Chim Suk Yin and Another v. Lee Cheuk Yin

HCA002344/1972

IN THE SUPREME COURT OF HONG KONG

(ORIGINAL JURISDICTION)

ACTION NO. 2344 OF 1972

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Coram: Trainor J.

Date of Judgment: 20 September 1973

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JUDGMENT

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1. These proceedings were instituted by the plaintiffs as administrators of the estate of the late CHENG Hop-tin who, it is alleged, was killed by the negligence of the defendant in the care and control of a motor lorry on the 17th July, 1971. The proceedings are brought on behalf of the estate of the deceased, pursuant to the provisions of Law Amendment and Reform (Consolidation) Ordinance (Cap. 23) (not the Fatal Accidents Ordinance as stated in the Statement of Claim) and on behalf of the first-named plaintiff, the widow of the deceased, and five children of the marriage, pursuant to the provisions of the Fatal Accidents Ordinance (Cap. 22).

2. This is one of those unfortunate accidents which occur so often in a busy thoroughfare and yet no one actually sees what happened.

3. The accident took place in Tak Wah Street on the morning of the 17th July 1971. The deceased was a driver of a minibus. According to the evidence of a Mr. Ng, a friend of the deceased and a passenger in the bus who was sitting on the nearside front seat beside the driver at the time of the fatal injury, the deceased drove his bus into this one-way street at about 10.55 a.m. with the intention of parking. He endeavoured to park in a vacant space but found there were some crates in it. He stopped his vehicle in the space, but not properly, and descended from the bus to move the crates. Having done so he was seen by Mr. Ng to pass across the front of the bus from left to right. The witness said that for a moment he lost sight of him and the next thing of which he was aware was the sound of an impact and a shout from the deceased. On turning to his right he saw the deceased beside the cab door holding his head, and blood coming from his mouth. He said that the deceased was at an angle to the bus and facing more to the front than the rear. At the same time, the witness said, he saw a lorry passing. He jumped down from the bus and shouted "Why don't you stop?" to the driver of the lorry which was still in motion. He said the lorry stopped about two parking spaces away; but I do not think the witness intended to suggest that the driver stopped by reason of his shout. The witness said the deceased slumped down beside the door of the minibus and he, the witness, ran and dialled 999. On his return the deceased had been moved.

4. That witness was the nearest to an eye-witness available to the court. Another witness, LEUNG Shek-kwan, said he was the afternoon shift driver of the minibus the deceased had been driving the morning he was killed. He said he saw the bus in the afternoon of the 17th July and found that a strip of chrome on the side of the bus was damaged, the right hand trafficator was also damaged and the mirror which projects from the right hand side of the bus at about driver level was pushed forward. The witness said the bus had not these defects when he finished with it the day before. He said he also saw blood below the cab door and a blood stain about the size of a dollar on the side of the door of the cab. This witness was not cross-examined.

5. The only other witness to give evidence from which any assistance might be derived in trying to ascertain how this accident occurred was a police officer who went to the scene and made a sketch plan in the presence of the defendant. He said that Tak Wah Street is a one-way street and traffic moves from east to west. The width of the road is 24 feet 8 inches but parking by goods vehicles is permitted on the northern side. When the police officer arrived on the scene there were goods vehicles parked on the northern side and other vehicles, including the deceased's bus, parked on the opposite side. Unfortunately the police officer was not aware when he made the plan that the deceased was concerned with the minibus and did not pay much attention to it. He did say, however, that it was parked obliquely to the kerb with the rear nearside closer to the kerb than the front. He said he was not sure where the bus was in relation to the lorry involved, but he marked what he considered to be its approximate position on the plan. This showed the rear of the lorry almost in line with the front of the bus. He said there was no damage to the bus, but added that he did not inspect it. He said that when he arrived on the scene the victim had already been moved to the footpath but he saw a large pool of fresh blood slightly behind the bus, almost in the middle of the road but somewhat to the bus, or southern, side of the centre of the road.

6. It is from the evidence of these three witnesses alone that I have to try to reconstruct what took place that morning, because the driver of the lorry did not give evidence nor were any witnesses called on his behalf.

