Chu Cheung Hing and Another v. Leung Chin Chiu and Another

HCA002049/1978

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

Coram: Garcia, J.

Date of Judgment: 29 March 1979

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JUDGMENT

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1. At about 7:15 a.m. on the 23rd day of April 1977, the deceased Cheng Sou-kam, set out from her home in Hong Kong together with an old acquaintance, Madam Yiu Kam-chuen, for the Fuk Tak Temple in the Cheung Sha Wan District in Kowloon. The temple is situated off Ching Cheung Road in the vicinity of the China Oil Petrol Station. In the centre of the said road, which has a slight incline towards the northern section, a concrete barrier is erected. At a point almost directly opposite some steps leading to the entrance of the temple, is a gap in the barrier which appears to have been made deliberately to allow the use by pedestrians wishing to cross the road from one side to the other.

2. The two women finished worshipping in the temple at about 9:30 a.m. that morning, and they were on their way to take a bus home from the west pavement of the road. They successfully negotiated the south bound carriageway and both of them after reaching the gap in question stopped in order to observe the traffic going along the north bound carriageway, before continuing with the rest of the crossing. From the evidence of the other witnesses for the plaintiffs, there was a certain amount of traffic on the road, but not heavy, and the fact that the two women successfully crossed the south bound carriageway to the gap testify further to this. Whilst the two women were standing at the gap for the above mentioned purpose, the deceased apparently without consulting or waiting for her companion, began to cross to the west pavement alone. She did so in small but hurried paces, and when she was about to reach the said pavement, a public light bus, driven the the 1st Defendant, and travelling along the inner lane, collided with her, as a result of which she sustained fatal injuries and was pronounced dead on arrival at the Princess Margaret Hospital about 10 to 15 minutes later. It is apparent, from an examination of her body after she was taken to the Hospital, that she died almost instantaneously.

3. An account of the events leading up to the accident was given by Madam Yiu in a statement which she made to the police on 27th April 1977 that is, 4 days, after the accident. In the said statement she said:"Before the public light bus knocked down the deceased, it had no signs of being slowed down and braked, and was only accelerating to move forward. After the accident the deceased was trapped under the public light bus which moved forward very far before coming to a stop." In the same statement, she mentioned that there was something wrong with her eyes as she had to look longer than normal to be able to see things clearly. As a consequence of this assertion, she was asked to make a supplementary statement on 9th September 1977. In the latter statement she said when asked about her eyesight that the sight of her right eye was indistinct whereas that of her left eye was normal. She was further asked whether any vehicle travelled past her front from the left hand side before the occurrence of the accident and her reply to this was in the negative. Unfortunately, Madam Yiu died before this case came up for trial.

4. Letters of Administration of the deceased's estate were granted on 9th March 1978 to Chu Cheung Hing, her lawful husband, and to Chu Yin Ming, her second son, the two plaintiffs who bring this action under the Fatal Accidents Ordinance, Cap. 22 for the benefit of the dedeased's dependants, and under the Law Amendment and Reform (Consolidation) Ordinance Cap. 23 for the benefit of the deceased's estate.

5. At the time of the accident, the public light bus was travelling along Ching Cheung Road towards Tsuen Wan with a full complement of 14 passengers. However, after the accident, only one passenger, Chan Shing Hon remained at the scene in order to help the 1st Defendant in telephoning for police assistance, and he has also been asked to give evidence on behalf of the plaintiffs at this trial.

6. Mr. Chan Shing Hon was sitting behind the 1st Defendant during the course of the journey up to the time of the accident. In that position, he was able to look over the 1st Defendant's right shoulder and observe what the situation was on the road and its vicinity ahead of the public light bus. Just before the occurrence of the said accident he saw the deceased come down the footpath leading from the temple, stop at the gap between the central concrete barrier on the road, and from there she was seen to emerge on to the carriageway. His account of the accident is that the 1st Defendant on seeing the deceased cross the road at a distance of about 40 feet away from the public light bus, started to sound his horn and reduce the speed of the bus but those measures did not prevent the bus hitting the deceased. Mr. Chan says he saw the deceased walking across the road, just before the accident, in quick paces similar to running but not fast. Just prior to its being slowed down, the public light bus was driven at a speed of about 40 m.p.h. and although Mr. Chan testifies that there was a sudden reduction in speed, he could not say whether the effect was due to brakes being applied but he is certain that no emergency brakes were applied by the 1st Defendant when he first had sight of the deceased. This testimony is corroborated by the fact that there were no signs on the road way after the accident to indicate that emergency brakes had been applied before or after the deceased was hit.

