Fong Chu v. The Kowloon Motor Bus Co (1933) Ltd and Another

HCA000877/1971

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

ACTION NO. 877 OF 1971.

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Coram: Trainor, J. in Court.

Date of Judgment: 9 March 1973

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JUDGMENT

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1. On the 25th April, 1970 at about 2.30 p.m. FONG Kwok-wing, a boy then aged about 15 years, was crossing the Choi Hung Road from north to south when he was involved in a collision with a bus. The bus was driven by Lai Chack Cheung, the second defendant and owned by the Kowloon Motor Bus Co. (1933) Ltd., the first defendant. As a result of injuries received in the collision the boy died that day. Letters of administration to the estate of the deceased were issued forth of the Supreme Court to Fong Chu, the father of the deceased, and he instituted proceedings on behalf of the deceased's estate pursuant to the Law Reform (Miscellaneous Provisions) Ordinance Cap. 271, and on behalf of himself (aged 53), his wife, the deceased's mother, (aged 51) and three sisters of the deceased aged 14 and 11 and 9 years respectively pursuant to the Fatal Accidents Ordinance. The basis of the claim was the negligence of the second defendant in the driving of the bus particulars whereof are set out in the Statement of Claim as :

2. The last particular of negligence was abandoned at the hearing.

3. Unfortunately the Court is without the assistance of an eye witness. The nearest thing to one was a police constable, but he never saw the deceased until immediately after the collision when he saw him lying bleeding, more or less under the bus near the off rear wheel. This police constable was called as a witness by the plaintiff and it is from his evidence, the evidence of another police constable who made a sketch, a very rough sketch indeed, and took photographs of the scene and the defendant that a picture of the tragedy emerges.

4. The uncontested facts of the case are as follows : The scene of the accident is at a pedestrian crossing marked by studs on the Choi Hung Road. The road is divided into two parts for traffic travelling from East to West and vice versa with a division in the centre. The portion of the road with which this case is primarily concerned is that part which carries the traffic moving from East to West. It is capable of carrying three lanes of traffic. A photograph of the scene which was produced shows that there are traffic lights at or near the pedestrian crossing and the Police Constable who was present at the time of accident confirmed they were operating. At this point there is a turning off to the north, to Shatin Pass Road, and there is an arrow on the centre and outer, or northern, lane directing traffic in that direction. Thus a vehicle continuing to travel from east to west would continue in the inner lane and those intending to turn to the North would travel in the other two lanes to its right. The bus driven by the second defendant on this occasion was travelling from east to west.

5. The evidence of Police Constable Ho Kwai Yin was that he was on duty standing near the junction of Choi Hung and Shatin Pass Roads facing south-west. There was a considerable amount of traffic at the time. The lights were showing green and traffic was moving in both directions with the exception of some vehicles facing west in the two lanes for traffic intending to turn to the north. They were stationery waiting for a break in the west to east flow to permit them so to do. The constable did not hear anything, but he noticed that a bus had stopped despite the green light and he went to investigate. There, he found the deceased lying under the bus in front of the rear offside wheel. His head was near the wheel and his feet were pointing, as I understood the evidence, towards the front of the bus but somewhat obliquely.

6. The sketch plan that was put in as indicating the scene and showing where the bus had come to a standstill was agreed by both parties. This plan shows that the pedestrian crossing is 20' 1" wide and that when the bus came to rest it had passed over the crossing and stopped with the back of it, on the near side, 5" beyond the crossing, and the off side 4". The near front wheel was 2' 6" from the kerb and the near rear wheel 1' 4".

7. The defendant told the Court that he drives this route several times a day. He said that on the date in question he pulled out from a bus stop which is about three bus lengths from the traffic lights and followed in the innermost lane in line astern of a light lorry and a private car. He said the traffic lights were red and he and the other vehicles stopped. When the lights turned green, the witness said, the two vehicles in line ahead moved on and he followed, travelling at about 4 to 5 miles per hour; the vehicles in the lanes to his right had stopped to permit the west to east traffic clear and permit them to turn right, or north, into Shatin Pass Road. He said that when the front of his bus had crossed the farther line of studs he felt he had collided with something, adding that the person must have run out from between the cars to his right. The witness said he stopped the bus immediately in the place it was when the sketch was made and a photograph that was exhibited was taken. He said that just before the impact he had not seen the person; he ran from the cars on his right.

8. In cross-examination the witness said he heard the bump as well as feeling it, at which time his rear wheels were on the second line of studs. He said he saw a figure but he was not looking behind; he was looking ahead.

