LO WAI FONG AND ANOTHER v. HO LAI CHI AND ANOTHER

1985, No. A1971

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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JUDGMENT

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1. This is a fatal accident claim made by the widow and the eldest son of the deceased as administrators of his estate,

2. At or about 4.35 p.m. on the 3rd August 1983, whilst the deceased was crossing Lai Chi Kok Road, next to its junction with Fat Tseung Street, from north to south, he was knocked down by a van driven by the 1st defendant in the third lane of the Mongkok bound carriageway. It is common ground that the 1st defendant was, at the material time, the servant and agent of the 2nd defendant and that the van was owned by and driven with the consent of the 2nd defendant for its purposes. After the collision, the deceased was unconscious. He was pronounced dead at 5.20 a.m. following an unsuccessful attempt for his resuscitation in hospital.

3. A police constable attended at the trial for explaining the copy sketch that he drew. The deceased's ex-employers, full-time and part-time, as well as his widow and eldest son also gave evidence which was directed, in the main, at the deceased's general condition and his income and expenditure.

4. The two known eye-witnesses to the accident, a taxi driver and the 1st defendant, were not called. The plaintiffs caused to be produced by consent the statement of the taxi driver and those of the 1st defendant given to the police. The taxi driver was absent from these proceedings, and the defendants did not adduce any evidence at all. Therefore the Court was deprived of the benefit of the viva voce evidence of these two eye-witnesses although the 1st defendant himself was present in Court almost throughout the whole trial.

5. These eye-witnesses' statements were given to the police. They were not, therefore, obtained for the purpose of a civil claim. For the evidence we require, or prefer, in these proceedings, the information given in those statements is necessarily vague and incomplete. Moreover, the contents of those statements are not always clear or consistent. From these statements, this Court was constantly invited to find facts or draw inferences, particularly by Counsel for the defendants. It is really common sense that except for the clearly unobscure parts of these statements, the reasonably known facts must take precedence of all these police statements, particularly when those from the 1st defendant were understandably defensive.

6. Miss Bridges, Counsel for the plaintiffs, was at pains to analyse all the inconsistencies and prevarications of the 1st defendant in his statements. For example, initially the 1st defendant tried to shift all blame to the allegedly defective foot brake, but later in the company of a solicitor he retracted that assertion. As a matter of fact, Dr. Lingard found the function of the brakes satisfactory. At various times, the 1st defendant's statements described the deceased as walking, rushing or running. The 1st defendant also seemed to try to excuse himself on account of a somewhat obstructed view allegedly caused by the screen wiper. One version was that he only realized the collision upon hearing the sound of impact; another was that he saw the deceased four, five feet ahead; and the third was that he first saw the deceased at a distance of six, seven yards. What is perhaps more worthy of note is that from beginning to end, in none of these two statements of the 1st defendant's, had he sought to cast blame on the deceased.

7. The 1st defendant stated that from some 20 feet behind the traffic lights at the road junction, he switched lane from the middle to the fast third lane in the Mongkok bound carriageway of Lai Chi Kok Road. He further stated that his vehicle was the only one travelling along that carriageway at the time as "the traffic in (his) front and on the two lanes to (his) left was clear". The taxi driver's observation would, on the face of it, appear to be conflicting with this version of the 1st defendant's but the taxi driver was not, according to his statement, paying much attention at that time. Besides, the 1st defendant and the taxi driver might well be describing different situations, at different times and from different points, though of the same location.

8. What seems also to be quite clear is that the deceased stood on the pavement for a time with a woman, that the deceased started to cross whilst the woman waited, and that the deceased was certainly not walking along the studded pedestrian crossing but making an attempt to cross it in at least a -hurried pare.

9. According to the sketch that was explained by Constable Wong, the Lai Chi Kok Road at the junction of Fat Tseung Street had dual 3-lane carriageways on each side running easterly towards Mongkok and westerly towards Tsuen Wan. At the junction of Lai Chi Kok Road and Fat Tseung Street, there were traffic lights for vehicles entering the junction from all four directions. The deceased was attempting to cross the Mongkok bound carriageway from north to south and, on the northern pavement of that carriageway, as can be seen from the photographs in the Agreed Bundle, the deceased was unable to actually see the light signals for vehicular traffic. There was no lighting controlling the flow of pedestrians along that studded crossing. The pedestrian crossing area was well lit and described by Constable Wong as "quite bright". The deceased was wearing a beige T-shirt, dark-coloured shorts.

