CHAN HWAI YAN v. CHENG YIP CHI

HCPI 510/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 510 OF 2000

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J U D G M E N T

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1. At about 1 p.m. on the 17 April 1995, now over 5 1/2 years ago, members of the Chan family, father, mother and two of their daughters, left their home in Che Ha Village, intending to travel to Shatin. They walked down the track from the village to the Sai Sha Road where they were to catch a bus.

2. Mr Chan Wing Fat, as was apparently his idiosyncratic habit, was walking some distance ahead of his wife and daughters, varying, according to his wife between 10 and 20 feet. This factor was to have tragic, almost fatal consequences for the youngest daughter, Chan Hwai Yan, the Plaintiff in this action.

3. The family reached the main road and continued along the pavement in the direction of Sai Kung. The bus-stop for Shatin was on the opposite side of the road so, at some stage, all would have to cross the main road. The mother, Mrs Naziran Bi Bi, was in the middle of her two daughters. The pavement, at 4'9" wide, was just wide enough to permit this. They had their backs to any Sai Kung bound traffic.

4. The father was seen to cross the road towards the bus-stop; his wife said he took a diagonal or oblique course. According to her evidence he had not completed the crossing of the main road when he signalled and said words to the effect that they should cross.

5. In her police statement, made about one month later, her description suggests that he had completed the crossing before he said or signalled anything. Her proof of evidence for the purposes of this action, is consistent on this point. Her husband's police statement and his proof of evidence are equally consistent. I find that he had completed the crossing of the road before he gave any oral indication or gesture that they also could or should cross.

6. Where had he in fact crossed the road? This is not entirely clear but some assistance is afforded by the mother's marking on a plan (Exhibit P.2) of the point reached by her and her daughters when he started to cross the road some 10 to 20 feet ahead of them. This puts them roughly opposite the beginning (or rather the end) of the bus-stop bay on the opposite side of the road. It is impossible to expect any witness to talk with accuracy in terms of feet, seconds, distance or time some five years after the event. It is difficult enough to estimate time and distance immediately after such a traumatic event let alone years later. There is inevitably a degree of reconstruction. It is quite unreasonable to expect any such witness to speak reliably in terms of distance, time, and speed and equally unreasonable to take them to task on variations or inability to be precise. The best picture is perhaps that afforded by the father's police statement. He may well have crossed at a point opposite the end of the bus-stop bay and walked up to the bus-stop itself. In the meantime his family had walked on to a position opposite some part of that bus-stop bay.

7. The content of what he shouted across to his wife and daughters is not in doubt. His wife said to the police that he signalled by hand and shouted "You may cross." In her proof of evidence she said that he told them that the road was clear and that they could cross the road. Her evidence was along similar lines. He said to the Police - "seeing that there was no vehicle on both sides of the location I gestured and called out "You may cross". In his proof of evidence he said - "I saw that there were no vehicles on the two lanes of the road and it would be safe to cross the road. I shouted "can cross"". He was wrong. It was not safe.

8. The reaction of the youngest daughter is described by both parents in their police statements. The Plaintiff herself, as a consequence of her severe injuries understandably has no memory of events. The mother said her daughter, on hearing what her father said, went past her from her left hand side hurriedly and went towards her father. There was some uncertainty about the translation which contained the word "ran". There may therefore be some doubt as to what the mother actually meant. In her proof of evidence the mother said her daughter walked normally and did not run. This was also the effect of her testimony. The father in his police statement used words similar to, if not identical to those of his wife so the same uncertainty of translation exists. In his proof of evidence he conveys the impression that he did not see his daughter's movements at all.

9. In her evidence in this trial, the mother said that she looked to her right on two occasions and saw no traffic coming. Her daughter had reached the middle of the road when she was struck by a maroon coloured car. Neither in her police statement nor in her proof of evidence did she make any mention of such checks of the traffic. I think it unlikely that she did make such checks. She and her daughter were, I find, relying on the father's indications that they should or could cross the road. I am however satisfied that the mother has convinced herself that she did look twice. After the event the wish has become father or mother to the thought. The natural sense of parental responsibility has led to her thinking this, though I think she should reassure herself that her daughter moved so swiftly in response to the father's encouragement that there was no time for the mother to check before the Plaintiff had moved swiftly into the road. If however she had checked she had wholly failed to see the approach of the Defendant's vehicle, as indeed had her husband.

10. I now need to turn to the Defendant's evidence and the circumstances of the accident as they appear from all the evidence.

