Renny Cho Kwok Hung v. Fusilier Donald Evans and Others

HCA001686/1972

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Coram: Li, J.

Date of Judgment: 27 February 1979

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JUDGMENT

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1. On the 1st of December, 1970, a boy of six years old was knocked down by an Army Land-Rover driven by the first defendant in Waterloo Road which was divided by an iron railing at the centre into two carriage-ways for traffic. Each carriage-way could accommodate three lanes of motor traffic. The north carriage-way catered for motor traffic going in easterly direction, and the south, westerly direction. The scene of the accident occurred on the south carriage-way of the road directly in front of a building known as Cambridge Court, Block A. I shall refer to the various lanes of traffic as follows:-

2. There was a stud crossing right in front of Cambridge Court for pedestrians to go across the road from south to north or north to south pavements through an opening of the iron railing as shown in Exhibit 2C, which also shows other landmarks as obtained at the material time. Shortly prior to the accident, the first defendant was driving a land-rover along the far lane in a westerly direction. The boy was accompanied by an amah, the second defendant, on his way to school across Waterloo Road towards the north pavement through the opening of the iron railing at the stud crossing. It was in the vicinity in front of the Cambridge Court that the boy was knocked down. He suffered head injuries.

3. Immediately after the accident, both the civilian and military police were informed. As a result the civilian police took measurements of the scene, Exhibit 1, as well as pictures of the land-rover, Exhibit 3A to 3C. Those pictures were taken on the spot at the scene of the accident. These facts as aforesaid are not in dispute.

4. The plaintiff's case is that the boy was walking along the stud crossing and reached the far lane when he was knocked down. The reason why the boy was knocked down was because of the negligence on the part of the 1st defendant. The particulars of negligence as alleged by the plaintiff are:

5. The first defendant denies negligence and alleges that the accident was caused either solely or contributed to by the negligence of the amah, the second defendant. For this reason, the first defendant joined the amah as second defendant and the plaintiff's father, the employer of the second defendant as the 3rd defendant presumably on the ground of vicarious liability. The particulars of negligence alleged by the first defendant against the second defendant, are as follows:

To these, the second and third defendants filed a defence denying negligence as alleged by the first defendant and adopted the line of allegations against the first defendant by the plaintiff.

6. The plaintiff called only one witness - Mrs. Shelia Madonna Lee. She said that round about ten o'clock in the morning on that day, she was standing on the north pavement of Waterloo Road, a little to the east of the said stud crossing in Waterloo Road. She had just seen her own child off to school. She marked her position with a cross in Exhibit 2C. At that time she stood facing the very stud crossing used by pedestrians. Exhibit 2C is a chart showing the vicinity where the accident occurred in Waterloo Road. At that time she said she saw the boy being led by the second defendant, the amah, across the stud crossing. She knew the boy by sight because the boy studied in the same school as her own son albeit in a different grade. She said that the boy and the amah had crossed two-thirds of the way, across from the south pavement into the carriage-way, in other words, reaching the far lane. The traffic in the near lane and the middle lane had stopped to allow pedestrians to cross. The amah and the boy were slightly in front of a group of pedestrians who were following them across that stud crossing. When the boy and the amah almost reached the far lane of the south carriage-way on the stud crossing. she noticed the land-rover travelling at a fast speed at about two car lengths away from these two persons. At that point she realised that a collision would be imminent and she uttered in shock, "Oh God!" What she feared actually happened. The boy was knocked down by the land-rover, thrown in the air and flopped down near the Shell station which was next to the Cambridge Court in the east of that building. Then she heard the amah yelling and saw her running between the driver, the first defendant, and the boy. Eventually she picked the boy up, took him to a taxi presumably going to a hospital. She was quite adamant that when the amah and the boy were crossing the carriage-way, she was holding the boy by the hand before the collision.

