Mak Yuk Kiu and Another v. Tin Shing Auto Radio Ctr Ltd and Another
Read the full judgment text of HCA 2583/1979 on BabelCite. This High Court CFI judgment.
1. This action is brought by the first and second plaintiffs as co-administrators of the estate of WONG Hon Kin, who died on the 4th April 1980 as a result of injuries sustained in a collision with a motor vehicle owned by the first defendant and driven by the second defendant.
Cited by 3 cases
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HCA002583/1979
Coram: Roberts, C.J. Date of Judgment: 24th December, 1980. ----------------- JUDGMENT ----------------- Liability 1. This action is brought by the first and second plaintiffs as co-administrators of the estate of WONG Hon Kin, who died on the 4th April 1980 as a result of injuries sustained in a collision with a motor vehicle owned by the first defendant and driven by the second defendant. 2. The accident occurred at about 10.45 p.m. on 2nd April, 1978, in a busy thoroughfare known as King's Road. At the time, the traffic was reasonably heavy, the road was dry and the lighting good. 3. The part of King's Road is sufficiently wide to take three lanes of traffic in each direction. Each outer-most lane is shared by motor vehicles with trams. A double white line is painted down the centre of the road, between the two sets of tram lines. 4. There is little dispute as to the circumstances in which the accident occurred. The main conflict between the parties is as to the respective degrees of liability of the deceased and the second defendant. 5. The second defendant was driving a public hire car, No. AW 6754, in the outside lane, going towards Shaukiwan in an easterly direction. Mr. Chan, whose evidence was tendered by virtue of a notice issued under section 47 of the Evidence Ordinance, was a passenger in the car. 6. The car halted at a traffic light, which is situated about 30 feet short of the junction of King's Road with Shu Kuk Street, in the outside lane, within an area marked in white on the road. 7. About 50 feet ahead of those lights was another set of lights, which controlled pedestrian traffic as well as vehicles. Immediately behind that further set of lights was a pedestrian crossing marked by studs. 8. According to the second defendant, he drove off when the lights changed from red to green in his favour. As he did so, he observed a group of five to six pedestrians standing in the road ahead of him, within the confines of the studded crossing and between the second and third lanes. 9. The distance from the first traffic lights to the place where the group of pedestrians were standing was estimated at about 90 to 100 feet. 10. The defendant said that he changed from first second gear as the car accelerated and approached the studded crossing, reaching a speed of approximately 20 miles an hour. 11. When he was about one car's length from the beginning of the stud crossing, a man, who subsequently proved to be WONG Hon Kin (the deceased) stepped out from the middle of the group of five or six pedestrians who were standing in the road ahead of the car. 12. The defendant applied his brake instantly and said that he sounded his horn. He was unable to swerve to the right because there was oncoming traffic moving towards him at considerable speed in the third lane of that part of King's Road in which the traffic moves to the west. Although he had applied the brakes, the vehicle struck the deceased near the nearside front mudguard, just behind the headlights. 13. It is significant that no identifiable damage was caused to the hire car. This supports the defendant's contention that he was not travelling at a speed in excess of 20 miles an hour. The deceased died as a result of head injuries. It seems likely that these were caused by contact with the road, rather than by contact with the car. 14. The car came to a stop within the confines of the stud crossing, which would be within about 40 feet of the point at which, according to the second defendant, he first saw the plaintiff step out from the group of pedestrians. 15. This is consistent with a speed of approximately 20 miles an hour. The braking distance given in the Highway Code for a speed of 20 miles an hour on a dry surface is about 40 feet. I disregard the evidence of the second defendant that he could have halted his car within a distance of 10 feet, if it was travelling at 20 miles an hour. 16. The second defendant was charged before a magistrate with the offence of dangerous driving causing death. He was acquitted of this but convicted of careless driving. 17. By virtue of Section 62 of the Evidence Ordinance, a conviction is admissible in evidence, for the purpose of proving that he committed the offence. 18. The courts have been somewhat divided as to whether the conviction is merely a trigger which activates the presumption or whether it should be regarded as a piece of evidence in itself. Certainly, the view taken by Lord Denning in the case of Supple v. The Royal Insurance Co. is that it is of itself of probative value in determining liability in subsequent civil proceedings. 