WONG YIU FAI v. KA TAT GODOWN CO. LTD. AND ANOTHER

1997 No. PI 512

IN THE HIGH COURT OF HONG KONG

COURT OF FIRST INSTANCE

PERSONAL INJURIES

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JUDGEMENT

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The Plaintiff's claim

1. On 23rd August 1995 at 9 p.m. a collision took place between the Plaintiff's motor cycle bearing registration number AM 6715 driven by the Plaintiff ("the motor cycle") and a light goods van bearing registration number FB 7269 ("the van") owned by the 1st Defendant and driven by the 2nd Defendant at the junction of Kwai Chung Road and Kwai On Road. The Plaintiff was at all material times a serving police officer and at the time of the collision was on duty in uniform riding the motor cycle which is a police motor cycle. The Plaintiff was travelling along the fast lane of the north bound carriageway heading towards the New Territories. The van was making a right hand turn from the south bound carriageway of Kwai Chung Road into Kwai On Road. The junction of Kwai Chung Road and Kwai On Road is a junction controlled by traffic lights. It is common ground that when the lights turn green, they are green for both the north bound and the south bound carriageways of Kwai Chung Road. However, traffic turning right from the south bound carriageway of Kwai Chung Road into Kwai On Road can only proceed into the right turn pocket at the top of which there is a double broken white line. It is also common grounds between the parties that under the Road Traffic Ordinance, this double broken white line denotes that a motorist is obligated to give way to traffic along the north bound carriageway and may only continue into Kwai On Road when it is safe to do so.

2. The Plaintiff bases his claim on the negligent driving of the 2nd Defendant in that, inter alia, the 2nd Defendant failed to keep a proper lookout, failed to accord him the right of way and was driving at an excessive speed. The Plaintiff further relies on the fact that the 2nd Defendant was convicted at the Tsuen Wan Magistracy of careless driving as a result of this accident. This conviction has not been disputed by the 2nd Defendant, the effect of which is that the burden of disproving negligence falls upon the defence.

The Defence

3. The defence pleaded in this case alleges that the Plaintiff was either solely to blame for the accident or was himself guilty of contributory negligence in that, inter alia, he failed to keep a proper lookout and was driving at an excessive speed thereby unable to avoid the accident.

The Issue

4. In this case I am only concerned with the question of liability. Both parties are agreed that the question of quantum is to be dealt with at a later date. This is due to the fact that the Plaintiff's injuries have not as yet stabilise which would affect the question of damages.

5. At the trial only the Plaintiff was called to give evidence in the Plaintiff's case, and only the 2nd Defendant gave evidence for the defence.

The Plaintiff's evidence

6. The Plaintiff gave evidence that at about 9 p.m. on the night in question he was on duty as a traffic police officer riding the motor cycle. He was travelling along the north bound carriageway of Kwai Chung Road approaching the junction of that road with Kwai On Road when he noticed a white private car making a left turn from Kwai On Road onto the north bound carriageway of Kwai Chung Road, namely the same carriageway that he was on, about a hundred meters in front of him. As a traffic policeman he knew that left turn from Kwai On Road onto Kwai Chung Road is prohibited, so the Plaintiff intended to go after the offending private car. The Plaintiff switched on the red and blue flashing lights of his motor cycle, but not his siren, to go after the private car. He was travelling at about 50 kph as he was aware that that was the speed limit for Kwai Chung Road, and was travelling on the fast lane.

7. As he approached the traffic lights controlling the junction of Kwai Chung Road and Kwai On Road, his view of the road junction of the opposite carriageway was obstructed by columns which supported a flyover which ran overhead along that stretch of Kwai Chung Road. His view of the opposite carriageway was also somewhat obstructed by the concrete dividers dividing the two carriageways as well as plants and foliage grown along the middle of these concrete dividers.

8. It was only when he was about 15 to 20 meters from the traffic lights that he could get a better view of the opposite carriageway and the right turn pocket for traffic wanting to turn from the south bound carriageway of Kwai Chung Road into Kwai On Road - traffic which would inevitably cross his path in making that right turn. He knew there was a right turn pocket at the road junction and also knew that traffic making that right turn must give way to traffic on his carriageway. He had looked to check the traffic on the opposite carriageway when he was about 15 to 20 meters from the traffic lights, but he saw no vehicle at the right turn pocket. He had checked a second time as he was crossing the stop line. Suddenly a van appeared travelling at about 30 kph making a right turn into Kwai On Road from the south bound carriageway of Kwai Chung Road into his path. When he first saw the van it was 5 to 10 meters from his motor cycle. The Plaintiff braked, horned, skidded and collided into the nearside body of the van. The impact threw the Plaintiff into the van through its nearside window. As a result of the collision the Plaintiff suffered severe injuries including fractures to both his arms.

The 2nd Defendant's Evidence

9. The 2nd Defendant gave evidence that he had been employed for about one and a half years by the 1st Defendant before this accident and during that time he had been driving this light goods van which belonged to the 1st Defendant company. On the night of 23rd August l995 shortly before 9.00 p.m. he was driving the van on company's business and was travelling along the outer lane of the south-bound carriageway of Kwai Chung Road approaching the junction with Kwai On Road. The outer lane of this stretch of Kwai Chung Road only allows traffic to right turn into Kwai On Road and he was intending to make such a right turn into Kwai On Road.

