Wong Suet Ying and Another v. Chan Chui King and Another

HCA000502/1981

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

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Coram: Macdougall, J.

Date: 17 October 1983

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JUDGMENT

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1. This is an action for damages arising out of a traffic accident that occurred on 31st July 1978. The plaintiffs bring their action under the provisions of the Law Amendment and Reform (Consolidation) Ordinance and the Fatal Accidents Ordinance.

2. It is common ground that the deceased, a bulldozer driver, met his death as the result of a collision that occurred at about 11.45 p.m. on a straight and level stretch of Castle Peak Road a the 26 milestone some short distance to the east of Yuen Long between a private car driven by him towards Yuen-Long and a bus travelling in the opposite direction and driven by the 2nd defendant as agent or servant for the 1st defendant.

3. It is plain that the collision must have occurred as a result of inattentiveness or miscalculation on the part of one or both of the drivers.

4. The plaintiffs contend that the accident was caused solely by the negligence of the 2nd defendant in swerving the bus over the centre dividing line of the two lane road in order to avoid some potholes. The defendants contend that the deceased while under the influence of alcohol had approached at a high speed, had crossed the dividing line and collided with the bus which was travelling on its correct side of the road.

5. Both sides called two witnesses to testify as to the circumstances of the accident. The plaintiffs' witnesses had been passengers in the private car. The remaining passenger had not survived. The defence witnesses were the 2nd defendant and one of his two passengers.

6. The first of the plaintiffs two witnesses, Mr. Cheung Kwa-fun, testified that he had been sitting in the front seat next to the deceased and had been aware that a vehicle had been approaching from the opposite direction. According to him the private car had at all times been travelling on the correct side of the road at between 30 and 40 miles an hour and that the oncoming vehicle was in the offside lane. Suddenly he felt the impact of a collision and momentarily lost consciousness. He conceded however that immediately prior to the accident he had not been paying attention to the bus and could not recall where he had been looking. In re-examination he said that when he had given evidence in proceedings before a magistrate in December 1978 concerning a prosecution arising out of the accident he had told the truth and had testified that the bus had "pulled out".

7. The plaintiffs' second witness to the accident was Mr. To Mun-tong who had been seated in the rear seat of the private car directly behind Mr. Cheung. He testified that immediately before the collision while the private car had been travelling at a speed of a little in excess of 40 miles an hour he suddenly noticed a vehicle approaching from the opposite direction with its headlamp on the wrong side of the road, and that later when the two vehicles had almost come into contact with each other he heard a cry from the deceased followed by the sound of impact.

8. In cross examination it became clear that due to his height and his sitting position the witness would not have been able to see that strip of the centre dividing line fifty yards immediately in front of the private car. He claimed however that beyond that distance he could see the line for some 250 to 350 yards. Later he conceded that he would have only been able to see 50 yards ahead of the car because that was the length of road illuminated by the headlight beam from the private car. When confronted with the fact that on the evidence he had given it would have been impossible for him to determine whether it had been the bus or the private car that had crossed over the centre dividing line, he claimed that the bus had swerved into the car because he had observed that the headlight beam from the bus had shone obliquely at the car.

9. The second defendant testified that he had just deposited a bus load of factory workers in Yuen Long and had been travelling at a little more than 20 miles per hour in the correct lane along the Castle Peak Road near the 26 mile post with two remaining workers on board his bus when he observed a vehicle approaching "very quickly" from the opposite direction with only one headlight burning. When the vehicle had almost reached the bus he noticed that it was astride the centre dividing line. Due to the narrowness of the road and insufficiency of time the 2nd defendant had been unable to take evasive action and the private car collided with the front offside corner of the bus causing the second defendant's steering wheel to jerk. This in turn caused the bus to pull to the right and over the centre of the road. The second defendant instinctively pulled the steering wheel to correct the direction of the bus, applied his brakes and came to a halt.

10. It is clear from rough sketch and a scale plan later prepared from the sketch by a police officer who attended the scene immediately after the accident that the bus had come to rest a few inches over the centre dividing line and 27.8 metres (91.2 feet) from glass fragments found on the road and marking the point of impact.

