Lam Shui Tsin v. James Tong
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CACV000011/1974 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CIVIL APPEAL NO. 11 OF 1974 (On appeal from O.J. 2048/73) -----------------
Coram: Huggins, McMullin & Pickering, JJ. Date of Judgment: 12th July 1974 ----------------- JUDGMENT ----------------- Huggins, J.: 1. This is an appeal against a judgment of the learned Chief Justice dismissing a claim to damages for personal injury. The facts as found at the trial were that on the afternoon of 20th April 1971 the Plaintiff crossed Chung On Street, Tsuen Wan, near a cross-roads. He walked across a studded crossing with the junction on his left and intended, after he had crossed, to walk down the far side of Chung On Street to his right. When he reached the far side he stepped side-ways to his left on to a part of the pavement which was outside some railings installed with the apparent purpose of preventing pedestrians from straying on to the carriage-way. The Defendant drove a 1 ?ton lorry round the corner at about 6 m.p.h. and crushed the Plaintiff between his vehicle and the railings. The basis of the Plaintiff's claim was that the Defendant failed to keep a proper lookout and that, even if he did not so fail, he wrongfully manoeuvred his lorry so that part of it overhung the footway where the Plaintiff was standing and failed to take proper steps to avoid injuring the Plaintiff. 2. We are told that the learned judge had a view of the scene, but that does not appear from the record and we have no note of what he saw. This is perhaps unfortunate because much of the argument has turned upon the position of the railings, as to which there was little oral evidence. However, counsel have agreed that the railings were set back from the carriage-way, so that there was a strip of pavement of a width of not less than one foot, and probably more, outside the railings, and that the Plaintiff's crush injuries could not have been caused unless the Defendant's lorry had over-hung the pavement. The railings extended from a point round the corner up to the place where pedestrians would mount or leave the pavement when using the crossing. We have photographs which show them to be tubular steel railings of a type generally used in Hong Kong. 3. The conclusion reached by the learned judge was that the Defendant owed no duty of care to anyone on the strip of pavement outside the railings and he made no finding as to the precise point at which the Plaintiff was standing or as to the reason why he came to be there. 4. Although both the carriage-way and the foot-way are included in the highway and neither the driver nor the pedestrian has an exclusive right to the use of the one or the other, there can be no doubt that where a pavement is provided it is intended primarily for the use of pedestrians and that the carriage-way is intended primarily for the use of other traffic. Indeed, s.4(8) of the Summary Offences Ordinance provides, inter alia, that "any person who without lawful authority or excuse rides or drives on any foot-path without obvious necessity" shall be guilty of an offence. In the ordinary way the driver of a vehicle of which the over all width is greater than its wheel base (which probably must include most motor vehicles by reason of the Road Traffic (Construction and Use) Regulations) is bound to ensure that the entire vehicle is confined within the limits of the carriage-way. If by reason of the over-hang he strikes a pedestrian on the foot-path he is guilty of negligence: Laurie v. Raglen Building Co., Ltd. 1942 1 K.B. 152. The same principle was applied in Watson v. Thomas S. Whitney & Co., Ltd. 1966 1 W.L.R. 57 where Sellers, L.J. said at p.60:
It follows that if there had been no railings on this corner the Plaintiff would clearly have been entitled to stand where he did and, if he had been struck by the Defendant's vehicle, the Defendant would, in the other circumstances of this case, have been wholly to blame. 5. What difference, if any, does the presence of the railings make. The purpose of railings of this type is to prevent pedestrians from encroaching upon the carriage-way either deliberately or accidentally, just as the purpose of crash barriers is to prevent vehicles from escaping from the carriage-way. The learned judge adverted to the fact that railings are sometimes erected away from the edge of the carriage-way and asserted that the object in doing that was "to allow for vehicles to come very close to the pavement and not to come in contact with the railings". With respect, it would not be necessary to set back the railings at all "to allow for vehicles to come very close to the pavement": that would only become necessary to allow vehicles to encroach upon the pavement. The words used by the learned judge might suggest that the purpose of setting back the railings was merely to ovoid