10. The width of the three lanes in the Mongkok bound carriageway was from first to third, 3.1 m., 3.3 m. and 3.4 m. respectively. The off-side front of the van collided with the deceased. As can be seen from photograph 11 in the Agreed Bundle, the off-side front indicator and side lamps were damaged. The van left two straight tyre mark tracks from the Mongkok edge of the studded pedestrian crossing. These tracks on the road show that the van was travelling or skidding virtually in the middle of the third lane. As the deceased was struck by the off-side front of the van, he must have managed to make it to about two-thirds of the width of the third lane. Therefore, the deceased had travelled about 8½ m. (close to 8.8 m. to be more exact) of the entire width of the 9.8 m. carriageway. In other words, the deceased must have travelled some 25 feet or more from the pavement before he was hit. Or to take it from the other end, the deceased must have reached within about 1 meter or 3 feet from the road centre. Calculating the deceased's pace at four quick steps per second, quite arbitrarily, probably the deceased had been on the studded pedestrian crossing for some two seconds (i.e. eight quick 3-foot steps, covering some 24 feet or 8 m.). On his own admission, the 1st defendant's view in front was unobstructed from at least 20 feet behind the Mongkok bound traffic lights on his approach to the junction. Unless the 1st defendant was grossly negligent in not keeping a proper lookout, it is inconceivable that he could have missed noticing the deceased on the studded crossing. Further, on his own admission again, the 1st defendant was familiar with this stretch of Lai Chi Kok Road, and he should have taken heed of the whereabouts of this studded crossing lying just ahead of the junction. The 1st defendant did, however, state that he saw no pedestrian on the crossing or on the pavement intending to cross the road "when he get into the road junction". If the deceased had not been on that crossing then, he would not have been able to make it to somewhere just 3 feet from the centre on the other side. It was only drizzling and the area was well lit. The deceased's T-shirt should have been conspicuous from at least some 20 feet beyond the traffic lights before the junction. Absence of any cross-examination has made it more difficult to reconcile the prevarications in the 1st defendant's statements. In the circumstances, I find that the 1st defendant negligently failed to keep any proper lookout. I also find that the 1st defendant failed to take heed of the presence of the studded pedestrian crossing.

11. According to Dr. Lingard, the 1st defendant's van was travelling "at least 39 m.p.h. and probably rather higher". Dr. Lingard supported an estimate of 49 m.p.h. The permitted maximum speed along that stretch of Lai Chi Kok Road was 30 m.p.h. Negligence arising from a breach of traffic regulations in relation to such maximum speed has not been pleaded. Particularly in the circumstances of this case, speed by itself cannot be the touchstone for negligence. But having regard to the lawful speed limit, the wet concrete road surface and the studded pedestrian crossing coming up immediately after the road junction, I have no hesitation to find that 49 m.p.h. was just too fast even at 4.30 a.m. To attempt yet another reconstruction : The deceased was knocked down by the off-side front corner of the van. He was about to clear himself from the path of the on-coming vehicle. If the 1st defendant had been driving below the permitted maximum speed of 30 m.p.h., it would have been most probable that the deceased would be able to manage to step past the 1st defendant's vehicle and avoid the accident. I find that the 1st defendant was driving much too fast and that his excessive speed in the circumstances, inter alia, caused this accident. The 1st defendant, I conclude, was negligent.

12. Was the deceased also negligent? He was caught by the 1st defendant's van in the middle of the fast 3rd lane. Even at the-speed of some 49 m.p.h., the 1st defendant's van could not have been too far away from the junction for the defendant to ignore. The lights were in favour of the Lai Chi Kok Road traffic flow. The deceased ought to have, at least, ascertained, if he did not in fact know it, what the vehicular traffic light situation was before attempting to cross. He must also be negligent. It is quite possible that the 1st defendant could assist the Court in the distance at which he first began to enjoy an unobstructed front version. That would be evidence also as to when the deceased could have first noticed the 1st defendant's approaching van. Assuming, for the purpose of illustration, the 1st defendant had been driving exceedingly fast and therefore must have been in what could be reasonably taken as more than a safe distance from the pedestrian crossing for the deceased to make his attempt, the deceased might well have been wholly exonerated. But as I was urged by Counsel for the defendant, I should confine myself to the evidence placed before me and must not allow myself to feel disturbed by any speculation. I think in that regard Mr. Ismail must be right. In the circumstances, on the evidence presented, I find that the deceased was also negligent. Doing the best I could, I would put his contributory negligence at 20%.

13. The deceased was 52 years old. He was some 5 foot tall, and in apparent good health from his post-mortem examination report. The deceased took practically no sick leave. A long time ago, he was a social smoker. He virtually had no vice. His enjoyment was confined to television and radio. He was a conscientious, good, hard working man. Retirement was never on the cards. He had been keen to continue working as long as he could. The Vegetable Market Corporative in which the deceased was engaged and had a part-time job has been and still is engaging elderly vegetable sellers. The deceased's co-worker, now 70 odd, remains in the employ of Mr. Ng to-day, the deceased's then employer. I would agree with Miss Bridges that in these circumstances a multiplier of 10 is appropriate.

