LOONG CHOI HING v. YAM KIT YING AND ANOTHER

Fatal Accident - damages - taxi runs over pedestrian - contribution - disputed funeral expenses relating to two religious ceremonies and entertainment charges for mourners - whether letters of administration costs properly special damages - Held: 1. Taxi driver 65% negligent and deceased pedestrian 35% negligent; 2. In circumstances two religious ceremonies reasonable and allowed; 3. Law well settled that entertainment expenses not recoverable so disallowed; 4. Costs of obtaining letters of administration not recoverable as special damages but are a proper amount to be included in plaintiff's party and party bill of costs as a charge against defendants. 5. Net damages of $31,626 awarded.

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

H.C. Action No.5325 of 1986

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JUDGMENT

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1. This action for damages, under the Law Amendment and Reform (Consolidation) Ordinance Cap. 23 and the Fatal Accidents Ordinance Cap. 22, arose out of the death of Ma Yee, in a motor traffic accident on 22nd July 1984. The plaintiff is also the widow of the deceased. The 2nd defendant was the driver of the taxi involved in the accident as a consequence of which the deceased died. The 1st defendant was the owner of the taxi. Counsel for the defendants admitted that if the 2nd defendant were found liable, then the 1st defendant accepted vicarious liability for his negligence.

Liability:

2. At about 11.55 a.m. the 2nd defendant was driving taxi Registered No. CG8480 from Star Ferry, en route to Lee Gardens Hotel in Hysan Avenue. Madam Rosamund Chang was a passenger in the taxi together with two friends who were visiting Hong Kong. The taxi continued its journey along the Canal Road Flyover and commenced to drive down the Canal Road East slip road to enter Leighton Road. On reaching the bottom of the slip road the deceased, then aged 79 years, commenced to cross the road. He crossed in the path of the 2nd defendant's taxi. The taxi knocked him to the ground. He died shortly afterwards from the injuries sustained in the collision.

3. The first issue is whether the 2nd defendant was negligent. It was undisputed that the accident occurred just before midday on a Sunday; the sun was shining brightly; visibility was good; road traffic was light. The plaintiff heavily relied on the evidence of the passenger Madam Chang who was seated in the rear offside seat of the taxi. One of her friends was also seated in the rear of the taxi, on the near side behind the driver. The other passenger was seated in the front seat next to the driver and immediately in front of Madam Chang.

4. Madam Chang is the holder of a driver's licence but has not driven recently. She stated that from boarding the taxi at Star Ferry, it was driven at a reckless speed throughout the journey. In the earlier part of the journey she estimated the speed of the taxi at more than 30 m.p.h. Along the Canal Road flyover she considered it still travelled at a high speed. On going down the slip road, Madam Chang stated she observed the deceased climbing through pavement railings and commence to cross the road. She stated that he walked across the road at a normal pace and did not run or walk quickly. She did not notice him stop and look both ways before crossing. Madam Chang stated that the 2nd defendant sounded his horn and then stopped in a normal manner. However, before the taxi stopped it knocked the deceased to the ground. She also stated that the taxi swerved before the accident. At the time of the collision she considered that the taxi was still travelling at a high speed. The deceased was flung onto the window screen and the impact, she stated, bounced him back onto the street. She stated that the 2nd defendant did not brake sharply but came to a normal halt. She was not thrown forward or affected by the manner in which the taxi came to a stop.

5. In her police statement she estimated that the deceased was 30 feet in front of the taxi when she first saw him. In Court she explained that was only an estimate and she was not good at estimating distances. Some of her other evidence on distances supported this concession. Before me she estimated, from comparable distances in the Courtroom, that she first saw the deceased about 35 feet away, after earlier estimating the distance was 100 yards. Apart from this aspect of her evidence, I found her to be a reliable witness on other matters.

6. There was some corroboration on speed from the 2nd defendant himself. He stated in evidence in-chief that he travelled along the Canal Road Flyover at about 30 m.p.h. in third gear which was the top gear of the taxi. Going down the slip road he did not change down a gear, as suggested by his Counsel, but stated that as he was going down a slope his speed would have reduced. He later explained this contradictory statement by saying that normally on going down a slope he braked to reduce speed and did on this occasion. In cross-examination he agreed that his speed down the slip road was about 30 m.p.h. but about 20 m.p.h. when he commenced to apply the brakes to avoid the accident. These speeds were estimates as he did not look at the speedometer. Before the slip road he agreed that he was travelling at over 30 m.p.h. Later he stated that before the taxi bit the deceased it was possible that he was travelling at over 30 m.p.h. In his favour, I am prepared to infer, that he was referring to his speed higher up the slip road.

