Kowloon Motor Bus Co (1933) Ltd and Another v. Kong Tung
Read the full judgment text of CACV 53/1972 on BabelCite. This Court of Appeal judgment was delivered on 30 March 1973.
2. However, the situation appears to change when we come to the triangular grass-covered patch at the end of the dual-carriageway adjacent to the roundabout. There are metal railings round the triangular patch; but these are not mounted on an elevated concrete foundation; and there is a footpath on the outside of the railings around the whole circumference of the triangular patch.
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CACV000053/1972 IN THE SUPREME COURT OF HONG KONG APPELLATE JURISDICTION CIVIL APPEAL NO. 53 OF 1972 (On appeal from O.J. 241 of 1972) -----------------
----------------- Coram: Full Court (Blair-Kerr, S.P.J., Huggins and McMullin, JJ.) Date of Judgment: 30 March 1973 ----------------- JUDGMENT ----------------- Blair-Kerr, S.P.J.: The portion of Choi Hung Road with which we are concerned in this case runs roughly norta-west/south-east through a heavily built-up area. It is a dual-carriageway; and the metal railings dividing the two carriageways are mounted on an elevated concrete foundation the sides of which slope from the base of the railings to the roadway. Clearly, the railings and concrete foundation are designed to prevent any movement of pedestrians or vehicles from one carriageway to the other; and the absence of any footpath or pavement on either side of the fence is a clear indication to pedestrians that all movement of pedestrian traffic must be confined to the paved footpaths on the north-east and south-west sides of Choi Hung Road. 2. However, the situation appears to change when we come to the triangular grass-covered patch at the end of the dual-carriageway adjacent to the roundabout. There are metal railings round the triangular patch; but these are not mounted on an elevated concrete foundation; and there is a footpath on the outside of the railings around the whole circumference of the triangular patch. 3. From the photos (particularly Exhibits 3D and 4) it would appear that this footpath is at least 18" (perhaps 2') wide; and one naturally asks oneself this: If the footpath is not intended for the use of pedestrians, what is it intended for? In my view it is intended for the use of pedestrians; or, putting it at its lowest, it might reasonably be regarded by pedestrians as being for their use. People find it necessary to cross public highways for many reasons. If, in the case of a dual-carriageway, they are prevented from crossing from one side of the road to the other, they naturally look for a suitable place to cross at a spot where the dual-carriageway ends. We know that there is the Diamond Hill zebra crossing more than 100 yards from the spot where the deceased met her death. There is also this footpath around the triangular patch on which pedestrians may pause half-way across Choi Hung Road before completing the second stage of the operation as and when a suitable opportunity presents itself. The only other alternative to a pedestrian wishing to cross from the north-east side to the south-west side of Choi Hung Road would be to cross Hammer Hill Road by means of the two stud-crossings there and then to cross over in front of the bus traffic entering and leaving the Choi Hung Bus Terminal and finally to cross over to the south-west pavement from there - a fairly hazardous operation. True, there is no stud-crossing at the place where the deceased attempted to cross; but, having regard to all the circumstances, I should have thought that it might reasonably be expected that pedestrians would cross the road at the south-east side of the triangular patch; and that a bus driver who, it might reasonably be presumed, is familiar with the route over which his bus passes, would, or should, know that pedestrians might well attempt to cross the road there; and that, in all the circumstances, it behoved him to approach the end of the dual-carriageway and the roundabout with extreme caution. 4. It was while the deceased was attempting to cross the road at the end of the dual-carriageway that she was killed. As I read the evidence she stepped off the pavement at a spot either at, or somewhere near, the metal sign fixed to the pavement (it is visible in photo 3D), her intention being to cross over to the narrow footpath at the north-east corner of the triangular patch. It is obvious from photo 3D that, the road bends to the left fairly sharply as one approaches the end of the dual-carriageway. Surely that is an additional reason for extreme caution on the part of motorists approaching the end of the dual-carriageway. A pedestrian standing on the pavement at, or near, the metal sign would not have an entirely unrestricted view of traffic travelling south-east along Choi Hung Road; nor would the pavement near the metal sign be visible to a motorist until he had sufficiently rounded the bend in the road. 5. As a regular user of mini-buses and also of the no.22 bus which runs from the Choi Hung Bus Terminal to Sai Kung, I am as familiar with this area as I am with Jackson Road; and I am well aware that the metal sign on the pavement as shown on photo 3D is a "no waiting" sign. But, as no evidence was given about that, I must not allow my personal knowledge of the area to influence my view of the case. The trial judge was not asked to view the scene; nor were we. 6. The onus of proving negligence was, of course, on the plaintiff. In his pleading he does not allege specifically that the defendant was driving at an excessive speed, unless failing to have "sufficient regard" for pedestrians implies excessive speed. The crux of the plaintiff's case was that the defendant failed to keep a proper lookout. 7. It is pertinent to ask oneself what might have happened if the defendant had not testified at all. The only material witness called by the plaintiff was the deceased's young daughter KONG Wai-ying - a child of approximately 10 or 11 years of age. She said that she and her mother intended to return home to Sai Kung "by taking transport"; that she looked before stepping off the pavement and "could see no vehicle coming"; that she and her mother walked at a normal pace; and that they were knocked down by the bus before they reached the middle of the road. What she meant by "the middle" of the road was not explored in evidence. The triangular grass patch is in the middle of Choi Hung Road. 8. The north-east carriageway on which the bus was travelling is 24'10" wide; but, the carriageway narrows somewhat opposite the triangular grass patch. When the police arrived on the scene they found the bus on the right, or outer, side of the carriageway. About one-third of the bus projected beyond the south-east side of the triangular patch. The off-side rear of the bus was 4' from the pathway by the side of the triangular patch and 12'3" from the north-east pavement. The front near-side of the bus was 16'8" from the pavement. There was blood on the road 8'7" beyond the front of the bus. 9. In all probability, the blood came from the body of either the deceased or the child. But there was no evidence as to whose blood it was. According to the child, she and her mother were walking "side by side ... hand in hand." She said her mother was holding something in her left hand. If this was so, the child would have been walking on her mother's right. The child said that the bus hit them at the same time, and that before the bus hit her she did not see it. 10. If the child's evidence was accepted, we can infer roughly where the point of impact was. When giving evidence, she was shown the photo Ex.4; and she said that their intention was to cross to beyond the tip of the arrows shown in that photograph. In other words, to cross over to the narrow footpath at the north-east corner of the triangular patch. There was no evidence that either of them took any avoiding action immediately prior to being struck. Therefore it would appear that the point of impact was somewhere between the corner of the triangular patch as shown in Ex.4 and the pavement more or less directly opposite to that corner. 11. The child said that she was injured on the left leg. But no medical report relating to that injury was put in evidence. The mother's death was due to internal bleeding following a head injury. But it is not known whether the injury to her head was caused by a blow from the bus or as a result of her body hitting the roadway; and there was no evidence as to whether there were any external injuries to the deceased. 12. If the point of impact was at a spot between the north-east corner of the triangular patch and the pavement more or less directly opposite to that norner, it would appear that the blood on the road was 8'7" plus one-third of the length of the bus beyond the point of impact. If we assume that the bus was say 18' long, that would mean that the body of either the deceased or the child lay on the road approximately 14' or 15' beyond the point of impact; but, on the evidence, it is impossible to say whether the body was flung that distance by the force of the impact or whether it was dragged there. Although the driver said that the bus was not moved after the accident, there was no independent evidence that this was so. The police sketch plan merely depicts what the police saw when they arrived on the scene later. For myself I put no weight whatsoever on the fact that the defendant signed the sketch plan at the request of the police officer who made it. 13. In his defence, the defendant alleged that the accident was caused wholly or in part by the negligence of the deceased. The particulars of the alleged negligence were stated by him in these terms:
There is nothing in these statements to indicate that the defendant was going to allege in evidence that the deceased ran across the road. Nor is there anything in the defendant's pleading to indicate that he was going to allege that the deceased ran out in front of a minibus or minibuses allegedly parked adjacent to the pavement. However, it appears that in his statement to the police he made some assertions of this kind; and it would appear that both counsel had access to that statement because in examination-in-chief the deceased's daughter was asked about this. The evidence was recorded by the judge in narrative form; but it would appear that the question put to the child was:
and the child answered "no." In cross-examination, she was again questioned thus:
This was the second time that it was suggested to the child that a minibus may have been parked at, or near, the spot where they came off the pavement. According to the record, the child thought about this suggestion for some time before answering: "I did not see any minibus." 14. If no further evidence had been called, the judge, in my view, would have been justified in finding that there were no minibuses parked at or near the spot where the deceased and her daughter stepped off the pavement. It was put to the child that she and her mother emerged in front of a stationary minibus, the suggestion being that the driver of the bus was placed in an impossible position. "Emerged in front" of the bus clearly implied that the deceased and the child emerged immediately in front of a stationary bus; and, if the judge accepted the child's evidence, he would have been amply justified in finding that there were no stationary buses parked by the side of the curb at or near the spot where the deceased stepped off the pavement. If a person emerges immediately in front of a vehicle, he cannot help seeing the vehicle. It is well within his field of vision. 