CHOW TAK CHUN v. WONG YUN YAU

1989, No. A1315

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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REASONS FOR JUDGMENT

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1. This action arises out of an accident which occurred on the 4th July 1986. That is now nearly nine years ago. The passage of time does not help in the reconstruction of what took place on that day.

2. The 4th of July was described as a gloomy day. It had apparently been raining in the morning, but by the afternoon the weather had cleared a little and the road surface was dry.

3. The Plaintiff, Mr. Chow Tak Chun, was a young man. He was about 27 years old and had come to Hong Kong some five years earlier. He was hardworking. In addition to his full time job, he assisted a Mr. Cheung Shing Cho in his printing company. That work required him to be able to read and see things clearly. However, unbeknown to Mr. Chow, he had an eye defect.

4. The medical evidence of both Mr. Iain MacRobert and Dr. Joseph Yeung is in agreement that it is clear from the medical reports shortly after the 4th July that the Plaintiff was suffering from atrophy of the optic nerve. This was due to glaucoma. His condition was described by Dr. MacRobert as chronic open angled glaucoma. It was described as an insidious progressive disease which, first of all, destroys the peripheral field vision. The medical evidence was consistent that a person suffering from this condition may well be unaware of his predicament for a considerable time. It was impossible for the doctors to say just how long the Plaintiff had been suffering from this disease and to what extent it had affected his vision by the 4th of July 1986. It seems that the condition in the right eye was almost certainly more serious than that in the left, which itself is very serious indeed, and that the condition must have existed by the 4th of July 1986 and may have existed for something in the region of five years before that.

5. At 3 p.m. on that afternoon, Mr. Chow was walking along the north side of Shau Kei Wan Road. He reached the crossing with Hoi Fu Street and he crossed. He wanted to get on a tram. The tram island for trams going in the easterly direction was a little further on than the junction with Hoi Fu Street. There are two monochrome pictures taken by the police at the time which depict the scene of the accident as it was in July 1986. There are some later colour photographs which were taken some two years later. These also depict the scene of the accident but care must be taken because a comparison between the two sets of photographs shows that in 1986 the road markings in respect of the white lines demarking the area for vehicles and that of the tram lines was different. In 1986, there was only a single intermittent white line. By the time the colour photographs were taken there were double white lines.

6. Mr. Chow continued to walk in an easterly direction along Shau Kei Wan Road, but after he crossed Hoi Fu Street, he walked on the outside of railings which were at the side of the pavement. These, as the photographs show, are normal type railings which are there to protect the pedestrians and, I might say, to encourage pedestrians to keep to the pavement. They had apparently been erected in 1982.

7. Mr. Chow walked along the side of the road either in the gutter or on the side of the pavement, and for these purposes it does not matter greatly exactly which, and then he stopped. He looked to the right, he walked a few paces out towards the tram island and, unfortunately, into the path of the oncoming lorry driven by the Defendant.

8. Nearly nine years later, it is understandably very difficult to piece together the exact circumstances of what happened. There was an eye witness, a Mr. Chik Lee Man. He was a property manager and he was waiting on the pavement looking in the direction from which the Plaintiff was coming because he was waiting for somebody else. I found him a very sensible and straightforward witness. He says that he saw the Plaintiff walking along. He saw him looking to his right and as soon as the Plaintiff stepped out into the road, he was hit by the lorry. He estimated that the lorry was only half a lorry's length away from the Plaintiff when he stepped onto the road. Mr. Chik was not a driver at the time, but he estimated that the speed of the lorry was 40 miles an hour and he based that on the comparison with the speed of the tram which he says was pulling up at the stop at the time.

9. Mr. Chik marked on one of the colour photographs the spot where he says that the Plaintiff walked out into the road. For reasons which I will come to in a moment, I consider that he marked that spot wrongly and that the reason he probably marked the spot wrongly was that the lapse of time has made his memory imprecise. I certainly make no criticism in this respect, but I bear it in mind.

10. As to the speed of the lorry, there are two matters. Tyre marks were left on the road which were made by the lorry when it braked. As a result of those tyre marks, the Plaintiff's expert witness Dr. Lingard gave the speed of the lorry at about 20 miles an hour. He maintained his estimate of the speed based on his calculations despite cross-examination and I see no reason to doubt that. It does not, of course, exclude the possibility that the lorry may have been travelling slightly faster than that prior to braking if the initial braking was not hard enough to cause tyre marks. That would mean, however, that there was an initial period of lighter braking followed by a period of heavy braking. That may not be quite so likely. Mr. Wong Yun Yau, the Defendant, said that he was driving in fourth gear at the time and that his speed was about 20 miles an hour. He gave the range of speed in fourth gear of his lorry as from 15-22 or 23 miles per hour. That must be an estimate of what his normal driving speeds were in the lorry in question. The lorry is now no longer available.

11. Mr. Chik also said that the lorry had swerved in from the tram lines before it hit the Plaintiff. The Defendant denied this as indeed did Mr. To Chan, the passenger in the Defendant's vehicle, who was a transportation worker who was on that day working with the Defendant although not employed by him.

