WAN KA MING AND OTHERS v. CHAN KWAI YUN AND OTHERS

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

High Court Action No. 4895/81

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JUDGMENT

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1. As long ago as the 21st of May 1980, at about half past five in the afternoon, the plaintiff, then aged 9 years, was set down by the driver of her school van in Kwai Luen Road in the New Territories. There is conflicting evidence as to the enact spot where the school van stopped in the road but I am satisfies that it was at a point parallel to the broken rather than to the double white line and also that it was adjacent to the continuous pedestrian rail and not to any gap in it. The infant plaintiff had repeatedly been warned of the dangers inherent in crossing roads. As the driver, Madam Ho, said "Every day I told the children to watch out when crossing a road,"

2. As the infant plaintiff, having moved to the front of the parked school van, emerged into the carriageway and when she was, perhaps, three feet from the central broken white line she was struck by a motor-car driven by the first defendant anti which was owned by the second defendant. In relation to the circumstances it falls to the Court to determine whether the first defendant was negligent and if so whether the second defendant is vicariously liable and also whether or not the accident was contributed to by the negligence of the infant plaintiff herself. Of course her age is a material factor.

3. Apparently the road from which both vehicles with which I am concerned had turned and which is called Kwai Shing Circuit has a marked slope running from West to East which is material to my view of the relative probabilities of estimates of the speed of the defendants' vehicle. I am satisfied that it did not exceed 16 m.p.h. which was quite proper in the circumstances.

4. Now the first piece of evidence available to me is a Statement which the infant plaintiff gave to a police officer, in the presence of her mother, whilst still in hospital following injuries suffered from the accident, on the 16th June 1980. She said:

"I alighted. I took a few steps forward, then came for the front of Mrs. He's vehicle intending to cross to the other side of the road (from left to right). Once I moved past the right side of the front of Mrs. Ho's vehicle I suddenly saw a green private car approaching from my right. At the time the green private car was about 7 to 8 feet from me. The green private car then struck me and I was rolled under the vehicle. I lost consciousness."

Then she was asked some questions by the police officer. The first:

"After you got off from Mrs. Ho's vehicle and stepped forward, did you look to both sides for any approaching traffic before crossing the road?"

Answer:

"I did not look the both sides before I crossed from the left side of the road to the right."

Second question:

"In what manner were you crossing the road?

Answer:

Third question:

"How far past the front of Mrs, He's vehicle had you gone before you saw the green private car?"

Answer:

"I had taken about three steps (around 3 to 4 feet) when I caught sight of the green private car coming from the right."

By consent that Statement was adduced in evidence without calling the police officer in question.

5. Mrs. Ho has a recollection of this accident perhaps because it is the only accident, apparently, she has ever witnessed. She said that she had parked the van about I foot from the kerb which left no room for any other vehicle going the same direction to pass without crossing the interrupted white line. She said:

"The plaintiff got out of my van. She then walked towards the front and was about to cross the road. I myself was about to drive on after she had crossed. I looked into the offside mirror and saw a car coming from Kwai Shing Circuit and turning into Kwai Luen Road behind me. Then I saw the car immediately to my offside and the near side corner hit the plaintiff who had reached at the middle of the road. She was about 1 foot short of the single white line. The car was in my lane. When I saw it along-side me it had already hit the Plaintiff. I believe the vehicle was being driven at more than 30 miles an hour. I give this figure because of the distance it covered between my successive sightings of it. There were not many vehicles on the road at the time and pedestrians were crossing the road from both sides before the plaintiff crossed."

And then, having described the gaps in the pedestrian rails which are shown in the agreed photographs, she went on:

"I don't remember whether or net other people were crossing when the plaintiff was crossing. My van was not specially marked in any way. The plaintiff did not harry across the road."

I prefer the almost contemporaneous recollection of the plaintiff herself in the latter regard.

6. The first defendant who, like the second witness called for the defence, Mr. Hui Man Tin, is a butcher, had left work that afternoon to go for a swim; apparently short one due to the inclemency of the weather. He was driving back to a place where he could drop his passenger. His evidence was that he had two fellow workers with him whereas the one fellow worker I have heard, Mr. Hui, said he was the only passenger. After this lapse of time it may be such discrepancy in recollection is only to be expected. The first defendant said:

"When I turned into Kwai Luen Road I was in first gear going slowly at about 10 miles an hour. There was no vehicle in the opposite lane. I swerved to the offside to pass a Parked white van (in a position which he pointed out on the photographs). I changed into second gear to do so. Passing the van and almost abreast with the front of it I saw a child in front of me. I was frightened. I forgot to apply my footbrake and the girl was dragged along about 20 feet. Eventually I braked. She was in front of my car when first I saw her. When I turned into Kwai Luen Road I saw no pedestrians and no one getting out of the van. I was subsequently charged with 'careless driving' and pleaded guilty to that offence. I did so because my conscience would not allow me to deny the charge whether I was guilty of it or not. I was too frightened to take evasive action."

