TSAO CHING v. LAU YU KWAN AND ANOTHER

HCPI 324/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 324 OF 2005

----------------------------

------------------------

 ------------------------------------------------------

REASONS  FOR  JUDGMENT

-------------------------------------------------------

Introduction

1. Since 1904 Hong Kong Tramways have been serving the inhabitants in the Hong Kong Island.  These trams have often been referred to as “Ding Ding” by the locals from the distinctive sound of its warning bell.  Recently they also added the horn as an additional warning to pedestrians. 

2. However, the tram is special and different in many ways.  In terms of road safety, since trams travel on metal rails by metal wheels, they cannot swerve off the rails to avoid collision with other road users.  They also cannot come to a halt immediately when the brakes are applied.  This is why in addition to the air brake (風掣), the tram also has the sand brake (沙掣) which, when being applied, will emit sand onto the track to increase friction between the wheels and rails so that the tram can be stopped as quickly as possible.

3. In this case, a collision happened between a tram and a pedestrian.  Parties agreed that this court should only decide the issue of liability first.

The accident

4. The plaintiff was a pedestrian who was knocked down by a tram driven by the 1^st defendant.  The 2^nd defendant was the employer of the 1st defendant at the material times.

5. After the hearing on 11^th December 2006, I dismissed the plaintiff’s claim on the same day.  I shall now give my written reasons for my judgment.

The Plaintiff’s case

6. The plaintiff himself gave evidence.  He did not call any other witness.  He was born in Xiamen in 1961 and came to reside in Hong Kong in 1990.  In 2002, he was working as an accounting clerk in a company in Hong Kong.

7. On 15^th April 2002 (which was a Monday) at about 14:35, the plaintiff arrived at Des Voeux Road Central, intending to go to the tram stop westbound in front of the Hongkong and Shanghai Banking Corporation Headquarters to take a tram to Eastern Street in Sai Ying Pun.  When he arrived at the pavement at Des Voeux Road Central in front of the traffic light at the south-east corner of Prince’s Building, he found that the traffic light for pedestrians was in red.  Therefore, he stood there and waited for about 30 seconds until the light turned green.  During the time of waiting, he did not look at his right because he kept paying attention to the traffic light and whether there was tram travelling westbound.  He said there were two or three other pedestrians waiting with him in front of the traffic light.  All of them were on his right.  He also said that during the period he was waiting, no pedestrian joined him to wait to cross the road although there were some pedestrians passing by.

8. When the light turned green, he crossed Des Voeux Road Central and arrived at the safety island in the middle of the crossing.  He crossed the road earlier than the other two or three pedestrians who had waited with him in front of the light because they were smoking.

9. When he arrived at the safety island, he stood at the most right side.  He paid attention to the traffic light only.  He saw that the light was still in green and not twinkling and therefore he intended to step out onto the road.  At that time, there was only he himself who stepped out onto the road because the other two or three pedestrians were slower than him.

10. He said that, at the safety island, he did not pay attention to both his left and right sides of the road condition.  However, he also said that he noticed that there was a tram travelling westbound approaching the tram station far away from his left (i.e. outside the old China Bank Building) and he would like to take that tram.  Later, in re-examination, he explained that he would like to take any tram travelling westbound.

11. He said at all the material times, he did not hear any horn sound, or “ding ding” sound.

12. As soon as he stepped out onto the road, a tram driven by the 1^st defendant hit him from his right hand side.  As a result, he blacked out immediately and lost consciousness.  Later on, he regained consciousness and found out that he was lying on the road.  Then he climbed up slowly, leaning against on the railing at the roadside waiting for rescue.

13. The plaintiff claims against the 1^st defendant for negligence.  He also claims against the 2^nd defendant being the employer of the 1^st defendant and the owner of the tram for vicarious liability for the wrongful acts and omissions of the 1^st defendant.

The Defendants’ case

14. The only witness the defendants called was the 1^st defendant himself.  He said that on the day of accident, he drove the tram along the eastbound tram-only lane on Des Voeux Road Central at a speed number 8 on the tram dial (i.e. at a speed of about 25-26 km/h) heading towards Shau Kei Wan.  When the tram reached somewhere before the HSBC Headquarters, about 20 meters away from the pedestrian crossing where the accident happened, he noticed that the T-light controlling the tram traffic of his direction was in yellow (meaning he could drive ahead).  He also saw at the same time that the light for vehicles of his direction was also in green (i.e. for traffic on his left motor vehicle lane).  He saw that there were respectively about ten and several pedestrians on his left and right safety islands, waiting to cross the road.

