Chung Fung Kun v. Yuen Yuk Kwan and Another

HCA001107/1976

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

ACTION NO. 1107 OF 1976

-----------------

-----------------

Coram: Li, J.

Date of Judgment: 25th April, 1977 at 3.37 p.m.

-----------------

JUDGMENT

-----------------

1. On the 23rd of July, 1973 at a place near the Dill's Corner along Castle Peak Road an accident occurred resulting in a young girl being injured. Her injuries can be described as serious. It is common ground that at the time of the accident the 1st defendant was the owner/driver of motor vehicle AU 244 which was involved in the accident and the 1st defendant was on duty. The 1st defendant is, as he then was an inspector of the Royal Police Force in Hong Kong. Hence this action is against the 1st defendant for negligence and against the Government in the name of the Attorney General for vicarious liability.

2. The plaintiff's evidence on the accident was that at the material time the injured girl CHUNG Fung-kun was walking along Castle Peak Road with her sister to the direction of Sheung Shui to buy something. Her elder sister, CHUNG Fung-nui, was walking in front of her on a mud path adjacent to the road on the left hand side of the road in the Sheung Shui direction. In other words both were walking along in the same direction with their backs towards the traffic. The younger sister, CHUNG Fung-kun, was walking a few feet behind her sister, CHUNG Fung-nui. While the elder sister was walking along the mud path CHUNG Fung-kun was walking by the side of the road, that is, between the grass verge and the road. Suddenly her elder sister heard a scream and the screeching noise of tyres. The next thing she saw was that CHUNG Fung-kun was thrown out and fell on to the road bleeding. She ran up to see what is wrong and yelling her sister's name. She found her unconscious. Two men then alighted from the car which had stopped by then. They carried CHUNG Fung-kun into the back seat of the car and took her and her elder sister to Sheung Shui Road Jockey Club Clinic.

3. Another witness giving evidence for the plaintiff is Mr. YIP Lau-kam. He said he was standing near the Dill's Corner on the opposite side of the road. He was washing his hand from a standpipe looking obliquely across at the girls just before the accident. He saw these two girls walking along the street in a straight line. He saw the defendant's car brush the body of CHUNG Fung-kun, then the car stopped. He gave evidence similar to what was given by CHUNG Fung-nui that the two men went down and carried the girl into the car and drove off to the Sheung Shui Jockey Club Clinic. He said that the girls were walking along a straight line by the side of the road and that after the accident someone, he remembered, was taking measurements. But he could not remember whether anyone was making markings on the road immediately after the accident and before the car drove off with the injured person. That is the sum total of the evidence given by the plaintiff. Perhaps I should add that both CHUNG Fung-nui and YIP Lau-kam said that before the accident they heard no sounding of the horn.

4. The defence case is that the 1st defendant was not negligent at all. The 1st defendant gives evidence that at the material time he was driving his vehicle towards Shoung Shui. When he approached near the Dill's Corner he observed two girls in front of him standing by the side of the road. At the time the two girls were about 20 feet away from his vehicle. He kept on as usual at speed of between 25 to 28 miles per hour. When his vehicle approached as near as 10 feet away from the two girls the injured girl suddenly dashed across the road. He attempted to swerve to the right, the opposite side of the road, to avoid her. But in so doing he found that there were on-coming traffic from the opposite direction. He had to swerve back and immediately he applied his brakes, sounded his horn and applied the hand brake almost simultaneously. It was far too late. As a result the girl was hit by the car and fell on the ground. He immediately alighted from the car and went to the girl, Seeing that the girl was injured quite properly he took her into his car. Then he marked the position of the injured girl and the position of his car with a piece of stone and then drove the girl to the clinic to be treated.

