NG SHING YAN VINCENT v. POON KIN PONG

CACV 170/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 170 OF 2009

(ON APPEAL FROM HCPI NO. 83 OF 2004)

____________

BETWEEN

____________

_______________

JUDGMENT

_______________

Hon Cheung JA:

1.  I agree with the judgment of Kwan JA.

Hon Kwan JA:

2.  This is an appeal of the plaintiff from the judgment of Deputy Judge Au (as he then was) in a personal injuries case arising out of a traffic accident.  The plaintiff, who was 9 years old at the time and 16 years old at the time of trial in 2009, was knocked down by a four-wheel drive SUV driven by the defendant on 25 January 2002 when he was crossing Kai Yip Road in Sau Mau Ping, Kowloon.  He suffered open fracture tibia and fibula of the left leg and although he has recovered to a very large extent from the leg injuries, he was diagnosed to have been suffering from post-traumatic stress disorder and social phobia.  He claimed damages in the region of $1.2 to $1.4 million.  His claim was dismissed as the judge held that the accident was not caused by any negligence of the defendant.

The background

3.  The relevant background facts, as appeared from the judgment and evidence not in dispute, may be summarised as follows.

4.  Kai Yip Road is a one-way road of about six metres wide and that section of the road in which the accident occurred runs through a public housing estate known as Kai Yip Estate. Situated on the nearside of the relevant section of the road towards the direction of Kwun Tong Road are three residential blocks.  The nearest to the road is Kai Ning House, and Kai Cheung House is further back.  There is a nursery school on the ground floor of Kai Ning House.  On the offside of the relevant section of the road is a public market and car park building.

5.  The pavement on the offside of the relevant section of the road is about two metres wide.  As for the opposite pavement on the nearside, the space is largely taken up by concrete flower beds.  There is a gap in the flower beds near the lamp post where the accident occurred.  Pedestrians can pass through a red barrier gate erected for the use of the Fire Services Department.  There is no designated place for pedestrian crossing in that part of the road.

6.  The plaintiff lived in Kai Yin House in the Estate and was studying in a primary school in the Estate.  He walked to and from the school by himself every day.  On the day of the accident on 25 January 2002, he left school at about 5 p.m. after he finished his examinations.  Many students were leaving at that time and were walking in the same direction along Kai Yip Road.  They were walking on the offside pavement.  When the plaintiff reached the public market, he intended to cross the road to buy something to eat from the hawkers next to Kai Cheung House before going home.

7.  Madam Lo Oi Kam is a teacher who testified for the defendant.  She was driven by her husband to Kai Yip Estate to pick up their daughter from the nursery school in Kai Ning House.  Madam Lo’s husband parked his car next to the offside pavement near to the market.  He left the car to go into the market and she walked across the road to go to Kai Ning House.  She reached the nearside kerb and went through the red barrier gate.

8.  Mr Chui Kwok Kuen is a driver by profession and gave evidence for the plaintiff.  He was on the offside pavement waiting to cross the road.  Next to him was a crowd of school children also waiting to cross.

9.  The defendant was in his late thirties with over twenty years of driving experience.  He was familiar with the locality of Kai Yip Road.  At just past 5 p.m., he drove his car along the road through the Estate towards Kwun Tong Road.  He went past the car parked by Madam Lo’s husband.  That part of the road is straight.  Traffic at the time was light, the road condition was good, so was the weather condition and visibility.

10.  After being knocked down, the plaintiff’s left foot was trapped underneath the offside front wheel of the defendant’s car after it had stopped.  The distance from the nearside kerb to the nearside front of the defendant’s car was 1.8 metres.  No skid marks were left by the defendant’s car.  It is common ground the car was not travelling in excess of the speed limit.  No one was prosecuted in relation to this accident.

The judgment below

11.  The main issues on liability were: (1) how did the accident occur; (2) if the accident was caused by the defendant’s negligence; and (3) if so, whether the plaintiff was guilty of contributory negligence.

12.  It is the plaintiff’s case that he had stopped on the kerb of the offside pavement and checked the traffic condition on his left.  Upon seeing there was no car in that direction, he started to walk across the road normally without running or dashing.  Just when he had walked for about a step or two onto the road, the defendant’s car suddenly came at a relatively high speed and knocked him down.  According to Mr Chui’s estimate, the defendant’s car was travelling at 20 to 30 km per hour.

