LUI KWAN v. CHEUNG HON KAU AND ANOTHER

1987, No. A4672

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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JUDGMENT

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1. On a wet day on the 2nd September 1984 at about 1:30 p.m., an accident occurred. The plaintiff was one of the-three passengers in a taxi, Registration No. CY4566, driven by the 1st defendant and owned by the 2nd defendant. The taxi crushed into the iron railings on the pavement just past the Fire Station on the westbound carriageway of Chai Wan Road. As a result of the accident, the plaintiff, a front-seat passenger, sustained injuries. By this action, the plaintiff claims damages for negligence against both defendants. Quantum and apparently injuries have been agreed. The Court is called upon to determine the question of liability.

2. That stretch of Chai Wan Road is a dual carriageway with the eastbound and westbound traffic divided. The westbound carriageway approaching the scene of the accident is in three lanes. The off-side lane running up to the junction is reserved for turning right across the eastbound traffic into the Lei Yue Mun Barracks. The scene of the accident was a little down west just beyond the junction. Both the middle lane and the nearside lane are for westbound traffic along Chai Wan Road. Also at the junction lies the entrance to a Fire Station leading from the kerb of the nearside lane. Traffic flow for the barracks also joins the junction from the north through the eastbound carriageway to the westbound carriageway. Therefore, road users of the southern portion of the junction may be from the barracks, the traffic on the westbound carriageway turning right for the barracks, the westbound traffic on the westbound carriageway and the Fire Station.

3. It was a wet day, drizzling before the accident. The road surface was wet and slippery. The westbound carriageway is steep. Both the plaintiff and her sister-in-law testified that the taxi was travelling fast. Their respective statements to the police were also tendered. The plaintiff further caused to be adduced police statements from an eye-witness and the 1st defendant, which were said to be relied upon insofar as they contain admissions, evidently read in the whole context of those respective documents.

4. The plaintiff sought to take advantage of Res Ipsa Loquitur as well as other evidence of negligence against both defendants. At the conclusion of the plaintiff's case, for the reasons given, the statements to the police of both the eye-witness and the 1st defendant were admitted also on behalf of the defence. It was submitted that the collision against the iron railings, being merely a state of the evidence from which a possible inference of negligence may be drawn, must be evaluated with these statements and all the other known scenario to see if it was still proper and reasonable so to draw that conclusion. It was contended that in an overall consideration of the proven facts, such a prima facie inference of negligence might not be warranted and that the defendants could not in fact be negligent in an emergency in which the 1st defendant was driven to attempt his "incompetent best" on the spur of the moment to avoid a collision. It was in evidence that another taxi had been cutting across the eastbound carriageway "ready" (or "intending") to turn right into the westbound carriageway of Chai Wan Road and that it had continued to, without pausing, steer into the middle lane edging over a part of the nearside lane of that westbound carriageway at the junction.

5. As for the four written statements from the plaintiff, her sister-in-law, the eye-witness and the 1st defendant, they all suffer from the usual pitfalls in an attempted evaluation. They were obtained for a purpose of their own, probably intended to capture the result of a cursory investigation as part of the procedural constabulary preliminaries, and expected to be rather informative than in detail. The circumstances and the manner in which these statements were taken were not canvassed before this Court. Moreover, the makers were not available for their credibility to be tested. The court was not aided by their viva voce evidence. There was no personal attendance for observation. But I should attach no real significance to the very non-attendance of the defendants. For reasons, good, bad or indifferent, they do not seem to be interested in these proceedings.

6. On the liability contested, I shall have to consider the whole of the evidence, including the statements, bearing in mind the disadvantages some of which have been highlighted, but not the defendants' mere election to absent themselves from these proceedings.

7. I have endeavoured to examine the evidence on various approaches and from different planes. I propose to set out only the reasons for what I finally regard as the correct approach. From the description of the journey by the plaintiff and her sister-in-law, the stationary position of the taxi after the accident, the statement of the independent eye-witness Mr Wong and the statement of the lst defendant, I am virtually driven to the conclusion that there had been skidding before the collision.

8. I am particularly impressed by the stage-by-stage eye-witness account of Mr Wong Kai-wah that the 1st defendant's taxi swerved to the left to avoid colliding with that other taxi coming from the barracks across the eastbound carriageway into the middle lane, transgressing part of the nearside lane of the westbound carriageway of Chai Wan Road. He stated to the police :

"The taxi going westerly down the slope at once swerved left to avoid the other taxi. Then I heard noises of applying (brakes). The taxi going down the slope skidded forward. It did not come to a stop until it went into the iron railings on the roadside."

It was a graphic description of what he had observed in motion. Clearly, there was a skid.

9. In his answer to a police question as to why he did not brake to stop, the 1st defendant driver explained that "because I knew that if I applied the brakes, it would still skid forward to bump against it (or : I would still have skidded forward and crashed into it.)" The 1st defendant took the view, in effect, that he would have skidded all the same - in any case. The 1st defendant's statement corroborates Mr Wong's testimony as to skidding and at least it contains nothing inconsistent with a skid. The plaintiff's sister-in-law also claimed that she "heard" a skid.

10. Skidding would bring about the most unpredictable consequences and incredible results. I am not persuaded that with skidding in this case the maxim of Res Ipsa Loquitur can have any role to play. In my view, the collision with the iron railings is not, per se, prima facie evidence of negligence.

