Tang Lin Yau v. Lam Shing Cheung and Another

HCA001120/1977

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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Coram: Mr. Commissioner Liu, Q.C. in Court.

Date of Judgment: 8th December, 1977.

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JUDGMENT

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1. This is a claim by the Plaintiff against the Defendants for damages under the Fatal Accidents Ordinance as well as the Law Reform (Miscellaneous Provisions) Ordinance on behalf of himself and his two children as alleged dependants of his deceased wife, Madam NG Kam-yuk.

2. On the 30th December, 1974, whilst attempting to cross the Tai Po Road from west to east along a stud-crossing, with her baby daughter in her arm and her young son by her hand, the deceased reached the centre quite uneventfully but met with an accident in the process of crossing the remaining half of the road.

3. It is not a matter in dispute that the motor-cycle involved in the traffic mishap was ridden by the 1st Defendant and belonged to the 2nd Defendant. The matters which call for a determination are twofold: liability and quantum of damages.

4. On behalf of the Plaintiff, the widower and administrator of the estate of the deceased, a statement taken by the police shortly before her death was produced and marked Ex. "P2". That document was admitted in the face of opposition, but its weight has yet to be decided. In her statement, the deceased wife of the Plaintiff alleged that when she was about 3 steps from the pavement on the east side of Tai Po Road, she was knocked down by a motor-cycle which has now been proved to be the 1st Defendant's. The deceased claimed to have exercised all due care and sought to put the entire blame on the motor-cyclist. The lady was admitted into the Kwong Wah Hospital with no injuries other than those to her skull. On admission, she was conscious, and an operation on her skull was performed on the same day as can be seen from the record of Dr. Stanley Cheung dated 1st May 1975, "P5", which also gives the deceased's age as 45. Another doctor, Dr. Khin, described her conditions as otherwise normal except for her head injuries which were the cause of her death.

5. The 1st Defendant was called by the Defence, and he struck me as a very sensible and honest young man. That does not mean, of course, that I would accept his evidence in toto. There is incentive for and from time to time he was found to indulge in exaggeration. That was understandably so and would in no way reflect on his integrity. Parties to a traffic mishap are often tempted to subjectively maintain his innocence and shift the blame, principally if not wholly, to the other side. Subject to the usual temptation of understating his role, the 1st Defendant was decent enough to admit that if he had kept a proper look-out, the accident might have been avoided. For fear of misquoting him, I set out his evidence verbatim:

When the question was repeated a second time, the answer was:

6. From the evidence of the 1st Defendant the following transpired: He was travelling at 27/28 miles an hour at a distance of 7 - 8 feet behind a taxi. He observed 7 - 8 pedestrians including the deceased woman and her children whom he for the first time noticed from a distance which was given in cross-examination as about 8 feet. In his subsequent demonstration of this distance, measurement was taken and it gave approximately 25 feet. Thus, in fact the deceased woman and her children were sighted some 25 feet away. The Court was told by the 1st Defendant that after the deceased woman first came into his view, there was a lapse of about 2 seconds before the impact. Considering that he was travelling at 27/28 miles per hour, he would be moving along at approximately 40-41 feet a second. If indeed he had been only 7 or 8 feet away from the pedestrians when he had a first glimpse of them, it could not have taken as many as 2 seconds for the collision to occur. Therefore, the 1st Defendant's given time corroborates the fact that he first sighted the deceased woman some 25 feet, if not more, away. The 1st Defendant testified that his view on the right hand side was not blocked by the taxi and that as he was travelling about one foot from the centre railing, his vision of the deceased lady was unobstructed. On his estimation of distance, it would appear that his description of a distance of about 7 feet - 8 feet behind the taxi is also open to doubt. Applying the same criterion, it is probable that he was 25 feet behind the taxi.

7. I prefer his description of the events leading up to the collision than that implied by passages in the statement of the deceased, but even according to the evidence of the 1st Defendant he was obviously negligent. His view was unobstructed. He had a clear vision of at least the deceased and some of the pedestrians at a distance of 25 feet. I find that he was some 25 feet behind the taxi. He saw the taxi in front drive past the stud-crossing. Therefore he must have been about 25 feet from the stud-crossing at the time when the taxi passed the waiting pedestrians. The 1st Defendant ought to have anticipated that his distance of 25 feet would tempt some of the waiting pedestrians to use the crossing. Indeed, as he conceded that he had kept no proper lookout. He was travelling 27/28 miles an hour just before the accident. He told the Court that he released the accelerator handle, but he did not say that he applied the brake. A speed of 27/28 miles an hour just before the accident was excessive in circumstances such as these. In addition, he was too close to the centre railing for comfort. I also find that he failed to exercise due care in the circumstances.