9. The evidence of the defendant, so far as it concerned his speed and the traffic at the time of the accident, was corroborated by the police constable who was near the junction. He said his attention was attracted by the fact that the traffic that was moving from East to West had stopped despite the light showing green in its favour. He told me that the traffic had just shortly commenced to move and was travelling at a few miles per hour. He also confirmed that in the centre and outer lanes, that is to the right of the bus, there were other vehicles waiting for the west to east traffic to cease before proceeding into Shatin Pass Road.

10. The evidence of the defendant as to where he pulled up after accident is fully corroborated by the evidence furnished by the sketch plan. The plan and one of the photographs show that the bus pulled up with its rear inches past the second line of studs with its rear wheels in line with the traffic lights which are situated in the middle of the road immediately - maybe a matter of a foot or so - to the west of the crossing.

11. From these facts the Court is asked to infer that due to negligence the bus driver was responsible, or partly responsible for the accident which caused this boy's death. This means that the Court is asked to infer that the bus driver should have seen the deceased in time and pulled up before the collision or should have anticipated, if the deceased did not cross in the frontal view of the driver, that he or someone might emerge from between the cars to his right and so be in a position to stop before a collision took place.

12. The best way to arrive at a conclusion in this case is, in my opinion, to endeavour to reconstruct what took place from the established facts. The picture thus presented as I see is as follows: The bus moved out from the bus stop which is about 60 feet from the traffic lights and stopped behind two vehicles which were line ahead and held up by the red light. They were travelling in the left hand lane and there were vehicles stopped in the two lanes to their right. When the lights changed to green the vehicles in the inner lane, including the bus, moved off, passing the pedestrian crossing very slowly; the vehicles in the outer lanes remaining stationary. The bus was travelling in a direction very slightly away from the footpath. (This is suggested by the position of the wheels relative to the kerb when the bus came to rest after the accident.) The two vehicles ahead had passed over the crossing, and when the bus was partly over the second line of studs (driver says his rear wheels were on them) he had a feeling there had been an accident because of a bump he felt and heard. He said that he only saw "a figure", I understood him to mean that it was a glimpse, and that the feeling and hearing the bump and seeing the figure were almost simultaneous. He said he stopped immediately. He said he did not know what part of the bus was struck as he was looking ahead and not looking towards the back of the bus.

13. The driver struck me as being an intelligent and reliable witness and trying to convey to the best of his ability what occurred. If what he said is correct then the deceased must have appeared at what must have been near the limit of the driver's lateral vision. As I see it this would be somewhere about in line with the door of the driver's cab. Allowing for the forward movement of the bus then the deceased must have collided with the bus just behind the door. Some indication of what the deceased did may be derived from the fact that the injuries to his body were on his left side; left hip, left chest and there was a fracture of the left clavicle. This might suggest that the deceased ran out, saw the bus and turned to his right bringing him into the lateral vision of the driver just before the impact and was knocked down. There was, inevitably, a re-action time on the part of the driver and as a result the body of the bus moving somewhat to the right, passed over the deceased and the bus came to rest with its body covering the deceased but before the rear wheel reached the now prostrate youth. That no wheel passed over the deceased is conceded by Counsel for the plaintiff and, indeed, I think this must be so despite the fact that "the skull was deformed, compressed bilaterally with multiple fractures of the vault."

14. I cannot see how the driver of this bus could be held to be negligent as alleged or at all. A crossing marked by studs gives no priority to a pedestrian save in that "Common sense indicates that pedestrians are likely to cross the road at such points, consequently drivers should exercise particular care so that they do not through excessive speed or other misuse of the vehicle which they control ..... endanger the lives or physical safety of others". Chiang Shu Cheong v. R.⁽¹⁾ But are they likely to cross while a stream of traffic is flowing past? In the instant case the crossing was controlled by traffic lights which were in favour of traffic travelling in the same direction as the bus and in the opposite direction. At the time of the impact vehicles immediately ahead of the bus had cleared the crossing and, obviously, much traffic was passing in the opposite direction. Ought the driver of the bus have anticipated that someone might rush out from the waiting cars on his right hand side and maintained a lateral or rear-ward look-out to avoid him. What might have been the position if he were the first vehicle to move after the change of lights, I am not prepared to say, but I do not consider there was any such obligation on him to do so here. Indeed, even if he had been keeping such a look-out and had seen the deceased a tiny fraction sooner-and that is all that would have been permitted to him - I do not think this accident could have been avoided. The bus I am satisfied was being driven at a speed and in a manner which was entirely reasonable and proper in the circumstances. With the time at the disposal of the bus driver, even at the slow speed he was travelling he could not have prevented what happened. Indeed, it seems to me that the deceased must have dashed out and would probably have struck the bus even if it were stopped. Unlike in those cases cited by Counsel for the plaintiff, I can find nothing from which I can infer any negligence on the part of the second defendant and I dismiss the case.

