Chung Kai Nok v. Ng Yuet Ming
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HCPI 412/2009 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PERSONAL INJURIES ACTION NO. 412 OF 2009 ------------------------ BETWEEN
------------------------- Before : Hon Bharwaney J in Court Dates of Hearing : 13 – 14 February 2012 Date of Judgment : 14 February 2012 Date of Reasons for Judgment : 5 March 2012 ------------------------------------------------------ REASONS FOR JUDGMENT ------------------------------------------------------ 1.I gave judgment in this action on 14 February 2012. These are my reasons for judgment. 2.This case involves a road traffic accident which occurred on the morning of 25 June 2007 at Tuen Kwai Road in Tuen Mun. The trial before me concerned only liability, an order for split trial having been granted by the master at a check list review hearing. The accident occurred when the infant plaintiff, then 11 years ago, was struck and knocked down by a New Territories taxi bearing registration No.KT4118 that had been driven by the defendant. At the time, the defendant had been carrying a passenger, Madam Lau Chun Har, in her taxi and was driving along the westbound lane of Tuen Kwai Road towards the Fu Tai Estate Commercial Complex. Tuen Kwai Road is a 2-way road with one lane on each side separated by broken white lines. The infant plaintiff had been crossing Tuen Kwai Road from north to south on a pedestrian crossing located just before the commercial centre and he was struck and knocked down on the westbound lane of the crossing. The traffic en route to the commercial centre would enter a roundabout, turn into the westbound lane of Tuen Kwai Road, and travel a distance of about 100 metres on this straight section of the road before reaching the pedestrian crossing with a kerbed safety island located at the central dividing line of the road. 3.The infant plaintiff gave evidence before me and told me that he was 11 years old in June 2007 and was about 1.45 m tall then. He was then living with his parents and his younger sister at Fu Tai Estate. He and his sister went to the same school and they would usually go to school at about 12 noon. However, on the morning in question, he had to be at school by 11 am and he left home with his sister at about 10:15 am. He was not in a hurry because there was enough time to catch a bus to go to school. He had to cross Tuen Kwai Road at the pedestrian crossing in order to reach the bus stop. At the time, the weather was good and it was bright. He was wearing his school uniform consisting of a white shirt, dark blue shorts and black leather shoes. He stopped in front of the crossing and looked towards his right hand side for traffic. He found that there were no vehicles. He also looked to the left hand side and saw a vehicle on the opposite lane just turning into Tuen Kwai Road from the roundabout. Then he started to cross the road. His sister followed him to cross the road. She was just behind him. He was looking towards his left when he reached the safety island and saw that the vehicle, a taxi, was still quite some distance away. He thought he had enough time to cross the road to the other side, so he did not stop at the safety island and continued to cross the road. Soon after he had stepped out from the safety island, he was struck by the taxi. He did not hear the sound of any horn. The right front wheel of the taxi pressed on his right foot. The driver had to reverse the taxi to release his foot. He realised that the driver was a woman after she had alighted from the taxi. She scolded him for rushing out and said that she had been ruined by him. His sister had been on the safety island at the time when he was struck and knocked down, and she ran home to notify his father. He was subsequently taken to hospital by ambulance. 4.The infant plaintiff had given a statement to the police on 2 August 2007. He was accompanied by his father. His statement to the police is consistent with the evidence he gave in court. In his police statement, he said :
5.Under cross-examination, the infant plaintiff said that he did not know how long 15 metres was and that he could not give an indication of the distance between him and the oncoming taxi by reference to the number of car lengths separating him from the vehicle. He marked his position on the safety island by drawing a cross on the photograph on p.178 of the Bundle. This photograph has measurements recorded on it showing that the safety island was about 5.6 metres wide. The infant plaintiff placed his cross near the right hand side of the safety island. He also drew a square on the left of the photograph to indicate the location of the taxi at the moment when he stepped off the safety island. By reference to the measurements recorded on this photograph on p.178, the taxi, at the location marked by the infant plaintiff, would have been more than 30 metres away from the safety island. The infant plaintiff said that he estimated that the speed of the taxi was fast, but he did not stop at the safety island because he felt that the distance between the taxi and him was long. However, he agreed that he had told the police that he could not estimate the speed of the taxi and he confirmed that he had not told the police that the taxi had been travelling fast. He denied that he had run out from the safety island, and he denied that the distance between him and the taxi was only 5 metres at the time he stepped off the safety island. He also denied that the driver of the taxi had sounded the horn. 6.The infant plaintiff’s younger sister, Chung Chin Wai, also gave evidence. She was wearing a school uniform that