Law Yuen Wan v. Tai Kam Tong and Others

CACV000163/1983

BETWEEN

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Coram: Sir Alan Huggins, V.-P., Yang & Barker, JJ.A.

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REASONS FOR JUDGMENT

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Sir Alan Huggins, V.-P. :

1. Not without considerable regret we found ourselves compelled to allow this appeal and to set aside the judgment entered in favour of the infant plaintiff. We said we would give our reasons later.

2. The claim was for damages for personal injuries received in a traffic accident on the 4th of January 1978 at Fuk Hang Tsuen. Fuk Hang Tsuen Road runs northwards from Castle Peak Road, through the village to a quarry. The judge found it to be "a dual carriageway about 22 feet wide". Although the finding does have some basis in one answer given by the 1st Defendant, it is manifestly wrong, as appears from the photographs and the sketch plan and as it has been common ground before us. It is a single carriageway road not even marked in lanes, and it carries two way traffic. An empty 6-ton Bedford dump truck was being driven along it by the 1st Defendant in a northerly direction and had almost negotiated a long left-hand bend when the Plaintiff ran into its rear off side. This occurred in the vicinity of the Fuk Hang Tsuen Rural Committee's building, in which the Plaintiff had been attending kindergarten school. It was about 2.45 p.m. on a fine day, when the Plaintiff (then aged 4 1/2 years) left the building in company with four other children under the supervision of the teacher (3rd Defendant). They approached Fuk Hang Tsuen Road from a lane which runs along the south side of the Rural Committee's building and they intended to cross the road. They found a 10-ton Nissan truck parked on the east side of the road a short distance south of the lane and facing north. Its load of pig fodder was being unloaded. This lorry obstructed the teacher's view of the road to the south and she told the five children to stand on the pavement until she said it was safe to cross. The judge found that she stepped on to the road in front of the stationary lorry in order to obtain a view in both directions. The Plaintiff, who was farthest from her, unfortunately did not obey her instruction but ran out and collided with the 1st Defendant's lorry as it passed.

3. The judge found that the 1st Defendant had been guilty of negligence, that the 2nd Defendant as the owner of a lorry was vicariously liable, that the Plaintiff was too young to be guilty of contributory negligence, that the 3rd Defendant was not guilty of negligence, and that the 4th Defendant (as her employer) was not liable. The 1st and 2nd Defendants appealed on the issue of liability. They contended that negligence on the part of the 1st Defendant had not been proved, and, in the alternative, that the 3rd Defendant should have been found responsible for the accident wholly or in part.

4. It was nearly six years after the accident that the case came on for trial. It is therefore not surprising that recollections of events were clouded. There were four witnesses able to give a sensible account of what happened, and a police officer produced a sketch plan. The first eye-witness was the 1st Defendant himself. He maintained that he was driving his unladen lorry at a speed of 16-17 miles an hour. He saw the fodder lorry on his off-side and indicated his position on "sketch B1", which I take to be Exhibit 1 although it is not marked "B1", as no other sketch has been produced. He was will acquainted with the area and he knew of the presence of the school. He did not see any other vehicle on the carriageway. He did see the driver of the fodder lorry but was unaware of any other persons in the vicinity until after the occident. He became aware that something was amiss when he heard a shout and, on looking in his driving mirror, saw the Plaintiff lying in the road. He then braked to a standstill. The sketch shows the front of the lorry to have stepped just over 50 feet from a bloodstain on the road, which, it is common ground, was the approximate point of impact. The judge found the distance to be only about 40 feet, and this finding has not been challenged: it is consistent with the evidence of WONG Tin-lurk, who said that after the collision the 1st Defendant's lorry "went forward 10 feet to 20 feet before it care to a standstill". I assume that that estimate was based upon what he saw when he went to the scene rather than what must have been little more than a guess if it was made at the point from which he witnessed the accident.

5. The finding of negligence was founded upon two things, excessive speed and failure to keep a proper lookout. As to the speed the judge accepted the estimate of WONG Tin-lurk that the 1st Defendant was travelling at all material times at about 25-26 miles an hour. It was an estimate based entirely on observation. Mr. Wong was himself a driver of a goods vehicle engaged in carrying rock from the quarry. He had stopped his vehicle in a passing place on the west side of Fuk Hang Tsuen Road some 100 yards or thereabouts south of the school. He was alighting from his cab when the 1st Defendant drove past, and he recognized the drivor, as the 1st Defendant was known to him.

6. Mr. Kwok on behalf of the Appellant submits that the judge should not have accepted Mr. Wang's evidence of the speed because it was unsupported and was inconsistent with other, uncontested, evidence. Thus, it was a foundation of the Plaintiff's case that the lit Defendant did not see her until after the accident and that he had not slowed down as he approached the school. It was never suggested that he applied his brakes before he had seen her in his driving mirror. The Plaintiff struck the lorry towards the back of it. As the length of the lorry was about 22 feet 4 inches, and (as we have seen) the front of it stopped about 40 feet from the bloodstain, the 1st Defendant managed to stop in well under 40 feet. Even assuming that his brakes were in perfect working order and that his reflexes were good, and allowing for the fact that his lorry was unladen, it is inconceivable that the 1st Defendant could stop in that distance if he was driving at 25 to 26 miles an hour. A figure nearer his own estimate of 16-17 miles an hour is far more likely to be correct. In so far as the finding of negligence was based upon excessive speed, it cannot stand.

