Poon Siu Chun v. Lee To Lup and Another

HCA001283/1974

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

Action No. 1283 of 1974

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Coram: Mr. Commissioner Yang in Court.

Date of Judgment: 7th February, 1975.

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JUDGMENT

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1. The deceased was killed in a traffic accident which occurred on 5.6.71 at Clear Water Road near Sai Kung Road. The deceased's widow now brings this action for damages against D1 as the driver of the car in question and against D2 as the owner. It is not disputed that D1 was at all material times driving the car as the servant and/or agent of D2.

2. It is common ground that at about 3:15 p.m. on the day in question D1 was driving private car AA7542 along Clear Water Bay Road and going down a slope in a westerly direction. When he came to a point near the bus bay situated on the south side of the road his car hit the deceased, causing multiple injuries from which he died. The estimated time of his death was 4:45 p.m. of the same day.

3. The Plaintiff's eye witness Mr. Chim disputes the correctness of the plan (Ex. P3) prepared by the police constable who arrived at the scene at about 4:10 p.m. but I am satisfied that the plan correctly depicts what the constable saw at the time. I also accept D1's evidence that the car AA7542 had not been moved prior to the constable's arrival. According to the plan the car was found straddling the dotted white line in the centre of the road pointing slightly towards the white line in the centre of the road pointing slightly towards the southwest. It left two skid marks, the one on the nearside being 23 feet and the one on the offside being five feet in length. There was a pool of blood about one foot to the left of the car. There was another spot of blood stain at the western end, and just within the boundary, of the bus bay, slightly behind but almost on a level with the front of the car. It was not explained how this spot of blood stain got there. The but bay measures 125 feet in length.

4. According to Mr. Chim he saw the car driven by D1 zigzagging at 40 to 50 m.p.h. down the slope and hit the deceased who was standing just within the boundary and near the eastern end of the bus bay. After the deceased was hit, according to the eye witness's evidence, he was thrown forward about 10 feet and somersaulted and landed in the middle of the westbound carriageway almost directly opposite to where he had been standing, with his head resting on the dotted white line in the centre of the road. According to the relative positions marked by this witness on a photograph (Ex. P2), when he first saw the car, it was a short distance away from the nearside kerb; it had almost arrived at the eastern corner of the bus bay, probably just a few feet from where the deceased was standing.

5. Though Mr. Chim holds a licence enabling him to drive in Canada, he does not have a driving licence in Hong Kong. Whilst I do not have any doubt as to his driving ability, nor as to his honesty as a witness, in my view his observation in this particular respect must have been mistaken. At the moment immediately before the accident he was standing with the deceased's two daughters at a bus stop on the opposite side of the road, i.e., on the eastbound carriageway. It is always extremely difficult to judge the speed of an oncoming vehicle, particularly as in this case the first moment Mr. Chim saw the car was when it was but a few feet away from the deceased. Though the car was coming down a slope it was nevertheless a gentle slope. According to the Highway Code the overall stopping distance for a car travelling at 40 m.p.h. is 120 feet, with 40 feet for thinking distance and 80 feet for braking distance. D1 estimated his speed at about 30 m.p.h. which requires an overall stopping distance of 75 feet. Now the car had been coming down a slope, and the skid mark of one wheel was 23 feet, therefore it may safely be assumed that the car was probably travelling at 20-odd m.p.h., as the overall stopping distance at 20 m.p.h. is 40 feet, 20 feet being the thinking distance and another 20 feet being the braking distance. Mr. Chim could not have had more than a fleeting glance at the car, it would therefore be almost impossible in these circumstances for him to conclude that the car was zigzagging at 40 to 50 m.p.h. There seemed to be no plausible explanation why the driver should be zigzagging. It was a straight stretch of the road, the last bend being a lefthand bend some 250 feet to the east. The carriage-way is nine feet wide and it appears from the evidence that there was no other traffic on either side of the carriageway, or any other pedestrians crossing the road at that point. According to the Motor Vehicle Inspector's report (Ex. D2) the car was in good working condition. The brakes and steering were good and there was nothing wrong with the tyres. It was a fine, dry day and the road condition was good. In my view the car was not being driven in the manner described by Mr. Chim.

6. On the balance of probability I am of the view that the deceased could not have been standing within the bus bay when he was knocked down. On the south side of the westbound carriageway is a hillside. I take judicial notice that the car in question (see Ex. D3 - C), an Austin saloon, would be about five feet wide and 12 feet long. In a normal case the driver would drive along the road at a distance of about two or three feet from the near-side kerb. If Mr. Chim's evidence is to be believed then it would mean D1 must have swerved to his left and entered the bus bay to hit the deceased and then served sharply nine feet or so to his right to end up on the dotted white line. This is very unlikely.

