Lai Yam Chuen and Another v. Attorney General and Another

HCA004008/1973

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

ACTION NO. 4008 OF 1973

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Coram: Li, J.

Date of Judgment: 18th April, 1975

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JUDGMENT

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1. On the 29th September, 1971, at approximately 1.30 in the afternoon, the plaintiff, a woman (hereinafter referred to as the deceased) was knocked down by a Government vehicle, a landrover, driven by the 2nd defendant. The scene of the accident is on the stretch of Taipo Road in the vicinity of the seventeenth milestone where there was a construction site near by. The 2nd defendant was then driving the vehicle from Taipo to Fanling. Before one reaches the scene of the accident from Taipo there was a straight stretch of road in which one could have a clear view in front for 500 to 600 feet. On the nearside of the road was a pavement. However on the offside, i.e. the opposite side of the road, was a hillside without pavement. It was a rainy day when, at the material time, it was drizzling. The road surface was wet. The deceased had a child strapped to her back and held an opened umbrella resting on her right shoulder. She was killed while she was crossing the road from the pavement side to the hillside. Just before one reached the scene of the accident there was a bridge from the pavement side leading to the Pumping Station and a construction site in which workmen were working. She was killed practically instantly. Although no evidence has been led as to the extent of the injury it has been agreed that the cause of death was the traffic accident in question.

2. The plaintiff's case is that the deceased was knocked down by the 2nd defendant's vehicle while she was walking or standing in the middle of the road. As such, the 2nd defendant as a driver, was not keeping a proper lookout, failed to avoid the deceased before she was knocked down and failed to stop the car or manoeuvre the car in tome so as to avoid the collision. In short, the plaintiff's case is that the 2nd defendant was not keeping a proper lookout while he was driving.

3. The defence is that, the deceased rushed across the road suddenly from the pavement, and that the deceased was, indeed, not keeping a proper lookout before she was knocked down. It is further alleged that the deceased had an open umbrella on her right side poiinting to the direction of the 2nd defendant's vehicle. Thus she failed to see the 2nd defendant's vehicle coming towards her when she rushed across the road in such a manner that the accident was entirely caused by her negligence or contributory negligence.

4. The action is brought by the deceased's husband for the benefit of the deceased's estate, as well as for the beneficiaries, namely, the husband and the children surviving the deceased. The issue, therefore, is one as to which party was negligent and responsible for the accident.

5. The evidence of the plaintiff is that, the deceased, at the material time was walking at normal pace across Taipo Road from the pavement side towards the hill, in order to catch a minibus. The plaintiff's evidence is given by one, YEN Lung-bun, who alleges that he saw the accident. He says that, at the material time, he was crossing the bridge from the construction site to the pavement in order to gain access to Taipo Road, and cross the road in the same direction to get some repair parts for the machines on the construction site. As he was half-way across the bridge, which was about 1' lower in level than the road surface, he saw the deceased already in the centre of the road. He further saw a minibus travelling along Taipo Road from the direction of Taipo to Fanling, namely, in the same direction as the 2nd defendant's car was travelling. He also saw, on the opposite side of the road, a minibus parking by the hillside towards the direction of Taipo. About 4 seconds after the minibus travelling towards Fanling passed him, he saw the 2nd defendant's car passed by. The 2nd defendant's car was travelling at high speed, at least over 30 milos an hour. The deceased was holding an umbrella on her right side and the umbrella shielded the head and shoulder of the deceased from his view when he was at the bridge. Then the 2nd defendant's vehicle passed by and concealed completely the deceased from his view. The next thing he knew was that the 2nd defendant's car came to a halt and the deceased woman was lying on the ground near the centre of the road, or at least, about 1' away from the centre line of the road towards the pavement side. As a result of the impact, the child was flung away and was picked up by someone. As soon as the accident occurred, there was passing by a bicyclist who parked his bicycle by the bridge head beside Taipo Road, and went to the deceased's assistance. An ambulance happened to pass by and the bicyclist assisted to get the woman into the ambulance and then left the scene.

6. The defence called three witnesses, one of whom is the driver, the 2nd defendant. His version of the accident is this. At the material time he was travelling towards Fanling. When he approached that straight stretch of the road he saw a woman walking along on the pavement on his near side. There was no traffic ahead of him, there was no traffic behind him and there, certainly, was no bicyclist. When his vehicle was approximately 30' from the woman, namely, the deceased, the deceased suddenly rushed out diagonally into the road in the path of his vehicle. He was so shocked and surprised that he at once applied his brake for the emergency. However, he could not stop the car in time. The front of the car hit the deceased, pushing her some, must be 20', ahead of the vehicle, and the vehicle moved another 30' before it came to a halt. After the impact, the woman was then found lying about 10' behind his vehicle, near the centre of the road. He and his colleague, Mr. CHUNG, who gave evidence in corroboration on the point. The baby who was united still strapped to the back of the deceased but miraculously, survived without any injury. They carried the baby to the pavement. Then the two of them, particularly the driver, carried the deceased to the pavement, while another of his colleagues went to dial 999 for the police and ambulance. It was in response to this call that the ambulance arrived to take the deceased away.

