KONG CHUNG CHING AND ANOTHER v. LAM KING HO AND OTHERS

Headnote

Road traffic - negligence - duty of driver who sees a pedestrian about to cross at an unauthorised part of the road. Duty to take precautions even if pedestrian also negligent - Dicta in Ng Ching Hung v. Lau Shun Hing considered.

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J U D G M E N T

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Penlington, J.A.:

1. This is an appeal from a decision of Leong, J., on the 13th November 1991 awarding damages to the respondents, the widow and son of So Ping Yim (the deceased), and the administrators of his estate, who was killed in a motor accident on the 11th June 1986. The claim is brought pursuant to the Fatal Accidents Ordinance, Cap. 22, and is for loss of dependency and funeral expenses.

Liability

2. The accident occurred at about 2300 hrs. in Texaco Road opposite the Tsuen Wan Industrial Centre. Texaco Road is a two-lane highway running east to west and in addition to railings on each side, which separate the pavement from the road-way, is divided in the middle by another set of railings. A motor van, driven by the 1st appellant and owned by the 2nd appellant, was travelling towards the east and struck the deceased while he was endeavouring to cross the road towards the Tsuen Wan Industrial Centre.

3. Apart from the 1st appellant there were no surviving witnesses to the accident. The respondents at trial relied entirely on a statement made by the 1st appellant to a police constable in the early hours of the 12th June 1986. In this statement the 1st appellant said that he was driving the van, with dipped headlights, along Texaco Road away from the Tsuen Wan Road roundabout. He was travelling in the nearside lane and going in the direction of Ma Tau Pa Road. When he reached the vicinity of the Tsuen Wan Industrial Centre his van was travelling in third gear at 20 to 25 m.p.h. The area was lit by street lights and the road service was dry and in good condition. There was no other vehicle ahead of him. He then saw a man in front of him about 20 to 30 feet away, who was outside the nearside iron railing and facing the Tsuen Wan Industrial Centre on the other side of Texaco Road. The 1st appellant said he kept to the same speed and went on. However when he got to some eight to ten feet from the man who was standing on the edge of the road he suddenly ran into the road without looking towards the oncoming vehicle. It all happened very suddenly and he did not have time to sound his horn. He did apply his brakes but did not have sufficient time to stop. The van hit the pedestrian with its nearside front corner, knocking him down. Some pedestrians then arrived and he asked them to call the police. The pedestrian was taken to hospital by ambulance where subsequently he died. The 1st appellant remained on the scene and assisted the police in their investigations including the preparation of a sketch plan which he signed.

4. It was not in dispute that a subsequent examination of the vehicle showed that while it was in good general mechanical order one tyre was worn and subsequently the 1st appellant was convicted of driving a vehicle which was defective in that respect. However a report from a motor vehicle examiner showed that the worn tyre would not have had any effect on the effective braking of the van and was in no way a factor contributing to the accident.

5. There could be no doubt on the admitted facts in this case that the deceased was substantially to blame for the accident which occurred. Clearly on the evidence before the trial judge he had failed to take elementary precautions and in particular had stepped into the roadway without looking to see if there were any vehicles approaching. The appellants relied on two decisions. One is Kayser v. London Passenger Transport (1950) 1 AER 231. There it was held that:

"where the driver of a vehicle is satisfied that the persons who are lawfully entitled to cross the road, whether they are on a pedestrian crossing or not, are out of any danger from him if he goes on in the normal course, he is entitled to do so, but only at such a pace as will enable him to stop almost immediately should the persons who are crossing do anything dangerous or negligent."

6. The appellants say that the deceased was not entitled to cross the road at the part of Texaco Road where the accident occurred.

7. Of more assistance to the appellants and relied on at the trial and here by their counsel, Mr. Sujanani, is Moore v. Poyner (1975) RTR. 127 CA. There a child was hit by a car travelling at 30 mph in a quiet residential road on a Sunday. The driver was aware that children were in a habit of playing in the area and there was a large coach parked on the nearside of the road. An unseen child ran into the road in front of the coach and was struck. There was expert evidence that to have avoided the collision the driver would have to have been travelling at about 5 m.p.h. It was held that the maximum legal speed of 30 m.p.h. was safe in all the circumstances and the defendant was not negligent in not reducing his speed. The defendant's duty of care was to be tested not by what the plaintiff actually did but whether, if the defendant had reasonably anticipated that the child might run into the road, he should have reduced his speed so as to enable him to stop instantaneously to prevent the accident occurring. It was held that the risk of the impact happening at the precise moment he was passing the coach was so slight that it did not require him to slow down to that extent.