15. What would the damages be in the respective claims had I held the second defendant to be fully responsible for this accident?

16. The deceased was aged 15 and at the time of his death he worked for his father. He did not contribute money as such but did contribute very considerable services. Of the family of father, mother, three daughters and the deceased only the father and the deceased worked. The father was a vegetable peddler. He also had a shop or store very close to his home which, he said, was managed solely by the deceased. The father, the plaintiff, said that he earned between $900 and $1,000 per month from vegetables and the profits from the store were about $1,500. He said he paid the deceased $200 a month. The deceased did not make any contribution to the family budget out of this $200.

17. The plaintiff said that since shortly after his son's death he has had to give up selling vegetables and take over the running of the store. He said this was due to the fact that he could not get anyone to manage the store for less than $700 a month and food in addition. He said that he asked a friend of his to manage the business who was prepared to do so but those were his terms; but even then he complained of the hours he would have to work. The plaintiff said the deceased worked from 7 a.m. to 10 or 11 p.m.

18. I find that the plaintiff has established a loss to the dependants, both immediate and future. There was also a loss to the estate of the deceased. The problem is to assess the loss. It is quite clear that the loss to the dependants is the services which are no longer available to the family as represented by what the net cost of replacing them would be. I am not satisfied that it would cost the plaintiff $700 a month plus food to replace the deceased. But even then the man who was asked to take the position would be expected to work from 7 a.m. to 10 or 11 p.m. I am not satisfied that the deceased worked these hours and therefore a replacement working the hours demanded by the plaintiff would in fact contribute more than the deceased did. I say this because in cross-examination the plaintiff said his wife used to go occasionally to the store. I cannot help thinking that if the plaintiff returned home about 7 p.m., as he said, he would relieve his son, if not take over from him altogether. I would consider $700 a month as a reasonable amount for the plaintiff to pay for a replacement for the deceased without any obligation to provide food. I would consider $600 a month as a fair estimate of the value the deceased's services. From this must be deducted the sum of $200 he received by way of salary and $100 per month to cover the deceased's board and lodging. This leaves $300 per month as the net value of the deceased's contribution.

19. The next problem is to arrive at a satisfactory multiplier. I have no evidence whatever as to what the future plans of the deceased were; probably, at his age he had not formulated any. It seems not unlikely that he would have continued in the family business for the rest of his life and in due course have got married. It seems not unlikely that his salary would have been increased as he got older and therefore the value of his contribution to the dependants less. Nevertheless, his contribution, in the circumstances most unfavourable to the plaintiff i.e. increased salary, getting married or leaving the family business and failing to make any contribution to the home, must still be considered to be probable for a considerable number of years. At the worst if he were to get a position elsewhere, get married and cease to contribute to the home, or simply cease to contribute I think that position would not arise for 10 or 12 years. On the other hand if he were to remain in the family business I think the parents might well anticipate support from him for the rest of their lives.

20. Balancing all the factors including the age of the dependants and the fact that they would receive a lump sum immediately I find that a multiplier of 14 would meet the case. Thus I would assess damages under the Fatal Accidents Ordinance at $50,400.

21. So far as the claim made pursuant to the Law Reform (Miscellaneous Provisions) Ordinance, or to put it more correctly the Law Amendment and Reform (Consolidation) Ordinance is concerned, as the deceased must have died immediately there is no question of damages for pain and suffering. Neither may damages be awarded for funeral expenses. These were claimed but no evidence of them, whatsoever, was adduced. I would assess the loss to the estate of the deceased under this Ordinance at $7,000. Had I found for the plaintiff on his claim there would have been an award of $7,000 to the benefit of the deceased's estate and $43,400 to the dependants.

22. The figures I have arrived at have not taken into account the question of any negligence on the part of the deceased, as I have held that the defendant was in no way responsible for this unfortunate accident. In the circumstances I do not see how I could proceed to make any apportionment.

23. Plaintiff's claim is dismissed with costs.

Representation:

Mr. Bokhary (John Ip & Co.) for Plaintiff.

Mr. R. Mille-Owens (J.S. & M.) for Defendant.

(1) H.K. Law Report (1962) p.595