Tse Kuen Administrator and Effects of the Estate of Liu Wai Ping, Deceased v. Au Yu Shum and Another

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

ACTION NO. 947 OF 1970

__________________

Coram: LI, J. in Court

Date: 20th December, 1972

______________

J U D G M E N T

______________

1.  On the 27th of June, 1969, at approximately 4 o’clock in the afternoon there happened a traffic accident on Shataukok Road. That stretch of road was between Shataukok and Fanling cross-roads. As a result of that accident a young woman, by the name of LIU Wai ping was fatally injured. Her husband, TSE Kuen, in his capacity as Administrator of her Estate brought this action to recover damages under the Fatal Accident Ordinance and the Law Reform (Miscellaneous Provisions) Ordinance. He alleged negligence on the part of the 1st defendant, who was the driver and the 2nd defendant as owner of the vehicle concerned, namely, a 12-ton lorry, AE 3746. The allegation of negligence is set out in the Statement of Claim and I shall not repeat it.

2.  The defence is a simple one that the accident was the result of negligence on the part of the deceased person by running or dashing out into the road without proper lookout, or that there had been at least contributory negligence on her part.

3.  It is not disputed that TSE Kuen is the husband of the deceased woman at all material times. It is also common ground that the 1st defendant was the driver of the vehicle AE 3746 and the 2nd defendant was the owner. Nor is it disputed that the traffic accident did occur on that particular day in the vicinity.

4.  The issues between the parties are one whether the defendants are liable in law, and if I find that the defendants are liable I will have to consider then the quantum of damages under two respective Ordinances.

5.  Regarding the first issue, the evidence of the plaintiff is that on that day the deceased woman went with her friend, a lady by the name of CHAN Ho to On Lok Village to collect some work to be done in their respective homes. They collected each a bundle of towels to be sewn at home. They walked out from the On Lok Village towards the main road, namely Shataukok Road, which is shown in the photographs Exhibit A1 to A4. On their way out they intended to board some form of transport on the opposite side of the road to go home. However they did not cross the road. According to CHAN Ho they bought a bottle of soft drink and shared it between them. The deceased woman had her share first and the two of them were then standing at the T-junction near the path leading to the Village and the main road. Beside them was a railing on the pavement. I shall refer to the two ends of the railing as the Shataukok end and the Fanling end. The Fanling end is near the foreground of Exhibit A1 and the Shataukok end near the background of Exhibit A1. According to CHAN Ho, the two of them were then standing on the pavement right next to the Shataukok end of the railings. CHAN Ho was still having her soft drink, then she heard a remark made by the deceased that a vehicle was coming. By that, she understood the deceased meant the vehicle driven by the 1st defendant. Suddenly the deceased was hit while she was standing at the railings. She was thrown away to the other end of the railings, namely the Fanling end of the railings where she lay on the ground with her head pointing towards the pavement and her feet to the centre of the road. After the accident, the body of the deceased was some ten feet or at least several feet away from the pavement towards the centre of the road.

6.  The 1st defendant gave evidence that at the material time he was driving from Shataukok towards Fanling on the way to Kowloon. At about 100 feet or so away from the deceased person he saw her standing near the kerb with a parcel on her right shoulder. He said he realised that there was a possibility of her walking out, but as at that point of the road there was a speed limit of 30 miles an hour sign he had already slowed down the vehicle. He was at that time driving at a speed well below 30 miles per hour, namely it was about 25 miles per hour. Then without any warning this woman dashed out into the road roughly about ten odd feet in front of his lorry. He at once applied his brakes-foot and hand-brakes together. With one hand he swerved the truck towards the centre of the road, trying to do an avoiding movement. Unfortunately he was not able to avoid completely the woman. The left mudguard of his lorry hit the woman and as a result she was fatally injured. He did not move his truck until the traffic police came and took measurements of the road and the relative positions of the truck and various places, of which Exhibit B and B1 was the work of this particular constable. Exhibit B was admitted in evidence because it was disclosed by the plaintiff to be in his possession. However, as Exhibit B did not support the plaintiff’s case, counsel for the plaintiff said that he did not want to adduce evidence or call witness to produce this document. Besides, the constable who drew this chart had resigned from the Police Force and his whereabouts were unknown. The defence was allowed to make use of this document in cross-examination.

7.  Referring to this document I must confess that this is an extremely slap-dash work on the part of that then police constable. He never signed it, he never asked the driver to sign it, no date was given, and even the position of the body of the victim was not put in. Although I have admitted this exhibit – this document, I can place extremely little reliance on the document as such, except that it might be useful as a guide where it is corroborated by the photographs A1 to A4.. These photographs cannot lie or deceive, I may be able to use some of the evidence as to confirm the remark of the witness as to the position of the deceased person. We know the other land marks, and that is about all.

8.  Taking the evidence into consideration I must observe that if the 1st defendant hit the deceased on the spot while she was standing on the pavement, he would have been – no matter which part of the pavement or which end of the railing – he would have been 100% negligent. There would be no doubt about it. The facts speak for themselves. This leads me to consider at which end of the railings the deceased person was standing before she was hit. According to the plaintiff’s witness, CHAN Ho, the deceased was standing near the road junction, namely the Shataukok end of the railings. According to the 1st defendant the deceased walked out from the Fanling end of the railings. The 1st defendant was contradicted by his own witness – by his passenger – namely the defence witness MAK Chuen. According to Mr. MAK, the deceased woman dashed out or walked out from the Shataukok end of the railings. As a normal rule of evidence I would have held that having regard to the conflict of evidence of the defence that the deceased was either standing or coming out from the Shataukok end of the railings. However, in this particular case I appreciate that it was some 3 years since the traffic accident, and there was not only road junctions but a path leading to the main road as can be observed from the photograph Exhibit A1. Furthermore, had the lorry hit the deceased at the road junction, he would have been driving like a dare-devil driver with such a remarkable feat of accuracy that he could only manage to hit the victim and neither CHAN Ho nor the railings. There had been no damage to the railings – certainly there was no evidence as such.