10. As he approached the traffic lights controlling that junction, the lights turned from red to red-amber and then to green. A red private car was in the same lane in front of his van about 3 or 4 vehicle spaces ahead of him. He saw the red private car made the right turn and he then proceeded into the right turn pocket. He said he was initially travelling at about 40 to 50 kph but slowed to about 30 odd kph when he reached the right turn pocket. When making the right turn he had checked the traffic from the north bound carriageway. He saw that there was no traffic on the north bound carriageway and after two-thirds of the van had emerged from the double broken white line at the front of the right turn pocket, he then began to accelerate. Almost immediately as he accelerated he felt the collision impact. This impact had pushed the van slightly to the right resulting in the front offside of the van crashing into a railing on a safety island at the mouth of Kwai On Road. He then alighted from the van.

11. The 2nd Defendant further gave evidence that it was only after he had alighted from the van that he came to learn that a police motor cycle had collided with the van. He had not seen the police motor cycle prior to alighting from the van. He also found a uniformed policeman inside the van after the accident but did not know how he came to be there. Prior to the collision, the 2nd Defendant said he did not see any flashing red and blue light nor did he hear any sounding of horn.

12. Under cross-examination, he was unable to give any explanation as to how the motor cycle could have collided with the van if he had looked and saw no traffic along the north bound carriageway of Kwai Chung Road. He further conceded that the lighting that night was adequate for him to see at that road junction and that carriageway of Kwai Chung Road was a straight stretch. He also agreed that it was only at the very front of the right turn pocket that he would have been able to see the entire straight stretch of the opposite carriageway of that road. He was, however, unable to say how the motor cycle was driven or its speed because he did not see the motor cycle until he had alighted from the van after he felt the impact.

Findings of Facts

13. I have observed the Plaintiff and also the 2nd Defendant when they gave evidence from the witness stand. I find the Plaintiff a reliable and truthful witness. I am not impressed by the evidence of the 2nd Defendant, particularly when he steadfastly maintained that he had checked the north-bound carriageway for traffic before emerging from the right turn pocket, did not see any traffic and yet the motor cycle driven by the Plaintiff collided into the van the very next second.

14. On the evidence before me, I find that the Plaintiff was travelling on the fast lane of the north-bound carriageway of Kwai Chung Road at about 50 kph with the red and blue flashing lights of the motor cycle switched on but without any siren. He was intending to pursue a white private car which he had moments earlier seen coming out from Kwai On Road, turned left into Kwai Chung Road. That as the Plaintiff was approaching the traffic lights at the road junction, the lights were green in favour of the Plaintiff. I accept the Plaintiff's evidence that about 15 to 20 meters before he reached the stop line at the traffic lights, he had checked to see that there was no traffic turning right from the south bound carriageway of Kwai Chung Road into Kwai On Road and thereby the Plaintiff proceeded to cross the junction at approximately the same speed, namely about 50 kph. I further accept the Plaintiff's evidence that at a distance of more than 20 meters before he reached the stop line of the traffic lights at that junction, he could not get very much of a view of the opposite carriageway or of the right turn pocket due to the fact that his view was blocked substantially by the columns supporting an overhead flyover running in the same direction as that stretch of Kwai Chung Road.

15. I also find that the 2nd Defendant drove the van along the outer lane of the south bound carriageway of Kwai Chung Road and approached the traffic lights controlling the junction at 40 odd kph when the lights were also green in his favour. During his approach up to the traffic lights at the junction he did not have a clear view of the opposite carriageway, particularly the fast lane thereof, for the same reasons that the Plaintiff did not have a clear view of the carriageway on which the van was travelling. He slowed to about 30 kph entering the right turn pocket. He continued making the right turn at that speed but failed to check the traffic coming from the north bound carriageway of Kwai Chung Road when he reached the top of the right turn pocket (the only place where he could get a clear unobstructed view of the entire north-bound carriageway of that road).

16. Moreover I find that negotiating the right turn pocket at about 30 kph given the circumstances in this case, (namely the obstruction from the columns supporting the flyover, the fact that a motorist could only have a clear unbostructed view of the entire north-bound carriageway when he reached the top of the right-turn pocket and that a motorist in the right-turn pocket is under a duty to give way), is driving at an excessive speed for at that speed the 2nd Defendant would not have in a position to stop the van immediately even if he had seen traffic along the fast lane of the north-bound carriageway at the very last moment when he reached the top of the right-turn pocket. In those circumstances I find that the 2nd Defendant drove too fast, did not keep a proper lookout and failed to give way to the motor cycle driven by the Plaintiff when he should have done so. These I find to be the cause of the collision.

