KWOK SHUN TAI v. WONG CHIU YUET AND OTHERS

1987 No. A4614

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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J U D G M E N T

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1. On the morning of the 9th October 1984, the plaintiff was knocked down by a dumper truck driven by one Chan See-yue ("the deceased") who has since died from unrelated causes. The plaintiff sustained serious injuries and now claims damages from the co-administratrices of the estate of the deceased. It has been agreed between the parties that the issue of liability should be determined as a preliminary issue.

2. Among the plaintiff's injuries were some to her head. She was knocked unconscious in which condition she remained for over 2 days. She has also suffered loss of memory of the accident. The issues of negligence and of contributory negligence have therefore to be determined without the direct evidence of the 2 principal parties, although the deceased had made a statement to the police on the day of the accident, which was put in evidence.

3. The plaintiff claims to have been 39 years of age at the time of the accident. She was born in China where she was engaged in agricultural work before she came to Hong Kong in 1979. She is unsophisticated and illiterate. On the morning of the accident she went to work near the Lung Mun Road, where she was employed in trenching, moving earth and laying pipes. She first of all went to the works site hut to collect some tools and equipment, i.e. a pole, 2 buckets and a shovel. There she met her work partner Chow Shui-ying. It was the practice to work in pairs. Madam Chow also collected her tools and equipment. They set off for Lung Mun Road which was a short walk away. One Lee Tim and the plaintiff's elder sister, who also worked at the site, walked ahead of them. Because one of her containers was broken, Madam Chow returned to the hut to get another. She says she last saw the plaintiff on the pavement at the side or the road, waiting to cross, about a toot from the kerb. When she returned she found the plaintiff lying injured on the pavement with one hand on the road.

4. The plaintiff made a statement to the police in hospital, where she was still detained, on 10th November 1984, a whole month after the accident. She said she was walking along the pavement of Lung Mun Road following Lee Tim and her sister. Suddenly she was hit and lapsed into a coma. She did not know what had happened and could not remember. Her original unamended Statement of Claim reflected that version.

5. However in her evidence in court she said she left the site office with Chow Shui-ying. She was carrying 2 buckets and a pole. When she got to the pavement, to within approximately 6 inches from the edge, Chow Shui-ying went back to the office to change a container which had a hole. She remained standing on the pavement waiting for Chow Shui-ying, when she was knocked down and woke up in hospital. Her Statement of Claim was amended to reflect that version. She claimed contrary to what Chow Shui-ying testified, that her sister and Lee Tim walked along the road in the opposite direction to her.

6. Without going into unnecessary details of the plaintiff's evidence, her conflicting versions and the conflict with the evidence of Chow Shui-ying. I will say only that it is plain that no reliance at all can be placed upon her evidence, primarily I believe, because of the effect of her head Injuries on her memory.

7. Turning to the statement of the deceased, the material portion was as follows:

"At 8.05 a.m. on 9-10-1984, I was driving CT 8072 carrying stones from Loighton construction Site at Tap Shek Kok to go to Tsuen Wan along Lung Mun Road. I was driving at a speed of about 20 m.p.h. in 3rd gear (five forward one reverse). There were no preceding vehicles other then a light goods vehicle travelling far away in front of me. But several vehicles were following me. The road was a two-way road leading to Tap Shek Kok and Tsing Wun Road respectively. There's a slight right hand when I was drawing near the spot of accident. I didn't see the injured person before the accident occurred. When I suddenly heard a 'trump' sound emitted from my nearside front corner while driving, I thought I had knocked down something. I looked into the rear-view mirror and saw that there's a person (at that time I didn't know that is a man or a woman) lying at the nearside of the road. At that moment I knew that my vehicle had knocked down a person. I stopped the vehicle at once. Policemen arrived at the scene later and I stayed to assist investigation.

Q.: Before the accident, what was the distance between the nearside body of the vehicle and the nearside pavement kerb?

A: About 2 - 3 feet.

Q.: where did the injured person walked out from?

A.: I didn't notice the injured person at all before the accident, therefore I didn't know where the injured person came from.

Q.: Did you know that the weight of the stones you carried exceeded the load-carrying capacity of your vehicle?

A.: I didn't know.

Q.: Before the accident, did you see any person on the pavement at the roadside?

A.: When I was about 20 feet from the spot of accident, I saw that there're some pedestrians on the pavement (the exact number was unknown to me) at about 4 - 5 feet from the roadway. But I didn't pay attention to what they were doing and I didn't know whether they were walking. I was near them when I heard the 'trump' sound. I didn't know if the injured person was one of them.

Q.: Before the accident, was your visibility blocked?

A.: No."

8. The principal witness called by the defendants, Sui Wai-man, also a lorry driver, gave evidence that he had collected a load of stones at the same site as the deceased and was following him along Lung Mun Road when the accident occurred. He testified that he and the deceased were doing about 40 k.p.h. just before the accident. Both he and the deceased kept between 1½ - 2 feet from the nearside kerb. Suddenly he saw the deceased's brake light and subconsciously braked too. The deceased's vehicle stopped abruptly and he saw a person lying on the roadside. He alighted, walked past the front of his vehicle, detoured round the injured person to the driver's side of the deceased's vehicle and told him to make a 999 call to the police.

