Lam Kuen v. Yiu Tat Fai and Another

HCA010868/1982

IN THE HIGH COURT OF JUSTICE

BETWEEN

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Coram: Hon. Liu J.

Date of Hearing: 16th, 19th & 20th December, 1983.

Date of Delivery of Judgment: 20th December, 1983.

Date of handing down reasons for judgment: 23rd December, 1983.

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JUDGMENT

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1. On the 26th July 1981, whilst the plaintiff and his son-in-law together with his four grand-daughters were crossing the Cheung Sha Wan Road from South to North opposite the premises with the street number of 828, the plaintiff alone met with a traffic accident. The family group had managed to cross the first half of Cheung Sha Wan Road reaching the recess in the middle created by the M.T.R construction. The accident occurred when the family group, in the sequence of four grand-daughters in front, followed by the son-in-law with the plaintiff as the tail-end, were crossing the other half of Cheung Sha Wan Road in a northerly direction. The plaintiff was caught and thrown up by the offside front bumper of the car driven by the 1st defendant's onto the bonnet, thereby shattering the windscreen. The plaintiff together with the 1st defendant's vehicle ended up in the far northern portion of the carriageway some distance further ahead.

2. The plaintiff suffered lacerations over his limb and head. He sustained fractures in his skull, left leg and left knee. He underwent remedial operations and spent 4½ months in hospital and convalescence home. Today at 84, the plaintiff has to be aided in most of his daily chores. It was claimed by his counsel that he has a very poor memory, but he has been certified by the medical evidence as quite mentally alert. There is a 30% loss of expectation of life, and he has been assessed at 40% permanent disability. I need not really go into all these details which were hardly contested. The quantum of damages has been agreed at $180,000 comprising $115,000 for general damages with interest thereon at 2% per annum for the usual duration, $50,000 for special damages with interest thereon at 7% per annum for the usual duration and $15,000 for future loss.

3. The son-in-law has given evidence. The plaintiff and the grand-daughters have not. Various reasons were suggested by counsel. I do not propose to go into them. It is not for me to speculate why they have not come forward to assist the court. There may or may not be good reasons for them not doing so. It is impossible to rule out the possibility, in view of the circumstances known from the evidence, that none of them had anything to offer. Therefore, I should not draw any adverse inference against the plaintiff on that score.

4. The son-in-law told the court that he was crossing the road with the pedestrian light in his favour and that no sooner had he himself stepped onto the pavement with his father-in-law allegedly close behind than he heard his four daughters scream. Thereupon, he turned and saw his father-in-law lying in a pool of blood with the accident car at a standstill. He claimed to have heard the footsteps of his father-in-law behind on account of the metal-sheet road surface installed by the M.T.R. along that stretch of the road. However, it would seem incredible for him to go on to testify that he had heard no sound of an approaching vehicle or the collision immediately before he witnessed that scene. It is more probable, therefore, that his father-in-law had, in fact, been a little further behind than the distance which he described in court and that equally the on-coming car driven by the 1st defendant was somewhat further from him when it struck his father-in-law.

5. The son-in-law maintained in court that he did not pause in the middle opening between the two portions, the southerly portion and the northerly portion of Cheung Sha Wan Road. He also maintained that from beginning to end, the pedestrian light was green in his favour. However, in his statement to the police given some 5 days after the accident, he told the police that the whole family group stopped for a little while in, what he described as, the gap between the southerly and northerly portions of Cheung Sha Wan Road, and he was also recorded as having seen the pedestrian light blinking just about when his four daughters started to cross with him and his father-in-law behind.

6. The plaintiff did not himself give evidence, but a statement of his given to the police some 13 weeks after the accident was produced. He stated that the. family. group stopped at the "gap". He said he followed his son-in-law about 4/5 steps behind and that he just tacked on to the family group without paying any, attention to the pedestrian light or keeping any lookout for the traffic. The remaining portion of the Cheung Sha Wan Road in which the plaintiff met with his accident was, at that time, about 18½ feet or, as given by the policeman, 6.2 metres wide. The son-in-law told the court that it would take about 8/9 steps to cross. He said he was about 7/8 feet behind his four daughters. The son-in-law was in "hurried paces", and it would probably take him 4seconds to    cross. 2 seconds prior to the daughters' scream, the son-in-law himself must have been somewhere in  the middle of that portion of the road.

7. The defendant also gave evidence. He told the court that he was not driving the car, registered in the name of his wife, the 2nd defendant, under her direction. The car had constantly been used for his own exclusive purpose, as it was on this occasion. From 6/7 car-lengths back, he observed the traffic signal as being green. He had earlier paid no particular attention to the traffic light beyond that point. The 1st defendant knew not for how long the traffic light had turned green in his favour or conversely for how much longer the traffic light would stay green. The 1st defendant told the court that he was travelling at 20 odd to 30 miles an hour without any reduction of his speed upon approaching the "gap" before the accident. He could hardly see any illumination arranged by the M.T.R. as a warning for its obstruction. That stretch of the road under construction was either poorly lit or without any street lighting at all. It was dark, and he had no view of what lay ahead of him. He said that he was travelling on the lane close to the "gap". After having passed the first traffic light in green for about 3-feet, so ran the evidence of the 1st defendant, a shadow suddenly dashed out about a foot in front of the right side of his car. The 1st defendant claimed to have been left with no time to avoid the accident in this emergency at no fault of his own.

