Samuel Lam Shing Yam v. Yip Kam Foon
Read the full judgment text of CACV 9/1968 on BabelCite. This Court of Appeal judgment was delivered on 10 July 1968.
1. This appeal concerns a running down case. The plaintiff was knocked down by a taxi driven by the defendant, and as a result the plaintiff suffered injuries. The learned trial judge found that both the plaintiff and the defendant were negligent, the plaintiff being 30% and the defendant 70% negligent. There is no appeal against the finding that the plaintiff was negligent, but the defendant has appealed against the finding that he was negligent.
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CACV000009/1968 IN THE SUPREME COURT OF HONG KONG APPELLATE JURISDICTION CIVIL APPEAL NO.9 OF 1968 (On appeal from K.D.C., C.J. Action No. 4439 of 1967) -----------------
Coram: Scholes, J., Huggins, J. Date of Judgment: 10 July 1968 ----------------- JUDGMENT ----------------- 1. This appeal concerns a running down case. The plaintiff was knocked down by a taxi driven by the defendant, and as a result the plaintiff suffered injuries. The learned trial judge found that both the plaintiff and the defendant were negligent, the plaintiff being 30% and the defendant 70% negligent. There is no appeal against the finding that the plaintiff was negligent, but the defendant has appealed against the finding that he was negligent. 2. The questions for the court are one, whether, in the circumstances, the defendant was negligent, and two, if he was, to what degree he was negligent. 3. The facts shortly are that the plaintiff was travelling along Prince Edward Road on a bicycle in a westerly direction on his left hand side of the road at about 4.15 p.m. on the 18th June, 1966, the road being damp. This road at all material places has three lanes for traffic travelling in a westerly direction, with railings going down the centre of the road dividing the westbound traffic from the eastbound traffic. When the plaintiff arrived at a studded pedestrian crossing, which crossed the road from South to North, with a gap in the railings therefor, he alighted from his bicycle and intended to cross the road from the South to the North side of the road, and to go through the gap in the railings. He started to cross the road on the crossing, pushing his bicycle, when it was quite unsafe so to do, and to avoid on-coming traffic he then put one foot on a pedal of his bicycle, pushing it along in scooter fashion, thereby going faster, in a north-westerly direction diagonally across the road leaving the studded crossing behind. On the near lane of traffic a bus was approaching, in the centre lane van was approaching, and in the outside lane the taxi driven by the defendant was approaching, the taxi being to the rear of and to the side of the van. At a time when the plaintiff had left the crossing the defendant saw the van slow down. Up till then the road in front of the defendant had been quite clear. Shortly after the van dropped speed the defendant suddenly saw the plaintiff and his bicycle come out from the front of the van in front of the defendant and that was the first time that the defendant saw the plaintiff. The defendant immediately applied his brakes and swerved to the left to avoid hitting the plaintiff and his bicycle, but the offside front of his taxi caught the rear wheel of the bicycle throwing the plaintiff to the ground whereby the plaintiff received injuries. 4. The "studded" pedestrian crossing was not a "zebra" pedestrian crossing established under the Road Traffic (Road Crossing) Regulations, and there is no legislation giving pedestrians preference over vehicular traffic on "studded" pedestrian crossings. The road was straight and level. 5. The learned trial judge came to the conclusion that the defendant was negligent because he was driving too fast, and doing so without a view of the whole of the crossing, and that the defendant was driving at a speed of at least 40 miles an hour, and that, having regard to the decisions in the cases of Chiang Shu Cheong v. The Queen(1) and Chan Wai Ching v. Pomeroy(2) to the effect that drivers should exercise particular care when approaching such studded crossings, and should not do so at an excessive speed which might endanger the lives or physical safety of pedestrians thereon, he considered that the defendant was negligent in not slowing down when approaching the crossing, and he was of the opinion that if he had done so he would have been able to see along the crossing and have seen the plaintiff. He found that the taxi driven by the defendant hit the plaintiff about 55 feet beyond the crossing, but if one looks at the plan made by the police, the pool of blood on the road, where no doubt the taxi knocked down the plaintiff, the trial judge for reasons given having found that the taxi did not carry the plaintiff along the road, is about 60 feet beyond the crossing. However there is little difference between about 55 and about 60 feet. 6. The trial judge's reasoning as to why the defendant's speed was at least 40 miles per hour was that the third party, who was travelling in his car at about 45 miles per hour about 50 feet behind the taxi when approaching the crossing, and whose car eventually collided with the back of the taxi, would have caught up with the taxi earlier if the taxi had not been travelling at at least 40 miles per hour; however the judge found that the third party was an honest witness, and the third party said that the taxi was travelling at about 30 miles per hour, whilst the defendant himself said that when he approached the crossing he reduced speed to between 20 and 30 