YU BIK CHU AND OTHERS v. YU FAI LOK AND ANOTHER

1983 No. 5451

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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JUDGMENT

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1. Mr. YAN Man-yin ("Mr. Yan") joined the Urban Services Department as a refuse-collection labourer in 1973. On the 10th September 1980, he was two days short of his 50th birthday. At about 3.20 p.m. on the afternoon of that day, he was pushing his metal refuse-collection trolley north along Canton Road, Kowloon, across the mouth of the road leading to Jordan Road Ferry Pier. No one else was crossing the road with him at the same time. The road surface was dry and in good repair. The light was good.

2. As Mr. Yan crossed the road, the off-side handle of his trolley was struck by the off-side front head lamp of a double-decker, route number 68 bus bearing registration number CA8148, owned by the Kowloon Motor Bus Company. That bus, which had travelled south along Canton Road, was making a right hand turn into the road leading to Jordan Road Ferry Pier. The bus was nearing the end of its journey from Yuen Long, having set out from there at 1.48 p.m. The bus driver, (Dl), was aged about forty at the time of the accident. He had been driving that same Number 68 route for the Kowloon Motor Bus Company for approximately 13 years. His shift that day had started at 7.03 a.m. and was due to finish at 5 p.m.

3. The point of impact of the bus and the trolley was approximately 3 or 4 feet in front of a stud crossing. The impact with his trolley propelled Mr. Yan to the middle of the stud crossing where contact with the road caused a fracture of his skull from which he died before he could be taken to hospital. At the time of the accident, the bus, which was a Leyland Victory II, with automatic gears, was in good mechanical order, and in particular, there was nothing wrong with the brakes.

4. An accurate representation of the situation immediately after the accident is to be found in the sketch plan (Exh. No. 65) prepared by P.C. 2915 (P.W.1) who attended the scene immediately after the accident. He is to be commended for the thoroughness with which he recorded what he observed.

5. This T-junction where Mr. Yan crossed the road was controlled by traffic lights. The phases of those traffic lights are described in the Agreed Bundle at page 111. For a pedestrian in Mr. Yan's position, crossing from south to north, there was no 'green man' signal to indicate when it should be safe or otherwise for pedestrians to cross.

6. The junction in question is flat.

7. On the view I took of the evidence, I accepted that the bus had been stationary at the traffic lights controlling the north-south flow in Canton Road immediately before it started to make the right-hand turn at the junction leading to Jordan Road Ferry Pier. A passenger aboard the bus, D.W.1, afforded independent corroboration of what the driver (D1) said about what the bus being stationary at those traffic lights. I accepted what DW1 and Dl said about that.

8. It is clear from the front wheel tyre marks left by the bus on the roadway that it was in the third lane (counting from the near side) of the southbound carriageway of Canton Road before commencing the righ-hand turn. The bus was lightly laden with only about 15 passengers aboard. There was no traffic ahead of the bus or to either side of it as it made its turn.The driver has always said that The driver had an unobstructed field of vision as his bus made the turn.

9. From a stationary start, the driver could not get up much speed in the short distance before the collision. In statements he made to the police shortly after the accident (see the certified translations at Agreed Bundle pages 121-125), he estimated his speed at about 7 m.p.h. immediately prior to applying his brakes in an emergency fashion when becoming aware of the dangerous situation involving the pedestrian, Mr. Yan. How then did it come about that this lone vehicle travelling so slowly while turning right managed to collide with this sole pedestrian pushing a road sweeper's trolley across the mouth of the junction? On the proven primary facts, including the bus's slow right-hand turn from a stationary start, the only rational explanation is that the driver of the bus could not have been keeping a proper lookout.

10. The driver of the bus, who is the only known eye-witness of the actual collision, gave two slightly differing versions of what happened. On either of them, an irresistible inference arises that he could not have been keeping a proper lookout as he made the turn.

11. The first of those versions is to be found in the written statements he gave the police on the day of the accident and six days later (Agreed Bundle pages 121-125). Those two written statements basically give the same impression, namely, that he suddenly saw this pedestrian about three feet from the front of his bus, running across the road. Unless the driver was not paying proper attention, it is inconceivable that he could have failed to see that pedestrian together with his trolley until such a late stage.

