Man Mo Che v. Shun Fat Transport (A Firm) and Another

HCA000719/1967

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

ACTION NO. 719 OF 1967

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Coram: Briggs J.

Date of Judgment: 16 October 1968

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JUDGMENT

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1. The plaintiff is the administratrix of one Chan Ying Keung who was her husband and who died from the effects of an accident which occurred on June 29th, 1966. It is admitted that the second defendant was at the material time employed as a driver of a lorry by the first defendant. The deceased left a widow and four children; two daughters now aged about 23 and 19: and two sons now aged about 18 and 15.

2. On June 29th 1966 the deceased was working on a lorry which belonged to his brother. The lorry was stationary, being one of a number drawn up close to the kerb which runs down the centre of Tong Mei Road, Kowloon. It was the last lorry in the row.

3. Tong Mei Road is a very wide road divided down the centre by a kerb. There are three lines of traffic going in each direction, North and South. We are here concerned with that half of the road on which the traffic travels northwards. The lorry on which the deceased was working [which I shall in future refer to as "the deceased's lorry"] was drawn up on the right hand side of this half of the road, facing North, close to the kerb in the centre of the road.

4. This half of Tong Mei Road is 33 feet wide. At the time of the accident there was a second line of lorries parked against the left hand kerb of this half of the road. And there was another vehicle double parked alongside this second line of lorries, opposite to or nearly opposite to the deceased's lorry. This vehicle was described by the plaintiff's witness as a private car. The defendant said it was a lorry. After the accident a police sketch plan was drawn which was exhibited to the Court. By the time it was taken the vehicle which was double parked had disappeared. But the plan shows that at the time it was made, between the deceased's lorry and the lorry which was parked opposite to it across the road was a space of 16 feet 8 inches. If part of that space was taken up with another vehicle parked on the left hand side portion of that space the width of that part of the road which would be used would be about 8 or 9 feet. It was so reduced when the defendant arrived on the scene.

5. As I have said, the deceased was in the back of a lorry, working. He was engaged in nailing a strip of metal along the top edge of the body-work or planking which formed part of the side of the lorry. He was working on the near side of the lorry. He was squatting down as he worked. He held a nail in his left hand and drove it in, through holes which had already been made in the metal strip into the top of the wooden planking, using a hammer held in his right hand. The method of work was demonstrated to the court by Chang Ying Lit, the brother of the deceased, who was called as a witness by the plaintiff, and who had been working with the deceased on this job earlier that day. He squatted down in the witness box with his left arm on the edge holding an imaginary nail. Standing talking to the deceased was one Kong Shu Fun and he also described the position of the deceased in similar terms.

6. The plaintiff's case is that the defendant drove his lorry through the gap in the road which I have already described. In so doing doubtlessly because of the double parked vehicle, he drove too close to the lorry in which the deceased was working. Part of the defendant's lorry caught the left shoulder of the deceased and smashed him against part of the canopy of the back of the lorry and the rear portion of the driver's cab and then dragged him out of the lorry on to the road.

7. After the accident the deceased's body was found rather more than 14 feet away from the deceased's lorry. He had severe head injuries and was unconscious. He died 14 days later without regaining consciousness. It was noticed that there was a tear in the deceased's working clothes on the left shoulder.

8. There was no mark on either of the lorries and the two lorries did not come in contact with each other. A curious feature of this case is that Kong Shu Fun who was standing in the lorry talking to the deceased did not actually see how the accident occurred. He was momentarily distracted in his conversation with the deceased.

9. The defendant gave evidence and at first appeared to be unable to account for the accident. He said he saw the double parked vehicle to his left and the lorry in which (though he did not know this) the deceased was working to his right as he drove up the road. He said he passed through the open space between these vehicles and was 2 feet away from the lorry on his right when this occurred. He was travelling at 10 miles per hour. He did not see the deceased at all. After he had passed the lorry he heard a thump and a shout and stopped and found that the deceased was lying in the road.

