Chan Hoi Shan v. Chan Man Hing and Another

HCPI 199/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 199 OF 2005

BETWEEN

Before : Hon Sakhrani J in Court

Date of Hearing : 28 and 29 November 2006

Date of Judgment : 8 December 2006

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J U D G M E N T

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1.At about 1.29 pm on 2 March 2002, the plaintiff Chan Hoi Shan, a young girl of 9 years old, was crossing Ting Kok Road from west to east when she was knocked down by a van registration no. HS 6250 (“the vehicle”) driven by the 1^st defendant.  As a result of the collision, the plaintiff sustained severe head injuries. 

2.The writ of summons for damages for personal injuries was issued on behalf of the plaintiff on 28 February 2005 and was amended as to the name of the 1^st defendanton 24 February 2006.  The statement of claim was filed on 16 March 2006.  The defence was filed on 28 March 2006.

3.On 14 July 2006 Master B. Kwan ordered by consent that the issues of liability and damages be tried separately.

4.This is the trial of the issue of liability.

5.There is no dispute that the 1^st defendant was driving the vehicle as servant or agent of the 2^nd defendant at the material time. 

6.I heard evidence from the 1^st defendant.  The plaintiff was unable to recall how she was injured and did not give evidence.  I also had the hearsay evidence of Chan Sze Kar and Law Man Chun contained in their statements to the police.

The undisputed facts

7.The undisputed facts are that at the material time the 1^st defendant was employed as a driver for the 2^nd defendant.  On 2 March 2002 at about noon the 1^st defendant drove the vehicle with six or seven colleagues from the site office of the 2^nd defendant to the Tai Po Centre for lunch.  At about 1.15 pm he picked up three colleagues from that place to drive them back to the site office.  He was travelling from south to north on Ting Kok Road.  When he reached the junction with Tai Wo Road the traffic light was red so he stopped.  His vehicle was the first vehicle before the lights. When the lights turned green in his favour the 1^st defendant drove the vehicle along Ting Kok Road in a northerly direction intending to go back to the site office.  He was travelling at a speed of 40 to 45 kmph.

8.Just before the junction of Ting Kok Road and Kwong Fuk Road there was a Green Man crossing controlled by traffic lights (“the Green Man crossing”).  As the 1^st defendant was approaching the Green Man crossing the lights were green in his favour and red against pedestrians wanting to cross the Green Man crossing.  The 1^st defendant maintained his speed of 40 to 45 kmph.  The speed limit of that part of Ting Kok Road was 50 kmph.

9.As the photographs at page 32 of the agreed bundle of documents (“BD”) show, just before the Green Man crossing there was a warning sign described in the Road Users’ Code as ‘On the roadway’.  This was a sign depicting an adult and a child and was a warning sign to motorists that pedestrians would be “on or crossing road ahead” (“the warning sign”).

10.There was also a school on the north east part of Ting Kok Road just past the Green Man crossing (“the school”).

11.The 1^st defendant was familiar with that stretch of Ting Kok Road and he knew that there was the warning sign and the school there.

12.The plaintiff was crossing Ting Kok Road from west to east intending to go to the school at the material time.  She was knocked down by the vehicle driven by the 1^st defendant. 

13.The police sketch at page 30 of BD (“the sketch”) shows where the vehicle eventually stopped after the collision.  It also shows the presence of skid marks just before the Green Man crossing.  The skid marks are also shown in the photographs at page 36 of BD.

14.At the material time the weather was fine and the road surface was in good condition.

15.The above facts are undisputed.

The issues

16.The issues are :

(1)    whether the 1^st defendantwas driving negligently at the material time;

(2)    If so, whether the plaintiff was contributorily negligent.

Was the 1^st defendant driving negligently?

17.The 1^st defendant gave evidence that he had more than 20 years driving experience at the time of the accident.  He said that before reaching the junction of Ting Kok Road and Tai Wo Road he had been travelling in the middle lane of Ting Kok Road.  As he had to go straight ahead at the said junction he had to be in the middle lane of Ting Kok Road.  As he was going from south to north along Ting Kok Road, the middle lane merged into the single lane going along Ting Kok Road in a northerly direction.  

