Wong Chi Chung v. Lee Yuk Cheung

HCA000001/1970

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

ACTION NO.1 OF 1970

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Coram: Briggs J. in Court

Date of Judgment: 14.11.70.

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JUDGMENT

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1. This is an action for damages for negligence arising out of an accident which occured on December 28th 1968 in Prince Edward Road Kowloon.

2. The Plaintiff was crossing this road at a pedestrian crossing when he was knocked down by a private car driven by the defendant, receiving injuries to his left leg. Where the accident occured, Prince Edward Road is quite straight. It is a wide road divided down the centre by iron railings which enclose some grass and shrubs. Each half of the road carries three lines of traffic. There was and is no speed limit on this part of the road with which we are concerned in this case. At the scene of the accident there is a pedestrian crossing which is marked with studs. There is a gap in the centre railings to enable pedestrians who wish to cross the road to pass. There are no signs warning motorists that there is a pedestrian crossing other than the studs in the road and the gap in the railings. And it is not a zebra crossing.

3. The Plaintiff is very familiar with this crossing, using it daily to go to and from his place of work to his home. On the day in question he was going to his place of work. He crossed the Southern half of Prince Edward Road to the gap in the centre using the pedestrian crossing to do so.

4. In his evidence the plaintiff said that he then intended to cross the second or Northern half of the road. On this portion of the road the traffic was flowing from the plaintiff's left hand side. He said he looked to his left and - in his own words - "saw a bus coming in the very far distance". He also saw other private cars coming. There were about seven or eight other persons crossing immediately in front of or alongside of the plaintiff. The bus was going very slowly and he had the impression it had slowed down. Suddenly a whitish private car, which we now know to have been driven by the defendant, came from behind and alongside the bus and ran into him. It was being driven at least at 35 miles per hour. He said he first saw this vehicle when it was 30 yards away. When he saw it he tried to walk more quickly so as to avoid it. But in vain. He was struck, rendered unconscious and did not regain consciousness until he was in hospital. He said it had been raining and the surface of the road was wet. It was at about 7.50 a.m.

5. When the police arrived at the scene some 40 minutes later, a plan of the area was made. This was exhibited and shows the position of the defendants car and certain skid marks. The plan also bears certain measurements made at the time. The plaintiff in the witness box marked the place where he first saw the defendants car and the point of impact. The former he put as being in the centre of the outside or fast lane in the middle of the pedestrian crossing. The Latter a few paces inside the centre lane of traffic from the centre of the road. The crossing is 12' 3" wide and the whole width of the three lanes of traffic, i.e. half the traffic space of the road at that point, is 35 feet. The skid marks were 46 - 47 feet and commence a few feet before the crossing is reached. They start in the outside lane but appear to have run partially in the centre lane as though the defendant's car had slightly swerved to his left. The car came to rest in the centre lane but covering the line drawn between the outside lane and the centre lane.

6. In cross-examination the plaintiff said that when he looked before he crossed all three lanes had traffic in them; that the defendant's car came from behind the bus which he saw travelling in the centre lane. And it was paralled with the bus that is, the front of the defendant's car was about level with the middle of the bus. He went on to say that the bus slowed down to let him and the persons he was walking with to pass in front. But the car did not, it continued on its way and ran into him. He was hit by the centre of the front bumper of the car. He said he heard no horn.

7. In cases of this nature one of the most difficult points to get from witnesses is estimates of distances and speed. The plaintiff is very familiar with cars because he works as a motor mechanic. But he referred to the bus as being far away, very far away, and finally as 22 yards away. The figure he gave being one and a half times the length of this court.

8. The defendant gave a very different version of the accident. He said he was very familiar with that part of the road. He was travelling on the day in question at about 35 miles per hour. The surface of the road was wet. He was travelling in 3rd gear, his car having 4 forward gears and was in the lane nearest to the centre of the road, the outside or fast lane. Just as he passed the pedestrian crossing the plaintiff ran out into his path. He braked using his foot and his hand brakes and he sounded his horn, using his right elbow to do so. He could not avoid the accident. He said there were no other pedestrians on the road. He was not in the centre lane of traffic and did not come round or overtake a bus. He said he struck the plaintiff when the latter was in the outside lane and not when he was in the centre lane as the plaintiff would have it.

9. As a result of the impact the plaintiff landed in the centre lane. The defendant helped him to the Ordnance Depot which is situated near by and from there an ambulance and the police were summoned.

10. He did not move his car before the arrival of the police and he assisted the policeman in making certain measurements. He gave a statement to the police of what occured, which does not substantially differ from his evidence in the witness box.

11. In cross-examination the defendant was asked why he did not swerve so as to avoid the plaintiff. He said that there were passengers waiting to cross at the gap in the railings in the centre of the road and he thought if he had swerved to the right he might have run into them. There were no vehicles in front nor to his left. Some passengers had crossed already but there were none crossing except the plaintiff. He first saw the plaintiff when he was 3 - 5 feet away from him. It would not have helped had he swerved to his left.

12. It will be seen that the stories of the two protagonists differ considerably. I will say at once that where they conflict I much prefer the version of the defendant to that of the Plaintiff. I am not saying that the plaintiff deliberately told a pack of lies : nothing of the sort. But he received a very considerable shock and cannot be expected to remember with accuracy what occured so long ago. Also I found that his evidence as to distance and time was variable.

13. The version of the defendant tallies with the statement he gave to the police immediately after the occurance. It also tallies with the sketch plan. This shows that he applied his brakes before but only a very short time before he crossed the studs of the pedestrians crossing. This is consistent with his having only seen the plaintiff as he emerged from the centre into the outside lane.

14. The defendant stated that he did not know that there was a pedestrian crossing at that point. However he admitted that he was "very familiar" with the road that he knew of the gap in the railings and could see it : that he saw persons cross the road at that part as he came up to it and that he also saw that there were people waiting to cross at his right.

15. Road Traffic Legislation does not place a studded pedestrian crossing in a special category. But there is authority for stating that motorists must be particularly careful when passing such a crossing. [See the remarks of Hogan C.J. in Chiang Shu Cheong V.R. 1962 HKLR 595]. I will say at once that I cannot believe in the circumstances of this case that the defendant did not know that there was a regular pedestrian crossing at that point. His familiarity with the road would make him realise that a gap in the centre of the railings can only mean that there is a regular pedestrian crossing at that place.

16. Accepting that, counsel for the plaintiff urged that the defendant was negligent is travelling at such a high speed. I regret that I am unable to agree with this. The road is obviously a main traffic way and there was no speed limit in force. It is in fact a fast road, a road meant for reasonable speedy travelling. The evidence is that the defendant was traveling at 35 miles per hour. I am not prepared to hold that that speed was unreasonable in the circumstances and that therefore the defendant was negligent. It is a straight road with a clear and open view.

17. To sum up I reject the version of the accident given by the plaintiff and accept the version given by the defendant with the reservation I have mentioned above. The plaintiff has not satisfied me that the defendant was negligent.

18. There will be judgment for the defendant with costs. The costs of the plaintiff are to be taxed in accordance with the Legal Aid Regulations.

19. Order for payment to Defendant of money paid into Court by the Defendant.

Representation:

Ming Huang (David K.W. Tsang & Co.) for Plaintiff

Ronald Arculli (Deacons) for Defendant

Judgment read in Court