Chen Yu-mei v. Fu Kuo Lin and Another

CACV000027/1970

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CIVIL APPEAL NO. 27 OF 1970

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(On Appeal from the Victoria District Court Civil Jurisdiction Case No.5500 of 1969)

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Coram: Blair-Kerr, Mills-Owens and Huggins, JJ.

Date of Judgment: 10 December 1970

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JUDGMENT

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Blair-Kerr J.:

1. On 20th November, 1968 at about 4 p.m. a child aged about 6 years, was crossing Shatin Pass Road near the junction of this road with Chun Yan Road, Wong Tai Sin, Kowloon, when he was knocked down and killed by a lorry driven in a southerly direction by the second respondent (hereinafter referred to as "the respondent"). Death must have supervened within a matter of minutes, if not seconds, because the child was very severely injured. There was an extensive deep irregular wound of the back extending from the lower thoracic region to the pelvis exposing the spine and abdominal organs. There were compound fractures of the spine in the lumbar region. The right kidney and spleen were ruptured; and there were severe lacerations of the bowel. The most severe injuries were on the back and left side. The initial impact was in that region; and there appears to be no doubt that the front off-side wheel of the lorry passed over the child's body or at least crushed it against the roadway. The respondent said in evidence that when the vehicle came to rest this wheel was "touching" the child. It may be that the wheel was resting on the body. It is significant that the police officer who was brought to the scene by the respondent gave instructions for the vehicle to be moved back a few feet in order "to free" the body, presumably to enable the ambulance officials to remove it to hospital.

2. The appellant is the mother of the child and she is the administratrix of his estate. On 17th November, 1969, she commenced an action in the District Court in which she alleged that the death of the child was caused by the negligence of the respondent, the alleged particulars of negligence being that he (a) drove the lorry too fast, (b) failed to keep a proper lookout, (c) failed to give any warning of his approach, (d) failed to apply his brakes in time, and (e) failed to slow down or proceed cautiously at a pedestrian studded crossing which the vehicle had passed over a few yards before it came into contact with the child.

3. The action was tried on 7th and 27th May, 1970; and on 13th June, 1970, the District Judge found that negligence had not been proved, and he gave judgment in favour of the respondents.

4. On 10th December, 1970, we dismissed an appeal from that decision indicating that we would give our reasons later. We now proceed to do so.

5. Shatin Pass Road runs through a heavily built-up area in Kowloon. It is a dual carriage-way divided in the middle by a cone-shaped concrete strip surmounted by an iron fence 5 feet high, the purpose of which is, clearly, to prevent vehicles and pedestrians moving from one carriage-way to the other. There was evidence, however, (indeed it was elicited from the respondent in cross-examination by counsel for the appellant) that the steel bars of the fence were sufficiently far apart to allow a person to pass between them; and it was not suggested by counsel for the appellant either in the court below, or during this appeal, that a child could not squeeze through the bars of this fence.

6. The southbound carriage-way consists of two lanes each 12 feet wide, divided by a "broken" white line. After the vehicle had been moved back a few feet in order to release the child's body, a police constable drew a sketch plan of the scene which was put in evidence by consent at the trial of the action. It was signed by the respondent below the English words:-

This plan shows the lorry a few feet behind the spot where the child's body lay bleeding, the rear wheels on the edge of the centre line and the vehicle pointing at an angle towards the east, or left hand, pavement. Before being moved back, the front near-side wheel must have been either on, or very close to, that pavement. There was a tyre mark on the road starting from about the centre white line at a point 28 feet from the studded crossing and extending in what appears to be a straight line for a distance of 22 feet and at an angle of roughly 30 degrees with respect to the centre white line, to the spot where the body lay. In the opinion of the police motor vehicle inspector who examined the vehicle after the accident and who testified in the court below, this tyre mark was made by the offside front wheel. The tyre mark is shown on the plan by a rough thick line; and Inspector Hamilton (who was present when the plan was made) put a X at a point approximately half way along the line and wrote on the plan the following words:

7. The appellant was unable to call any eye witnesses to the accident; but she called the police officer who made the sketch plan and who took a statement from the respondent on the day of the accident, and Inspector Hamilton who took a second statement on the day following the accident. In evidence, the inspector said that he understood "a little Cantonese", but that "there would be no mistake" as regards the fact that the respondent, in his second statement, said that he saw the boy jump over the fence. The appellant also called the vehicle inspector and the doctor who examined the child's dead body. The vehicle inspector said that the mark on the road was a tyre, or brake, mark (not a skid mark); that there appeared to have been maximum braking efficiency; and that the vehicle had been brought to a controlled halt.

