JACOB DAVID GODKIN v. SHIVSONS CORPORATION LTD. AND ANOTHER

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JUDGMENT

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Cons, V. -P. delivered the judgment of the Court:

1. This is an appeal against the decision of Liu J. whereby he dismissed the Plaintiff's claim for damages.

2. The Plaintiff was knocked down in Robinson Road on the 29th September 1978. He was 17 years of age at the time. He suffered a broken thigh. He was taken to Queen Mary Hospital and kept there for 2 weeks, and the broken bone was pinned. He was able to move about on crutches. Dr. Wedderburn suggested that he should have recovered within about 7 months and have had the pin taken out after one year, if there had been no further injury. Unfortunately there were further injuries. In December he fell when taking a bath, and again in March the following year in England he fell upon some ice. These incidents delayed his recovery and caused further pain, which was relieved to some extent by analgesics. In fact he needed at least one crutch for over one year, the pin not being finally removed until October 1982. There is some slight permanent disability, one leg being about 1/4" shorter than the other. Clearly it has been a very painful and distressing time for him and we have great sympathy with him for his suffering. Sympathy however is not a matter we can take into our consideration.

3. The accident occurred at about 3.30 p.m. It was a miserable afternoon, drizzling with rain and overcast. The Plaintiff and his companion, a young man of about the same age, had been waiting in Robinson Road between 15 and 20 minutes in the hope of getting a taxi. Eventually they did manage to obtain one which was passing slowly along the other side of the road. As the Plaintiff started across to reach the taxi he was struck by the left front bumper of a private motor car driven by the Defendant, a Mr. Daswani. The impact must have been more or less immediate, for even on his own evidence he had not managed to get his foot onto the road surface.

4. There are some contradictions in the evidence of the three persons involved in that accident, that is the driver, the Plaintiff and his companion Mr. Simpson. The Defendant's evidence, as recorded by the judge, and substantiated by the evidence which we have seen, was that he was coming up an incline from Pokfulam towards town. As he got to the top he saw two persons on the pavement. They were then some 50 yards away from him, and he was travelling at about 15-20 m.p.h. He saw no movement or gesture from those two to indicate that they might be intending to cross the road. We might interpose here that the road is rather narrow at that point and there is, in any event, no pavement on the other side of the road. The Defendant said that he continued at the same speed and then as he put it graphically, "one of the youngsters jumped in front of my car".

5. The evidence from the Plaintiff and Mr. Simpson is that they had been looking out from time to time, from beneath the child's umbrella held by the Plaintiff under which they were both sheltering, to see what was on the road. The object of that evidence was presumably to suggest that Mr. Daswani was coming up at a much greater speed than he admitted. That point is no longer pursued.

6. There was evidence from the Plaintiff that he had flagged down the taxi with his left arm.

7. Faced with that evidence the judge had to make his choice. He said -

"        Mr. Daswani was an impressive witness. I have no hesitation, in direct or inferential conflicts, in preferring his narrative before the Court. I accept his evidence. He was, I find, in no way negligent....."

That was a view which was apparently supported by the Plaintiff at the time of the accident because immediately afterwards he told the Defendant "Don't worry, it is O.K. It was my fault".

8. If the Defendant's evidence is accepted, the Plaintiff's claim and of course his appeal, must fail.

9. The substance of the appeal, as it is now presented, is in two parts. Firstly it is said that the judge was wrong to accept the evidence of Mr. Daswani and secondly, that there was evidence, which should not have been rejected by the judge, of conduct which should have alerted the Defendant in sufficient time to be able to avoid or lessen the effect of the accident.

10. As to the evidence of the Defendant, it is suggested that it is in itself so illogical and inconsistent that it has to be rejected. Mr. Payne, who appears now for the Appellant, relies heavily upon the statement which was made by Mr. Daswani within about two hours of the accident. It is however notorious that witnesses are extremely unreliable as to assessment of distance of time, and that they do not, when recounting the occurrence of a traumatic event such as a traffic accident, choose their words with the precision that lawyers would. Thus a phrase like "in the middle of the road", which appears in the statement in question and to which Mr. Payne has specifically referred, is not to be taken too literally. There is also a reference in that statement to the victim's being in "the road southwards to get a taxi". It is suggested that that indicates the Defendant was in fact aware at the time of what was happening. That is of course a possibility, but the possibility was not explored at the trial and we cannot speculate now.

11. We have been taken through the evidence of Mr. Daswani in great detail. Mr. Payne has drawn our attention to many particular passages and invited us to draw particular inferences therefrom. The primary object was to persuade us that the Defendant was not keeping a proper lookout. It was, if we may say so, a very skilful exercise in building apparent bricks without straw. However, in our view the evidence does not substantiate the suggestion. And even if it did, it does not assist the Appellant unless he can also show that the failure to keep a proper lookout was a cause of the accident. In order to do that he must make good his second point, that is that there were indications of crossing the road given in time for avoiding action to be taken.

12. Mr. Payne suggests two such indications. Firstly, that the two young men were standing beside the road, facing across and with bags standing beside them on the pavement. With respect we do not see any such indication in those matters. They are of course consistent with being ready to cross the road, but that is by no means the only inference.

13. The second is the flagging down of the taxi. The only evidence as to that came from the Plaintiff. It is not precise as to the way in which the flagging down was carried out, in particular there is nothing to indicate its extent, either  in space or in time, save for one passage where the Plaintiff says -

"A lot of people when they flag taxi down as I do kept their arm up flagging till the taxi stops ....."

14. The judge did not accept that the flagging down continued for any length of time. One of the reasons which he gave was that -

"If the plaintiff had been flagging down the taxi virtually up to the last moment, it would have been inconceivable that that could altogether escape Mr. Simpson's attention."

With every respect to the judge, he was probably wrong in that respect, for the evidence of Mr. Simpson suggested that at the time he was looking the other way. But we insert the word "probably" because the evidence is not clear as to the exact interrelation of the time of the flagging down and when Mr. Simpson turned round to pick up his bags.

15. Be that as it may, the evidence of the flagging down is vague as we have indicated. Moreover we know that the two men were sheltering under an umbrella which must to some extent have concealed their actions from the oncoming driver, and we are not surprised, having regard to the evidence of the Plaintiff as a whole that the judge was inclined to place little weight on what he said in regard to those crucial moments.

16. In the result we are not satisfied that there was evidence before the judge on which, as a reasonable judge, he must necessarily have been satisfied that there were indications which ought to have been seen by the Defendant in sufficient time to avoid the accident. We see no reason therefore to interfere with his decision on liability.

17. It is accepted that if that decision is to stand the further grounds of appeal as to damages would become purely academic and will not be pursued.

18. For these reasons we dismiss the appeal.