CHEN CHIH YUAN v. PETER DAVID RICE

 

1996, No.PI 462

(formerly 1993, No.A6223)

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

PERSONAL INJURIES

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J U D G M E N T

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1. This action arises out of a traffic accident that occurred on 9 February 1991 at about 5:50 p.m. outside 62 Victoria Road, Hong Kong. The Plaintiff was in the process of crossing Victoria Road when he was hit by a car driven by the Defendant which was travelling up-slope in a south-westerly direction. An Order for a split trial was made by the learned Registrar on 1 November 1996. Therefore the only issue before the court is one of liability.

The facts

2. It is common ground that at the time of the accident, the weather was dry and the road conditions good. Day time conditions prevailed.

3. The Plaintiff gave the following account of events. At the time he was a delivery worker employed by Chong Yip Furniture Company. The company's godown was in the Yiu Ga Factory Building at 62 Victoria Road. The Plaintiff went to the godown in a lorry driven by Chan Hau Dun ("Mr Chan"). Furniture had to be collected from the godown for delivery to a customer. The Plaintiff's recollection is that the lorry was parked on the opposite side of the road to No.62, that practically the entire lorry was on the pavement and at most only the offside wheels were on the road. The Plaintiff came out of the building to cross over to the lorry. He stopped at the kerb, looked in the direction of the gas station which was to his right and then left towards Kennedy Town before stepping out onto the road. When crossing the road, he was walking at a normal speed. The Plaintiff lost consciousness when the accident happened and remembers nothing more.

4. The Defendant who now lives in Australia, did not appear at the trial. As the car involved in the accident was uninsured, the matter has been taken over by the Motor Insurers Bureau. The Defendant made a statement to the police the day following the accident. Upon the respective applications of the Plaintiff and the Defendant, this statement as well as the witness statement made by the Defendant for the purposes of this trial were admitted into evidence. Set out below is the relevant portion of his police statement :

"As I drove along Victoria Road, in 3rd gear, at a speed of approximately 50 km per hour, there was no vehicle in my lane immediately ahead, I traveled in the centre of my lane (two-way traffic), when a man emerged from the building on the opposite side of the road. A goods vehicle was parked on the side of the road, on my side, it seemed that the man was returning to the truck. He was walking very quickly, and looking in the opposite direction. He stepped onto the road about 20 yards in front of me. As I saw him, I applied my brakes cautiously. The man reached the centre line of the road before he looked in my direction. Because of the goods vehicle parked opposite, part of the lane was blocked. I expected the man to continue towards the truck, as I applied the brakes further, slowing to about 30 km/per hour. As a result of the partial blocking of the lane, I was forced to veer to the right to attempt to avoid the man, and applied the brakes hard. However, the man seemed to panick when he saw me, and fell backwards directly into the path of my vehicle, which then struck him. The vehicle stopped almost immediately."

5. The only eye witness to the accident is Mr Chan, the driver of the lorry. Mr Chan's evidence is that the lorry was parked on the pavement and not on the road. Mr Chan was moving goods about in the goods compartment of the lorry facing the front of the lorry. As the lorry was of the open type Mr Chan was able to see from where he was. Mr Chan said he was aware of the Plaintiff coming back to the lorry but when he first saw the Plaintiff, the Plaintiff had already stepped onto the road. He said that the Plaintiff was walking at a normal speed heading in a straight line towards the lorry but was looking at the surface of the road. This is consistent with his statement to the police in which he stated that the Plaintiff was walking "with his head down looking at the ground".

6. Mr Chan said he continued with what he was doing in the lorry until he heard a horn sounding continuously. He turned to look and saw a car one lorry length behind his own lorry, namely 17½ ft., charging uphill with the driver pressing hard on the horn. In the course of turning to look towards the direction of the horn, he noticed that the Plaintiff was 1 ft. away from the central dividing line. It is to be noted that there is a discrepancy with his statement to the police made on the day of the accident which he confirmed to be accurate in that Mr Chan had stated the Plaintiff had "reached the central dividing line" when he heard the horn beep. Whether the Plaintiff was 1 ft. away from the central dividing line or had reached it at the time the horn was sounded, the Plaintiff took a step backwards and collided with the Defendant's vehicle.

