Tin Ho v. Chan Kin Tai and Another
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IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CIVIL APPEAL NO.25 OF 1971 (On appeal from O.J. 1600/70) ________________________
________________________ Coram: Huggins and McMullin, JJ. ________________________ JUDGMENT ________________________ Huggins, J.: 1. This is an appeal against a judgment of Briggs, J. awarding to the Respondents damages under the Law Reform (Miscellaneous Provisions) Ordinance and the Fatal Accidents Ordinance, they being the administratrices of CHOI Ching-chun, who was killed in a traffic accident at the 18½ milestone between Tai Po and Fanling on 16th October 1969. The learned judge found the Appellant, the owner and driver of a Volkswagen motor car, to be 80% to blame for the death of CHOI Ching-chun and, according to the formal judgment drawn up and entered, awarded damages in the sum of $4,441.96 for the estate and the sum of $76,800 for the dependants. 2. The judgment is attacked on three main grounds. First it is contended that the evidence did not justify a finding of liability at all. Secondly, it is said that, even assuming that the Appellant was in part responsible, the apportionment of blame was wholly wrong. Thirdly, counsel submits that the assessment of damages made no proper allowance for the fact that the compensation would be paid in a lump sum. 3. Although the judgment does not throughout draw a clear distinction between recital of the evidence and the making of findings of fact I understand the judge to have found as follows. The Deceased was the proprietor of a rice shop and he desired to deliver a bag of rice to a customer near the 18½ milestone. He arranged that he and the rice should be transported in the lorry of another rice merchant, CHEUNG Koon-ching, who himself drove the lorry. On reaching a spot on the opposite side of the road from the premises of the Deceased’s customer Mr. Cheung parked his lorry on the pavement. At that point the road was 23½ feet wide and was straight for a distance of some 400 feet in each direction. The weather was fine and the road dry. The time was about 1 p.m. and the visibility was excellent. Mr. Cheung’s assistant then helped the Deceased to place the sack of rice on the Deceased’s right shoulder, after which the assistant jumped back on to the lorry and Mr. Cheung drove off again almost at once in the direction in which he had previously been travelling. The bag of rice weighed 133 pounds. The Deceased started to cross the road before the lorry started and he proceeded almost to the centre of the road, very close to the broken white line. There he stopped and then started walking again. While crossing the second half of the road he was struck by the Appellant’s vehicle and suffered very extensive injuries. The Appellant was driving in the direction opposite to that of the lorry. The judge did not indicate which of the conflicting statements as to the speed of the car he believed, but I will assume for the purposes of this judgment that it was initially fifty miles an hour, that being the highest speed alleged. Again, the judge does not clearly state at what distance he believed the Appellant to have seen the Deceased, although when referring to a sketch plan which was exhibited he said
As the judge expressed no doubt about the accuracy of the sketch plan it is probably safe to assume that it was accurate, that he found that the Appellant did brake when he first saw the Deceased and that, in consequence, the Appellant first saw the Deceased when he was much further away than fifty feet. The plan suggested that the Appellant had braked hard about eighty feet from the point of impact, he then releasing his brakes and, after the car had travelled about fifty feet, braking hard again. It also suggested (1) that near the point of impact the Appellant swerved to his left and (2) that the Appellant was, until he swerved, not driving close to the left hand side of the road but about one foot from the centre of the road. The judge found that the Appellant sounded his horn when he first braked and that the reason why the Deceased stopped near the middle of the road was that he knew the Appellant was approaching. Apart from the lorry, the Appellant’s car and the Deceased there was no traffic at that spot at that time. 4. Based on these primary findings of fact the learned judge found that although both parties were to blame for the accident the Appellant was very much more to blame than the Deceased: blame attached to the Appellant because he was going too fast and did not keep a proper lookout. Counsel submits that neither inference was justified. He says, and I agree, that subject to any contrary demands of traffic and weather fifty miles an hour was not per se an improper speed for the Appellant’s motor car on that road. The learned judge did not mention in his judgment the uncontested evidence that the road was not subject to a speed limit. Assuming, since he said nothing to the contrary, that the judge thought the Appellant was going too fast at all times, from the moment he first entered this straight stretch of road up to the moment of impact, I do not think his finding was justified. Again, he did not make any finding as to the speed of the car after the Appellant first applied his brakes. The Appellant’s own evidence was that he was initially travelling at about forty miles an hour and slowed to about thirty miles an hour and the subsequent brake marks indicated on the plan would probably be consistent with a reduced speed well under forty miles an hour. The judge then said that if the Appellant had been keeping a proper lookout “he would have seen the deceased long before he did and could have slowed down and thus avoided the accident”. These conclusions are open to