AU CHING BUN AND ANOTHER v. CHAN SIU PUI AND ANOTHER

1983 No. 6699

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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JUDGMENT

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1. In this case the Plaintiff sues the Defendants in respect of damages sustained when he was struck by a KMB bus driven by 1st Defendant. It happened on 18th February 1981 when the Plaintiff was 5½ years old. He was accompanying his elder brother then aged about 7 years, in the vicinity of Block 21, in Wang Tau Hom where they lived. They were crossing Fu Mei Street on a zebra crossing along with some other pedestrians. There was a safety island on the zebra crossing in the middle of the road, which was 10.4 metres wide.

2. The Plaintiff's brother was holding his hand. The brother says that when they were in the vicinity of the safety island, and the bus driven by 1st Defendant was approaching, one of the pedestrians, an old woman called out to him. He did not know who she was, but she called out to him to let go the Plaintiff's hand as a bus was coming. When he heard that, the Plaintiff's brother let go the Plaintiff's hand so that he could cross the road quickly. The Plaintiff ran into the road and was knocked down by the bus.

3. The 1st Defendant's version was as follows. He had held a driving licence since 1967 but had not driven buses before he joined KMB in January 1981 a month or so before the accident. He approached the zebra crossing at about 10 kilometres per hour, or it could have been 10 miles per hour. He was not sure which as he relied upon the speedometer and was not sure whether it was calibrated in kilometres or miles. It was probably miles. He approached the zebra crossing in second gear. There was a safety island on the zebra crossing, in the centre of the road. On the other side of the road, he saw 6 or 7 people on the zebra crossing, approaching the safety island. When he first saw them they were on the pavement approaching the zebra crossing. He was not familiar with the route and was looking for the bus stop bay beyond the zebra crossing, at which to draw up. There were two bays and he was not sure which was for his route.

4. A number of the pedestrians had started to cross the road on the zebra crossing. It was his judgment that he could pass the crossing before they got to the safety island. So he maintained his speed of 10 m.p.h. When the front of the bus reached the island, a child ran out and was struck by the bus. Because the distance was so short he could not avoid the accident, nor did he sound the horn but concentrated on the brakes instead. The brakes were heavy and needed great force. If he took off one hand to sound the horn he would not be able to use necessary force to apply the brakes.

5. He stopped about the length of a car beyond the zebra crossing. He had not kept a constant look at the pedestrians. He only noticed that they were all adults.

6. Now the first issue is whether there was negligence, that is negligence of any degree, on the part of the 1st Defendant. If there was not, then on the pleadings that is the end of the matter. If however I find that there was negligence on the part of the 1st Defendant, then I have to consider whether there was any contributory negligence on the part of the Plaintiff.

7. I find that there was negligence on the part of the 1st Defendant in failing to drop his speed below the 10 m.p.h. or so at which he maintained his speed, when he actually came up to the zebra crossing upon which there were approaching pedestrians. I find that he was negligent in not maintaining a proper look out. He should have noticed the two young boys i.e. the Plaintiff and his brother. If they were masked by the adults, then he was negligent in not dropping his speed on the actual zebra crossing to a pace that would have enabled him to stop if a child concealed by the adults darted out. I find that in looking for the appropriate bay at which to draw up beyond the zebra crossing, he was negligent in failing to keep a proper look out. Finally I think he was also negligent in failing to sound his horn when he first saw the pedestrians beginning to cross the road on the zebra crossing and decided that he could get past before they reached the safety island; had he sounded his horn, they would have been better alerted to his presence and probably to his intention to go through. Any reasonable driver should exercise a higher degree of care on a zebra crossing, particularly when pedestrians are using it, than elsewhere on a road.

8. Quite apart from the foregoing, the 1st Defendant pleaded guilty to careless driving in respect of the accident and was convicted by the Magistrate at San Po Kong on 27th August 1981. The onus of proof accordingly is shifted onto the 1st Defendant (Section 62 Cap. 8; Mak Yuk-kiu v. Tui Shing Auto Radio (1981) HKLR 77).

9. In my judgment therefore the 1st Defendant was clearly guilty of negligence, albeit not gross or a very high degree of negligence.

10. It remains to consider whether there was any contributory negligence on the part of the Plaintiff. At the time of the accident, the Plaintiff was only 5½ years old. He was crossing on a zebra crossing. And an old woman, whom he must have heard, called out to his elder brother to let go of his hand, with the clear intention that he should get across the road before the bus came up.

11. In GOUGH v. THORNE [1966] 3 All E R 398 Lord Denning MR held that a very young child cannot be guilty of contributory negligence. An older child may be, but it depends on the circumstances. A judge should only find a child guilty of contributory negligence if he or she is of such an age as to be expected to take precautions for his or her own safety; and then he or she is only to be found guilty if blame should be attached to him or her. A child has not the roadsense or the experience of his or her elders. In that case a 13½ years old child was signalled across by a lorry driver who had stopped. She was struck by another vehicle. It was held that it was wrong to expect a child of 13½ to go through the mental process of questioning the signal and looking beyond for other traffic.

12. Miss Sze also cited the cases of PRUDENCE v. LEWIS (1966) TIMES 21st May and JONES v. LAWRENCE [1969] 3 All E R 267 in which it was held that there was no contributory negligence on the part of a child aged 3 and another aged 7. In all these cases, however, there was some factor which required a consonant degree of caution on the part of the driver e.g. passing at speed a lorry that had stopped, failing to sound his horn having seen a very young child who was likely to run out and driving at 50 m.p.h. in a 30 m.p.h. area.

13. In this case there was a similar factor in the zebra crossing, upon which the Plaintiff and the other pedestrians were.

14. Taking into account all the foregoing matters I have no hesitation in holding that there was no contributory negligence on the part of the Plaintiff.

15. I also find that the 1st Defendant was acting in the course of his employment as a servant of the 2nd Defendant at the material time.

16. There will accordingly be judgment for the Plaintiff of special and general damages to be assessed by the Master, together with interest thereon at rates also to be determined by the Master.

17. I make an order nisi for costs to the Plaintiff, except the costs thrown away by the Plaintiff's application for the assessment of special and general damages to be referred to the Master, which shall be Defendants' costs in any event. That application very properly made by the Plaintiff's counsel was necessitated by the Plaintiff's solicitor's failure to consider and secure all the evidence relevant to the quantum of damages.