Ko Fung Chi and Others v. Chan Ip Cheung and Another
Read the full judgment text of HCA 200/1970 on BabelCite. This High Court CFI judgment.
1. This case arises out of a traffic accident which occurred at about 2.00 a.m. on April 1st, 1969 near the 23rd milestone on the Castle Peak Road in the New Territories. The Plaintiffs are the widow and mother of Wong Lam who died as a result of the accident. And letters of administration to his estate have been granted to them. This action is an action for damages for negligence and breach of statutory duty and is brought under the provisions of the Fatal Accidents Ordinance and the Law Reform
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HCA000200/1970 IN THE SUPREME COURT OF HONG KONG ORIGINAL JURISDICTION Action No. 200 of 1970 -----------------
Coram: Briggs, J. in Court. Date of Judgment: 24th May, 1971. ----------------- JUDGMENT ----------------- 1. This case arises out of a traffic accident which occurred at about 2.00 a.m. on April 1st, 1969 near the 23rd milestone on the Castle Peak Road in the New Territories. The Plaintiffs are the widow and mother of Wong Lam who died as a result of the accident. And letters of administration to his estate have been granted to them. This action is an action for damages for negligence and breach of statutory duty and is brought under the provisions of the Fatal Accidents Ordinance and the Law Reform (Miscellaneous Provisions) Ordinance. 2. At the place when the accident occurred there is a zebra crossing - an "uncontrolled crossing" as it is called in the Road Traffic (Road Crossing) Regulations. The road is straight and at the time of the incident, the weather was dry and clear. There was no other traffic or pedestrian on the road other than the deceased and the vehicle driven by the defendant. 3. A witness called by the plaintiffs Mr. Wong Kit Woo, told the court that he saw the accident occur. That is, he heard a noise as of an impact, turned to look and saw that the deceased had been hit by the defendant's car as he, the deceased, was on the zebra crossing. He could not estimate the speed of the vehicle but was certain that the impact had occurred on the zebra crossing. A sketch plan made by a police constable shortly after the accident, shows that the deceased was left lying on the road about 24 feet from the zebra crossing in the direction of Kowloon. The vehicle was some forty feet further on in the same direction, which was of course the direction in which the vehicle was being driven at the time of the accident. The deceased was very severely injured and probably died at once. 4. The defendant admitted that his vehicle struck the deceased. He said that at the time he was travelling towards Kowloon at about 40 m.p.h. He knew the area well and was aware of the existence of the pedestrian crossing. There is no speed limit on that part of the road. His headlights were full on at the time. At first he said that about ten feet after he had crossed the zebra crossing, he saw a black shadow came out into the road, when he first saw this it was only four feet away from him. He did not sound his horn or swerve to his right but he braked, but could not avoid the impact. In cross examination, however, he said he did not pay attention whether the black shadow was on the zebra crossing or not. The defendant admitted that the road was free of other traffic and that the night was clear. The left headlight of his vehicle was broken by the impact with the deceased. 5. I accept the evidence of Wong Kit Woo that the impact occurred while the deceased was crossing the zebra crossing. He was an independent witness and gave his evidence very clearly. And the sketch plan shows, that there was a railing between the road and the pavement on each side of the road with a gap at the point of the uncontrolled passenger crossing. 6. Regulation 4 of the Road Traffic (Road Crossing) Regulations reads in part thus:-
And regulation 7 of the same Regulations states that a pedestrian's duty is to pass over the crossing with reasonable dispatch. 7. It has been held that these Regulations do not impose an absolute liability on the driver of a vehicle. Where, for example, a pedestrian starts to cross over a crossing and then moves back, thus becoming the victim of an accident, the driver is not necessarily to blame. See Ip Cheng v. Yang Wan Ho 1962 H.K.L.R. 131. But the facts are different in the present case. The regulation does impose a special duty of care on the part of a driver namely to allow precedence to any person making use of the crossing. 