YIU TSAN WING v. WONG WAN SING AND OTHERS

1997, No. PI-610

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES LIST NO. 610 OF 1997

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J U D G M E N T

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1. These actions arise out of a road traffic accident which occurred in the early hours of 21st August 1994. The vehicles involved were two motorcycles and a private car. The two motorcycles were driven by the Plaintiff and the 2nd Defendant (the Plaintiff in the second action) respectively, and the car by the 4th Defendant (the Defendant in the second action). I shall refer to them throughout by their status in the first action.

2. It is not in dispute that, while all three vehicles were travelling along the Tuen Mun Highway, contact was made between the car and the 2nd Defendant's motorcycle causing the 2nd Defendant to lose control, and his motorcycle to fall into the path of the Plaintiff's motorcycle, causing him in turn to run into it and fall. As a result of this, both the Plaintiff and the 2nd Defendant sustained injuries.

3. There are two accounts of how the car and the 2nd Defendant's motorcycle came into contact. The Plaintiff and the 2nd Defendant say that the car cut in sharply across the path of the 2nd Defendant and caused a collision; the 4th Defendant says that the 2nd Defendant ran into the back of his car while apparently trying to overtake on his left. These accounts are totally irreconcilable with each other. It is not a variation which can be explained by a lapse of memory. And both sides ( and for this purpose I group the Plaintiff and the 2nd Defendant together) accuse the other of concocting their accounts of the accident after the event to suit their own purposes.

4. The evidence of the Plaintiff and 2nd Defendant as to the events of that night is to a large extent identical. They both say that they had been to Yuen Long for a "night snack" at a café apparently well known for its desserts, they left at about 1 a.m. and were returning towards Kowloon. The weather was fine and there was little traffic, and there were no other motorcycles travelling with them. Their reasons for going such a distance I find unremarkable, although I accept that there may well have been an element of joy-riding, both being keen motorcyclists.

5. They said that the 2nd Defendant was in the middle of the three lanes and the Plaintiff was 3 or 4 motorcycle lengths behind him, travelling in the left hand lane. The Plaintiff says that he was going at about 60 kph, and the 2nd Defendant says about 60 to 70 kph. The speed limit at this point was then 70 kph.

6. They both said that they were not racing, and, although there was at some stage a suggestion that this was so, there was no evidence of it and it was not pursued. Both their motorcycles were of modest engine capacity.

7. The part of the road where the accident happened was straight. Although the witnesses mentioned bends at either end of the straight, there was no direct evidence by way of photographs or diagrams of the distance between these bends or the angle of them. However, as this is a six lane highway, I think that I can take it that there is unlikely to be a sharp bend in it.

8. The account of the Plaintiff and the 2nd Defendant is that they both noticed in their rear view mirrors the lights of car approaching from behind at a speed the Plaintiff puts at somewhere between 100 to 120 kph, and the 2nd Defendant at over 100 kph. The speed of another vehicle is, of course, extremely difficult to assess with any degree of accuracy, but I take their evidence to mean that they considered that the car was going much faster than they were. They said that the car approached on the outside or fast lane, and then cut in sharply to the middle lane across the 2nd Defendant's motorcycle. He said that he tried to take avoiding action by swerving to the left and braking but the rear left part of the car struck the front right of his motorcycle causing him to lose control, wobble briefly, and fall into the left lane into the path of the Plaintiff's motorcycle. The Plaintiff, who was travelling a little behind and in the left lane, agreed with this sequence of events, and said that he immediately braked but was unable to avoid a collision with the 2nd Defendant's motorcycle and fell on to the road himself.

9. The car did not immediately stop, but the 2nd Defendant said that shortly afterwards he saw a red car stopped some was ahead, at a distance he put at between 100 to 300 metres, near to the exit road to Sham Tseng, which stayed there about half a minute and then drove off towards Kowloon.

10. The 4th Defendant's account is that he was driving his car from his home in Yuen Long to collect his girlfriend. She was a social worker who worked late and he said that he intended to pick her up between 2 a.m. and 2.15 a.m. in Shek Kip Mei. He agreed that the traffic was not very busy that night and only saw one or two vehicles ahead of him a long way off. He said that he approached the scene of the accident going at about 70 kph. in the middle lane when he noticed in his rear view mirror many lights coming very fast behind him, which he took to be motorcycles as they were single lights rather than pairs, like car headlights, and they seemed to be moving from lane to lane. He put the number of them at more than 3 or 4. He said one went past him in the outer lane at high speed, over 100 kph, then he saw another immediately behind him which tried to cut in to the left lane. He heard a sound which he described as a low sound like a bang of a stone hitting the car, and which he had described in the Magistrate's Court as a "brushing" sound, but kept on driving and when he looked in the rear view mirror could see nothing untoward and only one or two vehicles behind him. So he said he carried on until he arrived at his girlfriend's office when he noticed the damage to the nearside rear of his car and reported to Shek Kip Mei police station that he may have been involved in an accident. He was later convicted after trial of failing to stop after an accident, but acquitted of careless driving.

