Lui Yim-po and Another v. Chow Moon-tong and Another
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CACV000019/1979 Road traffic - driver not giving warning of his approach - collision with pedestrian stepping from island refuge - no reason to anticipate that pedestrian would fail to see approaching vehicle and continue to cross - driver not negligent.
----------------- Coram: Huggins, J.A., Yang and O'Connor, JJ Date of Judgment: 22 February 1980 ----------------- JUDGMENT ----------------- Huggins, J.A.: 1. This is an appeal against a judgment of Cons, J., awarding damages to the Appellants in respect of the death of the 1st Appellant's wife. 2. There was a traffic accident in Hennessy Road. Late at night the 1st Plaintiff and his wife and their two children were crossing Hennessy Road from north to south with traffic coming from their right and amongst that traffic was the taxi driven by the 1st Defendant. They crossed the first part of Hennessy Road to a traffic refuge. That was a few feet short of the tram tracks which go down more or less the centre of Hennessy Road. The wife was on the left hand side, holding with her right hand the daughter. The husband was on the daughter's right and another child on his right. The wife was struck by the taxi as it passed the refuge. It was alleged that the taxi was driving too fast, that it was not keeping a proper look out and that it failed to give warning of its approach, but the learned judge found that the only negligence of the taxi driver was that he failed to sound his horn or give other warning of his approach. The judge found that the wife, the Deceased, was negligent in stepping into the road and apportioned blame as to two-thirds to the wife and one-third to the driver. 3. There were three grounds of appeal argued on the issue of liability, which is the only matter on which we have so far heard full argument, and related to this first ground is the third ground, which relates to a plea of guilty by the taxi driver to careless driving in the magistrate's court. 4. The driver, as he approached the refuge, did see one person step from the refuge into the road, but that person immediately withdrew, having apparently then become aware of his presence. He did not say that no one else stepped into the road: he said that he did not identify anybody else as having stepped into the road. He "felt that the upper part of [the Deceased's] body was rushing out", a very strange way of expressing himself, but this is the impression that he got. Two points to be noted there. He noticed only the upper part of the body. That may have been for a number of reasons, and it is not really necessary to speculate, but it could be because the lower part of her body was by then so close to his vehicle as to be invisible, even if he was looking for it. The important word is "rushed" out. 5. It is argued that the learned judge did not give sufficient weight to the plea of Guilty, a plea which was based upon a Summary of Facts in which in truth there is no evidence of negligence, but from which an inference might be drawn that he must have been negligent, because it is said in the summary "a witness can say that the female (who has since died) did not step into the roadway". If she did not step into the roadway then it was an inference that he either drove off the roadway or was so close as to be driving carelessly. The learned judge used an unfortunate word in connection with the explanation given by the driver. He said that his explanation was "feasible", but I think what he meant was that this was an explanation which he accepted. The explanation was that a charge was brought against the driver - he was not summoned: he was told that he would have to produce bail: he had no money for bail: he was told that it was a very minor offence but that he might be charged with dangerous driving if he did not plead guilty: and he said that, bearing those matters in mind and also considering the fact that he thought that he might have been slow to respond when the emergency arose, he thought that he ought to plead guilty and that is why he did. But there is in fact no finding which shows what was his carelessness, or that, indeed, he was careless: this was his own plea of Guilty. The learned judge therefore attached no weight to this criminal conviction and, in my judgment, he was justified in taking that view. 6. What then was the evidence that this woman stepped into the road? It consisted solely of the damage to the vehicle and the position of the Deceased after the accident. This latter piece of evidence, of course, is of doubtful weight, although it is of some weight, because one can never be sure what will happen when a body is struck by a moving vehicle: it may be spun to the side, as is suggested would have been done if she had not been on the road, but sometimes a body will fall in an unexpected position. However, the damage to the car in so far as it can be gathered is very clear. I say "in so far as it can be gathered" because unfortunately there is obviously more damage shown in the pictures we have been given than was caused in that particular accident, but it seems reasonable to conclude (as the learned judge obviously did conclude) that there is a dent in the front of the nearside, just above the outer head lamp, which was made by pressure from the inner side of the vehicle towards the outside, and at the same time there was dislocation of the inner head lamp, which was probably caused in this accident. Whether the damage to the number plate was also caused in this accident we do not know, but such damage as was clearly caused in the accident is some nine inches from the outer side of the car and would have been made by some object which was more than that from the outer side of the car. In my judgment the learned judge was justified in concluding that the woman must have been in the road in order for this damage to be caused. 