19. However that may be, there is a presumption that a defendant convicted of driving offences which are relevant to the accident out of which a civil claim has arisen was guilty of a degree of negligence. This imposes a burden on the second defendant to show, on the balance of probabilities, that he was not guilty of any degree of negligence. 20. In my view, the main cause of this accident was the action of the deceased, in stepping out from the group into the path of the defendant's car without looking, as I find that he did. The evidence of Mr. Chan was that the deceased had failed to check the traffic before stepping out. 21. Was there a degree of contributory negligemce on the part of the second defendant? He gave evidence that he sounded his horn, as soon as he saw the deceased, though he admitted that he had not done so at an earlier stage. 22. Mr. Chan's evidence was that the driver did not sound his horn. He added that, in his view, even if the driver had sounded his horn at the point at which the deceased stepped out from the group, it would have been too late. 23. I prefer the evidence of Mr. Chan, that the defendant did not sound his horn. I do not think that the defendant's failure to sound his horn when he saw the deceased is of much importance, since I accept that it would have been too late at that stage to have avoided a collision, but I consider that he should have sounded it earlier. There was a chance that this might have reminded the pedestrian group of the dangerous position in which they stood and prevented the deceased from taking his fatal steps. 24. This group was two-thirds of the way across the east-bound traffic lane of King's Road, which is a broad road. It is not uncommon for pedestrians to start crossing shortly before the lights change, and to find that they have moved too slowly to be safe when the lights alter in favour of oncoming traffic. This may very well be what had happened in this case. 25. In any event, the second defendant saw the group of pedestrians on the stud crossing. He admitted in evidence that he knew it was a stud crossing and accepted that a high degree of care for pedestrians is essential when drivers are approaching such areas. 26. I was referred to two Hong Kong cases: FU Yuk-ming v. LEE Fook-choi(1) and to CHIANG Shu Cheung v. The Queen(2). In the former, Leonard J. expressed the opinion that the fact that the plaintiff was using a studded crossing gave him no precedence over the bus driver, the plaintiff being a pedestrian, but that a driver should exercise extra care when approaching such a crossing. In the 1962 case, Hogan, C.J. commented that -
27. Did the defendant exercise that special care which is referred to in those judgments? I do not think that he did. He says himself that he picked up speed and changed into second gear while he was still accelerating and that he reached twenty miles an hour, although he knew of the presence of the pedestrians in the stud crossing ahead of him. I think he was guilty of carelessness in so doing and in not sounding his horn to remind the pedestrians of the dangerous situation in which they were. 28. I therefore conclude that he has not rebutted the presumption which arises from the Evidence Ordinance as a result of his conviction for careless driving, but that his degree of responsibility is very much less than that of the deceased. I assess their relative responsibilities at 75% and 25%. Illegal sources of income 29. It remains for me to deal with the question of whether dependants can claim if the source from which the deceased's income was derived was tainted; and the effect of section 25 of the Summary Offences Ordinance on a claim under the Fatal Accidents Act. 30. Section 25, which is an amalgam of section 4 of the English Vagrancy Act of 1824 and a similar section in the law of what were then called the Straits Settlements, reads -
31. The evidence was that the deceased was a practising fortune-teller, and that the income out of which he maintained his family came from the practice of this profession; and it was so pleaded. 32. The first question to be determined is whether or not, in order to establish an offence under section 25, it is necessary to show that a person who professes to tell fortunes, does so with intent to deceive; because if it is necessary to establish an intent to deceive, the practising of fortune telling in Hong Kong would not necessarily be illegal. 33. In Stonehouse v. Masson(3), a powerful Divisional Court of five judges reached the conclusion that the offence under section 4 of the Vagrancy Act was complete without any proof that the defendant intended to deceive and that the state of mind of the defendant was irrelevant, since the mere telling of fortune was itself an offence. 34. This decision appears to have been based on two somewhat different forms of reasonings, what I might call social reasoning and interpretive reasoning. The social reasoning is well illustrated by the following passages from the judgment of Lord Lawrence C.J. -