7. In my view, Mr. Chan Shing Hon is an honest and trustful witness and I am impressed by the ready manner in which he admitted having made an error in his examination-in-chief by stating 100 yards as being the distance between the public light bus and the deceased when the 1st Defendant sounded his horn and reduced speed suddenly, instead of a distance of 40 feet which he had previously mentioned in a statement he made to the police shortly after the accident. The 1st Defendant in his evidence stated that his view of the deceased was obstructed by a tourist bus which was 10 feet ahead of him on his right in the centre lane and that he had not seen the deceased until she had emerged from behind the said tourist bus when his public light bus was about 15 feet away from her. In my view if that were the distance between the public light bus and the deceased, the sounding of the horn would have been utterly futile, as even if he had reduced his speed of 40 m.p.h. by half, he would still not have been able to avoid hitting the deceased even if she had stopped in her tracks immediately upon the horn being sounded.

8. Travelling about 200 feet behind the public light bus, but on the outer lane of the two-lane north bound carriageway, was a private car driven by Mr. Chan Ling Chau. This latter witness is familiar with the road in question, having driven over it many times on his way to work in Tsuen Wan. He also gives an account of the circumstances leading up to the accident and although he confesses that he has a hazy memory of the matter he gave evidence in sufficient detail to establish that he had observed what happened prior to the accident. His evidence is that on the relevant day and time, after he had just negotiated a bend in Ching Cheung Road, he saw two ladies at the gap and one of them, the deceased, ran across the road from the gap, slowly and in small steps. He states further that besides the public light bus in the inner lane ahead of him, there were other vehicles in front of him in the same lane, that is, the outer lane. He had observed an omnibus in the same lane as his but he was unable to see what was ahead of the public light bus as his view of that area was obscured by the said public light bus. His impression of the said omnibus was that it appeared to him to be small in size because it was at a distance away, may be from 100 to 1,000 feet. He gives a vivid description of what happened to the deceased after she was hit by the public light bus, that is, she rolled underneath the public light bus for 1 to 2 seconds, after which she rolled out again. He is certain that the public light bus did not change lanes just before the accident and that from his private car, he saw the public light bus carry straight on along the road immediately after the accident. He states further that he did not see the brake lights of the public light bus come on after the accident. It appears that the brake indicator lights were in good working condition even after the collision. Mr. Chan Ling Chau further mentions that when he saw the two ladies stop at the gap from a distance of 3 to 4 lamp posts away, he reduced the speed of his vehicle, and also at that time there was no obstruction between his vehicle and the ladies nor was there any obstruction between the public light bus and them. Looking at Exhibit P1J, the lamp posts are placed far apart from each other, and even allowing for the 200 feet separation between Mr. Chan's car and the public light bus there is no reasonable explanation as to why the public light bus had maintained its speed of 40 m.p.h. until it was too late or why it had not taken the simple precaution, in a two-lane carriageway, of braking on approaching the said gap since that was where pedestrians desiring to cross the road are wont to emerge from.

