Au Cheung v. Choi Lai Fan and Another

CACV000006/1978

Coram: Roberts, C.J., Leonard & O'Connor, JJ.

Date of Judgment: 9 October 1979

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JUDGMENT

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Robert, C.J. -

Background

1. This is an appeal from a judgment of McMullin, J., delivered on 2nd December, 1977, in which he awarded the plaintiffs the sum of $149,286.40 damages with costs.

2. There were originally entered a number of grounds of appeal. However, at the beginning of the hearing counsel for the appellant informed us that he did not propose to argue any grounds other than the first, which was that the trial judge should have found a greater proportion of the blame or liability attached to the deceased, the plaintiffs in the action.

3. The trial judge found that the defendant driver was 80% to blame for the accident which caused the death and that the pedestrian was guilty of 20% contributory negligence.

4. The nominal plaintiffs in the action were the administratrices of the estate of the deceased pedestrian, Mr. Chan Ding-yan. The action was brought under the Fatal Accidents Ordinance and the Law Amendment and Reform (Consolidation) Ordinance.

Facts

5. It was common ground between the parties that the deceased met his death in a motor accident on 9th February, 1974 when he was knocked down by a vehicle driven by the defendant (appellant), Mr. Au Cheung, as the deceased was making his way across an uncontrolled stud crossing in the outside lane of a dual carriageway very close to the road junction where the Castle Peak and Tai Ho Roads in the New Territories meet.

6. The accident occurred at about 7.45 on the evening of 9th February. The street lights were on and the evidence was that the headlights of the driver's lorry were in the dipped position.

7. The lorry was proceeding in an easterly direction in the right hand lane of the dual carriageway. According to the driver, as he approached the lights at the western side of the road junction there was another vehicle in front of him but nothing in the lane to his left. He decelerated as he approached the lights at the westward side of the junction. When he was close to that junction, the lights changed to green, the vehicle in front of him moved off, and he moved off behind it. There is unfortunately no evidence as to what happened thereafter to the latter vehicle; we do not know if it went straight ahead or if it turned to the right or left.

8. The defendant stated that, when the lights had changed to green in his favour he drove at about 26 m.p.h. across the junction in an easterly direction, until he reached the dual carriageway again. There is an uncontrolled stud marked crossing at the point where the main Castle Peak Road starts again after the main road junction. The defendant's vehicle appears to have almost traversed the stud crossing when it hit the deceased, who was dragged some thirty feet by the vehicle before it came to a halt. It is not disputed that the deceased subsequently died of the injuries which he received in this collision.

9. The judge considers the negligence of the driver at p.16 of the record and concludes -

"But all of this comes only to the point that I think that the driver was driving faster than he believed and that the pedestrian was already well advanced to cross the crossing when the driver first saw him and that he was unable to avoid him at the speed at which he was going. It would appear to be common ground that the pedestrian was at least two-thirds of the way across that half of the dual carriage which crosses the road from the northern border of the junction to the central traffic island; the truck was travelling in the lane nearest that island and the deceased was struck by it as it travelled in that position."

10. I will deal now with the particular two aspects of this accident which have been argued before us today.

Effect of green lights

11. First of all, the effect on the respective duties of the driver and the pedestrian of the presence of the green lights, and secondly the effect of studs at an uncontrolled crossing.

12. It was submitted that Joseph Eva Ltd. v. Reeves⁽¹⁾ supports the proposition that the driver of a motorcar who enters a crossroads when traffic lights are in his favour, as the judge accepted was the position here, is not under any obligation to assume that the driver of another vehicle may be entering the crossroads from left or right with the red light against him and that, by analogy, the same rule applies to pedestrians. In that case the court rejected the defence that there had been contributory negligence in those circumstances.

