LAU TAK LUNG v. NGAN GUEN MIN and Another

P.I. No. 573/97

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES LIST

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J U D G M E N T

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FACTS

1. On 18th February 1995 at about 7.30 a.m. Lau Kai Ping deceased was crossing the road at Cheung Wing Road outside Tung Chun Soys Canning Co. Ltd., he was hit and struck by a PLB registration No. EX488 ("the PLB) driven by the 2nd Defendant as servant or agent of the 1st Defendant the owner.

2. As a result of the accident the deceased suffered fatal injuries and he died on the same day.

3. The Plaintiff brings this action for the benefit of the dependant of the deceased under the provisions of the Fatal Accident Ord. Cap. 22.

LIABILITY

4. Wong Chi Man who was a passenger in the PLB at the time of the accident gave evidence. He gave a statement which was used as evidence in chief to the effect that on 28th February 1995 in the morning he sat on the offside 4th row of the said PLB. It was travelling along Cheung Wing Road in the direction of Castle Peak Road. He did not pay much attention to the traffic. When the PLB approached the vicinity of Tung Chun Soys Canning Co. Ltd. he looked through the screen and saw there was a man about 6 meters in front of the PLB. At the time when he saw that man he did not notice the driver had reduced speed or changed direction or sounded the horn. He saw the man being knocked down by the PLB at almost the same time as he felt the driver started to brake.

5. In cross-examination he said traffic was not too busy at that time and the speed of the PLB was about 40Km/hour.

6. The 2nd Defendant Leung Kam Hung gave evidence. He said that he drove the PLB that morning. On reaching Tung Chun Soy & Canning Co. Ltd. his speed was about 40Km/hour. There was another PLB about 2 PLB's lengths in front and a light goods vehicle on his left lane about 2 meters ahead. When he reached the part where 3 lanes on the road widened to 4 lanes he started changing lane intending to follow the light goods vehicle, he suddenly saw a man about 4 meters in front on his left crossing the road in a hurry with his head lowered. He immediately applied the brake. He thought the man could cross past the front of his PLB if he kept moving forward however when he slowed down the man suddenly stood still, he braked hard to avoid the man but could not stop in time. As a result the front part of his PLB hit that man. He had a glimpse of that man some 60 to 70 meters away when he saw the man climbed through the railing from the pavement out onto the road. As there were other vehicles moving along the lanes on the left he did not expect the man would run across the road.

7. In cross-examination he said he was familiar with that stretch of the road and from time to time there were pedestrians who would cross that part of the road as a short cut.

8. He agreed that the accident occurred when he was changing lane and the man had crossed 2/3 of the carriageway. His view was blocked by the light goods vehicle in front. When he started to change lane he saw the man on the left front corner of his PLB about 1 PLB's length. The point of impact was on the left front of the PLB and the man was on the 3rd lane on the left.

9. The 2nd Defendant, from his own evidence, was aware that people do take short cuts at that stretch of the road. He saw the deceased climbing out from the railing at a distance of some 60 to 70 meters. Obviously he was aware that the deceased was about to cross the road. The light goods vehicle was about 2 PLB's lengths in front when he was changing lane and when the accident occured. There was no vehicle on his left. His view was not blocked. What had he done? He continued without swerving thinking that the deceased would cross past the front. In my judgment he is negligent.

10. In Williams v. Needham [1972] RTR 387 it was held

"that since the driver knew that the pedestrian was about to cross the road and had not seen the car approaching, he was negligent in not drawing attention to his approach or taking some precaution against the possibility of an accident occurring if she were to cross without looking in his direction..."

11. The next point I have to consider is whether the deceased had contributed to the accident and if so in what proportion.

12. In Tremayne v. Hill [1987] RTR 186 the Court of Appeal held that a pedestrian does not have to cross a road only on pedestrian crossing and that provided he takes reasonable care, he may cross where he likes.

13. In the present case the deceased must have been aware of the oncoming traffic when he climbed out from the pavement and walked onto the road. So to a certain extent he was negligent and had contributed to the accident.