5. He telephoned the police reporting the accident. As a result Police Constable 9698, as he then was, was despatched to the spot and then to the clinic. He went back with the 1st defendant to the spot of the accident. He saw then the skid marks as well as the scratchings on the road marking the position of the car and the injured person. Using these markings and the various land marks as guides he prepared the sketch in Exhibit 4. Additionally he also took a number of photographs, two of which have been produced. One shows the straight stretch of the road near the scene of the accident. The other shows a little dent in the left front or near side front of the 1st defendant's car. That is the sum total of the defence evidence. Of course, apart from oral evidence, agreed documents had been produced. We have a statement made by CHUNG Fung-nui in Exhibit 3, a statement to the police made by the 1st defendant, YUEN Yuk-kwan, Exhibit 5, and a statement by a former police constable, LEE Kwong-ming, who was then a passenger of the 1st defendant's car at the time of the accident. On these evidence I have to resolve the question of liability as which party is to blame.

6. From the outset I viewed the sketch, Exhibit 4, with some doubt. It was not entirely an independent inquiry. The positions were marked by the 1st defendant. The police constable investigating the case accepted it lock, stock and barrel, by the reason he has given, that the 1st defendant is an inspector and obviously must tell the truth. He has quite forgotten that the 1st defendant was also an interested party in that accident. There was no independent inquiry as to extent of injury suffered by the girl. There was no inspection of the vehicle despite the seriousness of the injury. The constable accepted the markings as correct. Of course the sketch was signed by the 1st defendant because the positioning was virtually his own version of what happened immediately after the accident.

7. The issue in this case is whether the 1st defendant was driving so near to the side of the road as to hit the girl and thereby showing his negligence. On the other hand the other question is whether the injured girl did dash across the road and thereby was completely to blame. Looking at the evidence as a whole I find that first of all the girls were not standing by the side of the road when the 1st defendant first saw them. The elder sister of the injured girl quite honestly and frankly admitted she did not see anything immediately prior to the accident because she was in front of her sister. They were walking along the road. She said that she was walking along the mud path a little way from the side of the road but her sister was walking by the side of the road. That was one version. The other witness, YIP Lau-kam, said that the girls were walking. Then there is Exhibit 6, a statement made by LEE Kwong-ming and admitted by the agreement of both parties. In answer to a question:

"Was the girl walking alone before she dashed out?

Lee said:

"No, she was walking with an elder girl."

Another aspect of the case is that while the 1st defendant, said that he only tried or attempted to swerve to the opposite side of the road, LEE Kwong-ming, the then police constable said:

"On seeing this, Inspector YUEN swerved the car to the wrong side of the road to avoid hitting the Chinese girl. But at the meanwhile there was some traffic on-coming from the opposite side so Inspector YUEN swerved back, braked sharply but it was too late. Finally the girl was knocked down."

In LEE's version it was not a matter of trying to swerve but did not swerve as alleged by the 1st defendant. It was a case that he did swerve, according to LEE, but swerved back on account of the on-coming traffic from the opposite side. The 1st defendant, said that when he first saw the two girls standing he carried on his usual speed, that is, between 25 to 28 miles per hour. It was when the car was about 10 feet away from the injured girl that he saw the girl dashed out. Now even then his immediate reaction was to swerve out and found that he could not. Therefore, he sharply applied his brake and sounded the horn. At this stage perhaps I should observe that it is far too late to have to resort to the horn except by some mistaken instinct. The time he should have sounded his horn would be when he was about 20 feet away to warn the girls of the approach of his vehicle.

8. Although the Highway Code has not been cited to me yet I am entitled to take judicial notice of what is printed there. According to the Highway Code where the road was in good condition and a car is travelling at 20 miles per hour, it requires 20 feet of thinking distance and another 20 feet of stopping distance before the car can come to a standstill. Therefore, it is a total of 40 feet, even if the car is travelling at 20 miles per hour and the road condition was good. Taking this into consideration and seeing it in this light I venture to infer that the inspector must have hit the girl before he could even apply the brake, bearing in mind the girl was only 10 feet away according to his evidence. And at that time the girl must have been very much towards the centre of the road as she was dashing out. The position of the vehicle, according to the sketch, the near side is 5 feet 4 inches from the kerb of the road or the grass verge of the road, the whole car being quite straight and parallel to the side of the road. If he had swerved his car it would be a coincidence to have the car in that position. I cannot accept that position as being accurate. Nor do I accept the position of the injured girl after the accident as being accurate because even the then police constable who did the sketch when he saw the marking he said he saw a circle depicting the position of the injured girl in a sort of a circle or oblong of about two to three feet. That is hardly the exact length of a girl of 11 years old. Obviously she is a bit taller than 3 feet. And that is the sort of position. Therefore, I say that I must not be too much influenced by the accuracy of the sketch.

