WONG KIN FAN v. FOK YUE MING

CACV 400/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 400 OF 2007

(ON APPEAL FROM DCPI NO. 1207 OF 2006)

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J U D G M E N T

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Hon Rogers VP:

1.  Through no fault of this court, this appeal has been remarkably short.  It is an appeal from a judgment of His Honour Judge Leung given on 23 October last year, and it relates to an accident which took place in the Queen Elizabeth Hospital grounds.

2.  The Plaintiff was a young man, he was there to conduct pest control activities, and it was the first time he had been to the location.  He was following his colleague.  He came down a side road and then into a road where he was walking past a basketball court.  The photographs are very clear.  There is no obstruction from his point of view of the road and there is no obstruction from a driver’s point of view, looking towards the pavement on which the Plaintiff was.

3.  The Defendant was a taxi driver who was driving his taxi down that road.  The judge accepted that the taxi was going remarkably slowly, at about 10 to 15 kilometres an hour, which was an appropriate speed given the speed restriction; given the look of the road, it is slightly slower than I am sure many cars go down that road.  But, nevertheless, it does seem that the taxi driver must have been going very slowly.  The accident occurred when the Plaintiff stepped off the pavement onto the road and was struck by the side of the taxi.

4.  The taxi driver said that he had moved out to the middle of the road because he had seen the Plaintiff and that he instinctively moved out, which is quite a sensible thing, particularly if the road was not busy at the time.  It is the sort of thing that drivers do do.  It is quite clear that the taxi driver stopped immediately, and any suggestion that he was going faster and that he went 10 metres beyond the accident point really fell away and was clearly not so; the judge did not accept that.

5.  The judge apportioned liability as to two-thirds to the Plaintiff and one-third to the Defendant.  But before one apportions liability, one really has to say on what basis can it be said that the Defendant was negligent.  The judge really came down to the fact that the Defendant should have been aware that the Plaintiff might have stepped off the pavement onto the road and should have warned the Plaintiff of his approaching vehicle by sounding the horn.

6.  I am not convinced that, in the circumstances, sounding the horn was appropriate.  If, in this sort of situation, a taxi driver were to sound the horn every time he saw a pedestrian walking down the pavement, I am afraid there would be an awful lot of horns sounded and, quite apart from anything else, it is not appropriate to sound horns unnecessarily in the precincts of a hospital, where one tries to keep as quiet as is reasonably possible.

7.  In my view, really, the driver cannot be blamed for not sounding the horn.  He was alert.  He did see the Plaintiff walking on the side road.  He was driving slowly and, as far as I can see, he was driving carefully.

8.  This appears to me to be an accident which was caused simply because the Plaintiff stepped out without looking.  He admits he did not see the taxi.  He admits he was walking fast; at one stage, he even said that he was running.  It does appear that his colleague, who no doubt was familiar with the area, was ahead of him and, no doubt, the Plaintiff wanted to catch up with his colleague, because he was not familiar with the area and it was the first time he was there.

9.  I am sorry to say that this seems to me simply an accident which occurred when a car was travelling down a straight piece of road in a perfectly proper manner and the Plaintiff simply walked out into the road without looking.  Luckily, in this case, the Plaintiff does not seem to have been badly injured at all.

10.  In those circumstances, I consider that this appeal has to be allowed, because the case of negligence against the Defendant has not been made out.

Hon Stone J:

11.  In deciding the issue of driver negligence, the fundamental question in each case is whether he or she acted as a reasonable and prudent driver should in the particular circumstances established by the evidence.  Put thus, the principle is easy to formulate, and it follows, of course, that the question is peculiarly ‘fact sensitive’ in each individual case.

12.  In this case, my Lord the Vice-President has outlined the particular circumstances of this accident, and has indicated his view that the driver was not negligent.  I respectfully agree with all that has fallen from my Lord in his succinct and cogent judgment, and I also agree that this appeal must be allowed.

Hon A Cheung J:

13.  I also agree that this appeal should be allowed for the reasons given by my Lord the Vice-President.

Hon Rogers VP:

14.  Accordingly, we allow the appeal and set aside the judgment below.