Pang Tin-chung v. Universal Dockyard Ltd and Another

HCA000108/1979

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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ACTION NO. 108 OF 1979

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Coram: Mr. Commissioner Litton, Q.C.

Date of Judgment: 24 December 1979

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JUDGMENT

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1. On the 28th November 1977, the plaintiff was knocked down by a dump truck at Tin Hau Road near Tuen Mun in the New Territories. The dump truck registration no. BM9378 was driven by the 2nd defendant, LAM Kam-sing, an employee of the 1st defendant. It was about 9 o'clock in the morning; there was very little traffic on the road. The truck was large: 7.2 metres long, 2.4 metres wide, 10,000 c.c. engine capacity, and was heavily laden with earth and excavated material.

2. The driver had started work early in the morning and was taking his third load for dumping at Tuen Mun that day when the accident occurred.

3. Going in the direction of Tuen Mun, the scene was as follows: the sea was on the right and the hillside on the left; the road curved to the left and it was at this bend that the accident happened. The road was approximately 7.5 metres wide, and had one traffic lane each way, enough to allow two dump trucks to pass in opposite directions. On the seaward side of the road there was a pavement, but on the side where the accident occurred there was no pavement as such; there was a grass verge which was heavily littered with pieces of wood and other builders' debris. Some of this debris had spilt onto the roadway.

4. The plaintiff lived at Ching Shan Village close to Tin Hau Road and on the morning of the accident he was on his way to Tuen Mun, walking along the left hand side of the roadway. He said in evidence that he heard the sound of a vehicle behind him; he paid no attention to it and continued walking; then he was struck from behind and knocked unconscious; when he came to he was in Princess Margaret Hospital.

5. The plaintiff said in cross-examination that he had no idea what kind of vehicle it was; he could not say whether it made a loud noise or not as it approached. Although he was not specifically asked by either counsel, it follows from the tenor of his evidence that he heard no sound of brakes behind him before he was struck.

6. I cannot regard the plaintiff as a reliable witness. Apart from the inherent improbabilities of the plaintiff's story when viewed in the context of all the facts - to which I will advert shortly - a question also arises as to how much the plaintiff in truth remembers of the accident.

7. Although the evidence as to his condition, on admission to hospital is bare and tenuous, one thing is clear: the plaintiff had received a knock on the head. The medical report dated the 16th January 1978 (item 5 in the agreed bundle) speaks of a ragged laceration over the left forehead and a "history of loss of consciousness". He himself says that he was knocked unconscious. However, as the defendants' counsel did not advert to this aspect of the case and as no medical evidence was led suggesting amnesia, I will not allow this doubt I have to weigh too heavily in the scales.

8. It is noteworthy that when the plaintiff's case was first pleaded, the allegation against the driver was in essence that the plaintiff was walking along the pavement - meaning presumably the grass verge - when he was struck. At the beginning of the trial, the statement of claim was amended to allege that the plaintiff was walking near the pavement. The gist of the plaintiff's complaint became, at least as I understood it, this: as he was walking on the side of the road with his back to the traffic, going towards Tuen Mun, the dump truck brushed against him knocking him to the ground. I said "brushed against him" because, given the great weight of the truck, if the impact had been otherwise than oblique the plaintiff would undoubtedly have been killed.

9. However, the evidence given by PCII508, and the sketch plan he made, renders this version of the accident incomplete. The sketch shows that as the dump truck was coming round the bend, the brakes were suddenly applied: tyre marks of 8 metres were left on the roadway and the dump truck ended up with virtually the whole of its length on the grass verge. More important still, the offside front indicator of the lorry was smashed, leaving glass on the road a little over one metre from the kerb. The conclusion seems inescapable that it was the lorry's offside front indicator which hit the plaintiff, knocking him forward about two metres to the spot on the road where he fell; the spot is marked by blood stains on the sketch plan.

10. If it was the offside of the truck which hit the plaintiff, and I so find as a fact, it follows that the plaintiff's first version of the accident, as adumbrated in the opening speech of his counsel, cannot stand. Moreover, given that the truck must have braked hard to have left the tyre marks on the road 8 metres long, the plaintiff must have heard the noise momentarily before he was hit. This rather reinforces my doubts regarding the plaintiff's recollection of the events. He said in evidence he had heard nothing unusual from behind.

11. Realising the difficulty he was in, counsel for the plaintiff in his closing address put forward an entirely new theory based on this suggestion: there were, according to the plaintiff's evidence-in-chief, some cows in the middle of the road coming from the direction of Tuen Mun. They were at or near the bend of the road. Counsel's theory is this: as the defendants' truck was coming fast round the bend, the driver saw the cows and slammed on his brakes; the heavily-laden truck got out of control and skidded towards the left. By sheer coincidence the plaintiff who was walking along the side of the road got hit by the offside front indicator as the truck careered onto the grass verge. This, according to counsel for the plaintiff, answers all the questions in this case.

12. It certainly resolves the difficulty raised by two rather irreconciliable facts: (1) the plaintiff walking along the edge of the road, and (2) the plaintiff being hit from behind by the offside of the truck. But it raises a fundamental issue: were there cows on the road? It seems remarkable that if that was how the accident happened the facts should not have been pleaded in the statement of claim. There would have been no question of the driver not "heeding the presence of the plaintiff" (paragraph 4(v) of the statement of claim) or "failing to warn the plaintiff of the presence of the truck" (paragraph 4(iii) of the statement of claim). The case for the plaintiff would have been straightforward: the truck went out of control in avoiding the cows and by coincidence hit the plaintiff. There could have been no question of contributory negligence on the plaintiff's part; the driver would have been solely to blame. Remarkably, this version of the accident was not mentioned in counsel's opening speech.

