Kwan Yuk Lan v. Kwan Sing Ho
Read the full judgment text of CACV 39/1974 on BabelCite. This Court of Appeal judgment was delivered on 27 January 1975.
2. Tai Hang Tung Road runs into Boundary Street meeting it on the northern side and with Boundary Street forms a T-junction. On the eastern side of the junction there is an area, marked on either side with steel studs, where pedestrians usually cross. Traffic from the east approaching that junction would, if it intended to turn into Tai Hang Tung Road, approach the junction in the lane nearer to the road division while traffic intending to continue to the west would proceed in the other or left
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CACV000039/1974 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CIVIL APPEAL NO. 39 OF 1974 -----------------
----------------- Coram: Pickaring, Leonard and Trainor, JJ. Date of Judgment: 27 January 1975 ----------------- JUDGMENT ----------------- Trainor J.: Boundary Street in Kowloon runs in an east/westerly direction. It can carry four lanes of traffic: two moving in an east to west direction separated from two moving in the opposite direction by a division running along the centre of the street. 2. Tai Hang Tung Road runs into Boundary Street meeting it on the northern side and with Boundary Street forms a T-junction. On the eastern side of the junction there is an area, marked on either side with steel studs, where pedestrians usually cross. Traffic from the east approaching that junction would, if it intended to turn into Tai Hang Tung Road, approach the junction in the lane nearer to the road division while traffic intending to continue to the west would proceed in the other or left - hand lane. When the flow of traffic is east and west such traffic as wishes to turn into Tai Hang Tung Road stops before reaching the studded crossing and waits for the eastbound flow to stop. The junction is not controlled by traffic lights, but on the occasion with which this appeal is concerned it was by a traffic constable. 3. On 25th June, 1969 at about 7.30 a.m. Kwan Yuk-lan was knocked down by a motor-car at the junction. She received very severe injuries indeed and instituted proceedings against the driver of the motor-car. At the hearing of the proceedings the learned trial judge held that the driver of the vehicle was guilty of negligence, and that the lady was also at fault. He attributed two-thirds of the responsibility for the accident to the driver of the car, and one-third to the plaintiff. He awarded special and general damages to the plaintiff and directed that they be apportioned in that ratio. 4. The defendant has appealed to this Court against the decision of the learned trial judge. In a nutshell he appeals against the learned trial judge's finding that he was negligent at all, or if he was negligent that he was liable to the extent of two-thirds. 5. The plaintiff served notice under Order 59 rule 6(1) of the Supreme Court Rules of her intention to contend that so much of the judgment as attributed one-third of the responsibility for the accident to her should be varied to such lesser proportion as might be just, and that the judgment of the court below be varied accordingly. 6. To summarize, the appellant's grounds of appeal are: that there was no evidence to support the findings of the learned trial judge that he was negligent; that the learned trial judge was wrong in law and in fact in holding that the defendant was negligent in that he was either driving too fast, or failed to keep a proper look-out; and that the learned trial judge misdirectad himself in failing to attach sufficient weight to the fact that the appellant was obeying traffic signals while the respondent was disobeying traffic signals, at the time of the aooident. 7. The appellant further contended that the apportionment of negligence was wrong if, which was denied, the appellant was negligent, and the proper apportionment should have been two-thirds responsibility to the respondent and one-third to the appellant. 8. It was the contention of the respondent in her cross-appeal that the learned trial judge was wrong to attribute any nelgigence, or negligence to the extent of one-third to her as there was no evidence adduced on behalf of the appellant which tended to show that the respondent had been guilty of any negligence or negligence to the extent found. 9. There was no witness of the actual collision. The traffic constable at the junction and a boy, aged 14 years at the time of the accident, saw the respondent in the air after she had been struck by the car. The constable was on a pagoda which, from a sketch plan prepared by another police officer and produced in the court below, appeared to be closer to the studded crossing than to the centre of the junction. In the notes of evidence the pagoda is said to be about three to four feet from the ground, which I understand to mean that the platform on which the traffic constable stands is about that height off the ground. 