miles per hour, and probably to about 25 miles per hour; the plaintiff did not say anything about the speed of the taxi, the view of which was hidden by the bus and the van. 7. According to the Highway Code, if a vehicle is in perfect condition and travelling in day light on a good dry road, if travelling at 40 miles per hour the vehicle cannot stop before 120 feet. Even without allowing for thinking time - the defendant might have had his foot over the brake pedal when approaching the crossing, the distance would be 80 feet, but I think that some distance must be allowed for thinking time, and thus if the defendant had been travelling at 40 miles per hour at the crossing one would have expected the taxi to have struck the plaintiff's bicycle at the point of impact, which was about 55 or 60 feet from the crossing, with greater force than it did whereby the plaintiff might well have been killed, and that the defendant's taxi would have stopped further from the crossing than it did. The plaintiff's taxi was a Japanese Prince car and the third party's car was a Renault car and on the plan, made by the police after the accident, the Renault car is drawn with its front against the back of the taxi, the back of the Renault car being 55 feet from the crossing; taking both vehicles to have been about 14 feet long, that would mean that the back of the taxi stopped 69 feet from the crossing and the front 83 feet from the crossing, but the defendant did not see the plaintiff until he, the defendant, was crossing the crossing, and thus presumably the braking would not start until he had passed the crossing. I therefore think that on the evidence it is unlikely that the defendant was travelling at at least 40 miles an hour at the crossing and more likely that he was travelling at about 30 miles an hour; the stopping distance, according to the Highway Code is 75 feet at a speed of 30 miles per hour, 30 feet being for thinking time and 45 feet being braking them. 8. The prime question for this court is whether or not the defendant was negligent. 9. In the circumstances of this case the defendant was proceeding along an uncontrolled road with no speed limit and with the road ahead of him quite clear, and traffic on his left was approaching and crossed the crossing at about the same or at a faster speed than himself. There is no reason why the defendant might think that any person was on the crossing, and there appears to be no reason why the defendant should have reduced his speed to a lower speed than that at which he did approach the crossing. The van having passed the crossing reduced speed, and almost at once the defendant saw the plaintiff in front of him and he then braked and swerved to avoid the collision. In my view in these circumstances it cannot rightly be said that the defendant was negligent. I would therefore allow this appeal and order that the judgment against the defendant be set aside and that judgment be entered for the defendant against the plaintiff.
10th July, 1968. Representation: M.Lee (M.K. Lam & Co.) for Respondent (Plaintiff) (1) 1962 H.K.L.R. 595; (2) 1963 Dist. Ct. L.R. 263. IN THE SUPREME COURT OF HONG KONG APPELLATE JURISDICTION CIVIL APPEAL NO. 9 OF 1968 (On appeal from K.D.C. Civil Jurisdiction No.4439/67) -----------------
Coram: Scholes & Huggins, JJ. Date of Judgment: 10 July 1968 ----------------- JUDGMENT ----------------- Huggins, J: 10. The principal question before this court is whether there was any evidence upon which the learned judge could properly find that the defendant was negligent. The finding of negligence appears to have been based upon two allegations: (a) of a failure by the defendant to slow down on approaching the crossing, and (b) of a failure by the defendant to keep a proper look-out and to see the plaintiff "on the pedestrian crossing". 11. The provision of studded crossings may well amount to the setting of a trap for those who are not acquainted with the legal implications. Such a crossing gives pedestrians no rights whatsoever but simply indicates to vehicular traffic that pedestrians may be expected to cross at that point. If his evidence was true the plaintiff in this case appears to have been misled because he said that he held up his hand to show that he was going to cross, a gesture which could have had no other intention than to convey that he expected vehicular traffic to give him free passage. That he had no right to expect any consideration from vehicular traffic beyond what common sense and good manners would dictate is shown indirectly by the judgment of the Chief Justice in Chiang Shu Cheong v. Reg.(1), while Judge Williams correctly put the matter thus in Chan Wai Ching v. Pomeroy(2):
The passage in the judgment of the Chief Justice to which I have just referred states the duty of the driver:
I would only add that there is a duty on drivers of vehicles never to stop on a studded crossing except in an emergency, and this particularly applies to vehicles which are unable to proceed beyond the crossing owing to stationary traffic. 12. When the learned trial judge said that, if the plaintiff had not a clear view "of the whole of the pedestrian crossing from the near side to the centre of the traffic lane" (by which I understand him to mean the centre of the carriage way), he should immediately have reduced his speed so as to drive safely across, he was, in my judgment, equating a studded crossing and an uncontrolled zebra crossing. On a zebra crossing the pedestrian has precedence and it is the duty of drivers of vehicles to drive in such a manner (which includes at such a speed) as to enable any pedestrian to cross safely. On a studded crossing the driver's duty is to take proper care not to cause injury to pedestrians within the limits of the crossing. Even if in the present case this had been a zebra crossing what the defendant did would not have amounted to negligence for those last six words would be of vital importance. A pedestrian who in the agony of the moment jumps outside the limit of a crossing and is there injured is not ipso facto taken out of the protection of the regulation, but in my view a person who is struck 55 feet from a crossing cannot on any reasonable construction of the words be said to have been denied procedence as a pedestrian within the limits of the crossing. Had the plaintiff been on or near the crossing it is impossible to say what would have happened to him and it was not proved that he would have been injured by the defendant. In the event the defendant correctly thought that it was safe for him to drive across the crossing. 13. It was argued that the defendant was necessarily negligent because he did not slow down in order to obtain such a view of the crossing that he could be certain it was clear. I do not for a moment accept that proposition. The duty of a driver is to take reasonable care in all the circumstances and there may well be circumstances in which a driver may reasonably proceed although he does not have an entirely clear view and although in the event he collides with another road user. Suppose a car approaching a one way street at a T-junction. Buildings may obstruct his view of traffic approaching along the one way street, but if between the junction and any traffic which may be coming he sees a large crowd of pedestrians completely blocking the way for such traffic he may reasonably proceed, either on the assumption that no traffic is coming or on the assumption that any traffic which is coming will not be impeded by him. If in fact a lorry approaches at high speed, ploughs through the crossing pedestrians and finally collides with the car, I refuse to accept that the collision would be to any degree due to negligence on the part of the driver of the car. So here, the van in the middle lane was ahead of the plaintiff and travelling at such a speed that if any pedestrian were being stupid enough to cross on the crossing he must be knocked down by the van. Whether one then says that the defendant was entitled to assume that nobody was going across the crossing or whether one merely says that he was entitled to assume that he himself could pass the crossing safely does not really matter. The fact remains that the defendant did not injure anybody who was using the crossing: he merely knocked down the plaintiff who, if (as we must) one accepts the finding that he was in truth intending to cross the road by the crossing, had been guilty of almost suicidal negligence, had had to abandon his original intention and had ridden off down the road in an attempt to escape the natural consequences of his folly. Having regard to the traffic which was on the two inner lanes and which would doubtless have blocked his view of the near side of the crossing, I am unable to agree that the defendant's failure to see the plaintiff when he started to cross amounted to a failure to keep a proper look-out. This was a fast motor road with railings down the middle of it to deter jay walkers from endangering themselves and others by crossing save at demarcated crossings. His duty to pedestrians on the crossing was to take reasonable care to avoid injuring them and to keep a sufficient look-out to enable him to do that. He was under no duty of care to persons crossing elsewhere other than to take reasonable steps to avoid injuring them once he became aware of, or ought to have suspected, their presence. Even less was he under a duty to foresee that any pedestrian would cross the road at a speed greater than a fast walking pace. There being no danger of his hitting any pedestrian on the crossing the defendant was entitled to drive at whatever speed he might think appropriate so long as it was not a speed which was dangerous to the public having regard to all the other circumstances at the time. Whether his speed was 25 miles an hour or 40 miles an hour, or even if it was 50 miles an hour, I see no reason to conclude that the defendant's taxi was travelling at an excessive speed. 14. I have assumed throughout this judgment that the plaintiff was a pedestrian, because it was upon that basis that the case was presented both at the trial and before us. For myself I have doubts whether on the findings of the learned judge the plaintiff was at any material time a pedestrian and, even if he was, whether he remained such at the time of the collision. These are matters I reserve for future consideration. It was found that the plaintiff had been riding his bicycle and had then dismounted on reaching the crossing. A cyclist who dismounts and pushes his bicycle may not necessarily cease to be a cyclist and become entitled to disregard signs intended for vehicular traffic: if he could, one probable result would be that the majority of cyclists would dismount at every traffic light which was against them. It seems to me that a cyclist who is pushing his machine across a pedestrian crossing may be in no different legal position from a cyclist who tries to ride across it. A fortiori I doubt whether a cyclist is to be regarded as a pedestrian if he is riding his bicycle as though it were a scooter. 15. I also would allow the appeal. 10th July, 1968. Representation: M.Lee (M K Lam & Co.) for Respondent (Plaintiff) (1) (1962) H.K.L.R. 595, 599; (2) (1963) H.K.D.C.L.R. 263; 269. |