15. If, then, the judge accepted the child's evidence that she looked before stepping off the pavement and that she saw no vehicle coming; that she saw no minibus at the place where they stepped off the pavement; that she and her mother walked across the carriageway at a "normal pace" (to quote the child's evidence), even if the driver of the bus slowed down on approaching the bend in the road shortly before reaching the end of the dual-carriageway, if he had been keeping a proper lookout he ought to have seen the deceased and the child. No counsel representing the defendant could possibly have taken the risk of standing on a no-case-to-answer submission; and counsel for the defendant in this case did not do so. 16. As I have said, the onus of proving negligence was on the plaintiff. No "burden" was cast upon the defendant, except, of course, that if he wished to persuade the judge that minibuses were parked at the side of the carriageway and that the deceased ran out in front of one of them the burden of introducing some evidence to this effect lay upon him. 17. His evidence was substantially to this effect: That after passing the zebra crossing at Diamond Hill, which was over 100 yards before he came to the roundabout, he was travelling on the right hand side of the carriageway i.e. next to the central railings; that he travelled on the right of the carriageway because he saw minibuses travelling on the left; and, from his experience, mini-buses stop at any time to let off passengers; that if there had been no vehicle in the inner lane, he would have used that lane as it would have been more convenient for turning his route 15A bus into Hammer Hill Road; that near the roundabout he saw minibuses stationary letting off passengers; that the deceased and the child ran out on the roadway in front of a minibus; that when he first saw them they were only 6' or 7' in front of his bus; that he immediately stopped his vehicle and then found that "the middle part" of his bus had hit them. He also said that he did not move the vehicle after the accident. 18. The judge was clearly impressed by the child's evidence. "Straight-forward" was the word he used to describe her; and there is nothing in his judgment to indicate that he disbelieved, or even doubted, anything she said. Clearly, he regarded her as an honest witness. 19. Having dealt with her evidence first, the judge then summarised the evidence of the defendant; and, having done so, he then said:
However the judge then proceeded to comment on certain aspects of the case. Firstly he referred to the absence of any skid mark on the police sketch map; and he said
As to that, the record of the defendant's evidence does not indicate that he said that he braked violently. Furthermore, the fact that the rough sketch does not show any skid mark is not conclusive. The police officer who came to the scene shortly after the accident was not asked about that; and there was no evidence about the state of the weather, and the condition of the road. 20. The judge appears to have been fully aware of all this because he said that even if he was wrong on that point, the defendant's evidence "is still not satisfactory". The judge then referred to the defendant's allegation that he first saw the deceased 6 or 7 feet in front of him. It is perfectly true that a vehicle travelling at 15 miles per hour travels 22 feet in one second. I see from the Highway Code (to which we are at liberty to refer) the stopping distance of a vehicle travelling at 20 miles per hour is 40 feet, viz. 20 feet "thinking distance" and 20 feet "braking distance". These figures would be somewhat less in the case of a vehicle travelling at 15 miles per hour. The judge said:
This simply means that if the deceased was 6' or 7' in front of the bus when the defendant first saw her, the bus must necessarily have knocked her down and would probably have passed over her body and, assuming that the bus was not moved after the accident (as the defendant alleges) the deceased's body would therefore have been found somewhere to the rear of the bus or under it, but not 8'7" in front of it. 21. Of course, we do not know what happened at the moment of impact. For myself I find it very difficult to believe that the deceased's body was flung forwards 14' or 15' as a result of being struck by the bus. But that appears to be what the defendant was asking the court to believe. There is nothing in his evidence to suggest that the bus passed over deceased's body; and he maintained that the bus was not moved after the accident. If that is so, one would have expected to find the body of the deceased somewhere to the rear of the bus, or if it was dragged after being struck, it would have been under the bus or perhaps immediately in front of it - but not 8'7" in front of the bus. 22. That appears to be what was going through the judge's mind when he said that if the defendant was speaking the truth in saying that the deceased suddenly appeared 6' or 7' in front of him, the bus would have run her over "several times". 23. The judge then said this:
The judge then said that, in his view, the bus would have stalled if it had been travelling at 15 miles per hour in third gear, and that consequently the bus must have been in a lower gear or, if in third gear, it must have been travelling faster than 15 miles per hour. 24. I agree that this was either speculation or the judge was making use of his own personal knowledge of the characteristics of motor buses. There was no evidence of stalling. Furthermore, excessive speed was not pleaded. The essence of the plaintiff's case was that the defendant was not keeping a proper lookout. 25. The judge then said:
26. The complaint of counsel for the defendant (appellant) is that the judge did not form the opinion that the defendant was lying as a result of his observation of the defendant's demeanour and that he reached this conclusion by a process of analysis and speculation which was logically unsound; that he then proceeded to the conclusion that because the defendant was lying in regard to the presence of minibuses and when he said that the deceased rushed out in front of one of them, etc., the child, KONG Wai-ying, must have been speaking the truth. 27. In the vast majority of cases which come before this court, issues of fact are resolved by a judge sitting alone. He usually finds no difficulty in deciding who is, and is not, speaking the truth. It frequently happens that a witness is lying on one or more aspects of the case but that he is speaking the truth on other matters; but, whatever the situation is, it is the duty of the judge to state clearly what his findings are. 28. He may reach his conclusion by a close observation of the demeanour of the witnesses. He may also test the view he has formed of a witness's credibility by discussing the inherent probabilities or improbabilities of the witness's assertions. The judge may reach his conclusions partly as a result of his observation of the witness's demeanour and partly by the view he takes of the inherent probabilities or improbabilities of the witness's assertions. Occasionally, a judge may find himself in the position of being unable to say who is speaking the truth and who is lying; but, speaking for myself, I think that this rarely happens. It did happen in the case of Ho Yan Yee v. Yu Hing(1). In that case, Scholes J. found himself in this unfortunate position; and he said so in his judgment. On appeal to this Court, Hogan C.J. said.(p.701):-
