Yung Fong-wah and Another v. Law Chi-ming

HCA000842/1974

IN THE SUPREME COURT OF HONG KONG

(ORIGINAL JURISDICTION)

ACTION NO.842 OF 1974

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Coram: Morley-John, J.

Date of Judgment: 26th November, 1975.

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JUDGMENT

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1. This action is brought by the administratrices of the estate of one Au Choi, deceased, for the benefit of the first named plaintiff and other dependants of the deceased.

2. It is agreed that the deceased met his death as a result of a collision between himself and a motor-cycle owned and driven by the defendant. The said collision took place at about 11 o'clock on the night of 26th April, 1971 on Cheung Sha Wan Road near its junction with Cheong Wah Street. After the collision the deceased was taken to the Kwong Wah Hospital where he was certified as dead before arrival. At the place where the accident occurred Cheung Sha Wan Road consists of a three-lane carriage way in each direction divided down its centre by iron railings.

3. Mr. Chan Koo gave evidence that he and the deceased were returning together from work on the night in question. He said that from a gap in the railings on the pavement opposite a gap in the centre railings they intended to cross Cheung Sha Wan Road. I am satisfied from the evidence adduced that there were no markings on the roadway of any sort to indicate that pedestrians had any precedence in crossing the road or that pedestrians were likely to cross the road at this point. Mr. Chan's evidence was somewhat confused but from his evidence the following facts eventually emerged. Mr. Chan was the first to cross the road with the deceased following close behind him. There was a lorry, Mr. Chan thought a large lorry but he was not sure, parked alongside the kerb to Mr. Chan's right between him and the on-coming traffic. Mr. Chan carefully looked round this lorry before crossing the road and he said that he ascertained that there was no vehicle approaching between him and a bend in the road. From the photographs produced in evidence I am satisfied that the bend in question was at least 100 yards away from where Mr. Chan crossed the road. When he was asked if the bend was over 100 yards away from where he crossed, he said that he believed so, but he was not sure. Having ascertained that stretch of road was clear of vehicles Mr. Chan said that he started to walk across the road with the deceased following very close behind him and when he was half-way between the pavement and the centre railings he suddenly saw a motor-cycle coming straight towards him. He was dazzled by the motor-cycle's headlight and stood still and the motor-cycle passed behind him. That the whole thing happened in a moment of time and that when he turned round he found the deceased lying on the road and the motor-cycle lying on its side. He said that when he saw the motor-cycle it was very close to him and the whole incident only took a split second. He said that he did not hear the sound of any horn and he did not hear the motor-cycle's approach. He said that when he heard it the motor-cycle was right upon him. Mr. Chan said he thought that the motor-cycle must have swerved to its left otherwise it would have hit him instead of the deceased.

4. The defendant gave evidence that he was driving his motor-cycle along Cheung Sha Wan Road on the night of 26th April, 1971 and that he was also carrying a friend, Mr. Wong Ngai-hing, as a pillion passenger. That the headlight of his motor-cycle was alight. He said that before he approached the bend in question he was travelling at about 30 miles an hour but on approaching the bend he changed into a lower gear and rounded the bend at about 20 miles an hour and accelerated slightly as he came into the straight. He said that as he rounded the bend there was nobody on the road in front of him but as he came along the straight after having rounded the bend two persons suddenly ran out from behind a lorry and crossed the road right in front of him. He said that when they did this they were only about 20 to 30 feet in front of him. He said that the distance was about the width of the court which is 32 feet. He said that they were running one behind the other but very close together. He said that he blew his horn and applied his brakes and swerved to his left but the right side of his handle barsstruck the deceased. The defendant said that this caused him to lose his balance and he and his passenger and the motor-cycle fell onto the road and that the motor-cycle slid towards the pavement. He said that the weather was fine and the road surface was dry.

