CHAN JAN JEE v. LEE YAT FAN AND ANOTHER

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

1983, No.10757

BETWEEN

______________

___________

JUDGMENT

___________

1. During the afternoon of the 27th February 1982 the plaintiff, CHAN Jan-jee, together with his sister, arrived at Hung Hom Railway Station following a visit to China. They boarded a Number 15 bus which took them to Lam Tin Bus Terminal where the two of them alighted; the plaintiff hoisting onto his right shoulder a bag of turnips. The plaintiff made straight for home which was then Block 5 of Lam Tin Estate. When I say he made straight for home I rely on the marks which he made on a sketch plan prepared by a Mr. Ho of Legal Aid Department which, together with the markings, has been called exhibit 'P2'. Unhappily the plaintiff came into collision with a motor bus driven by Mr. LEE Yat-fan, the first defendant, who was the servant of the second defendants the Kowloon Motor Bus Company, and his left foot was run over causing injuries which required the amputation of a substantial proportion of that limb.

2. By writ dated the 10th August 1983 the plaintiff claimed from the defendants damages; alleging that his injuries were caused by the negligent driving of the first defendant for which the second defendants were vicariously liable.

3. On the day of the accident and whilst in hospital the plaintiff was interviewed by a police officer and made a Statement which was read over to him and upon which he put his thumbprint to signify his agreement with its contents. That Statement reads in translation:

"Around half past four, the bus, Route Number 15, reached Lam Tin Bus Terminal and I alighted from it carrying on my right shoulder a bag of dried turnips brought from the Mainland. Then I walked towards Block 1 Lam Tin within the area of the bus station. After I had walked for about 15 steps suddenly something ran over my left leg. I felt painful and took a look and found that it was a double decker bus, the near front wheel of which ran over my left leg."

And then he was asked a number of questions by the interviewing officer. The first was this:

"Did you see how far away from you that double decker which hit you was prior to the accident?"

I interpolate that the original exhibit differs slightly in its wording from the copies. His answer was:

"I did not see that because my view was blocked at that time. And my right shoulder was carrying a bag of things so I was unable to see the conditions of vehicles coming from the right. I came to the knowledge only after my left foot was hit."

On the face of it, and this is conceded by Mr. Bharwaney who appears for the plaintiff, he failed to keep a proper lookout for his own safety. The concern of this Court is to ascertain whether or not blame also attaches to the driver of the bus.

4. The bus driver, too, was interviewed on the day of the accident and gave a Statement. It reads in translation:

"Around half past four I drove my double decker bus out of Route Number 15A Station at Lam Tin Bus Terminal, using the first gear, below five miles an hour. When it came to the exit of the bus station near the road junction of Tak Tin Street I switched on the right indicator light and looked right to see if there was any vehicle coming from Tak Tin Street. Upon seeing that there was no vehicle coming from my right side I then took a look at the left rear-view mirror, saw a person coming towards the near front wheel of my vehicle and staying closing to the front wheel. Therefore, I applied an emergency brake."

Again, I interpolate to observe that I understand by the last sentence that he applied the brakes hard and not that he was using some very special appliance.

"After that I alighted from it, saw that man covering his left leg from which blood was flowing - I came to know after the accident that the front wheel of my vehicle had run over that man's left leg and caused him to sustain injuries.  Before the accident, I did not see that man - I found him not until I took a look at the left rear view mirror when it knocked him down. The weather there was fine, road surface dry and traffic medium."

5. Subsequently an unsuccessful prosecution was brought against the driver of the bus in the course of which the plaintiff gave evidence. I have before me the agreed translation of the account he gave on 14th October 1982 which was as follows:

"At half past four on the 27th day of February 1982 I was at the Lam Tin Bus Terminal. Had just alighted. I was carrying a parcel. I had just come back from China. I got out a double decker Kowloon motor bus Route Number 15 at the Lam Tin Terminal from the middle door. I do not know left from right or front from back. I was knocked down by another bus."

In evidence the plaintiff said that some twenty to thirty people got off the bus from Hung Hom when he did. He said that he walked slowly pace by pace for about 15 steps towards the zebra-crossing. The zebra-crossing is shown on the right of the plan to which I have referred. But the marks which the plaintiff made on it suggest rather that he was going straight towards Lam Tin Estate Block 1 than in the direction of the zebra-crossing. Further, his account of the matter in so far as he said, "I walked slowly" and to the effect that his sister had gone on ahead of him since she walked more quickly than he did and also that she was heading for a different destination is in marked contrast to that of the driver who told me that after the accident a lady who claimed to be the plaintiff's sister said to the plaintiff who was then, of course, in a rather unhappy plight, "I have asked you to wait for me. " There is no doubt in fact that his sister, as well on the plaintiff, was heading for his home. The plaintiff said "I paid no attention to my surroundings I was only concerned to get home. " Now the surroundings are shown on a series of the photographs which are agreed. They show that the bus terminal is an area where both drivers and pedestrians must take particular care for their safety. There is no effective separation as between pedestrians and buses. The plaintiff had been living in the neighbourhood for some 2 to 3 years and cannot be heard to suggest that he was unaware of the potential dangers of the terminus. When asked about his evidence in the magistrates' court which I have already recounted, he said that he was at that stage, very shortly after the accident, not clear in his mind as to what had happened. Subsequently, he told me, his recollection was now better; an improvement which he attributed to certain tonic foods which he had taken. I, for my part, have to do my best to judge what weight I can give to the plaintiff's sworn recollection before me. And I have to make due allowance for the fact that while he is, perhaps, a man not of high intellectual calibre he will genuinely feel most distressed and anxious by reason of the serious disability which followed the operation he had to undergo. Making all due allowances his oral testimony before me only confirms the impression given by his contemporaneous statement to the police namely that he had crossed the open area of the bus terminus quite recklessly having regard to the probability that buses would be moving out of the various bays into Tak Tin Street. Indeed, Mr. Bharwaney does not really rely on the plaintiff's evidence to sustain his submission that the first defendant, too, must be fixed with negligence. He relies partly on the contemporaneous statement of the driver, again already referred to; on his evidence before me, and on the probabilities which arise in this potentially dangerous area.