9. I do not propose to elaborate upon sui Wai-man's evidence which is of limited relevance anyway, as I reject it as been totally unreliable. He was manifestly biased in his fellow driver's favour and was concerned only to exonerate him. Aspects of his evidence were not only incredible, but totally unexplained e.g. how he came to be travelling immediately behind the deceased who preceded him in the loading-up queue and should have been several minutes ahead as that was the loading interval; that the plaintiff was lying 1½ feet from the rear of the deceased's vehicle, which is in conflict with the other evidence which I have no hesitation in accepting; that the truck had been moved, which seems incredible. His demeanour confirmed that assessment.

10. The primary contention made on behalf of the plaintiff was that the plaintiff was struck by the truck while she was on the pavement. I have no difficulty in rejecting that contention for the following reasons. While the position in which a traffic accident victim comes to rest after a collision is not generally regarded as a safe indication of the point of impact, in the circumstances of this case it seems to me clear enough from her post-impact position straddling the kerb, that she could not have been on the pavement when she was struck. That she was on the roadway or some distance into it, seems also more consistent with the necessity for her to cross the road to get to her place of work. She testified that Madam Chow asked her to wait, but that was not borne out by Madam Chow's evidence. Finally the deceased's vehicle would most probably have had to mount the kerb and pavement to strike the plaintiff if she were upon it. There is undisputed documentary evidence that the vehicle was carrying a load of 33 tons, an incredible 14 tons in excess of the permitted 19 ton load. I do not believe it could have mounted the kerb without leaving some trace of that happening or it being notice. There is not one iota of evidence that the vehicle mounted the pavement. On the contrary the deceased's statement which seems to me to be generally truthful, indicates that it did not. In my finding, the deceased's truck did not mount the pavement.

11. On the deceased's own statement, he should have seen the plaintiff get off the pavement and on to the road. I think it probable that she was one of the pedestrians he had noticed earlier at the side of the road. In my judgment, he clearly fell short of the required standard of reasonable care had was negligent in not keeping such a look out as to spot the deceased, particularly after noticing the pedestrians on the roadside. In my judgment, he was also negligent albeit in a much lesser degree in not taking any precautionary measures on seeing the group of pedestrians e.g. not slowing down, sounding his horn, or moving further away from the pavement. Finally, in my view, he was also negligent in allowing his vehicle to be so grossly overloaded that it must have affected the performance of the vehicle in respect of the efficiency of its brakes it in no other respect. In my judgment, therefore, he was negligent.

12. I turn therefore to the question of whether there was any contributory negligence on the part of the plaintiff. The photographs and evidence such as there is establish that there was no reason why the plaintiff should not have seen the dumper truck approach. The conclusion that she was negligent in getting on to the roadway when the truck was approaching is therefore inescapable. Moreover, having regard to the fact that the plaintiff was struck by the near side front corner of the truck, and the failure of the deceased to even notice her, the probability is that she stepped into the road when the truck was fairly close to her. Clearly she, too, was negligent.

13. I turn then to the apportionment of blameworthiness. I bear in mind that the "motorist controls a lethal weapon, the pedestrian does not" (Au Cheung v. Choi Sai-fan and Chan Loi (1979) HKLR 543; Yick Bing v. Sze Kwong-fai (unreported) HC 132 of 1979 p.2). While the particular facts of other cases are of limited assistance, the observations of Lord Reid in Baker v. Willoughby (H.L.(E.)) 1970 AC 467, 490 E - G are clearly pertinent.

"A pedestrian has to look to both sides as well as forwards. He is going at perhaps three miles an hour and at that speed he is rarely a danger to anyone else. The motorist has not got to look sideways though he may have to observe over a wide angle ahead, and if he is going at a considerable speed he must not relax his observation, for the consequences may be disastrous. And it sometimes happens, though I do not say in this case, that he sees that the pedestrian is not looking his way and takes a chance that the pedestrian will not stop and that he can safely pass behind him. In my opinion it is quite possible that the motorist may be very much more to blame than the pedestrian."

The plaintiff's negligence in this case seems to me rather more than simply stepping into the road in a moment of inadvertence or starting to cross without keeping a proper look out. There was good visibility for a considerable distance, yet she must have got on to the road when the truck was clearly visible, moreover when it was fairly close to her. The deceased for his part did not keep a proper look out nor did he take any precautionary measures on seeing that there were some pedestrians on the pavement, like sounding his horn, slowing down or moving further away from the kerb. As I have said he should have also been aware that his truck was grossly overloaded and of the effect of that on his brakes; but I do not take that into account in apportionment since the deceased did not use his brakes atall. Having regard to all the circumstances and the relevant considerations, it does not seem to me possible to say that the defendant was more to blame than was the plaintiff or vice versa. In my judgment the blame should be apportioned equally.