8. That decision was referred to and cited in Ng Ching Hung v. Lau Shun Hing, Civil Appeal No. 182 of 1990, unreported, 5th March 1991. There the court also referred to Fardon v. Harcourt-Rivington (1932) 146 LT 391. The court said:

"The root of this liability is negligence, and' what is negligence depends on the facts with which you have to deal. If the possibility of the danger emerging is reasonably apparent, then to take no precautions is negligence; but if the possibility of danger emerging is only a mere possibility which would never occur to the mind of a reasonable man, then there is no negligence in not having taken extraordinary precautions."

9. The trial judge found that while there was clearly substantial contributory negligence on the part of the deceased the 1st appellant was also to blame for the accident. He said:

" The 1st defendant in his statements admitted that shortly before the accident, he saw the deceased standing outside the railings by the kerbside, looking ahead, i.e. to the opposite direction. The deceased was not looking in his way and that was the first time he saw the deceased. At that time he was 20 to 30 feet from the deceased. He did not do anything when he saw the deceased. He did not sound his horn; neither did he slow down. He said he continued to proceed at the same speed of 20 to 25 mph as he was then doing. There was no traffic on his off side. He was travelling in the inner lane and no other traffic was in front of him. He said when he was about 10 feet from the deceased, the deceased dashed out. He admitted he did not do anything except applying the brakes but he was unable to brake in time to avoid hitting the deceased."

10. The trial judge was of the view that the 1st appellant should have been aware when he saw the deceased that there was a real possibility that he would step out into the roadway and that there was therefore a danger of a collision occurring. He was negligent in not taking any avoiding action. He decided that the 1st appellant and the deceased were each equally responsible and assessed liability at 50%. I am quite satisfied that he was perfectly entitled to come to that conclusion. Quite clearly the 1st appellant should have been aware that although the deceased should have attempted to cross the road where he did, there was no other reason for him to have got into the position he was except that he was about to do so. The deceased was not looking in the direction of oncoming traffic but was looking straight across the road towards the Tsuen Wan Industrial Centre and the 1st appellant should have realised that he was likely to have no regard to the approach of his vehicle. The 1st appellant should have anticipated that the deceased may well step into the road in the way that he did and that a collision could occur. To revert to the test in Ng Ching Hung v. Lau Shun Hing, here the possibility of the danger emerging was reasonably apparent and to take no precautions was negligent. It was not a mere possibility which would never occur to the mind of a reasonable man.

11. The assessment of the degree of negligence is a matter for the trial judge on the evidence before him and this Court should not interfere in that discretion unless it was exercised on wrong principles or is clearly wrong. I am satisfied that is not the case here.

Damages

12. The trial judge said that he was satisfied that the deceased contributed $4,000 to $6,000 a month to the household expenses for his family prior to his death. The family consisted of the deceased plus his wife and five children. He said he would then a take medium of $5,000 as the average contribution. However no financial records relating to the deceased's furniture business were produced, which is heavily relied by Mr. Sujanani both before the trial judge and here in support of the ground of appeal that the funding was not supported by the evidence.

13. Evidence was given by So Wai Ching that at the time of the deceased's death in 1986 she was a student and together with her elder sister, So Wai Sheung, was responsible for running the household. Her mother, Mrs. Lam King Ho, had mental problems and was unable to care for the family. She said that apart from household expenses the father gave each of the daughters about $1,000 per month for travelling and school expenses. After her father's death she continued her education and graduated from the Polytechnic in October 1987.

14. She said that before her father's death she had taken her mother to see a doctor because of her mental problems. At first she went to a government doctor who was quite cheap but then she switched to a private practitioner as her mother did not seem to be getting any better. The private practitioner was Doctor Sylvia Cheng. She produced a report from Doctor Cheng relating to treatment she received after her first visit in May 1990. She said that her mother had been back to see Doctor Cheng after that and was continuing to do so. She went about every three weeks and fees charged were charged approximately $900 to $1,000 per month.