11. The table of braking distances in the Highway code discloses that assuming a good driver, a private car or small van in perfect condition, broad daylight and a good dry road, the overall stopping distance from a speed of 20 miles per hour would be 40 feet. For vehicles other than private cars or small vans the overall stopping distance may be double this figure. Since the vehicle driven by the 2nd defendant was a large bus and since it was being brought to a halt after, rather than in anticipation of an accident, I am satisfied that there is ample independent confirmation of the 2nd defendant's testimony that he had been travelling at a little over 20 miles per hour at the relevant time.

12. The 2nd defendant categorically denied that prior to impact he had pulled over to the centre of the road to avoid some potholes, one of which was 4 to 5 inches deep. He claimed that he habitually travelled over that stretch of road several times daily and was thus well aware of the existence of the potholes, and that since the bus wheels were in excess of three feet in diameter and were eight inches in width the potholes did not present such a problem to him as to cause him to cross over the centre of the road in order to avoid them. In this connexion it seems to me from an examination of the photographs that if a driver wished to avoid the potholes he could do so with little difficulty without bringing his vehicle over the centre of the road.

13. The second defence witness as to the collision was Madam Cheng Wai-Shun. She testified that she had been seated in the bus immediately behind the second defendant and had been looking at the road ahead because the place at where she intended to alight was close at hand, that prior to the collision the bus had been travelling very slowly in a straight line on the correct side of the road and that the 2nd defendant did not take action to avoid potholes.

14. The witness further testified that she had observed the private car approaching at a very high speed but that due to the suddeness of the collision she had not actually seen it cross over the centre dividing line. She added that at impact the bus jerked and wobbled, that the 2nd defendant brought it to halt and that she then alighted.

15. Both of the plaintiffs' witnesses Mr. Cheung and Mr. To testified that prior to the accident they had met the deceased in a bar in Kam Tin. When Mr. Cheung arrived at the bar shortly after 9 p.m. the deceased was already there drinking beer with a group of people. The witness insisted that throughout the period of two hours that he spent in the car he had not even consumed a whole glass of beer, that he had only seen the deceased drink one glass of beer and that after the witness, the deceased, Mr. To and the deceased passenger had left the bar to return home, the deceased was sober.

16. The witness was cross-examined as to evidence he had given in the proceedings before the magistrate that the deceased had been drinking brandy, that they had gone to three bars in Kam Tin and that when they left Kam Tin after 11 p.m. they had wanted to go to a night club in Yuen Long.

17. Mr. To testified that as the result of an arrangement to drink tea he met the deceased in a bar in Kam Tin shortly after 9 p.m. and that they had merely chatted and drunk tea. He then rather reluctantly added that both he and the deceased had also drunk beer but denied that the deceased showed any signs of drunkeness when they left the bar at around 11.10 or 11.15 p.m.

18. In cross examination the witness denied that he had told the magistrate that they had been drinking brandy although the record of proceedings in the magistrate's court, which both counsel accepted as being accurate, clearly revealed that he had testified that he, the deceased and Mr. Cheung had been drinking brandy in each of the three bars. He also denied that in answer to an allegation in the Magistrate's court that they were all rather drunk he had replied that they were not very drunk.

19. Both of these witnesses were most unsatisfactory and were frequently evasive or untruthful. I am unable to place any reliance on their evidence.

20. On the other hand the 2nd defendant and Madam Cheng both impressed me as being witnesses of truth. I accept their evidence. It was suggested that the 2nd defendant had been untruthful when he claimed that after the collision the rear side headlights of the bus had continued to operate. This was based on the evidence of a motor vehicle examiner who on examining the bus two days after the collision had found that the bulbs in those headlights had burnt out. He was unable to say whether this had happened before or as a consequence of the accident. It does not follow that if the headlights had burnt out as a consequence of the collision, they would have done so at the moment of impact. Moreover I can see no reason why the 2nd defendant should lie about such a matter since his near side headlights were not relevant to the collision. It was also suggested that he had lied when he testified that the offside headlights of the private car had not been operating. According to the motor vehicle accident report its offside high beam, trafficator and side light had all been broken in the collision. Furthermore the police officer who attended the scene immediately after the accident testified that both offside headlights of the private car had been smashed. There is therefore no independent evidence which suggests that the testimony of the 2nd defendant was untruthful or unreliable in this connexion.

