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HCPI 205/2008
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
PERSONAL INJURIES ACTION NO. 205 OF 2008
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| BETWEEN |
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MAK WAI CHI |
Plaintiff |
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and |
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LAW TAK PUI |
1st Defendant |
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TSANG TIN YAN also known as TSANG TIN YAN JOHN (曾天恩) |
2nd Defendant |
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and |
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TSANG TIN YAN also known as TSANG TIN YAN JOHN(曾天恩) |
Third Party |
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Before : Deputy High Court Judge Burrell in Court
Dates of Hearing : 3 and 5 February 2010
Date of Judgment : 5 February 2010
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J U D G M E N T
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1. On 19 May 2006 at about 10:20 p.m. a serious traffic accident occurred in the 4th lane of the Tsing Kwai Highway. The plaintiff was the pillion passenger on a motorcycle being driven by the 2nd defendant. Sadly she sustained very serious injuries for which she has already received substantial compensation.
2. The purpose of these proceedings is to determine the apportionment of liability, if any, for the accident between the 2nd defendant (the driver of the motorcycle and the plaintiff’s boyfriend) and the 1st defendant, a taxi driver who immediately before the collision was driving his taxi also in the 4th lane behind the motorcycle.
3. The court has only had the benefit of the two defendants’ versions of how the accident occurred. There are some important differences to be noted.
The 2nd defendant’s verison
4. The 2nd defendant recalls travelling along the 4th lane of the highway at about 75-80 kph in the late evening of 19 May 2006. His girlfriend was sitting behind him on his 400 cc motorcycle. He was aware of the 1st defendant’s taxi close behind him. He had noticed this in his mirror.
5. Ahead of him he suddenly noticed some tyre fragments apparently being thrown up from the wheels of a commercial truck. This caused him to slow down. At the time of slowing down, he was struck from behind by the taxi. He and his girlfriend were thrown from the motorcycle. They fell to the right where there was a concrete central barrier. The 2nd defendant cannot say what happened to his motorcycle or to the taxi or to his girlfriend thereafter.
6. The police soon arrived on the scene. Photographs were taken. However, although tyre marks can be seen on the photographs and although both vehicles were seriously damaged (the taxi having at one point, smashed into the concrete barrier) no measurements or records were taken of the tyre marks and no collision debris was identified or photographed. The lack of such evidence increases the difficulty in piecing together was actually happened.
7. There are three photographs showing tyre fragments on the road surface. These were found at a location which meant they could not have been the actual tyre fragments which caused the motorcyclist to slow down. Moreover no investigation was carried out to see if they could have come from the taxi. However, they are of some evidential value. They provide some support for the 2nd defendant’s account that a vehicle was shedding tyre fragments at that location and at that time. I reject any suggestion express or implied that the 2nd defendant has invented his evidence relating to tyre fragments.
The 1st defendant’s verion
8. The taxi driver said he was four to five car lengths behind the motorcycle in the 4th lane. They had been travelling at about the same speed. He saw an opportunity to move into the 3rd lane. He commenced this manoeuvre and increased his speed so as to get passed the motorcycle on its nearside. When his taxi was abreast with the motorcycle, the motorcycle started to ziz-zag and collided with the rear offside of the taxi near to the taxi’s rear wheel. He then lost control of his taxi which must have veered to its right and into collision with the concrete barrier causing extensive damage to the front offside corner of the taxi. His headlights, wheel mounting and bonnet were all badly buckled and damaged. The taxi then ‘rebounded’ to its left and eventually came to rest in the 2nd lane of the highway. The motorcycle had come to rest, on its left hand side, in the 4th lane about 8 metres behind the taxi.
9. The taxi also had some minor damage to the rear offside area of its bodywork near the rear offside wheel.
10. The damage to the motorcycle was both to the front and to the rear.
11. With the exception of the obvious fact that the taxi’s damage to its front offside occurred when it collided with the central concrete barrier, it is not possible to discern how the remaining damage to either vehicle was caused. It could have been as a result of the two vehicles colliding, or either of them colliding with the concrete barrier or the motorcycle falling to the ground and sliding along the road surface without its driver and passenger.