costly damage to them by vehicles which wrongfully manoeuvred themselves so that part of them projected over the pavement. If that was the intention it would mean that the highway authority sought to alter the character of the character of the strip of pavement outside the railings, so that, as counsel for the Respondent was eventually forced to concede, it would be deemed to be part of the carriage-way. Counsel did at first suggest that this strip was a sort of no-man's-land on which no pedestrian ought to be, but even if it were correct that this strip was denied to pedestrians it would not follow that it was dedicated to the motorist. Even if the purpose was to protect not the railings but pedestrians standing close behind the railings, who might be injured as a result of such wrongful manoeuvring of vehicles, that would not be justification for seeking to deprive pedestrians of the use of part of the foot-way. As we have seen, these railings are erected to contain pedestrians within the limits of the foot-way and not to contain vehicles within the limits of the carriage-way. Where railings are erected as close as is reasonably practicable to the edge of the pavement it is physically impossible for a pedestrian to go outside the railings without encroaching upon the carriage-way. A motorist approaching railings so placed is entitled to assume that no pedestrian will be likely to appear outside the railings - although, of course, he will not be entitled to disregard an errant pedestrian who to his knowledge has gone outside: but where railings are ereeted so far back that there is ample room for a pedestrian to walk outside the railings without encroaching upon the carriage-way a motorist ought to expect that some pedestrians will accept what can only be regarded as an open invitation to them by the highway authority to go outside. It seems to me not to matter whether the railings are set back something over one foot or something over one yard: pedestrians will inevitably ignore them. Indeed I go so far as to say that railings set back in this way are, though no doubt unintentionally, in the nature of a trap set by the highway authority both for persons lawfully seeking to make use of part of the foot-way provided for their security and for any motorist who is led to believe that pedestrians will remain behind the railings. It is unreasonable to expect that pedestrians will, in effect, surrender a usable strip of the foot-way unless compelled to do so either by law or by physical obstruction. Particularly is that so in Hong Kong where foot-ways are often narrow and very overcrowded. 6. In the present case the trial judge appears to have taken the view that a pedestrian who placed himself between the railings and the carriage-way was for the purposes of a claim for damages for negligence an outlaw. It therefore became irrelevant to his judgment to decide what were the circumstances in which the Plaintiff found himself where he did. I take a different view, it being conceded that the Plaintiff would not have been injured unless the Defendant's vehicle had encroached upon the foot-way. I would held that that encroachment was at least a substantial cause of the Plaintiff's damage and that the Defendant was guilty of negligence: the Defendant owed a duty of care to avoid pedestrians lawfully upon the foot-way whether he saw them or not. If it were necessary I would further hold that his failure to see the Plaintiff on the edge of the foot-way - particularly as the Plaintiff had only just left the carriage-way itself - was also evidence of negligence in that he failed to keep a pooper lookout. 7. Was the Plaintiff guilty of contributory negligence? I do he was. So long as he did not encroach upon the carriage-way he was, vis-a-vis the Defendant, entitled to use any part of the foot-way and, on the evidence, he would have come to no harm but for the negligence of the Defendant. If it can be said in any sense that the Plaintiff did not take every reasonable care for his own safety, that lack of care was not a cause of the damage which he sustained. Of course, had he suffered damage of the kind suffered by the Plaintiff in Watson v. Thomas S. Whitney & Co., Ltd. he might have been in some difficulty, because the evidence might not then have shown conclusively that the Defendant's vehicle encroached upon the foot-way rather than that the Plaintiff encroached upon the carriage-way. A pedestrian who ventures outside railings is inevitably at risk of being found guilty of negligence and if he is injured the onus is on him to prove that his damage was caused by the negligence of the defendant and not by his own negligence: the res ipsa loquitur rule applies only where it is apparent that a vehicle must have encroached upon the foot-way. Such a pedestrian not merely deprives himself of the protection which the railings would offer against his