13. This appears to suggest an absolute priority for the driver who obeys the lights. However, it is qualified by the following passage in the judgment of Sir Wilfrid Greene, M.R. at p.401 -

"In my opinion Reeves (i.e. the plaintiff) was entitled to assume that traffic approaching the crossing from the west would act in obedience to the statutory regulations and he was not bound to assume or provide for the case of an eastbound vehicle entering the crossing in disobedience to the red light. This does not, of course, mean that, if he had noticed the appellants' van in time, it was not his duty to take all reasonably possible steps to avoid coming into collision with it notwithstanding that the appellants' van was acting in breach of the regulations. But he did not see it and I do not see how it can be said that he was under any obligation to assume the possibility of its presence."

14. I do not think, particularly in view of later cases, that the effect of Joseph Eva Ltd.⁽¹⁾ is to relieve a driver of his obligation to keep a careful and full watch merely because a green light has given him the right to cross a junction.

15. Davis v. Hassan⁽²⁾ made it clear that, whether or not a green light is in operation, the negligence or contributory negligence of the parties is a question of fact to be decided in each particular case. The report quotes Willmer, L.J. as follows -

"His Lordship thought it must be abundantly clear, whether or not the green light was showing in one's favour, one was not entitled to go on in the face of an obvious danger. The question in the present case was whether the plaintiff was guilty of negligence in not seeing and looking out for a car coming out of Commercial Road against the light."

16. In a case with facts of the nature which we have been considering, and taking account of the way in which pedestrians commonly behave in Hong Kong, a similar duty should surely lie upon the driver to have regard to the possibility that a pedestrian might step into the road ahead of him. A green light is permission to a driver to drive beyond a certain point, it does not entitle him to lower his standard of care.

17. Mulligan v. Holmes⁽³⁾ was also concerned with the effect which the presence of green lights in favour of traffic has upon the duty of care of the driver. It is not necessary, I think, to rehearse the facts in the case but merely to quote from the end of the judgment of Salmon, L.J. -

"I think that the judge perhaps paid too much attention to the fact that the lights were green for the traffic travelling from Holborn Viaduct across the circus into Holborn. It is a factor (that is to say, the fact that the lights were green) to be taken into account, of course, but it is by no means a deciding factor."

18. I turn now to the question of the effect of studs at an uncontrolled crossing.

Effect of "studs"

19. It is agreed between counsel that studs have no legal effect in the sense that no reference appears to them in law or in the Highway Code. We were referred to the case of Kwan Sing-ho v. Kwan Yuk-lan⁽⁴⁾ which appears to conclude that a studded crossing has no status whatever. This certainly was the view expressed by Trainor, J. at p.498. Later, he observes -

"the separate judgments delivered in Joseph Eva Ltd. v. Reeves (1938) 2 K.B. 393 correctly express the position and pedestrians are in no better position than vehicles."

20. The view which I take of Joseph Eva Ltd. v. Reeves⁽¹⁾ as it has been developed and explained in the later cases, is that it should not be interpreted as saying more than that the existence of green lights entitles a driver to cross a junction; it does not entitle him to become careless as he does so.

21. If that is a correct reading of Joseph Eva Ltd. v. Reeves⁽¹⁾ then, in my view, it is perfectly proper to apply the same test to pedestrians. To that extent, I would have no quarrel with the passage to which I have just referred.

22. I do not, however, agree with the judge in his conclusion that a studded area has no status if by that he means that it can be wholly disregarded.

23. I agree that a studded area has no legal status, in the sense that it is not an offence against the law nor an infringement of the Highway Code to walk outside a studded area; nor does a studded area give any priority to pedestrians as does a full pedestrian crossing.

24. But I am of the opinion, as was Leonard, J. in Kwan Sing-ho⁽⁴⁾ that the presence of a studded area is not without its effect. Leonard, J. observed at p.511 -

"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."

25. In my opinion, the significance of the presence of a studded area is that it amounts to an invitation to pedestrians to cross there, with due regard to the dangers of motor traffic. It is also a warning to motorists that pedestrians are much more likely to be found in that area than they would on unmarked parts of the road, so that a higher degree of care is required from them when approaching such areas.

26. I should refer to Ngai Yuk-kwong v. Cham Kam⁽⁵⁾ in which there is a reference to studded pedestrian crossings, which reads as follows -

"He also found that the deceased was negligent in the manner in which he crossed the road in leaving the studded passenger crossing and not keeping a proper look-out for the considerable traffic that this road always carries."