11. Madam Cheng was not an experienced motorist at the time but this does not in my view play any part in the events. She was a careful witness but above all, and most importantly, she gave me the clear impression of being a careful motorist. She was driving the Suzuki Vitara with her husband in the front passenger seat, and her two children, one only about 12 months old, with her Filipina maid in the back seats. She knew this road well enough. She was travelling, she said, at about 40 kilometres per hour. Although at some stage she referred to 40 miles per hour she was clearly confused over the use of the two measurements of speed. In her statement to the Police she refers to 40 kilometres per hour. All parties have helpfully accepted that when she talks of speed, she is in fact using the 'kilometres per hour' measurement. The speed limit on this stretch of the road is 50 k.p.h. I accept that she was driving within this limit, and at or about 40 k.p.h.

12. She was cross-examined at length on the position reached by her on this road at the time when she first saw the group of pedestrians on her nearside pavement being the Plaintiff, her mother, and her sister.

13. Although there appeared to be some confusion or misunderstanding over a mark on the plan in relation to a point referred to on photograph 8 (of Exhibit P1) she proved to be consistent in saying that she was roughly opposite lamppost 2477. This is approximately 100 metres from lamppost 2475 which features as a fixed point in this case. At 40 k.p.h. she would have covered that distance in about 8 seconds. The Plaintiff and her mother and sister were somewhere between lamppost 2476 and lamppost 2475. The distance between the two lampposts is just less than 50 metres. At a normal pace of walking for an eight year old - who would govern the pace for her companions - I doubt that she would cover much more than 20 feet in 8 to 9 secs. The Defendant's stated estimate of the group being about 40 metres ahead of her when she first saw them may well have been an error of understanding on the part of the Police Officer. They may well have been about 40 metres or more beyond the Che Ha Village track. Her mark on the photograph was, I am satisfied intended to indicate the group's approximate position when she first saw it. Because of the fore-shortening of distance in the photograph not much help can be derived from that.

14. She did not see the Plaintiff's father with the group or ahead of it. Nor did she see him cross the road. I find nothing strange in that. I am satisfied that he had crossed the road almost certainly before the rest of his family first attracted the notice of the Defendant and that there is no reason why she should have seen him do so. Nor in my view should she be expected to take note of him on the opposite side of the road. I find that he had completed the crossing whilst she was more than 100 metres away.

15. The fact that three people were walking on the nearside pavement towards Sai Kung would not alert a motorist in Madam Cheng's position to any danger or risk. If they had been standing in line at the kerb edge facing the bus-stop on the opposite side of the road that would at least have alerted her to their apparent intention and in those circumstances a sounding of horn would have been prudent. On the evidence however this was not the situation.

16. She proceeded along the road as the group of pedestrians walked on in the same direction. There was no other traffic visible in either direction. Madam Cheng's description of what happened next is that she was very close to the group when the Plaintiff ran out. She saw also what she described in her evidence as the mother's instinctive gesture as if to say "let's cross" but appearing to stop one of them. This appeared to be before the Plaintiff changed direction. There was also a gesture, or the same gesture which she interpreted as being equivalent to "let's go". At this stage she had no time to slow down. She was, she said, about two vehicles lengths away when the Plaintiff ran out. In court she estimated the difference as being from her position in the witness box to the computer. This is about one vehicle length away it having been measured today. Her vehicle was measured by the Police Officer as 3.4 metres long. All this can only have taken place in less than a second with the Defendant's vehicle travelling at about 12.2 yds per second. The length of two vehicles is 6.8 metres, which distance would have been covered in a little over half a second. Inevitably human recollection must be a matter of instant perception. There was no time for analysis or detailed mental record.

17. With the Plaintiff moving quickly from her mother's left, across the front of the mother and sister, there would most probably have been some physical reaction on their parts. The mother may well have made some gesture of surprise or even protection towards the other daughter.

18. Miss Lee contends that the Defendant, having noticed this, ought to have been able to stop in time. I do not think that is realistic. Madam Cheng said she was very close at this stage. I accept that she was too close to stop in time or take effective avoiding action. In her police statement she said the girl ran out when her vehicle was some 4 to 5 feet away. In a later statement she said that this should be 4 to 5 metres. She had altered this estimate in her second statement and may well have been confused over feet and metres particularly at the time of the taking of the statement on the day of the accident. The Police Officer may have assisted with this estimate. The more accurate estimate may well be the 4 to 5 metre one - a distance of about 1 1/2 vehicles' lengths. In my view, in practical terms, on the facts and evidence, it makes no difference. The Plaintiff moved quickly into the road when the Defendant's vehicle was almost on top of her. I accept that the Defendant pulled to her right and braked at the same time. That would be the normal human reaction. She may unconsciously have been travelling nearer to the centre of the road at this stage than she had earlier. There is a tendency for reasonable motorists to give a 'wider berth' to pedestrians even when there is no reason to anticipate any risk or hazard from them. The Defendant was a reasonable motorist and although she did not say she actually did so, I think that this is likely to have been the case considering the final position of her vehicle.