morning which was predominantly white with blue trimmings. Although she could not remember her height in June 2007, she said that she reached her brother’s ear level. She also said that she and her brother did not run, but walked across the road. They checked for traffic before starting to cross. She looked at her right hand side, but did not see any traffic. She did not check for traffic on her left hand side because traffic was only coming from her left on the opposite lane of the road. On reaching the middle of the road, she had intended to look to her left hand side to check for traffic when a green shadow quickly passed her. She subsequently realised that this was a taxi. She confirmed the truth of the statement that she had made to the police and of the witness statement that she had made for these proceedings. In her police statement, she had said that she and her brother checked for traffic before her brother stepped forward onto the road and she followed behind him. Her brother did not stop when he reached the safety island, but she saw that he had turned his head to look to his left hand side. She stopped on the island when she reached it and also looked on her left hand side and saw a New Territories taxi move from the left to the right in front of her. Its front part struck her elder brother. 7.The defendant, Madam Ng Yuet Ming, also gave evidence. I am satisfied from her evidence that she did not see the infant plaintiff until moments before the offside front of her taxi struck him. She said that she simply could not see him because he had emerged from behind a light goods vehicle that was travelling on the opposite lane. 8.The MVE accident report on her vehicle showed that her vehicle was in a roadworthy condition. Its service brakes were operative, with brake efficiency of 75%. The tyres were in a satisfactory condition and properly inflated. The offside rear view mirror of the taxi was, however, broken. A rough sketch plan of the location of the traffic was drawn by the police officer investigating the scene of the accident. As the police did not prosecute the defendant, a proper sketch plan was never produced and it is difficult to see, from the rough sketch plan, how far away from the pedestrian crossing the taxi had stopped before the defendant had reversed the taxi to free the infant plaintiff. 9.The scene of the accident had changed by the time the photographs on pp.159-170 of the Bundle were taken. By then, the pedestrian crossing had been removed. However, the location of the former pedestrian crossing can be seen quite easily on these photographs as can the location of the safety island. These photographs show a long straight stretch of road from the roundabout all the way to the safety island. Given the clarity with which these photographs depicted the scene of the accident, I declined the invitation of the parties to visit and to view the locus in quo. 10.The defendant gave a statement under caution to the police 2 days after the accident in which she stated that she was then 50 years old and that she was a taxi driver by occupation. She said that she started work at about 8 am on 25 June 2007 by driving her own taxi KT4118. In the course of that morning, she had picked up a female passenger whose destination was Fu Tai Estate Shopping Arcade. At about 10:22 am, she drove KT4118 along Tuen Kwai Road heading towards Fu Tai Estate Shopping Arcade. Her speed was about 30 kph in “D” gear (her taxi was equipped with automatic transmission). No vehicle was travelling either in front of or behind her on her lane. When she came near the entrance of the shopping arcade, suddenly a boy dashed out from behind a light goods vehicle, which was travelling in the opposite direction, and he ran towards the offside front body of her vehicle and rammed into her vehicle. She immediately applied the brake to stop her taxi. After stopping, she alighted from her taxi and saw that the front offside wheel of her vehicle was pressing on the boy’s foot. She then got back on her vehicle and reversed it so that its front wheel would not press against his foot. 11.In her witness statement made for these proceedings, the defendant said that she had about 10 years’ experience driving taxis at the time the accident occurred. She had all along driven taxis in the New Territories and she was very familiar with the roads in the New Territories. She had often brought passengers to Fu Tai Estate in Tuen Mun and she was very familiar with that particular section of the road and that environment. She confirmed that the weather was fine and that she had been heading towards Fu Tai Estate at a speed of about 30 kph in “D” gear. There was no traffic in front or behind her. When KT4118 came near to the entrance of the Fu Tai Estate Shopping Arcade, a light goods vehicle came out from the shopping arcade on the opposite lane. There was a safety island on that section of the road. She then continued to describe the occurrence of the accident in her witness statement in these terms :