12. The other version is the driver's testimony to the court. According to that, the driver, as he took his bus through the right turn, first saw the pedestrian together with the trolley at the kerb on the south-western corner of the junction, at a point the driver marked with a red cross on the sketch plan, Exhibit D1. That point, where the pedestrian was supposed to have been, is approximately 6 metres (20') from where the actual impact occurred. The bus driver, in effect, asks the court to believe that the pedestrian ran so fast across the road from that point with his trolley that the bus driver was unable to stop in time without hitting him.

13. There is common sense to tell us that a man aged almost fifty cannot move very fast pushing an Urban Services Department road-sweeper's metal trolley on a flat road. If the bus driver really did first see the pedestrian at the point indicated with a red cross on Exhibit D1, then it is inconceivable that the bus could have struck the trolley where it did without inattentiveness on the bus driver's part.

14. Under cross-examination, the bus driver, in effect, backed down from this version about first having seen the pedestrian at the side of the road. He conceded (at page 76 of my record) that he did not know if the pedestrian was only 3 or 4 feet from the front of the bus when the driver first saw him. Thus, the version given by the bus driver in court finished up not contradicting what he had told the police at the outset, namely that he first saw the pedestrian about 3 or 4 feet from the front of the bus.

15. I find it difficult to envisage how this accident could have occurred at the spot where it did if the bus were driven with reasonable car. The bus driver asks the court to accept that the pedestrian, in effect, dashed straight across the front of the bus at such a speed that the bus driver did not have a chance to stop. A road sweeper's trolley is such an inherently cumbersome and unmanoeuvrable piece of equipment that it simply would not be physically possible for the pedestrian to have acted as the bus driver said he did.

16. Presumably, both in his statements to the police and in his evidence to the court, the bus driver sought to depict the situation in the way most likely to deflect blame from himself. Even with no eye-witness to contradict him, the driver has not managed to come up with a version consistent with careful driving on his part. If the driver has not told the court the truth, then, human nature being what it is, his account will, no doubt, have tended in the direction of his own exculpation. If he is not telling the truth, then any facts being concealed would presumably have shown him to have been even more careless than his version to the court indicates.

17. During the course of the final submissions, I raised with counsel the possibility this might have to be treated as an unexplained accident, with the usual consequence of each side being treated as equally to blame. On reflection, I see that such an approach here would be erroneous. The facts as a whole point to the driver of the bus being entirely to blame.

18. The bus was a lethal machine which, if reasonably driven, would have slowed down to the merest crawl on observing a trolley being pushed across a T-juntion as the bus made a right-hand turn into that junction. Even if the pedestrian pushing the trolley was indescribably careless and reckless for his own safety, it is difficult to see how a reasonably alert driver of a vehicle.would allow the pedestrian to get struck by the vehicle in the circumstances of the present accident. A driver in D1's position might curse on finding himself forced to give way for the pedestrian crossing the road with a rubbish trolley, but any reasonable driver who was attentive throughout the right-hand turn would make sure that there was no way that he could collide with the trolley or the pedestrian pushing it.

19. A combination of factors led me to accept that probably the bus did not exceed a speed of about 7 m.p.h. between the time it set out from stationary at the traffic lights till when the driver braked for the emergency. There was the driver's own evidence to that effect in the two statements he gave to the police shortly after the accident (Agreed Bundle pages 121-125). There was independent evidence from the passenger, D.W.1, leading to a similar inference. That passenger estimated that there was something like a 3-second interval between the bus starting off from the traffic lights and braking. The technical specification for the bus(Agreed Bundle page 115), showed that, with the accelerator depressed to the full, the bus would not have been able to get above 10 m.p.h. in 3 seconds, even without any passengers. Then there was the evidence of the bus's rear wheel skid marks which did not exceed one mater in length. Expert evidence from both sides agreed in saying that rear wheel skid marks of that length were consistent with the rear wheels having locked under braking at about 7 m.p.h. In a moment, I will explain why I disregarded the expert evidence from both sides generally. However, I saw no reason to discard this isolated piece of evidence on which there was agreement about the speed at which the rear wheels would have locked.

