WONG YUET HEUNG AND ANOTHER v. CHAN TSANG HUNG AND OTHERS

1986, No. A3763

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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JUDGMENT

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1. The Plaintiff is the Administratrix of the estate of LAU Yuk Fung who died as a result of injuries sustained in a traffic accident on the 13th November 1984. The deceased, a young woman, was aged 18 at the time of the accident. The question of quantum has been adjourned pending judgment on liability.

2. On the afternoon of the 13th November 1984, three young men Chan Tsang Hung (1st Defendant), Chan King Hung, the fiancee of the deceased, and Chan Wing Tong hired motor cycles from the Kam Lun Motor Cycle Company, the proprietor of the company being Yiu Chi Kam (2nd Third Party). The 1st Defendant was the only one of the three men to hold a full motor cycle driver's licence, the other two holding only provisional licences. For that reason the deceased rode as the pillion passenger on the 1st Defendant's motor cycle. They were all wearing crash helmets which had been hired from the 2nd Third Party.

3. The three motor cycles were being ridden along Castle Peak Road in a westerly direction towards Tsuen Wan with the intention of returning the hired cycles before 4.30 p.m. Castle Peak Road is a two-lane highway in a westerly direction and the motor cycles were travelling in the inner lane, that nearest to the road side. As the riders approached Yip Shing Street, they were travelling in a line with the 1st Defendant leading, Chan King Hung following him with Chan Wing Tong some distance to the rear. Yip Shing Street joins Castle Peak Road from the left and the exit to Castle Peak Road is controlled by a compulsory stop sign.

4. Chan King Hung gave evidence for the Plaintiff. He said that when he was 30 to 40 feet from Yip Shing Street, he saw a goods vehicle in Yip Shing Street travelling towards the junction with Castle Peak Road. He did not pay any attention to this vehicle. As he got to the junction with Yip Shing Street, the goods vehicle turned out into Castle Peal Road and entered the path of the 1st Defendant's motor cycle. It was the opinion of Chan King Hung that the presence of the goods vehicle resulted in the 1st Defendant switching lanes and moving one foot or so into the outer lane in an attempt to overtake the goods vehicle. Chan King Hung also wished to switch lanes because of the presence of the goods vehicle, he looked behind him to the right and saw a goods vehicle travelling in the outer lane approximately 10 feet to his rear and at a speed greater than his. He estimated his speed to be approximately 30 miles per hour. On seeing the approaching goods vehicle he decided not to attempt the overtaking maneuver, he looked again to the front and saw that the 1st Defendant was still travelling in the outer lane. The goods vehicle in the outer lane went past him and reached the rear of the 1st Defendant's motor cycle very quickly. Chan King Hung heard the goods vehicle driver sound the horn and there was a flash of brake lights at the time the horn was sounded. After this there was an impact and the 1st Defendant and the deceased fell to the ground. The deceased sustained head injuries from which she died. After the accident it was found that at some stage during the incident the deceased's helmet had fallen off, but there is no evidence that this had been improperly secured or was being improperly worn. Chan King Hung was able to bring his motor cycle to a stop without hitting the goods vehicle which had emerged from Yip Shing Street.

5. The evidence of the 1st Defendant confirms most of the detail of the evidence given by Chan King Hung. The 1st Defendant's evidence is that when he saw the goods vehicle in Yip Shing Street, it was slowing down as it approached the compulsory sign stop with Castle Peak Road. He could not be sure that it actually came to a stop but it unexpectedly emerged into Castle Peak Road right into the path of the approaching motor cycles. The 1st Defendant said he had almost reached the junction when the goods vehicle emerged and this evidence is supported by the sketch of the scene drawn by PC 13050.  The sketch shows that the scratch marks made by the 1st Defendant's motor cycle as it slid along the ground after the collision commenced almost opposite the western side of the junction with Yip Shing Street.

6. As a result of the emergence of the goods vehicle, I accept that the 1st Defendant was put into an emergency situation. I have to decide whether from that point on his driving could be said to be negligent in any way.

7. Chan King Hung was not able to say how close the 1st Defendant was to the goods vehicle when it turned out from Yip Shing Street into Castle Peak Road. It is the 1st Defendant's evidence that he had to make a quick and difficult decision and I accept that. He elected not to brake because he says he was so close to the goods vehicle he was afraid he would collide with that vehicle if he attempted. to stop and I accept that.  He therefore took the other option, that was to attempt an overtaking maneuver of the goods vehicle. His evidence says that he took a quick look to the right but had no time to check the outer lane thoroughly nor to give a signal of his intentions. He moved a foot or so into the outer lane and was therefor a few seconds by which time he had got parallel to the right rear of the emerged goods vehicle. He then heard the sound of a horn and although he wished to move back into the inner lane, it was not possible for him to do so because of the presence of the first goods vehicle. He saw a goods vehicle in the outer lane come alongside him, the cabin of that vehicle went past him and it is his impression that the tray of the goods vehicle touched the handle bars of his motor cycle causing him and the deceased to fall from the motor cycle.

