Mok Shu Yan v. Cheung Kai Wah

HCA000162/1974

IN THE SUPREME COURT OF HONG KONG

(ORIGINAL JURISDICTION)

ACTION NO.162 OF 1974

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Coram: Hon, Cons, J.

Date of Judgment: 18th June, 1974.

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JUDGMENT

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1. This is an action brought under the Fatal Accidents Ordinance in respect of a lady who was then the plaintiff's wife and who was killed by the defendant in his motor car when she was crossing at the Kwun Tong Load in Kowloon. There can be no doubt whatsoever of the defendant's liability. The road at that point was wide and straight, giving visibility for at least three-quarters of a mile. The studded crossing on which the defendant killed the deceased was 250 to 300 yards from the traffic lights at which the defendant had just stopped and there was no traffic either in between or to his left. The road was dry and the weather was described as a beautiful morning. The defendant was in the right-hand or fast lane on a three-lane carriageway with a central reserve to his right-hand side. The deceased was the last of a group of seven or eight persons who crossed that carriageway from the defendant's left to his right. He struck her fairly and squarely at a speed probably in the region of 40 to 45 m.p.h.

2. To be fair to the defence, it has not seriously denied liability. Two matters, however, have been put forward to minimize responsibility. First, the defendant says that the deceased hesitated, misleading him into believing that she would wait for him to pass, but instead she suddenly stepped in front of him. I do not accept this. If it were true, it would have been observed by one Mr. Carpenter who was travelling at that moment in the centre lane about 40 yards behind. Mr. Carpenter, a Superintendent of Police, is a trained observer of some twenty years' experience and his attention had already been drawn to the defendant by the defendant's untoward manner in driving away from the set of traffic lights that I have already mentioned. Mr. Carpenter was a very fair witness, and I have no hesitation in preferring his evidence in every instance where it conflicts with that of the defendant. Furthermore, such hesitation is not consistent with another aspect of the defendant's evidence. He is insistent that the deceased did not look at him or his car, but only straight ahead.

3. Secondly, the defendant said that in attempting to brake to avoid the deceased, he missed the brake pedal completely with his foot. In panic, he then attempted to apply the hand-brake but also, for no reason which he disclosed to me, unsuccessfully. This suggestion was put to Mr. Carpenter who, in his career in the Police Force, was for some time attached to the Traffic Accident Enquiry Office and gained experience in investigating into such accidents. He considered that the foot pedals on a mini Cooper, the car which the defendant was driving, are small and that with small feet like those of the defendant, it would be possible to miss. He thought, however, that it was extremely unlikely that anyone, except a very experienced driver, would have recourse to his hand-brake in those circumstances. The defendant at that time had been driving for only two years. In addition, Mr. Carpenter said that in the circumstances suggested, the car would have swerved all over the place, probably into the contral railing whereas in fact it continued in a perfectly straight line and stopped quite normally on the side of the crossing. This indicated to him that the defendant had been in full control of the car throughout. I am disposed to agree with the comments of Mr. Carpenter, and I do not accept that anything of the nature suggested by the defendant did occur.

4. The defence alleged that the deceased contributed to her own death by her own negligence. This must be so. She cannot have looked, at least while crossing the road, or it would have been obvious to her that the defendant would not or could not stop in time to allow her to pass in front of him. I must, therefore, apportion responsibility between the deceased and the defendant. Having regard to the circumstances which I set out at the beginning of this judgment, I think the deceased was 5% to blame and the defendant 95%.

5. The sole dependency claimed is that of the plaintiff's husband. He and the deceased had been married for less than a year and had each continued with the jobs they had prior to the marriage. Each earned approximately $800 per month which they pooled to pay the household expenses, including the upkeep of the plaintiff's handicapped mother. I accept the plaintiff's evidence when he says that nothing for saving was left over at the end of the month. His own travelling and lunch expenses were about $300 per month, those of the deceased about $100. She spent very little on clothes. Making allowance for the rent and other recurring items of expenditure, I think it probable that the personal maintenance of the deceased took $350 from the joint balance. Deducting $350 and $100 from her average income, there is left the sum of $350 per month at which I assess the dependency at the time of death.

6. This claim is unusual in that the plaintiff has since re-married. His present wife does not work at the moment because she has only recently come to this Colony from Vietnam and has not yet become familiar with the conditions or ways of life here. This, however, is only a matter of time. It is intended that she will, in due course, seek employment and that the plaintiff is confident that before long she will obtain something similar to that of his first wife. When that happens, he will then financially be in the same position that he was befere the accident. I am, therefere, not required to look far into the future as is common in this kind of action, but only to decide when the present wife is likely to find empatyment and then calculate the actual loss from the time of the defendant up until then. The present wife is a little older than the deceased would have been, but counsel for the plaintiff does not ask for any variation to be made on this account. I do not think it would be unreasonable to say that the plaintiff's present wife will require about eighteen months to integrate fully into the industrial society in which she will have to seek employment. That will take her up to July of next year, that is to say, three years from the date of the accident.

7. I have to make allowance for the fact that the deceased was pregnant and would have lost some time from her work even though it was intended that she would return after the birth of her child. A second child was also planned who would probably have arrived within this period, and I propose to deduct a total of four months under this heading. It was suggested that allowance should also be made for the costs of nursery attendance for the child while the mother was at work, but I think it more likely from the evidence of the plaintiff that the child would have been left with relatives. I make no allowance for the normal vicissitudes of life, the period of time was short and the deceased was healthy. The damages under the Fatal Accidents Ordinance will, therefore, amount to $350 * 32 which comes to $11,200. This must be reduced by 5% for contributory negligence, making it $10,640. To this must be added a sum of $1,880 for funeral expenses which I am satisfied were incurred to this amount.

8. There is also a claim for damage to the deceased's clothing. I was told that the clothes she wore at the time were worth $30, but no evidence was given as to what happened to them afterwards or whether they were in fact damaged in any way. I can, therefore, make no award in this respect. There was apparently no actual pain or suffering and I would award only the sum of $8,000 for the loss of expectation of life. No argument was addressed to me as to the suitability of this figure which has now been a conventional figure for some time, but as it must be deducted from the Fatal Accidents Ordinance, the award is perhaps purely acadomie. Judgment is therefore entered in the total sum of $12,520.00 in favour of the plaintiff.

9. I think this is a case that should really have been brought or at least transferred to the District Court, and that costs should be on the highest of the District Court Scale. The plaintiff is to have his costs on that Scale and they shall be taxed in accordance with the Legal Aid Rules.

Representation:

Wesley Wong (Helen A. Lo & Co.) for plaintiff.

William Waung (H.A. Hoosenally & Co.) for defendant.