Samuel Lam Shing Yam v Yip Kam Foon

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CIVIL APPEAL NO.9 OF 1968

(On appeal from K.D.C., C.J. Action No. 4439 of 1967)

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JUDGMENT

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1. This appeal concerns a running down case. The plaintiff was knocked down by a taxi driven by the defendant, and as a result the plaintiff suffered injuries. The learned trial judge found that both the plaintiff and the defendant were negligent, the plaintiff being 30% and the defendant 70% negligent. There is no appeal against the finding that the plaintiff was negligent, but the defendant has appealed against the finding that he was negligent.

2. The questions for the court are one, whether, in the circumstances, the defendant was negligent, and two, if he was, to what degree he was negligent.

3. The facts shortly are that the plaintiff was travelling along Prince Edward Road on a bicycle in a westerly direction on his left hand side of the road at about 4.15 p.m. on the 18th June, 1966, the road being damp. This road at all material places has three lanes for traffic travelling in a westerly direction, with railings going down the centre of the road dividing the westbound traffic from the eastbound traffic. When the plaintiff arrived at a studded pedestrian crossing, which crossed the road from South to North, with a gap in the railings therefor, he alighted from his bicycle and intended to cross the road from the South to the North side of the road, and to go through the gap in the railings. He started to cross the road on the crossing, pushing his bicycle, when it was quite unsafe so to do, and to avoid on-coming traffic he then put one foot on a pedal of his bicycle, pushing it along in scooter fashion, thereby going faster, in a north-westerly direction diagonally across the road leaving the studded crossing behind. On the near lane of traffic a bus was approaching, in the centre lane van was approaching, and in the outside lane the taxi driven by the defendant was approaching, the taxi being to the rear of and to the side of the van. At a time when the plaintiff had left the crossing the defendant saw the van slow down. Up till then the road in front of the defendant had been quite clear. Shortly after the van dropped speed the defendant suddenly saw the plaintiff and his bicycle come out from the front of the van in front of the defendant and that was the first time that the defendant saw the plaintiff. The defendant immediately applied his brakes and swerved to the left to avoid hitting the plaintiff and his bicycle, but the offside front of his taxi caught the rear wheel of the bicycle throwing the plaintiff to the ground whereby the plaintiff received injuries.

4. The "studded" pedestrian crossing was not a "zebra" pedestrian crossing established under the Road Traffic (Road Crossing) Regulations, and there is no legislation giving pedestrians preference over vehicular traffic on "studded" pedestrian crossings. The road was straight and level.

5. The learned trial judge came to the conclusion that the defendant was negligent because he was driving too fast, and doing so without a view of the whole of the crossing, and that the defendant was driving at a speed of at least 40 miles an hour, and that, having regard to the decisions in the cases of Chiang Shu Cheong v. The Queen⁽¹⁾ and Chan Wai Ching v. Pomeroy⁽²⁾ to the effect that drivers should exercise particular care when approaching such studded crossings, and should not do so at an excessive speed which might endanger the lives or physical safety of pedestrians thereon, he considered that the defendant was negligent in not slowing down when approaching the crossing, and he was of the opinion that if he had done so he would have been able to see along the crossing and have seen the plaintiff. He found that the taxi driven by the defendant hit the plaintiff about 55 feet beyond the crossing, but if one looks at the plan made by the police, the pool of blood on the road, where no doubt the taxi knocked down the plaintiff, the trial judge for reasons given having found that the taxi did not carry the plaintiff along the road, is about 60 feet beyond the crossing. However there is little difference between about 55 and about 60 feet.

6. The trial judge's reasoning as to why the defendant's speed was at least 40 miles per hour was that the third party, who was travelling in his car at about 45 miles per hour about 50 feet behind the taxi when approaching the crossing, and whose car eventually collided with the back of the taxi, would have caught up with the taxi earlier if the taxi had not been travelling at at least 40 miles per hour; however the judge found that the third party was an honest witness, and the third party said that the taxi was travelling at about 30 miles per hour, whilst the defendant himself said that when he approached the crossing he reduced speed to between 20 and 30 miles per hour, and probably to about 25 miles per hour; the plaintiff did not say anything about the speed of the taxi, the view of which was hidden by the bus and the van.

7. According to the Highway Code, if a vehicle is in perfect condition and travelling in day light on a good dry road, if travelling at 40 miles per hour the vehicle cannot stop before 120 feet. Even without allowing for thinking time - the defendant might have had his foot over the brake pedal when approaching the crossing, the distance would be 80 feet, but I think that some distance must be allowed for thinking time, and thus if the defendant had been travelling at 40 miles per hour at the crossing one would have expected the taxi to have struck the plaintiff's bicycle at the point of impact, which was about 55 or 60 feet from the crossing, with greater force than it did whereby the plaintiff might well have been killed, and that the defendant's taxi would have stopped further from the crossing than it did. The plaintiff's taxi was a Japanese Prince car and the third party's car was a Renault car and on the plan, made by the police after the accident, the Renault car is drawn with its front against the back of the taxi, the back of the Renault car being 55 feet from the crossing; taking both vehicles to have been about 14 feet long, that would mean that the back of the taxi stopped 69 feet from the crossing and the front 83 feet from...