CHEUNG KWOK TING v. LIU TING KWOK AND ANOTHER

HCPI 97/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.97 OF 2001

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J U D G M E N T

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Background

1. The plaintiff brings this claim for damages for personal injuries he had suffered as a result of a traffic accident which had occurred on 29 September 1998 at about 6:00 p.m.  The plaintiff was then riding a bicycle along Canton Road and it had collided with the taxi driven by the 1^st defendant (D1).  The 2^nd defendant was the owner of the taxi.  There was no dispute that their liability would be joint and several, if the driver is found liable in the accident.

2. By order of Master Kwan dated 6 January 2004, the issue of liability was to be tried separately from the quantum of damages.  Hence this trial and therefore this judgment would only deal with the issue of liability. 

3. Both Cheung Kwok Ting, the plaintiff and, Liu Ting Kwok, D1 had given evidence in court and their witness statements had been adopted as their evidence-in-chief respectively.  They were both subjected to detailed cross-examination by the opposite side.

The plaintiff testimony

4. The plaintiff was born in China in 1932, so he was about 66 at the time of the accident.  He is married with a grown-up daughter.

5. The plaintiff said he started working as a newspaper vendor some 50 years ago.  At first, his stall was at the Jordan Pier and then he moved to the Star Ferry Pier in Tsim Sha Tsui.  He and his wife had been looking after the business together.  He stated that during the day, he would have to go to the agent in Yaumatei several times to collect newspapers and magazines.  His means of travel between his stall and the agent’s place in Yaumatei was by cycling.

6. On the material day, the plaintiff said that at about 6:00 p.m., he was riding his bicycle on the way back to his stall.  So he was travelling in the direction of the Star Ferry Pier.  When he came to Canton Road, he was using the first lane.  That would be the lane close to the pavement.  He remembered that there was no vehicle ahead of him at that time.  When he reached the location opposite the China Hong Kong City, he said he heard the sound of vehicle which seemed close from behind.  So he turned to the right and looked back.  He said he saw a taxi behind and it was already about to hit him.  It appeared to him that the taxi driver was holding something like a microphone device in his hand.  Then, very quickly, he was hit by the taxi.

7. As a result of the collision, the plaintiff said he fell onto the pavement but the taxi remained in motion.  It dashed towards him, mounted onto the pavement and pressed him down.  He was ‘dragged’ underneath the taxi and was trapped there.  He could not move.  He was lying on the ground on his left side.  He noticed that the taxi driver had alighted to take a look at him.  He recalled that he had asked the taxi driver to remove the taxi to release him.  But the taxi driver said words to the effect that his head might be crushed. 

8. Counsel for D1, Mr Kumar, had conducted a thorough cross-examination on the plaintiff’s account.  All the relevant topics were covered such as the traffic condition, the position of the taxi just before the bicycle was hit, the point of impact, how the taxi had ended up on the pavement, the damage on the taxi, the driver’s conduct when the plaintiff first saw him and the contents of the plaintiff’s statement/sketch to the police.

D1’s testimony

9. The driver also testified and he adopted his statement, given to the police on the same day of the accident, i.e. 29 September, as his evidence-in-chief.  Basically, what the driver said was that at the material time, he was driving his taxi along the first lane of Canton Road towards Tsim Sha Tsui.  At the time, he had a passenger on board and he was doing about 40 kmp.  The traffic was smooth and the weather condition fine.  He stated that when he reached the opposite side of the China Harbour City, he noticed that at about 20 feet ahead, in the second lane, the cyclist, i.e. the plaintiff, was riding his bicycle travelling in the middle of the lane in the same direction.  When the taxi and the bicycle were abreast, the bicycle suddenly leaned to his lane towards the right front of the taxi.  It was then about 5 feet away from the taxi.  

10. The driver stated in his police statement that he immediately applied the brake and sounded the horn.  He also swerved to the left but still he could not avoid the collision.  The taxi’s right front corner had collided with the left side of the bicycle’s back and the taxi ended up on top of the plaintiff and his bicycle.  After that, his passenger had left without leaving any particulars.  But there were pedestrians who came over to help.  The taxi was lifted up and the plaintiff was released.  Then the ambulance came to take the plaintiff to the hospital.  The driver reiterated in court that he had been travelling on the first lane before the accident took place; in fact, he had been using the first lane ever since he turned into Austin Road.

11. The driver stressed that the bicycle had swerved suddenly without any prior indication and he did not expect that the bicycle would change lane.  After the collision, his taxi remained on the first lane.  The bicycle was trapped underneath, so was the plaintiff.  The taxi was lifted onto the pavement in order to release the plaintiff and that was done with the assistance of many pedestrians.  The driver also gave evidence about the damage on the taxi.  He said that as a result of the bicycle swerving from the right, the taxi’s right front mud guard was damaged.  In this regard, the photographs produced, which were apparently taken by the police at the scene, indicated that damage to the taxi included damage to the right mud guard and the right front light.

