Chan Yuk Lan v. Li Kam Wa and Another

HCA002486/1978

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Coram: Mr. Commissioner Liu, Q.C. in Court.

Date of Judgment: 9 February 1980

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JUDGMENT

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1. On the 28th September, 1976, at or about quarter to nine, while crossing Tokwawan Road along a studded-area, the plaintiff was knocked down and injured by a car driven by the 1st defendant as agent and servant of the 2nd defendant. Vicarious liability is admitted. Quantum has been agreed at $350,000 inclusive of allowable interests. Liability is disputed.

2. At the time of the accident, a single-decker bus was travelling alongside the defendant driver's car. The bus driver was endeavouring to piece together the facts in the traffic accident as a bystander and from his memory dating back to a time well over three years in the past. The driver defendant has not been called. The Plaintiff has suffered brain damage, and understandably her evidence leaves much to be desired. However, it must not be overlooked that it is for the plaintiff to prove the alleged negligence of the 1st defendant and through whom the admitted vicarious liability of the 2nd defendant. It is on such evidence that the Court was invited to reconstruct the tragic occurrence which led to the serious injuries of the plaintiff's.

3. The plaintiff herself gave evidence, but the nature of her testimony casts doubt on the accuracy of her recollection which seems to have been much aided by recent suggestions. She told the Court that she dutifully observed all the basic rules before she attempted to cross Tokwawan Road along the studded-crossing. She was suffering from some slight pain in her abdomen, but she claimed that she did look to her right and saw all the traffic halt before a set of distant traffic lights and that with a green pedestrian signal in her favour, she embarked on her fateful journey which resulted in an accident. She testified that she walked in quick pace and crossed alone and that she never noticed the bus on her right moving.

4. Evidence from Mr. Lau, the police officer responsible for the sketch of the scene of the accident, established that at the time of the accident in September 1976, there was no pedestrian crossing signal light installed anywhere at that road junction.

5. The plaintiff denied that she had made the journey back to the scene of the accident in recent time or after the accident for refreshing her memory. At one time in her evidence, the plaintiff seemed to refer to two lanes of traffic, but in her statement given to Sergeant Mak, PW1, soon after the accident, reference was made to an inside lane, a middle lane and a fast lane. She could advance no reason for the other pedestrians not crossing the road at the same time as she did.

6. The bus driver, Mr. Chan, DW1, was called by the defendants. He explained that it was a busy intersection and that pedestrians would be expected to cross Tokwawan Road along the studs at any time. Bearing in mind that pedestrian crossing signal had not been installed, his observation rings true. There appears a sign for "Traffic Black Spot" right in the middle safety island within the studded-crossing in photograph "Pl (1)", but Mr. Lau was not without doubt as to the situation in 1976.

7. Mr. Chan's bus was about 30-40 ft. in length. From the sketch, it can be seen in conjunction with the evidence of Mr. Lau that the intersection was slightly less than 36-40 ft. The distance from the unbroken white line on the road surface at the western traffic lights before the intersection to the commencing line of studs opposite is approximately 36-40 ft.

8. Mr. Chan, the bus driver, told the Court that when he was approaching the middle of the intersection, he noticed the plaintiff on the pavement attempting to cross the Tokwawan Road along the studded crossing. If his recollection is accurate, his bus would then be 18-20 ft., i.e. half the length of the intersection, from the pedestrian crossing. But he later conceded that he no longer remembered his precise fixed location. According to Mr. Chan, emergency brake was applied and his bus barely missed the plaintiff stopping at the western boundary of the studded-crossing. The bus being 30-40 ft. long, therefore when Mr. Chan first realized the presence of the plaintiff on the pavement, the body of his bus must have blocked the entire remainder of the intersection thus obscuring the vision of any traffic behind on the fast outer lane. The bus driver further told the Court that just as he sighted the plaintiff, he noticed another car travelling on his right. He said he was himself travelling 20 odd miles per hour, and he estimated the other white car was travelling 20 odd to 30 miles per hour. Subsequently, Mr. Chan did sound a warning note that these were only rough estimates. Be that as it may, he did not withdraw his evidence that his car was travelling at a steady speed and the white car admittedly driven by the 1st defendant was travelling at some 10 m.p.h. more than his bus. As for speed, I will refer to the 1st defendant's admission of 25 to 30 m.p.h. in his statement.

9. Counsel for the defendants drew my attention to specifics and contended that if Mr. Chan had been travelling at 20 odd m.p.h., he could not have been in the middle of the intersection when the plaintiff was first sighted on the pavement. Counsel suggested that at this speed Mr. Chan must have been just before the intersection, but the fact remains that wherever Mr. Chan first sighted the plaintiff on the pavement the car driven by the 1st defendant on his right and slightly behind could not have been in a position to detect the presence of the plaintiff on the pavement. This was a busy intersection, and some pedestrians described by the bus driver as "absent-minded" pedestrians could be expected to make use of the studded-crossing at any time. The maximum permissible speed for this stretch of the road is 30 m.p.h. Any speed over and above that of the bus which has not been held out by Mr. Chan as unduly slow was, in my view, too fast in the prevailing circumstances.

10. At one time Mr. Chan, the bus driver, told the Court that the private car saw the girl and braked 20 ft. from the studded-crossing. In his written statement, he gave a similar but slightly different version that as soon as the private car passed the front of the bus, it braked. Then, he said that he was not sure, he could not be precise, he could not recollect. Later; he maintained that he heard the noise of braking after he had stopped. There was no brake mark nor skid mark. Mr. Chan also ventured to estimate that the plaintiff was knocked down two or three seconds after his near-miss.

