Cheung Kee Building Contractors Co Ltd v. Chu Yuen-to and Another

HCA001082/1978

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Coram: Mr. Commissioner Penlington

Date of Judgment: 11 July 1979

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JUDGMENT

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1. This is a claim brought by the employers of a deceased workman to recover compensation paid by it to the dependants of the worker who was killed in a motor accident while acting in the course of his employment. The first defendant is the owner of the public light bus and the second defendant ("the driver") was the driver of the bus involved.

2. The evidence called, as is unfortunately so often the case in accident claims, is slender. A police constable produced a sketch plan which he made on arrival at the scene and Mr. Lo Yeung, who was a fellow worker with the deceased, gave evidence that on the day in question, shortly after 8 a.m., he was walking from one construction site to another with the deceased and two other painters. He was following the deceased along the pavement of Wo Yi Hop Road, the other two men preceding them. He said that the road sloped downways in the direction they were going and he was about 15 feet behind the deceased when they came to a spot where two cars were parked side by side on the pavement, forcing pedestrians to go out onto the road. He did not see the accident but heard a noise and saw the deceased lying on the road, having been hit by the public light bus. He indicated on the sketch where the bus had stopped but said it rolled back a short distance before the driver got out. The driver confirms that but I am satisfied that the bus did stop a very short distance beyond where it hit the deceased. The driver's evidence was that he was driving at about 10 m.p.h. in second gear and was about to stop to let one of his passengers off. He certainly was going uphill and I accepted his evidence concerning his speed at the time.

3. Mr. Lo said that there was no reason for the deceased to cross the road at this point and it seems clear from the evidence that he went out onto the road in order to avoid the parked cars. The driver agrees that there was one car on the pavement but not two. Having heard the evidence on this, I am satisfied there was only one. Constable Chow said that when he arrived at 8.33 a.m. there were no such cars but in view of what had happened that is not surprising. I was satisfied that the deceased, if he had so chosen, could have gone round the obstruction safely, even if at some inconvenience.

4. The only evidence as to what actually happened when the deceased was struck was that given by the driver who I found to be an honest witness, bearing in mind nevertheless that he is an interested party. He said he saw the deceased when about 20 feet away from him who was walking quickly along the pavement towards the oncoming bus and also towards a car parked on the pavement. He had his head down and was carrying something which Mr. Lo said were buckets and brushes. When about 5 to 6 feet away from the bus the deceased suddenly came out onto the road and the second defendant braked and swerved to avoid him but could not do so. He could not remember if he sounded his horn but Mr. Lo said he did not hear a horn and on that evidence I was satisfied that the horn was not used. However I am satisfied that events happened too quickly for the driver to be reasonably expected to do so. The driver said that while he did see the car parked on the pavement he did not know why the deceased came out onto the road.

5. I was satisfied that before the accident the deceased was walking down Wo Yi Hop Road with his head down and that there was one car parked on the pavement and when he came up to it the deceased elected to pass it by walking out onto the roadway rather than go round the other side, which he could have done. There is no evidence as to whether he looked down the road at oncoming traffic before he did so but it seems clear that had he done so he must have seen the oncoming light bus. The deceased was struck by the bus and was knocked back onto the road. The bus went on a short distance, rolled back a few feet and finally stopped very near the point of impact.

6. On those facts the question remains as to whether the second defendant was negligent in that when he saw the deceased approaching the parked car he should have anticipated that the deceased might walk out onto the road in order to get past it, might not look to see if the way was clear and was likely to be hit by the bus.

7. There is ample authority that if a driver sees a child near a roadside he must anticipate that the child may act in an irrational manner and he must take care accordingly, Gough v. Thorne⁽¹⁾, but that is not the case here. Counsel for the plaintiff has, however, referred me to some authority which he contends support the view that the second defendant was negligent in not anticipating the deceased's actions.

8. In Adamson v. Roberts⁽²⁾, a pedestrian was struck from behind when she ventured out onto the road in order to pass other pedestrians at a point where the pavement was narrowed by a building. In another similar case, that of Williams v. Needham⁽³⁾, a woman was waiting to cross a road and the approaching driver assumed she would look right before she did so. She did not do so, was struck and the driver was held liable as to one third. In both those cases however the facts were such as to give a clear warning to the driver that if he did not take avoiding action an accident was likely. In the other case of Powell v. Phillips⁽⁴⁾, a driver was held totally responsible for hitting a pedestrian from behind who, because the pavement was wet, was walking on a straight road which was lit. There, however, the driver was held negligent in failing to keep a lookout and to drive at a reasonable speed. Here, there is no evidence of high speed, indeed the evidence is to the contrary, and the second defendant says he did see the deceased before the accident. The question is whether a reasonable driver in Hong Kong seeing a pedestrian coming towards him and approaching an obstruction should anticipate that rather than go round it on the safe side or stop and look to see if the way was clear on the roadway, he might step out onto the road in the face of oncoming traffic. I do not consider that the duty on all drivers to take reasonable care for the safety of other road users goes that far. To say that the second defendant should, under the circumstances, have done more than he did to anticipate and avoid the accident, tragic though it was, seems to me to be a counsel of perfection, especially in the crowded conditions of Hong Kong. There are many types of obstructions on the pavements here and I think a driver is entitled to expect that pedestrians will not take the sort of risk which the deceased unfortunately did.

9. On the facts of this case I find that the second defendant was not negligent and the plaintiff's claim must be dismissed with costs.

(1) 1966 3 A.E.R. 398.

(2) 1951 101 L.T. 511 (Ct. of Sess. Scot.) Binghams Motor Claims Cases at page 78.

(3) 1972 R.T.R. 387 Q.B.D. Binghams Motor Claims Cases, page 77.

(4) 1972 3 A.E.R. 864.