attack at several points. First, the learned judge does not make any clear finding as to either the point at which the Appellant did see the Deceased or the point at which a proper lookout would have enabled him to see the Deceased. It does not appear that any point was made at the trial of the fact that by pulling out into the carriageway when, to his knowledge, the Deceased was starting to cross the road Mr. Cheung effectively screened the Deceased from the view of any driver approaching from the opposite direction. At what point the approaching driver would cease to be unsighted would depend upon the relative positions of his own vehicle, Mr. Cheung’s lorry and the Deceased – and also possibly on the construction of the lorry. This aspect of the case was not fully investigated – but I hasten to add that counsel who appeared in this Court did not appear in the court below. There is evidence that Mr. Cheung had gone 250 feet when he saw the Appellant’s car, but he did not give even an approximate indication of where the car then was nor did the judge say whether he believed or disbelieved Mr. Cheung’s evidence on that point. There was also evidence that the Appellant’s car had already passed the lorry when “vehicle” (presumably the lorry) reached “7th tree, 6 - 7th tree from farm”, but no attempt was made to ascertain where that tree was. Despite the Appellant’s own estimate of the distance at which he first saw the Deceased the plan, when coupled with the Appellant’s evidence (believed by the judge) that he braked on first seeing the Deceased, would suggest that he first saw him at a distance of some 130 feet. Mr. Ming Huang submits that the Appellant had a clear view for at least 300 feet but that depends upon acceptance of the evidence that Mr. Cheung had already gone 250 feet when he first saw the Appellant and upon the assumption that he saw the Appellant as soon as it was possible for him to do so. The finding was not made and the assumption is not justified. If Mr. Cheung’s lorry was not unsighting him the Appellant would have been able to see the Deceased for 400 feet and failure to see him would have been negligent. However, there was no finding that he was not unsighted and there was no evidence upon which to base such a finding. It might seem strange that when asked whether the Deceased’s view was obstructed the Appellant himself replied “I don’t know”, because it would necessarily follow that he does not know whether his own view of the Deceased was obstructed, though it must be mentioned that he seems to have thought that the Deceased was carrying the bag of rice on his left shoulder and he may have thought that that could have obstructed his view. Even so, if his own view was obstructed by the lorry the Appellant might have been expected to say that the Deceased’s view was equally obstructed by the lorry. If the Appellant was at any stage unsighted by the lorry then, since the Deceased would be able to see the near side of the Appellant’s car before the Appellant would be able to see the Deceased, the negligence of the Deceased in not seeing the Appellant and in continuing to cross the road would necessarily be greater than the negligence of the Appellant in not seeing the Deceased and not braking earlier. But the first question is whether the evidence supported a finding of negligence against the Appellant at all. The burden of proof was upon the Respondent. The judge appears to have assumed, without finding, that the Appellant was not unsighted by the lorry. He gave as one reason for saying that the Appellant was going too fast and not keeping a proper lookout that
With all respect that was a non sequitur, as is conceded by counsel on both sides. The only possible basis of a finding of negligence on the evidence appears to me to be that the Appellant assumed the Deceased would wait for him to pass before continuing across the road and that he released his brakes after the initial deceleration. If the Deceased had been unburdened that might have been reasonable, but even in the short time available it ought to have been apparent that the Deceased was carrying a very heavy load which might seriously hamper his freedom of movement and manoeuvre, while it is a matter for comment that on the Appellant’s own evidence the Deceased had the sack on his left shoulder, where it would have completely masked his view in the direction of the Appellant. That is not to say that I agree with the contention of counsel for the Respondents that the Appellant should have expected the Deceased “to do something stupid”, i.e. to walk right under the wheels of a fast approaching vehicle, though I might in some circumstances agree that, to use the words of Havers, J. in Hurlock v. Inglis([1]), a driver should “contemplate the possibility that somebody might do something a little stupid” – and I emphasise the word “little”. If counsel were right no one in his senses would go within 50 yards of a modern highway not confined by a substantial barrier. Although I have not found it easy to reach a decision I think there was just enough evidence to justify a finding of negligence against the Appellant, but on the evidence I am fully satisfied that the apportionment made by the learned judge cannot stand. Accepting, as I think we are bound to do although I have some doubt whether it is correct, the finding that the Deceased stopped because he became aware of the Appellant’s oncoming vehicle I would hold the Appellant 15% to blame and the Deceased 85%. 5. That brings me to the contention that the learned judge has not sufficiently discounted the damages to allow for the fact that payment will be in a lump sum. It should be said at the outset that the learned judge did not overlook this factor, for he said:
