Leung Chan Sau Chun v. Chan Wtng Shiu and Another

HCA003299/1983

IN THE HIGH COURT OF JUSTICE

BETWEEN

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Coram: Hon. Mantell J.

Date: 30th September, 1983.

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JUDGMENT

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1. This is a claim brought under the Fatal Accident Ordinance and the Law Amendment and Reform (Consolidation) Ordinance by the administratrix of the estate of Leung Chiu Hung who was involved in a motor accident on 4th June 1982 in which he received injuries from which tragically he later died. Damages have been agreed.subject to liability in the sum of $266,000. That figure, of course, is based upon full liabilitv.

2. The sad story is easily and quickly told. The 2nd defendant was riding a motor-cycle along Kwong Lee Road at about 7:30 in the evening. At a point just beyond the junction of Kwong Lee Road and Ton Kin Street, there were vehicles parked on either side of tine road, and a large vehicle double-parked.That vehicle was on the 2nd defendant's right hand side or off side. The deceased emerged from behind the double-parked vehicle into the view of the 2nd defendant and thecollision occurred, as I find on the evidence before me, somewhere around the middle of Kwong Lee Road. It is quite impossible on the evidence to be precise as to the point of impact but that is where the 2nd defendant's motor-cycle was found by e police officer who arrived shortly after the accident had taken place.

3. The only witness to the accident, apart from the 2nd defendant himself was a companion of the 2nd defendant called Yeung Po choi. There have been put before me two statements made by the 2nd defendant to police officers and a statement by Mr. Yeung. Other than those statements, the only evidence which I have had to consider is that of the police officer who arrived on the scene, took measurements and produced the sketch plan and some photographs which come before me by agreement.

4. The plaintiff's case of necessity had to rest upon admissions, as they are so described, made by the 2nd defendant in his statements to the police and also upon the evidence to be found in the statement of Mr..Yeung Po Choi. Mr. Bharwaney conceded at the outset and, if I may say so, realistically, that there must on any view be a high degree of contributory negligence on the part of the deceased and he also conceded, which is convenient to mention now, that he is unable to pursue the case against the 1st defendant who had formerly been alleged to be the employer of the 2nd defendant. That allegation cannot be sustained and I indicated that in due course, the plaintiff's action against the 1st defendant must be dismissed.

5. According to the 2nd defendant, the deceased came from his right hand side and from behind the vehicle which I have already mentioned as being double-parked. It is true that iii an earlier statement he hadspoken of the deceased coming from his left but I am satisfied that that was an innocent mistake on his part. The 2nd defendant describes in his statement how on first seeing the deceased, he applied his brakes but it is clear from the terms o?his statement that he did not apply his brakes at that stage with the intention of bringing his vehicle to a halt but merely with the intention of slowing it down. He goes on to describe how having done that, the deceased continuing into the road, suddenly stopped and turned, possibly with a view to returning to the side of the read, but, of course, that is something which, must forever remain unknown. At that point, the 2nd defendant says that he applied his brakes again. This time, according to Mr. Yeung who witnessed the accident, there was a sound of screeching and I conclude that at that point, the 2nd defendant was attempting to bring his motor-cycle to an immediate stop. He failed to do so before contact was made with the deceased. But it rather appears as though the motor-cycle was only just short of coming to a halt because it was found to be in the road way at a point which on any view of the evidence could not have been far from the point of impact. However that may be, what I think is important from that account given by the 2nd defendant is the fact that there was time and opportunity to make two separate and distinct applications of the brake. Now, the 2nd defendant was a very inexperienced motor-cyclist. In his statment, he frankly concedes that he had some 13 hours driving experience and he was a learner. Of course, as I have been reminded, on authority that does not avail the 2nd defendant in seeking to resist the charge of negligence. Also, in his second statement, he frankly admits that his inexperience may have played a part in the happening of this accident. He says that when he first saw the deceased he was about 10 feet away and in that, I think, he must be mistaken. At another point in his statement, he says that it was about 1?vehicle length away. It is extremely difficult after an event such as this and for someone who must be in considerable shock to remember precisely matters of time or distance. What I think is more helpful to me is the fact that on his account, he is able to reineruer the two separate applications to the brake and however long it was and whatever distance it was, it was sufficient time and sufficient distance for that to happen He goes on to say it was too sudden and "I was very frightened and lost self control. May be it was due to my lack of es:perience". I think those comments by the 2nd defendant are very revealing not only as to how, in part, this accident came to happen but also as to the frankness of the 2nd defendant. I do not think that the 2nd defendant is to be criticized 'for not sounding his horn. One's immediate reaction in those circumstances is probably not to do that. In any event, failure to sound the horn, in my judgment, was not causative of the accident which happened. The 2nd defendant is not to be criticized for the speed at which he was travelling. On hisown account, he was travelling at no more than 20 miles an hour which, in my judgment, was a perfectly reasonable and safe speed at which to be travelling. If he is to be criticized at all, it is, in my judgment, because when he first saw the deceased coming into the road, he did not do what he subsequently attempted to do and that was to try to bring his motor-cycle to a complete halt. And, in my judgment, had he done that, this collision would probably have been avoided. But that is not to say that he was principally to blame for this accident. In my judgment, the blame lies mainly with the deceased. On the evidence he ran out into the road. He did not look to see whether there was anything coming from his left and he ran out at a point where his view of on-corning traffic was bound to be obscured by parked vehicles. And he could hardly have picked a worse spot to emerge because he came out at precisely the point where two vehicles were double-parked. So. consequently, I find that he is principally to blame for this accident and what remains is for me to apportion blame between the parties which is never easy. It is not a case in my judgment where the blame is to be equally apportioned. That was Mr. Bharwaney's starting point and I have indicated already that I thought he was realistic in making the concession that there should be a degree of contributory negligence found, but I think the degree to be found is rather higher than he put it to me in submission.

6. At one time, I thought the right amount of blame to be cast upon the 2nd defendant was one-third but I have been persuaded that it ought to be less than that as a result of the submissions made byMr. Sujanani. I think, doing the best I can on the evidence before me that the 2nd defendant was one-quarter or 25% to blame for this accident and the deceased three-quarters or 75% to blame. Consequently, there will be judgment for the plaintiff against the 2nd defendant on the basis of the agreed damages for $66,500. The plaintiff's claim against the 1st defendant stands dismissed.

7. I am told that the parties will be able to agree the questionof interest and I small not make any award now, but I give liberty to apply. The plaintiff is to have costs against the 2nd defendant. The 1st defendant is to have costs against the plaintiff. There will be an order for payment out of the sum of $63,857.50 presently in court. to the plaintiff's solicitors in part satisfaction of the judgment and the balance of the judgment, is to be paid within 14 days.

Representation:

Mr. M. Bharwaney (Tai, Tang & Chong) for plaintiff.

Mr. R.K. Sujanani (Gallant Y.T. Ho & Co.) for both defendants.