HO JAN TIM v. FONG TAK YING AND ANOTHER

Dates of Hearing : 28 – 30 September 2005

Date of Judgment : 4 January 2006

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J U D G M E N T

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1. This matter arose from a traffic accident on 13 June 2001 which occurred on a pedestrian crossing on Hoi Wong Road at its junction with Hoi Chu Road when the plaintiff, a watchman/security guard then aged 52, was knocked down by a Citybus (HV5580) driven by the 1^st defendant and owned by the 2^nd defendant on that pedestrian crossing which was controlled by traffic lights (“the Pedestrian Crossing”).

2. The trial of this matter, and therefore this judgment, relates only to the issue of liability by reason of an earlier order of the court for a split trial.

The accident site

3. Hoi Wong Road is a road with a dual carriageway, one northbound and one southbound.  There are two lanes going in each direction with a central divide separating the two carriageways.  The Pedestrian Crossing straddles all four lanes and are controlled by traffic lights both for pedestrian and for vehicular traffic.  There is a central island in the middle of the Pedestrian Crossing in between the two carriageways.

4. The accident in this case took place on the Pedestrian Crossing on the northbound carriageway of Hoi Wong Road.

5. As already stated, there are two lanes along the northbound carriageway of Hoi Wong Road.  The lane on the right side allows for vehicular traffic to either go straight after passing the traffic lights at the junction with Hoi Chu Road, or to turn right into Hoi Chu Road.  Going straight on the right lane past the traffic lights and past Hoi Chu Road will allow vehicular traffic to go up a flyover immediately ahead which will lead to the eastbound carriageway of Wong Chu Road.

6. As for the left lane of the northbound carriageway of Hoi Wong Road, it only allows for vehicular traffic to go straight after passing the traffic lights and the junction with Hoi Chu Road.  By so doing, vehicles will be headed in the direction of the westbound carriageway of Wong Chu Road.

The evidence

7. Because of the very severe head injuries suffered by the plaintiff as a result of this accident, he was not in any position to give evidence in this case and was not called as a witness.

8. The plaintiff however relies on the documentary evidence agreed between the parties and contained in the trial bundle which includes the sketch plan of the accident scene prepared by police officers as well as photographs taken of the scene by the police in their investigation into this accident.

9. The plaintiff also relies upon agreed facts agreed between the parties which were reduced into written form.

10. The plaintiff called one factual witness, Yung Ping Yuen, the driver of a KMB bus which was on the right lane of the northbound carriageway of Hoi Wong Road at the time of the accident and who had witnessed the accident when it happened.

A.      The agreed facts

11. Facts agreed between the parties were reduced into written form.  Totally there were five paragraphs of agreed facts.  Parts of the agreed facts relate to background matters and need not be repeated here for present purposes.

12. Those agreed facts relating to the actual happening of the accident are summarized as follows :

(a)	at about 6.55 a.m. on 13 June 2001, the 1st defendant drove Citybus HV5580 out from the Citybus Depot in Tuen Yee Street;
(b)	after turning into Hoi Wong Road, he was initially on the right lane of Hoi Wong Road going in the direction of the junction of Hoi Wong Road and Hoi Chu Road (i.e. northbound);
(c)	the 1st defendant had to slow down HV5580 as vehicular traffic was congested along the right lane;
(d)	the 1st defendant saw that there was no vehicle along the left lane and traffic was smooth along it and therefore steered HV5580 onto the left lane;
(e)	the 1st defendant travelled at a speed of about 40 kph along the left lane heading towards the traffic lights in front which was showing green (in his favour);
(f)	whilst on the left lane, the 1st defendant saw that vehicles on the right lane were queuing up and advancing very slowly with some of those vehicles turning right into Hoi Chu Road at the junction ahead while other vehicles went up to the flyover further in front, with a queue of vehicles on the flyover at that time also;
(g)	at that time, the 1st defendant saw two private cars one following the other; the one in front which had just gone past the traffic lights was queuing up with other vehicles to go up the flyover, while the second private car was just in front of the traffic lights;
(h)	since the 1st defendant intended to go up the flyover also, he paid attention to the traffic on his right as he intended to go past the traffic lights and then to go up the flyover following the queue of cars;
(i)	at this moment when he looked again to the lane on the right, the 1st defendant saw (the plaintiff) running between the two private cars and trying to cross the road in front of (HV5580).  At that time (the plaintiff) had already reached the left front corner of the private car which had stopped in front of the traffic lights on the right lane.

