YIP PUI KWAN AND ANOTHER v. TSUI KWOK HUNG AND OTHERS

__________

JUDGMENT

__________

Sir Alan Huggins, V.-P.:

1. The appellant 1st and 2nd Defendants seek contribution against the 4th and 5th Defendants, the 5th Defendant being also the Third Party.

2. The Plaintiff originally sued only the 1st and 2nd Defendants and claimed damages for personal injuries sustained when she was knocked down by a lorry driven by the 1st Defendant and owned by the 2nd Defendant. The 1st and 2nd Defendants having claimed an indemnity against the Third Party, the Plaintiff joined the Third Party as the 5th Defendant and two of its employees as the 3rd and 4th Defendants.

3. The Third Party was a contractor engaged to carry out works at the Hong Kong & China Gas Co. Ltd.'s plant in Ma Tau Kok. The 2nd Defendant undertook to deliver to the site for the purpose of those works ready mixed concrete. Access was by a lane leading from the north-west side of To Kwa Wan Road. (That road runs north-east and south-west and not north and south as the sketch plan would suggest, and it is agreed that the characters translated "Ma Tau Wei Road" on that plan should read "Ma Tau Kok Road"). To Kwan Wan Road is a dual carriageway road with three lanes in each carriageway and at the material parts is straight. It is a busy road with a pavement about fourteen feet wide along the high wall which forms. the south-east boundary of the Gas Company's plant.  The lane is 5'2" wide and is itself bounded by a high wall. Visibility for vehicles emerging from the lane is therefore poor.

4. On the afternoon of 22nd January 1981 the 1st Defendant reversed his lorry into the lane and began to discharge his load. Another lorry with a similar load arrived at the plant, but there was room for only one lorry to discharge at a time. (I will refer hereinafter to this other lorry as "the second lorry''). To avoid obstruction to the highway the second lorry also reversed into the lane to await its turn at the unloading platform. It necessarily blocked the exit of the 1st Defendant's lorry and, when the 1st Defendant had finished unloading, the second lorry had to be driver. into the road to make way for the 1st Defendant. This was a manoeuvre of a kind which had to be carried out many times a day, and accordingly the Third Party had provided the 3rd and 4th Defendants to act as flagmen, whose duty it was (in general terms) to assist the lorry drivers when they were entering and leaving the site with their large and cumbersome vehicles.

5. One of the difficulties with which we have been faced arises from the fact that there was no clear evidence as to the precise instructions given to these flagmen. Undoubtedly one of them was concerned with warning vehicular traffic proceeding in the north-west carriageway of To Kwa Wan Road and the other with warning pedestrian traffic on the pavement, but at one stage in the trial it was even uncertain which of them had which responsibility. However, it is now common ground that the 4th Defendant was the flagman with the latter responsibility, and that is why the 3rd Defendant has not been involved in this appeal, for the Plaintiff was a pedestrian on the pavement.

6. In 1981, the Plaintiff was a school-girl aged 10 years. On the afternoon in question she left school to go home. This took her along Kwei Chow Street, which enters To Kwa Wan Road on the south-east side some distance from, and to the south-west of, the Gas Co.'s plant. Her journey took her past the plant and across the entrance to the lane used by the concrete lorries. She did not say at what point she crossed To Kwa Wan Road but her evidence was that she walked a "long" way on the pavement on the north-west side. The judge found (and this is no longer disputed) that she walked and did not run. As she crossed the entrance to the lane she was knocked down by the 1st Defendant's lorry, and the front wheel of the lorry crushed her leg. Again, it is not now disputed that she was in middle of pavement" and that the point of impact was approximately half way across the entrance to the lane.

7. The judge found the 1st Defendant to be wholly to blame for the accident. He therefore entered judgment against the 1st and 2nd Defendants and dismissed the claims against the 3rd, 4th and 5th Defendants in both the action and the third party proceedings.

8. What had happened was this. When the 1st Defendant was ready to leave the site the driver of the second lorry proceeded out into the road to make way for him. Which way the second lorry turned on reaching the carriageway is uncertain but is not material. It is certain that, as the second lorry emerged, the 3rd Defendant was in the carriageway warning the vehicular traffic and the 4th Defendant was on the pavement warning the pedestrians. The 4th Defendant had a red flag in his right hand and his right arm was extended at right angles to the line of the pavement. He was on the off-side of the emerging vehicles and facing north-east. The judge did not make any finding as to the spot where the 4th Defendant was standing, and it probably matters not. The 4th Defendant did not give evidence, but a statement which he had made to the police was shown to the judge by consent. He clearly understood it to have gone in as evidence, although it was presented as part of an "agreed bundle'' and there had been some discussion as to the extent to which it had been agreed. The outcome of that discussion appears to have been that while the statement of the 4th Defendant was agreed "for all purposes" that of the 3rd Defendant was not. It has not been argued that the judge should not have considered the 4th Defendant's statement but only that he attached too much weight to it. That argument was based upon the facts that the 3rd and 4th Defendants were jointly represented and that the judge found that the 3rd Defendant was not telling the truth when he said in evidence that he was the flagman on the pavement and when he described how the accident happened: it was suggested that the 4th Defendant must be taken to have associated himself with the 3rd Defendant's false evidence and that no weight should have been attached to the 4th Defendant's statement to the police: in particular the judge was wrong to attach any weight to the 4th Defendant's assertion that he went to the road to assist [the 3rd Defendant] to stop the traffic" and "went to the road in helping to stop vehicles as there were many vehicles then". However, the case presented on behalf of the 1st and 2nd Defendants was that the 4th Defendant was properly in position when the second lorry emerged but then deserted his post and left the pedestrians with no warning that the 1st Defendant's lorry was about to follow. It seems to me that the judge was entitled to regard the 4th Defendant's statement as consistent with that case and as explaining why the Plaintiff was able to move into a position of danger without warning.