What counsel for the Appellant submits is that the figure of $1,000 was the learned judge’s finding of the dependency and that, if the multiplier of 8 was supposed to take into account the fact that there would be a lump sum payment, it was manifestly too high: either a multiplier of 6 should have been taken or the product obtained by taking a multiplier of 8 should have been discounted at 8%. Counsel for the Respondents, on the other hand, contends that what the judge has done is to discount the figure of the dependency, taking $1,000 per month where the evidence (which the learned judge appears to have thought reliable) seems to have indicated a dependency of $1,300. Normally one would reject out of hand any suggestion that a judge had adopted such an extraordinary method of calculation, since dependency is a matter of fact, but the language used in the judgment under appeal lends some colour to the argument: the passage cited could mean that the judge has taken the fact that there would be a lump sum payment into consideration in making his finding of the dependency and he has not otherwise explained why he has taken $1,000 as the dependency instead of the $1,300 indicated by the evidence. Once again our task is hampered by the wholly unsatisfactory note of the evidence which is before us. It is recorded that the second Respondent said “Father gave in support of family about $1,300” and that “food would cost $420 which excludes father’s food and other expenses”. The domestic expenses she particularised came to $1,406 a month. It is not at all clear how much of the suggested round figure of $1,300 went towards the expenses of the Deceased himself but the impression given by a reading of the notes of evidence is that very little (if any) of it was spent on him. Certainly there would appear to have been no reason to think anything approaching $300 was attributable to him. It may be that the whole or a substantial part of the $300 deducted was in respect of the probability, mentioned by the learned judge, that the Deceased would as he grew older have to recruit an employee to do the heavy work which he had managed to do himself up to the date of his death. Future prospects are more conveniently dealt with in relation to the multiplier and it would have been far more satisfactory if the learned judge had dealt with the dependency and the multiplier separately so that it was clear what his approach was, but it is for any party who alleges a misdirection to establish that the learned judge has in fact misdirected himself. I am not persuaded that the learned judge did take into consideration the fact that there would be a lump sum when finding the dependency: although ambiguous his judgment is equally consistent with his having taken that into consideration in arriving at the multiplier in accordance with the usual practice. 6. In those circumstances was a multiplier of 8 incorrect? The Deceased was a healthy man of about 53 or 54 years of age. His mother, who was one of the dependents on whose behalf the claim was made, was aged about 70 but his father had presumably died – at what age and of what cause we are not told. The widow is, like the Deceased, about 53 and there are five dependent children, whose ages range from 15 to 5 years. Even if the probability that the Deceased would later have had to employ an assistant had not been taken into account in arriving at the dependency I would not consider that a multiplier of 8 was unreasonable. If that factor was the reason for discounting the dependency then I would think a multiplier of 8 ungenerous and that a multiplier of 9 or 10 could have been justified. In any event I do not think that a case has been made out for reducing the learned judge’s figure. 7. I confess that I have had difficulty in understanding the figures for which judgment has been entered. In his judgment the learned judge first assessed the damages on the basis of 100% liability as $13,642.45 under the Law Reform (Miscellaneous Provisions) Ordinance and $96,000 under the Fatal Accidents Ordinance. He then said
That passage is a separate paragraph and would therefore at first sight represent the total judgment, but he went on to apportion the $94,080 among the dependants so that this figure must have been intended as the damages under the Fatal Accidents Ordinance only. There then follows another paragraph in these terms:
The funeral expenses, however, had already been included in the award of damages under the Law Reform (Miscellaneous Provisions) Ordinance. When the judgment came to be entered it was realised that $94,080 was not 80% of $96,000 and the learned judge was asked to amend his judgment, which he did. Thereafter the judgment formally drawn up and entered was for $76,800 (which, though not so stating, was clearly under the Fatal Accidents Ordinance) and “$4,441.96 being the amount of funeral expenses of the deceased”. Nothing is there said about the balance of the damages awarded under the Law Reform (Miscellaneous Provisions) Ordinance, being damages for loss of expectation of life and compensation for the rice. Why that was omitted has not been explained to us and I mention the matter only for the purpose of making it clear that the order of apportionment which we make will apply to all the damages paid or payable in the action. It may be that there has been an erroneous application of the principle laid down in Davies Powell Duffryn Associated Collieries Ltd.([2]) that a deduction should be made from a dependent’s damages under the Fatal Accidents Acts in respect of any pecuniary benefit likely to accrue to him from an award of damages under the Law Reform (Miscellaneous Provisions) Act 1934, but it is unnecessary for us to pursue the matter further. 13th October, 1972. C. Ching (H.A. Hoosenally & Co.) for appellant. Ming Huang (C.P.Lin & co.) for respondent. | ||||||||||||