Lam Kin Ping v. Tsang Kam Cheong

HCPI001458/2000

HCPI 1458/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1458 OF 2000

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Coram: Hon. Seagroatt, J. in Court.

Dates of Hearing: 9 - 10 May 2002

Date of Judgment: 16 May 2002

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J U D G M E N T

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1.On 9 December 1997 shortly after 2 o'clock in the afternoon, the Plaintiff in this action, a 7-year-old school girl, was attempting to cross the eastbound carriageway of the Sha Tsui Road, at or near its junction with Chung On Street, when she was struck by the Defendant's Nissan Diesel heavy goods lorry and sustained serious injuries.

2.She was using a pedestrian crossing which is clearly marked by yellow stripes and the junction itself is controlled by traffic lights for all approaches. The eastbound carriageway is divided into two lanes, as is the opposite carriageway. This is a heavily built-up area with substantial pedestrian and motor traffic. There are pedestrian crossings on all four sides of the junction. The more minor of the two roads, Chung On Street, carries one way traffic towards Yeung Uk Road, and is divided into two lanes.

3.For eastbound traffic in the direction of Texaco Road there is a white stop line some 2.1 metres short of the commencement of the pedestrian crossing area. The crossing area itself is some 5.2 metres wide. Beyond the crossing area is a distance of some 8 metres before the large yellow hatched area in the middle of the junction, which is meant to inhibit traffic from entering unless the exit either on the other side of the junction or into Chung On Street is clear. The purpose of the inhibition as all motorists ought to know, though very many in fact do not appear to know, is to prevent the centre of the junction being blocked by stationary traffic when the traffic lights and the flow of traffic change.

4.This was a bright, dry afternoon as can be seen from the photographs taken soon after the event. Some shadows are cast by the high buildings. For traffic proceeding along Sha Tsui Road in the outer lane towards Texaco Road there is the benefit of a filter light which allows it to proceed to turn right into Chung On Street whilst the traffic coming from the opposite direction, on the westbound carriageway, is subject to a red light. However it is entitled to proceed and turn right only if it is safe to do so. Of particular relevance is the existence of the pedestrian crossing to which such traffic must have regard. There are no obstructions to a clear view of pedestrian traffic using the crossing from both sides of the road.

5.The Plaintiff was crossing the road from the north side of the Sha Tsui Road on the bottom of the plan as one views it i.e. from the Emperor Plaza side or corner, as can also clearly be seen in photographs 3 and 5. She was going towards Yat Hing Supermarket which is also marked on the plan. She made a written statement to a Police Officer on 25 January 1998, some three months after the event. She was still in hospital at that time having undergone a number of operations for her extensive injuries.

6.In that statement she described waiting on the pavement outside Emperor Plaza with other pedestrians. When the pedestrian light changed from red to green all the pedestrians moved off to cross and she was the last. She had crossed the first lane, on which she recalled traffic on her right had stopped. The pedestrian light was still green. The other pedestrians had reached the opposite carriageway when she was knocked down by what she described as a dumper truck.

7.Before turning to any other evidence it is important to see the situation as viewed by the Police Officer who made a sketch plan at the scene and later prepared a scale plan. He found the Defendant's lorry positioned in the hatched box area in the middle of the junction, diagonally, as if in due course to enter Chung On Street which was in fact its destination. The lorry is 7.2 metres long and 2.5 metres wide.

8.Another marking on the road of relevance is the box in which a vehicle waiting to make the right turn is to wait. Its outer limits are delineated by a white painted line on the road surface. The front of the box is marked by two parallel broken white lines. Within the box is an arrow sharply angled to indicate that it is designated for right-turning traffic. The officer found on the road surface within that box a blood stain. Its extent can clearly be seen in the photograph on page 102. Its position is towards the rear of the box and slightly to the left of a notional centre line. The juxtaposition of the lorry's stationary position and of the box in which it had been at some stage and the blood stain, shows clearly in my view, as a matter of irresistible inference, that the lorry had passed over the Plaintiff's prone body at some stage. It must have been prone then, otherwise she would have suffered severe, and probably fatal head injuries. For the moment I will leave the post-accident picture and return to the Plaintiff's evidence.