8. Both the vehicle inspector and the doctor were asked a number of hypothetical questions. The record of the proceedings is not all in question and answer form; and it is not possible to say precisely what these questions were; but it appears that some of them should not have been allowed. For example, one question to the doctor appears to have been put in a form which required him to assume that the tyre mark was impregnated with flesh and blood from end to end. There was no evidence to support this assumption. Another question put to the vehicle inspector required him to assume that the child's body had been dragged for the whole length of the skid mark; and there was no evidence to support that assumption. Naturally, if one assumes that there was blood and flesh at the beginning of the tyre mark, the child must have been struck either at or before that point. This was not a matter of expert opinion, but a case of putting a hypothetical situation to a witness and asking him what he considers to be the natural inference from that situation.

9. There is no doubt that the mechanism of the lorry (brakes, steering gear, etc.) was satisfactory in all respects; and it was fitted with a type of air brake which could give maximum braking efficiency by much less pressure of the driver's foot than in the case of other braking systems.

10. The appellant was forced to rest her case largely on the information contained in the sketch plan (including the length and position of the tyre mark) and on the two statements referred to above which the respondent made to the police. The first of these statements was taken at 5.30 p.m. on 20th November, 1968, that is to say about 1 1/2 hours after the accident. It was recorded in Chinese characters by the police constable. It appears to have been read by the respondent after it had been recorded; and he signed it as being correct. A translation of what is recorded reads, in part, as follows:-

The latter part of the statement is in question and answer form. The translation reads in part:-

11. The second statement was taken at 11 a.m. on 21st November 1968. On this occasion what the respondent said was translated by a Chinese interpreter to Inspector Hamilton who recorded in English what was translated to him. The statement reads in part:-

12. The respondent was the only eye witness to the accident; and he gave evidence. He said that the traffic lights where he stopped were about 100 yards from the junction of Shatin Pass Road and Chun Yan Street, and that when he moved forward from a stationary position he was in the "slow" (by which we understood him to mean the near-side) lane. The record of his evidence continues thus:-

13. As regards his second statement to the police, he said that he did not use the words "I saw through the corner of my eye" or that he saw the boy jumping over the fence. He explained that what he had said to the inspector was that he suspected that the boy "could have jumped over or could have gone through" the fence. It was not put to him in cross-examination that he did, or did not, see the boy jumping over or coming through the fence, although it was put to him in general terms that he was not keeping a proper look-out, which he denied.

14. In cross-examination he agreed with a number of suggestions which were put to him including the fact that Shatin Pass Road is a "heavily congested" area; that in his experience pedestrians sometimes climb over fences instead of using pedestrian crossings; and that that kind of behaviour was "a danger that would be reasonably apparent" to him. He would not agree with counsel's suggestion that his speed exceeded 23 or 24 miles per hour or that he was travelling "over the white line"; but he did agree that he swerved somewhat to the left in an endeavour to avoid hitting the boy.

15. He was pressed in cross-examination as to why he did not recognise immediately that it was a small boy that was running across the road. He said that at first he did not know what it was, that he "just managed to have a glimpse of a moving object", that "it happened so quickly I could not afford (sic) to think", but that "when he continued to run I saw it was a human being".

16. The appellant had pleaded in the alternative that she would rely "on the doctrine of res ipsa loquitur in so far as it may be necessary to substantiate her allegation of negligence"; but this approach appears to have been abandoned at the trial. In his closing address, counsel for the appellant submitted that having regard to the congested conditions prevailing and to the fact that the respondent was aware that persons cross the road at unauthorised crossing places, his speed should have been in the region of 10-15 m.p.h.; that if he saw the boy jump over the fence he had ample time to give warning of his approach; that it ought to have been reasonably apparent to him that danger existed, at any rate as soon as he saw "the shadow"; that he ought to have warned "the shadow" that he was approaching; that he did not keep a proper look-out; and that he failed to give a proper warning to the "running shadow". Counsel cited Lang v. London Transport Executive⁽¹⁾, Baker v. Willoughby⁽²⁾, Richley v. Faull⁽³⁾ and Cross on Evidence (3rd Edition) at p.454. No attack was made by counsel on the credibility of the respondent; and there is nothing in the judgment of the District Judge to suggest that he doubted the credibility of the respondent in any respect. On the contrary, the judge accepted the respondent's evidence that he had only suggested that the boy might have jumped over the railings.

