So Loi-mui v. Tang Shiu-gay

HCA002879/1975

IN THE HIGH COURT OF HONG KONG

ORIGINAL JURISDICTION

ACTION NO. 2879 OF 1975

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Coram: The Hon. Mr. Justice Yang in Court.

Date of Judgment: 13th April, 1977.

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JUDGMENT

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1. These proceedings arise out of a motor accident in which the plaintiff infant sustained injuries. This trial is limited to liability only.

3'. At about 6.20 p.m. on 27th May 1973 the defendant was driving his private car AL 72 from Tai Po towards Shatin in an easterly direction along that stretch of Tai Po Road which runs on a causeway, with Tolo Harbour to his left. After turning a righthand bend, he came onto a bridge which spans the waters between north and south, still with Tolo Harbour to his left. The bridge is 185'3" in length, and is divided into two carriage-ways. The southbound carriageway going towards the direction of Shatin is 18'5" in width, with a parapet running along either side of that carriageway. The height of those parapet is 2' or 3'. There are no pedestrians' pavements on the bridge. From the southern end of the bridge, Tai Po Road continues on for 114' before it reaches a railway level crossing. Some 51' to the north of the railway crossing is a white line painted across the surface of the southbound carriageway.

2. A photograph (Ex. P2-D) which was taken at the end of 1976 and exhibited at the trial shows that there was erected at the abovementioned righthand bend a traffic sign limiting the speed on the bridge to 10 m.p.h. There is some dispute as to whether that sign was there on the day of the accident. By Gazette Notification No. 454 dated 25th February 1977 it was ordered that with effect from 1st March 1977 the speed limit there would be changed to 30 m.p.h. On the evidence of the Traffic Officer (Traffic Mainland) of the Transport Department, there was no record that that sign had ever been erected by his Department. As the Transport Department was created in 1968, the inference which can reasonably be drawn from the particular facts is that the sign had been erected there before 1968 and was in the position shown in the photograph on the day of the accident, because if the. sign had been erected after 1968, presumably the Transport Department would have a record of that fact.

3. It is common ground that the day in question was fine and dry, and visibility was good. It would appear from the evidence that that day being the eve of the Dragon Boat Festival, a number of people were rowing dragon boats in the harbour in preparation for the dragon boat races the following day. There were a number of spectators some two-thirds of the way down the bridge looking towards the harbour. Amongst them were three or four children of about 10 years of age. The defendant saw these spectators and he knew it was the day before the Dragon Boat Festival. At the edge of that part of the road between the southern end of the bridge and the railway crossing were some more spectators, whom the defendant did not see. Amongst those spectators were the plaintiff, who was then seven years of age by Chinese reckoning, and her brother, who was four years of age by Chinese reckoning. It is not disputed that the plaintiff suddenly ran across the road and was hit by the car driven by the defendant.

4. Before coming to the circumstances in which the collision occurred, it is necessary to refer to the sketch plan made by a police officer about 20 minutes after the accident. The accuracy of the sketch plan is not in dispute. It shows that the defendant's car had come to a stop at an angle, at a distance of 23' to the north of the railway level crossing. The offside front of the car was 2'5", and the offside rear 2'11", from the grass verge in the centre of the road. The nearside front of the car was 11'4" and the rearside rear 10' from the east side of the road. There were some blood stains on the road surface about 5" directly in front of the car. The sketch plan also shows two slippers, the first one was 51'4" and the second one 59'10" behind the car. It is I think a fair assumption that the slippers had been on the plaintiff's feet immediately before the collision. According to the defendant's evidence his car was about 6' in width and about 19' in length. The total distance between the second slipper and the front of the car was therefore about 79'.

5. It is clear from the evidence that the defendant was driving in the middle of the carriageway, leaving about 6' on either side of his car. He told the court that he reduced his speed from about 25 m.p.h. to about 12 m.p.h. The driver of the car following him said however that the defendant was travelling at 30 m.p.h. from the time he first noticed the defendant's car at some point before reaching the bridge up to the time of the accident. I accept the defendant's evidence that when he saw the plaintiff she was about 4' in front of his car and she was thrown forward "a little" upon impact. If one takes the position of the slipper furthest away from the rear of the defendant's car as indicating approximately the spot where the car came into contact with the plaintiff, then the inference must be that he first caught sight of her when she was about 4' to the north of the slipper. The distance which defendant's car travelled from the time the defendant first saw her to the place where it finally came to a stop was therefore about 83'. According to the High way Code a vehicle being driven at 30 m.p.h. cannot stop in less than 75'. For these reasons I find as a fact that the speed of the defendant's car was about 30 m.p.h. at the time of impact. The sketch plan shows no brake marks on the road surface, which is an indication that the defendant probably did not brake heavily enough to lock the wheels.