12. The driver also stated that his taxi was equipped with the hand-free communication system.  The microphone was fitted beside the radio.  If he wanted to speak with the taxi station, he simply need to push a lever.

13. Mr Yau, for the plaintiff, had also cross-examined the driver in detail, covering all the relevant and disputed topics, such as why the driver did not use the second lane, the distance of the bicycle when he first saw it, the speed of the taxi, the position of the two vehicles before collision, the point of impact, the driver’s action prior to impact, whether he had sounded the horn and the position of the bicycle after impact, how, and to what position the taxi was lifted by the driver and the pedestrians.  Mr Yau had put to the driver, inter alia,that even if the bicycle had swerved into his lane as he had stated, he should have been able to avoid the collision if he had been keeping a proper lookout and had paid attention to the bicycle.

Analysis of the evidence

14. Both counsel had made very persuasive submissions on the evidence and what they thought had happened.  The written submissions were helpful and I am indebted to their thorough analysis.  I was given to understand that the plaintiff was involved in another incident previously and was crippled in one leg.  However that had not deterred him from earning his own living and that his condition had not affected his ability to ride the bicycle for work.  But needless to say, the court cannot decide this case based on sympathy, the court can only act on credible evidence and in this regard I have taken time to consider the evidence and the submissions carefully.

15. I was also given to understand that the police, after investigation, had decided not to prosecute the driver for any driving offence or otherwise.  Of course, if the driver was prosecuted, the plaintiff could use this fact to assist his case but the lack of criminal prosecution would not affect his claim in the civil court.

16. The main issue regarding liability is how the collision had occurred.  On this matter, the plaintiff and the driver had gave very different accounts.  The basis contention was who was travelling on the first lane at the material time, the plaintiff or the driver.

17. Having seen the plaintiff in the witness box and having reviewed his account of the event, I am afraid I did not find him to be a credible and reliable witness.  I had reached this conclusion based on a number of features in his testimony.

18. The plaintiff had been asked repeatedly in cross-examination how the taxi had hit his bicycle.  The plaintiff maintained that the middle part of the taxi had hit him from behind, on the rear middle part of his bicycle.  Based on such an answer, defence counsel had challenged the plaintiff that if that was the case, the taxi, given its width, would have to be travelling partly on the pavement before hitting the bicycle.  That was so because the plaintiff said that he was riding the bicycle in the first lane, close to the curb, and when he was hit, he actually fell onto the pavement.  Obviously it could not be the case that the taxi was travelling partly on the pavement before the accident, but the plaintiff was unable to give a credible explanation on how his bicycle could be hit by the middle part of the taxi. 

19. Mr Yau submitted that this was the only unsatisfactory aspect of the plaintiff’s evidence.  He contended that the plaintiff could have been mistaken.  But looking at the evidence, this question had been put to the plaintiff many times and the basis fully explained, yet the plaintiff gave the same answer.  This was not something that could be explained away as a mere mistake in recollection.

20. Defence counsel also pointed out to the plaintiff that if his account was right, then the damage to the taxi would not have been on the right side, but should be on the left side.  The plaintiff said that he did not know how the taxi was damaged and he also kept saying that his bicycle was good proof of how the impact had occurred.  However, from the photographs taken by the police at the scene, the damage to the taxi was clearly on the right side.  Accepting the driver’s evidence that the damage was not there before the incident, then the location of the damaged parts on the taxi would clearly be circumstantial evidence to show how the collision had occurred and that tended to support the driver’s account.

21. When being questioned about the statement and the sketch he had given to the police, the plaintiff was rather evasive.  For example, he was asked whether it was the case that one month after the accident, he had given a statement to the police, the plaintiff’s reply was that he was in intensive care for several days, he did not know how long.  Later, he was asked about the question he was asked after the narrative part of the statement; the first question being whether he had noticed the taxi before the accident.  The plaintiff’s reply was that he did not notice the registration number.  Then he added that he could not recollect whether he had given those answers to the police.  When he was asked whether he had given truthful answers to the police, he just repeated that he had been in intensive unit and he could not recall what he had told the police.  Again, he was asked whether he had tried to be truthful and accurate when answering the police in the statement.  His reply was “some” and then he said that the police had written down most of the things and just read the contents back to him.  These are just some of the illustrations of the plaintiff’s evasiveness.