10. The major flow of traffic at that junction is along Boundary Street in both directions, and the constable said that his primary function was to regulate that traffic and the traffic turning into or out from Tai Hang Tung Road. 11. At the time of the accident the constable said that he was facing north into Tai Hang Tung Road and would, therefore, have his right shoulder pointing towards traffic moving from the east. Traffic was running in both directions along Boundary Street. He said traffic was normal, i.e. not very heavy. He said that there were some cars, he thought perhaps two or three, stationary in the right-hand lane of the southern half of Boundary Street to the east side of the studded crossing waiting to turn into Tai Hang Tung Road. The constable said he heard the sound of a braking car which was quite loud, to his right-hand side, i.e. to the east side of the junction, and heard a bump. He said he turned quickly, and saw a car travelling in the left-hand lane in a westerly direction. He said he saw a woman thrown in the air and saw her fell on to the bonnet, then slip down the bonnet on to the road to the left side of the car which stopped. The constable said that when he saw the woman in the air the front of the car was within the studded crossing. He pointed out on the plan the place where the woman fell and, although the plan is not drawn to scale there are measurements, it would appear to be about 4 ½ feet from the southern side of Boundary Street. It would also appear from the plan that where she fell was about 10 feet 2 inches from the westerly line of the studs. 12. The boy, who also saw the woman in the air, said he was walking along Boundary Street on the southern side and going towards the west. He said he heard, for about two seconds, the sound of a car braking and turned around. He said when he did so he saw the respondent in the air. 13. The police constable and the boy were the nearest to aye witnesses. Two persons who must have seen the incident did not give evidence: the respondent's daughter, who was with her mother at the time of the accident, but is now in Canada; and the appellant. 14. What happened on that morning is to be found in the traffic-constable's evidence and the judgment of the learned trial judge. 15. It would appear that many pedestrians, including the respondent and her daughter, had reached an island in the middle of the road under the traffic-constable's pagoda from the northern side of Boundary Street. Traffic was flowing in east and west directions. The constable was in the usual stance in such circumstances, that is, he was facing north and was side on to the flow of traffic. Two or three cars wishing to turn into Tai Hang Tung Road, which would entail crossing the line of traffic from the west, had been stopped by the police constable. The appellant was travelling to the west in the southern half of the street and thus had the two or three stationary cars to his right. This being so his view of a part of the studded area must have been restricted. 16. It was the intention of the respondent to cross to the southern side of the street which would entail crossing the appellant's car travelling to the west. To do this she left the sanctuary of the island, and passed in front of the parked vehicles while traffic was moving west in obedience to the police constable controlling traffic. She was struck while on the studded crossing. 17. The width of that part of Boundary Street which carries the east to west traffic is 20 feet. The police officer who drew the plan after the accident found the appellant's car to be inclined towards its left, with the near side front wheel 6 feet 8 inches from the southern side of the street and the near rear side wheel 9 feet from it. Taking into consideration the width of the appellant's car it may, I think, be safely assumed it had been driven prior to the accident, partly over the centre of the southern half of the road; and taking into consideration the width of the other cars it must have been close to the stationary cars. 18. I refer to those measuremants and the position of the stationary cars as I think, with the greatest respect, the learned trial judge erred when he said:
The inference as to the point of impact was, clearly, of considerable cance to the learned trial judge but he erred there I think, and arrived at signific his conclusion from the agreed plan which appeared to show the appellant's car as being well in its own driving lane; but an examination of the accepted measurements show otherwise. 19. Mr. Tang for the appellant argued that the learned trial judge was wrong in attributing any negligence to the appellant. He contended that two factors were uppermost in the learned judge's mind, viz., that the respondent was on a studded crossing, and that there were stationary cars to the right of the appellant as he drove along, but that he did not attach sufficient weight to the fact that traffic at the place was controlled by a traffic constable and that the appellant was driving in compliance with his directions. 20. In his judgment the learned judge said:
21. In support of his argument Mr. Tang referred to the case of Joseph Eva Ltd. v. Reeves (1938) 2 K.B.393 the headnote to which commences:
