KWONG KA YIN v. CHEUNG HING WORLDWIDE LTD AND ANOTHER

HCPI 89/2013

[2018] HKCFI 2351

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 89 OF 2013

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J U D G M E N T

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I. BACKGROUND

1.  On 20 April 2008 at/about 1am, the plaintiff (“P”) and her friend Tsang Kwan Ho Wendy (“Tsang”) were passengers respectively at the right (offside) rear seat (behind the driver seat) and left (nearside) rear seat in a taxi bearing registration number KJ 3681 (“Taxi”) and owned by the 1^st defendant (“D1”). The Taxi was driven by the 2^nd defendant (“D2”) along the 2^nd lane counting from the left (“2^nd Lane”) of the Kowloon-bound carriageway of Lantau Link (“Road”) near the ramp or slip road for Tsing Yi / Cheung Tsing Highway (“Scene”) when at/about 1:15am a traffic accident occurred involving the Taxi (“Accident”). Unless otherwise stated, time of the day given in this Judgment refers to that of 20 April 2008.

2.  The Road was the only access road linking Lantau Island and Hong Kong island. It was a dual 3-lane highway with a speed limit of 80kph for the relevant stretch of the Road near the Scene.[1] The 1^st lane counting from the left (“1^st Lane”) led towards Tsing Yi / Cheung Tsing Highway, and the 2^nd Lane and 3^rd lane counting from the left (“3^rd Lane”) (divided by broken single line) led to a tunnel (“Tunnel”) towards Kowloon. There was a triangular chevron area between the 1^st and 2^nd Lanes that marked the divergence between the 1^st Lane and 2^nd/3^rd Lanes (“Chevron Area”). At the wider end of the Chevron Area was a metal crash barrier (“Metal Barrier”). On the right side of the 3^rd Lane (ie the middle of the dual carriageway) was a concrete embankment (“Concrete Embankment”). The section of the Road leading up to the Scene was wide and straight. The 2^nd/3^rd Lanes beyond the Scene gently curved right and downwards to the Tunnel.

II.  PROCEDURAL HISTORY

3.  On 15 April 2011, P commenced DCPI 730/2011 against D1 and D2 (collectively, “Ds”) to claim for loss/damages for personal injuries suffered as a result of the Accident. On 22 January 2013, Master D Ho granted leave to transfer DCPI 730/2011 to the Court of First Instance (“CFI”).

4.  On 28 May 2014, DHCJ Wilson Chan (as he then was) granted leave for P to discontinue her claim against D1. P’s claim against D2 was tried before DHCJ Wilson Chan (as he then was) in May/June 2014 (“Trial”). By then, subject to the issue of liability, the quantum of P’s loss/damages was agreed at $900,000. On 29 July 2014, DHCJ Wilson Chan (as he then was) granted judgment in favour of P against D2 for $900,000 with costs order nisi that D2 was to pay P’s costs of the action, including all costs reserved (if any), to be taxed if not agreed (“Chan Judgment”).

5.  By CACV 178/2014, D2 appealed against the Chan Judgment (“Appeal”). On 15 September 2014, DHCJ Wilson Chan (as he then was) granted an order by consent that upon D2 paying $900,000 into court within 28 days, execution of the Chan Judgment be stayed pending determination of the Appeal. On 15 May 2015, the Court of Appeal (“CA”) allowed the Appeal, and remitted the case to the CFI for re-trial before another judge (“Re-trial”) with costs of the Trial reserved to the judge at such Re-trial (“CA Order”).

6.  Pursuant to the CA Order, the Re-trial of P’s claim was heard by this court. Mr Wong, counsel for P, and Mr Gidwani, counsel for D2, agreed that the transcript of the Trial would not be adduced as evidence at the Re-trial unless any aspect thereof was put to the witness(es) who addressed the same in his/her/their testimony.

III.  PARTIES’ RESPECTIVE CASE

7.  P claimed at the material time (1) she had her seat-belt fastened, (2) D2 was wearing flip-flop slippers (“Flip-flops”), and (3) D2 suddenly and momentarily bowed his head “apparently” having dozed off. As for the Accident, P felt the Taxi shook and spun out of control with 3 collisions heard before it finally stopped “across the [3^rd Lane] and the chevron marked area of the road”. P claimed the Accident was caused by D2’s negligent driving, and D2 failing in his duty of care owed to P as passenger on board the Taxi:

(a)	driving at a speed that was excessive under the circumstances;
(b)	driving the Taxi wearing Flip-flops that were unsuitable for driving;
(c)	failing to properly control the Taxi by reason of unsuitable footwear or otherwise so as to avoid (i) losing control of the Taxi and/or (ii) colliding with any other object(s);
(d)	putting P at known risk of danger created by driving while wearing unsuitable footwear;
(e)	driving the Taxi and putting P at known risk of danger by driving while tired and otherwise in need of sleep;
(f)	failing to take all reasonable care in driving the Taxi.