20. Thus, from the cumulative factors I have just referred to, I found my way to accepting what the driver said originally to the police, namely, that he was travelling at about 7 m.p.h. when he braked. The driver's evidence in court was in no way inconsistent with what he had told the police immediately after the accident about the speed of the bus having been about 7 m.p.h.. In court, he merely said he did not know what his speed had been and contented himself by saying that the bus, which was automatic, had reached second gear.

21. Each side called a Ph. D. to testify as to the meaning of the tyre marks made by the front wheels of the bus as it took the right-hand bend. The expert called on behalf of the plaintiff was Dr. Lingard, a Consulting engineer who lectures in the Department of Mechanical Engineering of the University of Hong Kong. His speciality is tribology which, according to the Shorter Oxford Dictionary Supplement, is the branch of science and technology concerned with interacting surfaces in relative motion and with related subjects and practices. From that definition, one can see that tribology should be very useful for interpreting the meaning of tyre marks on a road surface.  Over the past seven or eight, he has been involved as an expert in traffic accident investigations, and during that time has visited something of the order of ten to twenty road accident scenes. According to Dr. Lingard's evidence, the speed of the bus while cornering in the present case could be calculated from the front wheel tyre marks on the road, taking into account the radius of the curve they followed. He put the speed of the bus while cornering at approximately 20-25 m.p.h., which meant that the bus could not have stopped at the lights controlling the north-south flow in Canton Poad, since the distance between those lights and the point of impact was too short to attain such a speed. I found his evidence totally convincing.

22. Unfortunately, I was likewise impressed by the defence expert, Dr. Mak, who was able to demonstrate for me scientifically that the bus could only have been travelling at about 7 m.p.h. just before it braked. Dr. Mak is a forensic scientist with the Government Laboratory. He has attended a course in accident investigation at the Metropolitan Police School in London According to Dr. Mak, the type of tyre marks visible on the road surface from the front wheels of the bus in the present case were useless for the purpose of calculating the speed of the bus. Only a tyre mark showing a particular pattern of transverse striations was useful for calculating speed, according to Dr. Mak. If the front tyres of a bus taking a corner left these striated marks ('critical curve marks', as Dr. Mak called them), then one could tell the speed of the bus pursuant to Dr. Mak's theory. Such critical curve marks would mean that the bus was going at a speed of about 23 m.p.h. as it cornered, and would be near to toppling over. As no striations of the type described by Dr. Mak were present, the front wheel tyre marks were not helpful for calculating speed, in his opinion. (I have already made reference to the one meter long skid marks from the rear wheels and do not propose to say anything further on them).

23. As a non-scientist, I simply do not regard myself as qualified to choose between the competing theories of Dr. Lingard and Dr. Mak. My mind turns to the anecdotes in books of popular science history, describing how laymen in the last century were bemused by scientists who theorised that one day machines would fly, whilst other scientists produced mathematical demonstrations of how aviation was impossible. With hindsight, we now know who was right, but it would have been foolhardy for the layman of the day to express an opinion either way. I feel that the only safe course for me is to leave the controversy between Dr. Lingard and Dr. Mak to the bar of scientific opinion ,but, meanwhile, I feel constrained to disregard the evidence of both of them. No disrespect to either of them, nor to science generally, is intended by this. The only way a court can competently deal with conflicts of rarefied scientific evidence is by appointing an expert assessor to sit as part of the court and to advise on the scientific problems. In reality, there will frequently be no prospect of iinding an expert assessor to sit with the judge. I gather that it was only at the last minute, after a desperate search, that the defence were able to locate their expert, so I presume that the prospect of finding yet another expert to sit as an assessor with the court would have been remote. Thus, the evidence of each of the experts cancels the other's out, so that the court was thrown back to do the best it could with the ordinary evidence in the case.

24. Earlier, I indicated my conclusion that the driver of the bus was entirely to blame for the accident because of his lack of reasonable care. In other words, he was guilty of negligence, as it is understood in this branch of the law. Likewise, his employer, the Kowloon Motor Bus Company, is also liable in negligence on ordinary vicarious principles.

25. Both the Kowloon Motor Bus Company and its driver have been sued by the estate of Mr. Yan under the Law Amendment and Reform (Consolidation) Ordinance (LARCO), and by his dependants under the Fatal Accidents Ordinance (FAO) for damages in respect of his death.