13. The plaintiff also relies on parts of the statement given by the 1^st defendant to the police, in particular Question and Answer 9 thereof, where the 1^st defendant says that about 15 metres before he reached the traffic lights, he had seen pedestrians waiting on the safety island in the middle of the road to cross the road.

B.      Evidence of Yung Ping Yuen

14. The plaintiff also called a witness, Yung Ping Yuen, a KMB bus driver who witnessed the accident.  He was a subpoenaed witness.

15. Yung adopted as his evidence in chief the contents of his witness statement made to the police in this matter.  There was a certified translation of the police statement given by Yung which he adopted as his evidence in chief.  The only matter clarified by Yung in that statement was that the plaintiff “ran” across the road when the accident happened, although the certified translation had used the word “went” instead of the word “ran”.

16. The other matter agreed by the parties relating to the certified translation of Yung’s statement to the police was that the accident happened at 7.02 a.m. while the time stated in the statement was “10.02 a.m.” was a typo in the certified translation.

17. Yung’s evidence based on that statement to the police as to how the accident happened can be summarized as follows:

18. At the material time, he drove a KMB bus out from Tuen Mun South Depot and turned left into Hoi Wong Road.  On Hoi Wong Road, he drove on the fast lane (the right lane).  He was headed in the direction of Wong Chu Road.

19. At that time there were other vehicles on the right lane and traffic was moving slowly on that lane. 

20. There was a Citybus on the slow lane (i.e. the left lane) which was about one bus’ length ahead of his KMB bus.

21. After all the vehicles in front of his KMB bus had passed the traffic lights at the junction of Hoi Wong Road and Hoi Chu Road, and as his KMB bus was moving rather slowly, he saw (the plaintiff) holding an umbrella run across the road from his (Yung’s) right side to his left side.  By that time, the Citybus had already reached the yellow cautionary crossing (i.e. the Pedestrian Crossing).  The (plaintiff) was knocked down by the front of the Citybus.  When he came up to the crossing, he saw that the man was lying face down on the pavement on the left side of the road because of the impact.

22. The driver of the Citybus got off his bus and so he (Yung) did not stop but continued and drove off.

23. Several days later when he passed the spot where the accident happened, he saw a police notice seeking for witnesses to this accident and as a result he contacted the police.

24. In answering questions posed to him at the end of his police statement, it was also the evidence of Yung that :

(a)	there were a number of pedestrians on the safety island, but it was only (the plaintiff) who ran out onto the road;
(b)	that the traffic lights had turned green for vehicular traffic at the time (the plaintiff) was knocked down;
(c)	that he did not know the driver of the Citybus involved in the accident;
(d)	that (the plaintiff) had run across the middle of the Pedestrian Crossing;
(e)	that it was drizzling at the time;
(f)	that at all times the Citybus (which was on the left lane) was ahead of his KMB bus by about one bus’ length;
(g)	that his KMB bus was travelling at about 30 kph at the time;
(h)	that at the time of the accident he had heard the sound of horn tooting.

25. The defendants did not dispute any parts of the evidence given by Yung and in fact the cross examination of Yung was limited to only several questions, most of which Yung was unable to recall.

26. The defendants did not call any witness.

Plaintiff’s case

27. There is a minimal of factual dispute between the parties.

28. On the evidence presented to the court, the plaintiff’s case was put on the footing that the 1^st defendant had failed to keep a proper lookout of the plaintiff and/or that he was going too fast in the circumstances.  Either way, the 1^st defendant was negligent in his driving thus causing this accident.

The defence

29. On the facts as presented, the 1^st defendant submits that he was not negligent in any way but that it was the plaintiff who ran across the Pedestrian Crossing against the traffic lights for pedestrian and which was the major cause of this accident.

