Lo Tai v. Lo Chung and Another

HCA002486/1979

IN THE SUPREME COURT OF HONG KONG

HIGH COURT ACTION NO. 2486 of 1979

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Coram: Mr Commissioner de Basto, Q.C.

Date of Judgment: 12th March, 1980

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JUDGMENT

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1. This is an action brought by the administratrix of the estate of Tang Foon (the deceased) under the Fatal Accidents Ordinance and the Law Amendment and Reform (Consolidation) Ordinance.

2. At about 3.45 p.m. on the 15th February 1978 the deceased was riding a bicycle when he was involved in a collision with a 1½ ton unloaded goods lorry driven by the 1st defendant (the driver). Counsel for the parties informed the Court that, without prejudice to the question of liability, the loss of dependency was agreed at $60,000 and $10,000 in respect of loss of expectation of life. The funeral expenses of $6,500 were also agreed. The parties put in a bundle of documents agreed as to "admissibility, authenticity and truth".

3. The issues now before the Court are the question of liability (including contributory negligence, if any) and whether, in the event of a decision against the defendants, a sum of $17,210 (or part thereof) in respect of Taoist ceremonies is allowable.

4. The burden of proof is on the plaintiff. As Lord Denning said in Stupple v. Royal Insurance Co. (1971) 2 Q.B.D. at 72: "Take a running-case where a plaintiff claims damages for negligent driving by the defendant. If the defendant has not been convicted (of careless driving), the legal burden is on the plaintiff throughout."

Liability

5. No witness was called on the issue of liability. In the agreed bundle there are, inter alia, a sketch plan (to scale), photographs and two statements made by the driver to the police. The first of these statements was made on the day of the accident and the second about 1½ months later. It is not in dispute that at the time of the accident:-

6. Mr Leung for the defendants, referred to discrepancies in the said two statements by the driver. These include:-

7. From the sketch plan the accident appears to have taken place at about the mid-line of the dual carriage-way. What was the deceased doing in the middle of a dual carriage-way?

Rule 5(a) of the Highway Code Part 2 provides that:

8. "While riding your cycle"

(a) Keep to the left unless turning right".

9. The deceased could not turn right, if he had emerged from Fung Nin Street, because the dual carriage-way only carried traffic to the left, that is, in a westerly direction. There is nothing before me to suggest that he intended, whilst travelling in Yuen Long Main Road, to effect a right turn from that road - indeed, there is no evidence even to suggest that a user of the highway could have effected a right turn from Yuen Long Main Road anywhere in that vicinity.

10. In his first statement the driver said that when he saw the deceased's bicycle it was "coming out on to the main road from the mouth of Fung Nin Road ......" In the second statement he said he first saw the deceased when "he was cycling along the inner lane at Fung Nin Road and Castle Peak Road". This might, at first sight, suggest that when the driver first saw the deceased he was cycling somewhere along the inner lane of the main road. But later, in the same statement, he said, "He was cycling slowly, still 1 or 2 feet before reaching (sic) the inner lane".

11. I think when the driver first saw the deceased he was cycling into the Yuen Long Main Road from Fung Nin Street.

12. I have considered the discrepancies referred to by Mr Leung - it is true that in the second statement the driver puts his lorry further back when he said he first saw the deceased but, then, he also said that the deceased was travelling "slowly" whereas in the first statement he said he was moving "rather fast". Again, in the second statement he increases his own estimated speed. I also appreciate that the driver said in his second statement that he was travelling "about 30 to 35 m.p.h." whereas the speed limit was 30 m.p.h. Accidents of the kind with which the Court is presently concerned occur within seconds, almost instantaneously. A driver travelling at say 30 m.p.h. is moving at a speed of 44 feet per second. If he perceives a potential danger 100 feet away, the next 30 feet is covered by the "thinking distance". The remaining 70 feet will be covered in less than two seconds. If a driver travels at 30 m.p.h. his "Braking distance" alone is 150 feet on a wet road.

13. Mr Leung submitted that the mere fact the driver was travelling in excess of the speed limited was prima facie evidence of negligence. He did not cite any authority in support of that proposition. The English Court of Appeal held in Barma v. Hudes Merchandising Corporation (1963) SJ 194. That exceeding the speed limit, though an offence, was not of itself negligence imposing civil liability. Their lordships held that the defendant's speed in that case was not excessive. He had no reason to suppose that the road would be blocked as it was. In the instant case, I find that the driver had no reason to suppose that a person riding a bicycle (or even another motor vehicle for that matter) would pursue the course adopted by the deceased.

14. On the prepronderance of probabilities I think the deceased, just prior to the accident, had emerged from Fung Nin Road and when the driver saw him, the deceased was pedalling his bicycle in the inner lane diagonally in the direction of the outer lane of Yuen Long Main Road. In my view, the deceased was negligent in doing that and in being, at the time of/impact, mid way between the dual carriage-way. He was, to a large extent, the author of his own misfortune.

15. I find that the deceased was negligent to the extent of being 2/3 responsible for the accident and the driver negligent to the extent of 1/3. I find that the driver was partially to blame because although he "hooted" twice to warn the deceased he then continued to drive at the same speed because he assumed the deceased would drive along the inner lane. But, if he had thought the deceased would drive along the inner lane, he probably would not have sounded his horn. He sounded his horn because he foresaw the possibility of danger vis-a-vis the deceased. In that case he should then have reduced his speed.

Religious Rites

16. The deceased's daughter gave evidence that there were two Taoist ceremonies, one before the burial and the other after. There was another ceremony when the deceased's relations took off their mourning garments. I do not think Mr Iu disputed that the Ho Fat Tan was paid $17,210 for these services including the paper representations which were burnt. The voucher in the agreed bundle is a somewhat strange document referring as it does to eight nights' of ceremonies. The deceased's daughter said eight Taoist priests took part in the ceremonies - one high priest and seven other priests. Mr Leung suggested the least I should allow the plaintiff under this head is $9,000. The deceased's daughter testified that if her family had had more money they would have paid to have a grander ceremony. She said there were cheaper ceremonies than the one held for her late father but she admitted that apart from consulting the Ho Fat Tan (the father of the proprietor of which had known her late father) the family had made no enquiries as to the types and/or costs of other ceremonies available. I think $17,210 is a grossly excessive figure bearing in mind that this represents just a little more than the deceased's annual income.

17. In the circumstances I allow $2,000 being the fees of a priest for two ceremonies, one before and the other after the burial.

18. The total damages on the basis of full liability is $60,000 - under the Fatal Accidents Ordinance and $10,000 - under the Law Amendment Reform (Consolidation) Ordinance. The latter merges into the former. I must reduce the damages by 2/3 to reflect the deceased's negligence. I award the plaintiff the sum of $20,000 of which $6,666.65 shall bear interest at the rate of 5% from the date of death, the 17th February 1978, to the date hereof. I award the plaintiff $2,833.33 by way of special damages the same to carry interest at 5% from the date of the accident to the date hereof. All sums to be paid into Court within 14 days. I will hear submissions as to costs and apportionment.

Representation:

Mr. Frankie Leung, assigned by DLA for the Plaintiff.

Mr. Thomas Iu, instructed by John Ip & Co. for both Defendants.