12. Turning first to the question of where the Plaintiff was when he stepped into the road, in my view, he was probably closer to Hoi Fu Street than the opening in the railings for pedestrians to walk to the tram island. I say that for two reasons. First of all, it is natural that when anybody is walking towards a tram stop, he will be liable to take a shorter route once he has reached a position opposite the tram island and the entrance to a tram is, of course, at the rear. He would not therefore walk to the front of the tram island. Secondly, consistent with the sketch plans showing the position where the Defendant ended and the commencement of the tyre marks, if some extra allowance were made for the Plaintiff being thrown by reason of the accident, it would not be unlikely that the Plaintiff was indeed somewhere nearer Hoi Fu Street than the opening in the railings. Furthermore, although I hold on a balance of probabilities that Mr. Chik was wrong as to the precise location at which the Plaintiff was, in other words, he put it too close to Hoi Fu Street, I consider that he is likely to be correct that it was at a position where there were railings rather than the gap. Furthermore, it must be borne in mind that the Plaintiff himself says that he walked about five paces on from Hoi Fu Street and that would not take him to the gap in the railings.

13. I next turn to where the lorry was when the Plaintiff walked out. It seems to me both from the evidence of Mr. Chik and indeed the evidence of the lorry passenger, Mr. To Chan, that the lorry was probably very close. Mr. Chik said that it was, in the region of about half a lorry's length when the Plaintiff walked out. It seems to me it is very difficult to say exactly how far the lorry was from the Plaintiff when he stepped into the road. Although the Plaintiff was apparently walking briskly he still had to take 2 or 3 paces into the road. That in itself takes a little time. I do not see one can be precise as to the position for the reason that it is a matter of the precise point which one takes. It is really a matter of overall impression. The Plaintiff says he had enough time to move one foot back just before the impact.

14. The Plaintiff was, as I have said, a young man. I have no doubt even seeing him in his distressed condition as he is today, that he was an active person and probably he walked fast. That is the evidence of Mr. Chik. When the lorry driver, Mr. Wong, says that the Plaintiff rushed out, I hold that there is a slight over-emphasis in the Plaintiff's speed. I do not consider that there was any running involved. As Mr. To said, it was a matter of the Plaintiff walking fast.

15. The Plaintiff says that when he looked to the right, he could see a vehicle but it was far enough away that he thought he had enough time to cross. Regrettably, I hold that almost inevitably due to his restricted sight of which he was unaware, he failed to see the lorry coming and walked out in front of it.

16. In respect of the lorry, I consider that it was being driven at a speed and in a manner which was slightly too fast for the circumstances. I accept that it was in fourth gear. On the basis of the evidence of Dr. Lingard, it is clear that it was doing something in the region of 20 miles an hour when the brakes were applied hard. It could have been doing slightly more than that. At that point, it seems to me the lorry should have been driven in a very careful manner because of the likelihood of pedestrians.

17. The lorry driver, Mr. Wong, says that his recollection is that a tram was at the stop, had allowed passengers to alight and had already closed its doors. If that be the case, he should have anticipated that passengers may have walked from the tram island to the pavement. He should have been exercising a considerable degree of care. The witnesses were by no means clear about this, but again I think that Mr. Chik and the Plaintiff are correct and there was a tram coming towards the tram stop. It was probably about to stop.

18. The pictures show that the position of the tram island left a very narrow space of road and in my view, the impression of an excess of speed is what impinged itself upon Mr. Chik's mind and caused him to give the estimate of speed of the lorry of which he was adamant at 40 mph. What that estimate of speed tells me is that the lorry was being driven slightly too fast. It was moving to the side of the road to go through the gap between the tram island and the kerb. Mr. Chik used the word "swerve". Again this is a matter of impression. I accept the lorry did not swerve in a sudden or jerky movement. What I understood from Mr. Chik saying it swerved was that his impression of the speed of the lorry coupled with the movement which was probably a slight swing in the movement of the lorry, was indicative that the lorry was being driven fast for the road at that point.

19. It seems to me it is impossible to know whether even if the lorry were travelling slower, an accident might still have occurred in the circumstances since the Plaintiff clearly walked out straight in front of it. However, if the vehicle had been going slower and the driver taking care as he passed the tram island, I consider that the damage which would have been suffered by the Plaintiff would almost certainly have been less even if the lorry driver had not been able to avoid an accident. Of course, it is speculative to have to analyse how much less any damage would have been. Nevertheless, doing the best I can, I consider that I can only come to the conclusion that by far the major cause of the accident and the damage was the Plaintiff's own negligence and I would assess the contributory negligence on the part of the Plaintiff at 85%.

20. At the conclusion of the hearing, I gave my decision but said that I would hand these reasons down in writing. At the request of the parties, I make an order that costs be costs in the cause with liberty to apply in respect of that within 21 days from the handing down of these reasons.

(Anthony G. Rogers)

Judge of the High Court