Cheung Fung Yin v. Attorney General

HCA002476/1975

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

-----------------

Coram: Mr. Commissioner O'Connor in Court.

Date of Judgment: 12th July, 1977

-----------------

JUDGMENT

-----------------

1. The plaintiff Madam CHEUNG Fung-yin sues as administratrix of the estate of her daughter WONG Ming-mui for damages under the Fatal Accidents Ordinance and the Law Reform (Consolidation) Ordinance arising out of the death of WONG Ming-mui on 10th October 1972 due to being thrown off a motor cycle on which she was a pillion rider on route TWSK. The Attorney General representing the Crown is the defendant sued under the provisions of the Crown Proceedings Ordinance. The plaintiff alleges that the deceased was thrown off the motor cycle as a result of it striking a depression in the road alleged to be due to the negligence of the Crown in failing to properly maintain the highway or alternatively that the depression was a public nuisance for which the Crown was liable. The Attorney General put in a defence denying negligence or nuisance and additionally denying that the accident was caused by the depression in the road. The plaintiff did not join Mr. WU Kai-chiu the driver of the motor cycle as a defendant, but the Attorney General brought him in as a third party alleging the death was due to the negligence of Mr. Wu in his driving of the motor cycle. The third party Mr. Wu put in a defence denying negligence on his part and alleging the accident was due to the motor cycle striking the depression in the road without negligence on his part, and further alleging negligence on the part of the Crown.

2. The first hurdle the plaintiff has to cross is to establish that the accident was more probably than not caused by the depression in the road. I find the plaintiff falls at this hurdle as it seems probable to me that the depression did not cause the accident.

3. It is undisputed that the accident occurred about 22.50 p.m. on 10th October 1972 when the deceased was a pillion rider on a motor cycle driven by the third party, descending Route TWSK in the direction of Tsuen Wan in fine weather on a dry road, when the third party lost control of the motor cycle at a left hand bend, and both he and the deceased were thrown to the ground. The deceased sustained head injuries from which she died the following day. There was no other relevant traffic on the road at the time. On those facts alone one would think that res ipsa loquiter would apply in aid of the plaintiff if she had sued the driver. However she did not sue him but simply sued the Attorney General as representing the Grown, and decided to rely on a hearsay statement of the driver as establishing the cause of the accident to be a depression in the road.

4. The depression measured 28 inches long by 12 inches wide and 1/2 inch deep. It is purely a surface depression. It lay 4 feet from the left hand curb of a 31 foot wide road which was divided by a double white line. The depression lay in such a position that its length of 28 inches was more or less parallel with the left hand curb. The road at that point was quite steeply downhill with a left hand bend which was a very tight bend at the beginning but after traversing an are of about 9^o it becomes less tight until the road eventually straightens again. Mr. Harpur a P.W.D. highways engineer gave evidence as to the upkeep of the road. He did not see the depression but saw photographs of it and has knowledge of such types of depression. He also knows the part of the road where the accident occurred. He says such depressions are due to heavy rain seeping into minute openings in the road and weakening the surface, by tending to wash away the bitumen which binds the stones forming the surface, and that this tendency could be aggravated at a sharp bend on a downhill gradient due to braking and possibly changing of gears, particularly of heavy vehicles. Such a depression, he says, could occur within a period of 24 hours. However a police officer who saw the depression within hours of the accident says it appeared to be over one or two days old.

5. The only evidence adduced by the plaintiff as to what caused the motor cycle to go out of control and throw the deceased, was a statement that the driver Mr. Wu the third party had made to a police officer in Tsuen Wan Police Station within a matter of hours of the accident. The plaintiff served on the defendant a notice under rule 3 of the Evidence (Hearsay) Rules of intention to give this statement in evidence. The notice gave reasons why the plaintiff wished to introduce the hearsay statement but none of the reasons given fall within rule 7. The reasons the plaintiff gave really amounted to saying that the third party may be entitled to decline to give evidence (which is incorrect as any party could call him and he would be compellable), and that as he was a third party who may be liable to pay damages awarded to the plaintiff, the plaintiff should not call him. The defendant could of course have served a counter notice requiring the plaintiff to call the third party. The defendant surprisingly did not do so, though he does not agree to the truth of the hearsay statement. The defendant's attitude in effect is let it go in for what it is, a hearsay statement to be given such weight as it is thought to merit.