13. In my judgment this theory is too contrived to be true. It rests on the shaky foundation of the plaintiff's assertion that there were cows on the road - an assertion denied by the 2nd defendant in the witness-box - and it resolves itself into a most remarkable coincidence: it was just sheer bad-luck that the plaintiff happened to be there on the road when the truck skidded out of control in avoiding the cows. Where the cows had come from? whose cows they were? Where they might have been going? Were cows often seen wandering on that stretch of Tin Hau Road? None of these questions were ventilated in the course of the evidence. This theory has all the hallmarks of a desperate afterthought. I am not satisfied there were cows on the road and I reject this version of the accident.

14. I turn now to examine the case put forward by the defendants. The driver said that when his truck approached the bend he saw a person about to cross the road from his right, that is, from the seaward side of Tin Hau Road. He said he tooted his horn "to see if he would really proceed to cross." He was then going about 27-28 m.p.h. in 4th gear, he changed to 3rd gear and reduced speed to about 13-14 m.p.h. The person, the 2nd defendant said went across the path of the lorry and had reached the left hand side of the roadway when he suddenly retraced his steps. The 2nd defendant said he immediately applied the foot brakes, pulled on the hand brake, swerved the lorry to his left thereby mounting the grass verge but unfortunately, despite all his evasive actions, the person was hit.

15. I did not find the driver a convincing witness. In cross-examination he said at first he was 40 feet away when he first saw the plaintiff but when he was confronted with his police statement, Exhibit H, he modified his evidence and said that was the distance when the plaintiff was crossing in front of his truck. That piece of evidence savours of pure fabrication. Moreover, he was in my judgment exaggerating when he said he tooted his horn to see if the pedestrian "would really proceed to cross". In my judgment the driver's version did not have the ring of truth. To start with, there was no conceivable reason why the plaintiff should have suddenly crossed over to the other side of the road. Secondly, the suggestion that the plaintiff suddenly retraced his steps is unacceptable - particulary when, according to the driver, the presence of the truck had been made clear to the plaintiff by the sounding of the horn. Thirdly, going at about 27 - 28 m.p.h. the truck would have covered about 40 feet in one second: on any view of the driver's evidence the plaintiff would have taken a considerable risk crossing the road in the first place; to retrace his steps would have been suicidal.

16. Counsel for the defendants relies on the notes of proceedings in the Magistrate's Court in support of the driver's contention that the plaintiff was on the seaward pavement before he was knocked down. The note reads, "I was walking along sea-front along the pavement. Nothing happened. I was just knocked down. I saw nothing. I heard nothing. I lost consciousness. When I was knocked down I was on the pavement."

17. In my judgment the statement "I was walking along sea-front . . . " is equivocal: the whole road could be said to be along the sea-front. The suggestion made by the plaintiff that he was knocked down on the pavement cannot fairly be taken as a reference to the seaward pavement. The evidence, read as a whole, in my judgment lends no support to the defendants' case.

18. In my judgment the probabilities are as follows. the plaintiff was walking to Tuen Mun along the left hand side of the road and, because there were so few vehicles about, was not properly minding the traffic from behind. He was not hugging the kerb as he walked, on account of all the debris, but was probably two or three feet from the side. The lorry was coming round the corner, travelling at about 30 m.p.h. , possibly more, when the plaintiff stepped even further out into the roadway - probably because of the debris projecting from the grass verge which can be clearly seen in photograph G. At that point, had the driver been keeping a proper look-out and not been going so fast, he could probably have avoided colliding with the plaintiff by swerving to his right. There was nothing coming from that direction. As it was he slammed on his foot brakes and by his own admission pulled on the hand brake. The heavily laden truck slew to the left. With only one hand on the steering-wheel, it is doubtful how much control the driver then had over the truck. The truck careered onto the grass verge. Fortunately for the driver the plaintiff received only a glancing blow.

19. Although the bend in the road has been referred to by counsel for the defendant as a "blind corner", that was a misdescription: the grass verge left a wide open area before it joined the hillside on the left, and there was no reason why the driver, coming round the left hand bend, in his elevated position in the driver's cab, should not have seen the plaintiff walking on the roadway and given him a wide berth. The piles of wood should not have totally obstructed the driver's view. The driver was at the wheel of a wide and potentially dangerous truck. It was heavily laden with earth. Its manoeuvrability was restricted. The question: what is a safe speed? and likewise what kind of a look-out a driver should keep is always relative to the circumstances. Here, the possibility of a pedestrian stepping out onto the roadway to avoid the debris should not have been totally unexpected. On the driver's own admission he was travelling at nearly 30 m.p.h. , with a heavy load at the back. At this speed, traveling close to the kerb, his reaction time when the emergency erupted was compressed.

20. It is idle to speculate what might have happened if the driver had swerved to the right - conceivably the plaintiff might have been hit by the nearside of the truck and been injured all the same. In my judgment the fault of the driver rests on this consideration: if he had given the plaintiff a wider berth and been going slower the accident would not have happened.

21. On the other hand, the plaintiff is not blameless. He was walking on the roadway where there was a perfectly adequate pavement on the other side. He should have paid more attention to traffic coming from behind and he should have looked before stepping out to avoid the spilt debris. The plaintiff and the driver each owed a duty of care but, given the driver's greater potential for harm should he lapse in that duty, I think that the driver should in this case bear the greater proportion of the blame. In my judgment a proper apportionment of the blame for the accident is 40% on the plaintiff and 60% on the driver.

22. The quantum of damages having been agreed between the parties at a global sum of $60,000 there will be judgment for the plaintiff in the sum of $36,000 and costs of this action; the plaintiff's costs to be taxed under Legal Aid Regulations.

Representation:

Ronny Tong (D.L.A) for Plaintiff

Frankie Leung (John Ip & Co.) for 1st & 2nd Defendants