9.The Defendant was prosecuted for an offence of careless driving. The summons was dismissed. For reasons which will become apparent later he was extremely fortunate to escape conviction. The Plaintiff, then aged nearly eight years, gave evidence. Those proceedings took place almost one year after the accident. It is important to bear in mind that virtually throughout the proceedings, the Magistrate, an extremely experienced one, was at pains to persuade the Court Prosecutor to ask simple and intelligible questions so that the witnesses could give evidence satisfactorily. The exchanges between the Bench and the Prosecutor indicated the difficulties of the task and at times the witnesses must have been left wondering what was going on. For a barely eight-year-old girl who had suffered a traumatic and painful experience it must have been extremely difficult and, perhaps for all witnesses, somewhat confusing.

10.The Plaintiff recalled that when she was waiting at the crossing outside Emperor Plaza there were other pedestrians on her left hand side but could not recall if there were pedestrians in front of her. When the pedestrian light changed to green the pedestrians on her left walked first and she was the last in the group. They were all bigger than her. Vehicles on her right were stationary. There were two of them, one was red and the other was yellow. It became clear that the red vehicle was in the nearside lane and that the yellow vehicle was that of the Defendant and therefore on the outside lane. She was concentrating on the red vehicle as she crossed. When she was knocked down by the yellow vehicle the pedestrians ahead of her were already crossing the other carriageway. She illustrated their position by reference to a diagram prepared by the Magistrate. She recalled the lights still being green in her favour whilst she was crossing. She was unable to recall the pace at which she was crossing.

11.When she gave evidence at this hearing she gave me the impression of being more inhibited than she had been three and a half years ago, although we all tried to make the environment less formal. There may well be a number of reasons for this not the least being a certain nervousness at having to recall events which I am sure she would rather forget. Nonetheless, although she was barely audible and for the most part relied on movements of her head to indicate "yes" or "no", there was consistency in her evidence for the most part, and in essentials.

12.Aided by the use of some models helpfully provided by her counsel, she demonstrated a number of stages in her attempted crossing of the carriageway, and the positions of the two leading vehicles in the lanes of that carriageway. She reiterated that initially the signal for pedestrians was red against her and that there were a number of adult pedestrians ahead of her whom she followed when the light changed to green in their favour. She was not, understandably, able to estimate their number. She was the last to cross the road.

13.She was struck by the yellow lorry when she was over half way across the carriageway. Prior to crossing she was standing well back from the pavement edge or kerb, being closer to the Emperor Plaza building. This I can well understand. A child of that age, on her own, and perhaps somewhat overawed by the height and mass of adult pedestrians may well have felt more comfortable in a position separated from it and to its rear. Although it is difficult to decide how much reliance can be placed on it, her estimate of the gap between her and the rear of the group was approximately 5 to 6 feet, by reference to a fixed point in the courtroom. At the time that she was struck by the truck in the outside lane, the preceding group of pedestrians had reached a position covering the central area between the two carriageways and the early part of the pedestrian crossing on the opposite carriageway. At no stage during her journey did she accept that the pedestrian light had changed to red. It is of course not reasonable to expect that she would have her vision fixed upon the pedestrian light throughout her journey. As she indicated she paid attention to the two vehicles on her right, stationary, before the crossing. A young child is more likely than not to be preoccupied with the presence of large vehicles or even ones of regular size, to ensure that they are not going to move whilst she (or he) is crossing. One can easily recall or imagine the firmer grip of a young child on a parental hand indicating a degree of apprehension lest a vehicle move. Sometimes young children of this Plaintiff's then age, need to be encouraged to cross even when the pedestrian light is clearly in its favour.

14.There was an independent witness of a significant part of what occurred that afternoon. He made a statement to the Police on either the 21 or 31 December 1997, i.e. approximately two or three weeks later. He is Mr Cheung Kin-cheung.

