May Ngai Gloves Factory Ltd and Another v. Nam Kam Lan and Another
Read the full judgment text of CACV 90/1979 on BabelCite. This Court of Appeal judgment was delivered on 26 May 1980.
1. The first respondent (hereafter referred to as "the girl") was injured in a traffic accident. The second respondent is her mother (hereafter referred to as "the mother"); she was the third party in the court below. The first appellant (hereafter referred to as "the driver") was the driver of the vehicle involved in the accident and the second appellant was the owner of that vehicle.
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CACV000090/1979
Coram: Cons, J.A., Yang & Bewley, JJ. Date of Judgment: 26 May 1980 ----------------- JUDGMENT ----------------- Yang, J.: 1. The first respondent (hereafter referred to as "the girl") was injured in a traffic accident. The second respondent is her mother (hereafter referred to as "the mother"); she was the third party in the court below. The first appellant (hereafter referred to as "the driver") was the driver of the vehicle involved in the accident and the second appellant was the owner of that vehicle. 2. The Commissioner in the court below found the driver guilty of negligence. He found the girl not guilty of contributory negligence and that the mother had not been negligent in her control of the girl. We are concerned only with whether the two latter findings were correct. 3. Sometime after 11 a.m. on 22nd July, 1977 the girl was injured in a motor accident at Sau Ming Road. She was then just under 10 years of age. She had gone out on the day in question with her mother, her two brothers and two sisters. She and her two brothers, then 13 and 12, were walking separately and in front whilst her mother was behind holding her two sisters, aged 8 and 5, by their hands. When they reached a point near the Tsui Wah Restaurant the girl, feeling an urgent need to relieve herself, started to cross the road in a northerley direction in order to go to a lavatory on the opposite side of the road. She did not use the zebra crossing some 100 yards down the road, but crossed the read where there was no pedestrian crossing. She looked to her left and then to her right, where she saw a vehicle approaching, but, as she put it, "very far away". When she had walked a little distance from the kerb she was knocked down by a small van BN 2550 driven by the driver and owned by the second appellant. 4. The Commissioner found that the van was travelling along Sau Ming Road in a westerly direction some seven feet from the pavement on its nearside. It is clear that at some point of time the driver saw the girl in the roadway, braked hard and swerved to his right to avoid colliding with her. Unfortunately the driver did not succeed in avoiding the girl but struck her on the right arm. She was then thrown forward and landed on the ground. In swerving, the vehicle ran over her right leg which then became trapped beneath the nearside front wheel. The driver alighted, saw that the girl was trapped and then returned to his van and drove forward sufficiently to free the girl. The Commissioner accepted that the vehicle had been travelling at about 27 m.p.h. prior to the accident and found that the girl was a little more than 9½ feet from the kerb when the van struck her. When the van finally came to a halt it rested at an angle astride and almost half way over the dividing white line down the middle of the road with its front facing north-west. 5. The Commissioner estimated that it must have taken the girl not less than two but more probably three seconds to cover the 9½ feet. On those calculations he thought that the driver would have been somewhere between 79 feet to 118 feet from the girl when she stopped off the pavement. Travelling at 27 m.p.h. the driver would have needed about 67½ feet in which to stop. The Commissioner found that the driver was negligent and this finding has not been challenged before us. The driver had been convicted of careless driving at a magistrate's court in respect of the accident. He gave no evidence in the magistrate's court, nor did he give evidence in the civil proceedings in the court below. Following Section 62(2) of the Evidence Ordinance and Stupple v. Royal Insurance Co. Ltd.(1) the Commissioner found that the driver had not exculpated himself. It is not disputed that the second appellant, as owner of the van, was vicariously liable for the driver's negligence. 6. In Ho Kwai-loy v. Leung Tin-hong(2), this court adopted the statement of the Canadian Supreme Court in McEllistrum v. Etches(3), at page 6:-
7. The Commissioner applied that test in considering whether the girl was guilty of contributory negligence and it has not been argued that he was wrong to do so. He came to the conclusion that the girl had exercised that degree of care. With respect we do not agree. When she started to cross the road she could see the van approaching and it was then at most some 100 feet away. In our view a child of ten should know better than to step out in that circumstance. Had the van been moving slowly, or pulling away from a stationary position, her conduct could not be criticized. But the evidence is that the speed of the van was 27 m.p.h. It should have been apparent, even to a ten year old child, that the gap would close at an alarming rate. In these circumstances we think that she must be held 20% to blame. 8. The Commissioner also considered whether the mother was negligent. It is not disputed that a mother owes a duty of care to other road users to control her young child whilst the latter is walking on a public road in her company. In absolving the mother from any breach of her duty of care the Commissioner said in his judgment:-
9. We agree with those observations. In our view the mother was not guilty of negligence. 10. The appeal against the girl is allowed to the extent indicated and the appeal against the mother is dismissed. Representation: G. Rodway, (Deacons) for appellants R.K. Sujanani (Director of Legal Aid) for 2nd respondent Miss A. Mok (Howell & Co.,) for 1st respondent (1) [1971] 1 Q.B. 50 (2) [1978] H.K.L.R. 72 (3) [1957] 6 D.L.R. (2nd) 1 |