5. In cross-examination the defendant was asked if the deceased hesitated and he said that he might have done, but that the whole incident only lasted a split second so that he could not see if the deceased hesitated in his run across the road or not. The defendant said that at the time of the accident he was travelling at about 25 to 26 miles an hour. It was suggested to him that he was travelling much faster but the defendant disagreed. He said that he was not a fast driver and that on that occasion he was carrying a pillion passenger, that he seldom carried such a passenger and that as he was carrying a passenger on that occasion he was driving more slowly than usual.

6. It was suggested to the defendant that after the accident he was summoned for driving a motor-cycle with a defective foot-brake and that he had pleaded guilty to this offence. He said that he had so pleaded because after the accident some repairs had to be effected to the foot-brake but that during his journey before the accident he had no reason to suspect that his foot-brake was in any way defective. In his final address counsel for the plaintiffs conceded that the foot-brake must have worked to some degree in the light of the evidence of a traffic police constable called by the plaintiffs who said that if the hand-brake only had been applied when the motor-cycle was travelling at 25 miles an hour, as this brake only affected the front wheel the motor-cycle would have somersaulted. All the evidence pointed to the fact that the motor-cycle did not somersault. From the evidence I am not satisfied that at the time of the accident the foot-brake was defective. The defendant said that it was not and it was only found to be defective after the accident and this defect might have been caused when the motor-cycle fell onto the road and slid towards the pavement.

7. Mr. Wong Ngai-hing, the pillion passenger, also gave evidence. He said that at the time in question he was the passenger on the pillion of the motor-cycle driven by the defendant. That he remembered the motor-cycle rounding the corner and when it entered the straight stretch of the road after the corner he suddenly heard the defendant sound the horn of the motor-cycle and he saw two persons running across the road in front of the motor-cycle. He could not see where they had come from as he was in effect looking over the driver's right shoulder and so his view to the left was obscured by the driver's head. He said that the motor-cycle swerved then the rear of the motor-cycle swung to its right and he fell off. He said that the motor-cycle was not going fast when he fell off. He said that when the motor-cycle swerved he closed his eyes as he wore glasses. He was quite sure that the two persons were running across the road. Under cross-examination he also said that one of the two persons appeared to hesitate but he did not say which.

8. I was impressed by the way both the defendant and Mr. Wong gave their evidence and I believe their version of the accident. I was satisfied from the evidence that Mr. Chan and the deceased ran out from behind the parked lorry right into the path of the approaching motor-cycle. I do not believe the evidence of Mr. Chan when he said that he looked round the end of the parked lorry and that as the road to his right was clear he walked across the road followed by the deceased. If this was true and if the defendant had rounded the bend after Mr. Chan and the deceased had stepped out on to what Mr. Chan described as a clear road then in order to have collided with the deceased where he did the defendant would have to have been driving at a very high speed indeed. According to Mr. Chan when he stepped out onto the road from behind the lorry the motor-cycle had not yet reached the bend and there was at least 100 yards of straight road for the defendant to cover after Mr. Chan and the deceased had started to cross the road and walked a relatively short distance to the middle of the centre lane remembering that the lorry must have taken up a proportion of the inner lane. The defendant said that he was travelling at about 25 miles an hour and I believe him and this view is fortified by the fact that after the accident, according to the sketch plan produced by the police, the motor-cycle was only about 30 feet away from the spot where it had collided with the deceased. Also the defendant although wearing no crash helmet (wearing of such was not obligatory in April, 1971) and was only wearing denim trousers and not a thick jacket only sustained very minor abrasions when he fell off the motor-cycle and his passenger who said that he was only wearing thin trousers and a thin shirt again only sustained very minor abrasions. Mr. Wong did say that his glasses fell off but that they were very loose and even so they were not broken although they were not fitted with unbreakable lenses. If the accident had occurred in the speed of between 40 and 50 miles an hour I would have expected the motor-cycle to have ended up very much further along the road and for the defendant and his passenger to have sustained more serious injuries than superficial abrasions.

9. As I have said I am satisfied that the deceased ran out suddenly into the path of this motor-cycle without giving the defendant a chance to avoid him. This being so whether the foot-brake of the defendant's motor-cycle was defective or not would appear immaterial although as I have said I am far from satisfied that the said brake was defective before the accident. Under the circumstances I find the defendant in no way negligent but that the accident was caused solely by the negligence of the deceased in acting as he did and therefore the case for the plaintiffs must fail. I give judgment accordingly for the defendant with costs.