10. The defendant was a driver with but little experience. He admitted in cross-examination that his lorry had come in contact with the deceased as a result of which the deceased had been knocked on to the road and injured. He also said that the deceased was carried to the position where he was found in the road by the force of the collision and the speed of his lorry.

11. It is obvious I think that the defendant passed so close to the lorry in which the defendant was working that part of it caught the clothing of the deceased and dragged him out of the back of the truck. If the deceased was working as described by the witnesses a portion of his shoulder would have been outside the back of the lorry. His head must have struck the rear portion of his lorry's cab for blood was found on the glass of the side window of the driver's cab. And it would appear that the defendant must have been travelling at a speed faster than that which he estimates. This is, I think shown by the fact that Kong Shu Fun did not see a notice the vehicle pass and by the fact of the distance the body of the deceased was found from his lorry. There is no suggestion that the deceased suddenly leapt out; nor that he was hammering the steel plate on to the outside of the lorry; nor that any substantial portion of his body was outside the back of the lorry. This emerges from the evidence of Kong Shu Fun. And the defendant said he did not see the deceased at all which he would have done had he been leaning out of the lorry.

12. To the counsel for the plaintiff the defendant said that when he thought the matter over he suspected that the angle irons which were fixed vertically as part of the body of his lorry, might have caught the deceased. Fixed to the outside of the angle irons were some wooden bars which projected two or three inches to the front of the body of the lorry, i.e. immediately behind the driver's cab on each side: which might likewise have caught on the clothing of the deceased. The lorry was not produced as an exhibit.

13. The plaintiff relied on Randall v. Tarrant⁽¹⁾. Part of the headnote of that case reads:-

"A driver on a highway who sees a stationary vehicle has to take all possible care to avoid a collision. If there be insufficient room to pass he is negligent if he attempts to do so. If however, there is enough room but a collision occurs, then prima facie he is again negligent, the onus being on him to show that he has taken all the steps which a reasonable man would take in the circumstances, that is, all possible care to avoid a collision."

14. Mr. Mills-Owens for the plaintiff suggested that there was an admission in the pleadings, in the defence, that the defendant's lorry had come into contact with the deceased while the latter was on a stationary vehicle. The defence pleads the contributory negligence of the deceased and the particulars of that negligence do state that the defendant's lorry had come into contact with the deceased. However, I do not think that there is an admission by the defendant. It is merely a normal pleading of the contributory negligence of the defendant. And the defence does contain a general trauma in its first paragraph. The matter is academic because in the witness box the defendant admitted that he did see the stationary vehicle and that his lorry did collide or come into contact not with the other lorry, but with the deceased. And he has admitted that there was room for him to pass. Remembering that the deceased was hit while he was on a stationary lorry I find that applying the reasoning contained in Randall v. Tarrant⁽¹⁾ that the defendant has failed to discharge the onus that he had taken all possible care to avoid the accident. I find therefore that the accident occurred through the negligence of the defendant in driving too close to the deceased's lorry.

15. In his final address counsel for the defendant sought to rely on a point which up till then had not been raised. He said that the parking of the lorry on which the deceased was working constituted a public nuisance in the highway. It was a wrongful use of the highway and that therefore the defendant did not owe the deceased such duty of care as the user of a highway in ordinary circumstances is entitled to demand. He merely owed him a duty not to do some wilful act towards him.

16. This point was not pleaded nor was it pursued in the course of the trial. And I do not think that it was proper to raise it only in the closing address of counsel. Indeed, I think it is probably a point of doubtful validity. Anyway it is a point not properly before me in this case and I will say no more about it.

17. This action is brought under the Law Reform (Miscellaneous Provisions) Ordinance, Chapter 221, and under the Fatal Accidents Ordinance (Chapter 21).