7. In cross-examination, she said that the whole series of events were deeply imprinted in her mind because although it happened so fast it was just like a movie. She was shocked but she had the presence of mind at once to borrow a telephone to ring up the headmistress of the boy's school to inform her that a boy of her school had been knocked down so that the headmistress could inform the parents of the boy. She said that she was not sure whether the land-rover had sounded the horns because it was so noisy there. But she reaffirmed, in cross-examination, that the cars in the near and the middle lanes stopped for pedestrians to go across, not because of traffic congestion as suggested to her by counsel for the first defendant. She was also adamant that the boy was hit on the stud crossing.

8. There is also the second defendant's evidence. I mention her evidence first because although she is joined as a second defendant, she has adopted the allegations against the first defendant. Immediately after the accident, the second defendant was found in hospital. There, she was interviewed by the police. The statement was taken at 11:20 in the morning on the same day - within a couple of hours of the accident. It is not a long statement. I propose to read it. She said that, "On the 1st of December, 1970, at 10 o'clock approximately, I was crossing the road near the Hong Kong and Shanghai Bank following a crowd of pedestrians towards the northen side of the road along the stud crossing with one hand carrying CHO Kwok-hung." That is the infant. "CHO Kwok-hung shuttled and the other holding CHO Kwok-hung's hand", CHO Kwok-hung being the infant. "Before the stud line had stopped quite a number of vehicles. As soon as I and CHO Kwok-hung almost reached the middle part of the road, speedily came an Army vhicle and knocked down CHO Kwok-hung. After this, the Army vehicle had come to a stop. The driver had got off to take a look at the injured person. I did not know who reported the accident to the police. I held up the injured and took him to Queen Elizabeth Hospital by taxi for medical treatment.

That may be described as the sum total of the plaintiff's evidence in this case.

9. The defence called first one Mrs. Ayres who said that at the material time she took her vehicle to the Asia Motor Agencies for servicing. She came out to the pavement on the north side. That spot was practically directly opposite the Shell station to the east of the stud crossing. In her evidence in chief she said she saw that, at the stud crossing to her west, all three lanes of traffic stopped in front of the crossing. The pedestrians then went clear. The land-rover driven by the first defendant was only the second car in the far lane. Suddenly she heard the land-rover brake and a boy by then had been hit and fell in front near the Shell station. She couldn't say what happened to the cars in the other two lanes. She said that boy landed right behind the land-rover on the same lane as the land-rover. She said this was what she saw and she made her first statement in December last year. In cross-examination, she said she only presumed the cars in the other two lanes, namely the middle lane and the near lane, had stopped. Her deepest impression was that it was a silly thing for the amah to take the boy into a taxi. She said that she could not remember whether the land-rover had stopped. She did not see how the boy was hit.

10. The first defendant then followed her to give evidence. He said that he stopped at the stud crossing and waited until the pedestrians had cleared. Then he started to move his vehicle in second gear. After he had passed the stud crossing, he saw the amah - the second defendant was crossing the road, the north carriage-way, in a southerly direction diagonally towards his vehicle, quite outside to the east of the stud crossing. At that time the amah was about three and a half car lengths away from him. He described each car length as about ten feet long. At that juncture, he sounded his horn twice. He observed the amah by then had reached the broken line marking the middle lane from the far lane. The amah saw his land-rover coming and stopped walking, standing on that broken line. However, the first defendant said he never saw any boy with the amah. On seeing the amah stop walking, the 1st defendant accelerated and changed up. He was doing, at that time, about 25 miles per hour even though he had not seen the speedometer. He said when he was travelling at that speed he had an unobstructed view of the road because the cars in the middle and the near lanes had started. They were almost abreast but his own land-rover was leading on the far lane. The bonnets of the other cars were about level with his driver seat on his left. He said there were pedestrians everywhere, on the sidewalk as well as the crossing, as can be imagined in a busy road. He had never seen the boy though he has an unobstructed view. He was asked: "At any stage, did you see the boy?" The answer: "At no stage did I see a child.