22. He referred to a part of the judgment of Sir Wilfred Greene, M.R. at 401, where the learned Master of the Rolls said:
23. Mr. Tang referred to another part of the judgment of the Court below which I quote:
24. Mr. Asome in his argument laid stress on the fact that the appellant did not give evidence and, as he put it, the Court was deprived of the defendant's assistance. He said that stress had been laid by Counsel for the appellant on the fact that traffic was moving east and west along Boundary Street but because the appellant did not give evidence it was impossible to say whether this was so or not. I found this point difficult to reconcile with the evidence of the traffic constable and the findings of the learned trial judge. 25. He submitted that the learned trial judge was correct in holding:
26. Mr. Asome referred to the case of Gibbons v. Kahl (1956) 1 Q.B.59 and Edwards v. Hong Kong Tramways (supra). He contended that the respondent had established negligence on the part of the appellant and in default of rebutting evidence, or evidence to show she was partly to blame (and he maintained there was no such evidence) she was entitled to judgment without attaching any blame to her. 27. There was argument by Counsel for both parties on the question of apportionment of blame but having regard to my conclusion on this case I do not propose to deal with it. 28. It is, perhaps, trite to say it, but the basis of the respondent's claim in this case was negligence; and the onus of proving it lay on her. Neither she nor the Court was entitled to expect any assistance from the appellant, and she was only entitled to succeed if the evidence she adduced lead the Court below to the opinion that the appellant was negligent. To do this she had to persuade the Court that the appellant on the morning in question, in breach of his duty to take care did what that hoary old gentleman, the reasonable and prudent man, would not have done, or did not do what he would have done, as a result of which she suffered damage. 29. In considering what the appellant did or did not do we have to consider his behaviour against the background of established facts. 30. The first established fact is that this was a controlled road junction. The traffic constable said that he was in control and at the relevant time had traffic flowing east and west. Indeed, he said, traffic had been flowing thus for some time and there were many pedestrians standing on the island in the middle of the streat waiting to cross to the southern side. The second is that on the eastern side of the road junction there is a part of the road marked, in a north to south direction, by studs. 31. The first question I think that must be asked is: what is the status, if I may call it that, of that studded area? 32. In my opinion it has no status whatever. The studding of a part of a road means, in default of legislation, nothing more than an invitation to pedestrians for their own convenience and that of traffic generally to use it. In this view, I find support in the judgment of Hogan, C.J. in R. v. Chiang Shu-cheong, 1962 H.K.L.R. 595 at 598:
The learned Chief Justice continues:
and, if I may say so, with respect, no one could cavil at that observation. Many motorists slow down or stop to permit podestrians to cross at these markings and a driver aware of one must approach it with aution. But nevertheless it does not give a pedestrian precedence, and he too must exercise care 33. But the position immediately changes when the place where a studded area exists is controlled by a traffic light or a traffic constable. When that is the position then strict obedience to the control is demanded and must be given. I think, with respect, the views expressed in the separate judgments delivered in Joseph Eva Ltd. v. Reeves (1938) 2 K.B. cerrectly express the position and pedestrians are in no better position than vehicles. 34. I have earlier quoted from the judgments of Greene M.R. and Scott L.J. but there is also the observation of MacKinnon L.J. at 412:
35. In Binghams Motor Claims Cases 7th eddition 110 the learned author states:
With respect to the learned author I think he overstates the position when he says the decision has been criticised. It is very true to say that the decision is open to criticism if put forward as an authority for the proposition that a driver who proceeds through traffic control in his favour is never guilty of negligence, but I do not think that was intended to be the purport of the various judgments delivered in the case. Indeed this point is made by Green M.R. at 401 when after saying what I have quoted above he continued:
The same point is made by MacKinnon L.J. in the passage from his judgment that I have quoted when he said that Reeves was "prima facie" entitled to consider himself as on an open road. However, the case, as stated earlier has never been overruled. 36. Counsel for the respondent has placed some considerable reliance on the case of Gibbons v. Kahl (1956) 1 Q.B.59 but I do not think that that case is of any great help to him. The circumstances were very different. 37. The headnote to Giboons v. Kahl sets out the facts as follows:
