Lee Kut Mui 0v. Cheung Tak Lung

HCA000794/1969

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

ACTION NO. 794 OF 1969

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Coram: G.G. Briggs, Puisne Judge

Date of Judgment: 8th October, 1971.

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JUDGMENT

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1. This is an action for damages for negligence arising out of an accident which occurred as long ago as November 7, 1967 in Choi Hung Road, Kowloon.

2. The Plaintiff was crossing this road at a pedestrian crossing when he was knocked down by a truck driven by the Defendant, receiving severe injuries to his head.

3. Where the accident occurred Choi Hung Road is straight. It is divided down the centre by railings. Each half of the road carries two lanes of traffic. 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 do so, to pass through the railings. There is no warning to traffic using the road that there is a pedestrian orossing at that point except for the gap in the railings and the studs on the road. And it is not a zebra crossing.

4. The Plaintiff in his evidence said that he was crossing from the pavement on the south side of Choi Hung Road to the north side of the road. He was making use of the pedestrian crossing. Until he reached the gap in the railings in the centre of the road, any traffic using the road at the time would be coming from the right hand side as he crossed. So soon as he passed the gap in the railings any traffic using the northern half of the road would be crossing from his left hand side.

5. The accident occurred at about half past one in the afternoon. The Plaintiff, who worked nearby, was on his way to a cooked food stall to have his lunch.

6. The Plaintiff said that the weather was fine and he was not hurrying. The pedestrian crossing was quite crowded with other pedestrians. And the traffic was very heavy. He said that he walked straight across behind other passengers, who were also using the crossing. When he reached the gap in the railings he looked from side to side. He then continued on his way across the second half of the road. When he had gone a few paces from the gap in the railings he was hit by a truck. He did not see the truck coming. He was rendered unconscious and only came to his senses after he had been admitted to hospital. The Plaintiff specifically said that he did not dash across the road. And that though cloudy, the weather was fine.

7. The Defendant told a very different story. At the time he was driving his truck down Choi Hung Road going towards the east. The gap in the railings in the centre of the road to which I have referred above was, therefore, to his right. He was in the right hand lane of traffic and his intention was to turn right a few yards further on from the pedestrian crossing, into Tai Yau Street where he was to pick up some goods.

8. The Defendant said that as he approached the pedestrian crossing he changed down into third gear. He was travelling at about 17 m.p.h. at the time. As he approached, no one was using the pedestrian crossing. He saw the Plaintiff step off the pavement on the south side of the road and run across the road on the crossing. He had his head down. He did not pause at the gap in the railings but went straight on and crashed into the right front headlight of his truck. He fell to the ground very close to the railings. The Defendant immediately stopped his truck and when stopped half of its length was still within the studded crossing.

9. The Defendant said that the traffic was light at the time. And it was raining. He said that he saw the Plaintiff start to run across the road before he, the Defendant, reached the pedestrian crossing. He was going very fast. The Defendant was going slowly and thought that the Plaintiff would stop at the gap in the railings to see if the coast was clear before crossing the second half of the road. But he did not. He went straight on, head down and so the accident occurred. The Defendant was not prosecuted.

10. It will be seen at once that the two versions of the accident are very different. I have no hesitation in accepting that of the Defendant in preference to that of the Plaintiff. I am not saying that the Plaintiff has tried to deceive the Court. But he received a sudden and severe injury and all this happened a long while ago. I think that what happened was that the Plaintiff hurried across the road passed the gap in the railings without making sure the road was clear and that this caused the collision.

11. A sketch map of the accident showing the position of the truck vis-a-vis the gap in the railings was exhibited. And this corroborates the Defendant's story. Also evidence was produced to show that Local Storm Signal No.3 was hoisted at the time and the weather report of the Royal Observatory showed that there was intermittent slight rain. Exactly the weather conditions deposed to by the Defendant. Finally, the Plaintiff admitted that he did not see the truck coming. It must have been almost if not quite on the studded crossing as he left the gap in the railings. If he had looked, as he said he did, he must have seen it. I don't think he did look. He was hurrying across the road to avoid the rain, took insufficient care and was caught by the truck.