15.He was driving a light goods van along the Sha Tsui Road in the direction of Texaco Road, that is, on the eastbound carriageway travelling in the same direction as the Defendant. He was in the outer lane and intended to turn right into Chung On Street, at the junction. As he approached the junction the traffic lights controlling it for his traffic were showing red. Ahead of him, also in the outer lane, was the Defendant's dumper truck or lorry. On the inner lane were vehicles stopping. He described seeing the traffic lights change from red to red and amber, and then green. The vehicle ahead of him, the Defendant's dumper truck, started "quite promptly", and went past the pedestrian crossing into the arrowed (box) section. He then saw a person lying behind the dumper truck near the end of the right turn arrow. It was clear to him that the driver (the Defendant) was unaware of what had happened because Mr Cheung sounded his horn and shouted to three Police Officers in uniform to get them to stop the truck. They must have acted quickly because the Defendant's vehicle came to a halt inside the yellow hatched box area.

16.Because the range of his view was blocked by the size of the dumper truck he was unable to see if anyone was on the crossing or if there were any pedestrians on his left at the crossing or on his right on the central reservation. He described the dumper truck as moving forwards quite fast. It had already reached the right turn arrow on the road surface by the time his own vehicle had just started to move forward.

17.He also gave evidence at the Magistrates Court proceedings. This was consistent with the contents of his Police Statement although inevitably with circuitous and imprecise examination and cross-examination, it became more extensive. Some of the questions, with the necessary interruptions and corrections from the Magistrate, were nonetheless, confusing. It is also apparent that the Magistrate was himself somewhat confused. Both lanes on the Sha Tsui Road eastbound were for traffic intending to continue but the traffic intending to turn right should be in the outside lane and awaiting a filter light. The Magistrate mistakenly thought that only the inner lane was for traffic continuing ahead towards Texaco Road.

18.Mr Cheung appeared to be saying that whilst he was stationary in the outer lane behind the truck, traffic was moving in the inside lane and then at a later stage following a further series of exchanges between the Magistrate and the prosecutor he said that there were no vehicles stopped on the inner lane at the moment he stopped. That may not be an inconsistency because at the time he stopped or was in the act of stopping there may have been, as his first answer indicated, traffic on his nearside moving up to the stop line on the inner lane. Given the nature of this junction in a very busy area, it would indeed be surprising if there had been no traffic moving in the inner lane up to the stop line, intending, at the appropriate time, to continue ahead. The sentence in his Police Statement makes far more sense and is more reliable than a few slightly confusing or confused answers in the context of a tripartite exchange of questions, clarifications, modified questions and answers. At a later stage he was asked to draw on a plan the position of the Plaintiff, when he first saw her. He put her on the crossing. I suspect the surprise and shock of seeing her after the dumper truck moved into the yellow central block has foreshortened his view of the scene at that stage. It is common ground that she was found in the position close to where the blood mark is shown. He did not give evidence at this trial, both parties relying on his Police Statement and evidence in the Magistrate's Court.

19.The Defendant made a written statement to the Police on the day of the accident. Much of it is consistent with that of the independent witness, Mr Cheung. He states that he reached the junction and the lights were then showing red against him. There was a light goods vehicle stopped in front of him. It was his intention to turn right into Chung On Street. When the traffic signal changed to green, permitting vehicles intending to continue directly ahead, both the preceding light goods vehicle and he moved off. He did not say whether the light goods vehicle ahead of him continued straight on towards Texaco Road or turned into Chung On Street. He described his own speed when he moved forwards as about 5 to 10 k.p.h.

20.The next part of his statement is of significance and I quote it directly from the certified translation:

"I heard a loud noise (a loud snap) [from the] nearside front when the light goods vehicle in front had driven past the pedestrian crossing. ... At that time my vehicle was still moving forward."

This possibly means that his vehicle was on the crossing when he heard the noise. He confirmed later to the questioning Police Officer that he did not stop immediately because he thought that the noise was similar to that produced by his wheel running over cartons. Instead he continued turning to his right and on looking through his rear view mirror saw a child lying in the outer lane to the rear of his vehicle. In fact he would not have been able to see the Plaintiff until he had reached the hatched box in the centre of the junction because he would have had to clear substantially the length of his vehicle in order for his mirror to provide him with that view. Even then it would most probably have been his offside mirror that provided such a view - if he in fact saw anything to the rear before he was stopped by a Police Officer. Of some surprise is his answer to the question:

"Do you know which part of your vehicle struck that girl?"

He replied:

"The nearside front of my vehicle struck that girl."

