Yan Wun Yau and Another v. Lam Yue Keung and Anotehr

Case No.HCA 5770/1982

Court

High Court CFI

Date—

Judge—

Case Document

100%Judiciary

HCA005770/1982

IN THE HIGH COURT OF JUSTICE

NO. 5770 OF 1982

BETWEEN

	YAN WUN YAU, the administratrix of the estate of FAN SO, deceased	Plaintiff
	and
	LAM YUE KEUNG	Defendant
	SCOTLAND INSURANCE CO. LTD.	Third Party

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Coram: The Honourable Mr. Justice Penlington in Court

Date of hearing: 13th December 1984

Date of delivery of judgment: 14th December 1984

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JUDGMENT

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Preliminary

1. This is a claim in which the mother-in-law and administratrix of the late Mr. Fan So claims damages under the Fatal Accidents Ordinance (F.A.O.) and the Law Amendment and Reform Ordinance (LARCO) resulting from a motor accident which occurred on 1st August 1979 in which Mr. Fan So was fatally injured.

2. The Defendant was initially represented but on the 28th September 1984 filed notice that he would act in person. A letter advising him of the hearing of this claim was delivered to his address on the 12th instant and a phone call was made to his home. I am satisfied that reasonable steps have been taken to advise him that the hearing was taking place. He does not appear and the matter proceeded in his absence, and that of the Third Party who has also discontinued, pursuant to Order 35 rule 1.

The facts

3. The only eye-witness to the accident who was able to give evidence was the Defendant and he made 3 statements about it to the Kowloon Traffic Accident Investigation Unit. Notice was served that these statements would be produced as would a sketch plan prepared by a police constable at the scene, medical reports, a report by a motor vehicle inspector and a record of proceedings in the Magistrates Court in which the Defendant was convicted of using a vehicle with defective brakes on his plea of guilty. No objection had been filed and these statements were duly produced.

4. The Defendant's statements were consistent apart from one aspect and may be summarised as follows:-

	On the 1st August 1979 at about 4 a.m. he was driving a taxi (which he owned) north along Tong Mei Road in the 3rd lane. He was going about 30 m.p.h. in 3rd gear. He had 2 passengers going to Mei Foo Sun Chuen. The weather was fine. The road surface was dry and naturally there was a little traffic. The street lighting was bright. When he was about 100 feet from the traffic lights at the junction of Bedford Road the lights turned green and he continued on. However when he got near to the lights the deceased emerged from the central divide on the Defendant's right and started to cross the road with his head down. He was on a "stud" crossing. The Defendant said he did not have time to sound his horn but he braked and steered to the right. However he was unable to stop in time to avoid the deceased who was struck by the near side of the taxi and thrown some 20 feet forward. That account is borne out by the sketch prepared by the police which shows the blood stain on the position one would expect if that account was correct.
	The Defendant stopped and when he got out he saw a mini-bus going past the body of the deceased. He could not say if the mini-bus ran over the deceased and he did not record its number. I do not think anything turns or the presence of the alleged mini-bus.
	A call was made by radio and the deceased was taken to hospital where he died later that day from severe multiple injuries to the head. A post-mortem report also showed that he had a blood/ alcohol count of 170 m. gram per litre.
	In his first two statements one on the 1st August and the second cautioned one on the 8th August the defendant said he saw the deceased when he was "4 to 5" and 3" to 4" car spaces away. He changed that to "1½ to 3 taxi spaces, in a third statement made on the 6th September 1979.
	The Defendant's taxi was examined by Mr. Robinson, a Government motor-vehicle examiner and he found both the foot and hand brakes were defective. The hydraulic reservoir was empty, a wheel cylinder was leaking, the brakes shoes were contaminated and the foot brake was 52% defective.
	Assuming that the deceased hit on the west side of the 3rd lane of Tong Mei Road which is supported by the Defendant's statements and the sketch, he was about 6 metres - 13 feet - away from the central divide. Even if the deceased was walking hurriedly the Defendant, travelling at 30 m.p.h., must have been able to see him when still a considerable distance away, if he was keeping a proper look-out. The Highway Code states that the stopping distance at 30 m.p.h. in good conditions is 75 feet but I am satisfied that the Defendant's brakes were so defective that he would have been unable to do so.