13.  It is the defendant’s case that he was driving slowly on the road at about 12 to 13 km per hour.  The plaintiff suddenly ran out to the road from the offside pavement and the defendant first saw him when his car was about the length of one private vehicle from the plaintiff.  Although the defendant immediately braked his car, as the distance was so short, the car still knocked down the plaintiff and trapped his left foot under the offside front wheel.

14.  Four factual witnesses gave evidence seven years after the accident.  They were the plaintiff, Mr Chui, Madam Lo and the defendant. 

15.  The judge rejected the plaintiff’s version of how the accident occurred.  He found the plaintiff an unreliable witness because the plaintiff had changed an essential part of his evidence (whether the parked car of Madam Lo’s husband had blocked his view for checking the traffic) to suit his case and had changed another essential part of his case which was inherently incredible and contradicted by his own witness Mr Chui (whether there were any other pedestrians around the plaintiff when he checked the traffic condition before crossing).

16.  The judge did not accept Mr Chui was a truly independent witness.  He accepted Mr Chui’s evidence that he was waiting to cross the road with a crowd of school children including the plaintiff but rejected his estimate that the defendant’s speed was 20 to 30 km per hour as unreliable, as Mr Chui had changed the most essential part of his evidence (as to how he first saw the defendant’s car coming) in a fundamental way and was not concerned about the correctness of his evidence (whether he could recall any cars parked on the road when he checked the traffic condition on his left).

17.  The judge found both the defendant and Madam Lo to be reliable witnesses.  Madam Lo gave evidence that after crossing the road to the nearside pavement, she turned back to have a look at her husband’s car and saw the defendant’s car travelling slowly along the road and it was about 30 to 40 feet from where she was standing.  At the same time, she saw a boy on the offside pavement running along in a joyful manner.  She turned back and walked towards Kai Ning House.  After she had walked four to five steps, she heard the sound of collision.  She did not actually see how the accident occurred.  The judge accepted and preferred the evidence of Madam Lo and the defendant to that of the plaintiff and Mr Chui whenever their evidence was in conflict.

18.  The judge made these findings of fact as to how the accident occurred:

(1) Before the accident, the plaintiff was running along the offside pavement and intended to cross Kai Yip Road to buy some food, as he was feeling hungry. 

(2) At that time, there was a crowd of pedestrians waiting on the pavement to cross Kai Yip Road.  The pedestrians included other school kids.

(3) On the left of the crowd, the defendant’s car was then travelling along Kai Yip Road towards Kwun Tong Road at a speed of 12 to 13 km per hour.

(4) The car of Madam Lo’s husband was at that time parked on the offside of Kai Yip Road, which blocked the plaintiff’s line of vision when and if he looked to his left before crossing the road. 

(5) The plaintiff suddenly dashed out of the pavement crossing Kai Yip Road, without paying any or any adequate attention to the defendant’s car travelling along the road in his direction.  

(6) When the plaintiff ran onto the road, the defendant’s car was already very close to him, about the length of one private vehicle away.

(7) Upon seeing the plaintiff suddenly dashing out of the pedestrian’s pavement so close to his car, the defendant immediately braked the car to try to stop it.

(8) Notwithstanding this, as the plaintiff was so close to the defendant’s car when he dashed out, the car still hit him by the time it stopped, and trapped the plaintiff’s left foot underneath its right front wheel. 

19.  Having regard to the above findings, in particular the findings in (5) and (6), the judge held that the accident was not caused by any negligence of the defendant in that:

(1) no reasonable driver in the defendant’s position would have been able to stop the car in time to avoid the collision;

(2) the defendant had maintained reasonable lookout for traffic conditions and no reasonable driver in his position would have been able to anticipate that the plaintiff would have dashed out so suddenly and close to the car; and

(3) no reasonable driver in the defendant’s position would have been able to avoid the accident by swerving the car to the left.

20.  As the plaintiff had failed to establish liability, his claim was dismissed with costs.  The judge went on to hold that if the defendant was found negligent, contrary to his holding that the defendant was not liable for the accident, he would have found the plaintiff guilty of contributory negligence and apportioned blame to him of 50%.  Assuming that liability was established, the total amount of damages assessed by the judge was $719,891.

