LEE SAU FONG v. TO CHOI TAK

HCPI 1013/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1013 OF 2004

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J U D G M E N T

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1.  Lee Sau Fong, a young lady in her early 20’s, likes to jog.  It had become her weekly ritual to run a circuit near her home, which is in rural Yuen Long, every Sunday evening.  So it was that at about 6 p.m. on Sunday 30 March 2003 she was on her run.  She was by herself.  Her route incorporated a stretch of Pat Heung Road and at the relevant time she was on that road, or rather the pavement of that road, heading towards its junction with Kam Sheung Road.  But on this occasion and at this spot, her run was to end abruptly, for she was involved in a collision with a car being driven in the same direction by the defendant To Choi Tak.  According to him, she had run out into the carriageway as he came alongside her and came into contact with the near side of the front of his car.  I shall come to his version of events and the detail; suffice to say the circumstances were unusual, if not bizarre.  Miss Lee herself has no memory of what happened.  It seems she suffered a serious head injury with ongoing disabilities and now has no impression of the accident or whatever might have precipitated it. 

2.  By this action she sues the defendant in negligence and for her consequential loss.  A split trial was ordered; this is the trial on liability.

The Evidence

3.  Miss Lee was really unable to add to what I have already recorded as to how and why the accident occurred.  A sketch of the scene drawn to scale by a police officer and various photographs were produced to help me to visualize what may have happened.

4.  Pat Heung Road is a typical sealed road of the New Territories.  Its carriageway is two way, one lane for each direction.  Each lane is a bit less than 4 metres wide, with a broken single white line between them.  Drivers travelling towards Kam Sheung Road on a normal day would have good visibility ahead; there was no suggestion that the weather was inclement, and at 6 pm it was still daylight.

5.  There is only one pavement.  That is on the left for traffic heading in Mr To’s direction.  It could be described as wide; a police spokesman has it at 9.4 metres although not all of that is paved.  About 1 metre in from the carriageway there is a line of tubular barriers about 3 metres long and the same distance apart.  It is thus easy enough for a pedestrian to gain access from pavement to carriageway by simply walking between any two of them.

6.  Just before the apparent point of collision, there is broken ground, with a mud path coming up to and meeting the pavement.  This feature has a significance as I shall come to.

7.  The precise point of collision has not been depicted; that is not important.  One can approximate where that was from skid marks said to have come from Mr To’s car and where the car came to rest.  The skid marks are angled out from the kerb, suggesting that the driver was braking hard and turning away from a potential danger.  This is consistent with where the car came to rest, which was a few metres further on and on the opposing carriageway.

8.  Photos of the car show damage to the left rear vision wing mirror and dents in the nearside fender are consistent with Miss Lee having been struck a glancing blow.

9.  Mr To did not give evidence or call any witness.  However during the course of the police investigation, both he and his passenger, who is his wife called Fung Yuet Ying, gave statements.  The statements and their certified English translations were produced and I now revert to these as to their accounts of what happened.

10.  Mr To was driving his own car, a Toyota, which was in good order.  He has driven for 28 years and is in fact a truck driver by occupation.  On the day in question he described the light as adequate and the road dry.  When he was on Pat Heung Road, there were no vehicles in his immediate vicinity.  The speed limit is 50 kph; he was in third gear and doing 48 kph, about 2 feet from the kerb. 

11.  He spotted a female, now known to be Miss Lee, jogging on the pavement, inside the barriers, travelling in the same direction.  Then as he approached, he saw a dog of medium size and mixed breed emerge from the mud path I have referred to, onto the pavement.  The jogger was a few steps past the entrance to the path, and the dog began chasing after her and barking at her.  By this time, Mr To was approaching the location of the girl and the dog.  Then without apparently paying any heed to the possible danger, she suddenly dashed out onto the carriageway between two barriers.  Immediately, he braked hard and swerved to the right, conduct no doubt instinctively undertaken and consistent with the skid marks and where the car ended up.  But he could not avoid a collision, and the girl was struck by the nearside front fender.

12.  Madam Fung in her statement said that as they approached the jogger she came to be aware that a barking dog, a mongrel, was running towards her.  The woman seemed to panic for she ran out at an angle into the carriageway whilst apparently completely ignoring the state of traffic.  Her husband took evasive action as he had written but could not avoid the collision.  The woman, Miss Lee, was struck by the left front of the car and the left wing mirror.  She bounced off the car and struck her head on the kerb.

13.  That was the evidence.  The dog it seems took to its heels.

The Action

14.  Miss Lee pleaded the following particulars giving rise to Mr To’s negligence:

(a)	failing to keep any or any proper lookout;
(b)	failing to see the plaintiff;
(c)	failing to heed the safety of the plaintiff;
(d)	failing to blow his horn or otherwise alert the plaintiff to his presence so that the plaintiff might take avoiding action;
(e)	failing to stop or slow down in the circumstances;
(f)	driving at an excessive speed in the circumstances;
(g)	driving too close to the nearside kerb in the circumstances;
(h)	failing to brake, steer, swerve or manoeuvre [his car] to avoid knocking down the plaintiff.

Further on, in the alternative, she pleaded res ipso loquitur.

