CHENG WAI CHUEN AND ANOTHER v. TSANG KWAI YAN AND ANOTHER

HCPI 1409/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1409 OF 2003

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J U D G M E N T

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1. At about 1 pm on 16 July 2002, So Chun Chung ("the deceased") was crossing the stretch of Castle Peak Road (Lingnan Section) from the side of the Fu Tai Shopping Mall Complex to the opposite side of the road at a traffic lights controlled pedestrian crossing with his wife Cheng Wai Chuen (“Cheng”) when he was knocked down by a private car registration no. HD 3821 ("the car") driven by the 2^nd defendant.  As a result of the collision the deceased suffered severe personal injuries.  He later died on 4 March 2004 from his injuries.

2. The plaintiffs are the administrators of the estate of the deceased.  This action has been brought on behalf and for the benefit of the deceased's dependants under the Fatal Accidents Ordinance (Cap. 22) and on behalf of the deceased's estate under the Law Amendment and Reform (Consolidation) Ordinance (Cap. 23).

3. A consent order was made by Master B Kwan on 8 April 2005 that the issue of liability be tried separately from the issue of damages.

4. This is the trial of the issue of liability.

5. I heard evidence from Cheng and the 2^nd defendant.  There was also the hearsay evidence of Ms Wong Nga Ting ("Wong") and Ms Liu Pui Fan ("Liu") contained in their statements to the police.

6. The undisputed facts are that the deceased was a mini-bus driver by occupation who was off duty on 16 July 2002.  At about 1 pm on that day the deceased and Cheng were on their way to Yuen Long to join friends for tea.  They wanted to travel there by mini-bus going in the direction of Yuen Long.  Because of this, they wanted to cross the stretch of Castle Peak Road (Lingnan Section) at the traffic lights controlled pedestrian crossing ("the crossing") from the side of the Fu Tai Shopping Mall Complex to the other side of the road so that they could catch a mini-bus to take them in the direction of Yuen Long.  As the photographs and the agreed police sketch show, there is a safety island about halfway across the road for pedestrians to stand while crossing the road there.

7. At the time it was raining heavily and it was also very windy.  The thunderstorm warning had been issued at 11.50 am on that day and was in force until 5 pm.  The deceased and Cheng each carried an umbrella on that day.  

8. While crossing past the safety island on the crossing, the deceased was knocked down by the car driven by the 2nd defendant.  The 2nd defendant eventually stopped the car a short distance away from the crossing.  The agreed police sketch shows that the distance between the rear of the car and the edge of the crossing was 2.8 m.

9. The stretch of Castle Peak Road (Lingnan Section) where the accident took place is a dual carriageway with two lanes for road traffic in each direction.  As the photographs taken by the police shortly after the accident show, a central iron railing with a plantar bed and vegetation in the form of short trees and shrubs divided the carriageway.  The crossing was directly opposite the Fu Tai Shopping Mall Complex. 

10. At the time there was also a mini-bus("the mini-bus") waiting just in front of the traffic lights in the inner lane on the side of the carriageway heading in the direction of Yuen Long.

11. The above facts are undisputed. 

The issues

12. The issues are:

(a)	whether the traffic lights were in favour of the deceased or against the deceased when he crossed the road along the crossing;
(b)	when colliding with the deceased, whether the 2nd defendant was negligent;
(c)	if so, whether there was contributory negligence on the part of the deceased;
(d)	if there is liability on the part of the 2nd defendant, whether the 1st defendant is vicariously liable.

Were the traffic lights in favour of or against the deceased?

13. There is a dispute of fact between the parties on this issue.

14. Cheng gave evidence that when she and the deceased crossed at the crossing the green man lights were on giving pedestrians the right of way.  This would mean that, on her evidence, the lights were red for drivers, like the 2^nd defendant, approaching the crossing.

15. Cheng also said that she and the deceased waited by the side of the road on the pavement to wait for the lights to change from red to green and when they had changed to the green man, the deceased walked ahead along the crossing in front of her.  It was raining and windy at the time and they each had an umbrella.  She said that they did not wait for the lights to change under the covered shelter of the Fu Tai Shopping Mall Complex but instead waitedfor a short while by the side of the pavement.  She was adamant that only when the lights changed to the green man she and the deceased crossed the road along the crossing with the deceased walking ahead of her.  She denied that they ran across the crossing.

16. Cheng did not actually see the deceased being struck down by the car.  She heard a bang when she took a step from the safety island at the crossing.  She also said that the pedestrian lights were still green when she was standing at the safety island and decided to continue crossing the road.

