Nam Kam-lan v. May Ngai Gloves Factory Ltd and Others

HCA003587/1978

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Coram: Mr. Commissioner Swaine, Q.C.

Date of Judgment: 8 October 1979

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JUDGMENT

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1. On 8th October, 1979 I gave judgment for the plaintiff against the 1st and 2nd defendants and dismissed the claim of the defendants against the third party. I now proceed to give my reasons.

2. The plaintiff sues by her father and next friend for injuries sustained in a traffic accident on 22nd July, 1977. She was aged 9 years 11 months at that time. She had begun to cross Sau Ming Road near the Tsui Wah Restaurant just before Block 37 of the Sau Mau Ping Estate in Kowloon. This was some time after eleven in the morning, the weather was fine and the road surface was dry. She wanted to use the toilet at Block 36 of the Estate across the road, where she lived, feeling she said the need to urinate. While crossing the road, she was struck by a small goods van driven by the 2nd defendant and owned by the 1st defendant. The van was then travelling from east to west along Sau Ming Road. The plaintiff was struck first on the right arm and then on the right leg, sustaining fractures of the right leg.

3. The plaintiff said that she was about two paces from the pavement when struck. According to the police sketch exhibit P-4(b) the van was travelling at a distance of about 2.2 metres or over 7 feet from the pavement at the time of the collision, because that is the distance of the nearest skid mark from the pavement. The plaintiff said she was walking normally at that time, and there is no evidence to the contrary. She said that before crossing she looked to see if there was any traffic and noticed a van "very far away". She estimated the distance to be about the length of the courtroom which is about 30 feet. She also marked however the spot on the photograph exhibit P-2(f) being near the bend in Sau Ming Road. According to the sketch exhibit P-3, this would place the van at about a distance of 100 feet from the plaintiff when she looked to see if the road was clear. I take into account the age of the plaintiff and the fact that the accident occurred just over two years ago. I think the truth of the matter is that the van was some distance between the two figures.

4. The figure of 7 feet is of course the minimum distance of the plaintiff from the pavement when she was first struck. It is however probable that she was substantially further along the road at first impact. It is in evidence that the plaintiff was lying at or very near the white dividing line after she had been struck, this being 5.1 metres or over 16 feet from the pavement. As I have said, the plaintiff was struck twice. It is now appropriate that I reconstruct the probable course of events based on the evidence that I have heard:

5. Contrary to the suggestions of counsel for the plaintiff and third party, I do not hold on the evidence that the damage to the plaintiff's arm and leg represented two separate acts of negligence on the part of the 2nd defendant.

6. The van came to rest over the dividing line and is shown on the scale plan exhibit P-4(b) at an angle astride and almost half-way over the dividing line.

7. On the foregoing reconstruction of the accident the plaintiff must have been substantially further on to the road than 7 feet when first struck, allowing for the width of the van and the fact that it was then probably swerving. I would place the distance at upwards of 9½ feet, the width of the van being about 5 feet according to exhibit P-4(b).

8. As I have said the plaintiff's evidence was that she was walking normally after she stepped off the pavement. As she was a little girl, I do not think it could have taken her less than two seconds to walk 9½ feet and it is probable the time was closer to three seconds.

9. The 2nd defendant in his statement to the police exhibit P-4( ...(illegible) ) said he was travelling at a speed of 27 miles per hour at the time, which converts to 39.6 feet per second. That would mean he was from about 79 to 118 feet from the plaintiff when she stepped off the pavement. Travelling at 27 miles per hour he would have needed 67.5 feet in which to stop, assuming ideal conditions, which were in fact present, although allowance must be made for this being a small goods van.

10. Accordingly if the 2nd defendant had been keeping a proper lookout, it is more than probable that he would have had time in which to avoid the plaintiff. In fact the longest skid mark here is 5.8 metres or 19.4 feet so that the 2nd defendant was a lot closer to the plaintiff when he first started braking than he ought to have been.

11. I must of course treat these figures with all necessary caution but they do support what must be a matter of first impression anyway, namely that a motorist who is driving with due care and attention should have been able to avoid a little girl walking normally across the road and at least 9½ feet onto the roadway before being struck.

12. Evidence was led that there were two schools and two playgrounds in the area, there being a large one across the road from the accident. The schools were in summer vacation at this time so it may be said that the 2nd defendant ought not to have been on the watch-out for school children, but the playgrounds should have placed him on alert.

13. Arising out of this accident, the 2nd defendant was convicted on a charge of careless driving in the Magistrates Court on 13th March, 1978 after pleading not guilty. He gave no evidence before the magistrate, and he gave no evidence before me.

14. Under section 62(2) of the Evidence Ordinance Cap. 8, the burden is on the 2nd defendant to show on the balance of probabilities that he was not driving carelessly; see for example Stupple v. Royal Insurance Co. Ltd.⁽¹⁾.

15. The 2nd defendant has failed to discharge this burden whether one adopts the test of Lord Denning in Stupple's Case at page 72A that the conviction is a weighty piece of evidence in itself, or the test of Buckley L.J. at page 75G that the conviction carries no weight but operates simply to trigger the presumption. If he had really wished to exculpate himself he should have given evidence before me, but he chose not to do so.

