Wong Kin Fan v. Fok Yue Ming

DCPI 1207/2006

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO. 1207 OF 2006

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BETWEEN

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Coram: His Hon Judge Leung in Court

Date of hearing: 15-16 August 2007

Date of handing down judgment:  23 October 2007

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JUDGMENT

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INTRODUCTION

1.The Plaintiff claims damages for personal injuries sustained in a traffic accident in 2006.  Quantum of damages has been agreed before trial subject to finding of liability and contributory negligence, if any.

THE ACCIDENT

2.It was about 24 minutes after noon on 20 January 2006.  The scene was a 2-way road (“the Road”) in the Queen Elizabeth Hospital (“the Hospital”) area.  The opposite lanes are divided by a broken white line along the middle of the Road.  The Defendant was driving a taxi (“the Taxi”) along the Road in the direction of Block M of the Hospital.  Alongside his left were some pavements.  When the Taxi reached near the pavement (“the Pavement”) where there is a basketball field (“the Basketball Field”), its left front collided with the Plaintiff who was crossing the Road.

3.The Road is a straight road without noticeable sloping.  The speed limit, as shown conspicuously by the white circular markings on the Road, is 15 km/h.  The traffic at the time was light.  The road condition was good.  So were the weather and the visibility.

4.After the collision, the Taxi came to halt after travelling a distance.  It was discovered that the left wing mirror of the Taxi was damaged.  No other obvious scratch mark or dent could be observed on the front or left of the taxi.

5.The above is not in dispute and is in any event evidenced by the photographs taken by the police on the day after the accident.

6.The Plaintiff was sent to the hospital.  Examination showed tenderness over his right ankle and abrasion over his left lower chest wall.  He was discharged on the same day.  Examination on the following day also confirmed sprained neck, back and right thigh contusion.  There was no fracture.  This is evidenced by the medical reports on the Plaintiff.

PLAINTIFF’S CASE

7.The Plaintiff was then 19 years old and a pest controller.  According to him, he was at the time on his way to work at the Hospital with his colleague Wong Nga Tik (“Wong”).  They walked out of a side road perpendicular to the Road.  Wong was ahead of him.  When he reached the Pavement, he turned left and continued walking in the direction of Block M.  The Basketball Field was on his left.  Before he crossed the Road, he stood on the Pavement and looked to his right to check the traffic.  Seeing no vehicle approach from about 20 metres away, he stepped out of the pavement onto the Road quickly.  After a couple of steps, he was hit by the Taxi.  The impact was so strong that he was thrown in the air and landed on the ground.  The Taxi was travelling so fast that it proceeded for another 10 metres before coming to a halt.

DEFENDANT’S CASE

8.According to the Defendant, he was driving at about 10-15 km/h, i.e., within the speed limit on the Road.  He saw the Plaintiff before he reached the Pavement where the Basketball Field is.  The Plaintiff was walking very close to the kerb of the Pavement with his back towards the Taxi.  The Defendant took the precaution and drove a bit to the middle of the Road.  When the Taxi reached the point where its front almost levelled with the position of the Plaintiff, the Plaintiff suddenly turned his body and set foot onto the Road.  The Plaintiff braked and brought the Taxi to a halt after travelling for about 5 to 6 feet.  This could not avoid hitting the Plaintiff.

ISSUES

9.I need to decide the issues of the lookout of the respective parties, the speed of the Taxi and the manner in which the Taxi was controlled at the time.  These issues were indeed encompassed by the parties’ respective pleading of negligence against each other.

The Plaintiff

10.Looking at the photographs of the scene, one could see basically a straight road behind the point of collision.  With the prevailing visibility at the time as depicted, one should be able to see the traffic condition within 100 metres from the point where the Plaintiff allegedly looked to his right.  The Plaintiff effectively admitted that in court.  Yet his alleged lookout at the time only reached 20 metres.

