Lee Lan and Another v. Gore Sherpa

HCA001896/1973

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

ACTION NO. 1896 OF 1973

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

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

Coram: LI, J.

Date of Judgment: 16th May, 1973 at 10.15 a.m.

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

JUDGMENT

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

1. This is an action for damages as a result of a fatal accident which occurred on the 6th of September, 1971 in Tai Po Road near the 16½ mile post, New Territories. At the commencement of the proceedings counsel for the defendant informed me that the defendant now admits that the plaintiffs - Lee Lan and Cheung Mou Ming - are suing in their capacity as administrators of the estate of the deceased, Tong Fong, in that accident.

2. It is not in dispute that the accident did occur at the material time - about shortly after 7 p.m. on that day. From the evidence, the spot in which the accident took place was a straight stretch of the road without any speed limit for traffic. The road was not a wide one - only a total width of 20 feet, 10 inches for a two-way traffic. Thus each side of the road is about 10 feet, 5 inches wide. This is shown in the sketch produced by Police Constable 6674, the plaintiff witness - exhibit C. The hazard in that road was further increased because on the side of the road where the accident happened was a line of four trees, two of which protruded down from the pavement covering part of the road beside the kerb.

3. The ground of the plaintiff's action is one of negligence. The particulars of which the plaintiff alleged that the defendant was driving at an excessive speed, failing to give a proper look-out, failing to give warning of the approaching vehicle, and lastly, failure to exercise proper control of the vehicle so as to avoid the accident. The defendant alleges that the plaintiff failed to pay sufficient attention to the traffic on the road, dashed across the road without warning and/or attempted to cross the road while it was unsafe to do so. Primary, therefore, the issue is one of negligence which the defendant denies.

4. The plaintiff called three witness of whom only one is an eyewitness to the accident. Unfortunately, his evidence is not altogether so helpful because he did not see a lot. According to this witness, the deceased worked in his factory as a casual labourer. At the material time, the deceased had just finished work and was about to go home. In order to do so, he walked from the wood factory owned by the witness - Tang Hong - on to the pavement and stepped on to the road. At that time, the witness was talking to a friend. He said that he saw the deceased looking to the direction of Sheung Shui, which was a direction away from the on-coming traffic. He did not see whether the deceased looked towards the direction of the on-coming traffic because he - Tang Hong, the witness - was talking to his friend. He also saw the deceased taking one step on to the road. The next thing he heard was a bang, and he saw a vehicle further away down towards the Sheung Shui direction and the deceased was lying about one foot from the kerb sustaining injuries. So he helped the deceased on to the pavement until the ambulance arrived.

5. A police officer then arrived at the scene and drew a sketch showing the various positions of the blood stained patches on the road and the position of the defendant's vehicle parked along the road some 264 feet away from the blood stains. He said he was told by the defendant that after the accident the defendant had moved his vehicle so as to allow the traffic behind him to drive past the vehicle. Such was the evidence on the part of the plaintiff concerning the accident or how it occurred.

6. The defence evidence is that the defendant, at the material time, was travelling at a speed of about 30 miles an hour. They came to this straight stretch of the road and suddenly he saw a white object in front of his car about 2 yards away. He at once took avoiding action and swerved his vehicle to the right. But from the opposite direction there was a bus coming about 5 to 6 yards away from him. He had quickly to swerve back to the left. When he did so, he heard a noise that show that there was some impact with some object. He did not see what he hit but he drove on a little further and stopped his car when the Sergeant told him to do so. There was traffic behind him and he had to drive further away to allow the traffic behind to pass. Hence he moved his vehicle to the other position. He also called the Sergeant whom he gave a lift back to camp. The Sergeant was a passenger in the front seat. His evidence was that up to the time when he heard the noise of impact, he saw nothing. He did not feel there was any braking motion in the vehicle and he did not feel that there was any swerve of the car. I asked him whether there was any swerve at all and he said there was only a gentle, slight swerve. He said that there was on-coming traffic in the form of a single-decker bus on the opposite side of the road.

7. Such is the evidence as far as the accident is concerned. Sergeant CHIDLOW - who in the army is a vehicle inspector - is called. He said that immediately after the accident he inspected the Land Rover involved. He found that there was only a scratch of paint work on the front left wing of the vehicle. He said that normally the wing of the vehicle is of lighter material. Had the force of impact been great he would have expected far more severe damage. But there was just a scratch of the paint work. The plaintiff's witness, the police constable, said that there was a slight dent on the front left wing of the Land Rover. I do not find there is such great conflict between the Sergeant's evidence in this respect and that of the police constable.

8. Looking at the evidence then as a whole, I must find that the plaintiff has failed to establish a case of negligence for the following reasons: There is evidence of the plaintiff's witness that he looked merely to the Sheung Shui area. That is not looking towards the direction of the on-coming traffic. I have no evidence that he looked anywhere towards the direction of the on-coming traffic. The next evidence I have was that he took a step on to the road. But the witness, Tang Hong said that he did not notice what happened afterwards until he heard a bang. When he was cross-examined, Tang Hong admitted that there was traffic on the road although it was slight. That tends to corroborate the defendant's evidence that there was traffic on the road.