30. It was further submitted by the plaintiff that even if the 1^st defendant had been driving at a much slower speed than the speed at which he was driving, he would still not have been able to avoid hitting the plaintiff because the plaintiff chose to run across the road against the traffic lights and giving the 1^st defendant no chance to avoid hitting the plaintiff, therefore his speed was not the cause of the accident.

Finding of Fact

31. As already stated, there is very little dispute between the parties as to the facts in this matter.

32. However, the dispute there is between the parties is essentially the different inferences which I should make from those facts adduced in evidence.

33. There is one minor but somewhat significant matter which relates to fact finding.

34. Essentially, the agreed facts are generally consistent with the rest of the evidence, in particular the evidence of Yung.  However, there is one aspect of the agreed facts and Yung’s evidence which is not wholly consistent with each other.  In the agreed facts agreed between the parties, it was stated that the plaintiff ran across the Pedestrian Crossing in between the two private cars (one had just passed the traffic lights while the other was just in front of the traffic lights) on the right lane.  On the other hand, the evidence of Yung was that all the vehicles in front of his KMB bus had already gone past the traffic lights when the plaintiff ran out from the safety island across the Pedestrian Crossing.  This seems to suggest that there was no other vehicle between the plaintiff and his KMB bus when the plaintiff ran across the Pedestrian Crossing.

35. Since the agreed facts are facts agreed between the parties, I am bound by those facts and on this aspect of the case I must accept the agreed facts as true and reject that part of Yung’s evidence.

36. I should also add that apart from this one aspect of Yung’s evidence which I have rejected only because it was contradicted by the agreed facts, I have no difficulty accepting the rest of his evidence.

37. I therefore make the following findings of fact in this matter :

(1)	at the material time, Citybus HV5580 driven by the 1st defendant was travelling on the left lane of Hoi Wong Road northbound carriageway headed in the direction of Wong Chu Road;
(2)	the plaintiff was one of a number of pedestrians on the safety island at the junction of Hoi Wong Road and Hoi Chu Road, waiting to cross the northbound carriageway of Hoi Wong Road at the Pedestrian Crossing;
(3)	the 1st defendant, some 15 metres before he reached the traffic lights, had seen the pedestrians on the safety island waiting to cross Hoi Wong Road;
(4)	it was drizzling at the time and the plaintiff had an umbrella opened because of the drizzle;
(5)	at that time the traffic lights were green in favour of vehicular traffic on the northbound carriageway of Hoi Wong Road and red against the pedestrians waiting to cross on that safety island;
(6)	vehicular traffic on the right lane of the northbound; carriageway of Hoi Wong Road was moving slowly, some turning right into Hoi Chu Road and others queuing up to go up the flyover just beyond those traffic lights controlling the junction and the Pedestrian Crossing;
(7)	the plaintiff alone ran out from the safety island in the middle part of the Pedestrian Crossing and in between two private cars, (one having just passed the traffic lights and the other just in front of the traffic lights) against the red traffic lights controlling pedestrians;
(8)	the plaintiff successfully crossed the right lane of the northbound carriageway of Hoi Wong Road but as he continued in his attempt to run cross the left lane, he was knocked down by the front of HV5580 on the left lane;
(9)	HV5580 was travelling at about 40 kph when it collided with the plaintiff, the 1st defendant did not see the plaintiff until the plaintiff reached the front left corner of the private car which had stopped in front of the traffic lights on the right lane, by which time the front of HV5580 had already reached the Pedestrian Crossing;
(10)	the sketch plan prepared by the police shows the resting position of HV5580 after the accident to be with its rear just 1.4 metres over the white stopping line for cars in front of the traffic lights but the rear of HV5580 had not yet passed any part of the Pedestrian Crossing.

Decision on Liability

38. As to the first point submitted by the plaintiff, that the 1^st defendant had failed to keep a proper lookout, that submission was premised upon the basis of Yung’s evidence, that the two private cars had gone past the traffic lights.  However, this could only be a false premise in the light of the agreed facts and my findings based on those agreed facts.