7. The 2nd defendant stated that his taxi reached the bottom of the slip road without anything happening. However, at that point he stated he saw the deceased about one taxi length in front of him. According to the 2nd defendant the deceased dashed out on to the road from his right and was running across the road. When the 2nd defendant first saw the deceased he was already about 4 feet from the railings and 3 feet from the kerbside. There was a narrow strip of pavement between the kerbside and the railings which were placed further inwards from and parallel to the kerbside. The 2nd defendant stated that as the road was protected by the railings he had not anticipated pedestrians entering the road at that point and had given his main attention to the road junction to his left, rather than to where the deceased started to cross the road from his right. He agreed that road traffic was light and that coming down the slip road there were no cars ahead of him. The slip road was sufficiently wide to accommodate 2 cars.

8. On the evidence I find that the 2nd defendant drove at a speed which was excessive in the circumstances. As to the conflict in the evidence whether the deceased walked or ran, I prefer the evidence of Madam Chang. Apart from her own candid admission that her estimate of distances was not good, the rest of her evidence was given calmly and convincingly. Her evidence is reinforced by the deceased's age, although I also take into account that he was apparently in robust health, for his age, before the accident. I find that the deceased commenced to walk across the road at a normal pace and did not run or dashed out.

9. On the evidence I also find that the 2nd defendant did not keep a proper lookout. He was driving from a flyover where pedestrians were prohibited, down onto the lower road where pedestrians were allowed. The accident occurred in the latter area. He should have anticipated and have been alerted to the possibility of pedestrians in the vicinity. The 2nd defendant only observed the deceased when he was on the road. Yet Madam Chang, from her more remote position in the rear seat with a front seat passenger affecting her view ahead, had noticed the deceased at a much earlier stage when. he was still going through the railings. I am satisfied that if the 2nd defendant had kept a proper lookout, he would have seen the deceased earlier. On his own admission had he seen the deceased earlier, the accident might have been avoided. I accept that the 2nd defendant braked and the police plan, admitted by consent, provides evidence of a relatively long skid mark. That skid mark is consistent both with relatively high speed and relatively moderate breaking. I have also on this issue taken into account the Table of Braking Distances tendered from the English Highway Code.

10. I find that the combined factors of excessive speed and failure to keep a proper lookout, materially contributed to the accident. On those findings I hold the 2nd defendant negligent and the 1st defendant vicariously liable.

11. The remaining question on liability, was whether any negligence of the deceased, contributed towards the accident. On this issue the position where he elected to cross the road is relevant. As a matter of law he was entitled to cross that road at that point, even though he had first to pass through the railings. However, the railings while not preventing pedestrians from crossing at that point, discourage pedestrians from doing so. I accept that drivers are entitled to anticipate that pedestrians are less likely to cross at such points. When a pedestrian does elect to cross then, while the universal duty of care remains unaltered, what factually may be reasonable conduct on his part, is affected by the circumstance that the railings are constructed at that point. A pedestrian should therefore ensure that he takes particular care to ascertain that no oncoming traffic is approaching. He should take into account that drivers are less likely to anticipate that pedestrians may cross the road at that point.

12. On the evidence I am prepared to infer that the deceased failed to take sufficient care to ensure that no oncoming traffic was approaching. What then are the proper proportions of negligence? Counsel for the plaintiff, while not conceding any contribution, submitted that if there were, the deceased was at most 25% negligent. Counsel for the defendants, while submitting that the deceased was wholly responsible for the accident, on the issue of contribution considered that he was at least 85% to 90% negligent. I was referred to Ho Shiu Sau v. Tam Ming Sun HCA No.3511/82 where a 76 year old pedestrian was knocked down by a Public Light Bus. On the facts of that action the pedestrian was found to be 85% to blame for the accident. It is usually not helpful to consider the facts of different cases in determining the issue of contribution in negligence actions. Invariably the facts differ. However, as the case was cited I would make a passing comment that in that case, there was no evidence of speed on the part of the driver. There was also positive evidence coming from the pedestrian herself, that she did not look towards any oncoming traffic. I accept that there were also railings through which that pedestrian crossed the road but I consider the principal basis of the Court's finding, was her failure to keep a proper lookout.