7. According to the sketch plan of the scene of the accident prepared by the police, the vehicle came to rest on the north-east east-bound lane aiming south-west and angled slightly to its right. The nearside (lengthwise) was just on the road centre line. In other words, the vehicle was on the wrong side of the road and a brake mark of some 14 m. long, probably laid down by the off-side front wheel of the vehicle was identified at the scene of the accident. The entire 14 metres of this brake mark was on the wrong side of the road which suggests that the vehicle had been straddling the middle of the road for some time prior to the accident.

Was the Defendant's path obstructed by the lorry?

8. As is apparent, there is a conflict of evidence as to where the lorry was parked. According to the Plaintiff, most of the lorry was on the pavement, with the off-side front and rear wheels on the road. Mr Chan's evidence that the entire lorry was on the pavement certainly supports the Plaintiff's account. Mr Chan was cross-examined about the sketch plan attached to his statement in which the lorry is depicted as being on the roadway rather than on the pavement. Mr Chan explained that the sketch was in fact drawn by the police and as he understood it, the rectangle representing the lorry was not meant to be depicting the precise position of the lorry. He was also cross-examined about not mentioning that the lorry was on the pavement in his statement. Mr Chan explained that the lorry had not been moved prior to the police arriving at the scene. Further the police could see for themselves where it was positioned. Prior to the trial, no one had asked him where the lorry was parked. He was adamant that the lorry was not on the roadway but on the pavement.

9. Although the Defendant's case as put to the Plaintiff's witnesses was that the lorry was parked on the road thus obstructing it and causing the Defendant to have to swerve in order to overtake the lorry, it is to be noted that even the sketch attached to the Defendant's statement depicts the lorry as being half on and half off the pavement. I do not therefore accept that the lorry was parked on the roadway. I accept the Plaintiff's evidence that practically the whole of the lorry was on the pavement and only the off-side wheels were on the road. The obstruction to traffic travelling up-slope was accordingly minimal.

Expert evidence

10. The Plaintiff adduced expert evidence to deal, inter alia, with the speed of the vehicle. For the purposes of this calculation, the Plaintiff's expert Mr Seymour-Hart took into account the Motor Vehicle Examination Accident Report dated 11 February 1991 which found that the foot brake had an efficiency of 84% and that no defect in the foot brake system was detected. After taking into account the length of the skid mark of 14 metres as well as the conditions (gradient and road surface), Mr Seymour-Hart considered that the car had been travelling at a speed of 50.1 km/h (31 mph) as it commenced laying down the skid mark and that the car was travelling at a speed of at least 32 km/h at impact. He opined that had the speed of the car been at 50 km/h, then the thinking time and braking distance would have resulted in a stopping distance of 26.5 m. If allowance is made for the cautious stage of braking, the Defendant would have seen the Plaintiff from a much greater distance.

11. Mr Seymour-Hart also opined that when the car approached the accident location, it was travelling at a speed well above the speed limit of 50 km/h. He based this on the Defendant's statement that he had been braking his car "cautiously" prior to the hard/emergency braking stage. In fact, when one analyses the Defendant's statement, the braking occurred in three identifiable stages :

(i) when he first saw the Plaintiff emerged from the building, he applied his brakes "cautiously";

(ii) he applied the brakes "further" slowing to about 30 km/h when he saw the man reached the centre line of the road looking in his direction;

(iii) he braked hard when he swerved to the right in an attempt to avoid the Plaintiff.

12. Mr Seymour-Hart also gave a description of the location of the accident. On approaching this part of Victoria Road from Kennedy Town, there are signs marked "Slow Pedestrians". The road catered for one traffic lane in each direction. The Defendant would have been driving uphill and there is a lazy "S" bend before reaching No.62. Mr Seymour-Hart's evidence is to the effect that when he visited the accident spot for the purpose of preparing his report, he observed that cars tended to cut the "S" bend thus crossing the centre line. This would have the effect of the cars being positioned closer to No.62. Further the sight line is good with nothing obstructing a driver's view of a person crossing the road outside No.62.

13. The Defendant did not adduce any expert evidence to contradict any part of Mr Seymour-Hart's evidence which I accordingly accept.

Was the Defendant negligent?

