CHOW YIK KWAN v. LEE HON YIN and Another

1995, No. PI-359

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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J U D G M E N T

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1. On 9th December 1988 some 7 years ago now at about 1.00 o'clock in the afternoon, the 1st Defendant as servant or agent of the 2nd Defendant was driving his employer's BMW 320A motor car, in the course of his employment, with the Plaintiff, a work colleague, as a passenger, along the Po Lam Road in the direction of Ma Yau Tong Tsuen.

2. The road and weather conditions were good. Traffic was light or negligible. The road was subject to a 30 miles per hour limit and divided by a double continuous white line into two carriageways. The route taken by the 1st Defendant was on the inner lane of the two-lane carriageway, the other carriageway being limited to one lane. The gradient was slightly uphill.

3. The stretch of road with which we are concerned, was a gradual, sweeping right-hand curve, on the near side of which was a grass verge which rose away from the road in a form of escarpment. There were lamp posts at intervals and concrete drainage points which were proud of the verge. There may or may not have been, at the time, a concrete gulley or channel which ran roughly parallel to the road, as can been seen from the photographs which were taken about 5 years after the accident.

4. Somehow the Defendant's BMW motor car was caused to leave the inside lane, mount the kerb and verge, and strike, head on, a concrete drainage block shown more particularly in the photographs on p.55 of the agreed bundle, as a consequence of which the Plaintiff suffered severe injuries which have given rise to this action.

5. How did the car get into that position and were the Defendants negligent?

6. The only evidence as to what occurred on that road to give rise to the accident, comes from the Plaintiff and from the 1st Defendant. There is a good deal of common ground.

7. The car was being driven at a reasonable speed in the circumstances viz. approximately 30 miles per hour. It was a slightly uphill gradient. In the outside lane at some stage, appeared a white or at any rate a light coloured saloon car. Neither occupant of the BMW saw it overtake their car though in view of the speed described, approximately 50 miles per hour, it must have passed it very quickly and been moving away from it equally quickly. It was seen to cut into the front of the BMW sharply; the distance between them at that point has been described as two to three car-lengths two, two to three feet, very close 'and not very close'. It is notoriously difficult to estimate such distances in such circumstances and at such speed. It is almost always a matter of impression. A witness's mind cannot seriously go to an accurate assessment of distance. What caused it to perform that manoeuvre? Both the Plaintiff and the 1st Defendant in their police statements referred to a truck being in the outside lane and moving obviously at a slower pace than the white car, hence the cutting in manoeuvre. The Plaintiff in fact says in his evidence that he did not see any such truck and says the reference to it in his police statement, was the result of the police officer putting to him what the 1st Defendant had said, and he agreeing with it, in the form of the signature to the statement, when he was in considerable pain, awaiting treatment and scarcely able to concentrate on what he was being asked or what was being put to him.

8. I accept that, at the time the police constable questioned the Plaintiff and took a statement from him, the Plaintiff was really in no fit state for the interview and it would have been better to have waited until he had been treated and received analgesics. However, I accept that had he disagreed with the officer, over the presence of a truck in the outside lane, he would have said so and that his description of the proximity of the white car to the BMW was an accurate one. It is likely that in general terms, the officer was putting to him what the driver of the BMW, the 1st Defendant, had said and that the Plaintiff was agreeing with it. Some of the phraseology in the statement of the Plaintiff is identical with that in the statement of the Defendant. Experience tells one that where a police officer takes a statement, it tends to follow a set format and is probably the result of questions and answers. It is therefore probable that there was a slower moving truck in the outside lane which caused the white car to cut in sharply in front of the BMW - the precise gap between the two cars is immaterial. No collision took place between them but I am satisfied that some evasive action on the part of the 1st Defendant was inevitable.

9. What was this evasive action and was there any negligence on the part of the 1st Defendant, the other motorist being unidentified and therefore untraced? The Plaintiff needs to establish only some degree of negligence on the part of the Defendants in order to succeed.

10. The 1st Defendant was in the inside lane travelling at a reasonable speed in the circumstances. The automatic reaction on the part of a motorist who is 'cut up', is to brake sharply. The only evidence that the 1st Defendant did so comes from its own mouth. He refers in his police statement to applying the foot brake. There were no braking marks on the road. Sharp braking when confronted with such an event would, I am satisfied, leave some mark. This was a BMW with good braking systems if maintained properly. The evidence however which is most telling is the course of the BMW from the road to the point where it came to a halt on the grass verge, having been stopped by a solid concrete block. The police officer's sketch plan, which I accept as an accurate representation of the position of the BMW, shows it to be wholly off the road and in contact, at the front, with the large concrete block embedded in the front of the car slightly more to the near side than to the outside. There are a number of measurements provided by the police officer but these are less important than the descriptive position of the vehicle and concrete block. How the BMW got into that position is not clear save that it is obvious from evidence that it drove onto the verge. Did it drive a short distance outside the lamp post before hitting the concrete block ending up wholly on the verge or did it drive inside the lamp post stradding the concrete gulley before coming to a halt against the concrete block?

11. The answer to that may not be as important as the following facts. The impact must have been substantial in view of the injuries to the Plaintiff. It was no gentle bump at the end of the vehicle's braking momentum. There is no evidence of any skid mark on the grass verge or mark to show where it mounted the kerb. If this BMW had been braking following the cutting in manoeuvre of the white car, it would have left clear braking marks on the grass verge at the very least. There was none found anywhere.