The issues taken on appeal on liability

21.  The plaintiff seeks to challenge on appeal the findings of the judge as to the following:

(1) the distance of the defendant’s car from the plaintiff when the defendant first saw the plaintiff (that it was the length of one private vehicle away);

(2) the speed of the defendant’s car (that it was 12 to 13 km per hour);

(3) there was no negligence on the defendant’s part; and

(4) the plaintiff was guilty of contributory negligence to the extent of 50%.

22.  As regards the issue in (1), Mr Kenneth Chik submitted for the plaintiff that the defendant’s evidence that his car was the length of one private vehicle away when he first saw the plaintiff was incredible.  They pointed to these matters in the defendant’s oral testimony that were not in his police statement or witness statement or were contradictory to his statements: the distance from the plaintiff might be “a bit more” than the length of one private vehicle; the speed of the plaintiff running into the path of his car was even faster than the speed of his car; the plaintiff ran out “diagonally” to the offside front of his car; and that the plaintiff was first seen running on the road, as opposed to dashing out from the pavement, when he was first seen, and had run for two to three feet when he was hit by the offside front wheel of the defendant’s car.

23.  In respect of the issue in (2), an attack was mounted at the defendant’s evidence for the same reasons as above, and at the evidence of Madam Lo, who did not hold a driving licence.  It was submitted that no weight should be given to her evidence and the evidence of Mr Chui, who is a professional driver, should be preferred.

24.  Having read the relevant parts of the transcript referred to by the parties carefully, I am of the view that the plaintiff has not discharged the high burden for this court to disturb the findings of fact in respect of issues (1) and (2) by the trial judge.

25.  It must be borne in mind that the witnesses were giving evidence seven years after the event.  What they said about distance and time and the sketches they drew, were no more than estimates or approximations based on their impression formed on the spur of the moment.  It would be difficult for any of them to be precise. 

26.  Mr Chik appeared for the plaintiff at the trial and had made the point in his final submission of those matters mentioned by the defendant at trial not covered in his police or witness statements so as to cast doubt on his credibility.  The defendant was asked about this in cross-examination and I have noted his explanations why he had not mentioned those matters earlier. He had explained that he could not recall those matters due to his nervousness and he was not asked to go into minute details as when he was cross-examined.  There is no indication that the judge had overlooked any of these matters specifically drawn to his attention, and the judge was entitled to give these matters such weight as he thought fit when assessing the reliability or otherwise of the defendant’s evidence.

27.  I do not think there is any conflict in the defendant’s evidence whether the plaintiff was already running on the road when he was first seen or was on the pavement and dashing out from it.  When his evidence is read properly as a whole, it is quite clear he had maintained that the plaintiff was not yet on the road and was still on the pavement when he first saw the plaintiff.

28.  The judge was entitled to prefer Madam Lo’s evidence to Mr Chui’s evidence regarding the speed of the defendant’s car, notwithstanding that the former did not hold a driving licence and the latter was a professional driver.  The judge rejected Mr Chui’s evidence as unreliable as he had changed the most essential part of his evidence in a fundamental way and concluded that it was merely Mr Chui’s speculation that the defendant’s car was travelling at high speed.  There is no basis to interfere with that finding.

29.  Mr Chik sought to argue that the plaintiff was first seen at least 20 feet away, not the length of a private car which would be about 13 to 15 feet, on the supposition that if the car had been going at 12 to 13 km per hour, the defendant would not have been able to stop the car in the distance of 12 to 13 feet. He also contended that on Madam Lo’s evidence, the defendant’s car was 30 to 40 feet when she first saw it and given that the overall stopping distance for a car travelling at the speed of 20 km per hour is 25 feet, the defendant must have been travelling at a minimum speed of 20 km per hour and not 12 to 13 km per hour as he had claimed.

30.  None of these hypotheses have been tested on reliable factual premises satisfactorily proved.  They are also inconsistent with the position taken in paragraph 3g of the Re-amended Notice of Appeal that if the defendant’s car was travelling at 12 km per hour and even if the plaintiff had walked out about one vehicle’s distance in front of the defendant’s car, he must be able to stop the car in time to avoid the accident.  Further, as submitted by the defendant’s counsel, Mr Patrick Szeto, the calculations of Mr Chik wrongly assumed the only dynamic was the defendant’s car and ignored the fact that the plaintiff was moving at the same time.

