YUEN YAN TING v. YAN YAN MOTORS LTD AND ANOTHER

HCPI 956/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 956 OF 2000

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J U D G M E N T

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1. In this action the Plaintiff Yuen Yan Ting, an infant, claims through her father and next friend, Yuen Hon Kit, damages for leg injuries she sustained in a traffic accident at about 5:55 p.m. on 14 May 1998 near a public light bus stand at Luen Wo Road near Luen Wo Market. She was crossing from Luen Wo Market in order to go to a park opposite. She had already crossed a lane used by taxis to pick up passengers and a traffic island about 2 1/2 metres wide used by passengers waiting for taxis and had entered onto the adjoining lane used by public light buses when she was struck by a public light bus owned by the 1st Defendant and driven by the 2nd Defendant.

2. At the time of the accident, she was aged 3 years 9 months.

3. The parties have reached agreement as to quantum subject to the courts' approval. The only issue at trial has been liability. There has been no issue as to the vicarious liability of the 1st Defendant if the 2nd Defendant should be found to be in breach of his duty of care to the Plaintiff. Only two witnesses have given evidence. The grandfather of the Plaintiff, Mr Chan Mau Wing, gave evidence for the Plaintiff. The 2nd Defendant, Mr Lee Chi Ming, gave evidence for the Defendants.

The Evidence of Chan Mau Wing

4. The evidence of Mr Chan Mau Wing whose native dialect is Hakka and who is retired and only came to Hong Kong from Mainland China in 1997 was that he always went to the park opposite Luen Wo Market everyday at about 6:00p.m. On the day in question, he visited his son-in-law's shop in the market and collected the Plaintiff, so that he could take her with him to the park where there was a rocking horse and a slide.

5. After leaving the market, holding the Plaintiff by his left hand, he had first crossed the lane used by taxis and arrived at the island which separated this lane from the first of two lanes used by public light buses to pick up their passengers. At some stage, and his evidence at trial was unclear as to whether it was before crossing, while crossing or after crossing the taxi lane, he noticed a public light bus some distance away emerging from Luen Wo Road. Bearing in mind its distance from them, he believed he would have sufficient time to continue crossing the terminal before it arrived. He therefore continued across the traffic island. He said that there was nobody on this island at least in that particular area. He was holding his granddaughter by the hand intending to cross the first public light bus lane, but as he did so, his granddaughter had loosened her hand from his and dashed out ahead of him towards the direction of the park onto the public light bus lane. After she had done so, she was struck by the public light bus he had seen earlier which driven by the 2nd Defendant. He described the public light bus being driven at very fast speed. The public light bus had not reduced its speed nor had it sounded its horn.

The Evidence of Lee Chi Ming

6. It was the evidence of the 2nd Defendant, Lee Chi Ming, that the Plaintiff was not accompanied by Mr Chan at the material time.

7. He said that Luen Wo Hui was one of the stops on his route from Sha Tao Kok to Sheung Shui Railway Station.

8. As he drove his public light bus from Luen Wo Road into the terminal area, he had paid attention to the terminal area ahead of him and there had been nothing to obstruct his vision. He noticed two to three taxis in the taxi lane but no pedestrians were crossing the taxi lane at that time. It had seemed that there were no people on the island separating the first public light bus lane from the taxi lane but he had seen 30 to 40 people queuing for a public light bus on the island separating the two public light bus lanes. As he entered the junction area he was travelling at about 15-20 kms an hour. He drove towards the middle lane which was for public light buses.

9. Although initially in his evidence he said that he had only seen the Plaintiff when she was about half the length of a public light bus in front of his vehicle (i.e. about 10 ft.), later in his evidence he said that he had first seen her when his vehicle was about 10 ft. from the end of the island separating the taxi lane from the public light bus lane. She was in the middle of the island about 4-5 ft. from the end and nobody was accompanying her. When he had first seen her, she was already running in the direction of the public light bus lane but an angle towards him. He immediately braked and swerved to avoid her but the right front of the public light bus had come into contact with her. He said that he didn't have enough time to sound his horn. His vehicle had stopped at the point of impact and he had alighted and assisted the Plaintiff. It was only after about 4-5 minutes that a man who resembled Mr Chan Mau Wing, the Plaintiff's grandfather had come to the scene.

Assessment of the Evidence

10. Having heard the evidence, I am satisfied that this is not a case where the court is faced with a simple choice between accepting the evidence of one or other of the witnesses in its entirety. It is the case where the court has to evaluate all the evidence and decide what probably occurred. I am satisfied that both witnesses were essentially honest men trying to recollect details of an event which happened very quickly 31/2 years ago. In particular there was nothing to cause me to doubt that the Plaintiff's grandfather Mr Chan Mau Wing's evidence that he was present at the time and that the accident had occurred after he had lost his hold on the Plaintiff's hand. He is an elderly man of an unsophisticated background who speaks poor Cantonese and is now confused about some aspects of what had occurred that day. I am satisfied that he would have been quite unable to fabricate a convincing account of having been present if he had not been, as the defence suggest.

