LAM SAU KEE v. LAM YING CHUEN AND OTHERS

1986, No. A2936

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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JUDGMENT

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1. This is an action for damages in negligence under LARCO and FAO brought by the father and administrator of the estate of LAM Ying-wai who died on the 6th January 1985 as a result of injuries which he sustained in a collision in the evening of the 5th December, 1984 at around 9 p.m. at the junction of Connaught Road Central and Gilman Street between a motorcycle CZ8477 (the registered owner of which is the second defendant) on which the deceased was a pillion passenger and was driven by his younger brother LAM Ying-chuen (the first defentant/DW2) in an easterly direction, and a private Rover car BH3329 (the registered owner of which is the fourth defendant) driven by TAM Wing-kee (the third defendant/DW3) and was turning right into the junction towards Gilman Street from the westbound carriageway.

2. Paragraph 6 of the Statement of Claim avers that the accident was caused by the negligent driving of the first defendant as servant and/or agent of the second defendant, and/or the third defendant as servant and/or agent of the fourth defendant.

3. In their defence the first and second defendants aver that at the material time the motorcycle was being driven by the first defendant for his personal purposes and not as servant and/or agent of the second defendant. Negligence is denied by the first defendant, and paragraph 7 of the defence states:

 

"Further or in the alternative the said accident was caused solely or contributed to by the negligence of the third defendant as servant and/or agent of the fourth defendant."

4. In their defence, the third and the fourth defendants admit that at the material time the third defendant was driving the Rover as servant and/or agent of the fourth defendant Paragraphs 5 and 6 of the defence state:

 

"5.    The third defendant denies that he was negligent as alleged or at all and further denies that the said accident was caused as set out in the Statement of Claim. In so far as the same consists of allegations against the third defendant each and every allegation set out in paragraph 6 of the Statement of Claim is denied.

 

6.    If, which is not admitted, the deceased died following an accident as described in paragraph 3 of the Statement of Claim the same was caused or contributed by the negligence of the first defendant."

5. I should point out that during the preliminary hearing I gave leave to both drivers to amend their respective particulars of negligence alleged against the other by the addition of one item, namely, paragraph 7 (c.c.) the first defendant alleging that the third defendant turned into Gilman Street when the traffic light was showing red to him; and paragraph 5(h) the third defendant alleging that the first defendant failed to heed the traffic light on Connaught Road which was showing red to him.

6. On 22nd June 1988 a Master made the following Order on a consent summons:

 

"1.    The issue of liability in this action be tried prior to and separate from the issue of quantum;

 

2.    Upon the agreement of the parties at least one of the defendants must be adjudged liable to the plaintiff and subject to the determination of liability as between the defendants, the plaintiff be granted leave to enter judgment for damages to be assessed against the defendant or defendants so adjudged liable and further that the plaintiff be granted leave to withdraw from the preliminary hearing on liability."

7. Accordingly the plaintiff did not attend the preliminary hearing concerning the issue of liability as between the drivers of the two vehicles.

8. Certain documents were admitted, including, inter alia, a sketch plan of the scene (p.3); five black and white photographs taken by the police at the scene (p.4 - p.8); nine colour photographs of the junction in question and both the eastbound and the westbound carriageways of Connaught Road Central leading to the junction (p.9 - p.17).

9. The following facts were also agreed:

10. The case of the first defendant (DW2) briefly is that he was heading for HMS Tamar, where he was to drop the deceased, in the third lane of the eastbound carriageway which had five lanes. There was some traffic in all the lanes behind him. He first saw the traffic lights at the junction, which are indicated by a small circle in the left top of the sketch plan, p.3 (to be seen in the left of photograph p.3) when he was about 100 feet away, showing green to him. It was still at green when he looked at the same lights a second time from a distance of two vehicles' length, which he pointed out in court as being about 30 feet. There were no vehicles in the other lanes to his either side. He maintained his speed of 30 M.P.H. and did not observe the traffic in the opposite carriageway. He had only partially crossed the white line at the junction when for the first time he noticed the white private car coming from the opposite direction turning right. He said that it all happened all of a sudden. He swerved a "bit" to his left to try to avoid the car but as it was too near he collided with it. He said that he could not brake although he intended to, adding that he did not think that he could have avoided the collision even if he had braked.