16. I therefore find for the plaintiff on the 2nd defendant's negligence.

17. I turn now to the question whether there was contributory negligence on the part of the plaintiff. The test in the case of an infant is that of a child of similar age. This has been established by a long line of cases, of which Andrews v. Free borough⁽²⁾, Jones v. Lawrence⁽³⁾, and HO Kwai-lov v. LEUNG Tin-hong⁽⁴⁾ are recent examples. In the latter case Huggins, J.A. adopted the statement that it was a question for the jury in each case whether the infant exercised the care to be expected from a child of like age, intelligence and experience.

18. The plaintiff knew the rules of road safety. She had been taught the use of zebra crossings. There was one about 100 yards down the road from the accident. She knew that when crossing a road, she had to look to the left and right. She said she had looked on the occasion in question. Of course in retrospect it would have been far better for the plaintiff to continue down the road and use the zebra crossing. But I must not judge the plaintiff harshly as she was then a very young child. I am unable to say that what she did was negligence as measured against the standards not of an adult but a child of similar years.

19. In the case of Andrews at page 16, Davies L.J. said of a girl of 8 that:

"it would not be right to count as negligence on her part such a momentary, though fatal, act of inattention, or carelessness".

In the case of Jones at page 270 Cumming-Bruce J. said of a boy aged 7 years 3 months that the defendant had failed as a matter of probability to show that the infant plaintiff was culpable or that his behaviour was anything other than that of a normal child who is "regretfully, momentarily forgetful of the perils of crossing a road".

20. The burden is on the defendants to show that the plaintiff was guilty of contributory negligence. On the evidence I am not persuaded that the plaintiff acted in a manner which amounted to negligence measured against the standards of a child of her age.

21. In the case of SO Loi-mui v. TANG Shiu-gav⁽⁵⁾Yang, J. found a girl of 7 to be 40% to blame for running across the road without making sure the road was clear. Those facts are distinguishable from the present. case.

22. In the result I find that the 2nd defendant was negligent and I do not find contributory negligence on the part of the plaintiff.

23. The 1st defendant as admitted owner of the van driven by the 2nd defendant is vicariously liable for the 2nd defendant's negligence, there being a presumption in such a case that the driver was acting as the servant or agent of the owner, a point not really challenged by counsel for the defendants; see Dunnicliffe v. LEUNG Wing & Another⁽⁶⁾.

24. There remains for me to consider the question of the third party claim. It was agreed by counsel that I should hear the entire evidence concerning the case not just as between plaintiff and defendants but also as between defendants and third party and that I should arrive at a determination on the third party claim at the same time. Having regard to the circumstances of this particular case this was the obvious and sensible thing to do.

25. I have no doubt in my own mind that the third party, mother of the infant plaintiff, owed a duty of care to the plaintiff while the latter was walking on a public road in her company. (See for example Hahn v. Conlev in the High Court of Australia 45 A.L.J.R. 631). I absolve the third party however from any breach of that duty. The third party had left home that morning with her five children. They lived at Block 36 of the Sau Mau Ping Estate. They had used the zebra crossing on leaving home to get across the road. On the way home, the third party was holding on to the two youngest children. She instructed the three older children to follow one after the other, and she watched them from time to time. The plaintiff was the third child, and she had two older brothers then aged 12 and 13. The plaintiff was a few feet behind her second brother with the third party a few feet behind her. The third party expected that the three children would wait for her at the zebra crossing. She had instructed them on its use. She said that what the plaintiff did was unexpected, and that she was a well-behaved child. Having seen and heard the third party as well as the plaintiff and her second brother, I would describe the family as closely knit and hard-working. By her own high standards the third party may have thought that she was partly to blame, but obviously I do not count this as an admission of liability. By all ordinary standards, she was free of negligence on this occasion. The defendants therefore fail in their claim against the third party that she was negligent.

26. In the event no question of contribution as between the defendants and third party arises under section 19 of the Law Amendment and Reform (Consolidation) Ordinance Cap. 23 because I hold that the third party, if sued by the plaintiff, would not have been liable to her.

27. There will therefore be judgment for the plaintiff against both defendants on the issue of liability. The quantum of damages is to be assessed hereafter pursuant to the order made on 9th July, 1979. The claim of the defendants against the third party is dismissed. Costs are to follow the event with the defendants to pay the costs of the plaintiff and of the third party. I make the necessary order for Legal Aid taxation.

Representation:

Miss A. Mok (D.L.A.) for plaintiff

Rodway (Deacons) for 1st & 2nd defendants.

Stone (Chow & Howell) for 3rd party.

(1) (1971) 1 Q.B. 50.

(2) (1967) 1 Q.B. 1.

(3) (1969) 3 All E.R. 267.

(4) (1978) H.K.L.R. 72.

(5) (1977) H.K.L.R. 181.

(6) (1963) H.K.L.R. 62.