6. In this hearsay statement the third party had said that he and the deceased were thrown off the motor cycle as a result of it striking the depression in the road. He repeated that assertion in the defence he filed. As regards the cause of the accident his allegation was the same as the plaintiff's and his interest the same as the plaintiff's. One would have expected the plaintiff to call him. It is no answer for the plaintiff to say that the third party might have given evidence on his own account. The plaintiff was not entitled to make that assumption, and indeed on the pleadings and facts known to plaintiff it would have been a rash assumption. The position is that the plaintiff wished to use the hearsay statement to establish the cause of the accident but was not prepared to have it tested by calling its maker and having him subjected to cross-examination, even though on the question of liability the interest of the plaintiff coincided with that of the third party, the maker of the statement. On the other hand the defendant did not exercise his rights to compel the plaintiff to call the third party. The third party himself did not elect to give evidence on his own account. He was no doubt content at not having been sued by the plaintiff and he wisely did not put himself in a position to be cross-examined.

7. In the light of the matters I have stated I have to approach the value of the hearsay statement. A court can reject evidence of a witness even though he has not been cross-examined and no contradictory evidence has been called Brewster v. Brewster 1971 2 All E.R. 993 and see O'Connell v. Adams 1973 Criminal Law Review 113 and commentary.

8. A court is not bound to believe any story presented to it but if the story be reasonable or probable, and the facts are such as might occur and are sworn in fact to have occurred, and the evidence is uncontradicted, then the magistrates must find in accordance with it Stephens v. McKenzie (1904) 29 Victorian Law Reports 652.

9. In Chaturbhuj Pande v. Collector 1969 All India Reporter Supreme Court 255 the following passage occurs,

"It is true the witnesses examined on behalf of the appellants have not been effectively cross-examined. It is also true that no evidence has been adduced in rebuttal, but that does not mean that the court is bound to accept their evidence. Judges are not computers. In assessing the value to be attached to oral evidence, they are bound to call into aid their experience of life. As judge of fact it was open to the appellate judges to test the evidence before them on basis of probabilities."

10. I consider I should weigh the value of the hearsay statement with the above remarks in mind and of course also having regard to the matters set out in S.51(3) of the Evidence Ordinance Cap.8 and I suppose, even in these days, some regard should be paid to the fact that the statement was not made under sanction of an oath or affirmation, though I hasten to add this latter point is of no deciding weight in the present case. When assessing the value to be given to the statement I keep in mind of course the other evidence in the case which might lend support to it or detract from it. Mr. SIU Kwok-to a friend of the deceased and of the third party arrived on the scene shortly after the accident. He says in evidence that he saw the depression or hole when he was at the scene and thought it had caused the accident. He says that he first knew it was the cause of the accident when the third party told him so at the hospital after the accident. A police officer LAM Woon-wan gave evidence. He had gone back to the scene with the third party an hour or so after the accident and it was he who measured the depression. He says the third party told him the hole in the road caused the accident but he cannot say was this told to him before they went to the scene. In any event at the scene the third party pointed out the hole to him.

11. In the statement the third party described the accident as follows:

"The accident happened at about 22.50 hours when I was driving the motor cycle down slope and negotiating a left hand bend. The bend was very sharp. Weather was fine and the road surface was dry. I was driving at about 30-35 m.p.h. in 3rd gear. Suddenly I felt the motor cycle jerked violently, I later realised it stumbled over a hole in the road, the motor cycle then skidded to the left toward the hillside, I lost control of the machine and let it skidded forward to collide with the hillside."

Photographs show the motor cycle was a modern machine with telescopic forks. I am exercising no special knowledge when I say that I do not believe that a depression such as has been described would cause loss of control of a motor cycle in the circumstances. It is to be noted the depression was only 1/2 inch deep. It was not so narrow as to cause a wheel to be trapped in the manner that might be caused by a tramline. The probabilities are all against the depression having thrown the motor cycle out of control. If such a depression could throw a motor cycle into a dangerous position, it would appear to me that motor cycles are so extremely and inherently dangerous that they should be prohibited altogether from the roads. Undoubtedly motor cycles can be the cause of and the occasion of danger but they are not so unstable as the statement suggests. I reject the explanation of the accident that appears in the statement. It seems to me that the accident was probably caused by the negligent manner in which the third party drove the motor cycle. The plaintiff's claim against the defendant fails.

12. I consider I should deal with the matter of damages.

13. The deceased was a single girl aged 20 years when she died. Her father was unfit to work through illness and the girl was the sole support of her family which consisted of her father then aged 58 years, her mother then aged 50 years and her brother then aged 4 or 5 years. I consider her father and mother were essentially truthful witnesses but not quite accurate as to the money the deceased paid towards family expenses. It seems to me that a fair figure for the girl's contribution to family expenses was a total of about $600.00 a month out of which I would deduct her own living expenses and fix the figure her family were left with as $500.00 a month.

14. Her mother says she would probably have got married at the age of 22 and that she had indicated she would support them to extent of $300.00 after her marriage. The girl's death occurred in 1972 and in view of the length of time that has passed since then I do not consider that I should decide on a multiplier to operate from that date. There are other methods of assessing damages Cookson v. Knowles The Times 26th May 1977.

15. I consider the most accurate figure is arrived at by calculating the loss up to when the girl likely to marry and applying a multiplier from that date. I fix the loss up to probable marriage at $500.00 a month for two years, that is a figure of $12,000.00. From the probable date of her marriage I consider the proper multiplicand to be $300.00 a month and the multiplier I would fix at 7. That gives a figure of $25,200.00 to which is added $12,000.00 giving a total of $37,200.00. I would not scale down that figure in view of time elapsed since the accident and inflation since then. To this would be added agreed special damages of $1,439.00 making a total of $38,639.00. I would have awarded $10,000.00 for loss of expectation of life but that sum would merge in the larger sum. So if I had awarded damages it would have been in the sum of $38,639.00.

16. Having regard to other matters that were argued I consider I should, in courtesy to the labours of Mr. Ozorio, indicate briefly my views on matters not necessary to decide in view of my finding on causation. I do not consider the depression was dangerous to a person using the highway with due care in an ordinary manner nor was it negligent to allow it to form and remain there nor do I consider it was an unreasonable interference with persons using the highway in a reasonably foreseeable manner.

17. It is agreed that the depression in the road is a matter of nonfeasance and not of misfeasance. The evidence indicates that Route TWSK was built by the War Department and surrendered to the Hong Kong Government in 1958. Counsel agree that there is no relevant local legislation dealing with the duties or responsibilities of Government in relation to roads on Crown land. Mr. Ozorio contended that the common law rule as to non liability of a highway authority for nonfeasance should not be applied in Hong Kong. The relevant statutory provision is S.3 of the Application of English Law Ordinance which states that the common law is in force in Hong Kong in so far as it is applicable to the circumstances of Hong Kong or its inhabitants and subject to such modification as such circumstances may require. Mr. Ozorio says that having regard to the history of the nonfeasance rule in England it should not be and need not be applied to the circumstances of Hong Kong. The test of applicability is not whether the law is desirable but whether it is capable of being applied without causing injustice or oppression. Belilos v. NG Si-shi noted 1969 H.K.L.R. 202 at 208. In re TSE Lai-chui deceased 1969 H.K.L.R. 159.