8. Before I deal with the evidence, I should dispose of the 1st defendant's conviction. The 1st defendant pleaded guilty in the Kwun Tong Magistracy on the 18th June 1982 to a charge of careless driving in connection with the accident. As charged, it could not be a serious offence. The 1st defendant claimed that he pleaded guilty to save time and expense. As to saving of expense, I accept his explanation. As to saving of time, although I find his alleged total commitment to his elder brother's company's affairs at the time somewhat exaggerated, I, nevertheless, also find, on the balance of probabilities, that the 1st defendant had little wish to be further inconvenienced by a minor charge of carless driving. It is probable that the 1st defendant had not really churned up in his mind whether he was guilty or not guilty of the careless driving charge. In the end, on whatever view one should take of the probative value of the 1st defendant's plea of guilty and his conviction in deciding what is sufficient for discharging the legal burden of proof shifted onto his shoulders, the 1st defendant has, in my view, succeeded in "overthrowing the conviction". That is all I need say despite the interesting arguments advanced by Mr. Yu on the two judgments in Stupple v. Royal Insurance Company, [1971] 1 Q.B.50.

9. I accept the evidence of the 1st defendant to the effect that he was indeed travelling in the lane close to the "gap", but I am not prepared to accept his evidence that from 6/7 car-lengths back from the traffic signal, it was green. The son-in-law's evidence was that he was starting to cross the northerly portion of Cheung Sha Wan Road when the pedestrian light was blinking. The police officer confirmed that the traffic lights and pedestrian lights were functioning in good co-ordination. On my earlier analysis, I find that the plaintiff was probably much further behind his son-in-law. There was no evidence as to the duration predetermined by the traffic police for the blinking period. There was, in fact, not even evidence that the traffic light facing the 1st defendant had any amber signal. The son-in-law was prefectly aware that he was to be followed by his father-in-law. He must have thought he was close behind. If the son-in-law had sensed any real danger for his family group including his father-in-law to cross, he would have stopped them. The son-in-law was wrong. His father-in-law was in fact further behind.The son-in-law did not specify as to when precisely, if at all, the blinking of the pedestrian light stopped. The plaintiff himself took no notice of the light. It is probable, and I so find, that as he was further behind his son-in-law, the plaintiff stepped onto the pedestrian crossing on the northern portion of Cheung Sha Wan Road just at the time when pedestrian light had turned against him. With good co-ordination between pedestrian lights and traffic signals in the direction of the 1st defedant, the 1st defendant, upon approaching the pedestrian crossing, mist have had, and I so find, the traffic lights just turning in his favour.

10. The 1st defendant had been using this stretch of the road for quite a long time and he was well aware, as borne out by his cross-examination, of the presence of this pedestrian crossing. With virtually no vision in front, due to lack of any or any sufficient illumination, in my view, the 1st defendant should have reduced the speed of his car. If we were to assume that the 1st defendant had then been travelling in daylight or a well-lit carriageway, he must have been able to see this old gentleman, the plaintiff, endeavouring to step onto the road at the time when traffic light was just switching to his, the 1st defendant's favour. The 1st defendant was about 2 seconds away calculated at 25 m.p.h., and some 2 seconds before the accident the son-in-law was probably in the middle of that portion of the road. In daylight or a well-lit area, the 1st defendant would have owed a duty of care to the plaintiff in that situation. With virtually no vision in front, it was all the more desirable for the plaintiff to have his 20 odd to 30 miles per hour speed reduced.

11. I find that the plaintiff was himself negligent in attempting to use and using the pedestrian crossing with light against him, but I also find the 1st defendant negligent in not reducing his speed in the circumstances. To do the best I could, I would place the blame as to 20% on the shoulders of the 1st defendant with 80% contributory negligence for the plaintiff. Consequently, the plaintiff is entitled to judgment against the 1st defendant in the sum of $36,000 bung one-fifth of the agreed quantum of $180,000. I award interest on $23,000 being one-fifth of the agreed $115,000 non-economic loss at 2% per annum from the service of the writ to the date of judgment and interest on $10,000 being one-fifth of the agreed $50,000 special damages at 7% per annum from the date of injury to the date of judgment. There shall be no order as to costs between the plaintiff and the 1st defendant.

12. I accept the evidence of the 1st defendant that the car was, at the material time, exclusively used for his own purposes not under the direction of his wife, the 2nd defendant. At the trial, that position had never been disputed. No extra costs would appear to have been incurred by way of preparation and conduct of these proceedings. In the circumstances, I also make no order as to costs as between the plaintiff and the 2nd defendant. The plaintiff's own costs is to be taxed in accordance with the Legal Aid (Scale of Fees) Regulations.

Representation:

Mr. Michael Poll instructed by D.L.A. for Plaintiff.

Mr. Dennis Yu instructed by Tai, Tang & Chong for 1st and 2nd Defendants.