12.Madam Ng gave evidence before me confirming the truth of her police statement and of her witness statement. Under cross-examination, she confirmed that the road was slightly down-slope from the roundabout to the pedestrian crossing and safety island, and that no vehicle obstructed her view of the road all the way up to the safety island. She did not see the infant plaintiff cross the road from the other side. She could not see him. The moment she saw him, he had already run into her vehicle. All she knew was that he came out from behind the light goods vehicle. She immediately applied her brakes and sounded the horn. He appeared from behind that light goods vehicle and, a very short moment later, he ran into her taxi. The light goods vehicle was travelling quite fast, at about 40 kph. The light goods vehicle had passed the safety island by about half the length of the light goods vehicle when the boy suddenly ran out from behind the light goods vehicle. By the time the boy reached her lane, the front of her taxi had passed the beginning of the safety island. 13.She was asked why she did not tell the police that she had sounded the horn. She answered that she had been very confused and forgot to mention it, but that she had sounded the horn. She denied that she had fabricated evidence about there being a light goods vehicle. She denied the suggestion that, on seeing the boy, she did not decelerate because she thought that the boy would give way to her. She said that she simply could not see him. 14.At the commencement of trial, Mr Roland Tang, counsel for the infant plaintiff, sought leave to adduce the witness statement and the supplemental witness statement of Madam Lau Chun Har, the passenger in the taxi, on the ground that she could not be located, notwithstanding the many efforts made to find her. There was no objection from Mr Victor Gidwani, appearing for the defendant, and I granted leave for these statements to be adduced as hearsay evidence. 15.In the statement that she had made to the police on 12 August 2007, Madam Lau had said that she had taken a taxi to go to the Fu Tai Shopping Centre at about 10:15 am on 25 June 2007. At the time she was seated at the left rear seat of the taxi. The taxi was driven by a female driver. She did not pay attention to the road condition nor was she clear about the speed of the taxi. When the taxi was approaching Fu Tai Shopping Centre, she saw a boy running quickly across the road from right to left about 5 metres away from the right front of the taxi. She heard the sound of the horn, felt that the taxi driver had applied the brakes, and then saw the right front part of the taxi hit that child. At the conclusion of her statement, she replied in the negative to the question whether or not there were any other vehicles moving on the road. She also said that she did not see any other pedestrian walking across the road together with the injured boy. 16.In her witness statement dated 22 April 2010, she gave a slightly different version of events, stating that, on hearing the sound of the taxi’s horn, she looked forward and saw a boy about 10 metres away from the front of the taxi running across the road from right to left. At that time, she did not feel that the taxi driver had the intention to decelerate the vehicle. Suddenly, the taxi braked abruptly and shook drastically. She then saw that the right front part of the taxi had hit that boy. In her supplemental witness statement dated 26 November 2010, she gave yet another different version, saying that, suddenly, the taxi driver shouted out that a child was crossing the road. She immediately looked forward and saw a boy wearing a school uniform running into the road from the other side of the pavement towards the safety island in the middle of the road. The female taxi driver failed to decelerate or to brake, and she continued forward at the same speed. In a moment, the right front part of the taxi hit the boy. Although she could not confirm whether there was any vehicle on the opposite lane, she was sure that she could see the boy clearly running from the opposite pavement towards the safety island and that there was no object obstructing her view of the boy. Analysis 17.Having heard from the witnesses giving evidence and having considered their police statements, I am satisfied that the defendant gave truthful evidence when she said that she simply could not see the boy until moments before the accident. However, I am satisfied, from the evidence I heard from the infant plaintiff and his younger sister, which I accept, that there was no light goods vehicle, or other vehicle, on the opposite lane obstructing the view of the infant plaintiff from the defendant. Whilst this finding is also supported by the hearsay evidence from the statements of Madam Lau Chun Har, the many different versions she has given of this accident lead me to conclude that I should not place any weight on her statements. I also make this finding because the evidence of the defendant to the contrary is extremely difficult to accept. 18.She said that she saw the light goods vehicle come out from the section of the road where the shopping arcade was located and travel towards her. The light goods vehicle was travelling fast, at a speed of about 40 kph. The light goods vehicle had just passed the safety island by about half its length when, suddenly, a boy dashed out behind that vehicle. 19.It would have been impossible for the boy to run out from the opposite pavement, across the opposite lane and the safety island, and appear in front of the taxi when the light goods vehicle, travelling at 40 kph, had just passed the pedestrian crossing and was only half a vehicle length away from it. Even if the infant plaintiff had been running quickly across the road, he would still have taken 3 or 4 seconds to reach the point of impact, but in those 3 or 4 seconds, the light goods vehicle travelling at about 40 kph, or 11 metres per second (see the speed table in Bingham & Berrymans’ Personal Injuries in Motor Claims Cases, 12th Edition, at p.343) would have been well past the pedestrian crossing. The length of the light goods vehicle is unlikely to have been more than 7 metres. At 40 kph, it would have taken no more than a second or so for the light goods vehicle to cross