Ho Hing Yuen v. Lee Wai Kai
Read the full judgment text of CACV 258/2004 on BabelCite. This Court of Appeal judgment was delivered on 10 May 2005 before Rogers VP, Le Pichon JA, Stone J.
Negligence – personal injuries – pedestrian knocked down by light goods vehicle – driver travelling at 45-46 kph on dual carriageway with 50 kph limit at 5:43 a.m. – plaintiff suddenly ran out from gap between stationary bus and coach without warning and without looking – whether driver negligent in speed and manner of driving – whether driver had discharged duty to anticipate pedestrians emerging from between parked vehicles – duty to drive at speed enabling stop when foreseeing danger of persons emerging from front of stationary bus – whether sounding horn or flashing headlights required – contributory negligence – quantum of damages assessed at over HK$4 million in case relevant – single witness (defendant) evidence accepted – whether defendant negligent – majority held no negligence, defendant discharged his duty – dissent (Stone J) found prima facie case of negligence at 46 kph, apportioning 20% liability to driver and 80% contributory negligence to plaintiff – appeal dismissed by majority.
Legal issues: Whether the defendant driver was negligent in the manner and speed of driving
Outcome: Appeal dismissed by majority (Rogers VP and Le Pichon JA); Stone J dissenting would have allowed the appeal to the extent of finding the defendant 20% liable and the plaintiff 80% contributorily negligent.
Cited by 5 cases
|
CACV 258/2004 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO. 258 OF 2004 (ON APPEAL FROM HCPI NO. 58 OF 2003) __________________ BETWEEN
__________________ Before: Hon Rogers VP, Le Pichon JA and Stone J in Court Date of Hearing: 10 May 2005 Date of Judgment: 10 May 2005 __________________ J U D G M E N T __________________ Hon Rogers VP: 1.This is an appeal from a reserved judgment of Suffiad J given on 31 May 2004. The matter before the judge was an action for personal injuries brought by a pedestrian who had been knocked down by a light goods vehicle. The judge dismissed the claim but in case it might later become relevant, he assessed the damages. The total on that assessment came to in excess of $4 million. 2.The background to the case is quite simple. There was only one witness who gave evidence and his evidence was accepted by the judge. That was the evidence of the defendant. It is summarised in paragraphs 8-13 of the judgment. I can do no better than to quote directly from the judgment:
3.That really summarises the whole matter. Mr Sarony SC, in this Court, narrowed the argument. In the court below,the allegations of negligence had been put on the basis that the defendant should not have been travelling at more than 20 kilometres per hour, that he had not sounded his horn and that he had not flashed his headlights. Sounding the horn at that time in the morning, passing a housing estate, is just a matter which is something which would have attracted the attention of the police, but, as the judge said, would have been unreasonable. Not flashing the headlights when the headlights are on is simply irrelevant because, at that time of the morning, on 1 November, the road was dark and a vehicle travelling with its headlights on is easily visible by all other road users, including pedestrians. 4.In this Court, the argument came down simply to a question of speed. Mr Sarony argued on the basis that the driver had admitted having foreseen a danger of persons emerging in front of the bus which had stopped to let down and pick up passengers. He said that, because of that, the driver had a duty to drive in such a way that he could stop. When pressed by members of this Court as to what speed that would be, he said it would have to be about 15 kilometres per hour and, in any event, if he had been travelling slower than 45 kilometres per hour, the impact would have been less. 5.In my view, the matter is quite simple. I entirely agree with the judge below. I cannot see that, given the road condition and given the time of day and the absence of other road users, the defendant was travelling other than in a careful manner. He was in third gear; he was travelling at a very reasonable speed for that sort of a road, which was a divided dual carriageway road, admittedly with buses there. But unfortunately, if pedestrians choose to run across the road, they take, literally, their life in their own hands; worse still if they do so without looking. 6.The liability for personal injuries is still based on negligence. In this case I cannot see that the defendant was negligent. I therefore see that this Court has no alternative but to dismiss this appeal. Hon Le Pichon JA: 7.I agree with the judgment of the Vice President. I would add that I agree with the judge below that the defendant was under a duty to expect that pedestrians may emerge (not run out) from between the parked vehicles. Clearly, in this case, the defendant had discharged that duty. 8.I would therefore dismiss this appeal. Hon Stone J: 9.I have the misfortune to take a different view from that of the majority of this Court. My Lord, the Vice President, has rehearsed the facts and I gratefully adopt his summary of them. 10.The only question in my mind is whether, in these particular circumstances, this driver was driving too fast. 11.There is no doubt that he was aware that he was approaching a stationary bus. He says, in his evidence, that he saw a KMB setting down and picking up passengers there and, shortly thereafter he makes it clear that he had moved closer to the kerb on the right side - by which I take it to mean the central divider - in a deliberate attempt to take avoiding action - and I quote - “because to some extent it worried me that someone might be coming out in such a way”. The situation therefore is that he had in his mind, entirely properly, the possibility of someone emerging from the front of the bus, as we know that most regrettably this young boy in fact did. 12.In these circumstances, I am unable to persuade myself that 46 kilometres per hour was, as the learned judge found, “doing as much as any reasonable driver would have done in the circumstances”. In my view there is here a prima facie case of negligence. 13.Equally, however, as Mr Sarony with his usual common sense accepted, there must be a very substantial degree of contributory negligence. This is not an easy case. Mr Sarony says, as far as he is concerned, that contributory negligence could “not be less than 70 per cent”. I would think that in this he is using a touch of advocate’s licence. 14.Looking at the matter largely and liberally, I would have put the level of contributory negligence at 80 per cent, but I would have held that the driver was 20 per cent liable for this accident. 15.For my part, therefore, I would have allowed this appeal to the extent that I have indicated.
Mr Neville Sarony SC, instructed by Messrs Chung & Kwan, for the Plaintiff/Appellant Mr Kumar Ramanathan, instructed by Messrs Munros, for the Defendant/Respondent |