stumbling on to the carriage-way, but he may meet other like-minded pedestrians whose presence could in fact force him on to the carriage-way. There is another possibility, which I would leave open for consideration should the necessity ever arise, although, as at present advised. I do not think it raises any special difficulty: if a pedestrian, wherever he is, sees or ought to see that he is endangered by the wrongful act of a motorist he, like any possible victim of a tort, is under an obligation to take such steps to avoid or to mitigate the damage to himself as may be reasonable in all the circumstances and it may have to be decided whether, if he has gone outside the railings and is thereby hindered in taking avoiding action, that could in any way prejudice his right to be compensated for the full extent of his damage. In the present case it was not suggested that the Plaintiff ought to have taken avoiding action. 8. In my judgment, therefore, the Defendant was solely to blame for the Plaintiff's injuries. The Plaintiff's case was that, having started to cross the carriage-way by the studded crossing at a time when it appeared safe to do so, he had found the foot-way so crowded that he could not mount it otherwise than at a point outside the railings: the alternative would have been to stand on the carriage-way until the crowd dispersed. The argument on behalf of the Defendant went so far as to suggest that if those had been the circumstances he ought to have remained on the carriage-way and that then the Defendant might have been under a duty of care to see him and to avoid him. Even if the railings had been, say, four inches from the carriage-way so that toe Plaintiff had no absolute right to go outside the railings I would have found it difficult to hold that the law required him to stand Horatio-like in the path of the motorised hordes until there was space for him to step on to the foot-way at a point where there were no railings. A studded crossing is not for pedestrians what a box junction is for the motorist, a space which he must not enter until he can see that his exit is clear. Nevertheless, if the Plaintiff had had no absolute right to use the strip of pavement outside the railings it would have been material to enquire whether he could have avoided being in the position where he was struck by the Defendant's vehicle and it might have been necessary to remit the case for further findings to be recorded. As it is I would allow the appeal and enter judgment for the Plaintiff in the sum assessed by the learned judge, namely $40,515, which includes $11,955 special damages. 12th July 1974. Representation: IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CIVIL APPEAL NO. 11 OF 1974 (On appeal from O.J. 2048/73) -----------------
----------------- Coram: Huggins, McMullin & Pickering, JJ. Date of Judgment: 12 July 1974. ----------------- JUDGMENT ----------------- Pickering, J. : 9. I am of the same opinion as the learned President. 10. In considering the views of Diplock, L.J. expressed in Watson v. Thomas Whitney & Co., Ltd.(1), it has to be remembered that his was a minority judgment. Sellers, L.J. said, on the contrary,
11. It may be true that there is no absolute prohibition upon a motorist's encroaching upon the pavement but, by virtue of s.4(8) of the Summary Offences Ordinance there is such a prohibition except when the encroachment is made with obvious necessity and I am unable to agree that the existence of a guardrail in any way diminishes either that prohibition or the view expressed by Sellers, L.J. in the case to which reference has been made. The existence of such a guardrail is not, in my view, a licence to motorists to overhang the footpath. Nor, conversely, must a pedestrian overhang a carriageway without risk of being held contributorily negligent. Where a guardrail is set back so few inches from the pavement that a pedestrian cannot occupy that portion of the pavement outside the rail without necessarily overhanging the carriageway, other considerations may well apply but where, as in this case, the guardrail was so far set back that pedestrians could walk on the pavement outside the rail without overhanging the roadway, it seems to me that the existence of the rail makes no difference to the principle enunciated by Sellers, L.J. in Watson v. Thomas Whitney & Co., Ltd.(1). And, with respect, it seems to me unrealistic in the conditions obtaining in Hong Kong, to say that both pedestrians and motorists "will tend to regard the unguarded portion of the pavement either as an area where pedestrians are not entitled to walk at all, or ... as an area in which they are not normally to be found". 12. I too would allow the appeal and enter judgment for the plaintiff in the sum assessed by the learned trial judge, namely $40,515. Costs to follow the event here and below. Representation: P. Woo (H.M. So & Co.) for appellant. F. Fung (Chan & Ho) for respondent. (1) (1961) 1 W.L.R. 57. IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CIVIL APPEAL NO. 11 OF 1974 (ON APPEAL FROM O.J. 2048/73) -----------------
