Fung Oi-hing and Another v. Cheng Siu-ying and Another
Read the full judgment text of HCA 1857/1980 on BabelCite. This High Court CFI judgment.
1. On the evening of 26th March 1979 a taxi owned by the 1st defendant and driven by his servant or agent the 2nd defendant ran into the husband of the 1st plaintiff. The husband died from his injuries on 28th March 1979.
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HCA001857/1980 IN THE SUPREME COURT OF HONG KONG HIGH COURT ACTION NO. 1857 OF 1980 -----------------
Coram: Mr. Commissioner Gittins, Q.C. Date of Judgment: 27th October, 1980. ----------------- JUDGMENT ----------------- 1. On the evening of 26th March 1979 a taxi owned by the 1st defendant and driven by his servant or agent the 2nd defendant ran into the husband of the 1st plaintiff. The husband died from his injuries on 28th March 1979. 2. The circumstances of the accident were that the 1st plaintiff and her mother, her husband and their daughter, then 2½ years old were crossing Nathan Road from its west side to the east on a studded crossing; that they crossed 2 traffic lanes to a traffic island and continued to cross 4 traffic lanes to the east side; that while crossing the eastermost lane the husband was run into by the taxi driven by the 2nd defendant. 3. The 1st plaintiff's evidence was that on reaching the traffic island the traffic lights some 24 metres to the south showed red and of the 4 traffic lanes between her and the eastern pavement of Nathan Road the 3 lanes nearest to her were occupied by vehicles stopped in them, the vehicle in the 3rd lane away from her being a bus; that there was no vehicle in the 4th lane; that her husband leading their daughter by the hand on his right led the way followed by the 1st plaintiff and her mother; that when her husband reached the 4th lane a taxi appeared and ran into him. 4. In cross examination she said that when the accident occurred it seemed to her that the traffic lights were still red to the stationary traffic, but she admitted that in her statement to the police, made soon after the accident on 26th March 1979, she did not mention this. She added that when she ran to where the taxi had stopped the lights were green. She also stated that after leaving the traffic island her husband was in her view all the time, that he did not look to the right (towards the traffic lights), that on passing the stationary bus he did not pause and went on to cross the 4th lane. 5. WU Po-chu, Sergeant No. 2731 of the Traffic Accident Inquiry Office, Kowloon gave evidence that he attended at the scene of the accident on 26th March 1979 and produced a sketch plan made by him. He testified that pedestrian crossing lights formerly in use at that crossing had been sealed off so that the only traffic lights to guide pedestrians were those 24 metres to the south. He said that pedestrians should look to the north, the direction of on-coming traffic, see that no traffic is coming, then proceed to the traffic island, then look at the said traffic lights, and if these showed red it was safe to cross. 6. The evidence of TO Yiu-sun, the 2nd defendant, who was the driver of the taxi, was that he approached the said crossing from the north at 20 odd to 30 m.p.h. in the lane nearest to the east pavement; that when he saw stationary vehicles in the 3 lanes to the right he inferred that they had stopped at the traffic lights at the crossing and slowed down to 10 odd m.p.h., that his view of the traffic lights were obscured until he was about 30 feet from them when they were green; that he changed gear upwards and accelerated; that as he passed the bus which was stationary in the lane immediately to his right he saw the shadow of the deceased appearing suddenly from the front of the bus; that he applied his brakes immediately; that the road was wet and slippery and the taxi skidded to a stop; that he pleaded guilty to a charge of dangerous driving causing death at a magistrate's court on the advice of his solicitor. 7. The sketch plan of the scene produced by the police showed that the taxi stopped about 18 metres (60 feet) from the northern edge of the pedestrian crossing. Counsel for the defendants referred to the table in 7th Bingham's Motor Claims Cases 106 showing stopping distances on wet asphalt which indicated that the taxi was travelling at about 27 m.p.h. when its brakes were applied. 8. In those circumstances counsel for the defendants conceded that the 2nd defendant was negligent and that his negligence was the substantial cause of the accident. 9. I so find. 10. The defendants allege that the deceased was contributorily negligent in that according to the 1st plaintiff's evidence that he after leaving the traffic island had never looked to the right to ascertain that the traffic lights had not changed and further when he crossed in front of the stationary bus in the third lane he did not pause to ascertain that the fourth lane was clear of oncoming traffic before crossing it to the pavement. 11. Plaintiffs' counsel submitted that the deceased had done all that he was bound to do, that once he started to cross with the traffic lights in his favour he was entitled to be given the right of way by all vehicles. 12. I do not find that the deceased was negligent in not looking at the traffic lights on his right, but I hold that when he passed in front of the stationary bus he had a duty of care to pause and ascertain that no vehicle was approaching in the fourth lane before proceeding. This he failed to do and I consider this omission as one of the probable causes of the accident. The substantial cause was the 2nd defendant's negligence and I would put the proportions as four-fifths of the blame on the 2nd defendant and one-fifth on the deceased. Quantum of Damages 13. The deceased was 33 years old when he died. He was in good health, married and enjoyed a happy home life. He was a jewellery setting technician earning an average of $2,400 per month from his permanent employment and $500/$600 per month for work at home. His permanent employer gave evidence that he would have increased his salary by $200/$300 per month because of inflation. He was provided with lunch and dinner free at his place of employment. 14. Counsel for the parties agreed that the deceased retained $200 per month for his travelling expenses and spent another $200 per month on clothing etc. He gave $150 per month towards the support of his mother in Macau. 15. The 1st plaintiff was aged 29 at the trial and there is a daughter LEUNG Man-ki who was born on 6th October 1975. 16. The 1st plaintiff paid funeral expenses of about $9426, broken down as follows:-
The defence submitted that (b) should be reduced by $1426 to $2000; (c) by $1000 in respect of the coffin because the deceased was cremated, to $620 and that (d) should be disallowed in total. 17. I award for (a) $3370; (b) $2000; (c) $1000; (d) $500 - a total of $6870 for funeral expenses as being reasonable in the circumstances. 18. It is agreed by the parties that the dependency of the deceased's mother should amount to $9,000 being $150 per month for 5 years. Pre-trial loss 19. I find the dependency of the widow and daughter to be-
Less $200 for travelling, $200 personal maintenance and $150 for mother i.e. $2950 - $550 p.m. = $2400 x 18 months = $43,200. Post trial 20. $2950 + $250 increase = $3200 p.m.
21. In summary the awards are as follows:-
22. Having found the deceased to have been contributorily negligent to the extent of 20%, the net awards are:-
23. There will be judgment with costs for the plaintiffs in the sum of $371,216. Interest at 4½% per annum will be payable on the special damage of $5496 from 26th March 1979 to the date of trial and at 9% per annum on $33,560 plus $7,200 (= $40,760) from the date of the writ to the date of trial. 24. There will be apportionment of $75,000 out of the sum awarded, for the infant Leung Man-ki to be paid over to and invested by the Registrar of the Supreme Court on behalf of the infant.
Representation: Mr. Bunting instructed by H.H. Lau & Co. for plaintiff Miss Alice Mok instructed by Vincent Lo & Co. for defendants |