11. The case of the third defendant (DW3) is that he was driving in the fourth or the outer lane of the westbound carriageway taking some friends - the Badams family of three whom he and his wife (DW4) had met at the airport - to the Outlying Islands Ferry Pier to catch the 9.30 p.m. ferry to Cheung Chau. He was driving at a speed of about 10-15 M.P.H. There was no traffic in front of him but there was some ahead of him in the other lanes to his left. He was about 10 yards from the junction when he saw the set of twin traffic lights located beyond the junction in the central divide (which can be seen in photograph p.10, behind the KMB Airport Coach) : One was showing a green arrow pointing right which was the indication for him; the other twin light was red for the through traffic. As he proceeded forward he noticed that the traffic in three lanes of the opposite carriageway was stationary in front of the white line, with a big lorry in one of the lanes. He turned right as the junction box was clear and the on-coming traffic was stationary. He had covered about two-thirds of the turn when he heard a very loud braking sound. He braked and stopped. He looked to his left and saw a motorcycle swerving along towards him, followed by the impact with the front part of his car. He said that apart from applying his brakes there was nothing else he could do as there was no time to do anything.

12. The police sergeant (DW1) who arrived at the scene soon after the accident said that he asked the driver of the motor car about the colour of the traffic lights when he turned Gilman Street. The driver's reply was: "I am very upset. Please don't ask me now for the time being."

13. Learned Counsel for the first defendant mentioned three possibilities which he described as the "three scenarios". This was common ground, and those scenarios are:

14. I was reminded of the Court's duty in such a case where each of the two drivers holds to the version that he entered the junction when the traffic lights were green to him. In Tingle Jacobs & Co. v. Kennedy, (1964)1 W.L.R. 638, 639, Lord Denning said:

 

"In such a case as this, whilst not accusing either side of dishonesty, one side or the other must be mistaken : and it is the duty of a judge in such circumstanes to come to a decision upon the conflict between them. The judge in this case unfortunately felt himself unable to come to a decision."

 

The judgment continues over the page:

 

"I am afraid that in this case the judge did not take the responsibility upon him to come to a decision between these parties. I think he ought to have found which of them crossed on the green; and therefore come to a conclusion as to which was to blame ."

15. It being agreed that the traffic lights were functioning properly at the material time, I may for the sake of convenience refer to the phasing diagram (p.28) according to which there are three phases at this junction as follows:

 

Phase A - allows through traffic in both carriageways as well as to turn left into both parts of Gilman Street, stopping traffic in the outer lanes of both carriageways turning right. Photographs p.9, p.11 and p.16 illustrate this phase.

 

Phase B - allows traffic in the outer lanes of both carriageways to turn right into both parts of Gilman Street, stopping all through traffic in both carriageways. Photographs p.10, p.12 and p.13 illustrate this phase.

 

Phage C - allows traffic from Gilman Street North to go across straight to the south, as well as to turn left into the eastbound carriageway or right into the westbound carriageway, stopping all through traffic in both carriageways. Photograph 17 illustrates this phase.

16. What I think is pertinent in the case of the first defendant in his insistence that he did not observe the traffic in the opposite carriageway. He agreed with the suggestion that had there been a large vehicle in the fourth or the fifth lane, that is, to his right, going the same way and if it were in front, it would have certainly blocked his view of the traffic lights to his right. On the same basis, it must follow that his view of the traffic from the opposite carriageway would be similarly obstructed. This indeed was the contention of the third defendant. However, the first defendant maintained that, leading the pack of other vehicles as he was from the Rumsey Street junction onward, there were no vehicles in front of him in the third lane nor in the other lanes on his either side and that he had a clear road in front of him. He said that as he proceeded to the white line he did not observe the traffic in the westbound carriageway.