----------------- Coram: Full Court (Huggins, McMullin & Pickering JJ.) Date of Judgment: 12th July 1974 ----------------- JUDGMENT ----------------- McMullin, J. : 13. While I can readily perceive the advantages of the view propounded by the learned President, and while I find myself attracted by its logic and simplicity I have some misgiving that, in thus cutting the Gordian knot for one particular class of cases we may find ourselves inadvertently doing violence to principles of a more general nature which are necessarily intricated in it. The learned Chief Justice appears to have taken the view that in placing himself outside the metal guard-rail the plaintiff in this case had placed himself outside the protection of the law by placing himself where he had no right to be. With respect, I do not think that can be so. The public, and all members of the public, are entitled to use the highway, and all parts of the highway, to pass and re-pass thereon, subject to any special limitation imposed by statute or bye-law or by any rule of custom or common law upon the movements, or upon any kind of movement, of the public or of any section of the public. The highway includes the whole space between the boundaries of dedication. In Hong Kong, there are no legislative provisions which simply forbid pedestrians to walk on the carriageway or which forbid motorists to trespass upon the pavement in any way or under any circumstances. Subsection 8 of Section 4 of the Summary Offences Ordinance which forbids riding or driving upon a footpath "without obvious necessity" deals with a different area of prchibition: the conscious choice and use of the footpath as though it were the carriageway. In the Watson case (referred to infra) the fact that there was a similar prohibition in Section 18(1) of the Road Traffic Act 1960 was not resorted to by counsel or by the Court of Appeal for any purpose let alone as sufficient proof of the entire responsibility of the driver of the motor vehicle. 14. The limits of the respective privileges and obligations of motorist and pedestrian in relation to the proper use of the highway are nevertheless fairly clearly established by the amalgam of custom, decided authority and common sense which represents the common law upon the subject. There is no doubt that the pavement is, under normal conditions, primarily the preserve of the pedestrian; it is a special zone of security provided for him by the highway authority where he may expect to pass unmolested by vehicular traffic. The carriageway, under normal conditions, is intended primarily for the passage of vehicles and it is the zone specially designed to provide for their greater speed, size, and destructive propensity. It is these very general propositions which underlie the many decisions of the courts in which damage done to a pedestrian by a vehicle which mounts the pavement where he is standing is regarded in the light of the principle, res ipsa loquitur. But neither the pedestrian nor the motorist enjoys an exclusive property in his zone of predominant right. Thus, even where no guard-rail borders the pavement, a pedestrian may, with ...(illegible) so facto committing an offence, walk upon the carriageway; nor, is there any absolute prehibition upon a motorist encroaching upon the pavement. In practice such encroachment does occur frequently when cars are parked with a wing overhanging the pavement. In every case the act falls to be judged by reference to the practical necessities of the situation at large which must, however, be read in the light of the general principle that, for their mutual security (and other things being equal) the pedestrian should keep to the pavement and the motorist to the carriageway. The tort of negligence, as it applies to the use of the highway, and leaving aside specific statutory provisions, does not readily accommodate itself to the notion of absolute right or absolute prohibition in relation to special types of situation or special classes of person. The Highway Code itself is predicated upon a continuum of interlocking and mutual rights and obligations embracing all road users and is therefore not accommodating to the notion of "outlawed" persons or "outlawed" situations. Thus, it is of interest to note that the first two rules in the Code (which are addressed specifically to the pedestrian) are in the following terms:
The second of those admonitions certainly does not seem to support the suggestion that a pedestrian walking within the physical limits of his own a special zone of safety is relieved from any further duty of care. To my mind, it recognises the possibility, amongst others, that, even when conducting his own affairs within the physical limits of the pavement itself, he may yet be guilty of some degree of negligence if he fails to watch out for his own safety by anticipating either that some part of his own person or belongings may intrude upon the carriageway or that some part of a passing vehicle may intrude upon his space above the pavement. 15. The Code itself may be regarded as of the general principles underlying this area of the law of negligence. The value of its suasions is given recognition in Section 7 of the Road Traffic Ordinance but Subsection 4, pointing out that, its commandments do not themselves have the force of law, carries in it also something in the nature of a deprecation of absolutes in relation to the behaviour of road users. Subsection 4 reads as follows:
Following the temperate language of that provision it may be said that for a pedestrian to walk with his back to the traffic may be evidence of negligence depending on the circumstances generally. 16. If the territorial sovereignty of the pedestrian within the boundary of the pavement, and the immunity from fault conferred by it were as nearly absolute as is suggested it is to me surprising that there is sub a more extensive corpus of opinion to attest it. Indeed, it is significant that, in the latter of the two cases cited in court upon the hearing of this appeal [Watson v. Thomas Whitney & Co. Ltd.(1)] the Registrar of the Court of Passage at first instance was satisfied that the plaintiff was wholly to blame for an injury to his arm caused by the door handle of a van which, coming from his rear, drew alongside the pavement where he was walking, and did so upon the ground that it was dark at the time and that the driver would not expect the plaintiff to be in the position where he was when he was struck i.e. about six inches from the edge of the kerb. It is true that, on appeal, the majority of the three judges who heard the appeal took the opposite view and found that the lorry driver was wholly to blame. Harman L.J., however, was content to agree with what had been said by Sellers L.J. without further elaboration thereon and the third member of the court, Diplock L.J., having dealt at some length with a point of procedure affecting the appeal, went on to say:
In the light of this it is instructive to look at the facts in that case and the way in which the judgment representing the opinion of the majority deals with them. The plaintiff in that case was walking on the side of the pavement nearest to the road and about six inches from the edge of the pavement when he was hit by the projecting door handle of a motor van driven by the second defendant. There was apparently no suggestion that the plaintiff had intruded upon the carriageway. The van had swung in from the middle of the road and come to rest along the kerb to let a passenger get out, and in doing so the handle of one door, encroaching above the pavement, struck the plaintiff and bruised his arm and damaged his coat. The defendant stated that he did not notice anybody upon the foot-walk. It was dark at the time when the accident occurred. The Registrar found the plaintiff wholly to blame for the accident by walking too close to the edge of the pavement when it was not necessary to do so and appears to have found that the plaintiff was able to see the car approaching. Some doubt about this finding was, however, expressed in the Court of Appeal. Sellers L.J. having referred to the facts went on to say (page 60):
There is, to my mind, no attempt in this to state a general rule as to pedestrian's "sovereign immunity" upon a pavement and the possibility is clearly left open that a pedestrian going close to the kerb might be guilty of contributory negligence if he had reason to anticipate that the vehicle might behave in the way that it did. 17. In none of the cases to which we were referred was the question of negligence related to the existence of a guard-rail upon the pavement. What is the significance of that feature in the present case? To my mind it introduces an additional clement which is of considerable importance. It is in itself a physical feature of so striking a nature that one is tempted to say that it does alter the character of that part of the pavement which lies beyond it and next to the border of the carriageway, constituting a neutral zone into which neither pedestrian nor motorist is entitled to intrude as a matter of law and forming a buffer area which, when such intrusions do occur, will protect them from the effects thereof in most cases as a matter of fact. But I do not think that I am warranted in going so far. In the absence of an express prohibition published to pedestrians the outer strip of pavement must I think remain part of the primarily pedestrian sanctuary. But the character of the pavement as a pedestrian passageway is obviously altered in some clearly discernible respect by the presence