29. With respect, I entirely agree. It has been said over and over again that the great advantage which a trial judge has over an appellate court is that he sees and hears the witnesses and is in a position to assess their credibility from their demeanour. Every judge who has done first-instance work knows that; and, in my view, if a judge should find himself in the unfortunate position in which Scholes J. found himself, it is his bounden duty to say so in his judgment. 30. In this case, the judge has given no indication that he found any difficulty in deciding who was speaking the truth. What has caused all the difficulty before this Court is the judge's use of the phrase "for these reasons". True, it is arguable that, on demeanour alone, the judge was unable to say who was speaking the truth and that it was for the three reasons which he gave (two of which, in my view, were bad) that he came to the conclusion that the defendant had not been "utterly frank and completely honest". But, I feel certain that if the judge had seen nothing significant in the demeanour of the witnesses, he would have said so; and, having studied the judgment carefully, it is my view that he simply disbelieved the defendant's story about minibuses and the deceased rushing out from the front of one of them. But, instead of saying so, he attempted to test his impressions by analysis, and indeed speculation, which of course is open to criticism by this Court. His use of the phrase "for these reasons" has certainly confused matters. But I am unable to agree with the submission that he formed no view of the witnesses' credibility as a result of his observations. 31. The judge's finding that the deceased was 25% to blame for the accident is supportable on the view that although it may have appeared to her to be safe to cross the carriageway, having regard to the fact that the road is a busy dual-carriageway in a built-up area, the deceased ought to have continued to look to her right while walking across the carriageway. She might then have seen the bus and might have been able to take avoiding action. 32. For these reasons I agree with my Brother McMullin J. that this appeal should be dismissed. 33. I cannot leave this case without repeating what I have said on numerous occasions during the last 10 years viz. that it is of the first importance that every judge of fact should indicate clearly in his judgment not only his findings of fact - primary and inferential - but, as regards his findings of primary fact, to what extent these are based on the view which he has formed of the witnesses' demeanour and on what he regards as the inherent probabilities and improbabilities of the conflicting stories.
Representation: D. Chang (Johnson, Stokes & Master) for appellants. R. Tang (H.A. Hoosenally) for respondent. (1) [1962] H.K.L.R. 682. IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CIVIL APPEAL NO. 53 OF 1972 (On appeal from O.J. 241 of 1972) -----------------
----------------- Coram: Blair-Kerr, S.P.J., Huggins and McMullin, JJ. Date of Judgment: 30 March 1973 ----------------- JUDGMENT ----------------- Huggins, J.: I entirely agree with McMullin, J. as to the difficulties which arise from the learned judge's approach to the evidence. It seems to me that the judge has clearly disbelieved the driver for reasons which are unsound. However, I do not think that that is the vital matter. What we have to ask ourselves is whether the learned judge's finding of negligence can stand and it is here that I am unfortunately not of one mind with McMullin, J. I ask myself what the grounds were upon which the learned judge based his finding. He found "that the Deceased and her daughter were ... walking down into the road and were many more feet [than six or seven] from the bus when seen by [the driver]". Thirdly, he found that the driver was not keeping a proper lookout because "either he had engaged in a lower gear and travelling at 15 m.p.h. or he was travelling faster than 15 m.p.h.". He further found "that there were no mini-buses parking along the pavement on the near side of the road". 2. With respect I think that all but the first two of these primary findings of fact are open to challenge. The reason given for finding that the driver was not keeping a proper lookout was clearly insufficient. The questions which should have been posed were: (1) having regard to the speed of the bus should the driver have been able to see the pedestrians before he did if his view was unobstructed? (2) Was the driver's view proved not to have been obstructed? (3) Was the bus travelling faster than the road conditions justified? The learned judge must be taken to have answered the first of these questions "Yes" and I see no reason to question that conclusion. However, he obviously answered the second question "Yes" also and it is here that in my view he was in error. To start with, he clearly approached the matter from another direction and asked himself whether the driver had proved that his view was obstructed. That was to put the onus of disproving negligence upon the driver. The driver himself said that his view was obstructed by one or more mini-buses. Even though his evidence was disbelieved there was no evidence to the contrary. All the daughter said was that she did not see any mini-bus, but she did not say that no mini-bus was there and in my view her evidence did not justify an inference that no mini-bus was there. She did not see the bus which hit her and we know that that was there. Although she said "I looked before I stepped onto the road", she was apparently not asked in which direction she looked and for all we know she never looked to her right but was, in the manner of little girls, blissfully oblivious of danger. She was holding her mother's hand and she admitted that she was relying upon her mother to ensure her safety. It is sufficient for our purposes to say that the burden of proof was on the Plaintiff and in my opinion there was no evidence which justified the judge, even on a balance of probabilities, in