8. In my view the defendant was guilty of ignoring that duty. He did not give precedence to the deceased. But I go further. The evidence clearly shows that he was guilty of negligence at common law in that he failed to keep a proper look out. He did not even indicate to the court whether the black shadow which he says, he saw came from his left side or from his right side. At the place where the accident occurred there are railings to prevent a person crossing the road other than at the zebra crossing where there is a gap. The road is quite straight, there was no other traffic, the defendant admits his headlights were full on and that he was aware of the crossing. And from the evidence of the injuries received by the deceased and the position of the body and the vehicle immediately after the impact as shown on the sketch plan, it would appear also that the defendant was driving at an excessive speed. He is therefore guilty of negligence at common law. 9. The defendant pleaded that the deceased's conduct was negligent also and that that contributed to the accident. I can find no evidence of this. A pedestrian is entitled to walk over an uncontrolled crossing and to expect that traffic will stop to enable him to cross. I am not saying that a pedestrian is entitled to dash across such a crossing in the path of an on-coming car. But there is no suggestion here that it is that which occurred. Nor is there any suggestion that the deceased was intoxicated: indeed the evidence of the post-mortem examination is against this. 10. I find therefore that the accident was caused by the negligence of the defendant. 11. The deceased was a healthy man aged 36 years. He was employed as a waiter in a well known Hong Kong Restaurant. His dependants for the purposes of the Fatal Accidents Ordinance are his mother who is about 59, his wife who is now 30 and three children, a son born in 1965 and two daughters born in 1966 and 1969. The youngest child was just under three months old at the time of the accident. 12. I will deal with damages under the Law Reform (Miscellaneous Provisions) Ordinance first. I do not think that I can award any sum for pain and suffering. There was no evidence that the deceased suffered. And from his injuries it would seem that if not killed instantly, he was rendered unconscious, and died very soon after. I award $8,000 for loss of expectation of life. 13. The statement of claim includes three items of special damage. The sum of $50 for damage to the clothes of the deceased is not disputed. And the Plaintiffs are entitled to that. Two sums of $2,000 are claimed one in respect of funeral expenses and the other for "Chinese religious ritual 'Ta-Tsai' and travelling expenses." The widow in evidence admitted that these sums had been paid but not by her. I will presume that the funeral must be paid for out of the estate of the deceased. There are no receipts to evidence the payment of any sum but the plaintiffs are not the sort of people who would be expected to have receipts, especially if they did not make the initial payment themselves. I think it is proper to allow only one sum of $2,000 that is for the funeral expenses. I do not think that the other sum is recoverable. 14. This will therefore be judgment for the sum of $10,050 under the Law Reform Ordinance. Apart from the sum for funeral expenses this amount will be swallowed up in the amount I am about to consider under the Fatal Accidents Ordinance. 15. As I have said the deceased was a waiter aged 36. He was earning about $674 per month as an average, in addition he took his meals in the restaurant where he was working. A fellow employee of his from the same restaurant said that the prospects of the deceased for promotion to a better paid and a more responsible post were considerable: and that he would very likely have been already promoted if he were still living. This of course is speculative and I do not give it much consideration. 16. However the deceased held a position, which he could be expected to follow for a great number of years longer, all things being equal. And it was a position with prospects of promotion. 17. The widow said that the deceased used to stay at the restaurant where there is a dormitory for the convenience of their employees. He worked a seven-day-week. However she said he used to return home about twice a week, and would often stay the night, returning to work the following day. The accident occurred before the recent legislation was passed which makes the granting of one free day per week to his employees obligatory on employers. 18. The widow said that the deceased gave her $450 per month for household expenses. She struck me as being a truthful and reliable witness and I think I can accept that sum as being the correct figure for the dependency. 19. Taking into consideration the vicissitudes of life and the fact that there will be a lump sum payment, I think that the correct multiplier to take is 18. This gives us a figure of $97,200. There will be judgment for that amount and in addition for the sum of $2,000 for funeral expenses i.e. $99,200 in all. 20. The sum awarded under the Fatal Accidents Ordinance will be apportioned as follows:-
21. The money apportioned to the children is to be paid into court and suitably invested by the Registrar. The income is to be paid for the benefit of the infants concerned and leave is given to the Registrar to pay out suitable sums of capital for the benefit of an infant if and when required. 22. The sum of $2,000 which represents funeral expenses is to be paid to the plaintiffs. 23. Costs to the plaintiffs. 24. The costs of the plaintiffs are to be taxed in accordance with the Legal Aid Regulations. 25. $32,500 paid into court on 31st December, 1970 to be paid to Director of Legal Aid.
Representation: M. J. Asome (Messrs. Wat & Fu) for Plaintiffs C. Ching (Messrs. Deacons) for Defendants Judgment read in Court. |