Liu Tat Chor v. Liu Fook Tim and Another

CACV000046/1974

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CIVIL APPEAL NO.46 OF 1974

(On appeal from K.C.J. 2156/74)

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Coram: McMullin & Pickering, JJ.

Date of Judgment: 31st January, 1975.

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JUDGMENT

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McMullin, J.:

1. This is an appeal from the decision of a District Judge dismissing a claim for damages arising from a fatal accident in which a twelve-year-old boy was killed. The accident occurred on the 14th of July 1971 in the vicinity of the junction between Yeung Uk Road and Ham Tin Street in Tsuen Wan at about 5 o'clock in the evening. It was upon a straight piece of road; the weather conditions were good and, so far as the evidence indicates, so were the conditions of light. It is common ground that shortly before the accident the deceased was proceeding together with his sister and another girl, both girls being at that date about 14 years of age, on their way to a public playground which lay to the far side of the dual carriageway which they had to cross. The boy was carrying a basketball and it was the intention of all three to engage in some practice with their ball in the playground. For the plaintiff only the two girls were able to give evidence concerning the immediate circumstances of the accident and neither of them was able to tell in detail what had occurred at the exact moment of impact. Their evidence was similar; in each case the witness said that they were going across the road with the boy somewhat to the rear holding the basketball. They saw the bus approaching but had no difficulty in crossing ahead of it. They said that they got to the centre, mounted the traffic island and then, heard something like a wind going behind them glimpsed a flash of red, heard the sound of an impact and upon turning discovered that the boy with the basketball had been struck by the bus which, it is conceded, was driven at that time by the first defendant who was the employee of the second defendant, the bus company.

2. The only person who could in fact speak to the actual circumstances of the impact was the driver of the bus, the first defendant. His story was that having stopped at a bus stop some distance away from the junction near which the accident happened he picked up a passenger and then drove on in the direction of that junction. He said that he had changed up through the gears and was in top gear travelling at about 20 miles an hour. He then saw a group of people, eight or nine, including it would appear the two girls and the small boy, crossing the road some distance ahead of him. He said that he saw the boy carrying the basketball and bouncing it on the road as he went. He said that the people including the girls made the safety of the traffic island. So also did the boy and as he stood upon the island he continued to bounce the ball. The ball then struck the edge of the kerb nearest to the road which had been transversed by the three children and, bouncing in an awkward fashion, it rebounded in front of the bus and was at once pursued by the boy. The driver said that he was unable at this point to take any evading action but simply tramped upon his brakes. The bus could not be drawn up in time. It struck and killed the child.

3. The judge's finding in respect of this evidence is subject to some criticism because he appears to have thought that the driver's evidence was to the effect that as the boy bounced the ball across the road the ball struck the kerb before the boy actually mounted it. Strangely enough although this misconception was one upon which Mr. Lee for the appellant has fixed in criticising the findings of the judge as not, in certain respects, corresponding with the evidence, yet this particular misunderstanding of it would favour the case of his client because it is clear that if the boy was still in the carriageway bouncing the ball and was struck by the bus before he had arrived upon the island that fact would enhance greatly the suggestion that the driver was negligent. The point however that Mr. Lee makes about the judge's findings upon this evidence is that the driver's version should not have been accepted and that he was in fact endeavouring to strong then his testimony by saying that the boy had actually mounted the pavement. He urged, in support of the suggestion that the driver could not have been telling the truth, the fact, firstly, that the pleaded defence did not suggest that the accident had come about by the boy pursuing the ball from the island back into the roadway but, on the contrary, specifically alleged that the driver had struck the boy while he was still upon the carriageway. Secondly, he said that there was support for the idea that the driver cannot have been telling the truth in the fact that the driver cannot have been telling the truth in the fact that the driver's evidence was to the effect that he had applied his brakes at a moment when the boy was only about two feet from the front of the bus. It is plain that that particular piece of evidence cannot have been true. A sketch map, which had been made by the police shortly after the accident, was produced. It was, in essential outlines, agreed by both parties to be correct. A long brake mark is shown upon it some sixty feet in length extending from a point somewhat to the rear of the front wheels of the bus back along the road in the direction from which the bus had been travelling. Although the sketch map does not afford us a means of accurately determining how far back along the road from the junction the skid mark did in fact extend, it would seem unlikely that it could have been much less than 30 or 40 feet from the point agreed to be the point at which the children had first left the kerb to cross the road. We were referred to the tables of stopping, thinking and braking distances contained in Bingham's Motor Claims. It is needless to refer to those matters in any detail but it is evident that a distance of some 30 feet of thinking time must be added to the 60 feet long brake mark in considering how far from the boy the bus was at the point at which the driver first became aware that an emergency was occurring which necessitated his applying his brakes. Although the exact point of impact was not established it is evident that the driver's estimate of a distance of two feet between himself and the boy at the moment when he applied his brakes cannot be anywhere near correct if the bus was travelling at only 20 miles per hour.