finding that there was no mini-bus obstructing the driver's view. Nor was there any evidence that the bus was travelling faster than the road condition justified. Counsel for the Respondent said that it was the judge's belief in the evidence of the girl which led him to give judgment for the Plaintiff. That may well be so, but it is of no assistance to the Respondent when she has adduced no positive evidence from which negligence on the part of the driver can be inferred. Although the fact that she herself could not remember by which hand her mother was holding her would have raised the gravest doubt in my mind as to the credibility of the girl, I think we mist accept the judge's conclusion that she was a reliable witness. Even accepted, however, that she and her mother were walking (and if they appeared suddenly it may well have seemed to the driver that they were going faster than they really were) and that they were further from the bus than the driver estimated, that does not, without more precise findings of speeds and distances, prove that the driver was negligent. It is not necessary for me to go so far as to say that because I think the learned judge disbelieved the driver for reasons which were unsound I think he ought to have believed the driver when he said his view was obstructed by a mini-bus. 3. Reluctant as I always am to interfere with a judge's findings of fact - even of secondary fact - I am compelled to say here that I think the finding of negligence cannot be supported and I would allow the appeal. Representation: IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CIVIL APPEAL NO. 53 OF 1972 (ON APPEAL FROM O.J. 241 OF 1972) -----------------
----------------- Coram: Full Court (Blair-Kerr, S.P.J., Huggins & McMullin, JJ.) Date of Judgment: 30 March 1973 ----------------- JUDGMENT ----------------- McMullin J.: This is an appeal from the judgment of Li J. in Original Jurisdiction Action No. 241 of 1972 in which he awarded damages under the Fatal Accidents and Law Reform (Miscellaneous Provisions) Ordinances to the administrator of the estate of Madame Lung Lin. The deceased was struck by a bus owned by the first defendant and driven by the second defendant and she died shortly after the collision which occurred on the 12th of September 1970 near the roundabout linking Choi Hung Road and Hammer Hill Road in Kowloon. There was originally an appeal against the finding in respect of quantum of damage the total award being $30,000. Mr. Denis Chang who appeared for the appellant both at first instance and in this court abandoned this part of appeal which need not therefore be further considered. 2. The pleaded particulars of negligence in the statement of claim are the usual form and in the defence the cause of the accident is attributed to the negligence of the plaintiff herself the particulars once again being principally concerned with her alleged failure to keep a proper lookout and stepping suddenly off the kerb at a place and time when it was not safe to do so. 3. As the learned trial judge observed, the basic facts in the case were simple. Indeed, that has presented us with what might be regarded as the principal difficulty involved in the appeal. The circumstances placed before the trial judge were not only few and simple in their nature but they failed to include certain basic details of the occurrence which one would think it must have been possible at the time to establish and the lack of which must inevitably have hampered the judge in his endeavour to form a true estimate of the event. It was common ground that the deceased essayed to cross the Choi Hung Road in the vicinity of a roundabout on the afternoon of the 12th of September and that she had with her her nine year old daughter KONG Wai-ying. They were proceeding roughly east to west in the direction of a triangular island covered with grass and fenced with iron railings which is sited at the middle of the thoroughfare one of its margins providing the north-westerly limit of the roundabout which itself is sited close to the Choi Hung Housing Estate. Choi Hung Road is a dual carriageway divided down its centre by metal railings and the bus driven by the second defendant was travelling south-easterly towards the roundabout from the direction of Kowloon City. It is not disputed that the mother and her daughter were crossing the carriageway from a point on the pavement directly opposite the south-easterly projection of the triangular island where the carriageway actually reaches the roundabout and that they were both struck by the bus as they were doing so. The trial court had the rather dubious assistance of a very rough sketch map drawn by a police officer shortly after the accident. It was produced by a police officer but no evidence was led as to the indications which appear thereon. However, the parties are in agreement that it purports to show the position of the bus at rest after the accident. At a point on that sketch which is marked as being some 8 feet 7 inches immediately forward of the front of the bus a small circle has been drawn to which is attached the legend "blood (wet)". Although this was undoubtedly connected with the accident, yet, since both mother and daughter were injured, it was not possible to show the final position of the body of the deceased since any attempt to do so by reference to those blood marks could only be in the nature of speculation. Partly as a result of this the approximate point of impact has remained wholly undetermined. These are among the primary facts the lack of which not only rendered the trial judge's task more difficult but which necessarily hampers this court in dealing with the grounds of appeal from his decision. The trial judge, however, did not place any special reliance on the sketch map nor has it been suggested that he did so. He came to the conclusion that both parties must have been negligent to some extent and he apportioned the respective degrees of negligence as being 75 per cent on the part of the driver and 25 per cent on the part of the deceased. He came to his conclusion primarily upon the evidence of two witnesses only: the bus driver and the injured child. 