17. Looking at the position of the two vehicles where they stopped after the collision as marked on the sketch plan at p.3 by both drivers, it is abundantly clear that this position is very much closer to the white line in the eastbound carriageway as it is farther from that in the westbound carriageway, indicating beyond any doubt that the third defendant had entered the junction box considerably earlier than had the first defendant, and to reach that position the third defendant would have gone past at least the two outer lanes of the eastbound carriageway.

18. Under cross-examination the first defendant said that he first saw the traffic light from a distance of about 100 feet and having seen it looked ahead. Likewise, having seen it again from a distance of about 30 feet, he again looked ahead. Yet he did not observe the white Rover in the junction box on either occasion.

19. Mr. Bharwaney (for the first defendant) cited the well known decision in Joseph Eva Ltd. v. Reeves, (1938)2 K.B. 393. He appreciated rightly of course that this authority has been "toned down" in subsequent cases. There is sufficient local authority to this effect, e.g., in KWAN Sing-ho v. KWAN Yuk-lan, (1976) H.K.L.R. 489 (Full Court) Pickering, J. said:

"... it would appear that since the case of Davis v. Hassan [Times, 12.1.67, (1967)117 N.L.J. 72 ] the former case is not to be considered as laying down the absolute rule which it was once thought to have established, but rather that every case of negligence concerning a traffic accident falls to be decided on its own particular facts."

20. In Au Cheung v. CHOI Lai-fan and Another, (1979) H.K.L.R. 543, 545, Roberts, C.J. said:

 

"I do not think, particularly in view of later cases, that the effect of Joseph Eva Ltd. is to relieve a driver of his obligation to keep a careful and full watch merely because a green light has given him the right to cross a junction. Davis v. Hassan made in clear that, whether or not a green light is in operation, the negligence or contributory negligence of the parties is a question of fact to be decided in each particular case. The report quotes Willmer, L.J. as follows:

 

'His Lordship thought it must be abundantly clear, whether or not the green ligth was showing in one's favour, one is not entitled to go on in the face of an obvious danger. The question in the present case was whether the plaintiff was guilty of negligence in not seeing and looking out for a car coming out of Commercial Road against the light.'"

21. Learned Counsel for the first defendant relying on Davis v. Hassan (supra) submitted that the first defendant being in a position similar to that of the plaintiff in that case was not negligent in failing to observe the white Rover. I would agree provided the ratio decidendi of that decision was satisfied. As I view it, the plaintiff there was obsolved of any negligence because she had focused and concentrated on the traffic lights. This is apparent from the report:

 

"It was to be remembered that during the time she was approaching the traffic lights her attention had to be focused on the lights. The filter was showing green in her favour and as she passed the light standard the main lights changed from red to amber and green. It was a very large junction. It must have been possible for the plaintiff to have seen a considerable distance but difficult to accuse her of negligence if she was concentrating on the traffic light ahead. In those circumstances it would be wrong to hold her guilty of negligence merely because she did not see the car until the last moment."

22. Unlike the plaintiff in that case, the first defendant was not on his own evidence concentrating throughout his approach to the   junction on the traffic lights. This too is a very large junction and it must have been possible for him to have seen a considerable distance, more so as he maintained he had a clear road ahead of him. As I have said earlier, the position of the vehicles which the two drivers marked on the sketch plan at p.3 indicated that the Rover driver would have gone past at least two outer lanes of the eastbound carriageway before reaching the position opposite the third lane in which the motorcyclist claimed to be. In the circumstances where he had a clear road ahead of him for at least the last 100 feet, I am of the opinion that on his own version the first defendant could not possibly have missed seeing the white Rover which had its headlights on unless he was not keeping a proper look out or his view was otherwise obstructed or both.