35. The social reasoning of the judges in that case, that as a matter of public policy, the telling of fortunes is dangerous and undesirable in all circumstances, is not one which I consider valid in Hong Kong circumstances. It is clear that the Hong Kong Legislature has not taken that view. 36. The legalization, by section 25(2) of the Summary Offences Ordinance, of fortune telling in specified circumstances shows that the Legislature's view was that fortune telling was not a public mischief per se to be suppressed in all circumstances, but that it is a practice which is dangerous and should be permitted only in controlled conditions. 37. I am, however, compelled to agree with the interpretive approach, and in particular, am persuaded by the reasoning of Greer, J. at page 830, where he comments as follows on section 4 of the Vagrancy Act -
38. Applying the same approach to section 25 of the Summary Offences Ordinance I think that the phrase "or otherwise to deceive and impose on anyone", particularly as it is both preceded and followed by a comma, does not qualify the words "Every person who pretends or professes to tell fortunes" at the commencement of that subsection. Therefore, the offence of professing to tell fortunes is complete without any finding of an intent to deceive. 39. From this conclusion, it follows that the income derived from fortune telling by the deceased was income derived from an illegal activity. The evidence also established that the widow knew where the income which supported her and the family had come from. 40. There are several local authorities which deal with claims for damages by injured persons who earned their living by illenal activities. In TAM Choi v. HO Wai-hing(4), an illegal hawker sought damages for loss of her earnings as such after sustaining injuries in a running-down case. At page 6 of his judgment, Briggs, C.J. said -
41. This was followed by Garcia, J. in a 1979 case, WONG Ting v. YUEN Hing-kwan(5), of which I have only seen the headnote paragraph 3 of which reads -
42. This also was a running-down case, in which the first plaintiff sought damages on the ground that she had suffered personal injury in a car accident, as a result of which she had been unable to continue her illegal hawking business. 43. In LEE Loy v. WONG Lee-kwong(6) Mr. Commissioner Bewley followed the same line at page 7 to 8 of his judgment -
44. These are all cases in which the plaintiff herself claimed damages for the loss of her own illegal earnings. In each instance, she was refused relief on the basis of the general principle ex turpi cause non oritur actio. 45. The question to be decided is whether the same principle must apply to a fatal accident claim by dependants. As to this, the only Hong Kong case to which I have been referred is WONG Keung v. NG Kwok-leung(7), in which Li, J. decided that he must disallow such portion of the plaintiff's claim as related to the earnings of the deceased from illegal hawking. At page 6 of his judgment he says -
46. Mr. Stone, for the defendant, fairly drew my attention to passages in the report of the appeal in TAM Choi, which suggest that the Court of Appeal did not go as far as Li, J. thought it did. 47. An examination of the judgment of Huggins, J. shows that the point was not considered by the Court of Appeal, since it appears that counsel for the appellant put forward his submissions on behalf of the appellant on other grounds. There seems, therefore, to be no clear ruling by the Court of Appeal that illegal earnings could not be taken into account for the benefit of dependants. 48. In Burns v. Edman(8) Crichton, J. at first instance considered the implications of evidence that the plaintiff's husband, who had been killed in a motor accident, had earned his living from criminal activities. He ruled that, since claim of the plaintiff and her children under the Fatal Accidents Act was for the deprivation of support flowing directly from criminal offences, the action arose ex turpi causa and was not maintainable. 49. It is not an easy question to decide what principles should be applied when examining the sources from which the dependants of a deceased person receive their maintenance. No doubt, there would be little difficulty if their benefits came merely from activities which did not give rise to enforceability at law. For example, the widow of a book-maker would probably have little difficulty in succeeding in a claim under the Fatal Accidents Ordinance, even though the income of her husband would have been derived from activities which gave rise to contractual relationships which were not enforceable. Nor would there seem to be much difficulty aboot income derived from activities which merely offend morals, such as the earnings of a prostitute. 50. The more difficult question is whether the dependants of a deceased who derives his income from criminal activities can recover for loss of support. 