4. The driver's story was that after he passed the zebra-crossing at Diamond Hill about 100 yards short of the roundabout he drove towards the roundabout at a speed of about 14 - 15 miles per hour preparatory to turning to his left along Hammer Hill Road which was his proper route and also was the first road to which he would come on entering the complex of road juntions that form the roundabout. He said that, although he was proposing to turn left at the junction, he had in fact been travelling in the traffic lane farthest from the pavement with the railings which divide the centre of the road immediately upon his right. He explained that he had been compelled to do this by reason of the presence of mini-buses in the vicinity which, according to his experience, were liable to stop suddenly along the pavement. He said that there were several of these buses to his left and that as he prepared to turn into Hammer Hill Road he was in third gear. He then suddenly saw two persons who had run in front of one of the mini-buses and who appeared suddenly ahead of him so that he was unable to turn to the right because of the railings and unable to turn to the left because of the mini-buses and was compelled to make what shift he could to avoid an accident by at once applying his brakes. Although he did so at once he was unable to avoid the two pedestrians who, according to his account of it, were only six or seven feet in front of the bus when he first saw them. 5. The plaintiff's witness, KONG Wai-ying, gave evidence upon affirmation. In view of the importance of her evidence and the weight attached to it by the trial judge, it is of some interest to note that shortly after the commencement of the proceedings she was, because of her obviously tender years, catechized by the judge in the usual manner, on her ability to understand the nature of an oath or to tell truth from falsehood. Originally, it would appear, he took the view that she could not understand the meaning of the words "oath" or "affirmation"; that she did not know the meaning of the words "true" and "false"; and that although she knew that telling a lie was a bad thing to do she did not know why it was considered bad. He established further that she went to school, was in primary 5 and had been taught the virtues of honesty by her teachers and realised that she must not tell lies at random. Her true age was never quite satisfactorily established but from the fact that it is stated to be 10 in the statement of claim which was issued in March 1972 the judge's estimate of 9 years would be roughly correct since the action was heard on the 18th of October in that year. However, at the date of the accident she may very well not yet have reached her 10th year. Following upon the usual inquisition as to her age the evidence of her father was taken first and she was called as a witness later in the morning. The trial judge evidently made further inquiries concerning this matter and was apparently satisfied then that she understood the nature of an affirmation. She told the court that she and her mother, on the day of the accident, had left Choi Hung Housing Estate and were on their way back to Sai Kung. It was their intention to get public transport and it was apparently for that purpose that they proposed to cross the Choi Hung Road. She was walking by her mother's side holding her mother's hand but she was unable to say whether she was to the right or to the left of her. As to this it would appear that her evidence and that of the driver may be in agreement since he positively stated that he saw the child to the right of the mother and the child herself said that her mother was holding something in her left hand. She said that before they left the pavement to head for the island she looked and could see no vehicle coming. When they were less than half way across the road they were suddenly struck by the bus. She did not lose consciousness but her left leg was somewhat injured below the knee. She was asked whether she had seen any mini-buses either stationary or moving near her just before she and her mother left the pavement and she replied that she could not remember. Other than to say that they had been walking and not running, as the bus driver said, that was the substance of her evidence. 6. As too often occurs in these cases the judge was therefore left with a slender evidential basis for the necessary primary findings of fact. As both counsel in this court agreed, however, it is clear that the findings of the trial judge proceeded on his accepting the story given by the child as being substantially the truth and in rejecting that of the driver. Mr. Chang's principal complaint is that there was no evidence of negligence on the part of the driver whatsoever and that the judge's finding of negligence, based as it was on accepting the girl's story and rejecting the driver's, was itself arrived at as a result of a series of conjectures which were not supported by reliable evidence. In the state of affairs thus alleged he asked us to say that the judge had, in effect, tested the credibility of the driver, not on his personal assessment of the driver's quality as a witness, but rather by the application of the arithmetic of probabilities to the events described by both of the main witnesses. He asked us to say that "accident mathematics" is always dangerous and he relied upon the decision in Coghlan v. Cumberland(1) as authority for an appeal court's power to overturn even primary findings of fact. That case is no doubt good warrant for the courts so acting in appropriate circumstances although it might be noted that the practice approved by the court in that case, was, in a sense, the opposite of what Mr. Chang asks us to do here. At page 705 Lindley M.R. says as follows :