Over the page the report continues -

"We do not think that this was correct. In our view, whichever of the two versions of the accident is accepted it is clear from the evidence that both parties were equally at fault. Neither the deceased nor the first appellant kept a proper look-out and both were equally responsible for the accident."

27. I do not read this passage as intended to mean that in all circumstances a pedestrian who leaves a studded pedestrian crossing while on the road is guilty of negligence. It must be a question of fact in each case. Stepping outside the studs will be only one of the factors which the court will have to take into account in assessing the degree of negligence of a pedestrian. Taken by itself, it does not seem to me to be a factor which is necessarily of any significance at all.

28. Nor do I read the second passage as suggesting that the burden of care on the pedestrian and on the motorist is the same. The motorist controls a lethal weapon, the pedestrian does not.

29. In this appeal, the trial judge considered the degree of contributory negligence of the defendant at the bottom of p.5 of his judgment and said -

"I think that the deceased in this case cannot have been keeping a wholly adequate lookout in his own interest as he ought to have been and I take into account the fact that his friend Mr. Ho described his manner of walking as brisk. It may well be that, having seen the cars which had been stopped at the crossing start off again, he decided to take the risk, although the lights were still with the traffic, of trying to get across as quickly as he could."

30. In essence this is a case in which either the driver was travelling too fast and thus was unable to pull up in time to avoid the collision, or, as seems far more likely, that he was driving at a reasonable speed (and this seems to be substantiated by the absence of brake marks, and by the comparatively short distance between the impact and the point at which the vehicle became stationary) but failing to keep a proper look out. It is difficult to see how, if he had been giving proper attention to the road ahead of him, he could have failed to see a pedestrian walking across the road in front of him at a brisk pace, until the moment at which the vehicle hit the pedestrian.

31. The trial judge weighed up the various factors and decided that the blame should be apportioned as to 80:20.

32. Our attention has been drawn to a passage in Charlesworth on Negligence (6th edition) para. 1207, which says -

"'as a rule an appellate body does not interfere with the discretion exercised by the judge who tried the case.' Only in the event of a substantial misjudgment of the factual basis of the apportionment by the trial judge would the Court of Appeal reassess the apportionment."

33. It is not enough for us to feel that, had this been a trial before us, we might have reached a somewhat different assessment of relative blame. We have to find that the judge has substantially misjudged the factual basis of his apportionment. I certainly cannot find in the judgment anything approaching this and would therefore dismiss the appeal.

Leonard, J. -

34. I agree and there is little that I can usefully add.

35. I feel, however, that I should make a reference to, and express my agreement with, what the Chief Justice has said regarding the case of Ngai Yuk-kwong⁽⁵⁾.

36. As a member of the court which gave judgment in that appeal, it was not, as I remember the case, our intention to suggest that, where the extent of causation was equal, the parties were necessarily equally at fault without having regard to blameworthiness, nor was it our intention to suggest that, where the causation was equal, a pedestrian was in the same position as a person driving a potentially lethal weapon.

37. In this appeal, I consider that it is of importance to bear in mind that the evidence as to the presence on the crossing of the deceased was firstly from an independent witness who said he walked briskly onto it and, secondly, from the appellant, to the effect that he only saw him at the very last moment before impact. This combination of factors suggests to me that the appellant was more to blame, and the manner in which he drove was more the cause of the accident, than was the behaviour of the deceased. I consider that we would not be justified in interfering with the apportionment made by the trial judge.

O'Connor, J.:

38. I agree with the judgment of the Chief Justice and Leonard, J.

Representation:

N. Pirie (John Ip & Co.) for Appellant

R. Ribeiro (Rowdget W. Young & Co.) for Respondents

(1) (1938) 2 K.B. 393.

(2) Times L.R. 12.1.67.

(3) (1971) R.T.R. 179

(4) (1976) H.K.L.R. 489

(5) Civil Appeal 1977 No. 4.