39. On the facts as I have found them, as agreed between the parties, the plaintiff crossed in between the two private cars.

40. Whilst it may be true from the agreed facts that the 1^st defendant had seen pedestrians waiting on the safety island when he was still some 15 metres away from the traffic lights, it must also be noted that traffic was congested on the right lane where the vehicles were slow moving.  In those circumstances, there was every reason to think that the 1^st defendant would not have a clear unobstructed view of the safety island at all times between when he saw the pedestrians waiting on the safety island and the time when he first saw the plaintiff running across the Pedestrian Crossing.

41. There is no evidence that in between those times, there was anything which would have put the 1^st defendant on notice that one of those pedestrians on the safety island would run out onto the Pedestrian Crossing against the lights for pedestrian.

42. In any event, it is not disputed that the 1^st defendant was intending to manoeuvre his bus from the left lane back onto the right lane and to join the queue going up the flyover ahead after passing the traffic lights.  That being the case, I would have thought that his attention would be generally to the traffic on his right hand side, the side from where the plaintiff ran across the road.  Again this would suggest that there was no momentary lapse of attention by him as to what was happening on his right side.

43. It was further suggested that the 1^st defendant’s attention was on the traffic on the right lane so he could cut back into the right lane to join the queue going up the flyover, the implication being that he did not keep a proper lookout in respect of the pedestrians on the safety island and therefore did not see the plaintiff earlier than he did.

44. The short answer to that is twofolds.  Firstly a driver has to pay attention to many aspects of traffic conditions, pedestrians being just one aspect.  Secondly, the 1^st defendant is under a duty to act as a reasonable driver would.  He is certainly not under any specific duty to guard against or to expect an adult pedestrian to run across a controlled crossing against the lights for pedestrian particularly when he is given no chance to avoid such a collision.

45. For these reasons, I do not accept that the 1^st defendant had failed to keep a proper lookout in all the circumstances of this case.

46. The second point submitted by the plaintiff is that the 1^st defendant was driving too fast in the circumstances.

47. The speed limit on that part of Hoi Wong Road was 50 kph.  Going at about 40 kph, the 1^st defendant was well within the speed limit on that road.

48. In the absence of any prior indication that it would be unsafe for the 1^st defendant to be driving HV5580 at about 40 kph on the left lane which was relatively free of cars, I can see no reason why the speed of 40 kph was an unsafe speed for the 1^st defendant to be travelling at.  As far as I can see, the only unsafe condition in this case was created by the action of the plaintiff in deciding to run across the Pedestrian Crossing against the lights for pedestrian, and in the circumstances, no prior warning of it could have been made known to the 1^st defendant, until too late unfortunately.

49. I have also been greatly assisted by plans giving the dimensions of the road markings of the accident site.  One such plan shows the yellow transverse bars of the Pedestrian Crossing to be of 3.3 metres in width.  That being the case, on the facts as I have found them, namely, that when the 1^st defendant first saw the plaintiff emerge running out from between the two private cars crossing in the middle of the Pedestrian Crossing, his Citybus HV5580 had already reached the Pedestrian Crossing.  That would mean that the 1^st defendant was only 1.65 metres (half the width of the Pedestrian Crossing) away from the plaintiff.

50. In those circumstances, even if the 1^st defendant had been driving at half the speed he was, say about 20 kph, he would still not have been able to avoid hitting the plaintiff since the thinking distance for a driver driving a vehicle at 20 kph would be some 5 metres.

51. I therefore further accept the submission by counsel for the defendants that the cause of this accident was not due to the speed of HV5580 but rather due to the folly of the plaintiff in running across the Pedestrian Crossing against the lights for pedestrian.

52. I therefore do not find that the 1^st defendant was driving too fast in all the circumstances of this case, nor was his speed the cause of this accident.

53. For the reasons given above, I conclude that the 1^st defendant was not negligent to the plaintiff in respect of this accident.

54. Accordingly, on the issue of liability, the plaintiff’s claim is dismissed with costs (the costs order being an order nisi).  The plaintiff’s own costs to be taxed in accordance with Legal Aid Regulations.