38. In that case the infant was on a crossing where, by statute he had the right of precedence. Undoubtedly it was the duty of the motorist to ensure that there was no pedestrian on the crossing before he attempted to cross. If his vision was obscured it was his duty to make sure that no pedestrian was exercising his right of precedence before he drove on; or to drive at such a speed that he could stop in time however suddenly one emerged. 39. In that case owing to an over - filling of fuel tanks at the Hilton Hotel, Queen's Road Central was blocked causing extremely congested traffic conditions. Traffic lights which usually regulate the flow of traffic to the west along Queensway, and in a northerly direction from Garden Road, had been switched off and police officers were directing the emerging streams of traffic by hand signals into Des Voeux Road and Jackson Road. The only vehicles permitted to travel towards the east were the defendants' trams using the northern set of tracks in Queensway. Traffic had banked up across the studded area from Garden Road to the northern, or Cricket Club, side of Queensway, and, in response to a signal from a police officer, the plaintiff wended his way through the banked up vehicles. At the same time a tram of the defendant company, in response to the signal of another police officer, moved forward and struck the plaintiff while he was in the studded area. It was accepted that a tram on the southern set of tracks heading west was in the vicinity and played a part in obscuring the tram driver's vision of the area. The plaintiff was knocked down and injured. 40. McMullin J., finding the tram driver negligent and 80% responsible for the accident said, at p.510, that he could not subscribe to the suggestion of inevitable accident and continued:
41. Later in his judgment McMullin J. said (513):
The learned judge then proceeded to refer to certain English cases, and Mr. Asome has cited in support of his case what the learned judge said at 513 with regard to two of them: Gibbons v. Kahl (supra) and Lockie v. Lawton (1960) 124 J.P.24:
42. There is one final extract I wish to make from the judgment of McMullin J., (510) as I think it and the reliance which he put on the cases to which I have referred, indicate the rationale of his judgment. 43. Having referred to the duty cast upon the pedestrian and tram driver alike to keep a weather eye open for unusual or unexpected intrusions on the 1ne of travel quoted above he continued:
44. It was shortly after the above quotation that the learned judge referred to Gibbons v. Kahl and Lockie v. Lawton. 45. I yield to no one in my respect for a judgment of McMullin J., and it is only with the greatest hesitation that I would venture to differ from one, but in this case I think he was wrong. I think he made the mistake of equating that studded area with pedestrian crossings in England given a status by legislation, where, outside unforeseeable circumstances, the pedestrian has absolute precedence. He would appear to have ooncluded that because the pedestrian was on a studded area he had some precedence, and because he was deprived of it the tram driver was negligent. There was no suggestion that the tram driver was negligent in not seeing the plaintiff sooner, and there was no suggestion that his speed was excessive; in fact McMullin J. considered his speed to be immaterial. Indeed, it would appear that the only way the driver could have avoided the accident would have been to have anticipated that the plaintiff, or some one else, would step into the tram's path, and remained stationary in defiance of the police officer's signal (and thereby commit an offence). Unfortunately the learned judge was not referred to the case of Chiang Shu-cheong and The Queen to which I have already referred and quoted Hogan C.J.:
It is equally unfortunate that the case of Wilson v. West (1947) S.C.198 was not cited. The headnote to that case reads:
46. Proceedings were brought by a passenger in the bus against the driver of the tank transporter and the bus company. The case was dismissed against both defendants. An appeal from the Sheriff Substitute to the Sheriff was refused as was an appeal to the Court of Session (Lord Justice-Clerk, Lord Mackay and Lord Stevenson). 47. Being of the opinion that McMullin J. arrived at the conclusion he did in the Edwards case from a false premiss I can find he support in it for the respondent's case. 48. Returning in the instant case to the facts: A read junction at which vehicular and pedestrian traffic was controlled by a traffic constable. In the exercise of that control he had at the time of the accident, and for some considerable time before, traffic moving eastwards and westwards. A number of pedestrians were standing on an island in the centre of the road beneath him; he also had two or three cars halted to the south of the centre division of the road waiting to be signalled to the north. The appellant, according to the measurements of the police officer who drew the plan, was driving about the centre of the road to the west in the flow directed by the traffic constable. His speed, as estimated by the traffic constable. was around 20 miles per hour. 