11.In court, the Plaintiff explained that he started crossing the Road in quick pace.  He disputed the accuracy of his statement to the police which recorded that he ran across the Road.  In explaining why he failed to point out such alleged inaccuracy despite the opportunity of perusing his statement, the Plaintiff admitted that he might be reckless.  Such explanation is hardly impressive.

12.In his first statement filed in November 2006, the Plaintiff stated that the Taxi was so fast that it had to travel some 10 metres before coming to a halt.  By his second statement filed less than 3 weeks before trial, he corrected that to 10 feet.  In court, he changed his evidence once again and said that the distance should be 10 metres.

13.The Plaintiff explained in court that he was not exactly sure how far 10 metres were when making his first statement.  He found out that it should be 10 feet and therefore corrected that by his second statement.  He allegedly went back to the scene of the accident again just the Sunday before this trial to take measurement.  He found out that it was 10 metres, not 10 feet.

14.Ms Lau for the Plaintiff, in her closing, submitted that the Plaintiff was under a misapprehension that his earlier estimation of the distance given in his first statement was a mistake and therefore saw the need to correct it by his second statement.  On both occasions, no measurement was actually taken.  The most recent version, she submitted, echoed his earlier account and should be accepted.

15.However, in his second statement, the Plaintiff specifically explained that he did tell his solicitors that the distance was 10 feet and not 10 metres.  It was only his solicitors’ typing error in his first statement which the Plaintiff failed to detect when reading and signing it.  He therefore corrected it.  In other words, contrary to what he and his counsel said in court, the Plaintiff never held the (mistaken) belief or estimation that it was 10 metres when he made the first statement.

16.The Plaintiff made his second statement after he went to the scene of the accident with his mother and solicitors in February 2007 for the specific purpose of testing and verifying the parties’ respective versions of the speed and the stopping distance of the Taxi.  They even cared to record the test on video.  However, the Plaintiff said in court that he had not thought about taking measurement of the distance in question during that visit.  Yet just the Sunday prior to this trial, he thought he needed to be correct and therefore allegedly went back to the scene to take such measurement.  The result of the measurement happened to be 10 metres.  Mr Wong for the Defendant suggested that this was odd.  I share Mr Wong’s scepticism.

17.As to the test carried out during that visit in February 2007, the Plaintiff’s party apparently got on a taxi and requested the driver to brake while driving at 15 km/h.  The taxi was said to stop immediately.  The same test was carried out again but at 30 kph.  It was said that the taxi did not stop immediately and they also felt the whip caused by the sudden braking.  The test was captured by a video camera from the backseat of the taxi.  A video compact disc recording the same was produced and viewed in court.

18.The reality is that sudden stopping normally entails a thinking distance and braking distance.  I am sceptical about the reliability of the homemade test carried out by the Plaintiff and therefore the weight to be attached to such evidence.  For the purpose of ascertaining the stopping distance, it should be more reliable to refer to the Road Users Code.

19.The police officer attending the scene gave evidence.  According to him, the photographs depict the position of the Taxi upon his arrival.  He said the Basketball Field’s dimension along the Pavement was about 10 metres.  The distance between the rear of the Taxi and the circular speed limit marking on the Road (i.e., about the point of collision) was 1 vehicle’s length, about 4 metres.  One can see that the entire measurement remains within the 10-metre dimension of the Basketball Field.  While the Taxi might not have travelled for precisely 5 to 6 feet before coming to a halt as the Defendant said, it clearly did not travel for another 10 metres as alleged by the Plaintiff.

20.Also judging from the injuries suffered by the Plaintiff as a result of the collision, I am not convinced that the impact was as strong as one which would have thrown the Plaintiff in the air as he alleged.

21.In view of the evidence, I do not find the Plaintiff’s evidence credible.  I accept the Defendant’s evidence that the Plaintiff suddenly turned and stepped out of the Pavement onto the Road without any proper lookout.

The Defendant

22.The Plaintiff was to blame for the accident.  But was the Defendant negligent too?

