Chan Wai Hung v. To Hing Suen and Another

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CIVIL APPEAL NO. 5 OF 1975

(On appeal from O.J. 972/73)

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Coram: Huggins & McMullin, JJ.

Date of Judgment: 5th June 1975.

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JUDGMENT

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Huggins, J.:

1. This is an appeal against the judgment of Baber, J. dismissing a claim for damages for personal injuries arising out of a traffic accident which took place on 9th January 1970. There is a Respondent's Notice.

2. This has been an unsatisfactory case in many ways. The accident, as I have said, took place on 9th January 1970. The case did not come on for trial until 11th and 12th July 1974. The matter was then not investigated with the thoroughness that one might have wished and, in particular, we are left on this appeal with the necessity of trying to work out what the figures on the plan which was submitted to the judge in evidence mean. It was none the less a comparatively simple running down action. However, the judge thought it necessary to reserve his judgment - and he reserved it for no les than 6 ½ months, after which he delivered a judgment which, with respect to him, is sadly lacking in findings of facts. He dismissed the claim on the ground that he was not satisfied that negligence had been established.

3. The circumstances were these. The victim (suing by his next friend) was a boy of 11. He was returning from school at about 6 o'clock at night on a winter's evening, when it was dark and the lights on the road were lit. He came to Kwai Chung Road, which is a large new arterial highway having three lanes of traffic in each direction, and there is down the middle of it a concrete reservation, on which there is no railing. The boy tried to cross the road at a road junction where another road, a minor road, crosses Kwai Chung Road. He crossed towards the central reservation and he was struck by a minibus just as he reached the reservation. The minibus was travelling towards Tsuen Wan from Kowloon. The boy was on the far side of the junction as viewed by the driver of that vehicle. The bus was, for a reason which we do not know, in the third lane (the outer lane) of the north going traffic. We do not know what he saw, because the driver did not give evidence. The boy himself received serious injuries and was either unconscious or semi-comatose for some two months after the accident. It is, therefore, not surprising that he himself has little, or no, recollection of what happened. He had left school at 5:30, and he and some of his friends had left their school and had joined up with another boy, or boys, from another school and, as they reached Kwai Chung Road, there was a party of five. Three of those boys started to cross the road. The victim was the fourth. He waited on the pavement for some time and the first three safely reached the reservation. One of them has given evidence that when he reached the far side of Kwai Chung Road, having crossed the entire width of the road, he looked back and saw the victim about to step on to the reservation - at which moment he was struck by the minibus. This means, of course, that the victim had crossed three lanes of traffic all but a foot or two. The width of the three lanes is indicated by the plan submitted in evidence as thirty-four feet four inches. Allowing for some error, he must have gone some thirty feet across the road in view of traffic coming from the direction in which the minibus was travelling. The boy was, however, half running half walking, as were all the boys, and the reason given by the witness Yan (one of the first three) was that the road was busy. There was at this point no pedestrian crossing and no studded crossing, but we are told that it was a place at which people, and in particular school children, would habitually cross the road. The vehicle driven by the first Respondent being a minibus there is every reason to expect, although there is no direct evidence to this effect, that he would know what was the nature of the traffic using this road.

4. There were on the road, after the accident, some tyre marks. One of them was thirty-two feet in length, the other, on the other side, was said to be six feet eight inches in length, but there was another long mark which was not explained - nor was it explained why the two marks said to be tyre marks are not parallel. It is, however, apparent that this vehicle did brake hard and left a tyre mark of thirty-two feet. This particular road is subject to a thirty-mile an hour speed limit. The learned judge made a somewhat strange comment in his judgment that there was some "temptation" in all the circumstances to ignore this speed limit. For my part I do not understand why there should be any particular temptation to ignore this speed limit. It might possibly in some circumstances have been said that there was reason to believe that there was no speed limit on such a main road, but that is not suggested.

5. The question which the learned judge had to decide was whether or not there was, on the evidence called for the Plaintiff, sufficient evidence from which to draw an inference of negligence on the part of the driver. In my view there was ample evidence - and clear evidence - to justify such an inference. The driver ought, in the absence of any other explanation, to have been able to see this young man for some distance - at the least in sufficient time to take avoiding action - and, in my view, there was quite enough evidence for us to be able to say that the learned judge ought to have found that there was some negligence on the part of the driver. The road at this point was straight for three quarters of a mile.

6. The question then arises whether or not there was negligence, contributing to this accident, on the part of the victim. Mr. Mr. Jackson-Lipkin did suggest that this was concluded by the pleadings because the Statement of Claim alleged that the victim was crossing lawfully and that was admitted. We do not need to decide whether in any circumstances that could be a sound argument, because it is quite clear that this particular Defence, although it first admitted that the Plaintiff was crossing lawfully, then clearly alleged that he was crossing negligently and therefore, even though the argument may be sound basically, there was here a contradiction in the Defence itself and we have to look at the evidence to see whether or not there was any evidence of contributory negligence.

7. In my view there was, again, just sufficient evidence to justify a conclusion that there was contributory negligence. If the driver ought to have seen the pedestrian, the pedestrian ought to have been able to see the pedestrian, the pedestrian ought to have been able to see the driver's vehicle. I do not think the evidence shows sufficiently that visibility was so poor, even along the road as distinct from across the road, that the pedestrian can be excused for not having seen on-coming traffic. The boy was half running half walking and either he was trying to dodge the traffic or he misjudged the time that he had to get across the road and in my view it would not be fair in the circumstances of this case to hold the driver entirely to blame.

8. We have discussed the matter of apportionment of blame between the two parties. It is a matter of some difficulty. We might possibly have reached different conclusions had we been sitting alone, but we have come to the conclusion that a fair apportionment of blame in the present case would be as to 80% to the driver and as to 20% to the pedestrian.

9. There is then a question as to the damages assessed by the learned judge. It has been argued by Mr. Chang - and in my view rightly argued - that the manner of assessment adopted is open to criticism. The learned judge was faced with a boy still at school, some way from starting remunerative employment, and, nevertheless, he decided to assess the amount of financial loss due to the Plaintiff's weakened prospects of employment. Mr. Chang has referred us to a passage in Kemp & Kemp on The Quantum of Damages which states what appears to be a sound principle, viz. that in a case of young person who has not yet started to work any calculation of loss of income is so much a matter of conjecture that it ought not to be embarked upon. No authority was quoted by the authors for that particular statement but Mr. Chang referred us to two cases where the judge in such a case had in fact made a global award and not separated the loss of probable earnings. That having been said, it seems to me that we are still left with the question whether the sum which was in fact awarded was an inappropriate sum in all the circumstances of this case. The figure was, in all, $79,000 for general damages, on portions of which interest would vary by reason of the method of assessment used by the judge. In my view if the learned judge had given a global sum anywhere in that region, then, even taking account of the fact that the interest might be calculated in a different way, it is not right to say that the learned judge would have made an assessment which was out of all proportion to the damage suffered. Rather than assess a new figure, without separating the various heads of damage, I think the proper course here is to say that the learned judge's assessment is not so wrong that we ought to interfere and I would award the damages as he assessed them, we having indicated that this is not a precedent which ought to be followed for the future.

5th June 1975.