15. So far as general household expenses are concerned, it was her evidence that her father paid $2,000 to $3,000 twice per month to her elder sister. She said that her brother, So Wai Keung, did not contribute anything to household expenses. Her other sister, So Wai Ying, was a clerk earning about $1,500 per month but she also did not contribute to expenses. All the charges such as rent, electricity and water would be paid from the amount contributed by the deceased.

16. So Wai Sheung gave evidence that she was a registered nurse but that in June 1986 she was studying at home. She was given financial support by the deceased. This included all her travelling expenses, clothing and tuition fees. Her father paid all the general household expenses.

17. So Wai Keung, the deceased's eldest son, said that he was a driver now but in 1986 had been employed by the deceased in his furniture factory. He said that before the deceased's death the business was satisfactory but afterwards the factory could not continue because of the deceased's death and two workers petitioned in bankruptcy because they had not been paid their salaries.

18. He was cross-examined at length regarding the financial records of his father's business as he was one of the administrators of the estate. He said that he did see some documents but there were, for instance, no bank statements or tax returns. He said that he did not know what had happened to the documents which had been found which related to the business. He did however agree that the credit balance in the deceased's bank accounts at the date of his death was less than $1,000. However he said the business was profitable and that the deceased was the sole contributory towards the family's living expenses. He did not contribute neither did his brother and sisters.

19. The trial judge said that he accepted the evidence given as to the contributions made by the deceased towards the family expenses and he also accepted that the deceased's widow required to attend a private medical practitioner for treatment and that this would be an ongoing expense. He said that the deceased's wife was 55 at the date of the accident and he applied a multiplier of 10. He then made the following award of damages:

1.	Funeral expenses, as agreed, $8,255.
2.	Loss of dependency:

Widow-	Pre-trial-	Household expenses: $53,495.
		Medical expenses: $15,000.
	Post-trial-	(applying the multiplier of 10 but deducting the pre-trial period) $86,515.
	Total: 155,010.
So Wai Ching-	School fees:   $9,425.
	Household expenses: $30,039.50
	(36.5 months at $823 per month)
	Pocket money: $36,500.
	(36.5 months at $1,000 per month)
	Total: $75,964.50.
So Wai Sheung-	Household expenses: $9,876.
	(12 months at $823 per month)
	Pocket money: $12,000.
	(12 months at $1,000 per month)
	Total: $21,876.

These gave a total loss at $252,850.50. This he divided in half in accordance with his finding as to liability.

20. Having considered the evidence, including that given by So Wai Keung, which was somewhat unsatisfactory in some respects, I do not consider that the assessment of damages made by the trial judge was contrary to the evidence of dependency that was before him. This was essentially a matter of credibility and this Court should be reluctant to interfere with the assessment which was made based on the view the trial judge took of the witnesses' evidence.

21. I would dismiss the appeal with costs to the respondents to be taxed in accordance with the legal aid regulations.

Nazareth, J.A.:

22. According to the English translation of his statement the 1st appellant stated that:

"I saw that man standing completely still there and was looking ahead of him (his opposite direction)".

The judge dealt with that matter in his judgment in the following way:

"The 1st defendant in his statements admitted that shortly before the accident, he saw the deceased standing outside the railings by the kerbside, looking ahead, i.e. to the opposite direction. The deceased was not looking in his way and that was the first time he saw the deceased".

Having recorded those and other facts the judge concluded:

23. "These facts are not in dispute."

I assume therefore that the deceased was looking directly across the road. Although that is not entirely clear, it seems to be the finding of the judge. However, it is clear both from the 1st appellant's statement and the judge's finding that when the 1st appellant was 20 to 30 feet from the deceased when he first saw him, he continued at the same speed of 20-25 mph and when he was about 10 feet from the deceased, the deceased dashed out into the road.

24. The question is whether in response to that first sighting of the deceased, the 1st appellant should have taken any action. By the time he got to 10 feet from the deceased and saw him dash into the road, there was really no action he could take. The respondents' contention is that the 1st appellant on seeing the deceased, should have slowed down, sounded his horn or increased his distance from the pavement. It is not in question that the 1st appellant was travelling at a lawful and reasonable speed at the time he first saw the deceased.

