Chav Sau Kwai v. Tsoang Ye and Another

HCA001474/1980

Action No. 1474 of 1980

IN THE HIGH COURT OF JUSTICE

BETWEEN

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Coram: Hon. Mantell J.

Date: 21st October, 1983.

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JUDGMENT

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1. This is a claim brought by the widow of Wong Wing Hin as administratrix of his estate under the Fatal Accidents Ordinance and the Law Amendment and Reform (Consolidation) Ordinance. It is a tragic case arising, as it does, out of a fatal traffic accident, the more so because the deceased was a married man in his prime who leaves behind him a widow and a young family.

2. The accident happened on 20th January 1979 just after six o'clock in the evening at the junction of Tong Mei Road and Prince Edward Road. That is a major traffic junction. Tong Mei Road has four lanes travelling in each direction. The junction is controlled by traffic lights and at the point where Tong Mei Road meets Prince Edward Road as one travels from north to south, there is a pedestrian crossing. At about that time, the 1st defendant, Mr. Tsoang Ye was driving a Volkswagen mini van along Tong Mai Road towards the junction with Prince Edward Road in the third of the four lanes travelling from north to south. His is the only account of the accident to be received in evidence and it comes before me in the form of a statement which he made to a police officer on 25th January 1979, the contents of which have been agreed. It is from that statement that I draw the following description.

3. As the 1st defendant approached the junction, he was following behind six other vehicles. The vehicle immediately ahead of him was a taxi and it seems from his statement that the vehicle ahead of that was a goods vehicle which is not described with any particularity. Ahead of that goods vehicle were four other taxis. The lights were on red, and the vehicles ahead of the 1st defendant came to a halt as he did but noticing that there was no traffic to his off - side, that is to say, in the fourth lane of the carriageway, he moved out as the lights changed to green and proceeded to approach the junction at a slightly faster speed than the vehicles which had formerly been in front of him in the third lane. This is how he describes what happened.

"After waiting for about ½ minute, I saw that the traffic lights on the right side road centre changed to green. The preceding vehicles moved off slowly to travel ahead. At that time I saw that there was no vehicle travelling in the 4th lane. Therefore, I steered the wheels to the right to move into the 4th lane and then travelled straight ahead at a speed of about. 15 - 16 mph. As there was no vehicle travelling in the 4th lane, my vehicle was a little faster than those in the 3rd lane When my vehicle had passed two taxis in the 3rd lane on my left side, and had just crossed the pedestrian crossing to travel 3 feet into the yellow box junction I saw a man coming out from behind a goods vehicle which was in motion in the 3rd lane on my left side. He was facing his front, i.e. facing the west, and was at a distance of about 1 foot from my vehicle head. On seeing this, I at once applied the brake and steered the wheels to the right to avoid him, but still the nearside front corner of the vehicle knocked him down. Because of the momentum, the vehicle crossed over onto the opposite carriageway, therefore, I straightened the vehicle and brought it to a stop."

A little later in his statement, he elaborates :

"When the light signal changed to green, I steered the vehicle out into the 4th lane and the other vehicles in the left side lanes also moved off slowly, the man came out from between the vehicle rear of a goods vehicle and the vehicle head of a taxi which I followed to stop for the red traffic light a moment ago. At that time, the goods vehicle and the taxi were moving slowly ahead by keeping a distance of about 4 feet apart. Prior to the accident, I did not hear any car horn sound or emergency braking sound; and I did not sound the horn to warn that man. At that time, it had, just got dark, but visibility was good, street lights were not lit, no light of my vehicle was switched on, road surface was in good repair, weather was fine, my vehicle was in normal mechanical condition. At that time, there was no other person crossing the road except that man; and there was not any person standing on the central safety island. I did not see the man until the accident occurred."   

Well, that account is an agreed account of the accident. Formerly and before the statement had been agreed as to its contents, the plaintiff had attempted to make her case good by relying upon allegations that the braking system of the defendant's vehicle were not in a satisfactory condition and also that the speedometer was not working properly and some expert evidence was called in an attempt to establish that ground of claim The evidence, however, would hardly have helped because although Mr. Fellows, the examiner, found that the brake fluid cylinder was leaking so as to lead to the conclusion that the system was unsatisfactory, the actual operation of the foot brakes was within satisfactory limits, and although the hand brake was not satisfactory, either from the point of view of efficiency or from the point of view of the same defect which affected the foot braking system, it is not suggested on the facts of this case that it would never have been appropriate for the 1st defendant to apply his hand brake. The fact that the speedometer cable was broken is, in the circumstances of this case, not material. So, the evidence as to mechanical defects could not have assisted the plaintiff in any event, but in the light of the agreed statement, it becomes apparent immediately that those defects could have played absolutely no part in the happening of this accident, even had they amounted to a criticism of the operating efficiency of the brakes. If the plaintiff is to succeed, it must be on the basis that the defendant's statement or account of the accident itself discloses some negligence on the defendant's part either directly or by inference. Mr. Lee, if 1 may say so, conscientiously and ably, has explored every avenue which might be available to him in an attempt to establish a case and I indicated to Mr. Lee that if on the evidence before me, it had been possible for him to formulate a ground of negligence, the mere fact that it was not reflected in the pleading would not stand in the way of his succeeding, and consequently, he was able to argue a number of points. He has had to accept, of course, that the speed at which the defendant travelling was 15 - 16 miles per hour and I do not think he contends that it was unreasonable in the circumstances. What he does say is that, bearing in mind that the deceased was crossing from the near side and must have travelled across at least three lanes and that the 1st defendant was in a mini van which would give him, perhaps, a slight advantage in seeing to his near side over other vehicles, the 1st defendant ought to have seen the pedestrian before the moment, that he did, that is, when he was only a foot in front of his vehicle. He says that it behoved the 1st defendant to take care to look out as he approached this junction, the more so because there was a pedestrian crossing at this point. Well, I am certainly with Mr. Lee on the second of those two submissions, namely, that was a clear duty upon the driver to keep a keen look out as he approached this junction and I accept the submission that the duty was all the greater and certainly no less by reason of the pedestrian crossing at that point. But I still have to be satisfied before I can condemn the 1st defendant in negligence even to a small degree that there was an earlier opportunity For him to see the pedestrian than the moment at which in his statement to the police he describes seeing him, and I have come to the conclusion that I cannot be satisfied on the evidence that there was an earlier opportunity. The deceased was clearly passing through or in front of lanes occupied by traffic. It seems probable, though the evidence is not clear on the matter, that the deceased must have stepped into the road at a time when either the lights had already changed to green for the traffic waiting at the junction or at the moment that the lights changed to green and that thereafter, taking such evasive action as was necessary, he manoeuvred himself into a position not on the pedestrian crossing but just beyond the pedestrian crossing and into the junction where the accident occurred and I cannot find that there is evidence, striving to place the most favourable interpretation on the 1st defendant's statement. to the plaintiff's case,that the 1st defendant did have an earlier opportunity than the one he describes in which to take evasive action and so, with considerable regret, I find that the plaintiff's claim for damages fails.

Representation:

John Lee (Yu, Tsang & Loong) for Plaintiff.

Miss F. Stenst (Deacons) for Defendants.