8. It is of course unfortunate that the driver of the goods vehicle which came out from Yip Shing Street is not before the Court as quite clearly it was his driving which initiated the sequence of events which result in the accident. I am satisfied that the 1st Defendant was as a result of that unknown driver's actions put in a position of great danger and I am satisfied that he was justified in thinking that an attempt to brake could result in a collision with the rear of the goods vehicle. I am satisfied that he was in no way negligent in electing to move into the outer lane which was at the time clear to his immediate right. The claim in negligence against the 1st Defendant therefore fails and the action against him is dismissed, with costs.

9. The Plaintiff also alleges that the 2nd Defendant, the driver of goods vehicle DB 4330 was negligent. As the 2nd Defendant, the only other witness to the accident, elected not to give evidence, I am left to decide the question of his liability on the evidence which comes from the 1st Defendant and from Chan King Hung.

10. As I have already stated I accept the evidence from these two witnesses that the 1st Defendant was put into an emergency situation by the emergence of the goods vehicle from Yip Shing Street.  I also accept their evidence that when the 1st Defendant moved his motor cycle into the outer lane, the 2nd Defendant's vehicle was travelling in the outer lane and to the rear of Chan King Hung's motor cycle by approximately 10 feet.  It is Chan King Hung's evidence that he was at that time approximately 10 feet behind the 1st Defendant.  The evidence is therefore that at the time the 1st Defendant moved into the outer lane, the goods vehicle of the 2nd Defendant was some 20 feet to the rear of the 1st Defendant's motor cycle, travelling in the same lane. I am satisfied that if the 2nd Defendant had been keeping a proper lookout, he should have seen the goods vehicle emerged from Yip Shing Street and the difficulties which this maneuver placed the 1st Defendant in. From a distance of approximately 20 feet to the rear of the 1st Defendant, he should have observed the 1st Defendant then travelling in the outer lane.

11. The evidence of Chan King Hung is that a goods vehicle went past him and up to the rear of the 1st Defendant's motor cycle when the 2nd Defendant sounded the horn of his vehicle and the brake lights flashed. From this evidence I draw the inference that the 2nd Defendant applied and then released the brakes on his vehicle. It is the 1st Defendant's evidence that when he heard a horn he was not able to move back into the inner lane because of the presence of the first goods vehicle and I accept this evidence. This is also something that the 2nd Defendant had he been paying attention should also have seen. Whilst still in the outer lane, the 1st Defendant says the cabin of the truck went past him and it is his belief that the tray hit the handle bars. The inference I draw from this evidence is that the 2nd Defendant elected to try and go past the 1st Defendant presumably in the belief first that he had room to do so and secondly that in sounding his horn he had done sufficient to draw to the 1st Defendant's attention the presence of his goods vehicle. In electing to take this course of action and in not fully applying emergency brakes when the 1st Defendant was in the outer lane in front of his vehicle, the 2nd Defendant was driving without due care and attention and his actions contributed to the accident which took place.

12. There will therefore be judgment against the 2nd and 3rd Defendants in damages to be assessed with costs reserved.

13. The Third Party action brought by the 2nd and 3rd Defendants against the 1st Defendant as Third Party is dismissed with costs.

14. I turn now to the action brought by the 1st Defendant against the 2nd Third Party.   The 1st Defendant seeks an indemnity against the claim of the Plaintiff, damages and costs.  As the case against the 1st Defendant has been dismissed, the Defendant is now no longer in need of the remedy sought but nevertheless the action needs to be dealt with.

15. The remedy sought is based on the alleged negligence of the 2nd Third Party in not reporting the accident to his insurers under the Motor Vehicle Insurance (Third Party Risks) Ordinance Chapter 272. It is not in dispute that the 2nd Third Party was the owner of motor cycle CP 2681, the cycle being driven by the 1st Defendant, nor that there was in force at the time a valid Third Party insurance policy. The Insurers were not notified of the accident which resulted in the death of the deceased until 1986 and the insurance company in due course repudiated liability because of this. The 2nd Third Party was not legally represented at the hearing and his defence was clearly a document prepared without legal advice. He elected not to give evidence but nevertheless his pleading put in issue his knowledge at the time that a  Third Party had been injured in the accident. The onus was therefore on the 1st Defendant to prove on the balance of probabilities that the 2nd Third Party did have such knowledge. In his pleading the 2nd Third Party acknowledges that he knew his motor cycle had been involved in an accident, that he reported to the Traffic Accidents Enauiry Section and produced his certificate of insurance. His pleading states on the 31st July 1986 he received a letter from the Plaintiff's solicitors stating that the accident had resulted in the death of a person. Chan King Hung and Chan Wing Tong gave evidence of having negotiations with the 2nd Third Party concerning the damage to the motor cycle and of having paid compensation for that damage. Neither of these witnesses however gave any evidence of having told the 2nd Third Party that the deceased had been killed. I am asked to draw the inference that in all of the circumstances the 2nd Third Party must have known of the deceased's death but on balance that is not an inference I feel I can draw. The 1st Defendant having failed to prove that the 2nd Third Party knew of the injury to the deceased prior to 1986, when the insurance company was advised, the claim against the 2nd Third Party fails and is dismissed with costs.