17. On the hearing of the appeal, counsel for the appellant submitted that the respondent, on his own admission, was accelerating at a time when he ought to have been slowing up. He based this submission on the respondent's statement to the police that "he slowly increased speed" as he approached Chun Yan Street and the pedestrian crossing; and counsel submitted that it was the duty of every driver to slow down as he approached a studded crossing irrespective of whether or not he saw anyone on the crossing, or anyone about to step on it.

18. As regards the words "slowly increased speed" in his second statement to the police, it seems to me that the respondent was merely saying that his vehicle progressed from a stationary position at the traffic lights to maximum speed of 23 miles per hour 100 yards further on. There is nothing in the statement to suggest that, having reached a speed of 23 miles per hour near Chun Yan Street, he then decided to accelerate. I do not see anything in this point; and I find myself quite unable to agree with the submission that, upon approaching a studded crossing, the driver of a vehicle should always slow down below what would otherwise be a reasonable speed having regard to all the circumstances. The existence of a studded crossing in the immediate vicinity is, of course, one of many factors to be considered when deciding what is a reasonable speed. But, if a driver does not see anyone on a crossing, or anyone about to use the crossing, he is entitled to proceed at a reasonable speed.

19. One passage from the judgment of the learned District Judge reads:-

20. Counsel for the appellant did not submit to this court that a speed of 10-15 miles an hour is a reasonable speed at which vehicles should travel at this particular part of Shatin Pass Road. Nevertheless, he criticised the above passage from the judgment; and his submission, as I understood it, was that brake marks of 22 feet indicated that the lorry had been driven at an excessive speed having regard to all the circumstances.

21. It is common knowledge that there must necessarily be a short interval of time between a driver perceiving a situation of danger and his taking steps to avoid it. The distance which a vehicle travels between the moment when the driver perceives the danger and the commencement of effective action on his part to avoid it (such as pressing the footbrake or turning the steering mechanism) is sometimes referred to in running down actions as "the thinking distance". No doubt one person may react quicker than another; and, logically, "thinking distances" must vary to some extent. Nevertheless, courts do take cognizance of this factor; and, in running down actions, judges usually work on the average figures given in the Highway Code. The "thinking distance" in respect of a vehicle travelling at 20 miles per hour is said to be 20 feet. A vehicle travelling at 20 miles per hour traverses just under 30 feet in one second. So it would appear that it is considered that an ordinary driver, reasonably alert, needs about 2/3rds of a second to get his foot down on the brake pedal and for the braking mechanism to become effective.

22. The Highway Code also gives various figures (of which courts frequently take cognizance) as regards braking distances; and it is said that the braking distance in respect of a private car travelling at 20 miles per hour is 20 feet, but that vehicles other than private cars or small vans need twice that distance, that is to say that the braking distance of a heavy lorry, travelling at 20 miles per hour, might well be 40 feet.

23. The lorry in this case was a 5-ton vehicle fully loaded with 5 tons of aggregate. Of course, it is no doubt possible to apply the brakes of a vehicle and leave no perceptible mark on the road. But the evidence in this case, derived by inference from the tyre mark, was that this lorry was brought to a halt by emergency braking; and, having regard to the fact that this lorry was fitted with a type of brake which gave maximum braking efficiency with the minimum of pressure on the foot pedal, it is probable that when the braking mechanism became effective, it began immediately to leave a tyre mark on the road.

24. If that is so, a brake or tyre mark 22 feet long would appear to indicate that the speed of this lorry may well have been considerably less than 23 miles per hour; and I see no reason to differ from the learned judge's view that a braking distance of 22 feet does not indicate that this fully-loaded lorry was being driven at a speed which was excessive, having regard to all the circumstances.

25. As regards the question of whether the respondent was keeping a proper lookout, his evidence was that when he passed Chun Yan Street his foot was resting on the brake pedal. This evidence was not challenged; and, if accepted (as it appears to have been), it indicates that he was alert and ready to apply his brakes if the situation required such action to be taken.