Since he thought that his wheels had merely run over cartons, and he says that he had not seen the Plaintiff until he looked through his rear view mirror and saw her lying in the road to the rear of his lorry, it is difficult to understand how he can assert that the nearside front of his vehicle struck the girl.

21.The Defendant was called to give evidence in the Magistrates Court. His version of events was similar to that given in his Police Statement save that he stated that the preceding light goods van turned right into Chung On Street. At this stage of his evidence there was some confusion as to whether only the light ahead was showing green or whether the right-turning filter light was also green. He went forward to follow the van after it had moved about two metres ahead. At that stage it appeared that he was saying that the filter light came on and the van continued with his lorry following. About that time he heard a "break" sound, described as "pak". He also referred to feeling a vague bump. He described it as coming from the nearside front bumper of his lorry. He then said that he applied the brake slowly. He looked in his side mirror and saw the girl lying on the ground to the left of his vehicle at the rear. It is quite clear that, having felt or heard a bump in the position described, he did not brake immediately, a strange lack of reaction in the light of what he said he heard or felt. He stopped at once only on seeing the prone figure of the young girl.

22.He was questioned on a highly material point only at the end of his cross-examination, and that related to pedestrian traffic. Whilst he was stationary at the red light pedestrians were crossing the road. When he started off there were no pedestrians actually crossing but there were some on the nearside pavement.

23.I now come to his evidence in this trial. Firstly I must make due allowance for the fact that almost 4 1/2 years have elapsed since the event and that undoubtedly he must feel a sense of responsibility by reason of the mere fact of the nature of the injuries to a young girl who had been knocked down by his lorry.

24.This showed a significant variation from what he had said earlier. He now said that the preceding van moved off when the light changed from red to green and he followed. It then stopped in the right turn box waiting for the filter light to show green, and he stopped three feet behind it. All the inside lane traffic had moved forward and on.

25.When the filter light came on the light goods van moved off out of the box. He then checked his mirrors and moved forward too. As he did so he heard a "pak" sound. He checked his mirror again and saw a small girl lying on the ground. He then braked and got out of his cab. If one looks at the scale plan and relevant measurements one can see the effect of what he is now saying. The length of his lorry is 7.2 metres. The distance from the white stop line to the eastbound edge of the pedestrian crossing is about 7.3 metres. The distance between that eastbound edge of the crossing and the blood stain positioned to the rear of the right turning box is approximately 2.6 metres.

26.Applying those measurements to his evidence means that at the time that he was caused to stop about 3 metres behind the light goods van his lorry was blocking the whole of the pedestrian crossing. The other inference to be drawn from what he was saying is that his lorry came into contact with the Plaintiff when she was about one metre or so off the crossing on the eastbound side of it.

27.I do not believe his evidence. This is a belated contrived story to suggest that the Plaintiff was not using the crossing but was trying to pass in front of him in that area to the east of the crossing and the west of the hatched junction box. The implication of this is that he would probably not have been aware of her presence.

28.The sequence and timing of the phases of the traffic lights are obviously of consequence in the case particularly in view of the Plaintiff's evidence. The agreed evidence in relation to this is at page 158 of the trial bundle. Regrettably it is far from clear in its content and the phasing is better explained in the transcript of evidence (PP. 72 - 73). For the eastbound traffic on the Sha Tsui Road there is a red phase lasting 47 seconds followed by red and amber for 2 seconds. There is then a green phase for 28 seconds with the filter green light showing after 19 seconds and lasting for 9 seconds. For pedestrians crossing from the Emperor Plaza side to the Yat Hing Supermarket side there is a 37 seconds green phase followed by a 6 seconds phase of the flashing green man.

29.The final area of evidence of relevance is what may loosely be described at the forensic evidence relating to contact by the Plaintiff with the Defendant's lorry. Black paint found on the Plaintiff's overcoat matches the black paint on the lorry's front bumper. Plastic pink fibres recovered from the lorry's nearside second axle brake drum casing matched the material of which the Plaintiff's school bag was composed. I regard this as overwhelming evidence that the front bumper of the Defendant's lorry struck the Plaintiff and that her school bag which was on her shoulders came into contact with the nearside wheels on the inner side as the lorry passed over her. The position in which she was found and the site of the blood stain, towards the rear of the arrowed right turn box, clearly support this.