If I understand that passage correctly the court is there dealing with a situation in which the record before it shows that the trial judge has actually relied upon his impression of the witnesses and come to his conclusions on that basis. Here Mr. Chang's complaint is that the credibility of the witnesses' was of paramount importance and that the judge has purported to decide the question of their credibility not by reference to manner and demeanour and the like but by probing and sifting the inherent probabilities of what they said in order, in that way, to discover whether they were truthful or not. It was, counsel said in this way that the judge managed to come to his primary and basic findings, (a), that the mother and her daughter had not run out upon the road; and (b), that there were in fact no mini-buses parked or almost stationary near the pavement obscuring his view of the pedestrians until they were almost upon him. 7. Mr. Tang for the respondent agreed that these were the two factual issues upon which the findings as to negligence were based. As he would have it, however, they are secure because, in coming to them, the judge relied upon his estimate of the witnesses in seeking whom to believe. He refers to certain statements by the judge which seem to indicate a positive estimate of the quality of each of these witnesses. As to the driver the judge undoubtedly said of him that he did not think that he had been utterly frank and completely honest; and he was obviously impressed by the fact that the girl was frank enough to admit that she had not seen any vehicle approaching. For all that there is much force in Mr. Chang's contention that the judge's estimate of the bus driver was a conclusion from what he regarded as unsatisfactory or contradictory elements in his story. Thus he appears to have disbelieved the driver's story of having used his brakes immediately because no skid marks had been found upon the road. As to that, there was no satisfactory evidence concerning the state of the weather and the court had occasion to observe in the course of the hearing that one of the photographs seems to show that the road was wet at one place shortly before the roundabout, a factor which might well have reduced the possibility of significant tyre marks upon the road. Moreover no witness was asked anything about tyre marks or skid marks. Again the judge comments on the unlikeliness of the driver's story that he first saw the pedestrians only six or seven feet away. He took the view that if, as the driver maintained, he had been travelling at 15 miles an hour (i.e. 22 feet per second) he must, as the judge put it "have run them over several times before the bus could come to a standstill". Having said that he at once continued as follows:
Further there is the fact that he undoubtedly entered into pure conjecture when he suggested that had the bus been travelling in third gear at 15 miles an hour the engine must have stalled. There is no doubt that it was from this conjecture that he came to the conclusion either that the bus was being driven in a lower gear at 15 miles an hour or else that it was travelling faster than 15 miles an hour. From this he moved to the final conclusion that the second defendant had not been keeping a proper lookout. Immediately after this he said :
These deliberations and calculations, in other words, were employed not merely to discredit the evidence of the driver but to affirm that of the plaintiff's witness. 8. I have every sympathy for the trial judge. There were questions concerning speed, relative positions, condition of road surface, degree of traffic at the time, presence of mini-buses, point of impact etc. which, one feels, could have been very much better covered by a more thorough investigation and laid before the court in due course. We have, however, to deal with the matter as it stands and we are not entitled to upset the findings of the judge unless we are satisfied that he had misdirected himself on primary issue of fact or that he came to his conclusions by a fallacious process of reasoning from such facts as do appear upon the record and upon which he relied in coming to his conclusions. Undoubtedly he has found that the deceased and her daughter walked and did not run across the road and that the bus driver's view of them cannot have been obscured by the presence of any mini-buses. Speaking for myself from what appears in the judgment and upon the record I believe that the learned trial judge did find himself in something of a quandary in choosing between these two witnesses so far as mere impression and demeanour were concerned. There is no doubt, however, that he was impressed by the manner in which the young complainant gave her evidence. Thus he says on the second page of the judgment
His estimate of the driver's quality as a witness on the other hand does appear to me to be based almost entirely upon an analysis of the details of his story coupled with some degree of conjecture as aforesaid. I do not think that is in itself necessarily always an improper approach. Indeed, as the court implied in Coghlan's case, a trial court may place too much reliance on impression of demeanour and an appellate court is not precluded from testing its conclusions by a rigorous analytical examination of the component elements of the testimony itself. It may as a result form the, opinion that the trial judge was mistaken, or his confidence misplaced, and in the result it may feel justified in declining to follow his opinion. In Yuill v. Yuill(2) the master of the Rolls says (at page 188) :
of course it would only be in the clearest case that this would be done. 9. What is cause for concern in the present case is the fact that the girl's evidence concerning the presence or absence of mini-buses was of a negative nature whereas the driver was positively of the opinion that mini-buses were present and had indeed played a cardinal role in the accident. Moreover the driver gave a positive reason for having his bus at a position on the road in which one would certainly not expect to find it in view of the route which he then proposed to take and that reason was the very presence of those vehicles to his left of which the child can say, not that there were none, but only that she did not see any. The trial judge accepted the girl as a satisfactory i.e. a truthful witness. Nevertheless he ascribed to her, and to her unfortunate mother, a degree of negligence which was based upon their not having observed the defendant's vehicle. In view of that finding his elevation of her testimony that she had not seen any mini-buses into a positive finding that there were not any is a conclusion which cannot but be regarded with some degree of misgiving. In Watt v. Thomas(3) the House of Lords considered an appeal by a wife from a judgment of the Second Division of the Court of Session reversing the decision of the Lord Ordinary, who refused to grant a husband a decree of divorce on the grounds of his wife's cruelty. The main ground for this reversal was that the members of the Court of Session took a different view from that of the Lord Ordinary of the facts disclosed by the evidence given at the original hearing before him and of the inferences properly to be drawn therefrom. The House of Lords considered the whole vexed question of the powers of an appellate court to review the findings of a judge at first instance on matters of fact elicited from witnesses who he had the opportunity of observing and appraising. The leading speech was delivered by Lord Thankerton who at page 587 lays down a number of propositions the first of which is of relevance to our present concerns. That proposition is in the following terms :