6. I further find as a fact that after hitting the plaintiff the defendant's car dragged her along until it came to stop, and that she was trapped beneath the car in such a way that the car had to be lifted up to extricate her. The defendant said in evidence that it was the nearside front of his car that hit the plaintiff. From this evidence I came to the conclusion that the plaintiff had run not less than 6' into the roadway before she was knocked down. Counsel for the plaintiff suggested that a person running at 6 m.p.h. would cover 8.8' per second, and that a person running at 9 m.p.h. would cover 13.2' per second. On the basis of this estimate, which is not challenged by the defence, the plaintiff took two-thirds of a second or half a second to run into the path of the defendant's car. Travelling at 30 m.p.h., the car would have travelled about 30' in two thirds of a second or 27 ½' in half a second. Accordingly, if the defendant had been keeping a proper lookout, he ought to have seen the plaintiff about 30' away when she started to dash across the road.

7. My attention has been drawn to two authorities, namely, Moore v. Poyner (1975) Road Traffic Reports 127, and Davies v. Journeaux (1974) Lloyd's Law Reports 483. I do not propose to examine these cases in detail, save to say that I am grateful to counsel for both the plaintiff as well as the defendant for their analyses of them.

8. In Moore's case a young boy of six was knocked down by a car when he ran across the pavement on to the road. The driver of the car knew that there were children playing in that area and that children might run into the roadway. The trial judge found that the driver should have reduced his speed and sounded his horn. On appeal, Buckley, L.J., said (at page 132, letter G):

"I think one can formulate the appropriate test in the present case in these terms: would it have been apparent to a reasonable man, armed with commonsense and experience of the way pedestrians, particularly children, are likely to behave in the circumstances such as were known to the defendant to exist in the present case, that there was a possibility of a danger emerging, to avoid which he should slow down or sound his horn, or both?"

9. The learned Judge went on to say (at page 132, letter K):

"I think that one must test his duty of care not by reference to what the plaintiff actually did but by what sort of conduct by any child, at any moment of time, the defendant ought reasonably to have anticipated, and to consider what course of action he would have had to take if he was going to make quite certain that no accident would occur."

10. Browne, L.J., concurred, but MacKenna, J., had this to say (at page 135, letter A):

"The judge who tried the case thought that the defendant should have taken these precautions, and that if he had done so the accident would probably not have happened. Left to myself, and bearing in mind the defendant's answers in cross-examination, I doubt whether I would have disturbed these findings; but my brothers think otherwise, and I do not see the case clearly enough to dissent from them."

11. The principle which emerges from the observations cited above appears to be this: whether the road condition at the material time was such that a reasonably careful driver should have anticipated the possibility of a danger emerging, if so, then he should take such steps as are reasonably necessary to avoid such dangers should it emerge.

12. In Davies' Case a girl of 11 ½ was knocked down by a car when she ran out from the kerb. The trial judge found the girl 60 per cent to blame and the driver 40 per cent to blame. The driver was familiar with that part of the road and he had been people emerging from the side of the road before. The Court of Appeal held that the skid marks left by the car; some 22' in length, showed that the driver had been alert and had acted promptly and efficiently. It was further held that negligence was not established simply by the driver's failure to see the girl a split second after the driver's passenger saw her, and having seen her, by his failure at that moment to sound the horn.

13. Returning to the facts of the present case, the defendant was driving at 30 m.p.h. on the bridge when the speed limit there was 10 m.p.h. There were spectators, including children on the bridge, which had no pedestrians' pavement. Even without the speed limit sign, the defendant's speed in the particular circumstances of that time, day and place was too fast, especially as he was aware that it was the day before the Dragon Boat Festival and that there were people watching dragon boats in the harbour. If he had been keeping a proper lookout, he would have noticed the spectators on the side of that stretch of the road between the bridge and the rail-way crossing; and he should have seen the plaintiff starting to run across when he was about 30' away from her. Also, if he had been as alert as he should, the braking would have been sufficiently heavy to show skid marks. In all the circumstances, and applying the principle referred to above, I am satisfied that the defendant was guilty of negligant driving.

14. A number of Scottish cases have been referred to by counsel for the plaintiff in support of his contention that young children could be held liable for contributory negligence. Davies v. Journeaux (supra) is an example of decisions by English courts, that children may be found guilty of contributory negligence. Further examples may be found in Clerk and Lindsell on Torts. In Halsbury too, one may find ample authorities for the proposition that quite young children may be held liable for contributory negligence in not exercising that care which may reasonably be expected of them.

15. The plaintiff in her own evidence admitted that on the day of the accident she knew that many cars travelled on that road and that she had to be careful when crossing the road. She also admitted that her parents had told her to be careful when crossing the road. In my judgment the plaintiff was clearly guilty of contributory negligence in running across the road without making sure that the road was clear.

16. I hold that the defendant was 60 per cent to blame and the plaintiff 40 per cent to blame.

Representation:

Miss McGrowther (D.L.A.) assigned for Plaintiff.

Mr. R. Mills-Owens (Johnson, Stokes & Master) for Defendant.