26. In this court, counsel for the appellant submitted, for the first time, that the respondent should not have been believed because, amongst other things, his estimate of the distance he had travelled past the pedestrian crossing when he first saw the deceased varied from time to time; that is to say that in his first statement to the police he said he had driven about 20-30 feet past the crossing when he first saw the deceased, and in evidence he said "my lorry had travelled over the crossing ... about 4 or 5 feet." The lorry is between 20 and 22 feet long; and I suppose one could argue that in giving his statement he was referring to the fact that the driver's seat was between 20-30 feet beyond the crossing and that in giving evidence he was saying that the rear of the lorry was 4 or 5 feet beyond the crossing. But I have no reason to think that such considerations ever entered the mind of the respondent. A vehicle travelling at 23 miles per hour traverses 33.7 feet in one second. How could any human being driving a lorry at or about that speed say to within 20 feet how far past a particular spot he was when something or other took place? It seems to me that it does not make the slightest difference that immediately after the accident, he said that it was 20-30 feet and 18 months later that it was 4 or 5 feet. Indeed, it could well have been argued that if, in evidence, he had given precisely the same figure as he had given to the police, he was "tailoring" his evidence in the interests of consistency. Clearly, he had forgotten what he told the police. The judge did not think that it was a matter which militated against the respondent's credibility. It appears that the respondent was endeavouring to say (and it was all that any driver could reasonably have been expected to say) that very soon after passing the crossing he saw "the shadow" on his right. There is nothing in his evidence to suggest that he saw the boy anywhere prior to the lorry reaching the pedestrian crossing. Indeed, it was not even put to him that this was so.

27. It is always easy in a court of law to say: "You ought to have seen it before you did." The answer to that is: It depends on where 'it' happens to be. Normally, a driver's first duty is to look in the direction of travel in order to avoid colliding with vehicles, pedestrians, or indeed any object actually on the path over which his vehicle is about to pass. If the vehicle is travelling in the near-side lane, pedestrians walking on the near-side pavement are closer to the vehicle than pedestrians on the off-side of the road. A careful driver, in such circumstances, would therefore keep an eye on the left side of the carriageway so as to be ready to take avoiding action in the event of some careless pedestrian stepping off the near-side pavement on to the path of the oncoming vehicle. A careful driver would also look in his mirror from time to time and check the state of traffic to the rear of his vehicle. And, as counsel for the respondent said, although it is perfectly true that in dual carriage-ways, pedestrians sometimes do make their way over and through fences and other devices designed to prevent them doing so, this cannot be said to be normal behaviour; and an ordinary careful driver proceeding along the southbound carriage-way of Shatin Pass Road might well be pardoned for devoting more of his attention to the road immediately ahead of him and to the pavement on his left rather than to the fence dividing the two carriage-ways. To suggest that the respondent ought necessarily to have seen the deceased the moment he was visible either on, or coming through, the fence, is demanding too much of any ordinary careful driver.

28. The respondent's evidence was clear. He said that he saw a shadow on his right running across the road towards his vehicle; that he immediately applied his brakes and swerved. It matters not that at the moment when he first saw this shadow (out of the corner of his eye, as it were) he was unable to say at that moment whether it was a human being or an animal. He recognised instantaneously that some living thing was racing towards the path over which his vehicle was going to pass, and he took immediate action. That was his evidence; and the judge accepted it.

29. Counsel for the appellant submitted that, in the court below, he presented his case on the footing that the deceased was struck before the respondent applied his brakes and that the body had been dragged for the whole length of the tyre mark because the plan indicated that the roadway over the whole length of the tyre mark was impregnated with blood and flesh. I have already touched on this aspect of his submission in connection with certain hypothetical questions which, it appears, counsel was permitted to put to the doctor and the vehicle inspector.

30. Admittedly, the plan went in "by consent"; but if it had been the appellant's intention to suggest to the court that the deceased's body was dragged for 22 feet because of what Inspector Hamilton had written on the plan, one would have expected that the inspector would have been asked to say what he saw at the scene of the accident. It may be that he would have been unable to remember; but the plan could have been used to refresh his memory; and at least he might well have remembered why he put a X on the plan.

