Chan Wing Wah v. Poon Lai Chung and Another

HCA001183/1969

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

ACTION NO. 1183 OF 1969

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Coram: Briggs, J. in Court.

Date of Judgment:19th February 1970.

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JUDGMENT

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1. This action arises from a traffic accident which occurred at Mile 11, Castle Peak Road on 22nd October, 1968 and which resulted in the death of a woman aged about 63 years, named Chan Fung Sang.

2. Chan Fung Sang died intestate and letters of administration of her estate were taken out by the plaintiff, Chan Wing Wah, who is her brother.

3. The action is brought under the provisions of the Fatal Accidents Ordinance and the Law Reform (Miscellaneous Provisions) Ordinance.

4. At the commencement of the trial counsel for the plaintiff told the court that he abandoned any claim under the Fatal Accidents Ordinance.

5. The statement of claim was signed by counsel (not counsel who appeared at the trial) and it contains a claim under the Fatal Accidents Ordinance for the benefit of the nephew and two nieces of the deceased. Such an action is not maintainable by virtue of section 4 of the Ordinance since nephews and nieces are not included in the class of persons for whom an action can be brought.

6. I am at a loss to know why such an elementary mistake was made by counsel. It is perhaps the more extraordinary since the plaintiff is legally aided. The point was not taken in the statement of defence which was signed by a solicitor.

7. The first defendant was the owner and the second defendant the driver of a nine-seater van No. AJ490. At the material time the second defendant was driving this vehicle along Castle Peak Road in the direction of Kowloon.

8. The plaintiff called a witness, one Raymond William White, who is a corporal in the Royal Australian Air Force. At the time of the accident he was a passenger in the nine-seater van with a clear view to his front through the windscreen. He gave a very clear and detailed picture of what he saw at the time of the accident.

9. He said that at Milestone 11, Castle Peak Road where the accident occurred, the road is straight. He said that the weather was fine but overcast and the road surface was clean. The road is built to take two lines of traffic at that part and there is an open space or lay bye to the right of the road facing Kowloon.

10. The driver, the second defendant, was travelling at about 40 - 45 miles per hour.

11. The witness said he saw the deceased, an elderly woman, who was carrying a load of vegetables on her shoulders start to cross the road from the right hand side to the left when facing Kowloon. He said he paid attention to her because he wondered whether she would have time to cross. She was about 100 feet away when he first saw her and was actually walking across the road.

12. When she was partially across she hesitated as if she were in two minds which way to go, whether to continue to cross or whether to go back. She continued to cross quickening her pace. It appeared to Mr. White that as soon as the driver saw her he braked and sounded his horn.

13. Unfortunately there was a collision and the deceased was killed. As a result of the impact the driver lost control of the vehicle and it collided with a wall at the left hand side of the road and overturned.

14. There is no evidence that there was a speed limit operating at that part of the road.

15. The police were quickly on the scene and the plaintiff called the plaintiff called the corporal who (then a constable) made an excellent sketch map of the position of the tyre marks, the deceased and the vehicle etc. This shows that the driver of the vehicle when he applied his brakes was driving well over to his left hand side of the road. There is no evidence of there being any other traffic on the road at the same time. And Mr. White said there was no traffic in front of the vehicle travelling in the same direction at the time of the accident.

16. The defendant called no evidence. In order to succeed the plaintiff must establish that the accident was due to the negligence of the second defendant. In this he has not succeeded. The evidence of Mr. White, which I accept, is clear. The second defendant was driving properly along a straight road, well on his correct side, and, since there was no speed limit not going too fast. As soon as he saw the deceased he did what he could to avoid hitting her. The accident was obviously caused by the deceased's error of judgment in determining to continue to cross the road after she had hesitated.

17. There must be judgment for the defendant with costs which are to be taxed in accordance with the Legal Aid Regulations.

Representation:

H.C. Miu (T.S. Tong & Co.) for Plaintiff.

C. Ching (Brutton & Stewart) for Defendants