12. The Road Traffic Legislation does not give priority to pedestrians using a studded crossing. Studded crossings are merely convenient places for pedestrians to cross the road. The Highway Code expressly states that before he crosses a road a pedestrian must make sure that the road is clear. When he reaches the centre of the road he must again make sure that the road is clear before he continues on his way. Indeed this is only common sense. A pedestrian must look in the direction of the oncoming traffic before he crosses. This the Plaintiff did not do.

13. I have anxiously considered whether the Defendant was guilty of any contributory negligence. I have come to the conclusion that no blame attaches to him.

14. In R. v. CHIANG SHU CHEONG⁽¹⁾ the Court stated that though a pedestrian has no priority at a studded crossing, motorists must be particularly careful when passing such a crossing. Hogan C.J. used these words (at page 599):-

"Common sense indicates that pedestrians are likely to cross the road at such points, consequently drivers should exercise particular care when approaching them so that they do not, through excessive speed or other misuse of the vehicle which they control - and it is a vehicle which can easily become a lethal instrument, endanger the lives or physical safety of others."

15. The Chief Justice then went on to say that if a driver sees persons actually crossing he might reasonably be expected to slow down or stop to enable them to pass.

16. In the present case the Defendant did see the Plaintiff crossing but he was crossing the other half of the road. He had not reached that part of the road down which the Defendant was driving. There were railings in the centre. Naturally the Defendant expected the Plaintiff to stop there to ensure that no traffic was coming and that it was safe to proceed. This he did not do. In these circumstances I do not see that any blame attaches to the Defendant.

17. In the circumstances there will be judgment for the Defendant with costs.

18. It is usual in these cases to state what the measure of damages would have been if the case had gone the other way.

19. At the time of the accident the Plaintiff was 50. He was employed in a wig factory and made between 12 and 15 dollars a day, working a seven day week. In addition he would earn $2.80 per day for allowances and would be eligible for certain bonus payments. He enjoyed good health.

20. The accident rendered him unconscious and it was found that he had a fractured skull. His left side became paralysed after admission to hospital. He was discharged one month after admission but had to continue as an out patient. He said that this continued for two years. Indeed he is still receiving certain treatment which takes the form of special exercises.

21. A Medical Board examined the Plaintiff on September 24, 1971. It was discovered that though the paralysis had recovered, he still has a residual weakness of his left leg. The Board assessed his permanent disability at 25%. The Plaintiff also said that he suffers from occasional headaches which result in fainting fits and that his memory has been impaired. A report from the Yaumatei Psychiatric Centre which was exhibited diagnosised his present condition as one of "post concussional syndrome with personality deterioration". In December 1968 the Neurosurglcal Unit of the Kwong Wah Hospital suggested that the Plaintiff should undergo an operation on his skull. But the Plaintiff declined.

22. The Plaintiff also told the Court that he had been unable to work since the accident. He had made at least one attempt to secure work at his old trade but had been unsuccessful.

23. Certain small amounts were claimed in the Statement of Claim as special damages. For example "about $100" was claimed as travelling expenses to and from the Hospital. In evidence the Plaintiff did not give a definite figure. He was equally unhelpful as to the other items claimed as special damage namely damage to clothing and special food. I would make no award under these headings since no loss has been proved.

24. Taking into consideration the findings of the Board and the Plaintiff's evidence including his claim for loss of earnings past and future and the pain and suffering he has undergone and will undergo, I would assess general damages in this case at $60,000. This would have been the sum I would have awarded if I had found for the Plaintiff.

25. As it is there will be judgment for the Defendant with costs.

Representation:

D. Chang (Samuel Soo & Co.) for Plaintiff

R. Mills-Owens (Deacons) for Defendant

Judgment read in Court

(1) 1962 HKLR 595