9. This being a claim in negligence it was for the 1st and 2nd Defendants to establish a duty of care and a breach of that duty. On their behalf Mr. Mumford contends in effect that the duty on the 4th Defendant was to take up a position on the pavement from which he could give a warning signal to any pedestrians who might be affected and to remain there from the time that the second lorry emerged from the site until it had driven back into the site. He suggested that this duty was to be inferred from the nature of the manoeuvre: it was reasonable to assume that the 1st Defendant would follow the second lorry immediately so as to cause the minimum of inconvenience to the public: if, therefore, the 4th Defendant left his post - for whatever reason - before the second lorry was back in the lane, he was in breach of duty and it was such a breach which contributed to this accident. It is inherent in this argument that, once the 1st Defendant had seen the 4th Defendant take up his proper position, he was justified in assuming that he would continue to warn pedestrians of the 1st Defendant's lorry's presence until it was safely on the carriageway. That would not justify the 1st Defendant in failing to keep a proper look-out, but any failure by the flagman to perform his duty would add to the risk of injury to pedestrians.

10. On the other side it is submitted that. there was no evidence of any scheme of manoeuvre such as that contended for by the 1st Defendant: it was his duty to await a positive signal from the 4th Defendant that it was safe for him to emerge, or at least not to proceed out of the lane until he could see the 4th Defendant giving the appropriate warning to pedestrians: if he saw (as he should have seen) that the 4th Defendant was not in position, the 1st Defendant should have stopped and waited for him to return. Mr. Graham therefore argues that, even if the 4th Defendant was not justified in going to help the 3rd Defendant, the 1st Defendant should have stopped immediately the 4th Defendant did move away, and, had he done that, the accident would not have happened, so that the 1st Defendant's negligence was the causa causans. At the same time Mr. Graham contends that the 4th Defendant was entitled to leave his position on the pavement and to assume that the 1st Defendant would not emerge until he could see the 4th Defendant back in position: there was no evidence of a scheme of manoeuvre which contemplated an appreciable gap between the two emerging lorries such that it would have been safe to allow pedestrians to pass between them. It was this view which must have commended itself to the trial judge, since he said:

He thought the 4th Defendant was not in breach of duty when he went to help the 3rd Defendant but that the 1st Defendant was to blame for not having noticed that the 4th Defendant had moved away and, as a result, for continuing when it was not safe to do so.

11. As I see it, the issue resolves itself into this, was the judge on the evidence before him bound to find that the 4th Defendant was under a duty to remain in position? If so, the 4th Defendant was clearly in breach of that duty. In the absence of direct evidence as to the instructions given to the flagmen the question which the judge had to decide was one of extreme difficulty. It was for the contractor (the Third Party) to devise a safe scheme, but it was not charged with a breach of that duty: it was sued only in respect of acts or omissions of its servants. Provided that the servants did what they were instructed to do, they were not negligent - at least unless it was obvious to them that what they had been instructed to do had brought about a dangerous situation which reasonably require them to do something more, and this is not such a case. As there was no evidence as to the instructions given, the judge could only infer what the instructions must have been from what the 3rd and 4th Defendants said their duties were, from what in fact they did and from what might reasonably be expected in all the circumstances of the manoeuvre being carried out. His conclusion that the evidence did not show a duty on the 4th Defendant to remain in position once the second lorry emerged from the lane is what the Appellants attack.

12. Had there been a primary finding as to the duty imposed on the 4th Defendant this appeal would not have been arguable: the case would depend upon, the credibility of the witnesses and this court would be slow to reject the assessment of the judge who saw and heard those witnesses. As the finding was a secondary one, we are in as good a position as the trial judge to decide whether it was supported by the primary facts, and if, after giving due weight to the opinion of the judge, we come to a different conclusion we should not hesitate to interfere: Benmax v Austin Motor Co. Ltd. 1955 A.C.370. After the most anxious consideration I am persuaded that, where two or more lorries are involved in a joint manoeuvre of this kind, it may fairly be inferred that the duty of a flagman appointed to warn pedestrians is a continuing one and that, if for any reason he leaves his post before the manoeuvre is complete, he ought to take active steps to warn the drivers concerned that the joint manoeuvre has been interrupted. In the present case, therefore, it was not enough that the 4th Defendant should assume that the 1st Defendant would appreciate from his absence that the manoeuvre had been interrupted and that the 1st Defendant should not drive out: he should have taken. active steps to warn the 1st Defendant before going into the road to assist the 3rd Defendant. If the 1st Defendant had then continued the manoeuvre before receiving a clear signal that the manoeuvre was being resumed, he would have done so at his peril.