14. Counsel for the Defendant relied on two English Court of Appeal decisions. The first, Channer v. Lucas (unreported) 7 February 1990, is a case where the Plaintiff was knocked down by a motor-cycle which was travelling at a speed of 30 mph in the middle section of his own carriageway. When the plaintiff was in the middle section of the road, she did not look but proceeded to cross the northbound carriageway on which the motor-cycle was travelling. At the centre of that carriageway, she looked up and saw the motor-cyclist and stopped. At that point he was some 35 ft. away. The defendant claimed that if she had not stopped, he would not have collided with her but would have passed behind her. In that case, the Court of Appeal upheld the judge's finding that the pedestrian was assessed to be 75% responsible for the accident. The facts in Channer are not at all analogous : in that case the defendant's view was obstructed by a high-sided vehicle and the earliest point at which he could see the pedestrian was when he was 35 ft. away which is not the case here. Moreover, the motor-cyclist was travelling in his own carriageway and not, as here, on the wrong side of the road. It was a case where the pedestrian had stepped out onto the road without looking in the direction at which traffic was coming.

15. The next authority relied on is Tunney v. Guy (unreported) 20 February 1991. There the defendant was travelling on the correct side of the road at about 30 mph. The area of the accident had an uphill gradient and a left hand bend. The pub was on the right side of the road. As the defendant approached the brow of the hill he saw a man on the road. The pedestrian was then already a couple of feet over halfway. He was not looking at or paying any attention but looking straight ahead. The defendant braked and swerved completely to the off-side of the road sounding the horn as he did so. The pedestrian turned completely around and rushed to retrace his steps to the right hand side of the road. By doing this, the pedestrian put himself in front of the car. On these facts, the judge who had found the pedestrian wholly to blame for the accident was upheld on appeal. Again, the facts of Tunney are very different. First, the defendant slowed right down the minute he saw the pedestrian. Second, although he swerved to the off-side in order to avoid the pedestrian, the pedestrian was already several feet over the halfway mark of the road. Third, the pedestrian rushed to retrace his steps to the right hand side of the road : that is wholly different from only taking one step backwards. Fourth, at the time the defendant saw the plaintiff, he was travelling in the correct lane and not straddling the road. Thus neither of the cases cited is of assistance as the facts are materially different.

16. The Defendant stated that he saw the Plaintiff emerge from No.62. He knew that the Plaintiff intended to cross the road and saw that the Plaintiff was looking in the opposite direction, that is, to his right. Although the Defendant claims that the Plaintiff was only 20 yards in front of him at the time, this appears to be an underestimation given Mr Seymour-Hart's evidence (which I accept) as to the speed at which the car was travelling and the likely stopping distance. The Defendant was travelling well above the speed limit, yet he neither sounded his horn nor braked hard at that point. I find the Defendant negligent not to have done so, particularly that he was aware that the Plaintiff had not looked in his direction when stepping onto the road. Moreover, if as is the Defendant's case, the lorry was parked on the road and therefore obstructing his path, there was all the more reason to sound the horn and to bring the car to an immediate halt. Although one cannot tell from his statement what interval of time elapsed between the first and third braking stages referred to above, at the very least a few precious moments must have been lost. Further the position of the skid marks suggests that the Defendant had been straddling the white line for some time. Although the excuse given by the Defendant was the presence of the lorry obstructing his path causing him to overtake the lorry, given my findings as to the lorry's position, it is more consistent with his cutting the "S" bend as motorists were observed to have a tendency to do in that section of the road. I find that the Defendant was also negligent in not keeping to his lane and straddling the central dividing line.

Was the Plaintiff negligent?

17. The Defendant's case comes to this. The Plaintiff is substantially, if not wholly, to blame for the accident. He rushed out of the building and crossed the road without looking; if he had stopped at the kerb and looked left before stepping out onto the road, he would have seen the car; as he crossed the road he did not look out for approaching vehicles from either direction; instead he had his head down looking at the ground; when he realised that the car was approaching, he panicked : he had already reached the central dividing line but then retracted into the path of the Defendant's car.

18. There is no evidence to support a conclusion that the Plaintiff had "rushed out" of the building "without looking". Even the Defendant's police statement referred to the Plaintiff "walking" albeit "very quickly" out of the building and "looking in the opposite direction".

