Madam Wong Kam v. Lucy Quan Set and Others

HCA002717/1978

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Coram: Zimmern, J.

Date of Judgment: 21 November 1979

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JUDGMENT

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1. At about noon on 31st January, 1976, the 2nd day of Chinese New Year, the 4th Defendant herein was driving a goods vehicle AS 2449 owned by the 3rd Defendant from Tsuen Wan to Cheung Sha Wan Abattoir when over the Kwai Chung flyover his vehicle broke down. He then manually moved it to the kerb of the inner lane. He went for help to remove the vehicle but according to him in spite of his efforts he failed as it was a holiday. The flyover is a major carriageway with three lanes of traffic each to and fro.

2. At about 2.30 the following morning the 2nd Defendant was driving private car AK 7227 from Kam Tin towards Kowloon. He had with him two young ladies sitting on the near side fore and aft and another man sitting behind him. When on the same flyover on the middle lane he found himself behind a public light bus belching black smoke, whereupon he veered left onto the inner lane intending to overtake the public light bus and smashed into the off rear of the parked goods vehicle. The 2nd Defendant did not give evidence and the above emerged from his statement to the police.

3. The two young ladies were killed and the 2nd Defendant pleaded guilty to a charge of dangerous driving causing death. One of the victims is the daughter of the Plaintiff who brings this action against all three defendants under Chapters 22 and 23. On the 28th March 1979 the Plaintiff signed interlocutory judgment against the 2nd Defendant in default of defence with damages to be assessed and it now falls on me to assess damages and adjudicate on the liability of the 3rd and 4th Defendants and if needs be to apportion.

4. I deal first with the liability issue. The Plaintiff by her claim alleges that the 4th Defendant was negligent for

in the alternative the said collision was caused by a nuisance on the highway created by the 4th Defendant by leaving the said goods vehicle unlighted in Kwai Chung Road so that the said goods vehicle became an obstruction in the said road and thereby rendered the said road dangerous to other persons lawfully using the same.

5. A police officer produced a sketch plan of part of the carriageway and it shows each of the three lanes to be 3.3 metres wide separated from the opposite carriageway by an island where the street lights are affixed. He said the carriageway was brightly lit. On the morning in question, the 2nd Defendant told the police the weather was fine, road surface dry and vehicles were few. The rear light of the goods vehicle was not switched on but it had two rear light reflectors.

6. On the question of negligence the law imposes a duty on a person leaving a vehicle on a highway to leave it in such a way and place that it will not endanger other users of the highway which a reasonable man can foresee. I would have been in considerable doubt on this issue on the facts of this case but for the resolution of the 4th Defendant under cross-examination to admit that he thought it dangerous to leave the vehicle there and that the police would tow it away. Accordingly I find the 4th Defendant guilty of negligence in respect of which damages to the Plaintiff ensued.

7. Having made that finding it would not have been necessary to deal with the claim for the nuisance as alleged, but as the parking was in fact an obstruction creating a public nuisance and there is an admission of the creation of a dangerous situation it naturally follows that the Plaintiff also succeeds in this allegation. Counsel for the 3rd and 4th Defendants has asked me to apportion the contribution between his clients and the 2nd Defendant. The driving of the 2nd Defendant on his own statement to the police was dangerous to the extreme. Following a public light bus on the middle lane he could not have seen whether the inner lane was clear, yet he veered on to that lane to overtake the public light bus. If he had enlisted the aid of the passenger next to him she would have seen or ought to have seen the goods vehicle on that well lit flyover but he did not. In my view and so I hold the 2nd Defendant's conduct was by and large the causa causans and the 4th Defendant's parking was merely the causa sine qua non and I apportion contribution in the proportion of 85% and 15% respectively.

8. The deceased at the time of her death was 24 years of age and employed as a waitress in the Rose Restaurant at Kam Tin. Her basic pay was $350 per month with quarters and tips averaged about $800 giving her a gross income of $1,100 to $1,200.

9. Her mother the Plaintiff told the Court though the deceased visited home infrequently she was the main support of the family and contributed $800 monthly. Those dependent on the support were the Plaintiff and her husband who has since died and her three children, two sons and a daughter now 24, 18 and 22 years old respectively. The deceased was affianced and but for the tragedy would have married in about six months and she would have carried on with her contribution as her intended was earning $1,800 per month and living with his family or so I am told. It was also said that upon marriage she would have given up her post in New Territories and taken up employment in an urban district. Protestations of the intentions of a deceased is one thing and the realities of life is another. I award a multiplicand of $9,600 with a multiplier of 5 i.e. $48,000 for general damages. There will be $10,000 for loss of expectation of life and agreed special damages in the sum of $1,740 for funeral expenses.

10. There will be judgment with costs for the Plaintiff in the sum of $49,740 to be contributed by the Defendants as apportioned.

Representation:

E.C. Mumford (Director of Legal Aid) for Plaintiff

Herman Poon (Woo, Kwan, Lee & Lo) for 3rd and 4th Defendants