17. I further find that the very first moment when the Plaintiff saw the 2nd Defendant's van, it was about 5 to 10 meters away from the Plaintiff already making the right turn. That at that distance plus the fact that the van was being driven at about 30 kph, there was too little time for the Plaintiff to react or to take any evasive action which could have avoided the collision. Be that as it may, I accept the Plaintiff's evidence that he did brake hard on his motor cycle. This action of the Plaintiff was probably instinctive given the circumstances that he was completely taken by surprise when suddenly faced with a van making a right turn into his path at that speed. As a result of applying his brakes hard, the Plaintiff's motor cycle skidded, but still crashed into the nearside of the van, throwing the Plaintiff who then crashed through the nearside window of the van and into it. The impact further pushed the van somewhat to its right causing its front offside to crash into a railing on a safety island at the road junction.

Defence Arguments

18. After the evidence had been completed, Miss Sze indicated in her final submission, quite properly, that she concedes the 2nd Defendant was negligent in not keeping a proper lookout. However, she argued that on the totality of the evidence the Plaintiff was also guilty of contributory negligence in failing to keep a proper lookout and driving at an excessive speed. Her contention was that the Plaintiff, because he had turned on the flashing red and blue light when going after the white private car, had assumed that other motorists would accord him the right of way. Therefore she says that the Plaintiff had not bothered to check the traffic from the opposite carriageway when he was at the junction, particularly traffic which was intending to turn right from that carriageway into Kwai On Road. She further argues that in crossing the junction at about 50 kph, that was an excessive speed in the circumstances because being a traffic policeman, he should have foreseen the possibility of motorists failing to comply with the "give way" sign when making the right turn from the south bound carriageway of Kwai Chung Road into Kwai On Road. Lastly Miss Sze submits that the damage to the nearside body of the van (which could be seen from the photographs admitted into evidence by agreement of both parties) is such that it could be inferred that the Plaintiff was travelling at a speed far in excess of 50 kph which is the speed limit for that stretch of the road.

Liability for the accident

19. In view of the concession by Miss Sze the that the 2nd Defendant failed to keep a proper lookout for traffic on the north-bound carriageway of Kwai Chung Road, quite clearly the 2nd Defendant must be liable in negligence. Furthermore, I have found as a fact that the 2nd Defendant failed to give way to traffic on the north bound carriageway as he was under a duty to do so when making the right turn into Kwai On Road and that he was driving at a speed which was excessive in the circumstances. In all these regards therefore the 2nd Defendant was negligent towards the Plaintiff in causing the collision between the van and the motor cycle.

20. There is no dispute that at the material time of the accident, the 2nd Defendant was employed by the 1st Defendant and that the van was owned by the 1st Defendant. Indeed the evidence of the 2nd Defendant was that when the accident occurred, he was driving the van on his employer's business. In the circumstances the 1st Defendant is also liable vicariously to the Plaintiff for the negligence of the 2nd Defendant's driving.

Contributory Negligence

21. Insofar as the first point submitted by Miss Sze is concerned, I have already found as a fact that the Plaintiff did keep a proper lookout as he approached the traffic lights at the junction. In any event the collision must have occurred so suddenly, in a split second, that the Plaintiff was completely taken by surprise by the negligent manner in which the 2nd Defendant made the turn from the south bound carriageway of Kwai Chung Road into Kwai On Road, that it would not have been reasonable in the circumstances to have expected the Plaintiff to have been able to take any evasive action to avoid the collision by the time he saw the van being driven into his path.

22. As for Miss Sze's second point, namely, that the Plaintiff should have anticipated the possibility that a motorist might not comply with the "give way" sign when making a right turn from the south bound carriageway of Kwai Chung Road into Kwai On Road, and therefore should have been travelling at a speed at which he could have taken some evasive action should such a possibility occur, I cannot agree with Miss Sze for these reasons. The Plaintiff was travelling at a speed which was within the speed limit for that stretch of the road. With his knowledge of that road junction and the right turn pocket there, the Plaintiff was entitled to assume, in the absence of any indication to the contrary, that traffic would comply with the "give way" road markings. Based on my findings as stated above, whilst every motorist must keep a proper all-round lookout for faulty driving on the part of other road users, the Plaintiff in this case cannot be faulted for failing to notice the van making the right turn directly into the Plaintiff's path until it was too late, something which he could not have been expected to see earlier in order that he might have taken some form of evasive action and which was in fact a very negligent piece of driving by the 2nd Defendant which one could not anticipate.

23. Coming now to the third point submitted by Miss Sze that the damage to the nearside body of the van shows that the motor cycle driven by the Plaintiff must have been travelling at a speed well in excess of 50 kph at the time of the collision, I am unable to draw any such inference as suggested by Miss Sze in the absence of any expert testimony to the effect of the intensity or otherwise of the force which might have inflicted the damage to the van as shown on the photograph.

24. Since the onus of proving contributory negligence rests with the Defendants, all the more so in this case where the 2nd Defendant had been convicted of careless driving resulting from this collision, I find that contributory negligence has not been established against the Plaintiff.

25. Accordingly, from my findings as stated above, I find that the 2nd Defendant is wholly to blame for this collision due to his negligent driving and that the 1st Defendant is vicariously liable to the Plaintiff for the negligence of the 2nd Defendant. There shall be judgement to the Plaintiff against both defendants insofar as liability is concerned with damages to be assessed. There shall also be costs nisi of the action to the Plaintiff against both defendants.