22. Of course, there could be many reasons why a witness became evasive in answering questions in court; he might be nervous or he might have anticipated and be concerned about the matter being raised by the opposite side.  The court could not disbelieve a witness simply because of the way he had answered some of the questions.  But here, the point raised by the defence was that according to his statement given to the police, the plaintiff had stated that he was hit by the left side of the taxi.  This description was clearly inconsistent with his version given in court.  When this issue was put to him, the plaintiff tried to explain that he had not told the police whether it was the left or the right of the taxi that had hit him, he only said the taxi had hit from the back.

23. When defence counsel questioned him further on the contents of his police statement, the plaintiff complained that it was the police who had told him that the left part of the taxi had hit him.  The plaintiff still maintained that it was the taxi’s proper front (正面) that had hit him.  However, when one looked at the sketch attached to the plaintiff statement to the police, it clearly showed that the bicycle was on the left hand side of the taxi and it could not have hit him with its proper front.  Furthermore, considering the fact that the damage to the taxi was on the right side, it would be most unlikely that the bicycle was hit from the left side.

24. There was another point in the plaintiff’s account that had caused me some concern.  In his statement to the police, the plaintiff stated that when he heard traffic noise from behind, he turned to his right and saw the taxi.  At the time, according to the plaintiff, he said he saw that the driver was holding a microphone in his hand and was talking to it.  But in his witness statement dated 3 February 2004, the plaintiff became less certain and stated that the taxi driver seemed to be holding a microphone.  Then in his oral evidence, in answer to the specific question raised by defence counsel, the plaintiff further amended his version and said that he had only a glance of the taxi driver, he was holding something in his hand, and because the taxi was coming up too fast, he actually did not see what the driver was holding.  Although the incident had taken place some time ago, I found the change in the plaintiff’s version on this basic point rather surprising.

25. We can consider some different scenario.  If the taxi’s middle front had approached the bicycle from behind, it would be quite improbable that the plaintiff could see what the driver was holding at such an angle.  Equally, it would be difficult for him to see what the driver was doing if he was riding his bicycle on the left side of the taxi, although it would be a better angle than the first scenario.  Logically the best view the plaintiff could have to observe what the driver was holding or doing just before the impact would be that he was on the right side of the taxi, i.e. the driver’s side.  But if that is the case, it would support the driver’s account that the bicycle had leaned from the right and caused the damage on the right side of his taxi.  Why the plaintiff changed his version on what he saw was difficult to say, but I found I could not ignore such inconsistency when it came to an assessment of his reliability.

26. However, I am not in any way implying that the driver’s evidence, on the other hand, was perfect.  In fact, I was very concerned to hear that the driver was using miles and kilometres as if they were interchangeable terms when he was describing the speed of his taxi.  He had also contradicted his account in the statement to the police in one important respect.  He said in court that he had not sounded the horn when the plaintiff leaned against his taxi from the right but he said that he did in his statement to the police.  However, having said that, and in the final analysis, I considered the driver to be a credible witness and on the whole, he had given a consistent and reliable account of the event.  I would accept the driver’s evidence as to how the collision had occurred.

27. The conclusions I could draw from the evidence as a whole was that the plaintiff was not riding on the first lane at the material time but he was on the second lane.  When the taxi approached from behind, in the first lane, the plaintiff wanted to change to the first lane, to be close to the pavement and he swerved suddenly.  In the course of his movement, he got into the path of the taxi, which was in the first lane, and there the collision occurred.  The plaintiff and the bicycle fell onto the ground on the first lane.  With the help of the driver and the pedestrians, the taxi was lifted onto the pavement so that the plaintiff could be released, but the bicycle remained to be trapped under the taxi. 

28. I was conscious that the plaintiff had stated emphatically that he had used a small bicycle and would always stay on the first lane as it was close to the pavement.  But the plaintiff also volunteered the information in his evidence that he knew that his fellow workers had to jump off the bicycle sometimes to avoid being hit in that location.  That was because of the road bend and the vehicles from behind apparently might not see any bicycle ahead.  If he was right, then it would not be unnatural if the plaintiff would use the second lane on that occasion to stay away from the bend because of the lack of traffic at the time.  But when he heard the traffic sound, he would want to return to the first lane, to be close to the pavement where it would be presumably safer.  Unfortunately, on this occasion he had done it too suddenly and hence the collision.

29. In a way, I agree with defence counsel that the driver was not speeding and was travelling on the lane properly.  However, in approaching a bicycle which was in the other lane, one would have thought that a sounding of horn by D1 before his taxi became abreast with the bicycle might alert the plaintiff.  Apparently D1 had not sounded the horn at any stage.  In my view, he should have done so.  Although the plaintiff was mainly responsible for the collision, my assessment of contributory negligence in the circumstances on the part of D1 would be 15%.

30. Unless parties reach an agreement or request otherwise, I would order that the issue of costs to be dealt with in writing.  Submissions to be made within 14 days from the date of judgment.  Liberty to apply.