14. In Kong Chung Ching & Another v. Lam King Ho & Another [1992] 1 HKC 104 the Court of Appeal upheld a 50% liability of the deceased when he suddenly rushed out into the road when the van was between 8-10 feet away. That case is a very bad case in that there was not sufficient time for the driver to apply his brake and avoid the accident. In the present case the deceased had walked about 2/3 of the carriageway and had stopped when the PLB was approaching. No doubt he was negligent in that he should not have walked onto the carriageway when there were oncoming cars. Using Kong Chung Ching's case above as a yardstick I assess that he is 25% to be blamed.

Quantum

15. The amount of damages for bereavement in the sum of $70,000 and the funeral expenses in Hong Kong plus transportation costs in the sum of $25,300.00 are agreed. The amounts in dispute are the burial expenses spent in China.

16. Lau Kong Tim the younger brother of the deceased gave evidence that the deceased's wife who predeceased the deceased was also buried in China. He was responsible for the arrangement and had paid for the following expenses :-

1) 300 sets of white clothes, 300 pairs of white shoes and 350 pieces of white handkerchiefs totalling $16,550.00. Those were for relatives who sent the deceased to the burial ground which was far away from the deceased's native place.

2) Adhesive tapes and hemp ropes totalling $215.00. He was not clear as to how the adhesive tapes were use, but he said the ropes were to be tied around the waist of those who attended the burial.

3) The wood-wind instrument band in the sum of $5,500.00.

4) The burial photograph of the deceased and flower wreaths totalling $1,750.00.

5) Hiring charge of boats totalling $2,500.00 & $400.00 being the red packet for the deceased wife's family.

6) $12,000.00 for the purchase of the burial ground.

7) $6,500.00 for erecting the tomb stone.

8) $2,857.00 spent in documentation for the burial.

9) $300.00 fees to government for processing in respect of the burial.

10) $1,500.00 being the documentation fees for arranging the transportation of the corpse and the burial certificate.

11) $1,000.00 for treating relatives for food after the burial.

12) $5,000.00 travelling expenses for his brothers and 4 nieces in Shenzhen to attend the burial including his own expenses for travelling to and from China to arrange for the burial. He had taken 4 trips altogether and each time the travelling expenses was about $300.00

17. Miss To for the Defendants cross-examined in detail as to the religion of the deceased, his social status to suggest that the burial expenses were extravagant and not called for.

18. According to Lau Kong Tim the deceased had a house in China and he intended to go back to reside there once he could arrange for the social benefits he had in Hong Kong to be remitted to China. His children and most of the relatives are still living in China.

19. In Wong Sau Wah and Chiu Hing Chuen v. Leung Kam Cheuk and Yung Kam Chi Court of Appeal No. 46 of 1982 per Barker JA as he then was,

"The question one have to ask is, was it reasonable in all the circumstances to hold these ceremonies. In arriving at our conclusion we have to consider the status, and financial position of the deceased and of his family and also their religious belief."

20. Also concerning funeral expenses Huggins J. in Wong Kam Ying & Ho Po Chun v. Man Chi Tai [1967] HKLR 201 said at p.207 that funeral expenses is no easy and he thought where questions of custom and good taste are concerned the court must take a generous view.

21. Having regard to these 2 cases although the deceased had no social status in Hong Kong, at least he had a house in his native place where most of his relatives live. The religious ceremony presumably and on balance must have been performed according to the customary rites and religion of his descendants and are reasonable in the circumstances as at the time of the burial I doubt if they had proceedings to recover the expenses at the back of their minds.

22. As for the travelling expenses in the sum of $5,000.00 I only allow $1,200.00 being 4 trips taken by this witness for the preparation of the burial. I disallow the travelling expenses for the other relatives because that cannot be considered as part of the funeral or burial expenses. I also disallow $160.00 being costs for adhesive tapes as there was no explanation as to its use nor the $1,000.00 for the food expenses which was not pleaded nor receipt given.

23. In the circumstance save and except the aforesaid 3 items I allow all the burial expenses in full i.e. a sum total of 51,112.00 Yuan Reminbi which is equivalent to HK$47,768.00 at the exchange rate of 107 yuan to HK$100.00.

24. In the premises there be judgment for the Plaintiff in the sum of (70,000.00 + 25,300.00 + 47,768.00) x 75% = $107,301.00 with interests as to $52,500.00 at 12.06% p.a. for 36 months and the balance at 6.03% p.a. for 36 months. Costs to follow the event. Plaintiff's own costs to be taxed in accordance with the Legal Aid Regulations.

(Wesley Wong)

Deputy Judge of the High Court