Frederick Peter Arnold Goodwin v. Li Wing-hung and Another

HCA002311/1974

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

ACTION NO. 2311 OF 1974

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Coram: Zimmern J. in Court

Date of Judgment: 14th June 1977.

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JUDGMENT

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1. This case concerns a claim in damages by the plaintiff against the defendants, driver and owner of a taxi respectively, alleging that an accident was caused by the negligent driving of the driver defendant. At the hearing the plaintiff, Frederick Peter Arnold Goodwin, said that on the night of 15th February 1973 he then 71 years old and in good health, had dined well in Kowloon. He emphasised he had not imbibed anything alcholic and I accept that. After crossing the harbour he decided to wind on foot his way home in Duddell Street. Having crossed Queen's Road Central and reached the proximity of Hilton Hotel he was within a short walk to Duddell Street. He proceeded in that direction by walking along the covered pavement immediately outside Beaconsfield House and when he reached the western end of the pavement he was attracted by the lights of a shop in Hang Chong Building diagonally across Queen's Road Central. He decided to visit that shop. He said before he left the pavement he looked right and saw no on-coming cars. He could see a distance of 200 to 300 yards. He walked in a diagonal direction across Queen's Road Central and when within 2 or 3 paces from the opposite pavement he could not remember anything more. He regained consciousness in Queen Mary Hospital. He never said a word about any collision with a motor vehicle.

2. The next witness called was Peter Cotton. On the night in question he was with his brother and had just picked up his motor cycle in the vicinity of the Government Car Park. Upon entry on to Queen's Road Central he saw a car stationary in the middle of the road with the side lights on only. When passing the car which was a taxi he saw a body lying in the middle of the road. He immediately parked his bicycle and investigated. He had a fleeting sight of someone in the taxi. He said he was more concerned with the body but said there was a person behind the wheel in the taxi and another by his side. When asked he said he did not see any damage to the taxi and quite properly added he was not looking for any damage to the taxi. He was shown the sketch plan Exh.1 and said the position of the head was exactly reversed. He and his brother did their best to make the body comfortable and he could see that victim's legs were broken. The police arrived first later followed by an ambulance. He was not cross-examined.

3. Sergeant 2908 was then called to produce the sketch plan Exh. 1 signed by himself and the defendant driver. He said the plan was a copy of a sketch produced from another sketch he had made at the scene of the accident. The original had been destroyed in a fire. The body on the plan was copied from chalk marks of a human body on the ground. He said he was called to the scene of the accident and when he arrived the driver and the taxi were there. The windscreen of the car was completely shattered. There was glass by the side of the taxi but none behind. He saw no skid marks. The taxi was taken to a Government compound where he took photographs which were produced. He saw no other damage to the taxi which was a fairly new one.

4. Medical evidence showed that on arrival at Queen Mary Hospital the plaintiff was found to have fractures of his tibia and fibula on both sides plus a weak right upper limb. X-ray confirmed the fractures of the tibias and fibulas but did not reveal any other bony injuries.

5. On the question of liability this was the case for the plaintiff.

6. For the defence, the defendant driver Li Wing-lung went into the witness box. He said he was on night shift and shortly after 10 p.m. had picked up 2 passengers and after descending from the flyover by Murray House he stopped at the traffic lights at the bottom of Garden Road. When the lights permitted, he entered Queen's Road Central driving along the middle lane with vehicles on both sides of him. When passing the Bank of China he did not see anyone crossing the road but when passing the Hong Kong Bank Building he suddenly noticed a shadow bouncing towards his taxi. He said the shadow rushed from his left near the windscreen and did hit the windscreen and shattered it. He immediately applied his brakes. He said by the time he had a glimpse of the shadow it was on his vehicle sprawled over the left side of the bonnet. He further said he did not see its approach because of the vehicle to his left. This vehicle was then about half the length of his car behind and they were about 4 feet apart. His speed was about 26 m.p.h. So much for the defence on the question of liability.

7. I am convinced that the plaintiff had not been frank with the Court. His account of the incident in which he tried to re-cross Queen's Road that night was given because he had something to hide. He could not afford to tell the truth so he adopted an I-heard-nothing I-saw-nothing, I-knew-nothing attitude. No one in his right mind crosses that road from south to north without having his eyes more or less fixed to the right. The traffic lights at the bottom of Garden Road might control traffic into the road to a certain extent but the flow of traffic is not so limited for there is still the traffic from the Government Car Park and Hilton Hotel. The witness Cotton for instance came from the Car Park. This would be known to the plaintiff living in the vicinity. The plaintiff never even remotely suggested that he looked right again after leaving the pavement. I have no reason to doubt the driver's version of the accident. Counsel for the plaintiff suggested that the taxi was driving with its side lights on only and the plaintiff said the road was dark. This had not been pleaded. The suggestion of the side lights was based on the evidence Peter Cotton. He came on to the scene after the accident. The Sergeant said the road was bright and the driver said he was driving with his head lights on but dipped. I accept their evidence. The whole issue turns on whether the driver was keeping a proper lookout and whether he was driving at a speed which was excessive in the circumstances. The driver said and I accept his evidence that he entered Queen's Road Central along the middle lane with a taxi on his right and another on his left. He said at the time of the accident the taxi to his left was about half car length behind him and he did not notice anyone on his left trying to cross. In cross-examination he said he did not see the approach of the plaintiff because of the taxi on his left. If the taxi on his left had been behind him even for a few seconds prior to the collision he could have sighted the plaintiff because his view would not have been blocked. I believe he did not sight the plaintiff and the plaintiff did not sight his taxi because immediately before the collision the defendant driver was overtaking the taxi on his left. This could be for 2 reasons, either he was accelerating or the other taxi was slowing down. I accept the driver's evidence that the plaintiff sprawled on the left side of the bonnet of the taxi. The plaintiff thought he could dash across the taxi on the near lane without realising there was another vehicle then abreast of or just behind it. The taxi on the near lane might well have momentarily slowed down for the plaintiff who then suddenly saw the defendant driver's taxi, lost control and sprawled on to it. The defendant driver said in chief that the taxi on his left slowed down a bit then went off. Whilst every driver has to keep a sharp lookout even for unreasonable pedestrians this duty does not extend to pedestrians who through gross negligence risk their own lives and those of others without any regard for traffic on the road. I see no cause for saying that the driver was driving at an excessive speed. It was an accident which he could not have avoided. The plaintiff was the negligent party all the way and his claim therefore fails. There will be costs for the defendants and the plaintiff's costs to be taxed according to Legal Aid Regulations.

8. Should this matter go elsewhere, I would have awarded the following damages if the driver-defendant had been found negligent.

9. Special damages per amended Statement of Claim:

10. I would not have awarded anything for the 2nd limb of his claim under K2a i.e. loss of $400 per month as it is not supported by the medical evidence.

11. I would have awarded $40,000.00 in general damages for pain and suffering and loss of amenity and nothing for future loss of earning. There would of course have been interests.

12. Order for payment out of Court sum paid by the Defendants to the Defendants' Solicitors.

Representation:

Allman-Brown (Wilkinson & Grist) for plaintiff.

Edward Chan (Johnson, Stokes & Master) for defendants.