7. The second ground of appeal suggests that the judge was wrong in rejecting a contention which was only added at the very last moment at the trial that the driver had crossed some traffic lights when they were against him. I think the judge may have been a little hard on the husband, whom he criticised for contradictory statements - I think it is possible that the husband honestly made those statements and corrected one of them -, but the suggested inference which we are asked to draw in this case is that the traffic lights must have been against the Defendant who was driving along Hennessy Road, because a bus which had been stationary in Tin Lok Lane on the south side of Hennessy Road had started up and had turned into Hennessy Road to its right. As against that there was evidence by the driver that the lights had been green as far as he had observed them. The inference which we are asked to draw is not one which, I think, would be justified and, I think, the learned judge was entirely within his province to believe the driver when he said that the lights were green. 8. It is then said in Ground 9 that the 1st Defendant was negligent because he did not have his head lights on. This was never directly alleged in the Statement of Claim: all that is said there is that he gave no warning of his approach. Nor was this matter directly raised in the Notice of Appeal. In my judgment there was no obligation on this driver, in the circumstances then prevailing, to have his head lights on. His evidence was that he did have them on. There is no direct evidence that he did not. The most we have is that the husband said that he did not feel the lights shining. The judge appears to have made no finding on the matter, which was not an issue before him, and I do not think that it would be right for us to attempt to make one at this stage. 9. There is then what I will call an unspecified ground of appeal - it is not contained in the Notice - that the Defendant was driving too close and without keeping a proper look out: it is suggested that he was very close to the refuge and that he did not see these pedestrians until he was some 26 feet or so away from the refuge. Mr. Eddis has urged us to say that the woman, if she was in the road, was only minimally in the road. I find that word a little difficult to attach any meaning to and, as I have indicated, I am satisfied that this woman was definitely out in the road. This was not a case where she was just leaning over the edge of the refuge. For my part I see no reason to believe that the judge ought to have found that there were grounds of negligence on the part of the Defendant other than that which he did find. 10. I turn, then, to the cross appeal. The ground of negligence which he did find against the driver was that he failed to give warning of his approach. What the learned judge said on this matter was as follows:
He mentioned two of those cases and then continued:
With great respect to the learned judge I cannot agree with his conclusion there. It is true undoubtedly that the timely sounding of the horn or the flash of head lights might have saved a life in this case, but the question is not whether that is so, but whether the driver was negligent in not giving warning. As I have said, the judge did not find, and I am satisfied that he was right not to find, that the Respondent was travelling at an excessive speed or that he failed to keep a proper look out. The Highway Code then in force said "sound your horn only when necessary to prevent an accident". The New Highway Code adds, what was then the law, that it is an offence to sound one's horn unnecessarily. Why should this Appellant have sounded his horn? It is suggested it was because this was a part of the road used by trams and because it was late at night. The latter I would have thought a strong reason for not using one's horn unless it was absolutely necessary. This driver had no reason to believe that pedestrians were going to step from the refuge into the road in front of him. One of them appeared to do so and withdrew. It would not have been of any value whatsoever for him to sound his horn, or to flash his lights, as has also been suggested as a possibility, if he had not done it considerably further back along the road, before he even saw the pedestrians on the refuge. Had he sounded his horn when he first saw them, he was already so close that, by the time he had made up his mind so to do and had carried out that intention, the vehicle would have been beside the refuge. The horn would only have sounded when the vehicle was a matter of a couple of feet from the woman. Had the woman heard the sound, by the time it could have registered in her mind she would have been dead. So I cannot see that the learned judge was right in saying that the Respondent was negligent in failing to sound his horn. Counsel for the Appellant placed reliance on several cases, only two of which I need to mention. The first was Williams v. Needham 1972 R.T.R. 387. There a driver knocked down a pedestrian whom he had seen standing by a parked car and clearly intending to cross the road, although not looking in his direction. Those facts are materially different from the facts of the present case, because here the 1st Respondent had no reason to anticipate that the Deceased was intending to leave the refuge. The second case was Au Cheung v Choi Lai-fan 1978 Civil Appeal No. 6. The driver in that case was held guilty of contributory negligence to the extent of 80 per cent, because the deceased had almost completed his crossing of the carriageway when he was struck by the lorry, which was travelling in the outer lane, and only excessive speed or failure to keep a proper look out could have been the major cause of the collision. In our case the judge rightly concluded that the 1st Respondent was not guilty of such negligence. Accordingly I do not think that either of these cases assists the Appellant. 11. Regrettable as it may be to the family of the Deceased, I have come to the conclusion that the appeal must be dismissed but that the cross appeal must be allowed. Judgment must be entered for the Defendants and, that being so, it is unnecessary to discuss the interesting questions as to damages which were raised by Mr. Eddis. Yang, J.: 12. I concur. O'Connor, J.: 13. I also concur. 22nd February 1980. Representation: F. Eddis (Raymond Tang & Co.) for Appellant. Mills-Owens, Q.C. (Johnson, Stokes & Master) for both Respondents. |