12. Mr. Bharwaney, on behalf of the Plaintiff, relies on the maxim 'res ipsa loquitur', or put colloquially, the action of the BMW in leaving the road way, mounting the verge, and striking the concrete block is itself 'prima facie' evidence of negligence. It is for the Plaintiff to prove such negligence. I have been referred to the Privy Council decision in Ng Chiu Piu and Others v. Lee Chun Tat and Another 1988 2 HKLR p.425. That case is that one of many statements of the nature of the principle. The Defendant has given evidence - has he rebutted the presumption?

13. Before the 1st Defendant gave evidence there were a number of features emerging from the Plaintiff's evidence which raised in my view a very strong prima facie case. Quite apart from the absence of any marks anywhere to indicate retarding or braking of a vehicle, there are the facts that this vehicle was apparently travelling at a reasonable speed, about 30 mph, but still contrived to strike the concrete block with some force. No photographs or engineer's report or repair bill have been adduced to show the nature or extent of the damage. The 1st Defendant was comparatively inexperienced having passed his test about 21 months earlier, and had infrequently driven the BMW.

14. The overtaking vehicle, on whom there rests at least substantial responsibility for the accident, was travelling at about 50 miles per hour and therefore moving away from the BMW with some ease. The Plaintiff was not aware of its approach in the outside lane, but was aware of the presence of a lorry or truck in the outside lane ahead of the BMW, according to his statement to the police. The driver of the BMW should of course, have some awareness of traffic conditions and the approach of vehicles from the rear, though he cannot be expected to be looking in rear view mirrors all the time. A further point to bear in mind is the description of the 1st Defendant as perhaps nervous, uncertain, checking signs.

15. The 1st Defendant's own evidence built upon that picture substantially. He drove the BMW infrequently. He was not happy with the braking. It required greater effort in order to achieve a degree of effectiveness. The brakes were clearly not as efficient as they should be. The BMW is heavier than many cars of equivalent engine size. It is an automatic and the retardation effect of taking one's foot off the accelerator is not as great as with the manual gear box. The 1st Defendant said that the state of the brakes was such that he drove more slowly than normal in order to compensate for this short-coming in the vehicle's efficiency. Although the police constable examined the brakes as he did the tyres, there was no evidence other than that of the 1st Defendant as to the efficiency of the brakes in practice. It has been argued by Miss Sze Kin, on behalf of the Defendants, that the 1st Defendant is not an expert and therefore unable to give admissible evidence of the condition of the brakes and the braking capacity of the vehicle on that day. I cannot accept that. As the driver of the vehicle at the material time, he is in the best position to speak as to how that car performed when on the road. It does not need expert evidence to cover that aspect. I am satisfied that the combination of the driver's relative inexperience and the state of the car's brakes about which he was apprehensive, left him less able than normal to cope with sudden events. Both he and the vehicle were found wanting. His employers were negligent in allowing the vehicle to be used with less than efficient brakes particularly by a relatively inexperienced driver, and the driver was negligent in driving such a vehicle when he knew in advance of the state of the braking. He was taking a risk and although he tried to compensate for it by keeping his speed low, he was less able to cope with the vagaries of motoring, as it transpired. It may very well be that he was excessively pre-occupied with the inefficiency of the brakes and with the need to keep his speed down to compensate for that, as well as being nervous to make sure that he was aware of all relevant road signs, and that he was less sensitive to traffic around him. He was aware of a lorry ahead of him, stationary in the outside lane, which he thought was going to turn right. He was not aware of the presence of the white car until it actually cut in front of him. He was startled and took evasive action. I am satisfied he tried to brake but that he relied more on the swerve than braking. He would have less confidence in braking as a means of coping with what took him by surprise. Had he been fully aware of overtaking traffic, as he ought to have been, he would have been less startled by the cutting in manoeuvre, particularly bearing in mind his awareness of the stationary lorry ahead of him. I am satisfied that his pre-occupation with the matters to which I have referred was responsible for this failure to take all traffic into account and adjust his course accordingly.

16. I accept the Plaintiff's evidence as to the distance between the two vehicles at the time of the cutting in manoeuvre and on that evidence, as well as on the inferences to be drawn from the 1st Defendant's evidence, that the manoeuvre did create an emergency in normal circumstances but became a greater emergency in this case by reason of the factors to which I have referred. Had the vehicle's brakes been efficient and the driver not pre-occupied with the need to compensate for this short-coming, he would have coped with this cutting in manoeuvre without the consequences which in fact resulted. He would not have needed to be so extreme in his avoiding manoeuvre, and he would not have left the carriageway.

17. The degree of negligence is not of course as high as that of the white car driver whose cutting in action triggered off this event. But since the Plaintiff needs to establish only a degree of negligence on the part of the Defendants, he succeeds and he is entitled to judgment against both. The 1st Defendant was disarmingly frank in his evidence. I am satisfied the larger part of the negligence I find against the Defendants, probably of the order of 25 - 30% in total, is that of the employers in requiring their employee to drive this car with inefficient brakes on this highway.

18. Accordingly there will be judgment for the Plaintiff against the Defendants with costs to be taxed if not agreed. The Plaintiff shall have an order for legal aid taxation.

(Conrad Seagroatt)

Judge of the High Court