18.At the junction with Tai Wo Road, the lights were red and the 1^st defendant stopped the vehicle there.  His vehicle was the first one in the lane.  When the lights turned green, he travelled along Ting Kok Road going in a northerly direction at a speed of 40 to 45 kmph.  He saw that the traffic lights at the Green Man crossing at the junction of Ting Kok Road and Kwong Fuk Road were green in his favour so he maintained his speed of 40 to 45 kmph.

19.It was the 1^st defendant’s intention to go straight ahead along Ting Kok Road at the junction with Kwong Fuk Road.  At the junction with Kwong Fuk Road, motorists can either turn right or go straight ahead and it was the intention of the 1^st defendant to drive straight ahead.

20.The 1^st defendant also said that when he was 10 odd metres away he noticed that there were pedestrians waiting to cross the road at the Green Man crossing that he was approaching.  There were about 7 to 8 pedestrians standing and waiting to cross the road on his left side and 3 to 4 pedestrians waiting to cross the road on his right side standing in the centre safety island which is shown in the photographs at page 32 of BD.

21.The 1^st defendant gave evidence that when he reached the Green Man crossing he saw a human like object, which must have been the plaintiff, running diagonally from his left side to his right side.  He failed to stop in time so the front of his vehicle hit the plaintiff.  He steered to the right at once and came to an emergency stop.  He vehicle moved forward for 1.5 to 2 metres before it came to a stop at an angle at the junction of Ting Kok Road and Kwong Fuk Road.

22.On his evidence he steered to the right after he hit her.  His vehicle came to a stop with the vehicle pointing to the right as shown in the photographs at page 36 of BD.  This would support his evidence that he steered to the right and his vehicle came to a stop at an angle at the junction of Ting Kok Road and Kwong Fuk Road.

23.The 1^st defendant said in evidence that he did not see where the plaintiff came from.  When he first saw her she was very close to the front of his vehicle.  He estimated that he was about 1 foot from her when he first saw her.

24.He was familiar with that stretch of the road and knew that there was a school and the warning sign there.

25.He also said that he noticed that there was a dent in the front panel of the vehicle after the accident.  He marked in exhibit P1 the part of the panel where the dent was found.  

26.The MVE accident report confirms that the front panel was dented but does not say where exactly the dent was.  It is impossible to ascertain from the photographs where the dent was but I believe the 1^st defendant when he said that the dent was in the place marked by him in exhibit P1 which was just below the left windshield wipers.  I would infer that this was the part of the vehicle which struck the plaintiff before she, as the 1^st defendant said, bounced off the vehicle onto the ground.  I also accept the 1^st defendant’s evidence as to where the plaintiff was lying after the vehicle eventually stopped as marked by the 1^st defendant in exhibit D1.

27.I accept the parts of the 1^st defendant’s evidence as set out above and believe him on those matters.

28.The plaintiff’s case as opened by Mr Chik, for the plaintiff, was that the plaintiff was crossing at the Green Man crossing walking hurriedly but not running.  However, the plaintiff called no evidence in support of this.

29.Chan Sze Kar, who was 6 years old at the time, said in her statement to the police that the plaintiff, who was a schoolmate of hers, accompanied her to go back home to Tai Po Hui as she (Chan Sze Kar) needed to get money from her mother to go back to school and play at the games stalls.  It seems that there was some sort of school fair at the time with games stalls at the school.  She said that after they passed through the Tai Wo Bridge the plaintiff was running out to the road.  She ran after her.  Thereafter she saw the red man traffic light and immediately stood upright.  She saw the plaintiff running towards to the middle of the Green Man crossing and was hit by a vehicle.

30.Law Man Chun was 16 years old at the time.  In his statement to the police he said that at the time he was standing at the Green Man crossing waiting to cross the road towards the Government Offices on the other side of Ting Kok Road.  The lights showed a red man so he stood at the crossing.  After a few seconds, he noticed that there was a girl, presumably the plaintiff, running out diagonally to the road.  She was approximately 2 metres from his left side.  Then he looked to his right side.  About 2 to 3 seconds later, he heard a loud braking sound and saw the vehicle stopping and the plaintiff was rolling on the ground for about 1 metre.  She was lying on the ground and did not move.

31.In the sketch that the 1^st defendant signed when making his police statement on 10 April 2002 the plaintiff is shown to have been crossing the road at the Green Man crossing in a straight line.  This is contrary to what the 1^st defendant said in his witness statement and in Court.  His witness statement was in fact a statement that he made to insurance loss adjusters and was made before his police statement.  The 1^st defendant, however, was never cross-examined on his police statement or the sketch that he signed.