26. The area of dispute as to the actual amount of damages is within a narrow compass. The only disagreement is as to whether the multiplier for Mr. Yan's lost years of earning should be nine or ten. Apart from that, there is no disagreement as to the principles to be applied in assessing damages, nor as to the actual figures to be employed.

27. Mr. Yan had come to Hong Kong from China as a young man. He did not join the Urban Services Department until 1973. As I have already indicated, he was aged almost fifty when he met his death. Under the regulations of the Urban Services Department, he could have been asked to retire at the age of 55, but, on the other hand, subject to good health and satisfactory performance, he might have got extensions till the age of 65.

28. He married at the relatively late age of 35. That was in the year 1966. That marriage took place in China. His wife, Yu Bik Chu, who is a co-administratrix of her late husband's estate and who claims as a dependant, was much younger than he. She was only 22 years old when they married. There were two children of the marriage, a boy born in 1970, and a girl born in 1976. Thus, at the time of Mr. Yan's death, his son was aged 10 and his daughter 4.

29. Throughout the marriage, the wife remained in China with the children. Mr. Yan regularly sent money to support them there. He would go to visit them there once or twice a year. Since Mr. Yan's death, his wife has now moved to Hong Kong with the son, while the daughter remains behind in China.

30. With a young family to support, it is reasonable to suppose that Mr. Yan would have gone on working as long as his health would have permitted. According to the wife's evidence, which I accepted, her late husband had good health to the best of her knowledge. There was evidence, though, that he had emphysema of both lungs. That is what the post-mortem report disclosed. However, there was no expert evidence to assist me in relation to the significance of such emphysema to the work prospects of the late Mr. Yan. In such circumstances, I decided to treat him as someone with the normal health and normal job prospects of a 50 year old labourer. Even for someone in that position with good health and every intention of continuing to work as long as possible, I incline to the view that the lower multiplier of nine is the correct one to choose. An assumption that someone in the deceased's position could be expected to go on earning for another nine years is, to my mind, realistic and takes reasonable account of imponderables. The controversy over the multiplier now being resolved in favour of nine, it now only remains for me to perform a calculation on the basis of undisputed figures.

31. Mr. Yan appears to have been a commendably frugal person. He either sent to his family in China, or saved 86.44% of his monthly wages of $1,435 at the date of his death. Thus, for the purpose of calculating his pre-trial and post-trial loss of earnings, the 'free balance' element will be 86.44%. By now, a labourer with the Urban Services Department is earning $3,352 per month. 80 months have elapsed between the date of death and the trial. Based on a wage rate of $1,435 per month at the time of death and $3,352 per month now, the median wage over that period is $2,393.50. The pre-trial free balance can now be calculated as follows:- $2,393.50 x 80 x 86.44% = $165,515.31.

32. The post-trial period to be taken into account is 28 months (i.e. the difference between the 9 year multiplier and the 80 months pre-trial period). The post-trial free balance which forms part of the damages is calculated as follows:- $3,352 (present monthly wage) x 28 x 86.44%=$81,129.

33. Adding together the pre-trial free balance of $165,515 and posttrial of $81,129, a total of $246,644 is reached for the free balance.

34. The figure for loss of expectation of life is $20,000 and for furneral expenses is $8,010.

35. Turning now to interest, the conventional award of $20,000 for loss of expectation of life qualifies as general damages and carries interest of 2% per annum from the date of issue of the writ 4 years ago. The calculation gives a result of $1,600 for this interest.

36. The special damages comprise the funeral expenses of $8,010 plus the pre-trial loss of earnings of $165,515, giving a total of $173,525.  It was not in dispute that those special damages should bear interest at 5% per annum from the date of death till trial, a period of 80 months. On that basis, the figure for interest on the special damages should be $57,835, according to my calculation. The figure mentioned to me during submissions was $43,381, but I now suspect that must have been based on faulty arithruetic. If it turns out that my calculation is wrong for some reason, I can always make a correction under the 'slip-rule'.

37. Thus, the total damages to which Mr. Yan's estate is entitled can be summarised as follows:-

38. Thus, there will be judgment for the late Mr. Yan's estate in the sum of $334,089. There will be no separate award under FAO since those damages merge with the LARCO damages.