23. The third defendant maintained in evidence, as he had said in his two previous statements to the police dated the 5th December, 1984 and the 15th January, 1985 (Ex. D4 and D5) that some vehicles had stopped at the white line in the eastbound carriageway when he turned right into the junction box. With reference to photograph p.9, he said that the lane closest to the kerb was empty of any traffic. In Ex. D5 he said that a large goods vehicle was stationary in the third lane and the first defendant emerged from the lane to the left of the goods vehicle. In her statement, Ex. D7, the third defendant's wife said that upon hearing the loud bang she looked out to her left and saw some vehicles stationary, which was her evidence also. The same is repeated in the statement of Mr Badams dated the 10th December, 1984 and in the statement dated the 17th January, 1985, Mrs Badams said that immediately before the Rover turned right she saw that there were several vehicles "stopping" at the junction in the eastbound carriageway.

24. Mr Bharwaney submitted that the third defendant could have been mistaken not only about the green arrow but also about the vehicles which he said had stopped in the eastbound carriageway. It is argued that his second statement to the police was inconsistent with his testimony in that in the statement he had said that, as he was not familiar with the shape of the road, he reduced his speed to 5 M.P.H. The third defendant explained that the reference to "shape of the road" was to the constant road repairs that go on in Connaught Road Central and had nothing to do with his familiarity of the junction as such. Considering that his mother-in-law lived in Cheung Chau whom he visited frequently and sometimes drove wife to the pier, I accept his testimony that he was quite familiar not ony with this junction but also with the turn off to the Outlying Islands Ferry Pier. He accepted that he reduced his speed to 5 M.P.H. as he approached the junction. Making due allowance for the time that has elapsed since this accident, I find his acceptance that he did in fact reduce his speed quite probable for the reason he gave. I do not consider this apparent inconsistency of such significance as to effect his credit.

25. Secondly, it was argued that that the second statement of Mrs Tam that her husband stopped at the junction for a while undermined his version of the events. Admittedly she was chatting with her guests and knowing how carefully her husband always drove she was not paying attention to the way in which the Rover was being driven. She said that she did not remember saying this in her second statement, which was not exhibited. In the circumstances it seems just as likely that she might have relied on her past experience of her husband's driving, more so as she was not paying attention to the manner in which the car was being driven. I do not think that it will be proper to attach any weight to what she might have said in her second statement.

26. Thirdly, it was said that the weight to be attached to the statements of Mrs Tam, Mr & Mrs Badams concerning the vehicles in the eastbound carriageway having stopped should be slight only because those vehicles might have stopped as a result of the accident or the lights had changed by then. In her statement, Mrs Tam said that she heard a loud noise and felt that something had hit the car, and she continued, "However, I did not know what had happened. When I looked out, I saw that the other vehicles had stopped." Her evidence was that upon hearing the loud bang she looked "right away" to see what had happened. She saw a person slowly coming up from the front of the car and at the same time she looked at the cars on the left side which were all stationary behind the traffic lights. She remained unshaken under cross-examination. the statements of Mr & Mrs Badams were put in as hearsay evidence, the makers being overseas and unable to attend due to the terminal illness of Mr Badams. In her statement of the 17th January, 1985 Mrs Badams said that she had seen vehicles stationary in the eastbound carriageway before the third defendant started to negotiate the right turn. Mr Badams made his statement on the 10th December, 1984. 0n being asked what he saw when the car was hit by the motorcycle he said, "Immediately I saw all the traffic was stationary at my left hand side. But I did not see the traffic signal which directed the last-bound (sic.) carriageway of Connaught Road Central." I have looked at the handwritten copy of this statement where the word typed out as "last-bound" appears as "east-bound". Appreciating that these statements have not been tested under cross-examination, it is apparent that the statement of Mrs Badams was not contemporaneous to the accident but that of Mr Badams was. There being no suggestion of any collusion or concoction I am of the opinion that I can safely take into consideration the statement made by Mr Badams which was   contemporaneous to the extent that it goes to lend support to the evidence given by the third defendant and his wife.

27. Considering the evidence as a whole, I conclude that the inherent probability points to the presence of some other vehicles in the outer lanes to the right of the first defendant which had stopped at the white line before the collision occurred, obstructing the view of the motorcyclist of the traffic in the westbound carriageway and the junction ahead.

