LEUNG SING KIU AND OTHERS v. WONG SHEK KEUNG AND ANOTHER

______________

_______________

J U D G M E N T

_______________

Power, J.A. :

1. This is an appeal by the defendant WONG Shek Keung agsinst the decision of Deputy Judge Bokhary in an action which arose out of an accident in which the vehicle driven by Mr. Wong came into collision with madam CHAN Lai Wah causing injuries which led to her death. The Deputy Judge having found negligence on the part of both the deceased and the defendant Wong apportioned the blame 80% to Wong and 20% to the deceased.

2. The facts as found by the Deputy Judge are set out hereunder. The accident took place in the west-bound carriageway of Des Voeux Road West, outside Nos 256-258. This stretch of carriageway is made up of 2 lanes with the nearside lane being an unusually wide one which can, with a squeeze, accommodate two vehicles. The offside lane is shared by vehicles and trams and has tramlines running along it. (This is not as precise a description of the scene as it might be as it does not make it clear that there is no dividing line between the two lanes. There is in fact an undivided carriageway which is wide enough to accommodate three lines of traffic.) On the day in question the taxi driven by the husband of the deceased was parked stationary alongside the pavement leaving room for two lines of vehicles to negotiate the roadway to its right and there were, in fact, two lines of vehicles preceding along the roadway at the time. The deceased was crossing the road from south to north and the van driven by the defendant was travelling from east to west coming form her right. She was accompanied by her young son. She emerged from between two vehicles which were stationary in the second of the three lines of traffic and stepped into the path of the van travelling on the tramlines in the third line and was struck by it.

3. It was the evidence of the defendant and his witness that he was driving the van along at 10 m.p.h. when the deceased suddenly dashed out from in front of a lorry. It was the evidence of the husband of the deceased that the van was travelling at a much faster rate than 10 m.p.h. when his wife walked out from in front of a taxi. The trial judge accepted the evidence of the husband and was satisfied on the balance of probabilities, relying almost solely upon that evidence, that the van driver was in the circumstances negligent in that he was driving too fast for the lookout which he was keeping. He was satisfied that the "probability in all the circumstances is that the taxi did not obscure her from the view of anyone approaching as the van driver was - if that person was keeping a proper lookout for the speed at which he was travelling. As to the van's speed, I am of the view that the van driver's estimate of 10 odd m.p.h. is a gross under-estimate. The husband's impression was that the van was travelling very fast."

4. In support of his finding of excess of speed the trial judge took into account the fact that the body of the deceased had been found some 15 ft. Beyond the front wheels of the van after it had been braked to a halt.

5. The trial judge was mindful of the concession by counsel for the plaintiff that there was contributory negligence on the part of the deceased which was, it seems, clear, although he did not state it in so many words, a failure to keep a proper lookout. He was satisfied in the outcome that the appropriate apportionment of blame was that the van driver was 80% to blame while the deceased was 20% contributority negligent.

6. Miss Mok who has appeared for the appellant/defendant has urged a number of matters upon us. It is her primary contention that the trial judge was wholly wrong in his assessment of fact and that he should have found that the deceased was completely to blame for the acciedent. She submits that the trial judge wholly failed to take into account or at least failed to give proper weight to the fact that there were pedestrian crossings available proximate to the scene of the collision which the deceased neglected to use. She suggests also that he failed to give sufficient weight to the fact that the decased stepped into the path of an oncoming vehicle while both jay-walking and failing to keep a proper outlook. She submits that these actions of the deceased which created a situation of hazard happened so quickly that an oncoming driver would have had no time to react and avoid a collision. She suggests further that the trial judge failed to make a finding, which was called for in the circumstances of the case, as to the speed at which the defendant's vehicle was being driven.

7. We consider that these criticisms are unfounded. We are satisfied that the findings of fact of the trial judge were grounded in the evidence and that it was proper support thereto. We do not consider that there was any failure to make any necessary finding of fact. We must give full weight to the findings that he made when deciding whether or not his apportionment as to blame is a correct one.

8. As to the apportionment Miss Mok submits that there was, accepting the findings of the judge, much greater blameworthiness on the part of the deceased, because of her failure to keep a proper lookout and because of the fact that she stepped from between two vehicles into the path of a moving vehicle, than was apportioned to her.

9. Mr Bharwaney, who appears for the respondent plaintiff, submits that the impact occurred before the brakes took hold and that this underlines the poor quality of the lookout being kept by the defendant. He suggests that this submission is supported by the fact that the point of impact was at about the centre of the lorry indicating that the deceased had walked, and been visible while so doing, went into the path of the oncoming vehicle. He submits that the findings that the vehicle was moving too fast for the lockout which the driver was keeping was fully justified by the facts accepted by the judge. He submits further that there has been some error of law or misapprehension as to the facts and refers, in this regard, to Au Cheung v. Choi Lai-fan (1979) H.K.L.R. at p. 543 and, in particular, to the passage at p. 548 where Leonard, J. Referred to a passage from Charlesworth on Negligence which says:

"As a rule an appellate body does not interefere with the discretion exercised by the judge who tried the case. Only in the event of a substantial misjudgment of the factual basis of the apportionment by the trial judge would the Court of Appeal reassess the apportionment."

We accept that this is a correct statement of the law but consider that the law can be more pertinently stated in circumstances such as we have in the present case by saying that an appellate court is called upon to interfere where it is demonstrated that the trial judge was clearly wrong in his assessment of the weight to be given to the facts which he has found.

10. We were also referred to Baker v. Willoughby [1970] A.C. at p.467 but we are satisfied that the facts of that case are so very different from those before us that they bear no real comparison thereto.

11. The question left for our determination is whether the trial judge was clearly wrong in his apportionment of blame. He was satisfied that the defendant was driving too fast for the lookout he was keeping which is, in essence, a finding that he was failing to keep any proper lookout. He was clearly satisfied that if he had been he would have seen the defendant earlier and have been in a position to have taken more positive action than he did to avoid a collision. Indeed the defendant in his evidence agreed that if the deceased had emerged from in front of a taxi and not, as he was contending, a lorry he would have seen her earlier than he did.

12. The deceased was, however, also clearly negligent. She appears to have failed to keep any proper lookout for vehicles to her right i.e. the vehicles that would be a danger to her. Perhaps this is explained by the fact that she was concentrating upon controlling the child who was crossing the street with her. However that may be any pedestrian crossing a road from between cars which have, momentarily become stationary, places himself at great risk if he steps without looking into the path of an oncoming vehicle.

13. The trial judge was satisfied that the defendant would have had a longer time to react and take measures to prevent a collision if he had been keeping a proper lookout. While we are satisfied that he was clearly right to regard him as being negligent to a substantial degree we cannot agree that the negligence of the deceased was contributory to a minor degree only. When so saying we bear in mind the strictures of courts directed at drivers who act without proper care when controlling potentially lethal motor vehicles but are nontheless satisfied that the deceased must be held to have been contributorily negligent to the extent of 50%.

14. That being so the appeal will be allowed and the liability varied accordingly - 50% liability upon the deceased and 50% upon the defendant.