17. Cheng also said in evidence that whilst waiting at the pavement she saw a car, which must have been the car driven by the 2^nd defendant, moving at a high speed towards the direction of the traffic lights.  I would observe that in her police statement made on 22 July 2002, a few days after the accident, the impression given is that she did not see or notice the car before the collision.  She only felt and saw the car after it went past in front of her.  Her recollection of events would have been fresher at the time of the police statement.  I do not regard her evidence before me that she saw the car travelling at a high speed before the accident as being credible or reliable.  I do not believe her when she said that she saw the car before the accident.

18. The 2^nd defendant gave evidence that she was driving the car with her cousin Wong in the front passenger seat and her cousin’s friend at the left rear seat.  She was driving towards Yuen Long at the time of the accident to where she lived.  She had driven on that stretch of Castle Peak Road (Lingnam Section) before and was familiar with that stretch of the road. 

19. The 2^nd defendant was a relatively young and inexperienced driver at the time of the accident.  She had obtained her driver’s licence only about 7 months prior to the accident and she was just under 20 years old at that time.

20. The 2^nd defendant said that as she was driving close to the place of the accident she noticed the mini-bus which had stopped in the inner lane.  She was driving in the inner lane and because of the presence of the mini-bus she switched to the outer lane. At that time she was travelling between 30 to 50 kmph.  

21. The 2^nd defendant also gave evidence that when she saw the mini-bus the traffic lights were red for vehicles, which means that it must have been green for pedestrians.  She maintained a speed of about 30 odd kmph at that time.  After she switched to the outer lane the lights changed to green and she accelerated and the car was travelling at about 40 kmph because she had accelerated approaching the traffic lights.  This must mean that at that time the pedestrian lights were red and that the red man was on for pedestrians. 

22. The 2^nd defendant said that the vegetation as shown in the photographs taken by the defendants' solicitors in 2004 were more or less the same as the vegetation shown in the police photographs taken shortly after the accident.  She candidly admitted that the vegetation only affected her view slightly.  She also said that she had a clear view of pedestrians on the safety island on the approach to the safety island.  She said that she gave a glance towards the safety island when she was about 2 to 3 car lengths' away from the lights and saw nobody at that time.  When she was about 5 to 6 feet from the crossing she suddenly saw the deceased lunging forward with a big step and felt that he wanted to run across the crossing.  She felt that he was running.  The deceased was 5 to 6 feet from the driver’s seat at the time that she first saw him.  He was carrying an open umbrella.  She demonstrated the manner in which he was holding the umbrella namely, in an angle in front of him which would have the effect of obstructing his view of traffic approaching from his left.

23. The 2^nd defendant's evidence as to the colour of the lights is supported by the evidence of Liu.  Liu was standing in the shelter of the Fu Tai Shopping Mall Complex waiting to cross.  When she arrived there the traffic lights had changed from green to red for pedestrians.  She said that it was only a short while after the accident that the traffic lights for pedestrians changed to green.  Therefore, on her evidence, when the deceased and Cheng used the crossing to cross to the safety island and when the deceased went beyond the safety island the traffic lights for pedestrians were red.  The red man must have been on and not the green man.  This means that the lights must have been green for vehicles approaching the crossing and when the 2^nd defendant approached the crossing as she had said.

24. The evidence of Liu is hearsay evidence.  Section 49 of the Evidence Ordinance (Cap. 8) sets out the considerations relevant to the weighing of hearsay evidence.  This provides as follows:

“	(1)	In estimating the weight, if any, to be given to hearsay evidence in civil proceedings the court shall have regard to any circumstances from which any inference can reasonably be drawn as to the reliability or otherwise of the evidence.
	(2)	For the purposes of subsection (1), regard may be had, in particular, to the following—
		(a)	whether it would have been reasonable and practicable for the party by whom the evidence was adduced to have produced the maker of the original statement as a witness;
		(b)	whether the original statement was made contemporaneously with the occurrence or existence of the matters stated;
		(c)	whether the evidence involves multiple hearsay;
		(d)	whether any person involved had any motive to conceal or misrepresent matters;
		(e)	whether the original statement was an edited account, or was made in collaboration with another or for a particular purpose;
		(f)	whether the circumstances in which the evidence is adduced as hearsay are such as to suggest an attempt to prevent proper evaluation of its weight;
		(g)	whether or not the evidence adduced by the party is consistent with any evidence previously adduced by the party.”