4. It was because of these considerations that Mr. Lee, at the conclusion of the first part of his argument, invited us to deal with the matter purely factually and to say that, on this testimony, the learned trial judge should not have held that the driver gave a true version of the facts. Presumably had we come to that conclusion we might have been impelled to say that, if the driver was not telling the truth about the boy's sudden return into the road the probability was that he had struck the boy while the latter was still crossing the carriageway and that therefore the claim that only the driver had been negligent had been made out.

5. In answer to these contentions Mr. Bokhary pointed out that the judge, upon the evidence before him, had come to a finding of primary fact which, in counsel's submission, was unassailable. That was the finding that the immediate cause of the accident was the fact that the ball, striking the edge of the kerb, had bounced awkwardly and had been immediately followed by the boy who thereby projected himself suddenly in front of the bus. I agree. Although the estimate of distance made by the driver is clearly and very considerably at fault I am satisfied that this primary finding of fact was amply supported by the evidence and that it cannot be assailed in this court. In Andrews v. Freeborough⁽¹⁾ a case to which Mr. Lee referred us and which is important also in another connection, the facts were that a small girl who was standing at the edge of a road about to cross it with her younger brother was struck and killed by a motor car passing along the road. The trial judge found that she had been standing actually on the kerb and not in the roadway. This finding of fact was scrutinized in the Court of Appeal which thought it odd that the accident should have occurred in that way. Nevertheless their Lordships found themselves unable to interfere with this finding of the judge on the basis that it was a finding of primary fact with which the appellate court should not interfere. Similarly in the present case I take the view that the principle and effective cause of the accident was precisely what the learned trial judge found it to be. That is to say, the act of the deceased in following the ball thereby producing a sudden and unexpected emergency to which the driver was impelled at once to react. We informed Mr. Lee therefore that this first part of his contention failed and he moved to consider the second part of his argument. Perhaps I should point out at this stage that although there were a number of grounds of appeal originally placed before us Mr. Lee did in effect contract those grounds of appeal to two principal points the first being the suggestion with which I have already dealt, that is to say, that the judge was mistaken about the evidence and should have found the driver wholly to blame. The second was that, in any event, the judge incorrectly came to the conclusion that there had been no question of contributory negligence and it is to this second point that I will now turn.

6. Mr. Lee concedes that a boy of 12 years brought up in Hong Kong and presumably familiar with its streets and the condition of traffic therein is capable of contributory negligence. But, as a preliminary to that concession, he drew our attention to the case to which I have already referred (Andrews v. Freeborough) in which there may be found some very strong expressions in the judgment of Willmer L.J. in reference to the possibility that a girl of eight years might have been guilty of contributory negligence had she stepped off the kerb onto the road. At page 347 he said:

"I would only add, on this aspect of the case, that if I thought that we could properly find that this child did step off the kerb into the road, I should have needed a good deal of persuasion before imputing contributory negligence to the child having regard to her tender age."

He then went on to say that the point did not then arise. Undoubtedly those are strong words. We must however bear in mind that in the present case the child involved, although young, was a boy of 12 years of age. One must have regard also to the facts conceded by Mr. Lee that a boy of his type and condition brought up in this city where traffic is heavy and not always very well organised ought to be sufficiently aware of its dangers to be apprised of the need, when crossing a road, to watch out for traffic both ways and to be cautious and attentive at all times. There is therefore nothing in that decision which we could seize upon as a general principle in favour of the suggestion that a child of this boy's age could not be capable of contributory negligence. Indeed if one consults the passages in Halsbury Vol. 28 to which we were referred one will there find, not only in the text but the footnotes to the text at page 93, abundant authorities to the effect that children even of a considerably younger age have been found guilty of contributory negligence in relation to a variety of circumstances and accidents.

