MAK HOI CHU v. LUI CHI YIN AND ANOTHER

CACV 262/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 262 OF 2010

(ON APPEAL FROM DCPI NO. 1861 OF 2009)

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BETWEEN

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J U D G M E N T

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Hon Hartmann JA (giving the judgment of the Court):

Introduction

1.  On 17 April 2007, during the busy lunch hour period, an elderly woman, Madam Tam, attempted to cross a pedestrian crossing on the Lai Chi Kok Road at the junction with Nam Cheong Street.  The crossing is light-controlled, there being lights which control the three lanes of vehicle traffic moving in a southerly direction across the pedestrian crossing and lights which control when pedestrians may cross those three lanes to the pedestrian island in the middle of the Lai Chi Kok Road.

2.  At the time when Madam Tam attempted to cross, the nearest lane to her was closed off to facilitate engineering works.

3.  In the next lane, a double-decker bus operated by the second defendant had come to a halt partially across the pedestrian crossing, the rear of the bus being in the yellow hatch markings of the junction.  In the result, pedestrians wishing to cross the road in the same direction as Madam Tam, had their view of the lights obstructed.

4.  As it was, when Madam Tam started to cross the road, the lights controlling the pedestrian crossing were red while the lights controlling the southerly movement of vehicles were green.  Madam Tam therefore attempted to cross the pedestrian crossing when the lights were not in her favour.

5.  In crossing the pedestrian crossing, Madam Tam walked in front of the double-decker bus and then stepped into the furthest lane, the lane nearest to the pedestrian island.  As she did so, she was struck by a public light bus driven by the first defendant.  She died of her injuries several hours later.

6.  Madam Tam’s husband, as the personal representative of her estate, instituted proceedings for damages against the two defendants on the basis that by their negligence they had caused or contributed to the cause of her death.

7.  In a judgment dated 5 October 2010, Her Honour Judge Mimmie Chan found that Madam Tam had been 40% responsible for the accident that caused her death, the two defendants being 60% responsible.  As between the first and second defendants, the judge apportioned 60% of the liability to the first defendant, the driver of the public light bus, and 40% to the second defendant, the employer of the driver of the double-decker bus.

8.  The judge assessed damages at $264,370, 60% of that figure being the sum of $158,622 payable by the two defendants.

9.  In her assessment of damages, the judge awarded an amount of $30,000 for pain, suffering and loss of amenities.

10.  Pursuant to leave granted by the trial judge, the first defendant appealed.  He did so on the basis, first, that, in assessing the level of his contributory negligence, the judge placed an unrealistically high standard on the first defendant’s duties as a driver and, second, that the judge was in error in awarding $30,000 for pain, suffering and loss of amenities, that award being unsupportable on the evidence.

11.  Having heard submissions, we dismissed the appeal.  Our reasons are now given.

The first defendant’s degree of contributory negligence

12.  The first defendant did not give evidence at trial.  However, he had during the course of criminal investigations made two cautioned statements which were put into evidence.  In one statement he estimated that he was driving his public light bus at between 30 to 40 km an hour when he approached the pedestrian crossing, in the other he estimated that he was travelling between 20 to 30 km an hour.

13.  While accepting that the lights controlling the junction and the pedestrian crossing were in favour of the first defendant when he entered the junction and approached the pedestrian crossing, the judge held that this did not entitle him to lower his standard of care.  Implicit in her findings of fact was that the circumstances prevailing at the pedestrian crossing at that time required a level of vigilance which the first defendant failed to exercise.

14.  First, the first defendant was travelling on a busy road at a busy time of day for pedestrians: the middle of the lunch hour.  Second, importantly, the first defendant himself could not have had a clear view of the pedestrian crossing, more especially of the pedestrians waiting to cross.  This was because of the presence of the stationary double-decker bus on the inner lane, the front of the bus protruding onto the pedestrian crossing itself, the rear of the bus still in the junction.  In the circumstances, the judge held that the first defendant should further have reduced his speed and should have been “on the lookout” for pedestrians who, with their own view of the traffic being obstructed, may have ventured onto the crossing and who may emerge from the front of the double-decker bus into his path.  As the judge noted, if he had done so in, he may well have been able to see Madam Tam in time to avoid hitting her.

