Wang Fei Sing v. Chan Tin Hung

HCA000958/1969

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

ACTION NO. 958 OF 1969

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Coram: Briggs J. in Court

Date of Judgment: 11th October, 1971

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JUDGMENT

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1. This case arises from an accident which occurred on August 28, 1968 at about 7.45 p.m. The Plaintiff is the mother of Rosanna Wang Wai Yee (hereinafter called "the deceased") who died from injuries received in the accident. She brings this action as the administratrix of the estate of her daughter and for the benefit of herself and the two children of the deceased. The Defendant was the driver of a Fiat 1500 which came into collision with the deceased.

2. The accident occurred in King's Road Hong Kong just past a bend near the junction with Shell Street. King's Road is a very wide road and is divided into two parts by twin tram tracks.

3. The Plaintiff called one Kwok Man To the driver of a tram. He said he was driving his tram in an easterly direction at the time. He saw a person whom he now knows to be the deceased crossing King's Road from his left hand side. She reached the white line nearest to his tram in the road and stood still. He had slowed down his tram because he was negotiating the curve in the road and because he had seen her crossing the road. As she stood still, he passed her. He looked in the mirror in his driving cab and saw a private car (which he now knows was being driven by the Defendant,) hit the deceased. He immediately applied the emergency brake and stopped his tram. The car passed her on his left side and he saw the deceased fall from it on to the track immediately in front of his tram. The car drew up some forty odd feet in front of him. He alighted and rendered such assistance as he could. The deceased was unconscious.

4. Kwok Man To gave his evidence without hesitation and I accept that he was a truthful as well as a careful witness. He said that no tram was coming from his opposite direction i.e. on the other tram track, the track for western bound traffic. He also said it was dusk, not dark: and that there was but little traffic on the road. Visibility was good and there are no obstructions to interfere with a clear view for any person using the road at that point.

5. The Defendant gave evidence on his own behalf. He was a frank witness. As a result of this accident he was prosecuted and pleaded guilty to careless driving on March 20, 1969. There is no doubt that he was guilty of negligence therefore and he admits it. His defence is that the deceased was also negligent in that she did not keep a proper look out when crossing the road.

6. In evidence he said he only saw the deceased when she was some four feet away from him. He braked but it was too late to avoid a collision. He struck her with the right hand front of his car. She was carried on his car for the distance it took for him to stop his car. He freely admitted that if he had kept a proper look out the collision would not have occurred. The accident happened because he tried to pass a moving tram without ensuring that it was safe to do so. From the evidence of the tram driver and from the report of the injuries suffered by the deceased, it is also apparent that he was travelling too fast. He himself put his speed at 28 m.p.h. But the evidence shows that he was travelling faster than that. He said that he thought the deceased was moving from the south to the north.

7. I do not think that the defence of contributory negligence has been made out. Taking the evidence of the two witnesses, the tram driver and the Defendant together, it is obvious to my mind that the Defendant was wholly to blame. And I so hold. Indeed I am surprised that liability was not admitted from the start.

8. After the accident the deceased was admitted to the Queen Mary Hospital. She had severe injuries to her head and her pelvis and right leg were fractured. She died from cerebral haemorrhage on August 30th. She regained consciousness before she died.

9. At the time of her death the deceased was working as a singer in a night club. She was 22 years old. And she was a divorcee. She married in March 1964 according to local Chinese oustom. Some attempt was made in cross-examining the Plaintiff to suggest that the deceased had not been married. This would have had the effect of excluding the two daughters of the deceased from the benefit of the Fatal Accidents Ordinance. The Plaintiff stated most definitely that her daughter, the deceased was married and that she attended the ceremony and feast connected with the wedding herself. I accept that evidence. Later the deceased and her husband entered into a divorce agreement. This was exhibited to the court and is in the usual Hong Kong form.

10. The deceased lived with her mother, (the Plaintiff,) her two children and two other children of the Plaintiff. The deceased was the sole support of the household. The Plaintiff ran the household, the deceased allowing her $2,600 per month to this end. The divorced husband of the deceased contributed nothing.

11. We are here concerned only with the Plaintiff and the two children of the deceased. These three persons are the "dependants" of the deceased for the purposes of the Fatal Accidents Ordinance. At the time of the accident the Plaintiff was 39 years old; the two children of the deceased are a daughter then aged 4 and a son then aged 1 year and 8 months.

12. I will deal with the claim under the Law Reform (Miscellaneous Provisions) Ordinance first. I will award $8,000 for loss of expectation of life and $2,000 for pain and suffering. That makes $10,000 in all, I will deal with the question of funeral expenses at the end of this judgment, because though the sum of $7,500 has been agreed as special damages I do not know how much of that sum represents funeral expenses. As will be seen later the sum awarded under the Law Reform Ordinance will merge in the award under the Fatal Accidents Ordinance. That does not refer to the Funeral expenses of course.

13. For the purposes of the Fatal Accidents Ordinance regard must be paid to what is usually called the vicissitudes of life and also to the fact that the Plaintiff will receive a lump sum. The deceased clothed herself and rarely took meals at the family home. At the time of her death she was working in three Night Clubs and was described by the manager of one of them as being a quite well known singer with a rosy future.

14. I will take $1,200 per month as the total dependency: that is to say $700 per month for the Plaintiff and $250 per month for each child. Taking a multiplier of eight for the Plaintiff we get a sum of $67,200. For the elder child the correct multiplier is twelve. This brings her sum to $36,000. For the younger child the correct figure will be fourteen and a half. This amounts to $43,500.

15. The total sum is $146,700. And there will be judgment for the Plaintiff for that amount.

16. The sums awarded to the two children are to be invested suitably by the Registrar. The income is to be paid to the Plaintiff on behalf of the children. And the Registrar may pay out sums of capital as and when required. The Plaintiff is to have her costs which are to be taxed in accordance with the Legal Aid Regulations. In addition the Plaintiff will have judgment for $4,000 in respect of funeral expenses. Order for payment out of the two sums now in Court to Director of Legal Aid.

Representation:

Zimmern (Brutton & Stewart) for Plaintiff

Litton Q.C. & Miu (Peter Mark & Co.) for Defendant

Judgment read in Court.