31. The record of counsel's closing address to the judge does not indicate that the submitted that the child's body had been dragged for 22 feet nor does it appear that counsel asked the judge to draw any inferences from the words written by Inspector Hamilton on the plan. Nevertheless, on the appeal to this court counsel was permitted to make his submissions for the first time; and, therefore, the evidential value of Inspector Hamilton's words has to be assessed.

32. In my view, those words are not a statement to the effect that along the whole length of the tyre mark (22 feet) the road was impregnated with blood and flesh. What the inspector probably intended to record was the fact that, at the spot marked on the plan with a X, there was what appeared to him to be blood and flesh impregnated on the road surface.

33. I am unable to see how this assists the appellant, if one accepts the fact that it was shortly after the studded crossing that the respondent saw the boy for the first time. The question may be tested in this way. Supposing the respondent had travelled 8 feet beyond the crossing when, out of the corner of his eye, he first saw "the shadow" on his right running across the road, it may be presumed that the vehicle would have travelled approximately a further 20 feet before the tyres started to make a mark on the road (2/3rds of a second "thinking time"). That would certainly accord with the police evidence, because, according to their plan, the brake mark in fact began 28 feet from the pedestrian crossing. A boy of 6 running at say 8 miles per hour (which is twice as fast as smart walking speed) would traverse 11.7 feet in one second. The width of the outer lane is 12 feet. If the boy had run straight across, having jumped off the sloping concrete strip forming the base of the fence, he could have covered the width of the lane in approximately one second. If he ran "at an angle", he would have taken slightly longer. The X mark on the plan indicating (we shall assume) that blood and flesh was impregnated on the road, is about half way along the brake mark, that is to say about 11 feet from the beginning of the brake mark; and, it would seem, some 3 feet or so to the left of the centre white line. If, as the respondent says, the boy was actually in motion when he first saw him, he would, presumably, have been 2 or 3 feet from the fence. Indeed, on two occasions, the respondent mentioned the figure "10 feet". It would therefore appear that the boy could easily have covered the width of the lane (even running at an angle) in a little over one second, which is just about the time which the lorry would have taken to traverse from 8 feet beyond the studded crossing to the spot about 11 feet along the tyre mark.

34. On the assumption that the judge accepted the respondent's evidence that he saw "the shadow" on his right running across the outer lane towards the path of the oncoming vehicle, that this was the first indication which the respondent had of any danger, and that he saw "the shadow" 4 or 5 feet from the studded crossing, I am quite unable to see how the respondent could have avoided the accident.

35. The main burden of counsel's submission on behalf of the appellant, both in the court below and on this appeal, was that the judge ought to have found that the respondent saw the deceased climbing over the fence; that the respondent, therefore, had ample time to sound his horn and that he ought to have braked sooner than he did.

36. As counsel for the respondent said, it is very doubtful indeed to what extent the second police statement may be said to have been proved. It was recorded in a language other than the language spoken by the respondent. Inspector Hamilton's knowledge of Chinese is limited; and the interpreter was not available to be called as a witness. In a criminal trial, no judge would have allowed the prosecution to put such a statement in evidence at all in the absence of evidence by the interpreter that he had faithfully translated what had been said. But, in any event, the judge accepted the respondent's explanation that a mistake had occurred. Apart from that, if a child can easily squeeze through between the bars of the fence, why should such a child climb over the top of the fence? Clearly, the judge concluded that the truth of the matter was that the respondent was looking ahead when he saw the running object on his right out of the corner of his eye for the first time. The respondent, in my view, had neither time nor opportunity to sound his horn. As the judge said, it was then a question of avoiding, not warning.

37. Only one point in the first police statement has troubled me. Towards the end of that statement, the police constable asked the respondent how far away the deceased was when he first saw him. The answer was: "about 10 feet". He was then asked:

Of course, if it had been really the case that the respondent did not see the deceased till he was past the white line and only 10 feet away, the respondent might possibly be said to have not been keeping a proper lookout. But this point was not taken at all in the court below and it would be material to know the state of traffic in the outer lane. The respondent was not questioned as to what he meant or as to whether the police constable had made a mistake; and counsel did not mention it in his closing address, perhaps for a very good reason. Throughout these proceedings, counsel's submission has been that the judge should have found that the respondent actually saw the boy climbing over the fence. But, apart from that, if the boy had already passed the white line when the vehicle was 10 feet away, having regard to the fact that the offside of the vehicle was close to the white line, if not actually on it (or, as counsel submitted, slightly over it) how could this boy have been struck by the front off-side part of the lorry or have been run over by the front off-side wheel?

38. In any event, having regard to the fact that this one answer, taken in isolation, is out of keeping with the whole of the evidence given by the respondent and to the fact that he was not asked to confirm or explain it at the trial, it is perhaps not surprising that it did not weigh with the District Judge, or, at least, that he did not consider that the discrepancy was worth discussing in his judgment.

39. In conclusion, I would only add that I did not find any of the cases cited by counsel for the appellant of any assistance except for the principle enunciated by Lord Dunedin in Fardon v. Harcourt-Rivington⁽⁴⁾. In that case Lord Dunedin said:-

There is no doubt about the principle. It is in the application of that principle that courts sometimes err.

40. Counsel again referred to the Lang⁽¹⁾ case. That was a case in which a motor cycle emerged from a side road onto a major road and on the side road there was a "Slow. Major road ahead" sign. I doubt very much whether it would ever be possible to equate that sort of situation with the one obtaining in this case, that is to say, a child deliberately negotiating, somehow, a fence erected for the express purpose of preventing pedestrians traversing from the northbound carriage-way to the southbound carriage-way. But even if it is possible to do so, the facts in Lang⁽¹⁾ are easily distinguishable from the facts in the present appeal. In Lang⁽¹⁾ the driver on the main road had seen the cyclist some 190 feet away, and he had ample time to assess the situation and be ready to take avoiding action. There is no evidence that the respondent in this case had a similar opportunity, or anything approaching it.

41. But, apart from that, I might also add that I agree with counsel for the respondent that it is, to say the least of it, doubtful if Lang⁽¹⁾ should be followed today. Firstly, it is to be noted that it was a trial at first instance. The learned judge (Havers J.) made it clear (p. 614) that if he had felt free to do so, he would have much preferred to have followed the reasoning of the Court of Session in Browne v. Central S.M.T. Co.⁽⁵⁾. That was a case in which there had been a collision at the junction of a major and minor road. Lord Mackay said (p. 15):-

And Lord Birnam said (p. 17):-

42. As I have said, for the reasons which he gave, Havers J. felt unable to follow the approach of the judges in the Browne⁽⁵⁾ case; but, with respect, I doubt whether his approach in Lang⁽¹⁾ to the question of negligence in running down actions should be followed. Counsel for the respondent cited Watkins v. Moffatt⁽⁶⁾; and it is to be noted that in that case Sachs L.J. uttered what was clearly a warning. Referring to Lang⁽¹⁾ he said:-

43. In my view, having accepted the evidence of the respondent (as he was clearly entitled to do) there was no evidence upon which the District Judge could reasonably have come to the conclusion that the respondent had been negligent. Upon the evidence, the Judge had no alternative but to dismiss the action; and the appeal to this court accordingly failed.

44. There is only one other matter which calls for comment. When the case came before a District Judge on 19th February, he was informed of certain negotiations between the parties with a view to settlement. In particular it was said that the respondent (or his employer) had made an offer of $2,500 damages and $500 costs; and the judge made a note of this on the record. This was not before the judge who tried the action. But when the record came to be typed for purpose of appeal, the note made on 19th February was included in the appeal papers.

45. Counsel should not have informed the judge on 19th February of the terms of the proposed settlement. For all they know, the case might have been put down for trial before that particular judge. Furthermore, the judge should have refused to record details of this nature. It is most undesirable that Judges of the Full Court hearing an appeal should be told of the terms of a proposed settlement prior to the trial of an action.

Representation:

A.J. Sanguinetti (Messrs. H.H. Lau & Co.) for Appellant.

R. Mills-Owens (Messrs. Johnson, Stokes & Master & Co.) for Respondents.

(1) (1959) 3 All E.R. at pp. 616 and 617.

(2) (1969) 3 All E.R. at p. 1530.

(3) (1965) 3 All E.R. at p. 110.

(4) (1932) All E.R. Rep. at p. 83.

(5) (1949) S.C. p. 9.

(6) (1967) 111 S.J. at p.720.