19. It is suggested that her varying estimates of distances and her confusion over miles per hour and kilometres per hour makes her an unreliable witness and that she was less aware of relevant circumstances than a reasonable motorist would or should be. I do not accept this. As I have indicated I considered her to be a reasonable motorist and a reasonable witness.

20. Before I turn to the Police evidence in the form of an agreed scale plan I must deal with the evidence of the father who is the Third Party in this action.

21. In considering his evidence I have borne in mind that, whether he acknowledges it or not, he must feel a degree of parental moral responsibility for what occurred and I must make proper allowance for this factor in assessing his reliability. He was certainly somewhat defensive and, regrettably, less than impressive. There was very little in his evidence on which I felt I could rely.

22. He accepted that he had been walking some 12 to 20 feet in advance of his family group. He crossed the road onto the pavement, saw that there was no traffic and said to his wife and children words to the effect that they may cross. He saw the Plaintiff walk in front of his wife. He then said he walked on for 4 or 5 seconds, before hearing a yell and a bang. If he saw such an instant reaction on the part of his daughter to his encouragement, I find it difficult to accept that 4 to 5 seconds elapsed before he heard those sounds. He marked his positions on the copy of the plan marked Exh. TP1.

23. His Police statement suggests that he crossed the road, carried on walking, as did his family group on the other side of the road, and walked for 20 odd feet before gesturing and calling out the encouragement to cross. There is some uncertainty about the translation of certain parts but the predominant conclusion to be drawn was that he was saying that after crossing the road, he walked on before gesturing and calling out.

24. He made some criticism of the Police Officer's part in the compilation of his statement which is most likely to have followed, in general, the question and answer format with some clarification where required. At a later stage he made a second statement in which he altered, by way of clarification, certain estimates which he had earlier given.

25. In my view his evidence as to estimates of distance, time and speed are not to be relied upon. I think what he said to the Police Officer some six weeks after the accident is a more accurate statement of his recollection. In any event the condition of his daughter as a result of the collision was causing and had caused great anxiety. I am satisfied that he was keen to deflect any criticism of himself and this is borne out by some of the questions put on his behalf. He did not see the Defendant's vehicle at any time before the collision and yet I am satisfied that it was there to be seen for some time before the collision. Either he did not properly check or, for some as yet unaccountable reason, he did not look. It is difficult to accept that a father, giving such a gesture and calling out that it was safe to cross, did not in fact check before he did so; therefore I am drawn to the conclusion that he did not check carefully enough. To judge from the shadows in the photographs this was a bright sunny day with the sun not directly overhead but somewhat to the north west (see photograph 1 of Exhibit P1). Whether that played any part in affecting his vision is unknown. What is clear beyond argument is that he called to his family that it was safe to cross when it clearly was not and that his unfortunate daughter, who at eight years of age cannot be blamed to any extent, ran into the path of the Defendant's vehicle at a time and at a point when the driver had no chance of avoiding her.

26. The scale plan of the Police Officer contains features which are entirely consistent with the Defendant's evidence. The rear nearside corner of her vehicle was measured to be 13 metres from the lamppost 2475. In relation to the road that is an angled or oblique measurement. If one projects the position of the lamppost perpendicularly into the roadway and consequently straightens the line of measurement, it is reduced to a little over 12 metres. This accords with the scale of the plan; each block (1 cm) representing 2 metres on the ground. If we add the length of the vehicle - 3.4 metres - to that distance, the total is between 15-16 metres or 4 1/2 vehicle lengths. That is the distance travelled by the front of the vehicle beyond that projected lamppost position until it came to a halt. Adopting the same exercise in relation to the bus-stop pillar (which is nearer to Sai Kung than the lamppost) the same relevant distance is 12.5 to 13 metres, or 3 1/2 to 4 vehicle lengths at the most.

27. The conventionally accepted minimum stopping distance for a vehicle travelling at 40 kph (25 mph) is a little less than 20 metres. Put another way, in relation to this particular vehicle, just under 6 vehicle lengths.