15. At that time (i.e. when the tram was about 20 meters away from the pedestrian crossing where the accident happened), he reduced the speed of the tram to number 5 (i.e. about 16-17 km/h).  He also sounded the horn of the tram.  He explained that this was because he had been taught and directed by the tram company that some pedestrians might unexpectedly dash onto the road, and therefore in order to avoid accident, while approaching every pedestrian crossing, he would reduce the speed and at the same time sound horn to alert the pedestrians that a tram was approaching.

16. When the tram was about one meter away from the traffic light, he noticed that the traffic light governing the traffic of trams and other vehicles of his direction still showed yellow T-light and green light respectively, so he drove ahead constantly with the speed at number 5.

17. While driving past the pedestrian crossing, he could not notice the plaintiff although he paid attention to not only the traffic condition on the tram track ahead but also the pedestrians on his left safety island.

18. When the front part of the tram was just about two feet to pass over the pedestrian crossing, the plaintiff suddenly dashed out from his left safety island.  At that time, the plaintiff was facing the westbound tram stop (i.e. the 1^st defendant’s front right).  At that time, the distance between the front of the tram and the plaintiff was about two feet at most.  He immediately applied the air brake and sand brake and sounded the horn.  Despite all these were done, the tram still hit the plaintiff.  The tram, after hitting the plaintiff, kept sliding for about two tram-lengths before coming to a halt.  The 1^st defendant explained that such distance was normal and necessary for a tram proceeding at 16-17 km/h before it was braked.  He said trams were different from other motor vehicles because the wheels of trams were made of iron and they were travelling on iron rails.

19. As a result of the collision, the left front part of the tram was dented as shown in photograph No. 5 [p. 187].  While being suggested during cross-examination that the degree of dent showed that there was a great impact, the 1^st defendant disagreed and said even a collision with a plastic traffic “ice-cream cone” could cause that degree of dent.

20. The defendants do not deny the accident but say that the accident was solely caused or alternatively contributed to by the negligence of the plaintiff.

My Findings

On the Plaintiff’s evidence

21. In the police statement of the plaintiff taken on 12^th May 2002 [pp. 131-134], the plaintiff said that when he arrived at the edge of the northern pavement, he saw the traffic light being green and therefore he immediately walked across the road (i.e. without stopping), and that he did not know how long that green man signal had been on.  At that time, there were 2 or 3 people walking across the road at the same time with him.  After he arrived at the safety island, his standing position was nearer to his left hand side.  He stood still inside the safety island for 2 to 3 seconds.  He noticed that the traffic light for pedestrians remained the green man signal and it had not yet blinked.  Therefore he began to cross the road without looking to his left and right to check the traffic condition.  But after he had walked out towards the track for one or two paces, suddenly he did not know what happened.

22. In the examination-in-chief, the plaintiff adopted his two witness statements dated 12^th May 2006 and 30^th November 2006 prepared for these proceedings.  In his witness statements, he said he was on the pavement at Des Voeux Road Central in front of the traffic light waiting to cross the road to the tram stop.  At that time he saw the traffic light for pedestrians was the green man signal and he therefore crossed the road to the safety island together with 2 or 3 pedestrians.  Then, he was standing still on the safety island in front of the tram track.  He noticed that the colour of the traffic light for pedestrians remained unchanged and it was not twinkling.  Therefore he thought it was safe and he began to cross the road again.  Among those 2 or 3 pedestrians walking together with him, he was on the most right side.  As soon as he stepped out onto the road, the accident happened [para 6 p. 46, para 4 pp. 60-61].

23. During cross-examination, the plaintiff said that he stopped to wait for about 30 seconds for the traffic light to turn green when he first arrived at the pedestrian crossing at Des Voeux Road Central.  This is inconsistent with the police statement and witness statements.

24. The plaintiff also said that the other 2 or 3 pedestrians were not crossing the road together with him.  They were slower than him because they were smoking.  At the time of the accident, there was only he at the safety island and he was crossing the road to the tram stop on the other side alone.  This is inconsistent with the police statement and witness statements.

25. The plaintiff further said in cross-examination that he did not stand still on the safety island.  He said since the traffic light was in green, there was no reason for him to stop for 2 or 3 seconds.  This is again inconsistent with the police statement and witness statements.

26. When the inconsistencies between his evidence at Court and in the police statement were pointed out to the plaintiff by Mr Charles Wong, counsel for the defendants, the plaintiff, after pausing for more than half a minute looking at his own police statement, explained that he did not tell the police officer about that.  He said that the police officer misunderstood him and further said that he was feeling headache in the hospital when the statement was taken.  A while later, when being asked whether he told the police officer the inaccuracy of the contents of his statement, he said he did but the police officer said he could amend the police statement later.  Obviously, he did not request to amend his police statement after 12^th May 2002.