31.  The factual findings of the judge in respect of issues (1) and (2) are based on his assessment of the reliability of the evidence of the witnesses, the weight he attached to their evidence and his preference of the evidence of some of the witnesses to others.  It has not been shown that the conclusion he reached was plainly wrong. There is no basis to interfere with these findings.

32.  The same goes for the judge’s acceptance of the defence evidence as to how the accident occurred and his rejection of the plaintiff’s evidence in that respect.  Mr Chik sought to challenge the findings that the plaintiff was running along the pavement, that his vision was blocked by the stationary car of Madam Lo’s husband, that he had suddenly dashed out of the pavement without paying attention to traffic from his left, that he had emerged from the pavement when the defendant’s car was the length of one private vehicle from his left, and that he was running onto the road in the path of the defendant’s car.  It was submitted that Madam Lo did not see the face of the boy she described as running on the pavement in a joyful manner and she had accepted she did not actually see how the collision occurred.

33.  This challenge of the judge’s findings of how the accident occurred is quite hopeless.  The judge has carefully considered the plaintiff’s evidence and formed an unfavourable view on his credibility.  He was also entitled to draw the strong inference that the boy so described by Madam Lo was the plaintiff.  Besides, it was never suggested to her in cross-examination that the defendant’s car had collided with a different boy.  And as the judge had pointed out, the findings he made as to how the accident occurred were more consistent with another finding that all the other pedestrians on the pavement including Mr Chui did not cross the road.

34.  Mr Chik postulated that as the point of collision is 2.2 metres from the offside kerb, if the plaintiff had taken 1 to 2 seconds to move from the kerb to the point of collision, he would be moving at 3 km per hour to 7 km per hour, slower than the speed of the defendant’s car alleged by the defendant at 12 to 13 km per hour, and not faster than the defendant’s car as claimed by the defendant in his evidence.  As in the earlier instance, this hypothesis is not founded on reliable factual premises as to time and distance.  According to the defendant, the plaintiff was running out diagonally from the pavement.

35.  I would decline to disturb the judge’s findings on how the accident occurred.

36.  In my view, the only valid point taken by the plaintiff on appeal is regarding the conclusion of the judge that the defendant had maintained reasonable lookout for the traffic conditions and that no reasonable driver in his position would have been able to anticipate the plaintiff would have dashed out so suddenly and close to his car.  Quite clearly, the judge had accepted the defendant’s evidence that he did not anticipate a child dashing out from the pavement and running diagonally across the path of his car.  But there is still the question whether the defendant should have anticipated, from what he saw, that a boy might run out onto the road in front of his car.  If the answer to this is in the affirmative, the conclusion that the defendant had maintained reasonable or proper lookout must be called into question.

37.  Mr Chik relied on these surrounding circumstances and other matters as found by the judge.  There was a market near to the accident spot, and a primary school and nursery school in the vicinity.  The spot where the plaintiff stepped onto the road was an open pavement, and I might add, there is no designated place for pedestrian crossing in that part of the road.  At around the time of the accident, many children in school uniform were leaving the primary school at the same time and walking towards Kai Yip Road.  The defendant was familiar with the locality and was aware that students were leaving school at that hour.  Mr Chui and a group of school children were standing on the offside pavement waiting to cross the road.  They did not do so as they saw the defendant’s car approaching.  It was a straight stretch of the road.  The defendant first saw the plaintiff when he dashed out from the pavement at about one vehicle’s length from his car. 

38.  Given these circumstances, I am inclined to think that the defendant should have approached that part of the road where a group of children was waiting to cross with greater circumspection.  He had said in cross-examination he did not pay much attention if there were other pedestrians before he became aware of the plaintiff dashing out onto the road.  Had he paid greater attention, he could not have missed the group of children on his offside waiting to cross the road, and might have noticed the plaintiff running on the offside pavement.  Madam Lo could see the plaintiff running on the pavement in a joyful manner when she turned back to look at her husband’s stationary car.  The possibility of the danger of the plaintiff running onto the road without stopping should have been reasonably apparent to the defendant.  I do not think he had kept a proper lookout.

39.  It seems to me the judge had plainly fallen into error in the above respect and his conclusion that the accident was not caused by any negligence of the defendant cannot be supported. 