25. Liu was an independent witness not known to any party to the action.  She came forward and responded to a notice appealing for witnesses and gave her statement to the police on 5 August 2002 shortly after the accident.  This was a statement made soon after the accident and is reasonably contemporaneous with the events surrounding the accident.  Her evidence does not involve multiple hearsay.  It was an eye-witness account of what she herself saw.  It was also an account of what she heard.  It was neither edited nor made in collaboration with anyone else.  She had no motive to conceal or misrepresent matters.  Her evidence is consistent with the evidence given by the 2^nd defendant in particular, in relation to the colour of the traffic lights at the time and the hurried manner in which the deceased crossed the crossing.  I was informed by Counsel for the defendants that although she was initially willing to come forward to sign a witness statement and give evidence in court she later declined to do so.  The defendants have not subpoenaed her to give evidence but could have done so.  I have considered the relevant factors and find that sufficient weight can and ought to be given to the hearsay evidence of Liu.  

26. The 2^nd defendant also said in her witness statement, which stood as her evidence in chief, that as she approached the traffic lights she suddenly saw a pedestrian, later known to be the deceased, running out from the safety island onto the path of the vehicle.  It is clear from her evidence, however, that she felt, rather than saw, that he was running. 

27. In the hearsay evidence of Liu she said that the deceased and Cheng crossed the crossing walking in quick pace to the safety island and stopped there for a while.  I accept her evidence.  On her evidence the deceased did not run across the crossing at any time. 

28. I do not believe that the deceased ran across the crossing as has been pleaded in the defence although I accept and find that he did walk hurriedly across the crossing intending to catch the mini-bus.  I find that he did stop at the safety island before proceeding further.  He then proceeded to cross from the safety island and lunged forward from the safety island with a big step with his open umbrella held in an angle in front of him which had the effect of obstructing his view of traffic from his left as the 2^nd defendant said in evidence.  I accept the 2^nd defendant’s evidence on this as I believe her.

29. The 2^nd defendant also said that when she first saw the deceased the first thing she did was to apply the footbrakes.  She also believed that she sounded the horn but as everything happened so quickly she could not be sure whether the horn sound was heard or not.  She did not mention that she had sounded the horn in her police statement.  It is possible that at that time she may not have remembered sounding the horn as everything must have happened quickly in a matter of seconds from the time she first saw the deceased.

30. Liuremembered that there was a continuous horn sound from the car before she heard the collision.

31. I believe the 2^nd defendant and find that the 2^nd defendant only saw the deceased emerging from the safety island when she was about 5 to 6 feet away from him.  She was then travelling at about 40 kmph.

32. On the dispute of fact, I have no hesitation in preferring the evidence of the 2^nd defendant to that of Cheng where their evidence is at variance.  I find that when the deceased walked hurriedly across the crossing the red man was on and this meant that the lights were green for vehicles travelling along that stretch of Castle Peak Road (Lingnam Section).  I believe the 2^nd defendant on this matter and disbelieve Cheng.

Was the 2^nd defendant negligent?

33. I acceded to counsel's invitation that I conduct a site visit.  However, that did not prove to be a useful exercise.  It was plain from the site visit that the vegetation at the scene, when compared with what is shown in the police photographs taken shortly after the accident and those taken in 2004 by the defendant's solicitors, had changed considerably.  There was now no obstruction whatsoever by the vegetation to the view of drivers approaching the traffic lights at the crossing towards the direction of Yuen Long along the same stretch of Castle Peak Road (Lingnam Section).

34. Although Mr Ramanathan, for the defendants, submitted that the vegetation at the time of the accident obscured the view of drivers approaching the crossing, I am unable to accept that there was any significant obstruction.  The 2^nd defendant, who was familiar with that stretch of the road, said that although the trees did block her view she was able to see clearly when she went beyond the trees.  There were short shrubs between the trees.  She also said that when she moved to the outer lane from the inner lane before the accident the vegetation affected her view of pedestrians crossing at the crossing only very slightly.  She elaborated on this and clarified that she meant that her view of the outside of the Fu Tai Shopping Mall Complex was slightly affected.  However, her view of the central refuge of the crossing namely, the safety island was not obstructed.  She also said that she had a clear view of the safety island as she approached the safety island.  She did glance at the safety island when she was about 2 to 3 car lengths away from the lights but did not see any pedestrian there.  I find that her view of the safety island was not obstructed as she herself said.