9. The defendant's evidence might have certain contradictions. But I do not find him deliberately lying though there may well be a misjudgment of distance. I cannot imagine that the deceased - just before the accident - was merely two yards away from his evidence. Had it been so, obviously he would have no opportunity of avoiding him whatever action he took unless he was prepared to go well over to the other side of the road. Nor do I accept that the on-coming bus was only five or six yards away from the land rover or that he had to do some very violent swerving. That is neither here nor there. It may be completely due to a misjudgment of distance. I find, as a fact, that the deceased must have stepped down to the road. He was certainly not dashing across but just walking at his normal pace without looking to the direction of the on-coming traffic. It must be some distance away from the defendant's vehicle. It is only a matter of calculation and very simple arithmetic to find out the distance covered and a short lapse of time. At 30 miles per hour, one works out that a vehicle would have covered something like 45 feet in one second. So, even if the deceased were something like 50 or 60 feet away from the defendant, he would have some difficulty of avoiding him. It is no use to speculate as to how the death or the injuries which result in death was caused to the deceased. It is obvious from the damage to the vehicle and from the position of the deceased that there was merely a glancing blow. The deceased was in a position of only one foot away from the kerb. Having regard to the speed of the Land Rover at the time and the impact, he would have been thrown to the pavement rather than on the road had the deceased been only one step from the kerb at the time of impact. I also find that the deceased, when hit, was more than one step away from the kerb. Had he taken only one step from the kerb, he would have been protected by the trees. The tree trunks were protruding on to the road. He must have been a bit farther out. Bearing in mind that the defendant's side of the road was only 10 feet, 4 inches or 5 inches wide and his vehicle would be something between 5 or 6 feet wide, it gave him very very little room to manoevre at that distance. I find that the defendant must have swerved slightly his vehicle, very gently, as the sergeant said, but no violent swerving. But he did not swerve sufficiently to avoid the deceased. He was not in a position to do so without having to court another disaster of having a collision with the on-coming traffic in the opposite direction. It was in that line of thoughts that I feel that the defendant would not be in a position to avoid the accident anyway having regard to the circumstances.

10. The particulars of negligence alleged by the plaintiff is that (1) of failing to keep a proper look-out. Having regard to the conditions of the road, having regard to the terrain and the trees, I find that the defendant on that road would not be able to see any one walking along the pavement because such person would be hidden by the tree trunks. When the pedestrian suddenly emerged from behind a tree, it took a split second to take one or two steps. If he took two steps from the trees, he would be practically already three or four feet away from the kerb. It would make it very, very difficult for any vehicle to avoid him unless that vehicle is prepared to travel to the other side of the road.

11. The second particulars of negligence was that the vehicle was driving at an excessive speed. There is evidence that there was no traffic ahead of the Land Rover driven by the defendant. It was a road in which no speed limit had been imposed. That the road was clear. I do not find that the plaintiff made up a case of the defendant driving at an excessive speed. Nor has the plaintiff made out a case that the defendant failed to warn people of the approaching of his vehicle because there was nothing ahead of the defendant at that time. And finally, it is said that he failed to control his vehicle properly so as to be able to avoid the accident. In this respect, I find that when the deceased suddenly emerged from the pavement behind the trees, the defendant, no matter what measure he took to avoid it at that speed and in that distance the defendant would not be able to avoid the accident. It is true that the last opportunity rule is now substituted by the principle of contributory negligence and counsel for the plaintiff strongly urged that even if the plaintiff had been negligent but if there is some evidence that the defendant could have avoided the eventual fatal accident, the defendant must be liable to a certain degree. But in this case, I find it difficult to attach any blame on the defendant having regard to the evidence as such, that I have already found as a fact that the plaintiff, without having a proper look-out, stepped on - although at a normal pace - to the road from behind the trees to the on-coming traffic. At that time, the road condition justified the defendant in driving at that speed. It is a most unfortunate accident. Nonetheless, I cannot see how the defendant could have avoided it. For this reason I must dismiss the plaintiff's action with costs.

12. But there is this question of quantum of damages which will now be completely academic. Had I been wrong and it is found that the defendant is in any way liable, I would have assessed quantum of damage to a sum of money which would work out as follows: the evidence of the deceased earnings had not been disputed and the deceased has four children and a widow. There is evidence that the deceased earned as a casual labourer about $35 a day out of which he contributed something like $300 to $400 per month to the support of his family and he was the sole bread-winner of them. He was at the age of 44 and normally he also provided entertainment for the festive occasions and he would give the wife a little bit more money. There is evidence that the $300 to $400 included the food and lodging for the deceased himself so a deduction must be made. Taking all into consideration, I would say that his monthly contribution to the family, his financial worth to his family was roughly $300 per month. And at the age of 44, he still had some working life left to him and I would be inclined to give a multiple of 14 and a subsequent sum would be calculated accordingly. But instead of working it out in dollars and cents in an academic fashion, I would say instead of giving him ... since the award would be in a lump sum, then instead of giving a multiple of 14 I give a multiple of 12 and for loss of expectation of life would be the sum of $8,000 - that would be taken out of the damages of the lump sum which, in that event, the sum would be exactly the same, and the funeral expenses of $1,300, having not been contested, that would also be included in the damages. But as I said, this is an academic exercise of calculation and it is a very unfortunate accident, however reluctant I may be, I must dismiss the plaintiff's claim with costs.

Representation:

R. Tang (Kwong, Lam and Chan) for Plaintiff.

Miss Chua (Hastings and Co.) for Defendant.