Wong Shing Yee v. H.K. Chiap Mfy 1947 Co Ltd and Another

HCA002210/1980

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

ACTION NO. 2210 OF 1980

-----------------

-----------------

Coram: Penlington, J. in Court

Date of Judgment: 19 January 1981

-----------------

JUDGMENT

-----------------

1. The plaintiff in this matter lives at Flat B, 17th floor, 79 Village Road, Happy Valley, that is on the eastern side of Village Road. On the 16th December 1978 she was then 7 years and had been to see her father who was at that time a patient in the Hong Kong Sanatorium in Happy Valley. That Sanatorium is situated on the western side of Village Road. She was accompanied on this visit by her family amah and her young sister.

2. When she came to cross Village Road on her way home the plaintiff found that there was a double line of Public Light Buses parked on the western side of the road. That was apparently the normal practice on race days and it has continued up to the present time. Photographs were not taken on the day in question but photographs have been produced which were not taken on a recent race day and it is agreed between the parties that these depict the scene as it must have been on the 16th December 1978. These photographs quite clearly show that the Public Light Buses were parked very close together and that the gap between the outside line of Public Light Buses and the eastern pavement of the road was quite narrow. I am satisfied from these that if a large car such as the one which it is agreed was driven by the 2nd defendant on that day, was to travel down Village Road with the double line of Public Light Buses parked as they were, there would be only a narrow space between side of the car, the Public Light Buses on one side and the pavement on the other. It is not in dispute that there is no pedestrian crossing in the vicinity where the plaintiff attempted to cross the road.

3. The plaintiff said that she was walking ahead of her amah who was carrying her young sister and she attempted to cross the road approximately opposite to her own flat where there was a space between two of the public light buses. She said she walked across the road and did not run as she was not in a hurry. She did not look to see if there was any traffic coming from her right, but she listened and did not hear any noise. She did not look to see if any vehicle was coming as she was afraid if she did so her head would be hit. She said she had taken one step out from the line of public light buses when she was hit. People then shouted to the driver that he had knocked somebody down and in fact it was her foot which was run over by the vehicle. She said that several people in the vicinity lifted up the front of the car and one person pulled her foot out. A policeman then arrived and carried her into the Hong Kong Sanatorium where she was treated and she was in fact admitted into the hospital for a period of approximately one month. Evidence was given by a police constable, CHAN Loi-fook, who said that he arrived shortly after the incident and he prepared a sketch which has been produced. It seems from this that the width of Village Road at this particular point is 8.2 meters which is equivalent of 26.8 feet, including parking spaces on both sides of the road. He said that on race days public light buses were allowed to double-park in the road by special arrangement. He agreed that the public light buses are parked close together on race days and not on the designated parking spaces.

4. Evidence was also given by a Sergeant of Police, Mr. TO Chi-yin, who arrived very shortly after the accident and found that the left front wheel of the car driven by the 2nd defendant was actually on the foot of the plaintiff. He said he shouted to the driver not to move but that the car suddenly reversed about 2 feet. He saw one public light bus driver who was supporting the girl's shoulder and that when the car was reversed, the plaintiff's foot was clear of the wheel. He saw that she was injured and he took her to hospital for treatment. He said that the car driven by the 2nd defendant was a Cadillac and was very wide. A photograph has been produced, D1, which shows the car in question and it is quite clearly a very large car indeed. That was the evidence given for the plaintiff on the question of liability.

5. The second defendant gave evidence and said that he was a chauffeur employed by the first defendant. He had been driving for 44 years and this was the first accident that he had had. He said he had been waiting at the Southern Garage until it was time to go to the race course to collect his employer. He said he went down Village Road but had plenty of time and was in no hurry. There is no allegation that he was travelling at an excessive speed and I am satisfied from the evidence of the accident itself that he must have been travelling very slowly. He said that when he got near the Hong Kong Sanatorium the plaintiff dashed out between two parked public light buses. She put out her hands to push against the mudguard of the car and she then sat down on the road. I accept his evidence that the car did not actually strike the plaintiff. There is certainly no medical evidence of any other injury to the plaintiff apart from the injury to her foot which I am satisfied was caused by the left front wheel of the 2nd defendant's car went over her foot and, unfortunately as it turned out, the 2nd defendant applied his brakes. If he had not braked it may well be the injury would have been much less severe than it was but I do not think he can be blamed for doing something which the ordinary person would certainly have done in the heat of the moment. The 2nd defendant said that after he braked he stopped, applied his hand brake, and went round to see what happened. He said some public light bus drivers tried to get the girl out but could not as her trousers were caught. He was told to reverse his car a few inches and he did so. A policeman then came and took the girl to hospital.