11. The only other witness to give evidence was the police officer who attended the scene, drew a sketch plan showing the scrape marks on the road made by the motorcycles, and took brief statements from the Plaintiff and the 2nd Defendant.

12. In the light of this evidence, which of the accounts of the accident is most likely to be true?

13. That of the Plaintiff and the 2nd Defendant has no inherent implausibility in it. As a matter of common sense, it could well happen that a car moving from one lane to another and cutting in on another vehicle, could come into contact with it, and if that other vehicle was a motorcycle, it does not take much imagination to see that a sudden impact could throw the rider off balance to the extent that he loses control and falls. On the other hand, it is difficult to see why, except in the case of extremely dangerous driving, one of two motorcycles on a three lane road should collide with the only other vehicle in front of them.

14. The 4th Defendant's account, while possible, lacks credibility in a number of ways. On the evidence before me of the collision between the two motorcycles after the impact with the car, which was never seriously challenged, it is apparent that the Plaintiff was on the left lane of the road and behind the 2nd Defendant. Yet the 4th Defendant says that he saw no other motorcycle but the one which hit him, although he says that this is because he was dazzled by the headlight of the one behind him. He went on to say that immediately after the sound he heard, which he now realizes must have been the impact between the motorcycle and his car, he did not hear the sound of falling motorcycles nor see any sign of an accident. Indeed, he says that when he checked his mirror, he could not see any motorcycles at all.

15. I find this evidence very difficult to understand. If, as he claims, a number of motorcycles were coming up behind him fast prior to the accident, only one goes past in the outer lane, another hits the rear of his car, where are the others? He saw no others go past and says he could see none in his mirror a short time later. Further, if his account is true, that these motorcycles were travelling at a speed much in excess of his own, and the collision of one with his car occurred, which must have resulted immediately in it falling and colliding with the motorcycle a few yards behind it, they would not have stopped dead, leaving his vehicle to proceed forward, but have been carried forward by their own momentum. This would mean that, at the very least, the collision between the two motorcycles was very close to the 4th Defendant's car and it is inconceivable that he was not aware of it or did not see it, or the motorcycles on the road, in his mirror. Yet he says he did not.

16. It is suggested on behalf of the 4th Defendant that the Plaintiff and the 2nd Defendant have concocted their account of this accident, and that they did so in the 20 minutes or so after the accident and before the police arrived.

17. The evidence of the Plaintiff and the 2nd Defendant is again similar in respect of the events immediately following the collision between their two motorcycles. They were thrown from their vehicles on to the road and both sustained injuries. I do not have before me the precise nature of the injuries, but it is clear from their evidence and the medical report I have seen on the 2nd Defendant that they suffered abrasions over several parts of their bodies, a number of contusions and sprains, and, in the case of the Plaintiff, a fracture of the 5th metatarsal in the right foot. There must also have been an element of shock.

18. The 2nd Defendant says that his first concern was to get his motorcycle off the road where it might be a danger to others, and, in spite of the pain he felt, he retrieved it and pushed it on to the hard shoulder and leant it against the side. He said he then felt very painful so he lay down and did not want to move. He did not speak to the Plaintiff.

19. The Plaintiff said that he could not move at all at first and remained lying down, he thinks about 10 feet from the 2nd Defendant and says that apart from shouting out at one stage that he felt very painful, he too did not speak to the 2nd Defendant. They were in any event still initially wearing their crash helmets which made communication difficult. The only persons that the Plaintiff said he spoke to were two motorists who stopped to see if they could help. The first said he would call the police, and the second removed his crash helmet for him.

20. It is apparent from the photographs that the Plaintiff's motorcycle had also been moved to the side and put on its stand, but it is not clear whether this was done by the Plaintiff, one of the motorists, or the police officer who was first on the scene. The latter, PC 19872 Chan Chi Tout, said that when he arrived both motorcycles were lying down, so it may well have been after that that it was moved.

21. The police officer went on to say that the Plaintiff and the 2nd Defendant were by that time sitting at the side of the road, about 10 feet apart, and their obvious injuries included abrasions all over their bodies. He said that he interviewed each of them, out of hearing of the other, about the circumstances of the accident, and each told him the same story that the car had cut into the lane the 2nd Defendant was driving in and caused a collision.

22. Their account has been largely the same since then, in their formal statements to the police, in the Magistrate's Court hearing, in their witness statements, and in their evidence before me.

23. I do not find it credible that these two, in the immediate aftermath of a moderately serious accident, when they were shaken and injured, got together to devise an explanation for the accident merely to exonerate the 2nd Defendant. After all, the Plaintiff had no reason to go to such trouble for the 2nd Defendant, who was not even a close friend, having only known each other a month.

24. Both the Plaintiff and the 2nd Defendant denied having discussed the accident since. I find that difficult to believe, but even if they are lying about that, it does not alter the fact that they had little opportunity and less motive for concocting the story of the accident they gave to the police officer at the time.