of the guard-rail. At the very least it establishes a safe and a loss safe zone. Walking outside the railing with his back to the traffic even the most insouciant pedestrian must be acutely aware that he has forsaken a region where injury from careless motorists, or from carelessly loaded vans or lorries, is a remote possibility for one where that possibility is very real; the more so because it will be one natural consequence of the existence of the railing that motorists will tend to drive close to the kerb and keep less close a watch upon it. It does not want such imagination to realise that anyone, be he pedestrian or motorist, will tend to regard the unguarded portion of the pavement either as an area where pedestrians are not entitled to walk at all, or least as an area in which they not normally to be found. 18. It may well be that the highway authority (the Diroctor of Public Works in this instance) who is empowered to construct and maintain works in any road for the purpose of regulating traffic (see Section 7A of Cap. 220) has chosen a means which is ambiguous and therefore inadequate or even dangerous but it is an ambiguity which can be expected to effect the conduct of the motorist at least as strongly as that of the pedestrian. Since both the motorist and the pedestrian will be judged in the light of all circumstances affecting their performance on any given occasion the court will necessarily find itself estimating what ought to be the attitude of the reasonable motorist or of the reasonable pedestrian to each separate element which fell (or which ought reasonably to have fallen) within his field of perception on that occasion. Including, of course, such phenomena as this guard-rail. For, while it may be true that the primary purpose of such a rail is to keep pedestrians from inadvertent excursions into the carriageway, a correlative effect must be to lessen the motorists' expection that such invasions will occur. To that extent it might be said that a subsidiary purpose of the railing is to relieve the motorist to some degree of the stricter need for vigilence which must exist where there is no railing guarding the edge of the pavement. The severed pertion of the pavement which may in fact prove to be something of a trap to the pedestrian will equally be something of an enticement to the motorist. If it is possible - as Diplock L.J. clearly thought it was in Watson v. Thomas Whitney & Co. Ltd.(1) - that a pedestrian may be guilty of negligence by walking close to the edge of an unguarded pavement although still within its boundary, it must surely be that a pedestrian who deliberately chooses to quit an almost foolproof sanctuary provided for him in order to walk along the narrow outer strip thus presenting his unprotected back to the overtaking traffic in a busy street is consciously assuming a risk of a considerably higher degree. The question whether he is negligent or contributorily negligent would still, of course, depend on all the prevailing circumstances - the state of the road and of the light; the quantity and type of traffic about; the degree to which the unprotected area is customarily resorted to by the public and the state of the motorist's and of the pedestrian's knowledge of these several factors. In particular, I would think that the possibility of at least contributory negligence is patent when, as in the present case, a pedestrian stands outside guard-rails near a corner when the motorist's opportunity of observing him is lessoned by the existence of the corner. 19. In the upshot I cannot bring myself to agree that a pedestrian can never be guilty of any degree of negligence who is injured while walking or standing within the limits of the pavement merely because the injury followed intrusion by a vehicle across the boundary of the pavement and he had not observed its approach. 20. In the present case it was the plaintiff' story that in crossing the pedestrian crossing he found himself impeded by a crowd of people ahead of him and was impelled to stand aside upon the unprotected part of the pavement to wait for an opportunity to proceed on to the pavement itself. He was in that position when the defendant's vehicle came round the corner and intruded into the space then occupied by him. If his position at that point was indeed the result of a necessity forced upon him by the prevailing circumstances I would agree that he could not be liable to any extent for the injuries thus occasioned. Unfortunately however there is no finding as to this feature of the case and if the other members of the court had been of the same opinion as myself concerning the question of negligence at large I would have said that the proper course in the present case would have been to remit the case for a further finding as to whether or not the plaintiff's account of the matter was correct. Representation: (1) (1961)1 W.L.R. 57. |