21. Apart from my belief in the testimony of the 2nd defendant and Madam Cheng I take the view that the evidence of the motor vehicle examiner that "many panels" along the offside of the bus had been dented or scratched or both dented and scratched did not support the evidence that the bus had swerved into the path of the private car. Had it done so it would have struck the car at an angle. In such circumstances it seems unlikely that many of its side panels would have been damaged.

22. It also seems unlikely that the 2nd defendant would have driven his vehicle over the centre of the road in the face of oncoming traffic in order to avoid potholes. It seems far more likely that the deceased's judgment and concentration had been adversely affected by alcohol that he had consumed during a period in excess of two hours immediately prior to the accident.

23. The fact that 80% of the glass fragments at the scene were found on that side of the road along which the private car should have been travelling does not strike me as being of any significance. The only part of the bus made of glass that had sustained damage was the offside low beam headlight whereas the private car suffered extensive damage to its headlights, windscreen and driver's door window. Since the private car had careered on past the bus after the moment of impact it is not surprising that the bulk of the glass would have been found on that side of the road.

24. I am satisfied that the collision occurred as a result of the deceased having driven his vehicle over the centre dividing line into the path of the bus which at all relevant times prior to impact had been driven safely and without negligence by the 2nd defendant on the correct side of the road. I am also satisfied that in the circumstances in which he found himself the 2nd defendant had no opportunity to take evasive action.

25. The plaintiffs' claim against the defendants' fails. The action is therefore dismissed.

26. However, as there is a possibility that this matter may proceed to a higher court I think it would not be wrong to indicate my views on the issue of damages.

27. I accept the evidence of the deceased's employer that at the date of his death the deceased had been earning wages of $2,300 and average overtime of $400 to $500 a month. I also accept his evidence that in 1979, 1980, 1981, 1982 and 1983 the basic wage for a bulldozer driver was $2900, $3400, $3800, $4300 and $5000 per month respectively, and that since Play or June 1981, because of the effects of the depressed property market, there had been little overtime work available. The average overtime paid to bulldozer drivers since then would have been approximately $200 a month.

28. I accept the widow's evidence that the deceased paid his entire salary to her for the upkeep of the family consisting of two adults and four children aged 6, 4 & 3 years and 6 months respectively. It is clear from the evidence that the deceased retained for his own use whatever overtime he had been paid and that every 3 or 4 months he ran short of money and took back $100 from his wife.

29. In the light of the evidence relating to housekeeping expenses I think it would be reasonable to conclude that one quarter of his salary was expended on his upkeep. I am also of the view that because of the scarcity of overtime work since May or June 1981 the deceased's pocket money would have been seriously reduced and that it would be reasonable to assume, bearing in mind the rise in the cost of living from 1978 to 1983 as reflected in the increase in the basic salary paid to a bulldozer driver over those years, that from mid 1978 the deceased would have deducted an average of $400 from the housekeeping money in order to provide him with sufficient pocket money to spend on the two meals a day he took in restaurants, his clothing and other miscellaneous expenses.

30. The deceased did not have any savings. The parties agree that there would be no award under the Law Amendment Reform (Consolidation) Ordinance, that the multiplier in respect of the widow would be 15 and that those in respect of the children would be 12, 14, 15 & 15 respectively.

31. The multiplicands would be 60% of the deceased's salary for each year from the date of death to the present, reduced however by an average sum of $400 per month from mid 1981.

32. Funeral expenses were agreed as was the sum of $15,000 for loss of expectation of life.

Representation:

Mr. Francis Eddis instructed by Rowdget W. Young & Co. for the Plaintiff.

Mr. Alfred Fung instructed by Chu & Lau for the 1st & 2nd Defendants.