27. I do not accept his explanation.  I see no reason why the police officer would misunderstand the plaintiff to the extent that the police statement even stated specifically that the plaintiff did not know how long the green signal had been on before he arrived at the pedestrian crossing.  I also do not believe that the plaintiff, being a graduate of Xiamen University with a degree of Bachelor of Commerce, would allow such inaccurate account of the event to be included in the police statement without any amendment at the time of taking the statement.  If he believed that the amendments could be made later (as allegedly advised by the police officer), he could not explain why the amendments could not be made immediately.

28. When being asked in Court why he still gave those inaccurate instructions to his solicitors when his solicitors prepared his witness statements, he said he did tell his solicitors that those in the police statement were inaccurate.  However, since those were said in the police statement and therefore he made a consistent version in his witness statements.

29. This explanation, in my view, does not make sense.  What the plaintiff suggested was actually that his solicitors, even having known that the contents of the witness statements were untrue, still asked the plaintiff to put his signature on the witness statements.  I find this totally inconceivable.

30. In addition to the above inconsistencies, the evidence given by the plaintiff was also unrealistic and inconceivable.

31. The accident happened in the heart of Central on a working day at 14:35.  The plaintiff said that during the 30 seconds of waiting, he was not joined by anyone and there was only 2 or 3 pedestrians waiting together with him.

32. Be that as it may, the plaintiff said the 2 or 3 pedestrians did not cross the road when the traffic light turned green because they were smoking.  This is rather unusual that they had been waiting for at least half a minute but yet did not cross the road when the light turned green.  Further, the plaintiff did not tell us why the 2 or 3 pedestrians could not cross the road when they were smoking.  Furthermore, how could he know what they were doing on his right when he said he did not look to his right at all?

33. I accept Mr Wong’s submissions that the reason why the plaintiff changed the version of evidence was that if otherwise he would need to explain (which was nearly impossible) why only he himself was being hit by the tram when, according to him, the traffic light was in green and there were 2 or 3 pedestrians crossing the road with him.  Also, if otherwise, he would need to explain why he stopped and stood still for 2 or 3 seconds at the safety island when all along the traffic light was in green, which is contrary to common sense.  This is also no explanation why he did not look to his right even though the pedestrian light was in green.

34. On a balance of probabilities, I find the plaintiff’s evidence incredible.

On the Defendants’ evidence

35. Mr Andy Hung, counsel for the plaintiff, cross-examined the 1^st defendant.  He pointed to the 1^st defendant that the 1^st defendant’s evidence that he was travelling at 16-17 km/h was inconsistent with his police statement dated 25^th April 2002 (i.e. 10 days after the accident) where he said he was travelling at about 20 km/h [p. 123].  The 1^st defendant said that his evidence in Court was accurate.  He said at the material time, he was travelling at number 5 and that was about 16-17 km/h.  But within number 5, the tram could accelerate up to 20 km/h.

36. I do not consider this would affect the 1^st defendant’s credibility.  In his police statement, the 1^st defendant also stated he was travelling at number 5.  To that extent, this is all along consistent.

37. Mr Hung further pointed to the 1^st defendant a statement made by PC 54330 dated 17^th April 2001 [pp. 107-110].  In this statement, PC 54330 recorded what the 1^st defendant told him just after the accident.  It was recorded that the 1^st defendant saw the plaintiff dashed out from the safety island to cross Des Voeux Road Central.  At that time, the driver repeatedly horned.  However, the plaintiff still disregarded the tram and the warning horn and dashed out.

38. Mr Hung said that the part that the 1^st defendant repeatedly horned and the plaintiff still disregarded and dashed out is inconsistent with the 1^st defendant’s evidence at Court that he only sounded the horn (but not repeatedly) to warn all those pedestrians at the safety island but not specifically the plaintiff.  In Court, the 1^st defendant explained that he had used the horn twice: once when the tram was approaching the pedestrian crossing and then when he applied the brakes upon seeing a person dashing out.  This is what he meant by having used the horn repeatedly.

39. However, in my view, this apparent inconsistency, unlike those in respect of the plaintiff, is understandable.  The statement was made, according to the police report, immediately after the accident at the scene.  There might be communication problems between the 1^st defendant and the police officer in respect of how the 1^st defendant sounded the horn at the material time.  The inconsistency, to me, is not as serious as the aforesaid inconsistencies in respect of the plaintiff.

40. In respect of other evidence of the 1^st defendant, they were not or not successfully challenged.  Having heard the evidence of the 1^st defendant, I find him to be a credible and reliable witness.

The case as found

41. When there are conflicts between the versions of facts put forward by the plaintiff and the defendants, I accept the defendants’ and reject the plaintiff’s.

42. In respect of the speed of the tram prior to the accident, Mr Hung drew my attention to the facts that the tram, after hitting the plaintiff, kept sliding for about two tram-lengths before coming to a halt and that the tram was dented after the accident (and dented seriously in his submissions).  He submitted that these two pieces of evidence showed that the speed of the tram prior to the accident was more than 20 km/h.