25. In contending that there was no negligence on the part of the 1st appellant, Mr. Sujanani relied upon four authorities, in which the approach and observations are, I think, helpful notwithstanding that negligence is to be determined on the particular facts of each case.

26. In Davies v. Journeaux (1976) RTR 111 CA, an eleven-and-a-half year old girl arrived at a "platform" by a road and then dashed across looking away from the car which struck her. A passenger in the car saw her "momentarily" before she dashed across. However the driver first saw her when she was dashing across, some 14-15 feet away. The court nevertheless found him 40% to blame. The Court of Appeal reversed that finding, holding that the driver was not liable, Edmund Davies, L.J. at p. 114L, 115 B said that:

"To my way of thinking, the question that lies at the heart of this case is this: assuming that the defendant had seen the girl at the same moment as his passenger did, namely, on the platform, ought he at that stage to have sounded the horn? [Plaintiff's counsel] has submitted, in the course of his valiant attempt to support this judgment, that there is one important fact to be borne in mind: that this girl was then looking away over her left shoulder, which meant that she was not looking in the direction of the car. Accordingly, [Plaintiff's counsel] has submitted that this of itself should have alerted the defendant into the necessity, or at least the high desirability, of sounding his horn. Sound his horn in order to avert what possibility? The possibility, it is said, that she would do that which she in fact did; namely, without more, without casting a glance in the Bedlinog direction, dash across the road. [Plaintiff's counsel] submitted that that is what he should have done had he seen the girl on the platform as the passenger did."

And later at p. 116A, in reversing the judgment below, that it seemed to him:

"to impose upon motorists the duty of sounding a horn virtually whenever they see a pedestrian on the adjoining pavement, and this regardless of whether the pedestrian is manifesting any intention of leaving that pavement and dashing across into the path of the oncoming car, which the pedestrian could not have failed to see had he or she looked."

Megaw L.J. and Roskill L.J. agreed.

27. In Moore v. Poyner (1975) RTR 127 CA, a six year old boy similarly ran out of a pathway between houses, in front of a stationary coach which concealed the pathway, and was struck by a car travelling past about 30 m.p.h. Buckley L.J. in his judgment, allowing the driver's appeal against a finding of liability, referred at p. 132C to what was said by Lord Uthwatt in London Passenger Transport Board v. Upson [1949] Ac 155, 173:

"I desire only to register my dissent from the view expressed by the Master of the Rolls that drivers 'are entitled to drive on the assumption that other users of the road, whether drivers or pedestrians, will behave with reasonable care'. It is common experience that many do not. A driver is not, of course, bound to anticipate folly in all its forms, but he is not, in my opinion, entitled to put out of consideration the teaching of experience as to the forms those follies commonly take."

Buckley L.J. also quoted form a speech of Lord Dunedin in Fardon v. Harcourt-Rivington (1932) 146 LT 391, 392; cited by Lord Du Parcq in London Passenger Transport Board v. Upson [1949] AC 155, 176:

"'If the possibility of the danger emerging is reasonably apparent, then to take no precautions is negligence; but if the possibility of danger emerging is only a mere possibility which would never occur to the mind of a reasonable man, then there is no negligence in not having taken extraordinary precautions' ".

Buckley L.J. then went on to say:

"Taking those two passages together, I think one can formulate the appropriate test in the present case in these terms: would it have been apparent to a reasonable man, armed with common sense and experience of the way pedestrians, particularly children, are likely to behave in the circumstances such as were known to the defendant to exist in the present case, that there was a possibility of a danger emerging, to avoid which he should slow down or sound his horn, or both?"

And later:

"I think that one must test his duty of care not by reference to what the plaintiff actually did but by what sort of conduct by any child, at any moment of time, the defendant ought reasonably to have anticipated, and to consider what course of action he would have had to take if he was going to make. quite certain that no accident would occur ... Ought the defendant to have slowed down to such an extent that there could have been no possibility of a child's running out at any moment in front of him, and his being unable to stop without striking the child?

It seems to me that to have achieved that, the defendant would really have had to slow down to something like 5 mph ...