9.  There is a further point. According to CHAN Ho, they were having a bottle of soft drink. The soft drink in question must have been purchased from a stall. From the photograph Exhibit A1, there was a stall which looked like one that would sell soft drinks at the Fanling end of the railings. She had said she was drinking there. Unless there is evidence that she bought the soft drink at the stall and went back to the other end of the railings, it is more likely that both of them were standing near the railings opposite the entrance of the stall or at some distance near the stall where a man was sitting in Exhibit A1. There is a further reason to that. Everybody was quite definite that after the accident, the body of this deceased woman was somewhere beyond the Fanling end of the railings. If she had been hit at the other end of the railings she would have been either thrown the whole length and more of that railings, which would be rather remarkable; or that she was dragged all the way the length of such railings. But again there was no evidence as to that.

10.  For these reasons I find as a fact that this woman was, prior to the accident, somewhere near the Fanling end of the railings. Now this is neither here nor there. Even if she were at the end of the railings, if she had been hit by the lorry on the pavement, the 1st defendant must be 100% negligent. However, if she had been hit in that position, I reckon that the driver of the truck would have hit the railing before the truck could ever have touched her. In any event, even if the truck driver, the 1st defendant, could have done a remarkable feat of driving, or actually had avoided the railings but hit the deceased, I must bear in mind that the plaintiff’s witness, Madam CHAN Ho, said she was only a few inches behind the deceased – in fact practically side by side standing on the pavement with the deceased. Again had the truck been able to hit the deceased at the railings, I am of opinion the truck would have hit Madam CHAN Ho as well – both of them. The momentum would have carried Madam CHAN Ho with her at the same time, but that was not so.

11.  For the above-mentioned reasons, I have come to the conclusion that the deceased was not hit at the time when she was standing on the pavement. It follows that at the time she was hit she was on the road. On the balance of probability I accept the evidence of the defence that she was running out into the road, and it was a very unfortunate fact that the lorry could not stop in time. That may or may not completely absolve the 1st or the 2nd defendants from liability.

12.  Mr. FUNG quite properly submitted that this is a straight stretch of road and 100 feet away the 1st defendant said that he observed this woman, the deceased, was standing on the pavement and that he realised that there was a possibility she would walk out. The lorry at that time was about 100 feet away from the victim. According to the driver she dashed out – or let us assume that she walked out rather briskly right in front of his lorry when the lorry was only about ten odd feet away. Mr. FUNG contented that the driver should have reduced speed so that he could have stopped and avoided the accident or had sufficient time to swerve to the right to avoid hitting the deceased person. But I must also bear in mind that this is a 12-ton lorry – he was going at about 25 miles per hour, and he said he was reducing the speed after the 30 mile limit sign. I have before me the Highway Code of which I can take judicial notice. It is given in the Table that on an ordinary fine day the stopping distance of an ordinary saloon car will be at least 20 feet with another 20 feet thinking distance. Assuming that the lorry driver was on the alert and he required no thinking distance whatever, he would have required even for a saloon car about 20 feet to stop his vehicle. Bearing in mind that his was not an ordinary car but a 12-ton lorry, I would have thought he would require considerably more stopping distance for his vehicle.

13.  I find as a fact that this woman must have stepped out, briskly on to the road with the parcel obliterating her sight of traffic on the road. She failed to observe the approach of the lorry and walked out in front of the lorry oblivious of the road traffic. In any event, however low the speed it would be virtually impossible for the 1st defendant to avoid this unfortunate woman unless he put the lorry at a standstill. Hence I rule that the 1st defendant was not to blame for his negligence. Unfortunate as it is, the accident was due to the complete negligence of the deceased person for not keeping a proper lookout and the Action must accordingly be dismissed with costs.

14.  I would have stopped here but for the fact that the plaintiff claim damages. I do not need to spend a lot of time over the subject. Had I been wrong in my ruling that the deceased was to blame completely and if I were to consider the 1st defendant being completely to blame I would have assessed the Special Damages claim – Damage to clothing - $100 as reasonable; travelling expenses about $80 as reasonable; funeral expenses of $3,000 – I would have reduced it to $2,000 as being reasonable. I shall not consider the question of contributory negligence because it can be worked out quite easily as to the percentage of contributory negligence. This was an extremely young woman at the age of 25/26. She earned normally about $500 per month, of which I would have reduced it by about some $200, for her own upkeep pocket money. Her contribution to the family is therefore about $300 a month, that comes to $3,600 per annum. Having regard to her normal expectancy of working life at that age, she would have at least. 25 to 30 years of working life. I understand no court would ever give a multiple of 25 to 30. Normally they reduced it. Having regard to that and the award of a lumpsum, I would have awarded the multiple of 16, having regard to her extremely young age. However, as I found in favour of the defendants in the first issue I have some regret, because it is a very unfortunate accident, that the Action would have to be dismissed with costs to be taxed in accordance with the Legal Aid scheme.

Patrick Fung (Hasting & Co.) for the plaintiff

F.A.L. Eddis (Deacons) for 1st and 2nd defendants

Oral judgment reduced into writing.