7. When a traffic police officer arrived to prepare the sketch, Exhibit 22, the driver, the 2nd defendant, told him his version of the accident. As a result, Exhibit 22 was prepared. It is not exactly a very helpful sketch in the sense that there is no indication as to directions. Further, by the time the police officer arrived the body of the deceased had been removed though the position of the vehicle remained the same. The position of the vehicle is disputed by the witness, YEN Lung-bun. However, Exhibit 22 does provide some rough idea as to the width of the road, the shape and straight stretch of the road near the vicinity of the accident.

8. It is suggested to me by counsel for the plaintiff that the evidence given by the defence as to the time element, the distance between the vehicle and the deceased prior to the impact, presented an impossibility. As such, the only inference to draw is that the defendants were not telling the truth. Furthermore, it indicated that the defendant was not keeping a proper lookout. The case of Baker and Willoughby was cited in support of the proposition. The principle decided in that case, as I understand, is that when there is a straight stretch of the road with a clear view in front and someone is knocked down in the centre of the road, the driver was not keeping a proper lookout. It is further suggested by counsel that the defence evidence indicated that probably the deceased was knocked down while she was in the centre of the road.

9. On the other hand, counsel for the defence contends that, the plaintiff's one and only eyewitness was a most unreliable witness because he took a lot of things on assumption. I cannot say that Mr. Yen deliberately tells a lie in order to assist a fellow worker. However I have to observe that his evidence is quite unreliable. He frankly admits that his evidence about the baby being flung away as a result of the impact is an assumption. So is his evidence about the chance arrived of the ambulance. He can not tell me whether he first saw the deceased crossing the road or the public light bus which preceded the 2nd defendant's vehicle by four seconds along the road. I gave him chance after chance to tell me whether the woman was at any time hidden by the public light bus before the accident. But he did not say so. He says that he did not notice. One thing is for certain. He said that the woman was carrying the umbrella, opened, on her right-hand side, shielding her head and her shoulder from his view. If one looks at the sketch plan and take into consideration of YEN Lung Bun's evidence relating to the position of the deceased prior to the accident and his own position on the bridge it appears that if the umbrella could shield the head and shoulder of the woman from his view the woman was, in fact, carrying the umbrella pointing towards the direction of the 2nd defendant's vehicle and therefore obstructing her view while crossing the road. Further, Mr. YEN does not give any evidence as to how the deceased crossed the road. He says that the first time he set eyes on the woman she was already in the centre of the road. I find it difficult to believe that if the woman was on the centre of the road she could be sent back, as a result of the impact, to the path of the vehicle again without being run over. There is no evidence that the 2nd defendant drove his vehicle to the other side of the road. It is most unlikely that he could hit the deceased on that part of the road, bearing in mind the total width of the road is approximately 24'3". Had the deceased been on the middle of the road the 2nd defendant had ample space to go between the deceased and the pavement without hitting her.

10. Having regard to Mr. YEN's evidence as a whole, I find that his evidence is based on his assumptions and guesses. The deceased could have run across the road. While she was running across and the 2nd defendant was applying the brake. At that time the 2nd defendant's car could have shielded the deceased from the view of Mr. YEN. But by that time the deceased was fairly near to the middle of the road when she came into contact with 2nd defendant's vehicle.

11. It is sufficient for me to say that, having considered the evidence as a whole, and on the balance of probability I cannot accept Mr. YEN's evidence that the deceased before the impact, was right on the middle of the road. I accept the defence evidence that, prior to the accident, the deceased was, in fact, rushing across the road probably to catch a minibus and the 2nd defendant's evasive measure failed to avoid the collision. I accept the defence evidence on this basis. Indeed the defence evidence does not stand up to mathematical precision in matter of distance and speed. However, it was a matter which happened more than three years ago and the defence witnesses frankly admitted that every reference as to time and distance could only be approximate. It seems to be a reasonable explanation.

12. In view of the aforesaid, I find that the accident was caused, not by the negligent driving of the 2nd defendant, but solely because the deceased suddenly rushed out to the road without looking while the umbrella was shielding her view from traffic on the road. The 2nd defendant was not to blame for this accident. For these reasons I find that the action must be dismissed.

13. Having dismissed the action the question of quantum of damages would be entirely academic. However, if I am wrong in the finding on the point of liability I would have found that the deceased, at the time of death, was making a contribution of about $200.00 per month to the family. Having regard to her age, I would have adopted the multiplier of 15 and damages would be calculated on that basis.

14. Mrs. Jackson-Lipkin, having regard to the dismissal of this action, are you asking for costs?

Representation:

Mrs. M. Jackson-Lipkin (Attorney General) for both defendants

Mr. K. Bokhary (H.H. LAU & Co.) for plaintiff