7. The first difficulty is to ascertain the point of impact. Was it at a position to be concluded from the evidence of Mr. Ng and that of Mr. LEUNG Shek-kwan who saw blood on the ground below the cab door or can a conclusion be reached from the position of the pool of blood as indicated by the police officer who prepared the plan?

8. I am satisfied that the only reliable evidence from which a conclusion can be reached is that of Mr. Ng and Mr. Leung. I do not mean to cast any reflection on the evidence of the police officer; I think a lot of his evidence is very helpful and would, indeed, corroborate the evidence of the other witnesses were it not for the position which he placed the minibus on the plan with relation to the lorry involved. There are two figures "24" shown on the plan. They are numbers of two entrances of the same house or shop, and the officer placed the minibus opposite the more westerly one. Had he placed it opposite the other number 24 that would have shown the pool of blood to have been very close in line with the door of the cab. Moreover, the 10 feet 2 inches shown on the plan as the distance from the pool of blood to the rear of the lorry would corroborate to some extent the evidence of Mr. Ng that the bus travelled about two parking spaces before stopping. I feel that the police officer is slightly in error in placing, from memory after a 2 year lapse, the bus in the position which he showed on the plan.

9. I am satisfied that the impact took place at or very near the door of the minibus cab. I say that for the following reasons: Mr. Ng said he saw the deceased moving across the front of the bus from left to right and then lost sight of him. That was something that was established in cross-examination. A photograph of a bus - not the bus involved, but it was agreed that it was similar in all respect - was produced. That photograph shows that the windscreen of the bus bends at each side towards the rear and meets its support or containing frame at the side of the bus. When Mr. Ng said he "lost sight" of the deceased I understood him to mean that that was the result of an obstruction rather than that the deceased passed out of his range of vision and I think the containing frame was the obstruction.

10. In addition Mr. Ng said that when he heard the sound of the impact and the deceased cry out he turned and saw the deceased at the cab door, his body in contact with it and facing in towards the witness. He was bleeding from the mouth. He said he saw the deceased slump down beside the door. Mr. Leung says that when he went to the bus that evening he saw blood on the ground beside the door, and blood on the door.

11. That evidence I consider established that the deceased had cleared the front of the bus, was out on the road and had moved somewhat down the side of the bus before he was struck. It also establishes that he was close to the bus - in contact with the side.

12. Some evidence in corroboration of the evidence of Mr. Ng that the deceased was facing the bus when struck is to be derived from the post mortem examination record. This shows that nearly all the serious injuries were on the left side including a fracture of the life kide of the pelvis.

13. It has not been challenged that the lorry of the defendant struck the deceased, and no explanation has been forthcoming from the defendant to explain why. It is the case of the plaintiffs that the deceased emerged from the front of the bus in a normal way and reached the door of the cab of the bus and that the defendant because : he was driving too close to the bus; was not keeping any or any proper lookout; and because of his excessive speed having regard to the circumstances prevailing in that street; struck the deceased.

14. From what I have been told and as indicated by the photographs this is a busy street and congested in so far as it is only 24 feet 8 inches wide and vehicles are always parked in a continuous line on both sides. This leaves a very restricted passage for vehicles to pass. More particularly is this the case when a large Bedford lorry such as that driven by the defendant is involved. Any person driving along that road must anticipate the possibility of persons emerging from his left from behind or the front of one of those parked vehicles to enter and drive away. He should be sufficiently wide of them to clear such a person, or be in a position to stop his vehicle instantly should it be necessary. That the defendant did not stop instantly is established by the evidence of Mr. Ng. Moreover, as I am satisfied that the pool of blood that the police officer saw represents where the deceased fell and was the blood seen by Mr. Leung, and that that pool of blood was about 10 feet from the rear of the lorry, there is some corroboration. I am satisfied that from the time the deceased emerged from the front of the bus until he reached the cab door there was a sufficient interval for the defendant to stop his lorry had he been keeping a proper lookout and travelling at a speed which was appropriate to the conditions then prevailing. Alternatively he had ample time to steer away from him.