28. Learned Counsel for the first defendant argued that the third defendant had conceded during cross-examination that he was not very sure what the traffic light was when he first saw it. This necessitates a close look at the evidence which proceeded as follows:

29. Later certain suggestions were put to him, which are partinent to this issue, and I will reproduce that part also:

30. I am of the opinion that the answer - "I cannot remember" - is not to be taken in isolation as it might have been had there been no further cross-examination on this topic. It is clear that the questioning which followed was more in the nature of clarification or amplification of that earlier reply, the manifest effect of that which followed being that far from being not very clear about what the light was showing when he first saw it, the third defendant was positive that it was the green arrow pointing to the harbour.

31. Next Mr Bharwaney sought to show that a mathematical comparison of his third defendant's evidence indicated that something did not fit. This proceeded along these lines. Taking the mean distance he was from the junction when he first saw the green arrow as 40 feet on the basis that in his testimony he said it was 10 yards and in his statement, Ex. D4, he described it as three to four vehicle lengths, at a speed of 5 M.P.H. he would require, on the basis of the speed table, about 5 to 6 seconds to reach the white line whereas the duration of the green arrow to turn right in Phase B was 8 seconds as opposed to 20 seconds for the motorcyclist in Phase A in a given period of 55 seconds. Even so, I do not think that it detracts from the fact on which the third defendant remained unshaken that the green arrow was still showing when he entered the junction box. With respect, I see nothing in this argument to point to the improbability of the evidence given by the third defendant.

32. In the circumstances, taking the evidence in its entirety and for the reasons I have endeavoured to give, I find that the inherent probability is that the vehicles in the eastbound carriageway which had stopped had done so in obedience to the red light while Phase B was in operation, and the first defendant disobeyed the red signal when he crossed the white line into the junction box. In my judgment the first defendant was clearly guilty of negligence.

33. In view of these findings the case of Radburn v. Kemp (1971)1 W.L.R. 1502 does not avail the first defendant, but it does the third defendant who in my judgment was already legitimately on the junction. Having found against the first defendant on the issue of negligence the only remaining question is whether the third defendant had in any way in all the circumstances prevailing contributed to the accident. In my view the case of Hopwood Homes Ltd. v. Kennerdine, (1975) R.T.R. 82, is of help. This case is cited in the footnote to paragraph 10 - 143 of Charlesworth & Percy on Negligence, 7th edn. which was cited as setting out the law concerning traffic lights. Thereafter quoting from London Passenger Transport Board v. Upson, Edmund Davies, L.J. said at p.84J :-

 

"London Passenger Transport Board v. Upson (1949) A.C. 155 was a case dealing with the behaviour of a pedestrian on a crossing and with the question whether a driver was entitled to assume that the pedestrian would not cross at a moment of danger. We are here concerned with the entirely different problem of whether a person occupying the position that the plaintiff had taken up with his lorry, and knowing that the lights were against the Anglia, ought reasonably to have anticipated that the Anglia would not stop at the lights.

 

In answering the question as the judge did, I have to say that, with the profoundest respect to him, I think that he imposed too high and, indeed, a harsh standard against the plaintiff. One's experience does not lead one to think that it is common folly that a driver who has time to pull up at the traffic lights and is in no sense prevented from seeing those traffic lights by weather conditions or by other vehicles ahead, will fail to obey the ordinary demands of prudence. I see no reason, with respect, why the plaintiff should have apprehended that so reckless an act as the defendant here indulged in would be executed by him."

34. Likewise there was no reason why the third defendant having entered the junction box on the green ought to have supposed that he was exposed to the danger of a vehicle coming down so fast that it was going to be unable to stop in obedience to the traffic lights. Upon becoming aware of the motor cycle, the third defendant did the only thing he could do : he applied the brakes and stopped on the spot. The burden rested on the first defendant to establish that the other driver did anything as being a material part of the effective cause of the accident. In my judgment he has failed to do so.

35. For these reasons I hold the first defendant to be solely to blame for this accident. As he was admittedly using the motorcycle for his own purposes I do not see how the second defendant can be vicariously liable for his negligence.

36. There will he judgment against the first defendant and the action against the other defendants is dismissed. I will hear the parties on the issue of costs.