11. Another witness was called for the defence. He was originally called as an expert witness. However, in his closing address learned counsel for the first defendant, describes him as a person with some experience and talking common sense. No doubt he is a mechanical engineer and he has been working for some length of time with the Armed Forces in the function of determining claims or damages in car accidents or accident claims. In his evidence in chief, he said he was shown Exhibit 3C showing the dent on the land-rover. From that picture he was able to say that, because of the soft material that a land-rover was made of, the type of damage that was shown in the photograph could have been caused by a kick or a punch. He said that he had a look at the picture and he was brave enough to determine by virtue of the slight damage to the land-rover the speed of the said vehicle as a low speed. He explained that this was simply because the damage was not great and the glass of the headlight had not been smashed. However, he took caution to say that he could not be specific how far the boy could be thrown at the time of impact. He said that was only a matter of estimate. He said everything depended on the momentum, the angle and how the boy was hit. He was told, I do not know by whom, that the boy's head hit the land-rover first. He could not be specific how far the boy could be thrown. He said that on the assumption that the speed of the land-rover was not more than 20 to 25 miles per hour, the boy could only be thrown at a distance of about 10 feet. However, he said something obviously of common sense. He said the body could be thrown to any direction: straight ahead of the vehicle or, carried for some distance and dropped or, thirdly, the body could have been carried for some distance and then when the body picked up the momentum or, as he said, the speed of the vehicle, when the vehicle started to stop or slow down, the body then, having acquired the momentum or the speed of the vehicle, would be thrown away some distance from the vehicle either in front or aside. But he persisted in saying that the body could not have been thrown for more than 10 feet, when the car's speed was 20 to 25 miles an hour.

12. The last witness for the defence is one Mr. Wong, who worked in the Claims Assessment Office, who went in January 1971 to take some measurements. Of all the measurements he has taken, I think one is relevant and can be of some assistance. He said that the end, by that I understand him to mean the eastern end of Cambridge Court, measured 64 ft.6 ins. to the eastern boundary of the stud crossing.

13. Having heard the comments from learned counsel for various parties on the evidence which I have carefully considered, I have no hesitation in coming to the conclusion that the first defendant did not stop in front of the stud crossing to allow pedestrians to clear the crossing and that his land-rover hit the boy while the boy was crossing along the stud crossing. There was an eye-witness, Mrs. Shelia Lee. It is not true for learned counsel for the first defendant to say that she never saw the land-rover. She did say in her evidence in chief that she saw the land-rover; and then when she first saw the land-rover, it was approximately two car lengths away from the amah and the boy when she uttered the expression "Oh God!"

14. The second defendant, in her statement, substantially corroborated the evidence of Mrs. Lee in the sense that she and the boy were using the stud crossing to go through the railing across Waterloo Road. There is no dispute that the boy was hit when he was on the broken line between the middle lane and the far lane. There is evidence that the boy lived in Man Kee Building which is west of the stud crossing and that at the material time the amah, the second defendant, was taking him to board a car or bus to go to school. No reason has been suggested that the amah had to walk past the stud crossing to the east right down to the Shell station and double back on the southern carriage-way towards the stud crossing where the opening of the railing was. On the points whether the first defendant stopped in front of the crossing to allow pedestrians to clear and whether the land-rover hit the boy well outside to the east of the stud crossing, I must reject the first defendant's evidence as totally unworthy of credence. To begin with, he said that he stopped his land-rover in front of the stud crossing to allow pedestrians to clear. This was never the line of cross-examination adopted by his own counsel when Mrs. Shelia Lee was cross-examined. Such cross-examination must have been founded on his instructions and no-wise else. Thus, the two lines of defence are totally conflicting.