9. I am unable to accept the 1st Defendant's assertion that the deceased was only 15 feet away from his public light bus just before the collision - either because he did not see her until that moment or he was not paying sufficient attention to the then road conditions - in view of the evidence of Mr. Chan Shing Hon and to a lesser degree, that of Mr. Chan Ling Chau. The 1st Defendant's assertion that he did brake before the collision finds no corroboration from the physical signs on the road way after the collision nor from his own description of the collision itself. He says that the deceased rolled underneath the public light bus following the collision at which time the wheels were off the ground. There is evidence from Mr. Chan Shing Hon that this is probably what occurred since he felt a jerk after the collision and Mr. Chan Ling Chau says that the deceased rolled underneath the bus for 1 to 2 seconds only. This fact, together with the act of collision itself, in my view would have served to decelerate the speed of the bus. Instead the public light bus went on, after the impact, for a distance of 89.6 metres on almost 300 feet, before it finally came to a stop. The reason advanced by the 1st Defendant for this fact is that at the time of the impact his foot was bumped off the brake pedal by the body of the deceased under the bus. The 1st Defendant has never suggested that he lost control of the bus at that stage and the momentary jerk felt by Mr. Chan Shing Hon would hardly have caused the 1st Defendant to lose control of the brake pedal for such a distance if he had his foot on it before the collision. In my view he never applied his brakes at all whether before or after the collision, and his sounding of the horn on seeing the approach of the deceased was to warn her off, but unfortunately she took no heed and walked on with her head towards the ground. The 1st Defendant was however the prime cause of the accident in driving his public light bus at such a speed as was excessive in the circumstances, and paid insufficient attention to the condition of the road prevailing at that time.

10. Mr. Pirie concedes that there is a certain amount of contributory negligence on the part of the deceased in the causation of the accident. It appears from the photographs exhibited in evidence that the gap between the concrete barriers was made for use by pedestrians in crossing the road at that point but no safe crossing facilities were provided. The pedestrian desirous of crossing the road through the gap had to take a chance everytime he used it since there were no pedestrian crossings, whether controlled or not, for some distance away and I think it is reasonable to assume that a pedestrian would cross the road at the gap rather than walk a long way round to a properly designated pedestrian crossing. There is however evidence to indicate that pedestrians do cross at that spot and the deceased on that day had her head bent downwards whilst crossing the road to the northern pavement and appears to have taken little heed of the traffic proceeding along the north bound carriageway.

11. In my judgment, her share of blame for this accident must be small and I assess it at 20%. Accordingly the 1st Defendant must bear 80% of the liability. In so doing, I would respectfully adopt the words of Lord Reid in Baker v. Willoughby (1969) 3 All England Report page 1530: "A pedestrian has to look to both sides as well as forwards. He is going at perhaps 3 m.p.h. and at that speed he is rarely a danger to anyone else. The motorist has not got to look sideways although he may have to observe over a wide angle ahead; and if he is going at a considerable speed he must not relax his observation, for the consequences may be disastrous. And it sometimes happens, although I do not say in this case, that he sees that the pedestrian is not looking his way and takes a chance that the pedestrian will not stop and that he can safely pass behind him. In my opinion it is quite possible that the motorist may be very much more to blame than the pedestrian.