Findings

5. I find that the deceased walked across Tong Mai Road against the traffic lights. He was struck by the Defendant's taxi in the 3rd lane, thrown forward some 25 feet and died as a result of his injuries. The Defendant was unable to stop in time or to avoid the deceased because he was not keeping an adequate look-out and the brakes of the taxi, which he owned and was driving, were badly defective. The deceased was on a "stud crossing" which, while not the same as a pedestrain crossing, does give some warning to motorists to look out for pedestrians. In Au Cheung v. Choi Lai-fan C.A. 6/78 it was held that such a crossing did act as a warning to drivers that they must exercise care.

6. I am therefore satisfied that, while there was a degree of contributory negligence on the part of the deceased, due probably to his having been drinking, the Defendant was negligent and there will be judgment for the plaintiff.

Contributory negligence

7. This is always difficult to assess. Each case depends on its own facts but some of the other cases such as Au Cheung v. Choi Lai-fan and Mak Yiu-kiu v. Tin Shing Auto Radio Co. 1981 H.K.L.R. 77. I find the deceased contributed to the accident to the extent of 30%.

Damages

8. F.A.O. The only dependant, as defined in the Fatal Accidents Ordinance, is the deceased's widow. The deceased died intestate and as there are no claims by parents or children on his estate she will take it all. Her F.A.Q. damages will therefore weld into the L.A.R.C.O. damages and can be ignored.

9. L.A.R.C.O. I accept the evidence which has been given by the witnesses called, that is the Plaintiff herself and also Mr. Yu Kam Yung, that at the time of the accident the deceased was earning a nett amount of 1,000 from the newspaper stall that he ran, but that amount would have increased to $1,500 today. The special damages, funeral expenses, are not in dispute and will be the normal award for loss of expectation of life, $20,000. I also have been cited authority as to the multiplier to be used and I accept that a multiplier of 10 is the proper figure here. The deceased would have earned an average of $1,250 per month between the date of the accident and trial. I deduct 25% for his own expenses, leaving a free balance of $937.50 per month. His earnings would now be $1,500, which gives a free balance of $1,125. The pre-trial amount is therefore 57 months x $937.50 = $53,437.50, and post-trial 63 months x $1,125 = $70,875. a total of $124,312.50. There will be special damages $2,200 for funeral expenses, and $20,000 for loss of expectation of life. All damages will be reduced by 30%. There will be interest on the funeral expenses and pre-trial lost years at 6% from date of accident, and the damages for loss of expectation of life at 2% from the date of the issue of the writ.

10. The plaintiff to have her costs to be taxed in accordance with the Legal Aid Regulations.

Third Party

11. I now turn to the question of the third party. There was some dispute as to who in fact was the insurance company which insured this vehicle and there was a certificate signed by Sheraton Underwriters who clearly were acting as agents for both American United General Insurance Co. and Scotland Insurance Co. Ltd. It was however the Scotland Insurance Co. Ltd. who were joined as third party because the underwriters on their behalf declined liability as the Defendant's driving licence had expired at the date of the accident. That is not correct, as was decided in Luk Bik-yu and Anor. v. Fong Wing-fook and Far East Insurance Co. Ltd. 1978 H.K.L.R. 215. I am satisfied that at the date of the accident there was a valid insurance certificate issued by agents for the third party who must indemnify the Defendant as to all costs and damages payable by him in this action.

12. I am most grateful to Mr. Patrick Lim for his very helpful and comprehensive authorities.

	(R.G. Penlington)
	Judge of the High Court.

Representation:

Patrick Lim (Chan & Chuk) for the Plaintiff.

Defendant absent.

Third Party absent.