THE KOWLOON MOTOR BUS CO., (1933) LTD. v. MR WONG KWOK LEUNG

HCPI778/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES

ACTION NO. 778 OF 1998

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J U D G M E N T

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1. The plaintiffs in this action are claiming the cost of repairs and consequential expenses arising out of damage caused to the rear offside of one of the KMB buses in a collision with the defendant's Mitsubishi motor car on the evening of 20 February 1993.

2. The defendant has, relatively late in the day, claimed damages for his personal injuries by way of counterclaim. I say "relatively late in the day" because the claim for the cost of repairs to the bus was reflected in a writ issued on 9 May 1996, three and a quarter years approximately after the collision, and the claim for damages for personal injuries by way of a counterclaim is dated June 1998, some years after the expiration of the three-year limitation period, but permitted by reason of the fact that it arose out of the cause of action upon which the plaintiffs rely for their claim.

3. The bus concerned had developed some mechanical trouble when travelling along the Lion Rock Tunnel Road. It discharged its passengers, and after some help from a service vehicle, limped on its way at a low speed for a little while, eventually breaking down on the road's westbound three-lane carriageway opposite Julimount Garden. The service vehicle was again requested by contact with another bus. In the meantime, the driver, Mr LO Wing-kan, affixed some newspaper to the rear window of the bus, left on or switched on the interior right-hand side lights, and switched on at some stage the hazard lights, and also left on rear lights.

4. I have listened carefully to his evidence and considered it in relation to the photographs taken at the scene of the collision. The newspaper can be seen in the photographs. There is also large white lettering, letters and numerals, high on the back of the bus. The offside rear hazard light is according to the photograph illuminated, or that is certainly what it appears to be. I am less certain as to whether the photographs show the rear lights illuminated. It is equally impossible to be sure that the photographs actually demonstrate that the interior lights on the right-hand side of the bus are illuminated, but there is some indication in the middle photograph on page 19 to that effect.

5. But Mr LO is an experienced driver. This was not the first time a bus driven by him had broken down. He knew what the standard procedure was, and I believe that he followed it. I am satisfied that the bus was illuminated to the extent that he describes. I have considered the fact that in his police statement he stated that the hazard lights were switched off, but that does not seem to me to make sense in the context in which it appears, nor do I think it makes sense in the context of the events of this evening, and I am satisfied that that statement, or that particular sentence in that statement, contains a mistake on the part of the writer or some misunderstanding, despite the fact that it was signed by Mr LO Wing-kan.

6. There is sodium street lighting shown in the photographs. It has since been repositioned, but at that time it was functioning and illuminated the road to some extent. It was a clear night with good visibility. It was a straight section of the road. The bus ought to have been clearly visible to any other careful road-user. Although the company did not, it seems, provide its drivers with any equipment to position on the road to the rear of the bus as a specific warning to approaching traffic such as a reflective triangle, flashing road lamp or cones, I do not consider that to have been necessary in this case, or its absence indicative of negligence or nuisance. The bus was adequately illuminated.

7. Nonetheless, to my mind, it would be prudent of the company to supply such equipment because one can easily envisage a situation where the degree of illumination would not be as extensive or comprehensive as it was on this occasion. Road and traffic conditions vary considerably. This then was the picture on this evening with the large double-decker bus blocking the nearside lane, leaving two other lanes free for traffic to proceed. The defendant somehow managed to collide with the rear of the bus, the front nearside of his car striking the rear offside of the bus, probably at an angle. He was subsequently prosecuted for careless driving and pleaded guilty.

8. The defendant's case in answer to the plaintiff's claim and as the basis of his claim for damages for his injuries has changed somewhat in the course of this trial. In his proof of evidence he alleged that there was a slower moving bus in the middle lane which had crossed from the outer lane. He decided to move into the inside lane to avoid inconvenience and delay to other vehicles already lining up behind his car. So he switched to the nearside lane, a bad and thoroughly dangerous overtaking course if that was his intention, and as a consequence struck the rear of the stationary bus. The bus, he said, was dark, no lighting at all.

9. In evidence he gave a different version of events which can be summarised as follows: as he was travelling in the middle lane a bus cut across into his path from the outer lane, causing him to swerve to his left and strike a stationary bus which he had not previously seen. This is not the case pleaded in his defence and counterclaim. There is not a hint of this in the statement he gave to the police officer. It does not feature in his proof of evidence. He did not put forward any such story in mitigation. He accepted the statement of facts prepared for the magistrate's court proceedings.