11. I have constantly reminded myself of matters affecting the weight of the statements and of the evidence of the plaintiff and her sister-in-law, including the usual incentive to rally to the support of a common cause, such as : that the statement of the plaintiff was taken some 13 days after the accident with her sister-in-law's taken soon after the accident - the former after a time lag and the latter before tension subsiding; that the plaintiff had lost consciousness until she reached hospital; that they were both police statements; that the sister-in-law was recorded as being in the wrong seat; that the trial began over six years after the accident; that both the plaintiff and her sister-in-law did not notice the other taxi coming from the barracks across the eastbound carriageway into the westbound carriageway; that the plaintiff turned and enquired about the time from the passengers in the rear; that her sister-in-law was unconcerned with the surroundings; that the plaintiff took the object which the taxi had rammed into as likely to be a bearing wall; that they were both imprecise as to the taxi route from the Chai Wan Cemetery; that on the whole their evidence is not too compelling etc.

12. But I accept as sufficiently proved from the evidence of the plaintiff that after leaving the Chai Wan Cemetery visiting a grave, her taxi went through a winding way, then going round a corner down to a slightly sloping road before entering the major section for the fateful accident. I also accept her evidence that the taxi was driving so fast that she felt "frightened". Both the plaintiff and her sister-in-law are not drivers. The sister-in-law testified that the taxi was driven "very fast". However, she did at one time concede that her impression of the speed was by comparison with an uphill travel speed. The plaintiff explained that after the slightly sloping road, the speed of the taxi was even faster. She was quite adamant that she was frightened by the speed. These ladies had past experiences in taxis, but the court was not assisted as to the location, hours of the day and traffic condition in respect to those taxi journeys they had previously taken. The plaintiff and her sister-in-law are, I find, essentially honest witnesses. I accept the taxi as travelling relatively fast, but it is always a matter of degree. Their impression can only be of peripheral assistance. The real test is whether the speed at which it was travelling was excessive in the circumstances.

13. The statement of the 1st defendant discloses that the 1st defendant driver was on the third gear in a Datsun. The statement does not contain any reference to the 1st defendant lifting his foot from the accelerator pedal. The 1st defendant stated that he was travelling "at about 30 m.p.h." and that "the traffic was smooth". He was aware that "the road was wet and slippery". There is no evidence that the 1st defendant was ever prosecuted by the police for the accident. So the 1st defendant continued : at the last stage when the other taxi "suddenly cut into (his) traffic lane",with about two car lengths left for action, he slowed down and "immediately swerved to the left" for the nearside lane. If the taxi driven by the 1st defendant had been going down the slope at a lower speed, it might still have had to slow further down but he probably would not have had to swerve to avoid the other taxi. The 1st defendant did not make any assertion in his statement to the police that he was travelling under or at much less than 30 m.p.h. He was recorded as having said : "about 30 m.p.h.".

14. It really matters not what the permitted speed along the stretch of the road was at the material time. It was wet, slippery and steep. The 1st defendant's taxi was travelling "about 30 m.p.h." on approaching a stretch before a junction with road users likely to emerge from both sides, the North and the Fire Station. In addition, he was approaching the entrance of a Fire Station, access to or egress from which should have been realized by the 1st defendant to be almost invariably "sudden". Taking an overall view of the evidence after much deliberation, I find that the 1st defendant's taxi was probably travelling in excess of 30 m.p.h. or at least at an unsafe speed in the circumstances.

15. A speed of "about 30 m.p.h." was, in my view, decidedly not a safe speed. mr Pirie, counsel for the defendants, was unable to confirm that notice had not been issued to alter the standard 50 m.p.h. speed restriction, but whatever was the permitted limit, it would have no bearing on the conclusion I have reached.

16. I have ignored the invitation for selecting the nearside lane by the roadsign of "keep Left Unless Overtaking". That was not a matter pleaded. Further, no evidence was led as to whether that sign was in existence at the material time. I have also disregarded what may be said to be proper precaution of sounding. his horn when the 1st defendant had or must have realised the potential risk generated by the continuous motion of the other taxi, giving no sign of a pause for yielding to his westbound traffic. The sounding of horn was also not pleaded. There was no mention in the 1st defendant's statement that he was expecting the other taxi to slow down or stop, waiting to blend in smoothly with the westbound traffic. On the contrary, it was stated that he "saw a taxi (Registration No. of which was not known) at the junction travelling southward intending to turn right to the westbound lane of Chai Wan Road." (Emphasis added) It was or must have been, in my judgment, apparent to the 1st defendant "that the danger was more than just a mere possibility". With that awareness of a potential risk, he should have reduced his speed much earlier.

17. For all these reasons, I find that the 1st defendant was travelling at an excessive speed in the circumstances. Further, upon realizing the potential risk of the other taxi apparently "intending" to compete for the use of his lane, he failed to slowdown sooner thus was at least driving henceforth too fast. But for his excessive speed in the circumstances, the accident would not have, on all probabilities, occurred. In my view, excessive speed was a cause of or a contributory factor to the collision. The 1st defendant was therefore negligent.

18. The 1st defendant in his statement disclosed the identity of the owner of the car as the 2nd defendant. Counsel for the defendants conceded that agency is not a live issue. Hence, the 2nd defendant is similarly fixed with the same negligence.

19. I pass then to deal more specifically with the alleged particulars of negligence. In my same analysis, I find the 1st defendant negligently failed to slow down upon at all upon approaching the junction, with all its attending features I have referred to. The 1st defendant failed to take care in the manner I have endeavoured to account for. He also failed to heed the presence of the other taxi "travelling southward intending to turn right to the westbound lane of Chai Wan Road". In the result, the 1st defendant, and through him the 2nd defendant, were both so negligent in causing the accident, injuries and loss to the plaintiff.

20. I have given this matter my concerned consideration and finally on my above analysis, the question of liability is resolved favourably to the plaintiff. Quatum has been agreed and I make an order nisi for costs against both defendants, such costs to be taxed in accordance with the Legal Aid Regulations.