49. Up to that stage there can be no suggestion of negligence. he fact he may have been close to the stationary cars in no way indicates negligence in that free-flowing stream of traffic; it involved no danger, neither does the fact that he was unable to see pedestrians by reason of the stationary cars. Where, then, was his negligence and breach of duty? Had there been evidence that he saw the respondent moving out, or about to move out from behind the stationary vehicles then, undoubtedly, his right to travel on freely would cease and he would be liable for the consequences if he failed to take appropriate action; but no such evidence was adduced. No evidence was adduced that there was a likelihood of a reasonable person doing what the respondent did which the appellant should have anticipated. 50. It has been argued by Mr. Asome that pedestrians in Hong Kong are notoriously careless and that motorists should be aware of this. He would suggest that, particularly, when a motorist sees a stationary car or tram he should anticipate someone stepping out from behind it and into his path. With the greatest of respect he is expected to anticipate no such thing. He is entitled to expect the inhabitants of Hong Kong to behave as rational. reasonable human beings, subject to the same instinct for self-preservation as the inhabitants of any other similar sophisticated city. To suggest that a motorist is to anticipate that behind every stationary car there lurks a person who may emerge and, without looking to see what traffic there is, proceed suicidally into the traffic's path is unsustainable, To suggest that a motorist driving normally along a road in obedience to a traffic signal should anticipate that a pedestrian will step from behind a stationary car into his path, when a casual look to the left or right would have revealed the motorist's approach, and be in a position to stop before hitting the pedestrian is expecting far too much. To hold otherwise would leave a pedestrian in the belief that at a controlled crossing he may emerge, in disobedience of the control, in the confident belief that even if he is negligent so is the motorist who is unable to stop and hits him. Such a decision would amount, well nigh, to an invitation to pedestrians to flout control and take a chance. Such a possibility has only to be considered to be discounted. To implement such an idea would bring traffic in Hong Kong to a crawl and make traffic control pointless. 51. With the greatest respect to the learned trial judge I think he was wrong when he considered that the appellant was negligent in not giving sufficient attention to the "possibility" that someone might be using the studded area in question. I do not think that a motorist is negligent if he fails to anticipate that a pedestrian may misread the situation and conclude that motor cars which are stationary in the middle of the road at a junction as a result of traffic control have stopped for his benefit. If there was a probability that someone might use the area as the respondent did it might have required special attention from the appellant, but it was not probable and the possibility was, in my opinion, so remote that it demanded scant, if any, attention. 52. As MacKinnon. L.J. at 412 in the Eva v. Reeves case said:
53. I do not consider that the authority of a traffic constable is less than that of a traffic light. In fact a motorist is bound to comply with a traffic constable's signal. 54. There was an onus on the respondent to show that the appellant was negligent, this she failed to do and, with the greatest possible sympathy with the unfortunate woman, I would allow the appeal, dismiss the cross appeal and allow the appellant his costs here and in the Court below. Respondent's costs taxed according to Legal Aid Ordinance. Representation: R. Tang (K.B. Chau & Co.) for Appellant. M. Asome (Director of Logal Aid) for Respondent. IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CIVIL APPEAL NO. 39 OF 1974 (On appeal from O.J. 718/70) -----------------
----------------- Coram: Pickering, Leonard & Trainor, JJ. Date of Judgment: 27th January, 1975. ----------------- JUDGMENT ----------------- Pickering, J.: I have come to the same opinion. 2. The site surrounding the scene of the accident and the traffic, with its flow at the relevant time, have been described with meticulous accuracy by my brother Trainor and it is unnecessary for me to attempt to portray the scene in any other words. 