10. His statement to the police does not mention anything about a dark, unilluminated bus as being responsible for his problem. Although he offers some explanation for the omissions from the statement, they are scarcely credible. There is no real explanation for his failure to make any mention of these matters at the magistrate's court. It is apparent that he did not report this accident to his insurers, even though he was comprehensively insured, a matter which has been explored to some extent but which I do not need to deal with here.

11. I suspect the reason for the latest version from the defendant has developed from a belated realisation that the earlier story, which involved attempting to overtake the slow-moving bus on the inside lane, was so readily indicative of negligence that some other explanation had to be put forward to explain the move onto the inside lane.

12. More important, however, is the picture demonstrated by the police sketch plan of the scene and the photographs. The defendant's vehicle left a brake mark of 16.8 metres length. It seems to have been caused by the front nearside tyre. The plan shows that it commenced when that tyre was well within the middle lane. That simply and obviously means that the defendant's vehicle started to brake, or at least the tyre started to leave its tyre mark, when it was wholly within the middle lane. The mark and the vehicle start to enter the nearside lane just before the point of collision. The brake mark continues right up to the point of impact.

13. The photographs confirm the angle and the position of the defendant's vehicle in relation to the lanes. The vehicle moved slightly to its offside after impact, as can be seen from the last four metres or so of the brake mark which is angled from the continuous dividing line of the lanes towards the offside of the bus.

14. This plan shows that the sketch drawn by the police officer on the defendant's instructions, because that is how it came into being and the defendant said as much in evidence, does not in at least one material respect fit the facts of this case. The defendant was not at any stage wholly in the nearside lane, but was wholly in the middle lane at the time that the braking, the effective braking, leaving the mark caused by the tyre, was started, whatever it was that caused the defendant to take that action.

15. Another important conclusion to be drawn from his sketch is that nothing on it suggests that the moving bus cut into his lane causing him to react as he suggested in his evidence, but I have already rejected that version as a late and unacceptable story. Mr Tracy, on behalf of the defendant, postulates the explanation that the defendant had at one stage moved into the inside lane, become aware of the stationary bus, begun a braking action which caused the tyres to lock when he was back in the middle lane, with the car eventually pulling into the nearside, into the rear offside corner of the bus. That is not, of course, the evidence of the defendant.

16. It may well be that the final position of the defendant's vehicle, which brought it into collision with the stationary bus, was occasioned by the vehicle's own momentum under braking rather than by a deliberate, conscious, evasive action. In my view, the braking marks' position and track are wholly consistent with the defendant approaching some other vehicle in the middle lane at too fast a speed in the circumstances, and his braking action caused him to avoid a collision with that preceding vehicle, which he has described as moving slowly, only to strike the offside rear corner of the stationary bus on his nearside.

17. In addition to excess speed, relatively speaking, he misjudged the situation entirely, in particular his own speed in relation to the traffic conditions. The bus was adequately illuminated and created no hazard for him. The hazard was created by his own driving entirely and in my view, he was wholly responsible for this collision.

18. Accordingly, there will be judgment for the plaintiff for $53,578.24 with costs. There will be judgment for the plaintiff on the counterclaim which is dismissed, with costs, all such costs to be on a High Court scale.

MR ISMAIL: My Lord, there is the question of interest, my Lord.

COURT: Yes. Interest runs from - what's the date of the writ?

MR ISMAIL: The date of the writ, my Lord ...

COURT: May, 9 May.

MR ISMAIL: Yes, 9 May 1996.

COURT: 1996.

MR ISMAIL: Yes.

MR TRACY: I don't think I can say anything in relation to that, my Lord.

COURT: No. Thank you, Mr Tracy. Well, there will be interest on that sum from that date at the prevailing rates for the periods. I think it's just gone down.

MR ISMAIL: Yes, my Lord. There is one small matter - there had been previous orders for costs in the cause, my Lord. I think that no doubt will follow from your Lordship's order that that was to go to the plaintiffs.

COURT: Yes.

MR ISMAIL: Yes.

COURT: Yes. Yes, all costs in the cause are determined by the judgment and the order for costs.

MR ISMAIL: Yes.

COURT: Gentlemen, thank you very much.