Chan Ngok Fang v. Leung Kui and Another
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IN THE SUPREME COURT OF HONG KONG ORIGINAL JURISIDICTION ACTION NO. 1248 OF 1971 ________________________
Coram: Briggs, J. in Court ________________________ JUDGMENT ________________________ 1. This action arises out of a traffic accident which occurred on July 15th 1970 in Belcher Street Hong Kong. On that day a girl named Chan Hing Chee was knocked down and killed by a Public Light Bus which was being driven by the first Defendant Leung Kui. The action is brought by the father of Chan Hing Chee as administrator of her estate. The action is brought under the Fatal Accident Ordinance for the benefit of various members of the family of the deceased, and under the Law Reform (Miscellaneous Provisions) Ordinance, now the Law Amendment and Reform (Consolidation) Ordinance, Cap.23. The second Defendant is the owner of the Public Light Bus driven by the first Defendant. 2. The Plaintiff called two eye witnesses to the accident, one of whom was a younger sister of the deceased. 3. That part of Belcher Street where the accident occurred is straight. The road is thirty feet wide. There are no railings down the centre. There are shops and houses on either side of the road. 4. The deceased lived with her family at No.22A Belcher Street. At the time in question she was an employee in a plastics factory, situated to the north of Belcher Street. There were two eye-witnesses to the accident who were girls who were also employed in that factory. One of these two eye-witnesses was a younger sister of the deceased. 5. On the day of the accident shortly after 6 p.m. the deceased, the two eye-witnesses and several other of the girls working at the factory left work together. They walked from the factory down a lane which runs into Belcher Street from the north along the side of a branch of the East Asia Bank which is situated on the north side of Belcher Street, immediately opposite to No.22A, the home of the deceased. 6. The deceased and her sister had to cross the width of Belcher Street in order to reach their house. The sister of the deceased said that the deceased was in front of them. About 10 feet in front. She said the deceased paused on the north pavement of Belcher Street and then proceeded to walk, not run, directly across Belcher Street, when she was knocked down by a Public Light Bus, which she now knows was being driven by the first Defendant. Each of the eye-witnesses said they saw the Bus while they were on the Belcher Street pavement. It was coming from their left, from the east, and was traveling on the southern half of Belcher Street, namely on the other side of the street from where they were. 7. They said it was a long way away from them. There was other traffic on the road but it was safe to cross. Some yards to the left from where they were standing is a zebra crossing and they said they saw the bus some 90 feet the other side of that crossing. 8. The presence of the zebra crossing would have been known to the deceased since she lived in the street. It is not known how many feet exactly she was from the crossing when started to cross the road. No point has been taken that she was in breach of Regulation 8 of the Road Traffic (Road Crossing) Regulations. 9. The eye-witnesses said that the deceased was struck when she had just passed the centre of the road. The Public Light Bus was described as travelling ‘very fast’. The deceased came in contact with the central portion of the bonnet of the bus and was dragged for a considerable distance by the bus, which came to a stop very close to the south pavement of Belcher Street. The eye-witnesses were among a party of seven or eight factory girls and were as I have said walking behind the deceased and were on the roadway when the deceased was knocked down. The road was wet at the time but it was not dark and not raining. 10. The first Defendant gave evidence on his own behalf. He said that he was familiar with Belcher Street and had been driving public light buses for about five months. He said in chief that when he passed the zebra crossing he saw young girl crossing the road from north to south. She was running diagonally across the road. She was not looking where she was going and had her back towards him. When he saw her, he sounded his horn, braked but could not avoid a collision. He said he was travelling in third gear at about 15 m.p.h. Though he braked at once the road was wet and the bus did not immediately stop. 11. The evidence of this witness in chief was not clear or convincing. He contradicted himself. At first he said he stopped at the zebra crossing, later that he only slowed down. More important was a conflict as to when he first saw the deceased. He put a cross on the sketch plan where he said he first saw her. This was a spot near to the centre of the road, on the northern side of a line drawn down the centre of the road. He said at first that he did not see her until shw was at that spot was the centre of the road. But he also said that when she stepped into the gutter of the road she “came out at once” and ran, which can only mean, that he saw her as she stepped from the kerb of the northern pavement to the road. However he further said he did not see her on the pavement. Later he again said he only saw her in the centre of the road. 12. The first defendant admitted that he did not swerve to his left. This was because he had no time to do so. 13. In cross examination the first Defendant was unable to explain the contradictions in his evidence. He said that there was no traffic in front of him at the time but later said he could not remember. He did not notice the presence of the two eye-witnesses and their