40.  I turn to consider contributory negligence.  On the factual findings made by the judge as to how the accident occurred, the plaintiff is plainly guilty of contributory negligence.  If he had been of the view that the defendant was liable for the collision, the judge would have apportioned blame equally between the parties.  Mr Chik initially submitted that contributory negligence should be reduced to 30%, contending that the assessment of 50% was too high and outside the reasonable limits in the discretion of the trial judge.  In his verbal submission, he accepted that if the judge was right in holding that the plaintiff had dashed out to the run without checking the traffic condition, the plaintiff’s liability should be greater than 50% and he would put it at 60%.  Mr Szeto had no quarrel with this.

41.  An appellate court should not interfere on a matter of apportionment of liability unless the result is outside the limits reasonably available to the trial judge (Wishing Long Hong v. Wong Kit Chun (2001) 4 HKCFAR 289 at 298B).  I consider it appropriate to intervene in this case, for two reasons.

42.  Firstly, it appears to me the judge was handicapped in making a proper apportionment.  It was his primary conclusion that the defendant was not to be blamed in any way for the accident.  He made the apportionment of liability in the supposition that the defendant was in some way liable without spelling out how such liability might be established, in the event his primary conclusion should be wrong.  Without any indication of how blameworthiness might be attributed to the defendant and how this had caused the accident, I do not think the judge could make a proper apportionment of liability.

43.  Secondly, on the factual findings as to how the accident occurred, it is clear that the primary cause of the accident was the plaintiff running diagonally across the road in the path of the defendant’s car without paying any attention to oncoming traffic.  The blameworthiness on both sides could hardly have been equal, even taking into account that the plaintiff was a nine-year old child.  I would set aside the judge’s apportionment and apportion liability at 70/30 in the defendant’s favour.

The issues taken on appeal on quantum

44.  The plaintiff took issue with two items of loss and damage assessed by the judge, being the award for pain and suffering and loss of amenities (at $500,000) and the award for future medical expenses (at $2,400).  The plaintiff contended the appropriate award for the former should be $700,000 and that for the latter should be $294,000.

45.  It was submitted that the judge was in error in finding that the plaintiff had exaggerated his psychiatric problems.  The judge had given cogent reasons why he preferred the view of the defendant’s expert Dr Chung See Yuen that the plaintiff’s symptoms of post-traumatic stress disorder and social phobia were of a mild degree and of a residual nature only.  I see no basis to interfere with the award of $500,000 for pain and suffering and loss of amenities. 

46.  As for future medical expenses, the judge had taken into account it was common ground that the plaintiff’s psychiatric conditions have been improving upon his receiving regular treatment at the psychiatric unit of the United Christian Hospital.  The judge noted there appeared to be no significant difference between the nature of the treatment in the private sector recommended by the plaintiff’s expert Dr Peter W. T. Yu, and the treatment offered by the psychiatric unit of the United Christian Hospital.  The judge was fully entitled to accept Dr Chung’s opinion that the plaintiff should continue his psychotherapy in the public sector instead of the private sector at the frequency of once a month for one year and award damages on that basis.

Conclusion

47.  I would allow the appeal, set aside the judgment in the defendant’s favour and substitute this with judgment for the plaintiff with liability apportioned to the defendant at 30%.  I would uphold the assessment of damages, so the amount of the net award to the plaintiff would be $215,967.30.  The costs order of the court below would be set aside and substituted with a costs order of the action in the plaintiff’s favour.

48.  In an ordinary situation, interest would have been awarded on general damages at 2% per annum from the date of service of the writ to the date of judgment and thereafter at judgment rate until payment, and on special damages at half the judgment rate from the date of the accident to the date of judgment and thereafter at judgment rate until payment.  This action was commenced in February 2004 and there was substantial delay since November 2004.  No progress in the action was made until August 2007.  In the hearing below, the plaintiff had made the concession that no interest would be sought after 30 June 2007.

49.  I would award interest on general damages at 2% per annum from the date of service of the writ to 30 June 2007 and at judgment rate from the date of judgment until payment.  As for special damages, I would award interest at half the judgment rate from the date of the accident to 30 June 2007 and at judgment rate from the date of judgment until payment.  Both counsel have indicated they are content with this order on interest.

50.  As the plaintiff is the successful party in the appeal, I would make an order nisi that he should have the costs of the appeal.

Hon Yam J:

51.  I also agree.