I cannot believe that there is a reasonable assessment of the duty of care which a driver owes in circumstances of this kind, it seems to me that this is a case in which there was an appreciable risk that child might be masked by the coach and that he might run into the path of the defendant's car; but the likelihood of that happening at the precise moment at which he was passing the coach was so slight that it is not a matter which the defendant ought to have considered to require him to slow down to the extent that I have indicated."

28. In Ng Ching Hung v. Lau Shun Hing, Civil Appeal No. 182 of 1990, unreported, the trial judge found the plaintiff was negligent in the following way:

"In this case, the Defendant had clearly noticed the stationary maxicab setting down and picking up passengers before the Plaintiff ran into his vehicle. If he had looked at the side where the passengers alighted and boarded the maxicab at all or more closely he should have seen the Plaintiff earlier and the accident would have been avoided. I am satisfied on a balance of probabilities that he was not keeping a proper lookout and this is why this accident happened."

29. Having read the papers, the Court of Appeal asked the plaintiff's counsel to address the court first. He submitted that the accident had to be viewed in the light of the following facts:

"(i) That it occurred at a time when and at a place where workers were returning to work in the factories and shipyards in the vicinity;

(ii) That the maxicab would very likely be carrying such workers;

(iii) That the defendant had seen it stop well over 50 ft. ahead of him. Given those matters he submitted that the Defendant should have taken precautionary measures to avoid the potentially dangerous situations that could arise if a passenger suddenly emerge in front of the maxicab by (1) giving it a wide berth, (2) slowing down, and (3) sounding his horn."

Counsel for the plaintiff then referred to the dicta of Lord Dunedin in Fardon v. Harcourt-Rivington and of Buckley J. in Moore v. Poyner that I have quoted above. The Court of Appeal however held at p. 6 of its judgment that:

"To require a driver in circumstances such as this to slow down from the moderate speed of 25 to 26 m.p.h. to a speed that would ensure that he was in a position to avoid any risk of a pedestrian running into his path from in front of the minibus would be quite unreasonable. We are also satisfied that the suggestion that the defendant should immediately have sounded his horn places too heavy a burden on the driver."

30. Finally Mr. Sujanani referred to Lam Loy v. Ng Hak Keung & another HCA No. 1216 of 1980, unreported, in which the facts were somewhat similar to this case. According to the plaintiff, he waited in a "gutter" about 1 ft. from the kerbstone and outside an iron railing which ran along the pavement. He stepped into the road and was hit by a taxi. Sir Denys Roberts C.J. accepted the taxi driver's version that he spotted the plaintiff as soon as the plaintiff began to move towards the centre of the road, and that he could not avoid hitting the plaintiff by swerving into the middle lane because that was already occupied. However he found that the driver had failed to sound his horn and consequently held him liable, apportioning the liability at 25% upon the driver and 75% upon the plaintiff. What, however, is of interest is Sir Denis Roberts' observation that

"If the plaintiff had merely been standing in the gutter alongside the railing, this would not of itself have been an alarm bell which should have made the defendant act earlier."

It seems to me to have foreshadowed the similar approach of the Court of Appeal in Ng Ching Hung which clearly adopted that in Moore v. Poyner. While, therefore, the facts in the foregoing cases were different, it seems to me that the approach adopted in them is clearly apposite in the circumstances in this appeal. I do not understand Mr. Wong to dispute that; on the contrary he submitted that what is important is whether the pedestrian manifested an intention to cross the road which was obvious to the driver. It is in the application of that approach that counsel do not agree.

31. Returning then to the facts, there is clearly no question of any knowledge on the part of the 1st appellant, or indeed of the existence, of any unusual risk or danger at the stretch of road. So what we have is simply a pedestrian standing on the edge of the pavement on the outside of the roadside railings looking across the road, away from the approaching van. I think there can be no question that any reasonable man would conclude that the pedestrian intended to cross the road. But the deceased was standing still, and in fact stood still until the car moved from about 20 or 30 feet away, to within 10 feet from him. The question therefore seems to me to be whether the 1st appellant had any indication upon which a reasonable driver ought to have acted; that the deceased was immediately going to cross and not look to his right or wait until the van had gone past.