14. The deceased took no Sundays off and he was known to have been absent on Sunday one, twice or three times during his three years with his then employer, Mr. Ng Sheung. The deceased often worked late, coming home to dinner only three, four times a month. According to Mr. Ng Sheung, the deceased would receive overtime whenever sale of vegetables had yet to complete, and that happened very often. Mr. Ng gave the deceased's over-time as $280 a month on the average : $280 a month was "merely an average figure - sometimes it was more and sometimes it was less". The deceased's eldest son told the Court that vegetable market workers including the deceased had dinner in the nearby restaurants. I find that the deceased constantly worked overtime and his average overtime pay was, as Mr. Ng put it, $280 a month. Mr. Ng also told the Court of the present wage of the deceased's said co-worker whose performance is below the deceased's. From Mr. Ng, we learned of the abolition of overtime. Mr. Ng was unable to help us on holiday pay which he left to his secretary. There was no evidence, therefore, as to what holiday pay, if any, is now being paid to the deceased's co-worker. Mr. Ng, an elderly kind gentleman, intimated that he would not disallow his employees seeking part-time employment if their expenses needed to be supplemented. On probabilities, if the deceased had continued to work for Mr. Ng, he would have been able to continue with his part-time employment with vegetable stalls earning, I was told, still the same $1,000 a month today.

15. The widow described her expenditure out of the $2,500 a month given to her by the deceased. She testified that six, seven times a year the deceased would give her an extra $200 or $300 more. That would, as fairly suggested by Miss Bridges, yield an extra $100 a month for the family from the deceased. The deceased only had lunch at home, costing about $5 to $6, i.e. an average of $5,50 per meal and he stayed home for just three, four dinners at the same cost. Calculating some 34 meals per month at $5.50 per meal, that would be $187 (say $190). Of a usual one-fifth share of communal food expenses in a family of five, the deceased would, I think, take only half of his one-fifth share because of his frequent absence, that is to say, one-tenth of the total expenditure for the family food. With one-tenth being $190, nine-tenths will then be $1,710. That, together with the deceased's estimated share of food expenses of $190 would make a net total of $1,900. Hence, after that the widow would have only some $700 left. The deceased looked after his own clothings and sparse personal expenses. Both Counsel shared the view that out of the $700, approximately $200 would be spent on miscellaneous items enjoyed also by the deceased as a member of the family. Therefore the deceased's own share in that would be $40, and $190 plus $40, the deceased's total share of the family expenditure would be $230 per month. We know the income of the deceased at the time of his death and we know the income of his co-worker today. I should repeat that the vegetable stall owner attending Court told us that the $1,000 for the part-time job remained the same. I accept Miss Bridges' submission that taking into consideration the hard reality of annual increment, despite the absence of direct evidence, I should adopt a median annual income as Counsel postulated.

16. I need refer to one further matter. The deceased contributed to the occasional assistance given to his younger son. If alive to-day, the deceased would certainly be prepared to provide similar assistance to his two daughters, one in America and the other in Australia. These contributions would cease eventually when both daughters are qualified and gainfully employed. For ease of calculation, I think it would be fair to assess the deceased's more liberal personal share of his expected future earnings in later years at a round figure of 40%.

17. Miss Bridges submitted a well-prepared summary of calculations based on evidence or inferences to be drawn from the evidence. Similarly, in his final submissions Mr. Ismail made a real contribution by following the same pattern in calculation. I accept the calculations submitted by Miss Bridges as amended. The facts and inferences from the evidence in support of those calculations I formerly make them my findings. I was also invited by both Counsel to ignore Fatal Accident Damages and confine to Law Reform Damages in the circumstances of this case.

18. The amended calculations are set out below :

19. Interests is not a matter in dispute, and the consensus was that there shall be 2% on the loss of expectation of life of $20,000 from the service of the writ to the date of judgment. There shall be also interest on the funeral expenses of $5,000 at half of what has been described as the appropriate rate for this case i.e. 6.5% from the date of accident to the date of award. There shall be interest on the pre-trial LARCO claim, also at half of the appropriate rate from the date of accident to the date of judgment. Obviously, there will be no interest on post-trial LARCO damages.

20. Finally, judgment should be given to the plaintiffs against the defendants in the sum of $317,108,88 with interests at the above-mentioned rates respectively. The defendants shall have 14 days from the date of judgment to pay; judgment debt to be paid to the Director of Legal Aid. The plaintiffs to have costs against the defendants taxed in accordance with the Legal Aid Regulations.