7. I would, however, add that for my part I am not persuaded that a speed of 25-26 miles an hour would in any event have been excessive. This road was 22 feet wide and the photograph shows that even on the bend a driver would have a clear view for a long distance ahead. We have gone past the days when every horseless carriage has to be preceded by a pedestrian with a red flag. Drivers are not required to insure every other road user against the result of that other's negligence and, in the words of Mr. Justice Trainer in KWAN Yuk-lan v KWAN Sing-ho 1974 Civil Appeal No. 39 :

Mr. WONG Tin-lurk, whose estimate of the 1st Defendant's speed was accepted by the judge, thought that 15 miles an hour would have' been a "crawling" speed on that road, that "20 miles an hour" would be a usual speed for dumper trucks and he said that he himself normally drove along that stretch of road in front of the school at 25-30 miles an hour. He said that in his experience children going to the school were accompanied by their parents. The 1st Defendant had no reason to believe that very young, unattended children would be attempting to cross the road and he was entitled to assume that parents and other persons in loco parentis would be able to central the children in their care. If we were to hold that he ought to have anticipated that a child might do what this plaintiff did, it would bring traffic in the vicinity of every kindergarten and primary school almost to a standstill.

8. That the 1st Defendant may not have been keeping as good a lockout as he should have been appears from his own evidence that he did not, until after the accident, see the 3rd Defendant or the children and their parents who were found by the judge to have been on both sides of the road. However, the only aspect of the matter relevant to the 1st Defendant's liability is whether he ought to have seen the Plaintiff at a time when it would have been possible for him to take action to avoid or minimize her damage. According to Mr. TANG Koon-Hing (the driver of the fodder lorry) the Plaintiff was one of about 10 students "standing side by side" on the pavement "3 feet to 4 feet in front of [his] vehicle" and a teacher was about to lead that group to go across the road. The judge appears to have accepted that in fact the group consisted of only five students, but a group of five children could hardly have been compressed within a space of 12 inches. Mr. Tang was not further pressed as to the exact position of the plaintiff on the pavement, nor was any evidence given as to the height of the fodder lorry. The 1st Defendant admitted seeing the head of Mr. Tang - who also was standing on the pavement in front of his lorry - "through the glass of the goods vehicle", but said that when he "continued to move forward [he] could 1see more of the driver". Again he was not asked to explain what he meant by that. There is no doubt that the fodder lorry constituted substantial obstruction to the view which any person driving northwards would have had of pedestrians on the pavement and I do not think it was satisfactorily proved that the 1st Defendant ought to have seen the Plaintiff as he approached the fodder lorry. It is true that Mr. Won rig said :

Yet he himself, who was further to the left than the 1st Defendant and therefore must have had a wider field of view between the fodder lorry and the school, was "unable to see the position of the girl". His statement that the driver would be able to see children on that side of the road was an expression of opinion which carried no weight at all.

9. On the evidence it seems to me that, if the 1st Defendant ought to have seen the Plaintiff, it was not until his field of view opened up upon his passing the fodder lorry. The faster his vehicle was then travelling, the shorter the time he would have to take avoiding action once he apprehended danger to her. The child could have run no more than 13 feet in the carriageway before hitting the lorry, a distance which she might cover in three seconds or less. If it had beer, established that the 1st Defendant ought to have seen her as she entered the carriageway - and I am very far from persuaded that this was established - it is just conceivable that he might have been able to effect a material reduction of speed before the moment of impact. In fact, by the time the Plaintiff was visible from his cab, the probability is that she was about six feet away and directly to his right. He was negotiating a left hand bend and he might reasonably not have seen her. Even if he had seen her, he could not possibly have taken any effective action to avoid the accident : at 15 miles an hour the lorry would have travelled its own length before the brakes began to take effect and at any greater speed the distance would have been proportionately longer.

10. One other matter must be mentioned. The judge seems to have thought that the 1st Defendant might have avoided the accident by sounding his horn. If the Plaintiff was oblivious to, or ignored, the direction of her teacher and a shouted warning by Mr. Tang, it is doubtful whether she would have been any more attentive to the 1st Defendant's horn. That apart, the only reason for sounding his horn would have been that the 1st Defendant had reason to suppose that someone was about to cross his path in ignorance of his approach, and I do not accept that any such reason could have existed before the Plaintiff started her dash across the road and by the time he did see her it was too late for a warning. There is no duty on a motorist to sound his horn virtually whenever he sees a pedestrian on the adjoining pavement (see Davies v Journeaux 1975 1 Lloyd's Reports 483, 486) : there must be some apparent necessity for the sounding of the horn, i.e. some reason for expectation that the warring will be in time to be effective to avert a probable, though not necessarily imminent, danger.

11. I was of opinion that the finding of negligence on the part of the 1st Defendant could not be sustained. There being no cross appeal that was the end of the matter.

Yang, J.A.:

12. J. agree.

Barker, J.A.:

13. I entirely agree.

16th February 1984