11. The 1st defendant driver gave two statements which have been included as admitted documents both in authenticity and admissibility. The first statement was given on the 28th September 1976, in which he said he had his licence for almost a year and he was travelling 25 to 30 miles an hour but in third gear. He claimed to have braked and then swerved slightly to the right, but in his subsequent statement, a statement which corrected some information given earlier, the 1st defendant stated that he swerved slightly to the right before he braked. It was disclosed in the cross-examination of Sergeant Mak, PW1, that the 1st defendant driver informed him that he, the driver, swerved to the right in order to dodge the pedestrian. In his latter corrective statement, the 1st defendant was recorded as having said: "She was in the mid-position of the middle lane and running from my nearside. At that time I had just overtaken the bus, the woman and I were about 25 ft. apart." In his earlier statement, the 1st defendant claimed that the plaintiff was some six feet away from the eastern end of the studded-crossing, and it was sought to be explained in his latter statement that as his vehicle was low and his view was not perfect, he only judged the plaintiff's position at the time of the impact from the ultimate distance of her body lying ten feet outside the studded-crossing.

12. The 1st defendant driver stated in his statement that he passed the bus about 25 feet from the studded-crossing. The bus driver gave an estimate of approximately 20 feet from the studded-crossing. Therefore, for at least a distance of 20/25 ft. before the studded-crossing, the 1st defendant driver must have or should have realized that the speed of the bus was abruptly reduced, yet on the probabilities as reflected by the evidence the 1st defendant took no action to brake or slow down. The bus driver has given conflicting evidence as to the time when brake was thought to have been applied by the private car, but from the statements of the 1st defendant, the evidence of Sergeant Mak and the absence of any brake mark or skid mark, it would seem that the 1st defendant never braked hard and, in any case, he never braked instantly. The reaction of the 1st defendant in an emergency immediately before the accident may reasonably be excused, but what cannot be excused is his failure, for whatever reason, not to follow suit with the bus and slow down. Furthermore, any reasonable man would have foreseen the danger of passing a bus near a studded pedestrian a crossing with his vision obstructed or obscured, wholly or in part. The 1st defendant had thus deprived himself of the opportunity of taking proper evasive action in emergency. Again at least, the 1st defendant should have given warning of his approach by sounding his horn when he was on his way passing the front of the bus. Lastly, the 1st defendant's attempt to pinpoint the plaintiff's position immediately prior to impact at approximately six feet away from the eastern end of the studded-crossing and his subsequent explanation in his later statement, if both being bona fide, have at least the combined effect of establishing that he did not keep any proper lookout. It is no wonder that Sergeant Mak, P.W.1, then a constable, recommended prosecution for careless driving in his earlier Investigation Report.

13. I prefer the evidence of the bus driver to that of the plaintiff's. The bus driver, as analysed by Mr. Baretto, must have noticed the plaintiff slight earlier in time. If in fact as Mr. Chan claimed, his bus was half way through the intersection when the plaintiff attempted her crossing from the pavement, she was obviously risking her life and limbs in her total disregard of the traffic condition. Even if, according to Mr. Baretto's analysis of the bus's total stopping distance, which is more probable, Mr. Chan was put on alert before his bus entered the intersection, the plaintiff must have been equally negligent in attempting a crossing some 36' - 40', or just a bus's length away, from an approaching vehicle at 20 odd m.p.h. Because of her negligent crossing in the face of an oncoming bus, the plaintiff had herself destroyed the opportunity of an earlier sighting by vehicles travelling in the fast lane.

14. In conclusion, I find that the 1st defendant drove at an excessive speed in the circumstances, failed to slow down at or about the time when the speed of the bus was being reduced, failed to steer his private vehicle so as to travel slightly behind the bus on approaching a pedestrian crossing, failed to sound his horn prior to overtaking the bus and failed to keep any proper lookout for pedestrians including the plaintiff using or on the studded-crossing at that particular road junction.

15. The legal effect of green lights on the respective duties of driver and pedestrians and the legal effect of studded-crossing were of late exhausively reviewed by the Court of Appeal on the 9th October 1979 in AU Cheung v. CHOI Lai-fan and CHOI Loy (1). The position is now well settled, and suffice it for me to refer to one observation of the learned Chief Justice at page 6 of his judgment:

"In my opinion, the significance of the presence of a studded area is that it amounts to an invitation to pedestrians to cross there, with due regard to the dangers of motor traffic. It is also a warning to motorists that pedestrians are much more likely to be found in that area than they would on unmarked parts of the road, so that a higher degree of care is required from them when approaching such areas."

16. The plaintiff was herself decidedly negligent. No reasonable person would attempt crossing the road even along a studded-crossing in those circumstances, but it is my duty to assess and apportion the degree of blame on the part of the plaintiff and the 1st defendant driver. The plaintiff was negligent from the start, but the principal fault of the 1st defendant lies in his failure to follow slightly behind the front of the bus and in his overtaking the bus on approaching a pedestrian crossing when his view was obstructed or obscured. Taking all into consideration and having attempted various other combinations, I have arrived at the conclusion that the plaintiff herself was 60% to blame, and the 1st defendant including of course the 2nd defendant was only 40% to blame. Consequently, I give judgment in favour of the plaintiff in the sum of $140,000, being 40% of the agreed quantum at $350,000. I also award costs against the defendants as liability has throughout been completely denied.

Representation:

(1) Civil Appeal 6 of 1978