15.  On behalf of the first defendant, Mr Sakhrani referred us to a number of authorities to the effect that a driver in the exercise of reasonable care is not required to drive in such a manner as to be able to ensure that he does not strike any pedestrian who, without looking to check traffic conditions, runs out into the road ahead of him.

16.  But, as the authorities make clear, in all these matters the negligence or contributory negligence of a driver is a question of fact to be decided according to the circumstances of each particular case.  It was the determination of the judge that in this particular case regard had to be given to the fact that, even though the lights were in favour of the first defendant, he was driving along a busy road approaching a pedestrian crossing at a busy time of day for pedestrians.  In addition, the presence of the stationary double-decker bus on the first defendant’s inside lane partially intruding onto the pedestrian crossing itself created a form of hazard which demanded extra vigilance.  In such circumstances, everyday prudence dictated the possibility that one or more pedestrians, their own view of the traffic obstructed by the presence of the double-decker bus, might venture out onto the crossing.

17.  In Au Cheung v Choi Lai Fan and Another [1979] HKLR 543, this Court (per Roberts CJ) affirmed two principles of direct relevance.  First, that a pedestrian crossing not only constitutes an invitation to pedestrians to cross at that point but constitutes also a warning to motorists that pedestrians are much more likely to be found in that area intending to cross.  The greater the possibility therefore that one may step onto the road.  Second, that while the green light gives permission to a driver to move beyond a certain point – in the present case, into a junction and across a pedestrian crossing – it does not entitle him to lower his standard of care.

18.  In light of these matters, as concerns the first defendant, we were satisfied that there was no basis for finding that the judge had erred in determining the factual basis of her apportionment of damages.

The award for pain, suffering and loss of amenities

19.  As we have said, the judge awarded an amount of $30,000 for pain, suffering and loss of amenities.  Mr Sakhrani submitted that there should have been no award of damages under this heading or, if such an award was made, it should have been no higher than $7,500.

20.  At the time of her death, Madam Tam was 82 years of age.  The evidence was that she was optimistic in character and physically able, maintaining a daily regime of exercise.  Her eyesight and hearing were good and she could walk unaided.  In short, she was fully able to enjoy the ordinary experiences and amenities of life.

21.  When hit by the public light bus, Madam Tam suffered multiple injuries of the most traumatic kind.  These included a fractured skull, an open wound to her scalp and severe bruising to the face.

22.  Immediately after the accident, while Madam Tam was still lying on the road, she was approached by one of the passengers of the public light bus.  The passenger said that Madam Tam appeared to be in a state of semi-consciousness.  There was a detectable pulse and she was still breathing.  The first defendant himself described Madam Tam at that time as being slightly responsive.

23.  The evidence therefore did not support any suggestion that she was at this time completely insentient.  Correctly in our view, the judge was not prepared to dismiss the probability that at this time Madam Tam would have been suffering deep shock, confusion, fear and pain even if she was unable to communicate the fact.  

24.  By the time Madam Tam arrived at hospital, she had fallen unconscious and had to be actively resuscitated.  She remained in an unconscious state for a period of some eight hours until her death that night.

25.  As it stands, our law draws a distinction between damages for pain and suffering and damages for loss of amenities.  Damages for pain and suffering depend upon the victim’s personal awareness of pain, the victim’s sentient capacity to suffer.  Damages for loss of amenities, however, are awarded for the fact itself of deprivation whether or not the victim is aware of it: see the speech of Lord Scarman in Lim v Camden Health Authority [1980] AC 174 at 188G.  Madam Tam was deprived of the ordinary experiences and amenities of life from the moment she was struck until her death more than eight hours later.

26.  In light of these matters, there was no basis for arguing that the judge had acted upon a wrong principle of law in determining that damages should be awarded.  As for the quantum of those damages, bearing in mind that they are never easy to assess, we were satisfied that the judge’s assessment could not be criticised.