Lord du Parcq, in a supporting speech at page 591, quotes the opinion of Lord Greene, M.R. in the case of Yuill v. Yuill(2) which has already been referred to. Viscount Simon dissented from the majority but in his speech on page 584 may be found some preliminary observations which cannot be said to be out of accord with the majority opinion and which are valuable in that they constitute a lucid and pertinent comment on the topic at large and one which, perhaps, comes closer to the circumstances we are now considering than to those upon which the House then found itself engaged. He begins by adopting the opinion of the Lord President Inglis in Kinnell v. Peebles(4) to the effect that a court of appeal should attach the greatest weight to the opinion of the judge who saw the witnesses and heard the evidence and consequently should not disturb a judgment of fact unless they are satisfied that it is unsound. He then goes on to say :
Applying that principle it seems to me that the learned trial judge's unfavourable impression of the bus driver's evidence was due less to any unfavourable view which he had formed of his veracity as such but was the result rather of the inferences which he drew from those other conclusions to which I have already referred. Even if this be true, however, I should still be guided by the principle enunciated by the majority of that court and hold that we are disentitled to overturn the finding of the judge on the two vital issues of fact unless we can say that he made that estimate as a result of his analysis of those facts and not by virtue of the advantage he had in seeing and observing the witness and, further, that he either misdirected himself on the facts generally or else that the inferences which he drew therefrom are clearly wrong. As to misdirection, I do not think that appears (unless the judge's conjectural observations are to be placed under that label but I do not think that would be right). With misdirection out of the way it would, within the principle stated from Watt v. Thomas(3), be open to this court, if it were disposed on its own view of the evidence on the record, to form a different opinion on those issues of fact to that formed by the trial judge, to do so on the basis that he had rejected the bus driver's evidence not because he found that the driver was in himself an untrustworthy witness but because of his analysis of his evidence, if, in addition, this court was unable to accept that analysis. When, however, by the foregoing process of argument I find myself brought, as it were, to the brink of that position I find, that although I am dubious of the manner in which he found his primary facts, I am on the whole disinclined to take that final step in disturbing them. I am withheld from doing so because I do not believe that if I were to adopt such a course I could confidently say, applying the words of Lord Greene quoted above in Yuill v. Yuill(2), that the circumstances before us are :
This is not in my opinion one of those "very rare occasions" where the court would be justified in doing so although in my opinion it comes close. For these reasons I do not find myself able to agree with counsel for the appellant that the learned trial judge was wrong in coming to his conclusion that there had been no mini-buses and that the appellant and her daughter did not run out suddenly into the road. 10. For the rest, I am satisfied that he properly apportioned blame once he had come to the conclusion that the road was not obstructed in the way the driver maintained and that the pedestrians and the bus driver had mutually and equally the opportunity of seeing each other. In Baker v. Willoughby(5) the House of Lords rejected a conclusion of the Court of Appeal which was to the effect that, where a pedestrian and a motorist had a clear view of each other for two hundred yards prior to the moment of impact and neither did anything about it, both must be equally to blame. Lord Reid was clearly of the opinion that in such circumstances the motorist was usually more to blame. He supports his view by referring to the fact that a pedestrian, going at three miles an hour, is rarely a danger to anyone else; that the motorist has not got to look sideways as well as to the front as a pedestrian must do but only has to observe ahead of him and he adds that if the motorist is doing a considerable speed he must not relax his observation for the consequences may be disastrous. In the present case of course the bus was not going at a very considerable speed but to those observations I think must be added a further pertinent factor and that is that the motorist is fixed with responsibility for the control and performance of a very dangerous instrument. It is quite true of course that there was no pedestrian crossing at this particular point. On the other hand even the police officer who gave evidence considered that the crossing attempted by the mother and her daughter was the most practical method of getting to where they wanted to go. From what has been said in court, and from what appears upon the sketch, it would seem that to have resorted to proper pedestrian crossings to get to the far side of Choi Hung Road would have required a very considerable detour and such as one would not regard as being practicable or reasonable in the circumstances. For these reasons I would dismiss the appeal. Representation: (1) (1898 1 Chancery 704) (2) 1945 1 All E.R. 183 (3) 1947 1 A.E.R. 582 (4) 17.R. (Court of Sessions) 423 (5) 1972 W.L.R. 50 |