The Case for the Plaintiff

15.  Mr Yuen for the plaintiff submitted that both Mr To and his wife, his front seat passenger, were, prior to getting to a position alongside Miss Lee, aware that she was being followed, and apparently chased, by a barking dog.  It would have been apparent that she would have needed to take evasive action.  Given the ease with which the barriers could be negotiated it behoved him to anticipate that she might run off the pavement and into his path.  He should have slowed, moved further away from the kerb and by exhibiting such care as was necessary in the particular circumstances avoided striking her.  There was a danger of a collision that he could and should have foreseen; had he done so the accident would not have happened.

The Authorities

16.  Regrettably collisions between pedestrians and motor vehicles are all too common and almost inevitably the pedestrian comes off second best.

17.  A number of authorities were presented to me by both counsel.  Most concerned pedestrians unexpectedly leaving the safety of the pavement and rushing out onto the road and into the path of a car.  Often the pedestrian is hidden from view by parked cars until he emerges between two; often the victim is a child who may have climbed out of a bus.  In these sorts of cases, the driver has more often than not no sighting of the victim until too late, so that the issue of negligence is whether or not he should have anticipated a pedestrian acting in this way.

18.  Of course whether there is negligence in these or in any given case must depend on the particular circumstances of the case, and each has its own circumstances.

19.  One test was stated thus:

“If the possibility of the danger emerging is reasonably apparent, then to take no precaution is negligence; but if the possibility of danger emerging is only a mere possibility which would never occur to the mind of a reasonable man, then there is no negligence in not having taken extraordinary precautions;”

per Lord Dunedin in Fardon v Harcourt – Rivington (1932) 146 LT 391, at page 392. 

20.  The case of James v Alger (unreported) is of assistance.  At first instance, a taxi-driver whose taxi struck and killed one of two boys who darted out in front of him was found liable in negligence.  The boys were on a pedestrian crossing controlled by lights; the lights were against the boys and in favour of the driver.  On appeal, the finding was reversed.  Parker L.J. said near the conclusion of his judgment:

“In my judgment, it is putting a burden which is out of all bounds of reasonableness upon a motorist if it is to be said that, proceeding along this road he must so drive that if there are children on the pavement and they choose to dart out on to the pedestrian crossing, albeit that the lights are against them and in favour of the traffic, he can avoid that accident.  It would involve any driver who saw any children within possible reach of a crossing slowing down to five miles per hour, so that if at the last moment they chose to dart out he would be able to avoid them.  In my judgment the standard of reasonable care does not involve that. …. Regrettably, I come to the conclusion that there was simply no evidence upon which the learned judge could properly have held that this defendant was liable, and therefore I would allow this appeal.”

21.  In another unreported case Barlow v Entwistle, before the English Court of Appeal, Roache L.J. said, in allowing the appeal in favour of the driver, that the test was not that the driver should be the absolutely careful driver, but simply a reasonably careful driver.

22.  A Hong Kong case was put before me: Ho Hing Yuen v Lee Wai Kai, unreported, HCPI 58 of 2003.  In that case, the victim pedestrian had emerged into the carriageway from between a bus and a coach into the path of a car driven by the defendant.  The defendant was found to have been driving at below but not much below the legal limit of 50 kph.  There was not much moving vehicular traffic and not many pedestrians either.  The judge at first instance found there was no negligence.

23.  This decision was upheld on appeal albeit by a majority.  The minority view was that the driver was 20% to blame.

24.  But Rogers VP stated:

“In my view, the matter is quite simple.  I entirely agree with the judge below.  I cannot see that, given the road condition and given the time of day and the absence of other road users, the defendant was travelling other than in a careful manner. He was in third gear; he was travelling at a very reasonable speed for that sort of a road, which was a divided dual carriageway road, admittedly with buses there.  But unfortunately, if pedestrians choose to run across the road, they take, literally, their life in their own hands; worse still if they do so without looking.”

My Determination

25.  In this case the victim was chased by a dog and this perforce caused her to run from the safety of a pavement through barriers blindly into the path of a vehicle.  There is no evidence to dispute the driver’s account that he was keeping a proper lookout, that he was driving below the speed limit and the conditions, visibility and so on were favourable.

26.  This was not a line of parked cars situation to alert him to prospective unforeseen hazards, such as a child suddenly darting out into his view and into his path.  A jogger on the pavement is certainly not a rare occurrence; much of the population engages in this healthy pursuit.  But a jogger being apparently chased by a barking mongrel is a situation that is undoubtedly not common.

27.  Did that make a difference?  Would a prudent driver, in Mr To’s position, given the split second nature of these things, have been expected immediately to anticipate the risk of Miss Lee running out into the carriageway in order to evade the dog and thus begin to take preventative steps to avoid a collision?

28.  Dogs can be fierce and perhaps Miss Lee was frightened or even terrified.  She cannot say.  But I think even the so-called absolutely careful driver could not have anticipated her reaction, which was to run out into the road suddenly and without warning.  I am satisfied Mr To did all he could possibly do.  Unfortunately that was not enough to avoid the collision, but he was not negligent.

29.  I find liability not established and thus dismiss the claim.  Costs, nisi, are to the defendant.  The plaintiff’s own costs are taxed under Legal Aid Regulations.