9. Looking at the evidence as a whole I accept that the injured girl was walking along the road near the grass by the very edge of the road. As quite properly put by Crown Counsel for the 2nd defendant that it was a wet day, the grass must be wet. The girl was virtually on the edge of the grass at the edge of the road negotiating a rather thin and narrow line. One must accept that in the rural area the tarmac of the road is not exactly in a straight line and the grass can grow into something in a jagged line into the road. The girl could have stepped a little out into the road to avoid a damp patch of the grass as she was not walking on a mudpath. That could not have been visible to the other witness, YIP Lau-kam, who was obliquely opposite to them. I accept YIP's evidence saying that she was walking in a straight line without knowing that by a slight deviation she was coming out into the road a little bit. That is quite possible and probable. And that is why YIP said that the injured girl was walking in a straight line but in fact she could have and probably had stepped out into the road in order to avoid a grass patch. I infer from such evidence that the 1st defendant driving the car was near to the girl, suddenly saw the girl stepping forward a little into the road, would try to swerve his car but seeing that there was on-coming traffic he had to swerve back into the road and he hit the girl in the process before he could even apply the brakes. That is my finding on reading the photograph, reading the sketch and reading the statements.

10. The action is based on negligence saying that the 1st defendant failed to keep a proper lookout as to heed the presence of the plaintiff; driving at a speed which was excessive in the circumstances; failing to give any or any sufficient warning of his approach; failing to steer or slow down or swerve the said vehicle to avoid striking the plaintiff and driving too near to the kerbside of the road. I find on the evidence that there is no evidence that he failed to keep a proper lookout because he observed the two girls. Nor was he driving at a speed which was excessive as I understand that in that part of a straight road 25 and 28 miles was not an excessive speed. But I do find that he failed to give sufficient warning of the approach of his vehicle because the road is by no means a very wide road. It is only 21 feet for a two-way traffic leaving about 10 feet 6 inches on each side of the road. He should have and he could have sounded the horn to warn the girls of his approach when he was about 20 feet away. He failed to do so. However, I do not find that he failed to steer or to swerve the vehicle so as to avoid striking down the plaintiff. He did try to swerve but there was on-coming traffic from the opposite side. But he did fail to slow down. Since he had not sounded his horn a prudent manner of driving would be to slow down his vehicle then. However, I do find that he was driving possibly a bit too near to the kerbside of the road. Even on his own side there were 10 feet of the road. As I find as a fact that the girl stepped a step or two outside to the road, he immediately became conscious of the danger and possibly went into a panic that he had to try to swerve out. He had to swerve back into the side of the road because of on-coming traffic. I find that he must have driven too near to the kerbside whereby the front part of his car hit the girl. I find that the 1st defendant was negligent in that way he drove the vehicle. However, I do find that he is not a hundred per cent to blame. The girl could have used the mud path but she did not. She must have avoided the grass by the side of the road and stepped out a couple of steps to avoid the grass giving the impression that she was dashing out and as a result she sustained injury.

11. On the question of liability I reverse what was suggested by learned counsel for the 1st defendant that the girl was 75 per cent to blame. I would say that the 1st defendant was 75 per cent to blame and the girl was 25 per cent to blame. This conclusion I come to not only because of the reasons I gave earlier in this judgment but because that the 1st defendant is a police inspector who had served in the Traffic Branch. He saw, when 20 feet away, two young girls walking along the road and he could and he should have been far more careful than to carry on at the same speed and without sounding his horn and then put himself in such a position as having to try to swerve his car, swerve back. Finally he, knowing the Highway Code, he should have known what distance is a safe distance for him if anything unexpected could happen.

12. For these reasons I find that the liability was that 75 per cent negligence on the part of the inspector. I would like to find out from counsel, whether the agreed quantum include special damage?

Representation: