Kan Wai-yan and Another v. Chan Lan
Read the full judgment text of CACV 30/1980 on BabelCite. This Court of Appeal judgment was delivered on 17 July 1980.
1. This was a running down action in which the learned judge found for the Plaintiff and awarded damages in the sum of $159,000 odd.
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CACV000030/1980
----------------- Coram: Huggins and Cons, JJ.A. and Bewley, J. Date of Judgment: 17 July 1980 ----------------- JUDGMENT ----------------- Huggins, J.A.: 1. This was a running down action in which the learned judge found for the Plaintiff and awarded damages in the sum of $159,000 odd. 2. The Plaintiff was the widow of a man who was killed as a result of a collision between himself and a lorry driven by the 1st Defendant and owned by the 2nd Defendant. The accident took place at a controlled studded pedestrian crossing. The lorry was travelling in a westerly direction towards Kennedy Town along Des Voeux Road near its junction with Wilmer Street in Central. The evidence of the driver was that as he approached this crossing he saw some five or six people on a refuge which consisted of two triangular kerbs and an open space between them. He saw them when he was some fifty or sixty feet away. He had been travelling along the west bound tram track. He said, in a statement which he confirmed as correct in his evidence, that as he reached the studs of the studded crossing, he pulled out a little to the right. Thereafter he swerved back slightly to the left to travel along the west bound tram track, which, as I understand it, means that he returned to the course which he had previously been following. There or four other pedestrians came across to the refuge from the south pavement and joined those already on the refuge. The Deceased was one of those who eventually were standing and waiting for traffic to allow them to cross the road to the north side. What happened exactly was not seen by anybody. It appears that the Deceased was struck by the sideboard of the lorry towards the rear. He was thrown to the ground and was seen afterwards lying in the centre of the space between the two islands, with his feet towards the tram tracks and his head towards the southern pavement. 3. The learned judge found as a fact that the cause of the accident was that the 1st Defendant had, as he said, pulled out to the right. The judge said:
and he went on:
The plan which we have, which is not very clear but is probably clear enough, shows that the lorry ended up just over one lorry's length from the western most of the two islands, with its front just on a line projected between the apices of the two islands and the back to the right of a line projected from the northern sides of the two islands. 4. To me it is not very clear how the judge thought that any part of this vehicle could have crossed any place upon which the Deceased could lawfully have been standing and yet end up in the position in which, it is agreed, it did end up. As I understand it, the judge must have accepted the evidence of the 1st Defendant that he was driving originally along the west bound tram track. He does not say in so many words that to have continued would have resulted in the overhang of the lorry going over any place on which the Deceased might lawfully have been standing, but by accepting that the vehicle pulled to the right I think it is clear that he must have been satisfied that it then was, at that stage, taking a course which was clear of the area of safety for the Deceased. What he appears to have suggested is that by cutting in too soon and too sharply the driver allowed the overhang of his vehicle to cross the western island. I do not for myself see how it could possibly have crossed any other part of the safety area. If there had been any evidence that the Deceased was standing on the western island, that might have justified the conclusion which he reached, but that is not the evidence. Such evidence as there is, and it is far from clear, puts the Deceased in the centre ground, and that is the place where he was found afterwards. Even if the vehicle did, as I have suggested, travel so that the overhang went over the western island, it is extremely difficult to see how it could possibly have ended up where it did. In my judgment there was not sufficient evidence to justify the conclusion of the learned judge that the 1st Defendant was negligent in his driving. 5. What, however, does concern me very much is that we are told that counsel for the Plaintiff was stopped in his cross-examination of the driver and, as a result of that, did not cross-examine the driver's attendant, who also gave evidence, counsel being of the understanding that the learned judge was satisfied that the liability had been established. In those circumstances I do not think we can properly leave the matter there and I would allow this appeal on the issue of liability, but I would direct that there be a new trial. 6. In the circumstances I say nothing about the damages, as to which there was also an appeal. Cons, J.A.: 7. I have come to the same conclusion that there was not sufficient evidence before the judge to justify the inference that he drew. In particular, there was no evidence as to the exact position of the Deceased upon the refuge. As I understand the argument, it is crucial to the Plaintiff's case to establish that at the time of the accident the Deceased was in a position on the refuge that was suitable from the Plaintiff's point of view, in other words, very much towards the western end of that refuge. The best way that the Plaintiff could have established that position, and perhaps the only way, would have been from the cross-examination of the driver of the vehicle and his passenger. There was virtually none. However we are told that the judge indicated that further cross-examination was unnecessary. In those circumstances I agree that the only satisfactory way that this matter can be resolved is by having a new trial. Bewley, J.: 8. I agree with both the judgments already given and have nothing to add. 17th July 1980. |