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HCA001261/1979 IN THE SUPREME COURT OF HONG KONG HIGH COURT ACTION NO. 1261 OF 1979 -----------------
----------------- Coram: Mr. Commissioner Gittins, Q.C. Date of Judgment: 7th February 1980 ----------------- JUDGMENT ----------------- 1. The Plaintiff's husband was killed on 20/1/78 by a heavy lorry driven by the 1st Defendant as the servant and/or agent of the owner, the 2nd Defendant. The Plaintiff claimed against the Defendants for the benefit of herself and her 5 children as dependents of her deceased husband. 2. The accident occurred soon after 11 a.m. on 20/1/78 at Wai Yip Street in Kwun Tong. An eyewitness, Hui Kwong Ming, who did not know any of the parties, testified that he was then employed as a paint sprayer at a garage about 30 feet from a bus stop; that he had seen 2 or 3 persons waiting on the pavement by the bus stop; that he saw the deceased standing in the roadway about 3 feet from the Kerb apparently waiting for a bus; that probably he was in the roadway because a line of lorries were parked on the roadside which would obscure the vision of a person waiting for an oncoming bus; that his attention was drawn to the lorry driven by the 1st Defendant by the sound of the engine's acceleration and he noted that the lorry's speed was fast for a vehicle in reverse; that the lorry reversed for a distance equivalent to its length when it reached the bus stop, knocked down the deceased and ran over him with its rear wheels; that the witness went towards the lorry and shouted for it stop; that the lorry stopped for a brief moment, then moved forward, ran over the deceased again for a short distance passed the bus stop and stopped; that throughout the lorry's manoeuvres he did not hear a horn sounded from the lorry. 3. A police witness who arrived on the scene about 50 minutes after the accident produced a sketch plan and testified that the length of the lorry was 7.4 metres. 4. The driver of the lorry, the 1st Defendant gave evidence that he went to Wai Yip Street to try and get the handbrake of the lorry fixed at one of the garages there; that he was able to drive in head first in a gap among the parked lorries and park close to a lorry immediately to his front with about 1½ lorry lengths clear behind him; that his lorry was about 3 feet from the Kerb because he only expected to stay for the short time needed to inquire whether a garage could deal with his handbrake; that he left the lorry to make his inquiry and returned shortly, the garage not being free to attend to his requirement; that he returned to the cab of his lorry from the rear and rounded the off side; that on the way back he did not see the bus stop nor any persons standing on the pavement near it nor any person standing in the road; that "naturally" he looked in the rear view mirrors "as always" as soon as he entered the cab before starting the engine, that after starting the engine and engaging gear he looked again, and that each occasion he saw nobody; that as he engaged reverse gear he sounded the horn twice because the lorry did not have an automatic reversing horn and because that was his inevitable practice; that he drove the lorry slowly in reverse; that he heard someone shout which caused him to think that he had contacted some object, so he immediately applied the footbrake and moved forward; that the shouting continued so he stopped, got out and saw the deceased lying on the ground at the rear. 5. It is apparent from the photographs of the lorry that although there are rear view mirrors on each side, any object to the rear of the vehicle within the line of the 2 sides would not be visible. The central rear view mirror is blocked by the high back of the container portion of the lorry. 6. Relevant rules of the Highway Code as to reversing are as follows:-
7. The 1st Defendant was driving a large vehicle, his view to the rear was definitely restricted; he did not have a colleague with him and he did not go out of his way to get someone to guide and warn him when reversing. In such circumstances it was imperative for him to ensure that there was no person in his reversing path. This he failed to do. 8. Whether or not he looked into the rear view mirrors would not have helped the deceased; if he looked, the probability is that he looked into the off-side mirror to see if there was an oncoming vehicle. I accept Hui Kwong Ming's evidence and reject the 1st Defendant's and find that the horn was not sounded and that the lorry was driven at an excessive speed for reversing. 9. Another point against the 1st Defendant is that he failed to note the existence of the bus stop. This would have served as an extra warning. 10. Therefore I hold that the 1st Defendant was clearly negligent and as a result of which the deceased was killed. 11. As to the deceased, I hold that he was partially to blame by going on the road to wait for his bus. Also he failed to heed the reversing sound of the lorry which took the attention of Hui Kwong Ming some 30 feet further away. I assess his contributory negligence to be 25%. QUANTUM 12. The deceased was aged 28 (born 1950) when he was killed and a good husband and father. He was the sole provider for his wife (born 1948), 4 daughters born 30/7/68, 12/3/70, 19/4/71 and 23/7/74 respectively and 1 son born 24/2/76. 13. The widow does not work as she is fully occupied caring for the 5 children and maintaining their home. 14. Funeral expenses are agreed at $4,000. 15. The parties have agreed on a multiplier of 16 for the computation of general damages. 16. At the time of the accident the deceased provided for his family monthly as follows:-
(m) In addition the deceased used to take the family out for meals and entertainments. 17. I accept the above figures except (1) as this sum does not represent a benefit lost by the widow and children. In its place I award $100 a month for (m). 18. The award is as follows:-
19. There will be judgment for the Plaintiff for $308,514.00. 20. There will be interest on ¾ of $43,632 plus $4,000, i.e. $36,724 at 4½% from the date of the accident to today's date and interest on ¾ of $363,720, i.e. $272,790 at 9% from the date of the service of the writ to today's date. 21. The Defendant to pay the Plaintiff's costs to be taxed if not agreed. The Plaintiff's own costs to be taxed in accordance with the Legal Aid Regulations. 22. I order that the amount payable to the Plaintiff be apportioned as follows:-
23. The sums apportioned to the infants to be paid to the Registrar for investment for the benefit of the said infants.
Representation: Mr. Ronny Tong (D.L.A.) for Plaintiff Mr. Remayne (Chu & Lau) for Defendants |