12. On 4 December 2006, the taxi driver was convicted after trial, at Tsuen Wan Magistrates’ Court of careless driving on the basis that he had been travelling too close to the motorcycle immediately before the accident.
13. These are entirely separate proceedings so I make no further remarks about the careless driving case save that the magistrate did not have one piece of evidence which this court did have, namely a motor survey report dated 19 January 2006 on the motorcycle itemizing its damage to both the front and the rear.
Liability
14. As with most cases where the only eyewitnesses are the two people involved, it is not possible to make confident findings in respect of every aspect of the incident.
15. The whole of the evidence has however satisfied me to the requisite standard of proof of the following matters.
16. Firstly I, like the magistrate, find that the taxi driver was too close to the motorcycle immediately before the collision. I reject his evidence that he was four to five car lengths behind. I accept the 2nd defendant’s account that he was one to two car lengths behind and he was aware of the closeness of the taxi on seeing it in his wing mirror.
17. I accept that the taxi driver was commencing a move into the 3rd lane. This indicates his intention to pass the motorcycle on its inside. This would necessarily have involved him looking in his nearside wing mirror to check there was room for him to move into the 3rd lane on his left and also accelerate so as to pass the motorcycle. Overtaking on the nearside is in itself a risky manoeuvre made, in this case, more risky by the closeness that the taxi was to the motorcycle when they were in the 4th lane together.
18. I accept the 2nd defendant’s evidence concerning the tyre fragments. It is not particularly surprising that the 1st defendant did not notice any such fragments. I accept that the fragments caused the motorcycle to slow down. I believe that this happened at about the same time that the taxi was contemplating its move into the 3rd lane, also the time when the taxi driver would have been checking his near side wing mirror, whilst too close to the rear of the motorcycle.
19. This set of circumstances caused the taxi either to collide with the rear of the motorcycle or get so close to it as to cause the motorcycle to lose its normal momentum and start to wobble or ziz-zag instead. I accept that the motorcycle did ziz-zag but the ziz-zigging was as a result of the collision and not a cause of it. The taxi driver no doubt did notice the motorcycle by his rear offside door and wheel but by this time the taxi driver had already caused the accident and the 2nd defendant and the plaintiff were falling off the motorcycle.
20. At this moment, the taxi was undoubtedly moving faster than the motorcycle. The motorcycle fell over, the taxi driver panicked, lost control and his vehicle veered into the concrete barrier ahead of the motorcycle which by that time would have been skidding along the road surface without its riders.
21. I am satisfied that the primary liability for this accident is on the 1st defendant in that he :
(a) drove too close behind the 2nd defendant;
(b) failed to observe the traffic conditions ahead of him;
(c) commenced overtaking the 2nd defendant on his nearside when it was unsafe to do so;
(d) failed to notice the 2nd defendant’s deceleration; and
(e) drove into collision with the rear of the 2nd defendant’s motorcycle.
22. The remaining question is did the 2nd defendant’s driving contribute to the happening of the accident in any way? I do not think that it did. He was riding his motorcycle at a reasonable speed. His slowing down was due to the particular road conditions which confronted him at that particular moment. His motorcycle ziz-zagged after he lost control of it and as a result of being struck by the taxi.
23. I find therefore the 1st defendant to be 100% liable for this accident and accordingly the 2nd defendant’s costs of the Third Party proceedings together with the 2nd defendant’s costs of defending the plaintiff’s claim should be borne by the 1st defendant.
[Counsel address the court on the appropriate level of costs]
24. I have now heard Ms Lau’s submission seeking costs on an indemnity basis. In the exercise of my discretion I make no amendment to my earlier order. I therefore decline the application for indemnity costs.
25. Finally it is agreed between the parties that 1st defendant will refund to the 2nd defendant any sums that have hitherto been paid by the 2nd defendant to the plaintiff by way of contribution to her damages. Such sum shall be with interest at prime plus 1% thereon.
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(M.P. Burrell) |
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Deputy High Court Judge |
Mr Andrew S.Y. Li, instructed by Messrs W.K. To & Co., for the 1st Defendant
Ms Selina Lau, instructed by Messrs Gallant Y.T. Ho & Co., for the 2nd Defendant/Third Party
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