3. My brethren are divided upon the question whether the actual point of impact was well into the defendant's driving lane or not. For my part I think it impossible upon the material before us to reach any firm conclusion upon that matter and I say this because I take leave to doubt the accuracy of the measurements in the sketch map produced in the court below. Those measurements show the off-side rear corner of the appellant's car as being 11' beyond the second row of studs of the pedestrian crossing and the near-side rear corner as being 10'2" therefrom. These measurements indicate a very slight departure towards the left from a track parallel with the pavement: yet although the pavement is shown as perfectly straight at this point, the measurement from the pavement to the near-side front corner of the car is given as 6'8" and that from the pavement to the near-side rear corner as 9'. This difference of 2'4" would suggest a swerve sufficiently pronounced as to have resulted in a greater difference than 10" in the distances between the near - side rear corner of the car and the off-side rear corner from the studded crossing. As it seems to he both sets of measurements cannot be correct but if the measurements are in fact inaccurate, it is impossible to say which of them can properly be so characterised and it is for that reason that I find myself unable to reach a conclusion as to whether the point of impact was well into the defendant's driving lane or not. In any event, as it seems to me, the answer to that question is immaterial when the case comes to be considered upon its known facts. 4. In this connection I do not place the same reliance upon the case of Eva v. Reeves(1) as appears to be implicit in the judgment of my brother Trainor for it would appear that since the case of Davis v. Hassan (2) the former case is not to be construed as laying down the absolute rule which it was once thought to have established, but rather that every case of negligence concerning a traffic accident falls to be decided on its own particular facts. 5. I am, however, compelled to agree that the case of Edwards v. Hong Kong Tramways Ltd.(3) is of little or no assistance to the respondent for the reason that the cases of Gibbons v. Kahl(4), Lockie v. Lawton(5) and Kozimor v. Adey(6), cited in that case, were all cases involving accidents occurring upon uncontrolled cro sings. The learned judge in the Edwards case, before citing those cases, referred to the summary of their facts contained in Bingham's Motor Claim Cases (6th Ed.) between pages 67 and 71; but it is clear from the note at the heading of page 67 that all the cases did in fact involve uncontrolled crossings which are defined as meaning zebra crossings not controlled for the time being by a policeman. It is for that reason that I agree that the Edwares case cannot assist the respondent for we are concerned not with an uncontrolled crossing of a type which confers statutory precedence upon pedestrians, but with a controlled crossing of a type which never, either when controlled, or uncontrolled, confers any such right. 6. I have approached the facts of this case, not from the rigorous standard of Eva v. Reeves(1) but on the basis of the more elastic principle enunciated in Davis v. Hassan(2). Yet even that approach offers no comfort to the respondent. The picture is of a single lane of traffic 10' wide containing vehicles travelling westwards at the approach to a studded crossing and having a stationary line of vehicles in the adjacent lane to the right. In that flow was the appellant's car travelling, upon such evidence as we have, at 15 to 20 m.p.h. and proceeding in compliance with the signal, active or passive, of a police officer. That picture contains no element of negligence and, whilst it is abundantly clear that the respondent must have moved out from the group of pedestrians standing on the traffic island and then crossed in front of the stationary cars into the westward line of traffic flow, there is no evidence that the appellant saw the respondent moving out before it was too late, or in what manner or what speed she did so move. Nor was there any evidence of the likelihood of a reasonable person so moving out into the line of traffic. 7. In those circumstances negligence on the part of the appellant had not been proved and the appeal must be allowed and the cross-appeal dismissed with costs in each case and in the court below, to the appellant. Costs of the respondent to be taxed in accordance with the Legal Aid Regulations. Representation: Robert Tang (K.B. Chau & Co.) for appellant. Michael Asome (D.L.A.) assigned for respondent. (1) 1938 2 K.B. 395 (2) The Times January 12. 1967 (C.A.) (3) 1972 H.K.L.R. 500 (4) 1956 1 Q.B. 59 (5) 1959 124 J.P. 24 (6) 1962 S.J. 431. IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CIVIL APPEAL NO. 39 OF 1974 (ON APPEAL FROM O.J. 718/70) -----------------
----------------- Coram: Full Court (Pickering, Leonard & Trainor, JJ.) Date of Judgment: 27th January, 1975. ----------------- JUDGMENT ----------------- Leonard J. : I have had the advantage of reading the judgment Trainor J. herein and am grateful for his full and careful description of the site of this accident. I think, however, that it is desirable that I should refer in even more detail to the plan drawn by the police constable after the accident. This shows the appellant's car to have come to a halt after having crossed the studded crossing in question with its nearside rear wheel 10 feet from the studded crossing and 9 feet from the pavement. Its offside rear wheel was 11 feet from the studs. Its nearside front wheel was 6 feet 8 inches from the pavement. The dimensions of the car are not given nor is the width of the studded crossing which was however described in the evidence as "not wider than normal". 2. The learned judge's notes of the evidence of the constable who was directing traffic on the pagoda (who was not the constable who drew the plan) insofar as is relevant to these measurements, reads:
This last sentence would indicate that the respondent came to rest between the pavement and the rear nearside wheel of the appellant's car. 3. It appears clear from the note of evidence that at that stage of his evidence the constable physically indicated the position where the respondent finally came to rest and also the position on the studded crossing where she was thrown into the air. The learned judge had the advantage of seeing these demenstrations and I do not think his finding, that the actual point of impact indicated by the traffic constable was well into the defendant's driving lane, can be attacked here. What is open to doubt is his conclusion that the respondent would have been "visible to him for quite an appreciable time", since the entire width of that side of the road before the studded crossing was only 20 feet and since the vehicles that were stopped before the studded crossing, must have occupied approximately five of those 20 feet so that the appellant's car as it passed them on the inside, in obedience to the traffic constable's signal must have been very close to them, Therefore, the period within which the respondent "would have been visible" to the appellant may have been very short. It would in any event be dependant on the speed at which she was crossing - a fact on which there was no evidence. 4. The evidence as to the speed at which the appellant was travelling came firstly from the police officer. He described it as 20 - 30 miles per hour at the time of impact but modified this in cross-examination to say "an estimate of 15 - 20 miles per hour would be a fair estimate". The shampoo boy said he "heard the long sound of braking" which "lasted quite long, about 2 seconds". There were however no brake marks on the road and such estimates of time are notoriously uncertain. Furthermore assuming the studded crossing to have been twelve feet wide the distance beyond it at which the car finally came to a stop does not indicate a speed exceeding 20 miles per hour. 5. Was that an excessive or improper speed for a person approaching a studded crossing controlled by a traffic constable who is calling one on? The studding of a crossing particularly when it is coupled as it was in this case with a stop line before it, is an indication to any reasonable motorist that pedestrians may be expected to cross the road at that point and that he should as he approaches be on his guard against their doing so. Such crossings have no status conferred on them by legislation but that they are widely used and intended to be so used by the multitudinous pedestrians of Kowloon is so well known that no responsible motorist could ignore them. Many pedestrians were standing on the island beneath the traffic pagoda on the occasion in question. The traffic constable thought they were waiting to cross the road. As he faced into Tai Hang Tung Road they would have been below him and to his right. They would not have been immediately visible to motorists approaching from the constable's right in the "slow" or inner lane of traffic intending to go straight along Boundary Street, because of the vehicles waiting to turn right into Tai Hang Tung Road. One would, if driving straight along Boundary Street, not expect pedestrians to leave the sanctuary of the traffic island until the traffic constable halted the traffic. on Boundary Street and called on the traffic in Tai Hang Tung Road to proceed. While appreciating the duty of the motorist to be ready reasonably to cope with the actions not only of reasonable pedestrians but also of those who may be infirm or disabled (Boss and Litton 1832 5 C. & P. 407) and that in Hong Kong the prudent motorist must expect pedestrians to behave oncautiously the standard of care imposed on the motorist remains one of reasonableness. In this case the appellant had not been shown to have behaved unreasonably at the place is question for he was not shown to have been driving at an excessive speed he was acting in compliance with the general signal of the traffic constable to proceed and the finding that the respondent "would have been visible to him for quite an appreciable time" so as to oblige him to fail to comply with the traffic constable's signal appears to me untenable. Had the studded crossing not been controlled by a traffic constable the position would have been entirely different. It would then have been the duty of the appellant to approach it with greater circumspection and he might well have anticipated the action of the respondent. He could not reasonably have been expected to anticipate it in view of the direction to proceed extended to him by the traffic constable's continuing signal. 6. I would hold that there was no evidence of negligence on the part of the appellant, allow this appeal and dismiss the cross-appeal with costs in each case and in the court below.
Representation: Mr. Robert Tang (K.B. Chan & Co.) for appellant. Mr. Michael Asome (D.L.A.) for respondent. |