23.The Defendant had not been prosecuted as a result of the accident.  However this does not connote the absence of negligence on the part of the Defendant.  The standard of proof in criminal prosecution differs from that in the present case.  This apparently explains the police’s decision not to prosecute.  Their letter dated April 2006 confirms that.

24.Ms Lau for the Plaintiff submitted that even if the Defendant’s case is accepted, the Defendant was still negligent.  She relied on numerous cases in which the drivers were found liable for having failed to exercise reasonable care to avoid colliding with the pedestrians upon seeing them.  Mr Wong for the Defendant submitted that the scenarios in these cases are distinguishable from the present case.

25.In Williams v Needham [1972] RTR 387, the pedestrian was standing by a car and clearly intending to cross the road.  In Foskett (an infant) v Mistry [1984] RTR 1, the 16 and ½ year-old boy was cycling downhill and the defendant driver should have seen him from a distance.  In Kong Chung Ching & Anor v Lam King Ho & Anor [1992] 1 HKC 104, the pedestrian was outside the railing and looking straight ahead as if he was about to cross the road.  In Wong Shek Keung & Anor v Leung Sing Kiu & Anor [1989] 1 HKC 202, the defendant was driving at excessive speed without proper lookout.

26.Mr Wong submitted that in the present case, the Defendant saw the Plaintiff walk with his back towards the Taxi.  The Defendant saw no sign or indication that the Plaintiff was about to cross the Road, unlike the above cases.

27.The facts in these previous decisions are bound to vary from one to another.  However the key question discerned from these decisions should be whether the driver was or ought to be aware of a real possibility that the pedestrian might cross the road though the pedestrian was apparently not looking in the direction of the approaching vehicle.  How real such possibility has to be for the driver to take precaution was best explained by the Court of Appeal in Kong Chung Ching (at 107D referring to Ng Ching Hung v Lau Shun Hing, unreported, CA 182/90):

“……There, the court also referred to Fardon v Harcourt-Rivington (1932) 146 LT 391.  The court said:

The root of this liability is negligence, and what is negligence depends on the facts with which you have to deal.  If the possibility of the danger emerging is reasonably apparent, then to take no precautions is negligence; but if the possibility of danger emerging is a mere possibility which would never occur to the mind of a reasonable man, then there is no negligence in not having taken extraordinary precautions.

The trial judge found that while there was clearly substantial contributory negligence on the part of the deceased, the first appellant was also to blame for the accident……”

(emphasis added)

28.Was the possibility of the Plaintiff suddenly stepping onto the Road reasonably apparent or a mere possibility which would never occur to the mind of a reasonable man?

29.The present case contains its peculiar facts.  Unlike the cases referred to above, the spot where the Plaintiff stepped onto the Road was an open pavement without railings or parked vehicles.  Pedestrians could step onto the Road at any time.  This should not be surprising if they did.  As can be seen from the photographs, the kerb of that part of the Pavement had in fact been modified into a concrete slope descending onto the Road, and so had been the corresponding kerb of the pavement on the other side the Road.  Pedestrians were therefore reasonably expected to make use of this part of the Pavement (and the corresponding part of the opposite pavement) for crossing the Road.  A driver approaching there should be able to see that.

30.Wong marked on the photograph (Exhibit P6) his position on the other side of the Road when he heard the collision.  He had yet to enter the alley on the other side of the Road and was a few steps away from the pavement after crossing the Road.  While the Defendant did not seem to challenge that Wong crossed the Road from that part of the Pavement before the Plaintiff did, the Defendant made no mention of having seen Wong cross the Road before the accident.  In any event, the Defendant did see the Plaintiff sufficiently in advance.  He saw the Plaintiff walk close to the kerb of the Pavement with his back towards the Taxi.