13. In the present action I am well satisfied that the combination of the 2nd defendant's excessive speed and failure to keep a proper lookout was the principal cause of the accident. The fact that the Police elected not to prosecute was not directly relevant to the different civil issue I have to determine. In any event, with respect, the Police enquiry officer seemed to give an excessive importance to the railings which, as a matter of law, they did not possess. On the other hand, the presence of the railings, while not exempting the 2nd defendant from liability, are relevant to the issue of contribution. I am prepared to infer that the deceased should have taken more care before crossing at this particular point but that his failure to do so was of lesser significance. On these findings I hold that the defendants were 65% responsible and the deceased 35% responsible for the accident.

Quantum:

14. On the facts the claims under the two empowering Ordinances merge and I will proceed to consider quantum under the Law Amendment and Reform (Consolidation) Ordinance. The deceased is survived by one dependant namely, his widow, the plaintiff, now aged 77 years. The defendants agreed to pay $20,000 for loss of expectation of life.

15. As to damages for lost years, the deceased at the date of death earned in the region of $1,500 per month of which he gave $1,000 to his wife for family expenses. She stated that she expended this sum for their joint expenses and benefit. Counsel for the defendants submitted that the proper free balance was $500 per month. Counsel for the plaintiff argued for a free balance of $800 per month. I find the free balance to be $500 per month.

16. The plaintiff submitted that the appropriate multiplier was 3 years referring to the 3 years allowed by the Master in Leung Tik Hoi v. Chan Kook Fai HCA No.12089 where the deceased was 81 years old. The defendants suggested that the proper multiplier was 6 to 12 months. I also note that in Mak Yuk-kiu v. Tin Shing Auto Radio CTR Ltd. (1981) HKLR 77, cited by the plaintiff on a different issue, that in the case of a deceased aged 76½ years, the Chief Justice applied a mnltiplier of 1 year.  In the present case the deceased aged 79 years, was obviously near the end of his working life and in normal circumstances a multiplier of 1 would not be unreasonable. However, here we have a man who was in robust health, employed by a relative on very good terms including substantial periods of paid leave. In these rather exceptionl circumstances, I am prepared to allow a higher multiplier of 2 years. This produces loss of earnings of $12,000 being $500 x 24 = $12,000. I record that the loss of earnings were all pre-trial.

17. Special damages were strongly contested. There was a claim for the cost of obtaining letters of administration to enable this action to be commenced, amounting to $2,550. Counsel for the defendants stated that while this expense was not contested it should not have been claimed as an item of special damages but instead included as a plaintiffs disbursement in the party and party bill of costs to be taxed at the completion of the action. I accept that submission. The claim as special damages will be disallowed but may be included in the plaintiff's bill of costs against the defendants. I also disallow the claim of $600 for clothing which was not strictly proven.

18. The remaining item was funeral expenses which were pleaded in the sum of $20,000. The defendants took issue with a number of the items making up this sum and were only willing to pay $10,053. The first objection was in relation to claims for food and cigarettes provided for mourners totally $1668. There is a strong line of cases from Wong Kam Ying v. Man Chi Tai (1967) HKLR 201 to the more recent Court of appeal judgment in Wong Sau Wah v. Leung Kam Cheuk CA No.46 /82 that reasonable expenses of burial of the dead are recoverable but the cost of provision of food or entertainment of mourners is not. The claims totalling $1668 must be disallowed.

19. The remaining disputed items related to the fact that two different ceremonies were held with a substantial interval of time between them. I am prepared to allow the expenses incurred for both ceremonies taking into account the tragic nature of the deceased's death and the other relevant factors listed in Wong Sau Wah v. Leung Kam Cheuk (supra). Finally, I am prepared on the whole of the evidence to find that there was no duplication of tombstone expenses and that only one claim has been made. In the result I allow funeral expenses of $16,953.

20. Accordingly, I award net damages of $31,826 made up as follows:

General Damages:

	1.     Loss of earnings	12,000
	2.     Loss of expectation of life	20,000	32,000

Special Damages :

	Funeral Expenses	16,963 48,963
	LESS 35% contribution	17,137
	NET DAMAGES	$31,826 ======

21. Interest on the net $13,000 awarded for loss of expectation of life shall be paid at the rate of 2% per annum from the date of service of the writ until today. There shall be interest at the rate of 4% per annum on loss of earnings, which were all pre-trial, and on funeral expenses both from the date of the fatal accident until today. As to costs, there will be an order nisi, pursuant to Order 42 rule 5B(6) Rules of the Supreme Court, Cap.4, that the defendants shall pay the plaintiff's costs to be taxed in accordance with the Legal Aid Regulations, Liberty to apply in relation to any other consequential matters is reserved.