15. Furthermore, in the pleadings the plaintiff alleges that the boy himself was hit when he was at the stud crossing. Yet the defence, apart from a general denial, has not pleaded that the boy was hit outside the stud crossing but near the Shell station. How much truth and sincerity in such evidence that the boy was hit outside the stud crossing and near the Shell station is open to the gravest doubt. Nor do I believe the first defendant's allegation that the second defendant, for no reason, or no suggested reason, would walk deliberately past the stud crossing to reach the Shell station and then walk back diagonally in front of three lanes of oncoming traffic to risk the boy's life and more important her own life. Had it been alleged that she walked across from her home, the Man Kee Building, west of Cambridge Court across the carriage-way before she reached the stud crossing, I might be more inclined to believe that story.

16. Mrs. Ayres's evidence is of little assistance. She did not witness the accident until the boy, to use her own words, "had been hit". She only saw the boy fell. Even the spot where the boy fell was mistaken by her. She said that the boy fell on the same lane as the land-rover. In fact the land-rover stopped on the far lane and the boy fell, as indicated by blood marks sketched in Exhibit 1 right on the middle lane in front of the eastern end of Cambridge Court. Her evidence was extremely woolly. I attach no blame to her because although she saw part of the accident, she didn't make a statement until December, 1978 - some 8 years after. In cross-examination she said she assumed that the traffic in the middle and the near lanes had stopped and started again. Such is the state of her evidence. After the accident, she went over to the first defendant and said that it was not the first defendant's fault. I can only attribute this to be a kind gesture to offer comfort to someone in the state of shock immediately after an accident. Certainly, I am not going to allow her to usurp my function.

17. I have touched upon Major McArthur's evidence which does not in any way contradict the evidence adduced by the plaintiff. In view of his evidence that the person hit could have been carried for some distance by the vehicle hitting that person until the vehicle had begun to slow down or stopped and in view of his agreement, in cross-examination, with counsel, for the second defendant that it would take a normal driver about two-thirds of a second of reaction time before he could actually effectively stop a vehicle, it appears that the evidence adduced by the plaintiff must be correct. In fact, in cross-examination Major McArthur in answer to Mr. Waung's question said two-thirds of a second to react and effectively start to cause or effectively cause the vehicle to stop would be quick reaction. I say that his evidence tallies with the evidence adduced by the Plaintiff for the following reasons:-

18. According to Exhibit 1, the tyre mark started to run at approximately 15 feet from the eastern end of the Cambridge Court. The existence of the tyre mark indicates that the wheels of the vehicles started to lock at that point. It shows that the land-rover began to stop 15 ft. east of the stud crossing. Thus the boy could not have been carried forward some 15 ft. east of the crossing after impact at the crossing. If we take away 15 ft. from 46 ft. 6 ins, that leaves 31 ft. 6 ins. In other words, if the boy were hit at the stud crossing, he was carried roughly about 20 ft. and thrown away 10 ft. making 30. That is the evidence of Major McArthur at his best, although he said that it was at best an estimate. But what surprised me is that he can determine the depth and the extent of the dent from a photograph even though the photograph was not three-dimensional. What is more surprising is that from that dent he can determine the speed of the vehicle. In all fairness to him, he did mention that he did not pretend to be accurate. He merely estimated the speed of the land-rover by looking at the picture which showed the damage. In other words, before he came he must have been supplied with a lot of fallacious premises. The conclusion is to be expected.

19. Well, some word must be said on Exhibit 1. It is a sketch, as I have commented more than once in the course of the trial, rather sketchily done. However, it does give some measurements and give some placings. I cannot completely disregard it despite the fact that the first defendant's counsel says that not all the measurements can be acceptable. But one must bear in mind that the first defendant did help the constable in taking measurements. In the course of so doing, the 1st defendant was holding one end of the tape for the measurement. If the positioning of the blood mark or the positioning of the tyre mark were wrong, I am certain, however shocked the first defendant then was, he would have objected to the police constable taking the measurement placing them on the sketch. At least there's some truth and credence in that sketch as shown in Exhibit 1.