19. As to whether or not the Plaintiff stopped at the kerb and looked in both directions before stepping out onto the road, counsel for the Defendant pointed out that the Plaintiff had maintained that he had no recollection of the accident and the earliest suggestion of his looking in both directions before crossing the road came from his witness statement of 14 August 1996. This he suggested has every appearance of an afterthought. Mr Chan could not say whether or not the Plaintiff had looked in both directions before stepping out because he only saw the Plaintiff after he had stepped out onto the road. On this point, the Plaintiff's evidence that he first looked to his right and then to his left before stepping out is to be rejected : had he really done so, he would not have failed to see the car approaching since there is a clear sight line from the pavement outside No.62 down towards Kennedy Town. Further, I also accept Mr Chan's evidence that the Plaintiff had his head down and was looking at the road surface as he was crossing. It is consistent with the Plaintiff looking up when the horn sounded.

20. As regards the Plaintiff's manoeuvre in taking a step back, the Defendant placed considerable reliance on this exchange recorded in Mr Chan's police statement :

"Q: If the injured person stood still at the central dividing line, would the private car DK4714 knock down the injured person?

A: If the injured person stood still at the central dividing line, DK4714 would not have knocked down the injured person. But the injured person happened to draw back and DK4714 swerve to the right to avoid the injured person and so hit right onto him."

On the evidence, it is quite clear that the Plaintiff only became aware of the approaching car because of the sounding of the horn. Although Mr Chan's evidence has not been consistent as to whether the Plaintiff had reached the central dividing line at this point or was one foot away from it, it makes little difference which version is correct since there is no evidence that the Plaintiff had at any point crossed the central dividing line : he was throughout on the lane nearest No.62. That he should have panicked when he looked up and saw the car approaching from his left is not surprising. The significant factor is that the vehicle that was coming towards the Plaintiff was travelling in the wrong lane. Anyone would have panicked in those circumstances. In my judgment, the Plaintiff cannot fairly be criticized for taking a step backwards as he had not yet crossed over to the other lane and had no reason to expect traffic approaching him from his left.

21. To sum up, I find that the Plaintiff was negligent in not looking to his left before crossing the road and in not keeping a lookout for traffic while crossing the road.

Apportionment of liability

22. In my judgment, neither the Plaintiff nor the Defendant is wholly to blame for the accident. Each contributed to it. I derive considerable assistance from the following passage from the speech of Lord Reid in Baker v. Willoughby [1970] AC 467 at 490 E-F in my assessment of liability in the present case :

"A pedestrian has to look to both sides as well as forwards. He is going at perhaps three miles an hour and at that speed he is rarely a danger to anyone else. The motorist has not got to look sideways though he may have to observe over a wide angle ahead : and if he is going at a considerable speed he must not relax his observation, for the consequence may be disastrous. And it sometimes happens ....., that he sees that the pedestrian is not looking his way and takes a chance that the pedestrian will not stop and that he can safely pass behind him. In my opinion it is quite possible that the motorist may be very much more to blame than the pedestrian."

In Baker, the plaintiff looked to his right before leaving the kerb and only saw one car but did not look again. When he reached the centre of the road, he looked to his left. It was at this point that he was struck by the defendant's car approaching from the right which he had not seen and which had overtaken the car that he saw. The trial judge held that the plaintiff was negligent in not seeing that more than one car was approaching, in not waiting until they had passed and he was also negligent in not looking to his right again. He also held that the defendant was driving at an excessive speed or failing to keep a proper lookout or both. On those facts, the trial judge found that the plaintiff was 25% to blame and the defendant 75%.

23. In the present case, I find that the Plaintiff was negligent in not looking to his left before crossing the road and failing to keep a proper lookout for traffic while crossing the road. I find that the Defendant was negligent in driving at a speed in excess of 50 km/h, in not sounding his horn earlier and applying emergency braking as soon as he saw that the Plaintiff who was about to cross the road in circumstances when the Defendant was aware that the Plaintiff was looking in the opposite direction. The Defendant was also negligent in not keeping to the correct side of the road. In all the circumstances, I find that the Plaintiff is 20% to blame for the accident and the Defendant 80%.

24. I make an order nisi for costs in favour of the Plaintiff and the Plaintiff's own costs to be taxed in accordance with the Legal Aid Regulation.