12. The deceased was aged 50 years at the time of her death, and has left her husband and four children who were dependent on her. Aside from suffering from infrequent bouts of rheumatism which did not seriously affect her work and household duties, she was otherwise a healthy woman before her death. She was employed in a small factory making handbags, sometimes working at home on sewing beads on to handbags. According to her erstwhile employer, she was earning between $500 to $600 per month, but he could not produce any specific records as to how much she was actually paid, both for her work at the factory and at home. In my view he was not altogether telling the truth when he says that the deceased worked the full four weeks in a month in that capacity since from other evidence, she was not capable of doing so whether at the factory or at home in the evenings. The deceased, and this has been emphasized both in the pleadings and from the evidence of her husband and her second son, Chu Yin Ming, had another occupation, that is, that of an itinerant merchant, whatever may be meant by this phrase. However, in practice, she used to buy certain profitable items in Hong Kong which she took with her to Taiwan, where she boarded with her husband's sister, and whilst there disposed of these items at a profit. Her husband states, and this is largely hearsay, with no documents whatsoever to support it, that she was able to earn at least $1,000 per trip. From the Certificate of Identity issued to her on 2nd May 1974, it appears that she made a total of 33 return trips out of Hong Kong. Those trips, from the evidence of her husband, were to Taiwan for the above-mentioned purposes. An examination of that document shows that she made a total of 9 such trips for the period from 14th May 1974 to 23rd December 1974, 16 trips from 3rd February 1975 to 23rd December 1975, 5 trips from 5th January 1976 to 15th December 1976, and 3 trips from 1st January 1977 to 5th February 1977. her journeys to Taiwan therefore decreased very much in frequency in 1976 and 1977, and it is largely a matter of conjecture whether she would have made more such trips if she were alive. Accepting her average earnings per trip to be $1,000, taking into account that the capital employed was between $4,000 to $5,000 per trip, she would have earned a total of $33,000 for the period from 14th May 1974 to 23rd April 1977, a total of 35 months. Her average monthly income for that whole period would be approximately $943 from this occupation. During the times that she was away from Hong Kong, it would be fair to assume that she earned no income from the factory or from doing piece work at home and looking at the Certificate of Identity, most of her trips out of Hong Kong were for an average of 1 week's duration. The total number of days she was away from Hong Kong during the above mentioned period of 35 months was 270 days. Accepting again that her average median income from her employment in the handbag factory to be $550 per month, I arrive at a figure of $410 per month as being her factory income after taking into account her absences from Hong Kong. In the result, her total average income per month prior to her death could be calculated as $1,353. The evidence further indicates that she did not spend much on herself and from the evidence given by Mr. Chu of the average expenditure on food for each member of the family at $250 per month, it is not unreasonable to assume that she spent all her income in supporting the family when she was alive. Besides her income, her eldest son, Chu Ying Mo works as a seaman and from his earnings he contributes a sum of $800 per month towards the family expenditure. The total family income was therefore $1,353 + $800 or $2,153 per month. Aside from the eldest son, all the other children and her husband lived at home and had their meals there. On this basis, I can assess the loss to the family occasioned by the death of the deceased to be $1,353 - $2,153÷6 or $994 per month or $11,928 per annum.

13. The deceased's husband, who is aged 57 years, has not been working in any capacity since 1973, after having operated a vegetable stall in Central Market, and then a garment factory. It appears from his evidence that the noise which was generated in the garment factory caused him to become deaf, although not totally, and this defect is the first reason he ascribes his non-employment since 1973. The second reason he advances is that he was suffering from an enlarged prostate a few months prior to his wife's death and he had to undergo an operation for that problem in June 1977. The operation was apparently not very successful and he now finds himself in another predicament - he suffers from incontinence of the bladder, and this condition prevents him from obtaining employment. Dr. Horsfall, who examined him, states that the latter condition can be corrected either by a further operation which could be carried out in a Government hospital and such an operation would have a 60% chance of success, or by the provision of a bag which could collect his urine while he goes about his normal routine. However because of the uriniferous smell which would adhere to him if the latter treatment were adopted, Mr. Chu would find it difficult to secure employment in food handling, such as he had been used to, or manual work. There is no reason why, if he were so minded, he could not obtain work of a sedentary nature.

14. The second son, Chu Yin Ming, now aged 23, was formerly studying at the Hong Kong Polytechnic through a Government grant and a loan of about $8,800 from the same source which he has to commence repaying by instalments this year. He says that he had planned on going abroad to study for a degree in civil engineering but because of his mother's death, part of the money which was put aside for his passage overseas had to be utilised for her funeral. He has since obtained a higher diploma from the Polytechnic and is now employed as a draughtsman by Binnie and Partners, Civil Engineers, at a salary of $2,000 per month. He is still pursuing further studies part-time and because of this activity a deduction of $350 per month is made from his salary for the time taken off his work hours for that purpose. At present he contributes a sum of $800 per month towards household expenses and in addition pays school fees of $150 per month for his sister, Chu Mei Ling, who is studying at New Method College.

15. The third son, Chu Ying Ching, aged 19 is studying Biology at the University of Hong Kong with a view to qualifying in medicine, but at the time of his mother's death, was studying at King's College, Hong Kong. His education at the University of Hong Kong is also financed by a Hong Kong Government grant and a loan, but to what extent, no evidence has been given. It is likely that his studies will continue for at least another four years.