6. It was put to the 2nd defendant in cross examination that he should have driven closer to the right hand side of the road to which he agreed. He did, however, say that there were pedestrians on the right hand side of the pavement and he went down the middle of the available space between the pavement and the parked public light buses. It was put to him again that it was dangerous to reverse his vehicle without knowing exactly where the girl's leg was. Again he agreed with that but said that he was only doing what he was told by his fellow drivers, i.e. the public light bus drivers. I am satisfied in fact that the injury to the plaintiff's leg was not caused by this reversing and that in fact the reversing was necessary in order to free her leg.

7. The particulars of negligence contained in the Statement of Claim read as follows:-

8. I am amazed that any firm of solicitors could file a statement of claim containing such particulars. Counsel for the plaintiff made an application, after her evidence had been given, for leave to amend these particulars by adding a fourth paragraph alleging that the second defendant drove too close to the line of parked public light buses. Counsel for the defendant objected to this amendment being made at that stage, and I refused leave to so amend. However, badly drawn as they are, I think the particulars of negligence are sufficiently wide to include the allegation of driving too close to the public light buses and I have considered the matter on that basis.

9. I am satisfied that the plaintiff emerged between two public light buses which were double parked in Village Road close together. I am satisfied that she did not look to see if there was any traffic approaching. I am satisfied that the 2nd defendant was driving at a slow speed and was in the middle of the available space. I am satisfied that the plaintiff in effect ran into his car and that he did not actually strike her. The plaintiff then tried to push away from the car, slipped and sat down on the road whereby her foot was caught beneath the left hand front wheel. It seems to me that the only ground upon which the plaintiff can say that the defendant was negligent was that he should have kept further away from the double line of public light buses. On the basis that he could reasonably expect that there was a danger that somebody might emerge from between those public light buses and he would be unable to avoid hitting them. In Moore v. Poyner ⁽¹⁾ the question was whether a driver driving at the maximum speed allowed in the area was negligent in passing a large coach without reducing speed or sounding his horn. It was held that he was not so negligent. MacKenna, J. said at page 134:

10. Here I am satisfied the plaintiff did step out from behind a stationary vehicle under circumstances where the 2nd defendant could not have avoided her even though he was travelling at a very slow speed. The 2nd defendant was faced with a situation where the public light buses had been allowed to double park leaving a narrow space between them and the opposite pavement. The Police on duty did not close the road to traffic. He drove his car at a slow speed along the middle of the available space bearing in mind that there were pedestrians of the eastern pavement. He agreed that he could have driven closer to that pavement and that it was submitted amounted to an acknowledgment of negligence. I do not think it was. No doubt he could have gone closer to the eastern pavement but this would have created a hazard to any pedestrian who stepped off the pavement - as pedestrians often do if it was crowded.

11. I am satisfied that the 2nd defendant was not negligent in the way he drove down Village Road on the 16th of December 1978 and the plaintiff's claim must fail. It seems to me that if there was any fault it lay with the plaintiff and with those who allowed traffic to continue down Village Road with the public light buses parked as they were.

12. Obviously one must have very sincere sympathy for the plaintiff child who has suffered severe injuries but as the law now stands she cannot succeed in this sort of action unless she can prove that the defendant was negligent and I do not consider that she has done so. The defendants are entitled to their costs.

Representation:

Mr. Wally Yeung instructed by H.H. Lau for plaintiff

Mr. Ruy Barrato instructed by Fairbairn & Kwok for defendants

(1) [1975] Road Traffic Reports 127