51. In the New Zealand case of Le Bagge v. Buses, the deceased was engaged in what was an otherwise perfectly legal business. However, part of the support which he provided to his family arose from an illegal extension of the business. I find the case of some assistance, however, in that one of the judges came to the conclusion that the New Zealand Act which is equivalent to our Fatal Accidents Ordinance, created a new cause of action for the benefit of the dependants of the deceased which was distinct from rights possessed by the deceased himself. He took the view that where the dependants were making a claim, there was not the same justification for invoking the principle of public policy as if the action had been for the benefit of the deceased himself. 52. The alternatives, where a deceased's activity was illegal, seem to be firstly that the dependants should receive nothing, secondly that they should receive only what the deceased would have got if he had given up his illegal activities and earned a respectable living, or thirdly, that the illegality should be disregarded. 53. I find the first alternative repugnant. The dependants have been deprived of their support by the negligence of the defendant. The latter should not be relieved of his liability because of the tainted source of the dependants' earlier income. 54. I do not consider that the second alternative is a practical one, nor logically defensible in that claims must be based on actual past support and likely future support and not on wholly hypothetical calculations. 55. With considerable diffidence, I would disagree from Crichton, J.'s decision in Burns v. Edman. It seems to me that there is a separate cause of action conferred upon the dependants of a deceased person which is not necessarily tainted with the illegality which affects the deceased. This is not a claim for loss of earnings, but for loss of maintenance out of earnings. 56. I realize that the logic of such a view must be that a widow who has been supported for some years wholly out of the proceeds of crime can nevertheless claim for a loss of support. That is the extreme case. But in the majority of cases which come before the courts, the dependants will have been supported from earnings which are of an illegal rather than criminal nature, such as the proceeds of illegal hawking, illegal fortune telling or perhaps the proceeds of running an unlicnsed restaurant; such activites are widespread in Hong Kong and are far from serious criminality. 57. I do not suggest that in all circumstances, dependants would be able to recover, if their income has been derived from criminal activities. It may well be that they would be barred in some cases, for example if they had themselves taken a direct part as partners in the illegal activities which gave rise to the income, though I do not have to decide this question now. 58. Suffice it to say that I think that the general principle should be that the dependants of a deceased person are not barred from receiving compensation for loss of support, because the deceased's income was derived from illegal activites. Quantum of Damages 59. I turn to the assessment of quantum of damages. I will deal first with the funeral expenses. 60. Mrs. Mak has produced bills or receipts amounting to $16,170. She also gave evidence that she had spent "a few hundred or a thousand dollars" on white clothing and shoes. I will allow $830 for this, which it rounds off the total figure to $17,000. 61. It was suggested on behalf of the defendants that this was an excessive amount, but no evidence was put before me as to the degree to which these expenses could be said to be excessive. I am satisfied that they were paid and in the absence of any evidence to show me that they were unreasonable I am prepared to find that they were properly expended. 62. As to loss of support, I find that the contribution of the deceased was $2,000 per month of which $300 should be deducted in relation to what was spent on his own support. I am not prepared to add on anything for additional payments said to have been made on special festivals. I regard these as presents made at suitable times of the year, rather than as part of the normal household maintenance. 63. Taking the period, from the date of the accident to the date of judgment, which is 32½ months, the total is $55,250. I award the "conventional sum" for the loss of expectation of life, pain and suffering $10,000, but this will merge with damages for loss of support. 64. For loss of future support, I take the figure of $1,700 per month and apply a multiplier of 1 in view of the age of the deceased, which would have been at least 76½, had he been alive to-day. That gives a total of $20,400. 65. Thus the total of general damages would be $55,250, and $20,400, that is $75,650. 66. As I have apportioned liability at 75% and 25%, the plaintiffs would recover $4,250 for funeral expenses $4,250 and $18,912.50 for general damages a total award of $23,162.50. Representation: B.K. Ho (D.L.A.) for Plaintiffs W. Stone (J.S.M.) for Defendants (1) (1975) H.K.L.R. 250 (2) (1962) H.K.L.R. 595 (3) (1921) 2 K. B. 818 (4) (1973) Supreme Court Action No. 2997 (5) (1977) High Court Action No. 727 (6) (1979) High Court Action No. 231 (7) (1975) High Court Action No. 3141 (8) (1970) 2 Q. B. 541 |
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