the pedestrian crossing, and to be half a vehicle length away from it. It would have been impossible for the infant plaintiff to reach the point of impact with the taxi, if the infant plaintiff had only started to cross the pedestrian crossing after the light goods vehicle had passed it. 20.I do not think that the defendant was deliberately fabricating the existence of the light goods vehicle. The truth of the matter is that she failed to see the infant plaintiff until moments before her vehicle struck him. She was clearly distressed by this occurrence. She could not imagine how she could have failed to see him and, in all probability, convinced herself that there must have been a large vehicle in the opposite lane which obstructed her view of the infant plaintiff. I find as a fact that there was no such light goods vehicle and that the defendant was negligent in failing to keep a proper lookout. I also find that the infant plaintiff was walking very quickly on the pedestrian crossing and quickened his pace, almost running across the road. If the defendant had kept a proper lookout, she could not have failed to see the infant plaintiff. As a reasonable driver, she ought to have appreciated there was a risk that the infant plaintiff might run straight across the road, and not stop at the safety island and wait for her to pass. Given this real risk, which she ought to have appreciated as a prudent motorist, she ought to have, at the very least, sounded the horn of her taxi to alert the infant plaintiff of her approach. 21.Indeed, a prudent driver, in these circumstances, would not only sound his horn but also decelerate to enable him to stop his vehicle suddenly, should the infant continue to cross in front of him. The behaviour of young children is entirely unpredictable. Motorists who see young children in the vicinity of pedestrian crossings must be alert to the possibility that one or more of them may run across the road. They should either sound the horn or drive in a manner which could enable them to avoid an accident should the risk of danger emerging turn into a reality. 22.I find that the defendant could easily have avoided the accident had she kept a proper lookout. She did not keep a proper lookout. She only saw the infant plaintiff moments before her vehicle struck him. Instinctively, she applied the brakes and, at the same time, sounded the horn. However, it was all too late and an impact was inevitable. I find her liable in negligence. 23.Mr Ronald Tang had conceded from the very start that the infant plaintiff was guilty of contributory negligence. Clearly, he underestimated the speed of the taxi that he could see approaching on the opposite lane as well as its distance from the pedestrian crossing. He thought he could get across in time. He was wrong. He should have stopped on the safety island and waited for the taxi to pass him before continuing to cross the road. 24.Mr Ronald Tang also conceded, very fairly, that, if the infant plaintiff had been an adult, the degree of contributory negligence should have been 50%. The concession of 50% contributory negligence on the part of the plaintiff, if he had been an adult at the time of the accident, was entirely proper. Road users have equal rights to use the road, but must do so exercising reasonable care for the safety of other road users and for their own safety. Motorists must give up the notion that they enjoy the right of way and that pedestrians, using a pedestrian crossing which is not controlled by traffic lights, must give way to them. Indeed, the Road Users’ Code (May 2000 edition) enjoins motorists (at p. 50) to “always try to give way to a pedestrian on a roadway”. Pedestrians must be careful of their own safety and not cross the road, whether they are crossing on a pedestrian crossing not controlled by lights or on any other part of the road, when they see approaching traffic unless, of course, that traffic is at such a distance from them as not to pose a risk to their safety. 25.However, Mr Tang pointed to the fact that the infant plaintiff was then only 11 years old. Even so, he and his younger sister had crossed the road at a designated crossing. They had properly checked for traffic before crossing the road. I accept these submissions but I am not satisfied that the infant plaintiff had made an error of judgment in thinking that he had enough time to safely cross the pedestrian crossing before the oncoming taxi reached it. I find that the infant plaintiff quickened his pace in order that he could get across before the taxi reached the crossing. I am not satisfied that he made any attempt to assess whether or not it was safe to cross the road. I find that the infant plaintiff was guilty of contributory negligence to the extent of 25%. 26.I enter interlocutory judgment for the plaintiff against the defendant for 75% of damages to be assessed and I award the costs of the trial on liability to the plaintiff to be taxed forthwith, if not agreed, on the High Court scale and on a party and party basis. It is only appropriate to order costs on a common fund basis in cases involving persons under disability that have settled. Such an order is made to ensure that the agreed settlement sum will not be depleted by reason of the need to pay costs that were payable as between solicitor and own client and which were not allowed on a party and party taxation. I also direct that the plaintiff’s own costs be taxed pursuant to the Legal Aid Regulations.
Mr Ronald Tang, instructed by S H Chan & Co., for the Plaintiff Mr. Victor Gidwani, instructed by Leo Cheng & Co., for the Defendant |
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