He denied that he had been travelling at 30 miles an hour as was suggested to him. He agreed he had not sounded his horn and said that he had given the white van a clearance of rather more than 1 foot. He knew there was a double white line a little further up the road and that there were gaps in the railings. He had lived in the area for some 8 years and often passed this spot. He said:

"Pedestrians used the gaps. - When I saw the van I wondered why it had stopped there."

7. Then the passenger, Mr. Hui Man Tin, was called. He described Kwai Shing Circuit as steep and said:

"Our car was not powerful enough to go up it and turned into Kwai Luen Road. In front of it was a van for carrying children and it was parked at the side of the road. We passed its offside but when abreast with it I saw a child in front of us; almost in the middle of the road about 1 foot from our car. The child was crossing the road and went under our car almost as soon as I saw it. The child appeared all of a sudden in front of our car and was about 2 feet from the centre white line. Our vehicle was travelling at between 15 and 16 miles an hour in first gear. We had been going up the slope in Kwai Shing Circuit in second gear. I saw no pedestrians in the vicinity."

When asked how he knew that this was a van for carrying children Mr. Hui said there was some marking on the van to such effect. In the circumstances, I am satisfied, on the balance of probabilities, that there was something about the white van, whether its design or a marking, which, if he was keeping a proper "look-out", should have put the first defendant on notice of its use as it did his passenger. Once he had such notice it was incumbent upon him to take reasonable precautions to avoid the consequences of the recklessness or negligence of children who might-have alighted from it. In a sense the first defendant, by his plea in the magistrate's court and by admitting here that he wondered why the white van had stopped, has conceded this. He failed to take reasonable precautions which were, in my view, first to sound his horn and secondly to give the parked vehicle a substantial clearance as, in the absence of traffic coming from the other direction, he was in a position to do. Accordingly he failed to discharge the duty of care which he owed to the plaintiff as a pedestrian and a child and from that duty of care the accident in part resulted.

8. I say "in part" because the plaintiff, too, was negligent in the sense that she showed a culpable lack of care for her own safety. A girl of nine who has constantly been instructed as to the dangers of crossing roads cannot, in my view, say "I am a child and no one can ask me to take reasonable care for my safety. " I so find despite a passage in the judgment of Cumming-Bruce J, as he then was, in Jones v. Lawrence 1969 3 All E.R. 267 at page 270 referring to a child of seven, which reads:

"In my view the defendant has failed as a matter of probability to show that the infant plaintiff was culpable or that his behaviour was anything other than that of a normal child who is, regretfully, momentarily forgetful of the perils of crossing a road."

The infant plaintiff admitted to a police officer shortly after the accident that she had failed to look in both directions for traffic and that she had hurried acrossed the road.

9. In the circumstances the division of responsibility as between the plaintiff and the first defendant is not easy. Doing the best I can I attribute the responsibility fifty fifty.

10. There remains the question of any liability on the part of the second defendant. In this regard the first defendant told the court that the vehicle was shared by him and his 3 brothers. It cost $4,000.00 and apparently each brother subscribed a quarter of this price. Perhaps to prevent any one brother having any advantage over the others they asked their father, the second defendant, to be the registered owner. He was a Public Service Cleansing Department driver but had no interest in the car or in the particular journey. In those circumstances I think it is quite impossible to fix him with vicarious liability.

11. Damages, including special damage, have been agreed at a figure of $40,000.00.

12. It follows from what I have already said that there must be judgment as between the plaintiff and the first defendant in the sum of $20,000.00 with costs and there will be judgment for the second defendant against the plaintiff with no order as to costs. That means the plaintiff's claim against the second defendant is dismissed. As regard the third party the Official Receiver has conceded liability as between the third party and one or both of the defendants for such sum as may be awarded in favour of the plaintiff and therefore there will be judgment in the third party proceedings for the first defendant against the third party in the sum of $20,000.00 plus such sum as may be payable by the first defendant to the plaintiff by way of costs. There will be no order for costs in the third party proceedings but there will be an order for Legal Aid taxation of the costs of the plaintiff and of the first defendant.