TSOI YAU YA v. CHAN KWOK HUNG AND ANOTHER

CACV 317/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 317 OF 2002

(ON APPEAL FROM HCPI NO. 1388 OF 1999)

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REASONS FOR JUDGMENT

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Hon Rogers VP:

1. This is an appeal from a judgment of Deputy High Court Judge Fung given on 13 June 2002. In the action the plaintiff was awarded judgment against the defendants in the sum of HK$4,258,382 but that was reduced by 30% on account of contributory negligence. The claim arose from a traffic accident in which the plaintiff had been knocked down and severely injured by a bus driven by the 1st defendant and owned by the 2nd defendant. At the conclusion of the hearing of this appeal, this court dismissed the appeal and said that it would give its reasons in writing.

Background

2. The accident occurred on 23 October 1997 at about 6:15 pm. The plaintiff was then 29 years old. She worked as a waitress and was taking courses in Japanese and computing. She was in a normal state of health. On the day of the accident, she was crossing the bus lanes of Canal Road East which runs between Hennessy Road and Leighton Road. There are two bus lanes which are located underneath the flyover. The left hand lane is predominantly taken up by bus stops and the right hand lane is used by buses manoeuvring through the area. Although it is not a bus terminus as such, the area is much like an interchange where buses enter from the Hennessy Road end, call at the bus stops and then proceed to their destination. The evidence was that there were many pedestrians in the area and, indeed, this can be seen from the photographs. The bus lanes run in a generally southerly direction. To the east of the roadway is Times Square. To the west of the roadway is a market place. The plaintiff was crossing the bus lanes from the Times Square side towards the market place side when she was hit by the defendants' vehicle. There is no dispute that she was walking slowly. It also appears that she was crossing from a gap in the railings on the Times Square side of the bus lanes. Although there was a CMB 112 bus at a stop in the left hand lane, she was about three quarters of a bus length in front of that bus when she was hit by the defendants' vehicle in the far lane.

3. The real question at issue at the trial was the speed at which the defendants' vehicle was travelling. The judge's conclusion was that the 1st defendant had been driving too fast. The first matter to be considered was at what speed was it reasonable for the 1st defendant to have been driving. The judge said that:

"The reasonable speed for the road condition of the relevant section of the Bus Lane should have been 10 to 15 kph"

In coming to that conclusion the judge's primary consideration was the nature of the location. That has been briefly described above. Naturally, the judge took into account the heavy pedestrian presence and the likelihood of pedestrians crossing the bus lanes.

4. Mr Sarony SC, on behalf of the defendants, sought to suggest that this speed was unrealistically slow because, as he put it, the speedometer needle would barely have moved at that speed. Not only is that submission clearly not correct but it is difficult to see how it can be married with Mr Sarony's other submission that the bus was travelling at much less than the speed held by the judge, namely 20 to 30 kph.

5. The judge's assessment of the speed at which the defendants' bus had been moving was made having reviewed all the relevant evidence. Mr Cheung Yat-sing had given evidence for the plaintiff. He had been walking behind and slightly to the right of the plaintiff. He had seen the bus coming. It had been his estimate that the defendants' bus had been travelling at 20 to 30 kph. He was a driver and the judge was perfectly entitled to take that into account in assessing the evidence. The judge also gave full consideration to the two independent witnesses called by the defendant. There was a Miss Leung Chiu-chun who was seated in the aisle seat immediately behind the staircase of the bus and thus, presumably, towards the middle of the bus. Her evidence was that the bus was moving very very slowly. When asked more about it, she readily agreed that that impression was a comparison with the speed at which the bus had travelled in Hennessy Road. That witness was not a driver and, not surprisingly, she offered no estimate of the speed of the bus in numerical terms. The other witness was Miss Tong Yuk-king. She was on the opposite side of the bus lanes facing the plaintiff. She saw the plaintiff walking across the road looking to her left. Her evidence was that there was nothing that the 1st defendant could have done to avoid the accident.

6. In coming to his decision and rejecting the 1st defendant's evidence that he had been travelling at a slow speed of 10 to 15 kph, the judge fully considered the evidence from the witnesses. He also took into account the distances involved. The plaintiff had been struck by the defendants' bus when the bus was about two-thirds of its length past the front of the CMB bus. After considering the photographs that had been taken on the evening of the accident, Mr Sarony did not dissent from that. To that distance of about 8m was to be added the distance that the 1st defendant was behind the front of the CMB bus when he first saw the plaintiff. As the judge pointed out, the total would come to approximately 15m. But the judge was by no means mesmerised by the estimates of measurements. He, very rightly, pointed out that the estimates could only be rough given the circumstances of witnesses having to recall their impressions gained of an accident which had occurred some years before the trial.

7. The judge, again very justifiably on the evidence, held that the 1st defendant was aware of the likelihood that pedestrians would be crossing the bus lanes somewhere in front of the CMB bus. Furthermore, the judge was entitled to make reference to the 1st defendant having sounded his horn and flashed his headlights and to the driver's assertion that after he saw the plaintiff he only had time to apply the brakes and did not have enough time to sound the horn. The judge's conclusion that the 1st defendant had been at fault is, in my view, unassailable.

Contributory negligence

8. The judge held that the plaintiff had been 30% contributorily negligent. In argument, Mr Sarony suggested that the apportionment of liability should have been 70%. It may be that a different court might have come to a different apportionment. It must however be borne in mind that the apportionment for contributory negligence is a discretionary exercise. As Sir Thomas Eichelbaum NPJ said in Wishing Long Hong v Wong Kit Chun (2001) 4 HKCFAR 289 at 298B, an appellate court is justified in interfering only in exceptional circumstances and he referred to British Fame (Owners) v Macgregor (Owners), The Macgregor [1943] AC 197. The question of apportionment is a matter in respect of which a trial judge almost invariably has a considerable advantage, having heard the witnesses and made his own assessment as to the nature of the dangers involved. As was said in the speeches of the House of Lords in The Macgregor, it would take a very strong case for an appellate court to interfere on a matter of apportionment where the same view is taken of the law and the facts: see e.g. Lord Wright at page 201. As Sir Thomas Eichelbaum put it at page 298 of the Wishing Long Hong case, an appellate court should not interfere "unless the result is outside the limits reasonably available to the court below". I do not consider that the judge's assessment was outside the reasonable limits.

9. In the circumstances, the appeal was dismissed with costs in favour of the plaintiff.

Hon Le Pichon JA:

10. I agree.

Hon Yuen JA:

11. I agree.