companions, and he denied he was going too fast. 14. The first Defendant was an unsatisfactory witness. I do not think that he kept a proper look out and he must have been travelling at a good speed. The deceased was dragged for a considerable distance on and under the bonnet of the vehicle. And the sketch plan shows that before stopping the bus skidded for some 23 feet. It is inherently improbable that the deceased was travelling diagonally across the road as described by the first Defendant. For this would mean that she was travelling away from her destination, which was her home. I accept the evidence of the eye-witnesses that the deceased was crossing the road directly and not diagonally, and was walking and not running. And I do not accept the version of the first Defendant. I find that he Defendant was negligent in that he did not keep a proper look out and was travelling too fast. 15. However it is also my view that the deceased was also partially to blame for the accident. She would have seen the approaching bus if she was keeping a proper look out. Visibility was excellent at the time and she could have avoided the accident with proper care. 16. The relative duty of care of a motorist and of a pedestrian were considered in Baker v. Willoughby by the House of Lords ([1]). The case is well known and I need here say no more than that the relative duties differ. In my view the present case is one where the motorist was more to blame for the accident than the pedestrian. I assess the liability of the first Defendant at 75% and of the Plaintiff at 25%. 17. The Plaintiff was a girl of twenty. At the time of the accident she had just left school and was employed at a factory had at about $11 per working day. In their evidence the parents of the deceased said that she had left school and gone to work to increase the family budget. The family consists of the parents, another daughter then aged 17, and two sons then aged 15 and 13. A grandmother of the deceased also lives with the family. The father of the deceased does not have to pay rent but the monthly income of the household was only about $650 per month. The deceased told her parents that she would retain about $100 per month of her wages and hand the rest to her parents for general household expenses. Such conduct is very common among the people of Hong Kong indeed it may be said that such conduct is expected by parents of children, who go out to work when they remain living at home. 18. The deceased had only been at work for a few days when she was killed. She had not yet received any payment from her work. However this does not of itself prevent an award from being successful under the Fatal Accidents Ordinance. This is the principle laid down in Taff Vale Railway v. Jenkins ([2]). All that it is necessary for the Plaintiff to show is that there was a reasonable expectation of pecuniary benefit from the deceased, had the deceased not died. I find that to be the case here. 19. I will take the average earnings to be $300 per month though this figure would increase later. Any sum contributed to the family household expenses must be reduced by a sum sufficient to cover the food and lodging of the deceased. It was in evidence that the deceased would keep $100 of her wages. So the amount of contribution to the family will be small. I will put it at $120 per month. 20. The deceased was 20 and would almost certainly marry in her early twenties. And upon marriage it is only reasonable to suppose that contribution to the family would cease if she discontinued working, or be much reduced if she continued. This was the principle behind the reduction of the award by the English Court of Appeal in Dolboy v. Goodwin ([3]). The multiplier in the present case therefore must be small. I will take a multiplier of five. This gives us a figure of $7,200. This must be reduced since there will be lump sum payment. So we reach a figure of $5,760. 21. The death of the deceased occurred before October 7th 1971 hence the provisions of the Intestates Estates Ordinance, Cal. 73 do not apply. The father of the deceased will benefit therefore from the intestacy of the deceased and not both parties. Any sum recoverable by the father from the estate of the deceased must be deducted from any sum awarded to him as damages under the Fatal Accidents Ordinance. 22. Again therefore the figure of $5,760 must be reduced by such sum as would be payable to the father of the deceased. I will put that sum at $1,000. The result is a sum of $4,760. The Plaintiff is entitled to three quarters of this amount which is $3,570. This sum is to be paid to the mother of the deceased and the benefit of herself, the grandmother, the sister and brothers of the deceased. I do not intend to apportion the amount. 23. I will award the sum of $8,000 to the Plaintiff as administrator of the estate of the deceased for loss of expectation of life under the Law Reform (Miscellaneous Provisions) Ordinance. The deceased was killed instantly so there will be no award for pain and suffering. 24. Three quarters of $8,000 is $6,000 and the Plaintiff is entitled to judgment for this amount. 25. Funeral expenses were agreed at $3,788.50. The Plaintiff is entitled to three quarters of this which comes to $2,841. 26. A sum was claimed in the Statement of Claim for the expenses of taking out letters of Administration. This is more properly an item of costs. 27. In the circumstances, there will be judgment for the Plaintiff for $12,411 against both Defendants. 28. Payment of Sum in court to Plaintiff’s solicitors. Leave to parties to apply in chambers as to the correct order for costs.
R. Mills-Owens (Peter Mo & Co.) for Plaintiff A. Zimmern (Deacons) for Defendants. | ||||||||||||||||||||