Read the full judgment text of CACV 000107/1987 on BabelCite. This Court of Appeal judgment was delivered on 3 November 1987 before Cons VP, Fuad JA, Clough JA.
Tort law – negligence – fatal road accident – apportionment of blame – contributory negligence of pedestrian versus motorcyclist – duty of care – driver to keep proper lookout – pedestrian duty to look before crossing – Costs on appeal – Funeral expenses – reasonableness. On 29 August 1983, the deceased was struck and killed by a motorcycle driven by the 1st Defendant on Un Chau Street, Kowloon, a road with three carriageways in the same direction. The deceased had been walking on the pavement apparently intending to cross. Neither defendant gave evidence at trial. A sole witness described the motorcycle as travelling at a normal speed along the middle carriageway with its headlight on, and the point of impact was close to the line dividing the near side and middle carriageways. The trial judge found the 1st Defendant failed to keep a proper lookout and took no avoiding action, apportioning 80% of the blame to the deceased and 20% to the 1st Defendant. The plaintiffs appealed the apportionment. Whether the trial judge was correct to apportion 80% of the blame to the deceased pedestrian and 20% to the motorcyclist driver, or whether the blame should be apportioned equally. Held: in the absence of evidence from the defendants, the blame should be apportioned equally at 50% each. The Court of Appeal applied the principle from Baker v. Market Harborough Industrial Co-operative Society Ltd. that where an accident is caused by the negligence of two parties, in the absence of evidence indicating one was more to blame, the blame should be apportioned equally. The court rejected the notion that a pedestrian's duty to look before crossing was greater than a driver's duty to keep a proper lookout, holding both duties to be equally elementary. Whether the trial judge's deductions of $4,000 from the cost of the coffin and $8,625 from the second restaurant function costs were warranted. Held: no interference warranted; the deductions were within the judge's discretion, as the ceremonies and coffin provided were more than reasonable in the circumstances. Appeal allowed in part; apportionment of contributory negligence varied to 50%, resulting in damages well above the amount paid into court before trial; plaintiffs to have their costs below as well as in this appeal.
Legal issues: Apportionment of contributory negligence between pedestrian and motorcyclist · Reasonableness of funeral expenses deductions
Outcome: Appeal allowed in part; the judgment below was set aside insofar as it related to contributory negligence, which was reassessed at 50%.