28. There is a bloodstain positioned just over the double white line on the opposite roadway, some 3.8 metres to the rear of the vehicle. This stain represents the position of the Plaintiff following the collision.

29. The mother marked an 'X' on Exhibit P2 (part of a plan which can no longer be relied on fully since the layout of the bus-bay at the time of the accident was different) where she says she was when her husband crossed the road. This shows her short of the beginning of the bus bay. At that stage he was about 20 feet ahead. She and her daughters continued to walk on. She thought he was somewhere between the beginning (or rather the end) of the bus bay and marked his position after he had crossed with an 'O' on the same exhibit. I must treat the positions marked as approximate only. It would be wholly unreasonable to regard them as precisely definitive. Nonetheless I can treat them as a good guide and looking back at the Police Officer's plan these is a certain logic in them. It means, as I find, that the mother with her daughters had reached a position probably opposite, approximately, the bus-stop post at the time of the accident. Equally logically I think that they would cross at the shortest point or distance to that stop. I find that the Plaintiff left her mother's side and went across the road, hurriedly at or near this point and came into collision with the vehicle. That vehicle travelled on for a maximum of 16 metres, and a minimum of 12 metres before coming to a halt. That is well within the convectional stopping distance in the best conditions for a vehicle travelling at 40 kph. Given the Defendant's evidence that she was 4 to 5 metres away when the Plaintiff ran out, the overall stopping distance (thinking distance plus braking distance) is still about equivalent to the conventionally accepted stopping distance for vehicles travelling at 40 kph in the best conditions. Irrespective of any such conventional accepted calculations all the indications are of a reasonable speed, prompt reaction, and a vehicle being brought to a halt as quickly as possible.

30. I am satisfied that what occurred is accurately described in the Defendant's evidence. She had in my view no chance of avoiding this accident. It matters not whether the Plaintiff had reached over halfway across that side of the carriageway or the middle of the road. Eight year olds can move quite swiftly over short distances. It was a matter of a very few paces for her. There is a dent in the middle of the front of the bonnet which I accept was caused by contact with the Plaintiff. With the likely movement of the vehicle as the Defendant tried to take avoiding action, the Plaintiff would have got beyond halfway across the Sai Kung carriageway at the time of impact and the Defendant's vehicle may well have had its offside wheels on the other carriageway at that time as a consequence of the emergency avoiding action. Beyond that it is not necessary for me to go. Although there is no evidence of any brake or skid marks from the Police plan, the Defendant said she saw some after the accident. Whether there were or not, there is no evidence of length, where they started and finished or whether they could in fact be attributed to the Defendant's vehicle. She may indeed be mistaken but I attribute no significance to their absence - sharp braking does not invariably leave marks. It depends on all the circumstances. Conversely one has to know some detail about brake marks before one can safely draw inferences from them. All the indications are that this vehicle was being driven at a reasonable speed and in a reasonable manner and came to a halt within a reasonable distance. Miss Lee has mentioned a number of matters, most of which I have already dealt with, from which she invites me to draw inferences adverse to the Defendant in respect of speed and look-out. I am unable to accept the premises of her arguments and to draw any such inferences.

31. The sole cause of this accident was the sudden, quick, attempted crossing of the road by this Plaintiff when the Defendant's vehicle was a matter of a few meters away, when there was no indication to any motorist that she was about to do so.

32. There was no negligence on the part of the Defendant. Accordingly there must be judgment for the Defendant with costs. Since the Third Party proceedings are based on a claim for contribution or indemnity in the event of the Defendant being adjudged liable to the Plaintiff, and the Defendant has succeeded on liability, the Defendant's claim against the Third Party fails and there will be judgment for the Third Party against the Defendant. As Mr Sarony concedes, the Third Party is also entitled to his costs.

33. This is a sad case exacerbated by the fact that it has taken 51/2 years for it to come to trial on liability only. That delay is not acceptable in this day and age. Memories are less reliable with the passage of time. Parties involved tend increasingly to rationalise events and circumstances. Injured persons have their expectations of compensation increased as time passes. It can be stressful for those accused of negligence, particularly where serious injuries to children are involved. Whether or not there is fault, for all sensible and reasonable motorists, knocking down a human being on a road is a traumatic event. Where it happens to a child the event is particularly poignant. Somewhere in the processing of such claims a more rigorous and expeditious policy and action is required - this obligation rests upon all advisers and all parties.