WONG KIN FAN v. FOK YUE MING DCPI 1207/2006

S’s words:-

The parties agreed the quantum leaving the issue of liability and contributory negligence to be decided by the Court.

Drivers are still having a rather high requirement to take reasonable care.

In this case, even though the Plaintiff was the one that was substantially to be blamed, the Defendant being the driver was still liable for 1/3.

If there was any calderbank offer for the issue of contributory negligence, it is highly possible that the Plaintiff could get almost nothing from the action.

--- quote from judgment ---

Date of handing down judgment: 23 October 2007

The Plaintiff was to blame for the accident. But was the Defendant negligent too?

Ms Lau for the Plaintiff submitted that even if the Defendant’s case is accepted, the Defendant was still negligent. She relied on numerous cases in which the drivers were found liable for having failed to exercise reasonable care to avoid colliding with the pedestrians upon seeing them. Mr Wong for the Defendant submitted that the scenarios in these cases are distinguishable from the present case.

In Williams v Needham [1972] RTR 387, the pedestrian was standing by a car and clearly intending to cross the road. In Foskett (an infant) v Mistry [1984] RTR 1, the 16 and ½ year-old boy was cycling downhill and the defendant driver should have seen him from a distance. In Kong Chung Ching & Anor v Lam King Ho & Anor [1992] 1 HKC 104, the pedestrian was outside the railing and looking straight ahead as if he was about to cross the road. In Wong Shek Keung & Anor v Leung Sing Kiu & Anor [1989] 1 HKC 202, the defendant was driving at excessive speed without proper lookout.

The facts in these previous decisions are bound to vary from one to another. However the key question discerned from these decisions should be whether the driver was or ought to be aware of a real possibility that the pedestrian might cross the road though the pedestrian was apparently not looking in the direction of the approaching vehicle. How real such possibility has to be for the driver to take precaution was best explained by the Court of Appeal in Kong Chung Ching (at 107D referring to Ng Ching Hung v Lau Shun Hing, unreported, CA 182/90):

“……There, the court also referred to Fardon v Harcourt-Rivington (1932) 146 LT 391. The court said:

The root of this liability is negligence, and what is negligence depends on the facts with which you have to deal. If the possibility of the danger emerging is reasonably apparent, then to take no precautions is negligence; but if the possibility of danger emerging is a mere possibility which would never occur to the mind of a reasonable man, then there is no negligence in not having taken extraordinary precautions.

The trial judge found that while there was clearly substantial contributory negligence on the part of the deceased, the first appellant was also to blame for the accident……”

Was the possibility of the Plaintiff suddenly stepping onto the Road reasonably apparent or a mere possibility which would never occur to the mind of a reasonable man?

The present case contains its peculiar facts. Unlike the cases referred to above, the spot where the Plaintiff stepped onto the Road was an open pavement without railings or parked vehicles. Pedestrians could step onto the Road at any time. This should not be surprising if they did. As can be seen from the photographs, the kerb of that part of the Pavement had in fact been modified into a concrete slope descending onto the Road, and so had been the corresponding kerb of the pavement on the other side the Road. Pedestrians were therefore reasonably expected to make use of this part of the Pavement (and the corresponding part of the opposite pavement) for crossing the Road. A driver approaching there should be able to see that.

In the circumstances, that the Plaintiff might all of a sudden step onto the Road from that part of the Pavement was not a mere possibility which would never occur to the mind of a reasonable man. The possibility in fact occurred to the Defendant’s mind. The whole point of his deciding to drive the Taxi further to the right was to avoid accident in case such possibility materialised. The Defendant had to agree with this in court.

In the circumstances, the Defendant was negligent in causing the accident.

I have no reservation that the Plaintiff was substantially to blame for causing the accident. In Williams, the plaintiff was 2/3 responsible. In Kong Chung Ching, the plaintiff was 50% responsible. In Foskett, the plaintiff was 75% responsible.

The quantum has been agreed at HK$120,000 inclusive of interest and net of the employees’ compensation received by the Plaintiff. Discounted by the contributory negligence, the amount would become HK$40,000.