Conclusion

30.I am satisfied that the Plaintiff was actually on the pedestrian crossing when she was struck by the Defendant's lorry. She was knocked over by the front bumper and dragged forward as the lorry proceeded into the right turn box.

31.When she started to cross the road the pedestrian light was green in her favour. She was a little way behind the bulk of pedestrians which had crossed first and reached the safety of the central area between the two carriageways. I accept her evidence that as she started to cross there was a red vehicle in the nearside lane stationary in compliance with a red light which was showing for eastbound traffic in Sha Tsui Road. This is consistent with the evidence of Mr Cheung who was aware of traffic moving in the nearside lane as he approached the junction in the outside lane behind the Defendant's lorry. The fact that a red light controlled him and other traffic in that road meant that a green pedestrian light permitted pedestrians to use the crossing.

32.I am equally satisfied, and accept her evidence, that the yellow lorry headed any traffic in the outer lane and I reject the Defendant's story of a light goods van being in the outer lane ahead of him at the traffic lights.

33.Mr Cheung's evidence that the Defendant's lorry started quickly and fast is consistent with the Defendant moving off sharply from the stop line. Although Mr Cheung would have been prevented from having a clear view of the situation immediately in front of the Defendant's lorry, he would have a clear idea of the position of traffic in relation to the stop line, and as he approached the junction. Had there been a van stopped ahead of the Defendant he would have been aware of that.

34.Since the Plaintiff moved across the pavement at some distance behind the preceding bulk of pedestrians, it is likely that the green pedestrian light would have been showing for some seconds by the time she crossed the pavement from outside the Emperor Plaza and stepped onto the crossing. I think it highly likely that the "green man" pedestrian light started to blink on and off as she started to cross. The crossing is about 8 metres long and she was about 2 metres or so to the rear of the other pedestrians. Sad it is that no adult had the good sense or reasonable concern to take a 7-year-old child by the hand to protect her crossing.

35.I am equally satisfied that such was the eagerness of the Defendant to get as many loads as he could that afternoon that he almost jumped the lights. I have concluded that he started quickly as red and amber came on - it has only a 2 seconds phase - and Mr Cheung became aware of the lights when the green phase had started. At that stage the Plaintiff was on the crossing. The Defendant did not see her. He ought to have done so. There was nothing to impede his vision. He could move his upper body forwards and sideways in his cab to extend his range of view. If there were severe limitations on his range of vision by reason of the height of the cab and his position he must have been aware of them and checked accordingly. The number and angle of the external mirrors cannot be expected to compensate for all areas of limited vision or visibility. The photographs taken from inside his cab are valueless.

36.His eagerness to proceed and get into a position to cross in to Chung On Street was his overriding preoccupation, and on this occasion, he paid no regard to anyone else who might legitimately be on the pedestrian crossing, a failure all too often exemplified by motorists in the streets of Hong Kong. It cannot be said too often that motorists must accord precedence to pedestrians who are using a crossing. Some pedestrians are slower than others, some stop or hesitate, some drop things as they cross or get stuck if they are pushing a pram. Other are understandably nervous. The mere fact that lights change when they are in the process of crossing does not entitle traffic, in whose favour the lights have changed, to carry on regardless. They can do so only if they have properly checked to ensure that by so doing they are not impeding or endangering such pedestrians.

37.Is there any contributory negligence? This Plaintiff was 7 years of age. I have already pointed out that it is a sad commentary on the sense of responsibility of a number of pedestrians that she was left to her own judgment and company in crossing. I am far from saying that contributory negligence cannot be proved against a child of such tender years but the circumstances to support it would need to be clear-cut and powerfully convincing. Such circumstances or evidence are totally lacking in this case. She was entitled to cross. Other traffic was stationary. The Defendant was patently negligent. He ought to have seen her. She had the right of way when she was on the crossing albeit with the lights changing at some stage of her journey. The Defendant was wholly responsible for the accident.

38.There will be judgment for the Plaintiff with costs, for damages to be assessed.

Representation:

Miss Corinne Remedios, instructed by the Director of Legal Aid, for the Plaintiff.

Miss Josephine Pinto, instructed by Messrs Tang & So, for the Defendant.