18. According to the common law of England public bodies charged with the duty of keeping public roads in repair were not liable to an action for damages in either negligence or nuisance at the suit of a person injured as the result of failure to repair. Cowley v. Newmarket Local Board 1892 A.C. 345, Pictou v. Geldert 1893 A.C. 524. For a brief history of how this position came about in England see the judgment of Fullanger J. in Gorringe v. Transport Commission (1950) 80 Commonwealth Law Reports 357 at 373. The common law immunity of highway authorities was extended to Nova Scotia, Pictou v. Geldert 1893 A.C. 524 and Ontario, Prestice v. Sault Ste. Marie (1927) 4 Dominion Law Reports 800 at 801 reversed on other grounds (1928) 3 Dominion Law Reports 564, and I believe to other Canadian provinces though long ago the doctrine was discarded by legislation in most of the provinces, see Fleming "Law of Torts" 4th Edition 362. The common law rule was also adopted in Australia Sydney v. Bourke 1895 A.C. 433 and New Zealand Gascoigne v. Wellington Corporation 1942 N.Z.L.R. 562. The rule became part of the common law of those Commonwealth countries despite the fact that they have a very different history of highway authorities, see for example Buckle v. Bayswater Road Board (1936) 57 Commonwealth Law Reports 259 at 268 -269. As regards the liability of a Government which undertakes construction of a road for public use on Crown land see the judgment of Griffith C.J. in Miller v. McKeon (1906) 3 Commonwealth Law Reports 50 at 59 - 61, where he said that in such circumstances the Government is not liable for nonfeasance.

19. In my view the common law rule as to nonfeasance is applicable to Hong Kong and is part of our law. It has the advantage of certainty. Mr. Ozorio suggested that I should hold it did not apply and declare that Hong Kong common law on this matter happens to coincide with the English Highways Act of 1961. That would indeed be a bold, but to my mind unjustifiable step.

20. The plaintiff also seeks to rely on the Occupiers Liability Ordinance. The Crown does not deny that it is the "occupier" of Route TWSK. Clerk and Lindsell on Torts 14th Edition paragraph 1015 relies on Whiting v. Hillingdon London Borough Council (1970) 68 Local Government Reports 437 for the statement that a highway authority is not regarded as the "occupier" of a public road or footpath. Mr. Fuller concedes that that case does not go so far as Clerk & Lindsell suggest, it merely held that a local authority were not "occupiers" merely because of their statutory duty to maintain a highway. That case would not necessarily govern the position where the repairing and maintaining authority were also the owners as is the Government in relation to Route TWSK. Clerk and Lindsell in paragraph 1015 also refers to the Australian decision of Schiller v. Council of the Shire of Mulgrave (No.2) (1972) 46 Australian Law Journal Reports 650 where it was held that a local authority was the occupier of a nature reserve vested in it as trustee for the public. Since the hearing I have uncovered the decision Bulmer v. Ryde Municipal Council (1975) 30 Local Government Reports Australia where Taylor C.J. applied Schiller's case. His decision was reversed by the appeal court in New South Wales, see (1976) 32 Local Government Reports Australia. As I have been unable to see reports of this decision but only rely on notes I cannot say if the appeal court cast doubt on Schiller's case. The case is going on further appeal to the High Court of Australia.

21. However a person using the public highway is not a "visitor" within the meaning of the Occupiers Liability Ordinance. Greenhaigh v. British Railways Board 1969 2 Q.B. 286 so that ordinance does not assist the plaintiff.

22. In the result the plaintiff's claim is dismissed.

Representation:

Michale Ozorio (D' Almada Remedios & Co.) assigned for plaintiff.

Graham Fuller, Crown Counsel, for defendant.

Herman Poon (Vincent Lo & Co.) assigned for 3rd party.