20. One further significant thing shown in Exhibit 1 is that the tyre mark started on the broken white line between the far land and the middle lane. That indicates that the land-rover at one time must be either slightly over the middle lane from the far lane or right on the dot of the white line or very near to that white line between the middle lane and the far lane. With insufficient data supplied to him, it is quite natural for Major McArthur to say that he cannot reconcile the curve tyre mark as shown in the plan with the ultimate position of the land-rover when it stopped, which is quite straight. But things do happen. They are shown in the plan which was drawn on measurements taken at the time with the help of the first defendant. This goes to show that the first defendant's land-rover must have gone very very near, if he did not go over that broken line, right in front of the amah causing her to panic. I would say that this was a direct cause for the amah letting go her grip of the boy, the plaintiff. Further, the first defendant should have known that the road was a busy road and there were school children about. The horn was not a very effective measure to warn pedestrians. He had no justification to change up to third gear and increase his speed even the amah stood on the broken line and stopped to walk. He had no business to go so fast and go so close to her. He knew that there were a few schools in the vicinity and ought to have known that school children were about in that area.

21. Even if I am wrong in my analysis of the evidence in finding that the first defendant's evidence should be rejected, and even if I were to accept the first defendant's evidence in total, I still come to the conclusion that he was not keeping a proper look-out as he did not see the boy at all. After all a boy of six is not exactly a piece of chocolate that can be hidden in a pocket. He was walking on the road beside the amah. The 1st defendant had no justification not to see him. As I have mentioned, having regard to the vicinity, the area and the road condition at the time, even driving at 25 m.p.h. he was driving too fast and he had no business to go that close towards the middle lane. He had no business to increase speed.

22. Thus, at least two things were sufficient to assign and attribute liability to the 1st defendant. First of all, he was not keeping a proper look-out. He was happy enough and complacent enough in the circumstances to change up to third gear and increase speed. He drove too close to that broken line to the amah causing her into panic station. In fright she let go of the boy. Such behaviour was caused entirely by the negligence of the first defendant. The amah is totally absolved from blame and so is the third defendant on the question of vicarious liability. The amah was so frightened that one cannot expect too much even of a reasonable person. For these reasons, I find that the direct cause of this accident was due to negligence of the first defendant. I assign that the first defendant is a 100 per cent to blame for this accident.

23. Learned counsel for the first defendant has cited to me a case where two persons are travelling together, the negligence of the adult or of one person might, on the question of contributory negligence, affect the other person injured. I do not think that case is of any assistance to me. Of course, that question does not arise now. Even if it does, I cannot see on what basis that the negligence of the amah should visit a child of six. She is neither his agent nor his parent. I cannot envisage a boy of six can be vicariously liable for an agent whom he has no legal capacity to appoint.

24. The last remark I must make in connection with this case is that I must express my regret that this accident was investigated in such a haphazard and slap-dash manner. The police pushed the responsibility to the military authorities and the military authorities relied on the police. Yet all the military authorities had were some photographs, a sketch with measurements and two statements from the amah taken by the police. At least that is the sum total of the documents which, I am given to understand by counsel, have been handed to the military police. There was no independent measurement taken by the Army authorities. Mrs. Ayres, had given her name and address to the first defendant immediately after the accident. No statement was taken from her until December, 1978. One may ponder and ask why and whether that is the usual pace of the Army legal service.

25. There was a Mrs. Lee who was an eye-witness to the accident. No statement was taken from her or from the plaintiff's parents. Having passed the file to the military authorities the police ceased to work on the case. They never advertised for witness. They never even interviewed the child's parents to find out after January 1971 whether there was any eye-witness. Had there been a thorough investigation, I venture to suggest there might be a different approach to this action and this action need not be fought. This is the reason why I regret that when two different authorities are supposed to do something, very often nothing is done.

26. As I am only concerned with the question of liability, the quantum is to be determined at some future date. As far as this action is concerned, costs must follow events and that the costs should be awarded both to the plaintiff and the second and third defendants.

Representation:

Niamutullah (J.S.M.) for plaintiff

Pirie (Hasting & Co.) for 1st defendant

Waung (Deacons) for 2nd & 3rd defendants