10. In the event of a superior court disagreeing with my findings as to liability I shall now consider the quantum of damages that I would have awarded if I had found the defendant 100% liable for the accident.

11. Dealing firstly with the assessment of damages under the Law Amendment and Reform (Consolidation) Ordinance. No evidence has been adduced before me as to any pain and suffering occasioned by the deceased, in fact, it would appear that death was almost instantaneous and so I make no award under this head. Following the decision in the case of Wong Kam-ying and another v. Man Chi-tai⁽¹⁾ for loss of expectation of life I would have awarded the sum of $7,500. No claim has been made for funeral expenses and no other claim has been made under this Ordinance and therefore under the Law Amendment and Reform (Consolidation) Ordinance I would have awarded the sum of $7,500.

12. I now turn to the damages claimed under the Fatal Accidents Ordinance. In the statement of claim it was alleged that the deceased was aged 39 years at the time of his death and was employed as a shoe-maker earning about $800 a month and that out of his earnings the deceased used to pay to his widow, the 1st plaintiff, an average of $700 a month out of which she paid all household expenses including rent, food for herself and her children. Evidence was given by the 1st plaintiff that the deceased used to pay her $800 a month out of which she used to give him small sums from time to time for his personal expenses but that the remainder was used to pay the expenses set out in the statement of claim. Some 10 days before his death the deceased changed his job and his widow said that in his new job he would have earned about the same as in his old job and his has been borne out by the evidence of Mr. Chan Koo who was working with the deceased at the time of his death. I am satisfied therefore that at the date of his death the deceased was earning about $800 a month out of which he paid about $700 to the 1st plaintiff for household expenses, rent and maintenance of the family. I am also satisfied that the deceased was the sole supporter of the family. Counsel for the defendant, on the question of damages, submits that from this sum of $700 a certain amount should be deducted as being the household expenses created by the deceased who took certain meals at home. From the 1st plaintiff's evidence this would appear to amount to a very small sum as the deceased had most of his meals at his place of work or, for example, his breakfast, if any, at a tea house and I would not deduct anything from this amount of $700 under that head.

13. As to the multiplier that should be employed, the deceased's uncle, Au Yee-Kwong, said that he retired from work as a self-employed shoe-maker at the age of 55, but he said that he did this because of bad health and that his business was not good. He agreed that the average age of retirement in the trade was between 55 to 56 years of age, but he said that a healthy man may continue in the trade until the age of 60. Mr. Chan Koo said that he left the shoe-making business at the age of 43 years but this was in order to obtain a more remunerative job.

14. At the time of his death dependent upon the deceased were his widow and five children, aged 14, 12, 9, 7 and 4 years of age respectively. Also his aged mother aged 75, the latter being only partly dependent on him. All children are at present attending school. Counsel for the plaintiffs suggested a multiplier of 14 whereas counsel for the defendant suggested a multiplier of between 8 and 10. Considering the age of the deceased at the time of his death and the age of the dependent children I would agree with counsel for the plaintiffs that the multiplier of 14 would be a fair one, therefore, under the Fatal Accidents Ordinance I would have awarded the sum of $134,400

15. It has been pointed out to me that since the death of the deceased the 1st plaintiff has been receiving by way of public assistance the sum of $817 per month from the Social Welfare Department since 13th May, 1971. It is a moot point whether such sums could be interpreted as a benefit or gratuity under the provisions of section 9 of the Fatal Accidents Ordinance. However, I have no knowledge as to whether such assistance would continue in the event of damages being awarded to the 1st plaintiff and, therefore, I would not have taken such sums into account.

26th November, 1975

Representation:

Mr. Michael R.D. Bunting, instructed by (Director of Legal Aid) for the plaintiffs.

Mr. Kenneth Kwok, instructed by (H.A. Hoosenally & Co.) for the defendant.

(1) [1967] H.K.L.R. 201