BERMUDEZ IMELDA AGASEN v. YEUNG TAK HING

HCPI 811/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 811 OF 2000

____________

_______________

J U D G M E N T

_______________

1. On 25 August 1997 at about 7:30 a.m. the Plaintiff returned from some shopping at Sheung Shui Market on board a public light bus. She got off that bus near the junction of the Castle Peak Road with Wing Ping Tsuen. The San Tin Post Office is at the junction and there is a zebra marked pedestrian crossing with zig-zag protection markings on either side. The main road is single carriageway divided by continuous double white lines on either side of the crossing area. It is not a wide road as can be seen from the photographs.

2. The public light bus on which the Plaintiff was travelling stopped some where along the zig-zag markings on the Yuen Long side of the pedestrian crossing. The Plaintiff is not quite sure exactly where it did stop. She marked one point on a plan opposite Wing Ping Tsuen and then another point on a photograph about 1/2 way along the zig-zag section. She may be understandably uncertain where the bus actually stopped. She suffered severe injuries including head injuries. It would be astonishing if she had a wholly clear recollection of detail.

3. On all the evidence I am satisfied that her bus stopped somewhere along that zig-zag section when, of course, it should not have done. The position she points out by reference to a photograph is consistent with the position of that bus marked on a sketch plan by the Police Officer on the Defendant's instructions. She got off the bus and it is her recollection that it moved off almost straightaway. She reached the middle of the road and stopped to allowed a public light bus bound for Sheung Shui to pass. In the belief that there was no other traffic coming from her left, and that any such traffic would give way to her, she hastened across. She recalls being hit and the sound of a horn. She was, on her estimate, two to three steps from the safety of the pavement. On any calculation I think she was much closer than that, perhaps only one pace away.

4. She was obviously carried or knocked some distance from the point of impact towards the zebra crossing. She was found on the broken white line which marks the boundary of the crossing area itself. On photograph 17 of Exhibit P3 is the irregular chalk outline (yellow) marking her position. There was an indentation on the front nearside bodywork of the public light bus which had hit her - EB270. This I find is the point of impact. This is visible on photograph 16 of Exhibit P3 and ringed in red on photograph 17. On the Yuen Long side of the crossing the bus is clearly seen in many photographs. Found by the rear nearside wheel of that bus was one of the Plaintiff's shoes. This too is ringed in red on photograph 17. Between the position of the shoe and where the Plaintiff was found is a continuous irregular dark stain which the Police Officer confirms is blood. It can only have come from the injured Plaintiff. The position of the shoe is likely to be at or near the point of impact. I find that the Plaintiff was struck by the bus within a foot or so, on the Yuen Long side, of that position of the shoe.

5. The Police Officer who attended the scene took measurements and prepared a rough sketch (Exhibit P2) which he later used as the basis for a scale plan of 1 centimetre to 1 metre (Exhibit P1). The salient features are:

(i) The public light bus is 6 metres in length and 1.9 metres in width.

(ii) The vehicle left two twin parallel brake marks, the nearside one being 11.4 metres in length and the offside being 10.2 metres in length. These are also clearly visible on the photographs (Exhibit P3).

(iii) These brake marks appear to be parallel to the nearside kerb, both from the photographs and from the sketch plan.

(iv) The bus is stationary, angled to its offside, indicating that this degree of deviation was at the very last moment.

(v) The brake marks commence at some point in the mouth of the junction with Wing Ping Tsuen.

6. The officer's evidence was initially to the effect that one pair of the brake marks ran from the front wheels of the bus and he measured their length from the mid-front wheel position. He later changed his evidence to say that he made the measurements from the mid-rear wheel position. This change was brought about by a consideration of the scale and measurements and of the clear evidence of the photographs. The measurements taken must have been from the rear wheel and the outer of the two pairs of brake marks were clearly left by the outer rear tyres. Whether there were indeed brake marks under the body of the vehicle attributable to the front wheel braking is unclear although highly likely. I think it safer however to accept that the measured brake marks were made by the rear wheels.

7. Applying the length of braking to the thinking distance accepted conventionally for many decades produces the result that the driver must have seen the Plaintiff when he was at least 25 metres away from her. His speed was in my view in excess of 45 k.p.h. and, as will be seen, there is support for this in his own evidence.

8. The Defendant gave evidence before me. He had not given evidence before the Magistrate when he was prosecuted for careless driving. In my view he was extremely fortunate to escape conviction because all the evidence demonstrated overwhelming evidence of carelessness on his part.

9. It is convenient to consider the contents of his signed statement to the Police Officer as the background to his own evidence. It was taken at about 9:35 a.m. on the day of the accident, some two hours later.

10. He was travelling at about 40 k.p.h. when he saw the zebra crossing ahead. He noticed another public light bus stationary about 20 metres ahead of him, from the opposite direction, putting down passengers. On his nearside of the road, on the pavement, were about 6 or 7 pedestrians whom he feared might run across the road and so he paid attention to them for 1 or 2 seconds. When he looked back to the front he saw a female pedestrian run from right to left from the rear of the other public light bus. He braked but could not avoid hitting her with the nearside front of his bus. He failed to see the woman earlier and he conceded carelessness on his part in not checking traffic on his right.