25. However, if one looks at the 4th Defendant, I do not find it difficult to see why he might have reasons for wishing to disguise the truth.

26. He also was a young man, then 24, with the benefit of a university education in England, and a member of the Fire Services, being a Station Officer on probation for three years of which he had two years to go. He admitted he liked sports cars, having had one in U.K. and having bought this, a Nissan 200 SX turbo, with his girlfriend earlier that year. He also seems to have had trouble adhering to speed limits, having been convicted five times before this accident of speeding offences, to the extent that he had lost all the points on his licence and was waiting for a summons to go to court to have it taken away, which duly happened later that year when he was disqualified for three months. Since then he said he has had two further speeding offences.

27. For the reasons I have given above, I am satisfied that the 4th Defendant must have known that the collision between the motorcycles had occurred. If he was, as he claims, totally blameless, he had nothing to lose by stopping to see if anyone was injured, and if he could help. Indeed, as a fire services officer it must be his duty to do so. He admitted in cross-examination that he thought an accident might have happened, although he did not know it had, but said that it may not have been safe to stop on the hard shoulder, which was admittedly narrow there, but he also said that he did not even slow down, and continued on his journey to Kowloon.

28. There is, in the case of the 4th Defendant a possible explanation for his behaviour. This is that he was well aware of his driving record and knew that if he were found to be responsible for an accident such as this, he might lose his licence for very much longer than he was otherwise likely to.

29. When he arrived at his destination, saw the damage to his car, no doubt realised the possibility that the car had been identified, the only sensible course was to report the matter to the police, when he gave the account of that night that he gives now. It is apparent that he had by that time had an opportunity to think about what account he would give.

30. I regret that I do not accept that account. The 4th Defendant's evidence I do not find convincing; it lacks credibility, and to a large extent, in his account of what he says he saw that night, common sense. I consider it more likely that, possibly succumbing to the temptation of a fast car and an open road at night, he was driving faster than he should have been, overtook the 2nd Defendant and, through an error of judgement, pulled into the middle lane before he was clear of the 2nd Defendant's motorcycle, causing the vehicles to come into contact and the 2nd Defendant to fall and collide in turn with the Plaintiff.

31. I accordingly find that the account given by the Plaintiff and the 2nd Defendant is more likely than not to be the true account of what happened that night and that the 4th Defendant was guilty of negligence in the way he drove his car. The 3rd Defendant is sued as the owner of the car driven by the 4th Defendant. There has been no case put forward to me that she should not be vicariously liable for the 4th Defendant's negligence, and, indeed, on the evidence of the 4th Defendant that the purpose of his journey was to collect her from her work, it would be difficult for her to say that it was not undertaken at least partly for her benefit. I accordingly also find her vicariously liable.

32. As is usual in these cases, contributory negligence has been pleaded against the Plaintiff and the 2nd Defendant and I must consider it.

33. From the findings I have made above it is obvious that the behaviour of the 4th Defendant caused an emergency situation which I am satisfied the 2nd Defendant attempted to avoid. Having failed to do so, he fell directly in the path of the Plaintiff who had no chance to avoid him. The only possible way that they could be in any way to blame themselves would be if there was evidence of excessive speed on their part, as a result of which they gave themselves less opportunity to avoid the danger thereby created. I find none here, and accordingly find no basis on which there could be a finding of contributory negligence against either of them.

34. There will accordingly be judgment on liability for the Plaintiff against the 3rd and 4th Defendants in HCPI 610 of 1997, and for the Plaintiff in HCPI 864 of 1997, with damages in each case to be assessed by a Master.

35. There will also be an order nisi that the 3rd and 4th Defendants pay the costs of the Plaintiff and the 2nd Defendant in HCPI 610 of 1997, and the Defendant pay the costs of the Plaintiff in HCPI 864 of 1997, to be taxed on a party and party basis. The Plaintiff's costs in HCPI 610 of 1997 recoverable from the 3rd and 4th Defendants are to include those costs incurred in prosecuting his action against the 1st and 2nd Defendants.

36. On 7th September I gave leave to the Plaintiff to discontinue these proceedings against the 1st Defendant, and to the 1st Defendant to discontinue his notice of contribution and indemnity against the 3rd and 4th Defendants, and said that I would deal with the matter of costs arising from the discontinuance at the conclusion of these proceedings. I consider it reasonable in the circumstances for the 1st Defendant to have been joined by the Plaintiff and see no reason why he or the 2nd Defendant should suffer as a result by way of costs. I accordingly make an order nisi that any costs incurred by the Plaintiff and the 2nd Defendant in respect of the 1st Defendant being a party to the proceedings should be added to their costs recoverable from the 3rd and 4th Defendants, and that there be no order as to costs in favour of the 3rd and 4th Defendants in respect of the discontinuance of the 1st Defendant's notice of contribution and indemnity.

37. The Plaintiff's and the 2nd Defendant's own costs are to be taxed in accordance with Legal Aid Regulations.