Chan Jan Jee v. Lee Yat Fan and Another

CACV000138/1984

BETWEEN

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Coram: Sir Alan Huggins, V.-P., Silke & Fuad, JJ.A.

Date of Hearing: 19th March 1985

Date of Judgment: 19th March 1985

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JUDGMENT

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Sir Alan Huggins, V.-P.:

1. In this unhappy case the Plaintiff suffered very serious injuries to his left foot when it was run over by a motor-bus driven by the 1st Defendant and owned by the 2nd Defendant. The foot had to be amputated just forward of the heel.

2. The accident occurred at a bus terminus which consisted of a large open space in which there were eight raised sections for passengers and bays for the buses in between. The ends of the bays were approximately 45 feet from a spur in a pavement running along Tak Tin Street and there was a gap in the pavement forming an exit about 42 feet wide at the north western corner of the concourse for buses to drive out. The buses came into the concourse from the sourthern end. The accident occurred very close to the exit.

3. The Plaintiff had just arrived in a bus on a journey back China. He had brought with him some dried turnips in a substantial bag.  The exact size and weight of this bag we do not know: it was that he found it convenient to carry it on his right shoulder and it was of such a size that it totally obscured his view to his right. The Plaintiff lived in a block of resettlement apartments on the northern side of Tak Tin Street, i.e. on the opposite side to that on which the bus terminus lies, and he intended walking to his home. The bus in question had been parked in the bay next to that at which the Plaintiff arrived - the next one to the east. The bus was then due to leave and, upon a signal's being given by the station master, the driver proceeded towards the exit. He drove, he says, very slowly - at one to two miles an hour. On another occasion, shortly after the accident, he estimated it as 'under 5 m.p.h.' The judge was satisfied that the speed was extremely slow and a proper speed for him to drive at.

4. The Plaintiff's evidence was that he intended to go to a zebra crossing to the west of the bus terminus, some yards up Tak Tin Street: there was a gap in the railings which ran along the pavement on the west side of the concourse for pedestrians to enter and come out, and he intended going through that gap and along the pavement to the zebra crossing. This the judge did not accept. The accident happened on a straight line drawn between the place where he alighted to the block where he lived, and clearly the judge formed the view that the Plaintiff was taking the shortest route from the bus to his home.

5. There were put in evidence two plans. The sketch plan drawn by a policeman shortly after the accident is not to scale but does contain the only measurements which we have.   It was admittedly inaccurate in that it showed only seven bus bays, when there were eight but nothing turns upon that.

6. The fact is that neither the driver of the bus (the 1st Defendant) nor the pedestrian (the Plaintiff) saw the other, nor did the Plaintiff hear the approaching bus, but after each of them had gone some 35 feet from the bus bay a collision occurred and the Plaintiff's foot was run over by the near side front wheel of the bus. There was no evidence before the court as to the model of bus which was involved: therefore we do not know exactly how far from the front of the bus the wheel was, nor do we know precisely how far back the Plaintiff was in relation to the driver's seat.

7. The first question on the appeal is whether the judge approached the case wrongly when he said

"On the face of it, and this is conceded by Mr. Bharwaney who appears for the plaintiff, he (i.e. the plaintiff) failed to keep a proper lookout for his own safety. The concern of this court is to ascertain whether or not blame also attaches to the driver of the bus."

Mr. Mills-Owens argues - and. I am satisfied that this is correct - that the negligence of the Plaintiff was not the first question which has to be considered. However, the negligence of the Plaintiff having been admitted, it was not wrong for the judge to mention that fact at the beginning. I am not persuaded that the judge did not fully appreciate that the initial question was whether the 1st Defendant was negligent, and that is the question which I now proceed to consider.