6. An agreed sketch plan, prepared by a police officer, shows where the bus was found after the accident. It is shown at an angle to a spur of the pavement on the bus-terminal side of Tak Lin Road adjacent to the mouth of the exit. By the same token it is also at an angle to the bus bay and, if one looks at this sketch together with the marks made by the plaintiff on the equivalent sketch prepared by Mr. Ho, it explains how the plaintiff's left foot came to be crashed without a collision as between the bus and the plaintiff's' entire body. The bus and the plaintiff appear to have run into each other at an angle of some 45 degrees.

7. I now turn to the evidence which the first defendant gave on oath. He explained that on the day in question the railing on the west side of the terminus had, as it has today, a break in it to allow pedestrians access to the pavement and then to the zebra-crossing. He explained that at the time there was only a short piece of railing on what I have called the spur. It appears to be common ground that there was then no railing on the north side of Tak Tin Street. So a person prepared to take the attendant risks could, on leaving a bus bay, walk directly into Lam Tin Estate Block l. The first defendant had started his shift at two o'clock that afternoon so he had been driving for about two hours before the accident: I feel entitled to infer from this that he was reasonably fresh. Having allowed the passengers he had been carrying to alight at bay Number 58 he took on fresh passengers and moved away at about 4.20 p.m., having received the appropriate signal from the station master, and then, I quote:

"I looked around because often unlicensed hawkers run away from police in the area. I looked right and left and in front of me. I engaged gear, released my hand brake and, switching on my near side indicator, prepared to move off."

He said that there were a lot of people about and he drove slowly, at one to two miles an hour, to avoid any accident; keeping a good lookout. Indeed, the photographs show the general random movement of pedestrians which he was bound to expect. He said, "I turned towards the exit - I switched on my offside indicator" to show he was going through it.

"I looked to my right for pedestrians or traffic in Tak Tin Street. I slowed down."

It is difficult to imagine how he could have gone more slowly.

"I waited until Tak Tin Street was clear for me to turn into it."

He was going to drive along the North side of that street to the East.

"The road cleared and I was thinking of swinging to my right because I had to go past the exit. I was about to do so. I looked in my near side mirror and saw a dark shadow rush in. I braked. I looked in the mirror because of the number of people in the area."

And then he described how he got out and found the plaintiff injured. He said this was a dangerous area and that he had seen a lot of accidents in it. I quote:

"That is why I looked again in my mirror. I had to pay attention to the whole of the terminus around me. I did not know I had struck a man until I alighted from the bus. I had looked and seen no one. I looked to both sides and saw no obstruction I could have stopped at any moment."

My understanding was that this was the lookout he kept before he began to watch for a break in the traffic.

"Before the incident I only saw a deep dark shadow and I did not know it was a man. I thought the shadow was something like a hand-cart. - I felt no impact. I stopped because I had seen the dark shadow. I had looked into my near side mirror and seen no one near my bus. I did not see a man with a parcel on his shoulder. If I had not looked again in my mirror, the plaintiff would have been dead."

8. The first defendant had signed the sketch plan made by the officer, and during his evidence, marked on it the place where he found the plaintiff; having alighted from the bus. Does this evidence show negligence on the part of the first defendant? The injuries which the plaintiff sustained demand and have received scrupulous inquiry in the light of the submissions made by counsel. It is submitted that the first defendant would have been able to keep a lookout as well for pedestrians as for traffic if he had stopped at the mouth of the exit of the terminus. I am not satisfied that the first defendant could reasonably have been required to do this. I was impressed by his demeanour in the witness box and formed the view that he was a responsible driver very much alive to the dangers and difficulties resulting from the design of this bus-terminus. No driver can look in every direction at the same time nor be required to stop when he looks in one direction rather than another. The first defendant did look again in his offside mirror as soon as he ascertained that Tak Tin Street was clear and what he saw led him to brake immediately. I have considered the submission made in relation to his first Statement particularly the expression: "Before the accident I did not see that man. " Looking at the Statement as a whole and having heard the driver's evidence I am satisfied that the plaintiff had come so close to the bus during the moment when the driver was looking for a clearance in the traffic that an accident was unavoidable. I am satisfied that the driver took all reasonable precautions and do not think any public service driver could have been expected to do more. I think it is to his credit that he stopped as rapidly as he did. Mr. Sujanani, who appears for the defendants referred me this morning to the well-known case Kayser v. London Passenger Transport Board⁽¹⁾ at p. 233 where Humphreys J. said:

"The law must be, and I hold that it is, that when a driver is satisfied that persons who are lawfully entitled to cross the road - are well out of any danger from him if he goes on in the normal course, he is perfectly entitled to go on, but, of course only at such a pace as will enable him to stop almost immediately in the unlikely happening of those persons doing something dangerous and negligent themselves."

I find that the first defendant had taken appropriate precautions for the safety of pedestrians, whom he was entitled to expect to take reasonable care for themselves, before he looked for a break in the traffic and was driving at a pace which would allow him to stop, as he did, with alacrity when a particular pedestrian failed in the event to look when he was going. It follows that the claim fails and that there must be judgment for the defendants.

9. Insofar as I may be held to be wrong in my finding on liability I feel that another court will be in as good a position as I am to assess damages and that it would be less than kind to the plaintiff to seek to assess them now.

(1)    1950 1 All E.R. 231