7. D1's evidence is as follows: The deceased ran across the road from the western end of the bus bay. The distance between his car and the deceased when he first saw him was about 20 feet and at this point of time the deceased was in the middle of the westbound carriageway. On seeing the deceased he swerved to his right and braked, and in so swerving and braking his car came to a halt in the position shown on the sketch plan. After hitting the deceased the car went on for about 10 feet before it finally came to a halt. Then D1 alighted from his car and found him lying on the road near the front of his car, having been thrown about two feet towards the front of his car upon impact.

8. I accept D1's evidence that the deceased was in the middle of the westbound carriageway when he was hit. The carriageway being only nine feet wide, the deceased was therefore knocked down at a point about four or five feet from the bus bay, which distance takes about two paces to cover. The time required for two paces would be but a second or two. If D1's car was about 20 to 30 feet from the deceased when D1 first sighted him, the car would take say a second to travel the 20 to 30 feet at about 20 m.p.h., just in time to collide with the deceased. The plan shows that the pool of blood was by the nearside of the car midway between the front and the rear. This was therefore in all probability the spot where the deceased landed. The sketch plan is in my opinion more consistent with the deceased having been hit in the middle of the road than within the bus bay, particularly having regard to the position of the car.

9. On Mr. Chim's evidence I also find that the deceased looked only to his left, i.e., towards the west down the slope, before starting to cross the road, and D1's car hit him from his right. If he had looked to his right, he could not have failed to see the car approaching. But on the other hand, D1 should have seen the deceased at the bus bay as soon as his car had rounded the bend. The first moment when D1 ought to have seen the deceased was when the car was 250 feet away from the deceased. A reasonably careful driver should, in the circumstances of this case, have noticed that the deceased was about to cross the road, for it may safely be assumed that the gestures of the deceased must have been such as to indicated to the driver that he was ready to cross. On the evidence I find that D1 did not see the deceased until he was 20 to 30 feet from him.

10. In my judgment D1 was guilty of negligent driving in that he failed to keep a proper lookout. The deceased was guilty of contributory negligence in crossing the road without looking to his ought. I hold that D1 was 80 per cent to blame and the deceased 20 per cent to blame.

11. The deceased was about 50 years of age when he died. Before the accident he was employed as the Chief Cook on board a ship earning $1,200 a month. It is not disputed that he gave his family $600 per month for their maintenance, i.e. $7,200 per annum. I have considered the actuarial table and formula suggested by defence counsel, but decide to adopt his alternative suggestion of the use of a multiplier, which is also suggested by counsel for the plaintiff. On balance, I think a multiplier of ten is probably fair. The general damages I assess therefore come to $72,000 ($7,200 x 10) under the Fatal Accidents Ordinance.

12. Mercifully the deceased lost consciousness at the moment of or immediately after the collision. It is common ground that there was no pain and suffering. I have therefore not made any assessment of damages under this head.

13. Funeral expenses are agreed at $3,000. This sum will be the special damages.

14. For loss of expectation of life I follow Huggins, J. in Wong Kam Ying v. Man Chi Tai (1967) HKLR 201, at 208, and also take into account the inflation since 1967; I accordingly make an assess-ment of $10,000 under the Law Reform and Amendment (Consolidation) Ordinance.

15. Damages are accordingly assessed at $75,000 made up of the following items:

16. The deceased being 20 per cent to blame, the total damages I award are $60,000-. The plaintiff claims interest on the special damages of $3,000, which is usually half of the interest of 8 per cent allowed for general damages. I therefore allow 4 per cent per annum on the $3,000 from the date of the accident, i.e., 5.6.71, to the date of judgment. Whilst interests are not allowed for future loss of earnings plaintiff's counsel has convinced me that some interests should be given on the amount of damages representing the contributions the deceased would have made to his family from 5.6.71 to the date of judgment, a period of about months. Taking into account that the family will receive now one lump sum instead of payments spread over some three and a half years, he suggests a figure of $20,000 at $600 per month. I think the figure suggested is fair. Counsel also suggests the rate of interest on the $20,000 at 8 per cent per annum. This suggestion, whilst attractive at first view, is perhaps oversimplifying matters, for the $20,000 would not have been contributed at the same time but by numerous payments over a long period of time. Without going into intricate mathematical calculations, I would think a rate of 5 per cent per annum is probably correct.

17. Judgment for plaintiff for $60,000 with interest on $3,000 at 4 per cent per annum from 5.6.71 to the date of judgment and interest on $20,000 at 5 per cent per annum from 5.6.71 to the date of judgment. Costs to the plaintiff.

Representation:

R. Tang (Rowdget W. Young & Co.) for Plaintiff.

D. Chang (H.A. Hoosenally & Co.) for both Defendants.