31.In the circumstances, that the Plaintiff might all of a sudden step onto the Road from that part of the Pavement was not a mere possibility which would never occur to the mind of a reasonable man.  The possibility in fact occurred to the Defendant’s mind.  The whole point of his deciding to drive the Taxi further to the right was to avoid accident in case such possibility materialised.  The Defendant had to agree with this in court.

32.When it occurred to the Defendant that the Plaintiff might without warning step onto the Road while apparently not heeding the approach of the Taxi, the Defendant’s primary concern would have been to alert the Plaintiff of the Taxi’s approach.  Even by maintaining the Taxi within the legal speed limit, the Defendant might not have been able to stop in time to avoid the collision even if he had braked hard.  Indeed this was what happened.  He should have sounded the horn even when the Plaintiff was still to leave the kerb of the Pavement and before it was too late.

33.This may sound harsh on the Defendant who could not be said to have done nothing in this case.  In Kong Chung Ching, Nazareth JA expressed (obiter) similar reservation about what appeared to be an unrealistic and unduly high standard of care on the part of a driver.  That said, His Lordship still held (at 115B-C):

“Left to myself, therefore, I should have been inclined to regard the first appellant as having been neither negligent nor liable.  He was driving at a lawful and reasonable speed and was not, upon the foregoing basis, confronted with a situation or any matter that would require a reasonable man to react.  That said, I have to add that I am disturbed by the safety, ease and lack of effort with which action, i.e., to sound the horn or move away into the adjoining lane, could have been taken by the first appellant in the particular circumstances, even if they were unusual; also by the possibility that such action might be the natural and instinctive reaction of any driver.  These, also, seem to me to be considerations that bear upon the response or care that was called for.”

34.In the circumstances, the Defendant was negligent in causing the accident.

CONTRIBUTORY NEGLIGENCE

35.I have no reservation that the Plaintiff was substantially to blame for causing the accident.  In Williams, the plaintiff was 2/3 responsible.  In Kong Chung Ching, the plaintiff was 50% responsible.  In Foskett, the plaintiff was 75% responsible.

36.During trial, I drew counsel’s attention to the existence of a zebra crossing down the Road before the Taxi approached the Pavement.  According to the Plaintiff, it was the first time he went there for work and was not aware of the existence of the zebra crossing.  There was no dispute that the Plaintiff came out of the side road and turned left along the Pavement.  They were effectively walking away from the zebra crossing far behind them.  Given that the part of the Pavement was reasonably expected to be used for crossing to the other side of the Road, I agree with Ms Lau and would not attribute any blame to the Plaintiff for failing to make use of the zebra crossing in the circumstances.

37.Ms Lau for the Plaintiff submitted that the Plaintiff might have been under a false sense of security at the time, believing that Wong managed to cross safely just before him and therefore it would be safe for him to just follow and step onto the Road.  Even assuming that that operated on the Plaintiff’s mind as a matter of inference, I do not accept that to be an excuse at all.  The potential danger of traffic accident can hardly be alleviated on the mind of either the pedestrian or the driver without himself or herself actually taking precautions.

38.Considering the circumstances of this case, including the fact that the Defendant did take some precautions, I find the Plaintiff to be 2/3 to blame for causing this accident.

QUANTUM

39.The quantum has been agreed at HK$120,000 inclusive of interest and net of the employees’ compensation received by the Plaintiff.  Discounted by the contributory negligence, the amount would become HK$40,000.

ORDER

40.Judgment is entered in the above sum.  Interest from today until full payment shall run at the judgment rate.  The Plaintiff shall have costs of this action, including any costs reserved, to be taxed, if not agreed.  For clarity, I certify the engagement of counsel.  Taxation of the Plaintiff’s own costs shall be subject to the legal aid regulations.  This costs order is nisi and shall become absolute in the absence of appointment to argue in 14 days.

Representation:

Ms Julia Lau instructed by Messrs Yip & Liu on the instruction of the Director of Legal Aid for the Plaintiff

Mr Wong Po Wing instructed by Messr Cheng, Yeung & Co for the Defendant