18. The deceased was a healthy man of 51 years. He ran a one lorry transport business. He was rendered unconscious by the accident and never regained consciousness. In these circumstances, I think it would be wrong to award any sum for his pain and suffering. There is no claim for any special damages other than the sum of $1,600 for funeral expenses which sum was not disputed by the defendant and which is reasonable. I think the correct sum to award for loss of expectation of life is $8,000. This makes a total under the Law Reform (Miscellaneous Provisions) Ordinance of $9,600. Of course the sum for the loss of expectation of life must be deducted for 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. The reason is that such damages merely reimburse the personal representatives for expenditure already incurred. It is not a benefit which accrues to the defendant as a result only of the death of the deceased. This was decided in Joyce v. British Electricity (from a case tried in the Court of Appeal in 1955. It does not appear to have been reported though there is a useful account of it at page 76 of Volume 2 of Kemp v. Kemp (Second Edition)).

19. I now come to damages under the Fatal Accidents Ordinance. The deceased left a widow, the plaintiff, and four children. They all lived at home. But at the time of the accident the two eldest were earning. They each contributed a portion of their wages towards the cost of their board and lodging. The third child and elder son was at school and the youngest was only four years old. The elder boy is now working and the younger boy at school.

20. The plaintiff gave evidence as to the income of the deceased and this was to a certain extent corroborated by other witnesses. She made a good witness and did not attempt to exaggerate. She said that the gross income of the deceased was approximately $1,100 per month. And that he would give her $7-800 per month of this. Out of this she paid for the food, rent, school fees, clothes and other disbursements of the family. This would come to about $600 per month. Occasionally the deceased would ask the plaintiff for some money for himself: but he normally paid for all the disbursements connected with his business, his own clothes and his lunches. Regard must be had to the position of the three eldest children all now in employment but still living at home with the family.

21. Mr. Mills-Owens, counsel for the plaintiff, has asked me to assess the dependency at $800 per month. And he has suggested that although the elder children are now earning, this makes little difference for that amount of the deceased's income which would have been spent on them will go to increase the income of the widow who will be able to live at a slightly higher rate.

22. Mr. Zimmern, counsel for the defendant, on the other hand suggests a dependency figure of $400 per month at the highest. He suggests that the two eldest children were not dependent upon the earnings of their father.

23. I was impressed by the plaintiff in the witness box. She seems to me to be an honest person who has not sought to exaggerate her claim. Though I agree that the elder children were not wholly dependent upon the earnings of their father I think that they were so to some extent. It is true that the two eldest contribute between $100 & $150 per month each towards the household expenses there is still yet an element of dependency. There was no evidence that the third child, and elder boy, contributed anything.

24. Considering the evidence as a whole and doing the best I can I assess the dependency at $600 per month. This is $7,200 per annum.

25. The deceased as I have said was a self employed man aged 51. The plaintiff says that he was healthy. I consider on the evidence that the correct multiplier to take in this case is ten years. This will give a figure of $72,000 under the Fatal Accidents Ordinance. From this must be deducted the sum of $8,000 awarded under the Law Reform (Miscellaneous Provisions) Ordinance - this makes $64,000. There will be judgment for the plaintiff for $9,600 being damages under the Law Reform (Miscellaneous Provisions) Ordinance and in addition, for $64,000 being damages under the Fatal Accidents Ordinance namely $73,600 in all. The sum of $9,600 awarded under the Law Reform (Miscellaneous Provisions) Ordinance will be paid to the plaintiff as administratrix of the deceased. The sum of $64,000 awarded under the Fatal Accidents Ordinance will be apportioned as follows:

The costs of the successful plaintiff are to be taxed under the provisions of the Legal Aid Regulations and paid by the defendants.

Dated 16th October, 1968.

Representation:

Mills-Owens (C.C. Lee & Co.) assigned for Plaintiff.

Zimmern (Deacons) for both Defendants.

(1) (1955) 1 W.L.R. 255