HO HING YUEN v. LEE WAI KAI

CACV  258/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 258 OF 2004

(ON APPEAL FROM HCPI NO. 58 OF 2003)

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J U D G M E N T

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Hon Rogers VP:

1.  This is an appeal from a reserved judgment of Suffiad J given on 31 May 2004.  The matter before the judge was an action for personal injuries brought by a pedestrian who had been knocked down by a light goods vehicle.  The judge dismissed the claim but in case it might later become relevant, he assessed the damages.  The total on that assessment came to in excess of $4 million. 

2.  The background to the case is quite simple.  There was only one witness who gave evidence and his evidence was accepted by the judge.  That was the evidence of the defendant.  It is summarised in paragraphs 8-13 of the judgment.  I can do no better than to quote directly from the judgment: 

“	8.	According to the defendant, at about 5.43 a.m. on 1 November, he was driving along the westbound carriageway of Chuk Yuen Road heading towards Tuen Mun, having come from his home at Shatin Pass Estate.  He was driving in third gear at a speed of 45 to 46 kph.  The speed limit for that part of the road was 50 kph.  As it was still dark, he had his headlights on.  The streetlamps were also lit.  The weather was fine and the road was dry.  On that stretch of Chuk Yuen Road, there were a number of vehicles parked on the inner lane on his left hand side.  He was travelling on the outer lane.  He did not see any pedestrian waiting in the gaps between the parked vehicles to cross the road.  When he came to outside the Chuk Yuen Shopping Centre, (the plaintiff) suddenly ran out without warning from a gap between a stationary bus and a coach both of which were parked on the left side of the road on which he was travelling.  He first saw (the plaintiff) about four feet from the front of his vehicle.  The (plaintiff) did not stop and did not look at his vehicle but instead was looking straight ahead.  He could not see (the plaintiff) before (the plaintiff) ran out from the gap.
	9.	The defendant admits that he did not sound his horn before the collision.  However, he knew that part of the road well as he had been driving along that road for the past one year regularly.
	10.	He also gave evidence that because of the number of vehicles parked along the inner lane, he had driven more to his right (i.e. closer to the central refuge in the middle of the road to his right side) leaving a gap of some 1.5 metres between his vehicle and the parked vehicles on his left side.
	11.	When the plaintiff ran out from the gap, he had immediately braked and was able to stop his vehicle immediately without skidding.  Nevertheless he could not avoid hitting the plaintiff with the nearside front of his vehicle.  The plaintiff was thrown the length of one and a half light goods vehicle from the point of collision.
	12.	When he was cross-examined, the only matter of any significance to emerge was that while in his statement he referred to the bus (in front of which the plaintiff had ran out) as being stationary and parked in the inner lane of the road, but when cross-examined he said that this bus was a KMB double decker bus which was setting down/picking up passengers at the time.
	13.	Although this is a departure factually from what was stated in his statement (and therefore his evidence-in-chief) it will be seen in the latter part of this judgment that this factual difference does not in any way alter my decision on liability in this case.”

3.  That really summarises the whole matter.  Mr Sarony SC, in this Court, narrowed the argument.  In the court below,the allegations of negligence had been put on the basis that the defendant should not have been travelling at more than 20 kilometres per hour, that he had not sounded his horn and that he had not flashed his headlights.  Sounding the horn at that time in the morning, passing a housing estate, is just a matter which is something which would have attracted the attention of the police, but, as the judge said, would have been unreasonable.  Not flashing the headlights when the headlights are on is simply irrelevant because, at that time of the morning, on 1 November, the road was dark and a vehicle travelling with its headlights on is easily visible by all other road users, including pedestrians.

4.  In this Court, the argument came down simply to a question of speed.  Mr Sarony argued on the basis that the driver had admitted having foreseen a danger of persons emerging in front of the bus which had stopped to let down and pick up passengers.  He said that, because of that, the driver had a duty to drive in such a way that he could stop.  When pressed by members of this Court as to what speed that would be, he said it would have to be about 15 kilometres per hour and, in any event, if he had been travelling slower than 45 kilometres per hour, the impact would have been less.

5.  In my view, the matter is quite simple.  I entirely agree with the judge below.  I cannot see that, given the road condition and given the time of day and the absence of other road users, the defendant was travelling other than in a careful manner.  He was in third gear; he was travelling at a very reasonable speed for that sort of a road, which was a divided dual carriageway road, admittedly with buses there.  But unfortunately, if pedestrians choose to run across the road, they take, literally, their life in their own hands; worse still if they do so without looking. 

6.  The liability for personal injuries is still based on negligence.  In this case I cannot see that the defendant was negligent.  I therefore see that this Court has no alternative but to dismiss this appeal.

Hon Le Pichon JA:

7.  I agree with the judgment of the Vice President.  I would add that I agree with the judge below that the defendant was under a duty to expect that pedestrians may emerge (not run out) from between the parked vehicles.  Clearly, in this case, the defendant had discharged that duty.

8.  I would therefore dismiss this appeal.

Hon Stone J:

9.  I have the misfortune to take a different view from that of the majority of this Court.  My Lord, the Vice President, has rehearsed the facts and I gratefully adopt his summary of them.

10.  The only question in my mind is whether, in these particular circumstances, this driver was driving too fast. 

11.  There is no doubt that he was aware that he was approaching a stationary bus.  He says, in his evidence, that he saw a KMB setting down and picking up passengers there and, shortly thereafter he makes it clear that he had moved closer to the kerb on the right side - by which I take it to mean the central divider - in a deliberate attempt to take avoiding action - and I quote - “because to some extent it worried me that someone might be coming out in such a way”.  The situation therefore is that he had in his mind, entirely properly, the possibility of someone emerging from the front of the bus, as we know that most regrettably this young boy in fact did. 

12.  In these circumstances, I am unable to persuade myself that 46 kilometres per hour was, as the learned judge found, “doing as much as any reasonable driver would have done in the circumstances”.  In my view there is here a prima facie case of negligence. 

13.  Equally, however, as Mr Sarony with his usual common sense accepted, there must be a very substantial degree of contributory negligence.  This is not an easy case.  Mr Sarony says, as far as he is concerned, that contributory negligence could “not be less than 70 per cent”.  I would think that in this he is using a touch of advocate’s licence.

14.  Looking at the matter largely and liberally, I would have put the level of contributory negligence at 80 per cent, but I would have held that the driver was 20 per cent liable for this accident.

15.  For my part, therefore, I would have allowed this appeal to the extent that I have indicated.