7. We were referred also to the decision in Baker v. Willoughby⁽²⁾ for the observations of Lord Reid which appear at page 4531 where he says:

"A pedestrian has to look to both sides as well as forwards. He is going at perhaps 3 m.p.h. and at that speed he is rarely a danger to anyone else. The motorist has not got to look sideways although he may have to observe a wide angle ahead; and if he is going at a considerable speed he must not relax his observation, for the consequences may be disastrous. And it sometimes happens .... that he sees that the pedestrian is not looking his way and takes a chance that the pedestrian will not stop and that he can safely pass behind him. In my opinion it is quite possible that the motorist may be very much more to blame than the pedestrian."

In that case a collision had occurred between a pedestrian and a motor car at a time when there was clear visibility and both parties had had ample opportunity to observe each other and take avoiding action and thus the occurrence of the collision obviously involved some degree of negligence on the part of both. That is an observation of a very general sort with which clearly I must agree; no doubt it is of greater pertinence still when one applies it to the case of a young child vis-a-vis a motorist or bus driver. Again as Mr. Bokhary has pointed out in the present case the three children, including the boy who was killed, were heading across the dual carriageway had already crossed that portion of the road along which the bus was being driven. That is a very different situation from the situation prevailing in Andrews v. Freeborough⁽¹⁾ where the little girl and her brother were standing at the side of the road preparing to cross the very carriageway along which the defendant in that case was then driving. A similar distinction sets off the case of Baker v. Willoughby. Insofar as these cases afford authority to our present purposes they say no more than that there can be contributory negligence on the part of a child and that in most cases a greater burden of vigilance is cast upon the motorist. It was, however, in relation to these very general principles that I believe the judge lid go wrong. For there was undoubtedly a heavy duty upon the driver of the bus to have regard to all the circumstances in the immediate vicinity and, particularly to have regard to the presence of the children. Mr. Lee in his admirably succinot reply at the conclusion of the case pointed out that it was the factor of the bouncing ball that made all the difference between the present case and cases such as Baker v. Willoughby or Andrews v. Freeborough, and with respect I would agree. The fact is that the driver, once he had moved from the bus stop and had engaged in top gear, was, on his own admission, aware that there was a group of people ahead of him including the three children; furthermore, that he was aware that one of those was a small boy in the act of bouncing a ball as he crossed the road. That, as it seems to me, is the crucial matter in relation to what must be said as to the duty of the driver of this large, heavy and potentially dangerous vehicle. In my view it should have been in his mind that, although the people ahead were crossing in what otherwise appeared to be a normal fashion yet, because one of them was small and young and was playing with a ball, some untoward event might develop in connection with the child's use of the ball which might call upon him for a sudden reaction. I think that it was his duty, as soon as he saw that such was the situation, to slow down from the speed which he was then maintaining and which he states to have been 20 miles an hour. Upon his own evidence, this should have been done prior to the point at which the emergency developed when it became necessary for him suddenly to tramp upon his brakes. Had he done so it is far from impossible that he might have been able to avoid the accident altogether. For these reasons I have come to the conclusion that although the child must bear part of the responsibility for what happened nevertheless some part of the blame for the accident must also attach to the driver. In all the circumstances I have come to the conclusion that the appeal must be allowed to the extent that for the finding of the trial judge there will be substituted a finding of negligence on the part of the child and of the driver in the proportions of one-third to the driver and two-thirds to the child.

8. We were informed at the outset of the hearing that the parties had been able to come together on the question of damages and that the agreed figure of damage was $10,500 on the basis of full liability. In the event therefore one-third of this agreed sum will go by , way of damages to the successful appellant a sum that is to say of $3,500. We will hear the parties as to costs.

9. Pickering, J. I am in general agreement with the judgment delivered by the learned President, and in precise agreement with the apportionment of negligence.

Representation:

Martin Lee (D.L.A.) assigned for appellant

K. Bokhary (J.S.M.) for respondents.

(1) (1966) 3 W.L.R. 343

(2) (1969) 3 All D.R. 1528.