Wong Siu Ling v. Leung Chan Kwan and Another

HCA000740/1968

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

ACTION NO. 740 OF 1968

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Coram: Briggs, J.

Date of Judgment: 5 February 1969

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JUDGMENT

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1. In this case the plaintiff is a young girl aged about 19 years. On 4th December 1967 at about 8.15 in the morning she was knocked down by a dual purpose van driven by the first defendant and owed by the second defendant, when she received injuries.

2. The plaintiff alighted from a bus at a bus stop in King's Road opposite No.965A King's Road. The bus had come from Shaukiwan and was on its journey to Central District. The bus was travelling therefore from East to West.

3. The plaintiff intended to cross King's Road to the north side in order to reach the factory where she was and is employed.

4. At that point King's Road is over seventy feet wide. It is divided into lanes of traffic by the usual dotted white lines. In the centre of the road is a tram platform almost opposite to the bus stop.

5. In order to cross the road the plaintiff would have to cross three lanes for traffic travelling in a westerly direction i.e. towards Central District, before she reached the tram platform. This would entail her crossing two tram tracks one for trams going to the west and one for trams going to the east. Once she had reached the tram platform she would have to cross two traffic lanes for traffic travelling in an eastward direction i.e. towards Shaukiwan.

6. At this part of King's Road visibility is excellent in both directions: the road is wide and straight. On the morning in question it was fine and dry, the road was in good repair. There is a speed limit of 30 m.p.h. I was also told that traffic was light at the time.

7. The plaintiff said she alighted from the bus, walked round the rear of the vehicle and before crossing the road she twice looked down the road towards the east namely towards any oncoming traffic. She also looked to see if any tram was coming before starting to cross. She said she saw no traffic coming from the east anywhere near her. When she approached the tram tracks she looked in both directions and again saw no traffic.

8. When she had nearly reached the tram platform she was knocked down by the defendant's van and became unconscious. She regained consciousness in hospital. She neither knew nor saw what vehicle knocked her down. She did not hear the sound of any horn nor the noise of a vehicle braking.

9. The plaintiff was obviously telling the court what she believed to be the true facts of what occurred. She did not exaggerate her evidence in any way. And she was a thoughtful witness. However she said she was one pace from the tram platform when she was rendered unconscious. This is not accurate as appears from the evidence of a police constable, Wong Wing Chung, who was quickly on the scene and who produced in court an excellent sketch plan of what he saw when he arrived. I have no hesitation in saying that the plaintiff honestly believes that she was where she said she was when she was hit but this is impossible. For the point of impact on the vehicle was the left front corner of the bonnet of the van. If she had only been one pace from the tram platform as she described, this could not have been so.

10. The first defendant said that on the day and at the time in question he was driving his dual purpose van down King's Road towards Central District. He had 6 or 7 passengers on board. He had been driving for some nine months and usually his hours of work were ten hours per day. He said he was travelling at 27 miles per hour in the centre lane on the left half of King's Road going westwards.

11. He said he saw a bus to his left, some 20 feet away at a bus stop. He was following another vehicle which was 60 - 70 feet in front of him, in the same lane as he was travelling. As the bus moved from the bus stop, he said, he saw a person's shadow moved out from the white line. It was the plaintiff. She was very close to him and moving across the road. Immediately he saw her he applied his brakes, swerved to his right, and sounded his horn in an attempt to avoid a collision. He said the plaintiff did not react, she continued walking across the road. And a collision occurred.

12. The front rear side mirror on the wing of his van hit the plaintiff who was knocked down. The wind screen of his van was shattered and pieces of glass came into his cab. This made him shut his eyes and momentarily he lost control of his vehicle, which, it appears from the evidence of the plan, travelled some seventy feet after the impact ending up on the other side of King's Road: i.e. that part which is for traffic travelling from west to east.

13. The first defendant admitted that he had an excellent view down King's Road. Just before approaching the place where the accident occurred coming from the east, from Shaukiwan, there is what counsel referred to as a "stud crossing", a pedestrian crossing. The first defendant said that he slowed down when reaching this spot as he was on the look out for further passengers. After passing this he again accelerated up to his previous speed of 27 miles per hour.

14. There was a certain confusion as to how much of the bus the first defendant could see and as to the various distances between the various vehicles and the plaintiff. This is not surprising. The whole incident only took a matter of seconds. Again the first defendant did not attempt to evade any question put to him and he gave his evidence in a straightforward manner.

15. Fortunately there was called one Ho Lai Chung who was a passenger in the van of the first defendant at the time. He was sitting in the front seat of the van which gave him an uninterrupted view to his front. He said that he saw the plaintiff crossing the road. And the first defendant thereupon sounded his horn: a long blast. She continued walking. The first defendant then applied his brakes and swerved to his right but unfortunately the front left hand part of the bonnet of the van caught her and knocked her down. He said that when the first defendant first sounded his horn the plaintiff was about 20 yards away. When he first applied his brakes and swerved, the plaintiff was only 5 - 6 yards from the van. This witness also gave evidence as to the distance between the van and the bus which in some sense differed from the evidence given by the first defendant. He also said that the van was being driven at a normal and not at an excessive speed in the circumstances.

16. These cases are always of great difficulty: the accident only takes a very few seconds and in this case because she was rendered unconscious immediately we have had but little assistance necessarily, from the plaintiff.

17. I have reached the conclusion that both of the parties were ...(illegible) blame for the accident. I do not think that the plaintiff kept a sufficien look out when crossing the road: also the first defendant saw the plaintiff and sounded his horn when he was 20 yards from her. He then waited for her reaction: but she did not react. When he did apply his brakes, some 5 - 6 yards from her, it was too late. And the accident occurred.

18. I am therefore of the opinion that each of the parties was to blame for the accident equally.

19. There is one point I should mention before dealing with damages. The police took a statement from the plaintiff when she was in hospital the morning after the accident, in which she said that she felt dizzy before the accident. No questions were asked of the plaintiff about this. For that reason and because of the time at which it was taken I have paid but little attention to it.

20. There is no claim here for special damages.

21. The plaintiff suffered a fractured pelvis; injuries to her right cheek, eyes and to her right calf and to her head. She was detained in hospital for three weeks and was in pain for all of that time. After discharge she had difficulty in walking and pain in her hip and her headaches persisted for a further 6 months. She still has an occasional dull ache in her hip. Though the fracture of her pelvis has healed and her hip movement is now normal, there is a likelihood that she may encounter some difficulty if and when she bears a child. The scars on her cheek and leg are permanent but, fortunately that on the cheek is inconspicuous.

22. In January 1968 she returned to work but she was nervous of walking unaccompanied, particularly when crossing a road, for some period of time. She has been unable to enjoy as full a life as she did before the accident, because she finds difficulty in dancing and is unable to walk for any distance. Finally before the accident she was attending a night school. Because of her injuries she was unable to attend for 6 months and this has retarded her progress.

23. Taking all these circumstances into consideration I think the right amount to award is $15,000 of this the plaintiff is entitled to recover only half in view of my finding as to her contributory negligence.

24. There will therefore be judgment for the plaintiff against the first and second defendant for $7,500.

25. The plaintiff is to have her costs.

Representation:

Ignatious Wong (Deacons) for Plaintiff.

William Chan (Philip K.H. Wong & Co.) for both Defts.