Tam Wai Chun v. Choi Sui Kwong

HCMP 249/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 249 OF 2009

(ON APPEAL FROM DCPI NO. 2647 OF 2007)

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BETWEEN

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Before: Hon Yeung and Yuen JJA in Court

Date of Hearing: 2 April 2009

Date of Judgment: 2 April 2009

Date of Handing Down Reasons for Judgment: 7 April 2009

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REASONS FOR JUDGMENT

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Hon Yeung JA (giving the Reasons for Judgment of the Court):

1.Kwok Shui Road in Tsuen Wan carries two opposing lanes of traffic, one up-slope eastbound towards Kowloon and the other down-slope westbound towards the New Territories.

2.On 7 January 2005 at about 8.45 a.m., the plaintiff alighted, on the up-slope lane, from a taxi which stopped behind a stationary double-decker bus, and proceeded to cross the road to go to the Tai Wo Hau MTR station on the opposite side of the road. The plaintiff stood about three feet behind the bus, which was still picking up/letting off passengers, and then quickened her steps to cross the road as she was in a hurry.

3.The plaintiff, after taking just a few steps, collided with the front parts of the defendants’ private car on the down-slope westbound lane. Prior to the impact, the defendants’ car was travelling at 40-45 km/h, well within the speed limit of 50 km/h.

4.The plaintiff subsequently pleaded guilty to a summons of “using a road…negligently endangering his own safety or that of another person”, and was fined $200.

5.The plaintiff then commenced proceedings in the District Court against the defendants for negligence. The claim was dismissed. Application for leave to appeal was refused both by the trial judge and by a single judge of the Court of Appeal. The plaintiff renewed her application before us.

6.Mr Simon Lam, on behalf of the plaintiff, argued that the driver of the defendants’ car, on seeing a stationary bus, should always slow down in case there were pedestrians emerging suddenly from behind the bus. Mr Lam emphasized that at the point where the plaintiff crossed the road, there were breaks in the railings separating the road and the pavements, allowing pedestrians to cross Kwok Shui Road. Mr Lam suggested that a prudent driver should have anticipated pedestrians crossing the road at that point and should have taken special care, including slowing down his vehicle to a speed of 20 km/h.

7.Mr Lam also referred to the following Road Users’ Code:

“Drivers have the legal and moral responsibility to take proper care to avoid accidents with pedestrians at all times and places – even if the pedestrians are jay-walking…Drive carefully and slowly when…you see a bus stopped…Look out for pedestrians emerging suddenly, for example from behind parked or stopped vehicles.”

8.Mr Lam suggested that 40-45 km/h may well be a reasonable speed when there were no special circumstances, but such speed should be reduced when seeing a stationary vehicle in case of pedestrians suddenly emerging from behind.

9.The only point is whether it is arguable that the driver of the defendants’ vehicle should have anticipated the plaintiff suddenly stepping out from behind the stationary bus and should therefore have slowed down his vehicle to a speed that would have enabled him to stop almost immediately. On this issue, we do not agree with Mr Lam’s submission.

10.We only wish to repeat what Trainor J said in Kwan Sing-Ho v Kwan Yuk-Lan [1976] HKLR 489 at 504 to 505:

“It has been argued by Mr Asome that pedestrians in Hong Kong are notoriously careless and that motorists should be aware of this. He would suggest that, particularly, when a motorist sees a stationary car or tram he should anticipate someone stepping out from behind it and into his path. With the greatest of respect he is expected to anticipate no such thing. He is entitled to expect the inhabitants of Hong Kong to behave as rational, reasonable human beings, subject to the same instinct for self-preservation as the inhabitants of any other similar sophisticated city. To suggest that a motorist is to anticipate that behind every stationary car there lurks a person who may emerge and, without looking to see what traffic there is, proceed suicidally into the traffic’s path is unsustainable. To suggest that a motorist driving normally along a road in obedience to a traffic signal should anticipate that a pedestrian will step from behind a stationary car into his path, when a casual look to the left or right would have revealed the motorist’s approach, and be in a position to stop before hitting the pedestrian is expecting far too much. To hold otherwise would leave a pedestrian in the belief that at a controlled crossing he may emerge, in disobedience of the control, in the confident belief that even if he is negligent so is the motorist who is unable to stop and hits him. Such a decision would amount, well nigh, to an invitation to pedestrians to flout control and take a chance. Such a possibility has only to be considered to be discounted. To implement such an idea would bring traffic in Hong Kong to a crawl and make traffic control pointless.”

11.We agree entirely. Even though this was not a controlled crossing as in the quoted case, the openings in the railings are not an invitation to pedestrians to cross the road in a suicidal manner.

12.From the time the plaintiff emerged from behind the stationary bus to the time of her collision with the defendants’ vehicle, she would have moved a distance of not more than a few feet, and for the defendant driver to stop in time to avoid the collision, he would have had to reduce his speed to no more than 5 km/h. It is not reasonable to expect the defendant driver to drive in such a manner.

13.The accident was caused entirely by the negligence of the plaintiff and her proposed appeal has no realistic prospect of success.

14.We therefore also refused the plaintiff’s application for leave to appeal.

Mr Simon H W Lam instructed by Messrs Andrew Chan & Co for the Plaintiff.