32.It seems to me that Law Man Chun’s version is more reliable than Chan Sze Kar’s as she was only 6 years old at the time.  I prefer to accept his evidence.  Law Man Chun supports the 1^st defendant’s evidence that the plaintiff was running out diagonally.  

33.It seems to me and I so find that at the material time the plaintiff was running out from the kerbside and started crossing at the Green Man crossing when the red man light was on and the lights were green in the 1^st defendant’s favour.  She then ran diagonally to her left away from the crossing in the direction of the school when she was struck by the vehicle driven by the 1^st defendant.

34.I also find that the 1^st defendantdid not see her until he was about 1 foot away from her.  When he saw her he braked immediately and there is evidence of skid marks in the sketch at page 30 and the photographs at page 36 of BD.

35.He also said in evidence that he did sound his horn but I do not accept this part of his evidence.  I do not believe him as to this.  I am convinced that this part of his evidence was only an afterthought when I asked him questions.  He had never mentioned to insurance loss adjusters, the police or to anyone else that he had sounded his horn until he mentioned it in answer to my questions at the end of his evidence.  In my view he was trying to impress me that he took steps to avoid the accident by sounding his horn. However, I do not believe him as to this.

36.Although the 1^st defendant did notice pedestrians standing by the Green Man crossing when he was 10 odd metres away, he did not see the plaintiff until he was about 1 foot away.  It seems to me that as he was familiar with the area and knew that there was not only the warning sign but also the school there, he must have realised that there would be children about.  

37.In The Road Users’ Code the sign showing the presence of a school indicates that there are child pedestrians about.  Drivers are warned that “children may step or run on to the road when you do not expect them”.  Although there was no evidence of such a sign on Ting Kok Road showing the presence of a school in the vicinity, the 1^st defendantwell knew that there was a school there.  As an experienced driver he ought to have kept a proper lookout for children stepping or running onto the road.

38.In my judgment the 1^st defendant failed to keep a proper lookout as he only noticed the plaintiff when she was about 1 foot away from him.  If he had kept a proper lookout he would have, in my view, seen her earlier and would have been able to take some evasive action earlier.

39.In my judgment although he was driving within the speed limit of 50 kmph, the 1^st defendant was also driving too fast in the circumstances when he maintained his speed of 40 to 45 kmph.  He did not reduce his speed or slow down but simply maintained his speed as he was approaching the Green Man crossing.  He knew full well that there was the warning sign there as well as the school.  Instead of maintaining his speed of 40 to 45 kmph he ought to have reduced his speed. 

40.In my judgment the accident was caused because the 1^st defendant was negligent as he had failed to keep a proper lookout for children stepping or running out onto the road and he had also failed to reduce his speed as he was approaching the Green Man crossing and the school.  Although the lights were green in his favour, it did not entitle him to lower his standard of care.  A green light is permission to a driver to drive beyond a certain point but does not entitle him to lower his standard of care (Au Cheung v Choi Lai-fan & another [1979] HKLR 543).

Was there contributory negligenceon the part of the plaintiff?

41.In Ho Kwai-loy (an infant by his father and next friend Ho Pei) v Leung Tin-hong and another [1978] HKLR 72 it was held that a child of 6 years is capable of contributory negligence.

42.It seems to me that although I have found that the 1^st defendant was negligent, a major portion of the fault must lie with the plaintiff.  She ran across the road when the red man light was on and without making sure that the road was clear.  She was obviously in a hurry to get back to the school without regard for her own safety.  I find that the extent of her contributory negligence is 60%.

43.I apportion liability at 60% on the part of the plaintiff and 40% on the part of the 1^st defendant.

44.As there is no issue that the 1^st defendant was driving the vehicle as servant or agent of the 2^nd defendant at the material time, vicarious liability against the 2^nd defendant has been established.

45.I give judgment to the plaintiff against the defendants on the issue of liability to the extent of 40% liability on the part of the defendants with damages to be assessed by a Master.

46.I also make an order nisi for costs that the plaintiff’s costs of the action on the issue of liability be paid to the plaintiff by the defendants.

Mr Kenneth C. W. Chik, instructed by Messrs Anthony Ho & Co., for the Plaintiff

Mr Andrew Li, instructed by Messrs Hastings & Co., for the 1^st and 2^nd Defendants