Law Fai Cheung v. B.E. Marshall and Another

HCA004584/1978

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Coram: Mr. Commissioner Gittins, Q.C.

Date of Judgment: 13 November 1979

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JUDGMENT

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1. The Plaintiff's claim is that on 4th February 1977 while he was walking southwards along the western edge of Kwong Fuk Road near its junction with On Fu Road in Tai Po Market, New Territories he was injured by a motor car owned by the 2nd Defendant a limited company and driven by the 1st Defendant a director of the 2nd Defendant.

2. It is common ground that the pavements on both sides of Kwong Fuk Road were crowded with persons gathered to see H.R.H. Princess Alexandra who was visiting the New Territories.

3. The Plaintiff gave evidence that he started from the east side of Kwong Fuk Road opposite On Fu Road. In order to cross to the west side he went north to a pedestrian crossing and crossed over. He then walked south on the west edge of the carriageway about "2 odd feet from the pavement". He did not cross over Kwong Fuk Road directly because police officers were on duty. After crossing he did not walk south on the pavement on the west side because it was crowded. When he was near to the junction with On Fu Road he saw the car driven by the 1st Defendant swing out from the stationary single line of traffic heading north and proceeded at about 25 miles per hour to the inner of 2 lines of traffic from On Fu Road northwards. In so doing the car collided with him and caused him injury.

4. The Plaintiff was a taxi driver at the time and claimed to be familiar with the traffic arrangements in the area. He said that normally Kwong Fuk Road had 2 lines of traffic going north and 2 lines going south, but on 4th February 1977 because of the visit of the Princess traffic was reduced to 1 line each way.

5. The 1st Defendant's evidence was that on entering Tai Po Market going north there was no on-coming traffic travelling south. The north bound traffic which he joined was single line until about 20 yards south of On Fu Road when it divided into 2 lines. He joined the inner line. The traffic was heavy and progress slow on a go/stop basis. Just before On Fu Road a police officer on duty waved on the inside line of traffic while the outside line was still stationary. As he started to move the Plaintiff suddenly appeared from his right in front of a stationary lorry on the outside line. The Plaintiff was running. The Defendant said his car was not doing more than 10 miles per hour and he stopped immediately. The Plaintiff ran into the offside of his car in front of the front wheel while the car was stationary. Subsequently he discovered a small dent on the side of the car which he assumed had been caused by the Plaintiff running into it.

6. The Plaintiff has adduced no evidence in support of his statement that traffic arrangements had been changed from 2 lines to 1 line going north that day. In the absence of such evidence I consider that his version is unlikely. With 2 lines of traffic going north, it is also unlikely that the Plaintiff could have walked south on the carriageway some "2 odd feet" from the pavement.

7. I consider it more likely that the 1st Defendant was already in the inner line of traffic and that the Plaintiff appeared suddenly from the 1st Defendant's right. I have some reservation in accepting the Defendant's version that his car had stopped and that the Plaintiff suffered his injuries, which consisted of 3 separate fractures of bones in his lower left leg, through running into the stationary car. But even if the car was still in motion this would not fix the 1st Defendant with negligence.

8. On the claims made by the Plaintiff in the Statement of Claim I find as follows:-

9. In the circumstances, I hold that the Plaintiff has failed to prove negligence on the part of the 1st Defendant and the Plaintiff's claim against both Defendants is dismissed with costs. The Plaintiff's own costs to be taxed under the Legal Aid (Scale of Fees) Regulations, Cap. 91.

10. In the event that this case may go further I give hereunder the awards I would have made if the Plaintiff had been successful.

11. As to the claims for expenses in respect of nutritious food, bonesetter and travelling expenses, the Plaintiff's evidence was vague and unsatisfactory as to the amounts expended. However, I am in no doubt that expense was incurred in respect of these items. As to nutritious food, I would adopt the principles declared by Li, J. at first instance in Wong Yin-wah v. Mui Ling-kwan, set out in 1973 H.K.L.J. at 339, on appeal at 1973 H.K.L.R. 465.

12. I would have awarded in respect of these items as follows:

Representation:

W. Chan (Yu, Tsang & Loong) for Plaintiff

T. Lai (Vincent Lo & Co.) for Defendants