8. But that is not the end of the matter. Was the deceased also negligent? From the statement of the deceased, she denied negligence absolutely. From the position of the fallen motor-cycle in the sketch "P1" as confirmed by the evidence of the constable and from its damaged off-side handle bar, there can be little doubt that the impact was nearer to the centre reservation than the pavement on the east side. This suggests negligence on the part of the deceased. Mr. Cheung described her as having dashed out unannounced, and I accept his evidence. The deceased woman stepped onto the path of the motor-cycle without prior warning, but it should not be overlooked that the deceased carried in her arm a baby and led a young son by her hand. Therefore, she could not have, in these circumstances, reacted swiftly. With a distance of some 25 feet away and a clear vision, Mr. Cheung should have been able to avoid the collision had he travelled not too close to the centre railing and kept a proper look-out the lack of which he frankly admitted. On the other hand, the deceased should have had patience enough not to risk an accident with her agility somewhat impaired by the children in her charge. A motor-cycle is not a totally silent contraption. Had the deceased exercised due care and attention on her part, the sound of the approaching motor-cycle would have been sufficient warning against an attempt to risk her life and limb.

9. To do the best I can in the circumstances, I would assess the degree of negligence on the part of the deceased as 40% and the degree of blame on the part of the motor-cyclist as 60%. Had it not been for the intervention of the taxi which had a clean exit from the stud-crossing prior to the 1st Defendant's approach, in the circumstances as we know them today I would attach a higher degree of blame to the 1st Defendant. The deceased had stopped to yield to the taxi and should have made it doubly sure that it would be perfectly safe for her and her young family to recommence the journey.

10. I would now turn to the quantum of damages. The funeral expenses of $1,620 are admitted. Mr. Fung referred to the divergence in the evidence of fees paid to person or persons having the care and attention of the children. In the Statement of Claim, it is alleged that since the death of the deceased but before July 1976 both children were being looked after for a fee of $300 per month and that only since July 1976 a total sum of $650 has been paid monthly. Counsel for the Plaintiff made an observation to the prejudice of his own, lay client to which I would pay no regard as it seemed to have been made more in the spirit of an attempt to absolve his professional clients. The evidence of the Plaintiff himself in examination-in-chief is vague and prompted a question from the Court. In answer to which, the Plaintiff explained that prior to July 1976, he paid Tang Yau $600 a month for the care and attention of his children and that since Tang Yau was no longer able to look after both in July 1976, he had to solicit the assistance of a lady by the name of Chan Hung. Mr. Tang himself was called, and he testified that he received $500 and not $600 since the death of the deceased up to the end of June 1976 and confirmed that he is now being paid $300. There is no evidence in rebuttal. I derive some assistance from the reality. If one were today to engage a domestic servant to look after 2 children of that age, a sum far exceeds $650 a month would be needed. It is therefore not unfair, in these circumstances, to give the evidence of the Plaintiff and Mr. Tang the most sympathetic and favourable consideration. All in all, I accept and find that when Mr. Tang Yau was in charge of both children he was paid $500 a month and that since July 1976 the Plaintiff has incurred $650 a month for the upkeep of both children. Mr. Fung, in his usual clarity of mind, submitted that the real damages are not the gross $500 and $650 a month and that the $100 rental saved and also the maintenance expenses for the two children hitherto paid by the Plaintiff himself will have to be taken into account. The Plaintiff told the Court that before the death of the deceased, he gave her $500 a month for household expenses. It would not be unreasonable to apportion this $500 as $150 per month each for the adults and $100 for each child. Therefore maintenance for each of the children stood at a $100 a month. $200 a month maintenance plus $100 rental saved ought to be deducted Therefore, prior to July 1967 the monthly extra expenditure for the loss of service of a wife to the Plaintiff and mother to the children was $200 (i.e. $500 - $300), and since July 1967 it has been $350 (i.e. $650 - $300). Damages are thus calculated as follows:-

I have ignored the 6 days for December. To that must be added the $1,620 funeral expenses. I would adopt a multiple of 12, and at $350 per month for 12 years that would yield the sum of $50,400. The grand total is $61,570. For the loss of expectation of life, I award $8,000.00 under the Law Reform (Miscellaneous Provisions) Ordinance which has to be taken into account in the general damages under the Fatal Accidents Ordinance. The $8,000.00 is thus being incorporated in general damages, and therefore 60% of $61,570 is $36,942, being the damages awarded to the Plaintiff. It is agreed that 60% of the special damages $6,702 and that interest thereon at 4% per annum from the date of the accident to the date of judgment would be $805.00. Consequently I award $805.00 as agreed interest on such special damages.

11. The Statement of Claim would require some amendments. It is not unknown that obvious amendments could be treated as having been made without a formal application as in Keith v. R. Gancia & Co., Ltd. (1). In the circumstances, without going into the mechanios of inviting an application, I would treat the Statement of Claim as having been properly amended in support of the $36,942 award.

Representation:

Mr. Stephen Ma instructed by Yeung & Cheuk for Plaintiff.

Mr. Patrick Fung instructed by Gallant Y.T. Ho for Defendants.

(1) [1904] 1 Ch. 774 p.789