35. What is clear from the evidence is that it was raining heavily at the time and that it was very windy.  There was the mini-bus waiting by traffic lights which the 2^nd defendant saw.  Obviously, the mini-bus was waiting there for passengers.  A reasonably careful driver would have been alerted to the possibility of pedestrians there.  A reasonably careful driver driving under the adverse weather conditions at the time and approaching a set of traffic lights with a pedestrian crossing and seeing the mini-bus there ought to have slowed down when approaching the lights.  The 2^nd defendant, instead of slowing down, accelerated to about 40 kmph before the crossing when she saw the lights change to green.  Although this was under the speed limit of 50 kmph she was, in my view, driving too fast in the circumstances.

36. A reasonably careful driver ought to have anticipated the possibility of there being pedestrians there and should have kept a proper lookout for pedestrians at the crossing and at the safety island.  As I have found, the deceased did stop at the safety island before proceeding further. If the 2^nd defendant had kept a proper lookout she would have seen him earlier. Despite the fact that she had a clear view of the safety island, she did not see him standing at the safety island because, in my judgment, she failed to keep a proper lookout.  She only saw him as he emerged from the safety island when she was about 5 to 6 feet from him.  She immediately applied the footbrakes and sounded the horn but it was of course too late to avoid hitting him.  Had she kept a proper lookout she would have seen him earlier when he was standing there at the safety island.  The Road Users' Code reminds drivers to look out for pedestrians emerging suddenly.  A reasonably careful driver ought to have kept a proper lookout and would have anticipated a danger emerging especially with the mini-bus waiting there for passengers.  This the 2^nd defendant failed to do.

37. In my judgment the accident was caused because the 2^nd defendant was negligent as she had failed to slow down approaching the crossing and had failed to keep a proper lookout for pedestrians crossing the road.  Although the lights were green in the 2^nd defendant's favour, it did not entitle her to lower her standard of care.  A green light is permission to a driver to drive beyond a certain point but does not entitle him to lower his standard of care (Au Cheung v Choi Lai-fan & another [1979] HKLR 543).

Was there contributory negligence on the part of the deceased?

38. Although I have found that the 2^nd defendant was negligent, it seems to me that a substantial portion of the fault must lie with the deceased.  He was, as I have found, walking hurriedly across the crossing when the lights were against him.  He was holding an open umbrella in a manner which obstructed his view of traffic coming from the left.  He suddenly emerged from the safety island without seeing whether it was safe to do so and when the pedestrian light was showing a red man.  He was obviously rushing to catch the mini-bus without regard for his own safety.  In my judgment he must bear a substantial portion of liability.  I find that the extent of his contributory negligence is 70%.

39. I apportion liability at 70% on the part of the deceased and 30% on the part of the 2^nd defendant.

Is the 1^st defendant vicariously liable for the negligence of the 2^nd defendant?

40. The unchallenged evidence is that the 1^st defendant is the father of the 2^nd defendant and the owner of the car.  The 2^nd defendant was at the time driving the car with his consent and permission.  She was at the time driving her cousin and the cousin's friend to the 2^nd defendant's home in Yuen Long.  This was for the 2^nd defendant's purposes and not the 1^st defendant’s purposes.  There is no suggestion that she drove the car for the 1^st defendant’s purposes.  Although it is pleaded that the 2^nd defendant drove the car as the 1^st defendant’s agent, no evidence was adduced to establish this.  It is for the plaintiff to establish that the 2^nd defendant drove the car as the 1^st defendant's agent to make the 1^st defendant vicariously liable for the negligence of the 2^nd defendant. 

41. In the absence of other evidence, an inference can be drawn from the fact of ownership that the driver was the servant or agent of the owner at the material time (Barnard v Scully (1931) 47 TLR 557).  In Rambarran v Gurrucharran [1970] 1 WLR 556 it was held that where there was evidence that the car was not being used at the material time for the owner's purpose, this was sufficient to rebut the inference.

42. The evidence is that the car was being used not for the 1^st defendant's purposes but for the 2^nd defendant's purposes.  That being so, I find that the 2^nd defendant was not driving the car as the agent of the 1^st defendant at the material time and in my judgment there is no liability on the part of the 1^st defendant for the negligence of the 2^nd defendant.

Conclusion

43. I give judgment to the plaintiff against the 2^nd defendant on the issue of liability to the extent of 30% liability on the part of the 2^nd defendant with damages to be assessed by a Master.

44. There is no liability on the part of the 1^st defendant and the claim against him is dismissed.

45. I also make an order nisi for costs as follows:

(1)	the plaintiffs' costs of the action on the issue of liability to be paid to the plaintiffs by the 2nd defendant;
(2)	the 1st defendant's costs of the action to be paid by the plaintiffs.
(3)	the plaintiffs' own costs are to be taxed in accordance with Legal Aid Regulations.