11. His evidence in this trial did not differ much from that version although he added a few things. He added that on seeing the other public light bus he reduced his speed from 45 k.p.h. to 40 k.p.h. He was about 40 metres from the public light bus when he first saw it. He saw no people around the zebra crossing. He saw someone dash from behind the public light bus. She was only 6 metres away from him when he first saw her. He braked and sounded the horn. He was familiar with the route and the area and knew that pedestrians made a habit of crossing the road at this point - i.e. the zig-zag area before the zebra crossing point.

12. Mr Kevin Wong who appeared on behalf of the Defendant very realistically conceded that there was no dispute on liability on the part of his client but argued that there was a degree of contributory negligence on the part of the Plaintiff. He says that it should be 25 per cent.

13. Before I come to that it is necessary to set out the aspects and extent of the Defendant's negligence. He was clearly wrong when he said that the Plaintiff was only 6 metres away when he first saw her. She was in fact at least 25 metres away. I do not accept that he reduced his speed at any stage. He was driving at a speed at least nearer 50 k.p.h. than 45 k.p.h. and probably in excess of 50 k.p.h. He made no adjustment of his speed to take into account five important factors - there was a road on his nearside, he knew pedestrians crossed at that area, there was a public light bus putting down passengers from the opposite direction, he was entering the zig-zag marked warning/protection zone and he was approaching a pedestrian crossing. He was most certainly not keeping a proper lookout. If he had seen the other public light bus 40 metres away (which he ought to have done) he should have made a reduction of speed then because he knew pedestrians made a habit of crossing the road in the zig-zag area, in particular to allow for those passengers who might cross from the point at which the bus had stopped.

14. All the markings and evidence point to the Plaintiff being struck when she was about 1 step or pace away from the safety of the pavement, although she said she thought she was 2 to 3 steps away. The Defendant's own estimate of 1 to 2 steps is thus more likely. There was no avoiding action in the form of deviation to the right until after the collision as is demonstrated by the brake marks, the angle of the bus and the position in which the shoe was found, and from which the blood trail commenced. All these factors add up to a very high degree of negligence indeed.

15. The Plaintiff for her part did not use the pedestrian crossing which was clearly marked. She obviously thought she had sufficient time to cross safely. There are certain factors which probably induced her to cross at this point. People make a habit of crossing at the zig-zag zone. The existence of the zig-zag zone markings encourage pedestrians to do so to some extent because they can reasonably expect vehicles to be slowing down. The public light bus on which she had travelled had wrongly stopped in the zig-zag area. This should of course have put other motorists on the alert and may have served to give her a false sense of security when crossing at that point. Pedestrians habitually cross from behind a stationary bus from which they have disembarked, particularly on roads as narrow as this because they are able to cross half the road without risk from traffic coming from their right hand side. If she had reached the centre of the road without being seen by the Defendant because the other bus had restricted his vision, she ought to have been able to cross the remaining width (only 3.2 metres) in safety because the Defendant would have been on the Yuen Long side of Wing Ping Tsuen at that stage. Because she had crossed only 2.2 metres at the most, at the time when she was struck, means that he was travelling far too fast. He said she was dashing; she said she walked fast. At 40 k.p.h. he was covering 12.2 yards per second. She would have covered 2 metres in about 1 second. Either he first saw her before she reached the middle of the road, in which case the bus on which she had travelled had ceased to obscure his vision, or he was travelling at a speed nearer 60 k.p.h. If he was of the order of 25 metres away from her when she had reached the middle of the road, then it was reasonable for her to continue to cross in the belief that with traffic at that distance it was safe for her to do so and it would in any event give way to her.

16. There remains the question of the omission on her part to use the zebra-crossing. Mr Clough argues that given the many aspects of the Defendant's negligence she would have been no safer had she used the proper crossing. That may be, as a matter of human assessment in this case, be so, but it remains nonetheless speculative. The point is that designated crossings exist to afford a proper crossing facility for pedestrians though of course each circumstance varies and it is not to be assumed that the mere fact that a marked pedestrian crossing is within a pedestrian's range of vision, means that failure to use it is negligence. One has to consider all the circumstances and the features of a particular stretch of road. I am nonetheless bound to say that the siting of this crossing is not very sensible. It would be more appropriately sited nearer the junction and closer to the Post Office.

17. However this Plaintiff chose to cross the road at a point which was only about 8 metres from the zebra crossing. That was negligent on her part but given all the circumstances of this case not of a high order. I assess it as 20 per cent.

18. There will therefore be judgment on liability with costs for the Plaintiff for 80 per cent of damages to be awarded. At present damages cannot be assessed because the Plaintiff, who lives in the Philippines with her family, has come to Hong Kong for a series of medical examinations this week and this short trial on liability has been arranged to fit in with her presence in Hong Kong.