16. The fifth child, a daughter, Chu Mei Ling, now aged 17 years, is studying at the New Method College and her school fees of $150 per month are paid by her brother, Chu Yin Ming. She has no intentions as to what she will do in future, but if she were to follow her brothers' footsteps, she would require at least another 5 to 6 years to continue her studies before becoming an earning member of the family.

17. The last child, Chu Sik Ling, is also a daughter aged 15 years. She is studying at St. Clare's Girls' College, and here again, if she were minded to follow her brothers' footsteps she would require another 7 to 8 years education before she would become self-supporting.

18. Mr. Chu has placed much emphasis on his children being educated and although this desire is a laudable one, he seems in my view to have made very few contributions towards that aim.

19. Both learned Counsel have given me much assistance in citing various cases of the multiplier to be employed in a case such as this. I have given close consideration to them, but in taking into account the circumstances of the family I have outlined from the evidence, I would employ a multiplier of 7 and the multiplicand of $11,928, making a total of $83,496 to satisfy the claim under the Fatal Accidents Ordinance, Cap. 22 to be scaled down in accordance with the apportionment of the deceased's liability.

20. I have mentioned earlier that the deceased died almost instantaneously and I would therefore award a nominal sum of $50 for pain and suffering. As for the other damages for her expectation of life under the Law Amendment and Reform (Consolidation) Ordinance, Cap. 23, the deceased spent, it appears from the evidence, most of her life working and looking after her family, although it may be said that in the fullness of time, she would have enjoyed the fruits of her labour with all the children becoming self-supporting in 9 to 10 years from the date of her death. In the result I award a sum of $10,000 which together with the $50 awarded, are to be deducted from the award under the Fatal Accidents Ordinance.

21. So far as the special damages claimed are concerned, there is no dispute over the amount of $3,400 paid by the plaintiffs to the Universal Funeral Parlour Co. Ltd., and to the further sum of $338 paid to Chan Chu Chiu, being expenses incurred directly on the funeral of the deceased and these sums are allowed without deduction. Although Counsel for the Defendants does not object to the sum of $450 paid for digging and recovering the grave site, he submits that the payment of $5,000 for the grave site itself was not justified, nor was the payment of $2,500 for the tombstone over the grave. There is also a claim for the sum of $1,800 in respect of prayers, vegetarian food and ancestral tablet oil.

22. It appears that the sum of $5,000 was spent on the purchase of the grave site, and no evidence has been adduced as to whether this expenditure was really necessary, that is, if the grave site were not purchased would the family of the deceased have been able to bury her body there? In the circumstances I would uphold Counsel's objection and disallow the claim for $5,000. The expense incurred in erecting the tombstone over the grave site would appear to me to be excessive and therefore unreasonable, having regard to the circumstances of the surviving members of the deceased's family and the claim for $2,500 is reduced to $1,000.

23. While paying due deference to custom and tradition, I think that the cost of prayers and other expenses connected therewith should be kept to a moderate and reasonable figure, again having regard to the deceased family's circumstances. The sum of $1,800 for these 3 mentioned items appears to be high in the aggregate, and I accordingly reduce these to a total of $1,000.

24. In the result the total amount which is to be awarded under the head of Special Damages is $6,188.

25. Having regard to the assessment I have made of the share of the deceased's contribution to the accident at 20%, the final sums awarded are: 4/5 of $83,496 + 4/5 of $6,188 or $71,747.20.

26. With regard to interest, which is to be awarded in accordance with the principles laid down in Cookson v. Knowles (1977) 2 All England Report page 820, the period between the date of the deceased's death and the date of trial is 1.89 years. This latter figure when multiplied with the multiplicand of $11,928 gives a gross amount of $22,543.92. For the purposes of this award, this latter sum is reduced by 20% or $18,035.13. The interest on this latter amount for 1.89 years at the rate of 4% per annum is $1,363.45.

27. There will therefore be Judgment for the Plaintiffs in the sum of $66,796.80 for general damages under the Fatal Accidents Ordinance and the Law Amendment and Reform (Consolidation) Ordinance, $4,950.40 for special damages, $1,363.45 for interest and costs to be taxed.