15. On those grounds alone I would hold the defendant to have been negligent but I am not disposed completely to ignore the evidence given by Mr. Leung of the damage to the bus. Granted that he had not seen it from the evening of the 16th July until the afternoon of the 17th, but I think it too much of a coincidence that damage to the bus that would fit in perfectly with the circumstances of this accident should have been caused by a vehicle other than a lorry. The plaintiffs would ask the court to infer that Mr. Leung's evidence confirms that it was the lorry that caused the damage to the bus that he described. The damage was not challenged in cross-examination and the defendant has not denied that his lorry caused it. Mr. Leung's evidence if accepted would clearly indicate that the defendant was driving far too close to the minibus and would, in fact, have struck the bus irrespective of the presence of the deceased at its side.

16. I am satisfied that it was well possible for the deceased to get into the cab of his bus if traffic was moving properly along that road. I think that unless he saw the lorry was on a collision course he was entitled to emerge and try to enter the cab. There is nothing to suggest, that or that he was in any way negligent and I hold that the defendant by his negligence was entirely responsible for the accident.

17. The question now is what are appropriate damages to award.

18. The deceased, I have been told, had about $1,300 a month net after paying for his food. I was told that he had his breakfast and supper in tea-houses on the days he worked - 26 or 27 days a month. On those days he was off duty his wife used to provide special meals for him out of the $1,000 - 1,200 a month she said he gave her. She said he paid for his clothes out of the money he retained and she paid for her own and the children's clothes and paid for the children's education out of what she received. Having considered the evidence of the first-named plaintiff I consider $900 a month to be a fair net amount at which to assess the family dependcncy.

19. In a recent similar case I considered that in the absence of some unfortunate circumstances such as to incapacitate him, a minibus driver might anticipate continuing in gainful employment, even after his days as a bus driver had finished, until the age of 63. I there considered that a job such as a chauffeur would be possible for him until that age. As against that the vicissitudes of life had to be faced; he might be stricken with failing health or sight for example. On the other hand there has to be taken into consideration the likelihood of an increase in salary; the falling value of money. The effect of the immediate receipt of a lump sum has also to be taken into the reckoning.

20. In the case to which I have referred the minibus driver was 48 years of age. In the instant case the deceased was 42 years of age at the date of his death. In the former case I considered a multiplier of 10 to be about right; having regard to the various imponderables I consider 11 to be right in this case. This gives a sum of $118,800 and that I find to be the amount payable under the Fatal Accidents Ordinance.

21. I take Mr. Ching's point that the sum arrived at with a multiplier of 10 if invested at 8% would produce almost the same income as the deceased provided in his life time and moreover leave the capital untouched, nevertheless having regard to the possibility of an increase in salary and to the rapid increase in the cost of living in the past few months I think the multiplier I have adopted covers the plaintiffe loss and the relevant imponderables. Moreover I do not think 8% would be available to the plaintiffs in the way they would have to invest.

22. To the sum found must be added a further one for funeral expenses. That the plaintiffs are entitled to these was not disputed but the amount of $5,000 claimed was. Mr. Ching has suggested that $3,500 is not an unreasonable amount and with that I agree.

23. So far as the claim made pursuant to the Law Amendment and Reform (Consolidation) Ordinance is concerned: as the deceased died on the morning of the accident and was unconscious practically all the time there was no conscious pain or suffering, and consequently I would assess $7,000 as appropriate compensation. Thus from the sum of $118,800 awarded under the Fatal Accidents Ordinance the sum of $7,000 is to be deducted for the benefit of the deceased's estate to be dealt with as on an intestacy. The plaintiffs are entitled to costs taxed under the Legal Aid Ordinance.

24. As to the distribution of the money I direct that the sum of $3,500 funeral expenses be paid to the first-named plaintiff to reimburse her for what she paid for these.

25. The amount payable under the Fatal Accidents Ordinance I direct to be apportioned as follows :

and the remainder to the first-named plaintiff, the widow of the deceased.

26. I direct that the sums awarded be paid to the Director of Legal Aid.

27. As I am satisfied that the first-named plaintiff has very much at heart the interest of her five children and will apply the sum apportioned to each child to its benefit, I further direct that the balance remaining in the hands of the Director of Legal Aid after provision has been made for all payments due to or payable by him, be paid to the first- named plaintiff.

28. The sum of $40,000 paid into Court on the 8th June, 1973 to be paid out to the Director of Legal Aid.

Representation:

Mr. Robert Tang (R. W. Yong & Co.) for plaintiff

Mr. Charles Ching (Brutton & Stewart) for defendant