11. On the other hand, I believe the evidence of Mr Lee that when he first saw the Plaintiff running towards the public light bus from the middle of the traffic island towards the public light bus lane, he did not notice that anyone was with her. I find that this is probably because at that stage after arriving at the traffic island but before reaching the middle of the island, the Plaintiff had already escaped from her grandfather's grasp. Mr Lee may not have noticed Mr Chan's presence immediately after the accident if Mr Chan had not asserted his presence. It is probable that Mr Lee's attention would have been directed to the infant Plaintiff whom he had knocked down. It is reasonable to assume that other people waiting on the second island for public light buses, if not the passengers from his own public light bus, would also have gone over to the accident scene and distracted attention from Mr Chan whose dialect may not in any event have made him readily intelligible.

12. In the statement Mr Chan made to the police the following day it is recorded that Mr Chan had said that the public light bus was only about 3 feet away from the Plaintiff when she stepped into the public light bus lane. In his witness statement prepared for the purpose of his trial, he said that he had not said 'feet' but 'metres' and that the distance was in fact 3-4 metres. In his evidence in court, he appeared to find questions directed to the distance between the public light bus and the Plaintiff at the time she stepped on the lane beyond his grasp. He did say, however, that as soon as she stepped out she was knocked down. Bearing in mind the difficulties in communicating with the police officer, I accept Mr Chan may well not have intended to refer to a distance of 3 feet rather than 3 metres. The likelihood of this being an misunderstanding is supported by the fact that the same police officer who took Mr Chan's statement had taken a statement from Mr Lee (with whom he would have had no difficulty in communicating) and there had been a confusion of feet and metres in that statement. The fact that Mr Chan said in evidence that the Plaintiff was knocked down as soon as she stepped into the public light bus lane does not provide much assistance as to the distance between her and the public light bus when she did so. The accident would have happened very fast even if the public light bus had been 3 to 4 metres or indeed further away.

13. The court does however, have the assistance of the evidence of Mr Lee that he had seen the Plaintiff running from the middle of the traffic island towards the public light bus lane before he entered that lane. He put his distance at 10 feet from the start of the lane. The court also has the evidence of the plan and the photographs taken after the accident. It is apparent from the plan and photographs that Mr Lee's evidence that the Plaintiff had been about 3 to 4 feet from the end of the traffic island and that she had run diagonally towards the approaching public light bus almost certainly cannot be right. The sketch plan indicates that the public light bus came to a halt over 10 metres into the public light bus lane. On Mr Lee's evidence that the public light bus had stopped at the point of impact and that he had first seen the Plaintiff when he was approximately 10 feet from the entrance to the public light bus lane, he would have first seen the Plaintiff running from the middle of the island when he was at least 13 metres away.

14. In considering whether the 2nd Defendant was in breach of duty of care towards the Plaintiff, I have borne in mind the test put forward by the English Court of Appeal in Moore (an infant) v Poyner [1975] RTR 127 and Kite v Nolan [1983] RTR 253. A public light bus or taxi driver approaching at passenger terminal such as this one must be required to exercise a high degree of caution. Person of all ages are to be expected to be using the terminus and crossing the vehicle lanes exercising various degrees of caution. A public light bus driver would be bound, for instance, to anticipate that some passengers in their hurry to catch vehicles might cross the vehicle lane without keeping a proper lookout. Children using the terminal might well act irresponsibly. In his evidence, Mr Lee acknowledged the dangers of such a terminal. This is a situation where it would be reasonable to expect a driver to approach the traffic lanes at very slow speed so as to be in a position to stop his vehicle almost immediately if something untoward occurred.

15. I am satisfied that if he had been exercising proper caution and driving at a reasonable speed in the circumstances, Mr Lee would have been able to stop his vehicle well before striking the Plaintiff. He was therefore in breach of his duty of care towards the Plaintiff.

16. Mr Li for the Defendants has argued that in the event of his clients being found liable then the court should find contributory negligence on the part of the Plaintiff. In considering the issue of contributory negligence, age is a highly material factor. Lord Denning MR in Gough v Thorne [1966] 3 All ER 398 made these observations:

"A very young child cannot be guilty of contributory negligence. An older child may be; but it depends on the circumstances. A judge should only find a child guilty of contributory negligence if or she is of such an age as reasonably to be expected to take precautions for his or her own safety; and then he or she is only to be found guilty if blame should be attached to him or her. A child has not the road sense or the experience of his or her elders. He or she is not to be found guilty unless he or she is blameworthy.

17. In this case I have no doubt whatsoever that the Plaintiff aged 3 years 9 months, could not be reasonably expected to take precautions for her own safety. No blame whatsoever can be attached to her.

18. I find that the Plaintiff has established liability on the part of the Defendants for her injuries.