43. However, the plaintiff does not have any evidence to suggest what speed of the tram prior to the accident could lead to such length of sliding and such degree of dent.

44. In the absence of evidence from the plaintiff, and having considered the 1^st defendant’s evidence that trams take more time to stop than motor vehicles because metal wheels and rails are used, I do not find that the speed of the tram was more than 20 km/h prior to the accident.

45. In respect of the point of impact, I am satisfied that the very left front of the tram hit the right body of the plaintiff.  The impact was very close to the left safety island.  This is consistent both with the plaintiff’s evidence that he was hit as soon as he stepped out to the tram track, and the 1^st defendant’s evidence that the plaintiff suddenly dashed out when the front of the tram was just about 2 feet before the pedestrian crossing.  The photographs produced to the court also confirmed the aforesaid situation.

46. Having considered all evidence, I find that at the time the accident happened, the traffic light was yellow T in the 1^st defendant’s favour.  When approaching the pedestrian crossing in question, the 1^st defendant saw that there were ten and several pedestrians on the left and right sides of the safety island respectively.  He then sounded horn to alert the pedestrians that the tram was approaching.  At that same time, the 1^st defendant reduced his speed to number 5 at 16-17 km/h.  When the front part of the tram was just about two feet to pass over the pedestrian crossing, the plaintiff suddenly dashed out from his left safety island.  At that time, having seen the plaintiff suddenly dashed out, the 1^st defendant immediately applied the air brake and sand brake and sounded horn.  However, the tram still hit the plaintiff.

Liability of the 1^st Defendant

47. The plaintiff pleaded in his Statement of Claim the following particulars of negligence of the 1^st defendant (p. 22): -

(a)      failing to stop the tram despite the traffic light was not in his favour;

(b)     failing to heed the plaintiff’s presence at the said pedestrian crossing and/or central reservation;

(c)     failing to keep a proper lookout;

(d)     failing to stop or control the tram so as to avoid colliding with the plaintiff;

(e)      failing to apply the brakes in time or at all;

(f)      driving too fast in the circumstances; and

(g)     failing to drive with due care and attention.

48. As the case now found as aforesaid, in particular, the traffic light was the yellow T in the 1^st defendant’s favour and red against the pedestrian, the 1^st defendant did pay heed to the presence of the pedestrians before the accident happened, he drove at 16-17 km/h prior to the accident, he applied brake immediately when he saw the plaintiff dashing out, particulars (a), (b), (c) and (e) are bound to fail.

49. Particulars (d), (f) and (g) are inter-related.  The question I need to consider is whether the speed of 16-17 km/h was too fast in the circumstances.  The day of accident was a Monday which was a working day.  The time was 14:35 which was just after the lunch time.  The location was near the HSBC Headquarters, the heart of Central.  I find that the speed of 16-17 km/h is appropriate and reasonable.  This speed already reflects the due reasonable care and attention of the 1^st defendant.  The sounding of the horn when approaching the crossing together with the slow speed of 16-17 km/h were already reasonable and sufficient measures taken by the 1^st defendant for the fact that some pedestrians such as the plaintiff may suddenly dash out from the pavement.

50. However, the 1^st defendant dashed out when the front part of the tram was just about two feet to pass over the pedestrian crossing.  I do not consider that any prudent and reasonable tram driver could avoid collision with the plaintiff in the circumstances unless the tram was travelling extremely and unrealistically slow – which is unreasonable in the circumstances.

51. I consider that the plaintiff also failed to prove particulars (d), (f) and (g).

52. The plaintiff having failed to prove negligence on the part of the 1^st defendant, the 1^st defendant is not liable to pay any damages to the plaintiff.

53. Counsel have referred me to some authorities in respect of contributory negligence.  Since I have concluded that the 1^st defendant is not liable, as the plaintiff is wholly responsible for the accident, it is not necessary for me to consider the issue of contributory negligence on the part of the plaintiff.

Liability of the 2^nd Defendant

54. Since the 1^st defendant is not liable, the 2^nd defendant is not liable too.

Conclusion

55. I consider on a balance of probabilities that the accident was caused solely by the plaintiff himself.  He dashed out the crossing from the safety island when the pedestrian light was red against him.  He wanted to board on the westbound tram on the other side.  Admittedly he did not check the traffic on his right and therefore he did not know a tram was approaching and it was really very near.  He was hit by the tram at the moment he stepped onto the tram track.  In the circumstances, there is no liability on the part of the tram driver, the 1^st defendant.

56. Accordingly, for the aforesaid reasons, I have dismissed the plaintiff’s claim with costs to the defendants.  I have further ordered that the plaintiff’s own costs be taxed in accordance with the Legal Aid Regulations.