8. We are faced with decisions of the trial judge first as to the primary facts and secondly as to the inferences to be drawn from those primary facts. On the authority of Benmax v Austin Motor Co. Ltd.1955 A.C.370 I am satisfied that as to the Primary facts we should be very slow to interfere with the findings of the judge. As to the secondary findings we should of course attach proper weight to the opinion of an experienced judge, but at the same time it is for us to form our own views as to what is the proper inference which may be drawn from the primary facts. The primary facts relate, first, to the position of the collision, which, as I say, was a few feet from the exit. It was also found that the Plaintiff had been walking blind in a place where buses were known to be going in and out on a line which took him across the concourse. The bus, travelling at a slow speed, was going towards the exit and the driver was aware of the danger, having himself been on that route for five years, and, as I understand it, actually using this concourse for three years. His evidence was that he was driving slowly because of the known danger, that he looked to the left to see whether it was safe - by that I mean that he looked in the left hand mirror; he looked to the front; he looked to the right. In looking to the right he not only looked to see whether there were any pedestrians who were likely to be in danger from his approach, pedestrians either in the concourse or walking along the spur of the pavement, but he also looked to see whether there was any traffic coming along Tak Tin Street which would prevent his emerging on to the road. He then looked again to the left - into the left hand mirror. It was at that moment that for the first time he became aware of something which he deduced might cause a position of danger. He therefore braked violently but it was too late to prevent the bus's going over the Plaintiff's foot.

9. The substance of Mr. Mill-Owens' argument, and it has been a very forceful argument if I may say so with respect, is that the 1st Defendant ought to have been able to see the Plaintiff, and that the fact that he failed to see him is indicative of an improper lookout. Mr. Mills-Owens fortified this contention by suggesting that the 1st Defendant was paying improper attention to traffic on Tak Tin Street when he should have been concentrating his entire attention on the dangers of proceeding across the concourse. The difficulty which I see in accepting this argument is that we cannot say, in my view, that the Plaintiff was at anytime in a position in front of the bus, or to the side of the bus in a position where it was incumbent on the Defendant to become aware of him. On the evidence it was not unreasonable to find that the Plaintiff was walking at least as fast as the bus was travelling if not faster. They were approaching each other at an angle - an angle which the judge considered to be approximately 45°. In those circumstances I am not persuaded that the Plaintiff was ever in the ordinary field of view of the 1st Defendant: he was at all times, I might describe it, behind the 1st Defendant's shoulder. I do not think it was incumbent on the 1st Defendant to look over his shoulder. He was bound to look ahead to see that he did not run over anybody to his front. He was also bound to take reasonable steps to see that there was no danger behind by the use of his rear view mirrors. We do not have a scale drawing of the positions of the respective parties but, as it seems to me, the Plaintiff would not necessarily be within the view of the 1st Defendant through the rear view mirror on the near side until the time when the 1st Defendant admits that he saw something. By that time I am satisfied it was too late. Even if there was a duty on the 1st Defendant to drive up to an imaginary line projecting from the northern side of the spur of the pavement across the exit, as though there were a "Stop' sign there, before he looked to see whether traffic was coming along Tak Tin Street, I am not persuaded that the fact that he was not intending to stop and was looking to see whether the traffic was safe, with the intention of going on in any way affected the result of this case. I think the judge was entitled to come to the conclusion that the 1st Defendant was not negligent in having failed to see the Plaintiff until that last moment, when he was practically in contact with the bus.

10. For these reasons I would dismiss this appeal.

Silke, J.A.:

11. I am in complete agreement with that which was fallen from my Lord, conclusions he has reached and the reasoning therefor. I too, would dismiss the appeal.

Fuad, J.A.

12. I also agree that the appeal should be dismissed. The Plaintiff, for whom one must have every sympathy, failed to satisfy the judge that the 1st Defendant had been guilty of any degree of negligence. Kempster J.'s findings on the primary facts cannot be assailed, and indeed have not been challenged. I am not persuaded that his "perception and evaluation" of those facts (to use Viscount Simond's phrase in Benmax v. Austin Motor Co. Ltd.) was wrong. I am bound to say, with respect, that I draw the same inferences and conclusions from the primary facts he found as did the learned judge.

19th March 1985

Representation:

R. Mills-Owens, Q.C. & Bharwaney for Applicant.

N. Pirie for Respondent.