NG LIN MUI AND OTHERS v. CHOI SIU FAI AND ANOTHER

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JUDGMENT

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Cons, V.-P. delivered the judgment of the Court:

1. At twenty to twelve on the evening of the 29th August 1983 Mr. Law Tang Yip was knocked down by a motorcycle driven by Mr. Choi Siu Fai, the 1st Defendant in the action below, and owned by Mr. Chung Kin Luen, the 2nd Defendant, who was riding pillion at the time. Mr. Law died in hospital early the following morning.

2. The road where the accident took place, Un Chau Street Kowloon, comprises three carriageways in the same direction. There is street lighting, but the standard of the lighting is dim. Neither Defendant gave evidence at the trial. According to the sole witness called below with regard to the accident, just before it occurred the motorcycle had been travelling along the middle carriageway at a normal speed with its headlight on and the deceased had been walking on the pavement at the side apparently intending to cross over. No other traffic was about. The witness did not actually see the accident, but heard it take place after he had passed the deceased for about 5 or 6 paces. The point of impact was probably close to the line dividing the near side carriageway from that in the middle. Judge Ryan, sitting as a Deputy Judge of the High Court, before whom the action for the estate and the dependants came in due course, concluded in a carefully prepared judgment that the deceased had ventured into the road without first checking that it was safe to do so and accordingly was responsible, as well as the 1st Defendant, for his own death. The judge put the deceased's share of the blame at 80%.

3. There is no quarrel in this appeal with the assessment of general damages made below, but it is suggested that the judge's apportionment of blame to the deceased is much too high. Complaint is also made as to the award with regard to funeral expenses. The total which the judge thought to have been claimed in this respect is $65,762.50. As to that he said -

4. It is suggested that the two deductions were not warranted. The judge is accused of being parsimonious with regard to the cost of the coffin. As to the second restaurant function costs, we were referred to the widow's evidence which was in effect that the occasion was a religious ceremony insisted upon by her mother-in-law for the sake of the family's good name. We note however that the judge had already observed, when dealing with other matters, that the widow had a tendency to put her case too highly and we are not disposed to interfere with his conclusion that the ceremonies and the coffin in fact provided in this instance were more than reasonable in the circumstances.

5. We should interpose here that the judge appears to have misplaced some figures in relation to item (b) of the funeral expenses, and then to have made a further error in his addition. If on examination this should be found indeed to be the case the Defendants may, or perhaps may not, think it worth while to seek amendment under the slip rule.

6. As to the question of apportionment Mr. Sarony for the Plaintiffs has urged upon us the principle enunciated clearly in Baker v. Market Harborough Industrial Co-operative Society Ltd. ⁽¹⁾ that where a judge finds that an accident has been occasioned by the negligence of two drivers then, in the absence of any avidence indicating that one was more to blame than the other, he is entitled to apportion the blame 50% to each. Mr. Sarony would, on behalf of his lay clients, be content with such an apportionment in the present instance.

7. Mr. McLanachan on the other hand, for the Defendants, seeks to support the judge's decision by reference to the situation in which the 1st Defendant must have found himself, travelling at 30 m.p.h. and confronted suddenly by a person wandering heedlessly into his path. With only a few moments to make the dreadful decision of how best to try and avoid collision the driver cannot be severely blamed, it is suggested, for taking a course that failed.

8. With respect we do not think that the submission can avail counsel in view of the judge's finding that -

and -

9. The reason behind the judge's decision is to be found in the following passage from his judgment -

10. If by that the judge is accepting as a matter of principle, as he appears to do, that the responsibility of a pedestrian to ensure that the road is clear before crossing is greater than that of a motorcyclist to look where he is going, then we would respectfully disagree. The duty of the driver of a motor vehicle to keep a proper lookout at all times is in our view equally elementary. Of course, evidence from the Defendants as to the exact circumstances of the accident might have enabled the judge to pinpoint the blame with greater accuracy, and perhaps to come properly to the conclusion that he did, but in the absence of such evidence there was no room to put the blame other than on the parties equally.

11. For these reasons we allow the appeal, set aside the judgment below in so far as it relates to contributory negligence and in its stead assess that negligence at 50%. This will take the resulting figure of damages well above the amount paid into court before trial, and subject to argument from counsel we would vary the order of costs below so that the Plaintiffs should have their costs there as well as in this appeal.

(1)    1953 1 W.L.R. 1472