13. Did the negligence of the 4th Defendant contribute to the accident? On his behalf it is submitted that it did not, because the 1st Defendant ought to have noticed that he had left his post and thereafter proceeded with the same caution as he would have exercised if the 4th Defendant had never been there in the first place. I think this is too simplistic a view. The 1st Defendant had a duty of care to pedestrians proceeding south-west along the pavement as well as those proceeding north-east. As the 4th Defendant was stationed on the south-west side of the exit, it was natural that the 1st Defendant should concentrate particularly on the pavement to the north-east, where in any event his view from what was presumably a right-hand drive vehicle would be more obstructed. He would not, of course, be excused by the presence of the 4th Defendant from his duty of care towards pedestrians proceeding north-east, but he night not immediately have noticed that the 4th Defendant had abandoned his post and appreciated the heavier responsibility placed upon him as a result. The absence of the 4th Defendant was thus one of the causative factors in the accident and sufficient to fix him and his employer with liability.

14. As the driver the 1st Defendant must, I think, continue to accept the major responsibility for the damage caused by his vehicle and I would assess the responsibility of the 4th Defendant at 40%.  I would therefore allow the appeal in the third party proceedings and make an order for contribution accordingly. However, for reasons which will be given by Kempster, J.A. it is technically necessary that the Plaintiff be given notice of the appeal if we are to alter the order made in the action. I agree that we should adjourn the appeal in the action for such notice to be given. To save costs that can be done by telephoning her solicitors. It is unlikely that she will wish to be heard and, on confirmation that she does not, we can allow the appeal in the action and enter judgment in terms consistent with the decision of the majority of the court.

Fuad, J.A.:

15. I would uphold the decision of Macdougall, J.. On the evidence led at the trial I am satisfied that it was open to the judge to exempt the 4th Defendant and his employer from liability altogether to make contribution. This is what the learned judge said on the matter:

16. It was, of course, for the 1st Defendant to establish the facts upon which a claim to contribution from the 4th Defendant upon which a claim to contribution from the 4th Defendant could be made and this, in my judgment, he failed to do. If the 4th Defendant was not "holding up" pedestrians on the pavement at the material time (as the judge found) the 1st Defendant should not have crossed the pavement. There was insufficient evidence to bind the judge to hold that those involved should have treated the exit of both lorries as a single manoeuvre. I am not persuaded that I should disturb the judge's conclusion that the 1st Defendant was entirely to blame for the accident.

Kempster, J.A.:

17. Once the fourth defendant, by standing on the pavement with his flag raised, had assumed a substantial degree of responsibility for the safety of pedestraans he should not have abandoned his post unless and until reasonably sure that he would not thereby expose them to danger. While there was no firm evidence that pairs of lorries always engaged in a joint manoeuvre when clearing the site there was certainly no evidence that they did not or that the second truck would in no circumstances drive on to the pavement immediately or shortly after the first. Having given no signal to wait the fourth defendant should have appreciated that the first defendant might well drive out in reliance upon his continued presence and that a pedestrian in the offing might well regard his movement away from the pavement as an "all clear" and cross the mouth of the lane with confidence. It is apparent from his own account of the matter that any attempt by the fourth defendant to see whether the pavement was clear must have been cursory in the extreme. Had he really concerned himself in this context he could not have failed to see the plaintiff.

18. I consider that the fourth and, vicariously, the fifth defendants were in breach of the duty of care which they owed to any pedestrian, and in particular the plaintiff, approaching the lane at the material time and that such breach was a substantial cause of the accident which thereafter occurred.

19. An order for contribution can not be made without more ado. The terms of section 19(1) of the Law Amendment and Reform (Consolidation) Ordinance (Cap.23) are identical. with those of section 6(1) of the Law Reform (Married Women and Tortfeasors) Act 1935, now replaced in England by the Civil Liability (Contribution) Act 1978. They read:

20. In George Wimpey & Co. Ld. v. B.O.A. Co. 1955 A.C.169, it was held that those provisions do not admit a claim for contribution by one tortfeasor against another when that other has been sued by the injured person and found not liable. As Lord Simonds said at pp.178 and 179:

And Lord Porter at p.180:

Lord Tucker found to like effect at p.192:

21. The appeals can, however, be validated, if properly constituted. Presently the appeal in the action is defective since the plaintiff, as a party below being "a person directly affected", had not been served. R.S.C. O.59 r.3(5). I would invoke r.8 of the Order; direct that the plaintiff be served; adjourn the hearing of this appeal for so long as it may take to telephone the plaintiff's solicitors and, as well as making the order proposed by my Lord, the Vice-President, in the third party proceedings order that judgment be entered for the plaintiff against the fourth and fifth defendants in the action.

22. On this basis I would allow the appeals both from the judgment in the action and from the judgment in the third party proceedings.

4th April 1985