32. Mr. Wong submits that the 1st appellant did have such indications, be they termed obvious manifestations or alarm bells, in the following, first that the deceased was looking at the traffic ahead away from the van; second that he was outside the railings, presumably having climbed over them; and third that he was at the extreme edge of the pavement (in fact half a foot away). While all these factors point to the intention of the deceased to cross, they are not in my view clear indications of an intention not to wait until the vehicle had passed or to cross without checking the road on each side. To put it in another way, on the primary facts accepted by the judge, it seems to me doubtful whether the inference can be drawn that a reasonable driver would conclude that the deceased was likely to cross the road without so waiting or checking, or that there was such a risk of that happening as would require his moving into the further lane or sounding the horn. I do not mention slowing down because it seems to me that this would have had to be down to about 5 m.p.h. or so to avert the collision and would clearly not be warranted as the general standard of duty or care in Hong Kong. Is a driver to sound his horn or swerve every time he sees a pedestrian standing still on the pavement outside roadside railings, close to the edge of the pavement and looking away? In the circumstances of Hong Kong, particularly the widespread use of railings to contain pedestrians and the overcrowded, overflowing pavements, that may well be an intolerable burden, importing an unrealistic and unduly high standard of care.

33. Left to myself, therefore, I should have been inclined to regard the 1st appellant as having been neither negligent nor liable. He was driving at a lawful and reasonable speed and was not upon the foregoing basis confronted with a situation or any matter that would require a reasonable man to react. That said, I have to add that I am disturbed by the safety, ease and lack of effort with which action i.e. to sound the horn or move away into the adjoining lane, could have been taken by the 1st appellant in the particular circumstances, even if they were not usual; also by the possibility that such action might be the natural and instinctive reaction of any driver. These, also, seem to me to be considerations that bear upon the response or care that was called for. In consequence I do not see the matter in the clear terms that my brothers do, and certainly not clearly enough, having seen their reasons, to dissent from their conclusions as to liability nor, in any case, as to quantum and costs.

Kaplan, J.:

34. I have had the advantage of reading both judgments which had been delivered by my Lords and I concur with the reasons given for dismissing this appeal by my Lord, Penlington, J.A.

35. I would certainly not wish to lay down any general rule to the effect that motorists should always be alert to the possibility that a pedestrian may at any moment and without warning decide to cross the road in the path of an oncoming vehicle. Indeed the cases cited by my Lords make clear quite clear that there is no such general rule.

36. The facts of the present appeal are, in my judgment, quite different to the situation where a pedestrian simply steps off the pavement into the road. The fact that in this case there were railings between pavement and road indicated that this was not an appropriate place at which to attempt to cross the road. There was, in fact, a gap in the railings but this was some way from where the deceased attempted his fatal manoeuvre. The deceased had climbed over the railings and any reasonable motorists seeing that he had done this must have assumed that he intended to. cross the road at that point.

37. However, it is true that the deceased was standing still and that he was looking straight ahead, in other words, not in the direction of the appellant. Given these facts, my Lord, Nazareth, J.A., seeks to narrow down the issue to "whether the 1st appellant had any indication upon which a reasonable driver ought to have acted, that the deceased was immediately going to cross and not look to his right or wait until the van had gone past."

38. I express no view as to whether it is correct to narrow down the issue quite this far, but on the assumption that it is I am quite satisfied that the fact that the deceased had climbed over the railings and was not looking in the direction of the oncoming vehicle was sufficient to place the 1st appellant on notice that an immediate attempt might be made. I take the view that if a pedestrian is so careless of his own safety that he climbs over the railings in order to cross a road and does not look in the direction of oncoming vehicles, it is an inference for the reasonable driver to draw that such pedestrian is likely to cross the road without waiting or checking. It would have been so easy for the 1st appellant to sound his horn or move to the empty adjoining lane and I am satisfied that this would or should have been the natural reaction of any reasonable driver.

39. The basis facts were there for him to see and a situation such as this does not permit of a driver weighing up the likelihood whether the pedestrian who had placed himself in this dangerous position, was or was not going to wait for the vehicle in question to pass. In my judgment, the 1st appellant was clearly put on notice that something untoward might well be about to happen and he should have taken appropriate steps to deal with the situation.

40. Having concluded that some blame must attach to the 1st appellant, I have no reason to disagree with the learned trial judge's assessment of 50%.

41. I, therefore, concur in the dismissal of this appeal on liability and quantum and in the order for costs proposed by my Lords.