8.  D2 did not admit the circumstances of the Accident as P alleged, and denied he caused the Accident. D2 claimed (i) the Accident was not caused by his wearing Flip-flops, (ii) he was wide-awake and not sleepy, and (iii) he was driving the Taxi along the 2^nd Lane at the modest/reasonable speed of 60-70kph within speed limit for that section of the Road (80kph).[2] D2 further claimed that upon approaching the Scene an unknown dark-coloured private car (“Unknown Car”) travelling at a speed faster than that of the Taxi came up on the 3^rd Lane, went past the Taxi and suddenly cut into the 2^nd Lane at a short distance ahead of the Taxi,[3] so he had no alternative but to immediately brake and swerve left to avoid collision, and as a result he lost control of the Taxi, which spun around to hit the left Metal Barrier and then rebounded to hit the right Concrete Embankment. D2 claimed the dangerous situation was caused by the Unknown Car suddenly cutting into the path of the Taxi at short distance, so the Accident was solely caused and/or contributed to by negligence and/or breach of statutory duty on the part of the unknown driver of the Unknown Car:

(a)	suddenly and without sufficient warning cut into the path of the Taxi at a short distance;
(b)	driving at a speed which was excessive in the circumstances;
(c)	failing to give any or any proper/sufficient warning of his/her approach or of his/her intention to drive into the 2nd Lane;
(d)	driving in a dangerous/careless manner;
(e)	driving the Unknown Car on the Road dangerously contrary to section 37(1) of the Road Traffic Ordinance Cap 374 (“RTO”);
(f)	alternatively, driving the Unknown Car on the Road carelessly contrary to section 38 of the RTO;
(g)	driving the motorcycle on a road at an excessive speed contrary to section 41(1)(a) of the RTO.

9.  The essential disputes concerned the following:

(a)   what caused D2 to lose control of the Taxi with (i) P claiming this was because D2 suddenly/momentarily bowed his head and apparently dozed off at the wheel (which D2 denied) and/or was wearing Flip-flops (which D2 claimed was not causative as it did not affect braking), and (ii) D2 claiming this was because the Unknown Car abruptly cut into the 2^nd Lane in front of but quite close to the Taxi and D2 took instinctive, necessary and reasonable evasive manoeuvre in the agony of the moment by immediately braking and swerving left;

(b)   whether P could rely on the doctrine of res ipsa loquitur and invite the court to infer that D2 must have been negligent;

(c)   whether D2 acted with the alertness, skill and judgment that could reasonably have been expected in the circumstances; and

(d)   what was the state of the Road surface at the time of the Accident with (i) P claiming it was dry, and (ii) D2 claiming it was wet, and whether it would affect the findings in relation to (a)-(c) above.

10.  P did not plead reliance on the doctrine of res ipsa loquitur in her pleadings. Mr Wong submitted this need not be specifically pleaded,[4] and Mr Gidwani confirmed D2 would not take any pleading point.

11.  The following matters were either common ground or undisputed:

(a)	prior to and at the time of the Accident, traffic on the Road was smooth and there was no other vehicle on the 2nd Lane in front of the Taxi;
(b)	at about 1:15am when the Taxi approached the divergence point between the 1st Lane and 2nd/3rd Lanes, D2 lost control of the Taxi which spun anti-clockwise, its right side hit the left Metal Barrier, it then rebounded and spun anti-clockwise, its front then hit the right Concrete Embankment head-on leaving a 1.5m mark,[5] and it finally halted transversely across the 3rd Lane;[6]
(c)	the front part and right side of the Taxi were damaged, and the front windscreen was shattered;
(d)	at 1:20am SPC48207 Mak Chi Ming (“SPC48207”) was instructed by the console to proceed to the Scene, and at 1:32am he arrived at the Scene and saw police officers cordoning off the Scene and administering traffic control, but he was the police officer who carried out investigation at the Scene and spoke with D2 and P/Tsang;[7]
(e)	at 1:40am an ambulance arrived, and at 2:05am P (accompanied by Tsang) was taken by to Princess Margaret Hospital (“PMH”) for medical treatment;
(f)	SPC48207 drew a sketch (“Police Sketch”) and took photographs of the Scene before he left the Scene at 2:18am;
(g)	there were no skid marks on the Road surface;[8]
(h)	D2 was not charged with any traffic offence as a result of the Accident;[9]
(i)	D2 had no previous conviction record for traffic offences under the RTO for the last 10 years, for driving points for the last 5 years and/or for disqualification order for the last 10 years;[10]
(j)	the Hong Kong Observatory (“Observatory”) had record of rain at Tsing Yi Road from 6pm to 10pm on 18 April 2008,[11] and cloudiness with no rainfall at 11pm and 12 midnight on 19 April 2008 and at 1am and 2am on 20 April 2008;
(k)	typhoon signal no 3 (“TS3”) was issued from 8:40pm on 18 April 2008 to 1:30am on 20 April 2008;
(l)	amber, red and black rainstorm warnings were issued from 4:40pm to 5:10pm (30 minutes), 5:10pm to 7:15pm (2 hours and 5 minutes), and 7:15pm to 9:30pm (2 hours 15 minutes) respectively on 19 April 2008.[12]

IV.  WITNESSES

12.  P and D2 both gave evidence. P adopted paragraphs 5-12 of her witness statement dated 27 October 2011 (“1^st P WStmt”) and paragraphs 1-16 of her witness statement dated 31 August 2012 (“2^nd P WStmt”). P also attended 2 interviews by the police on 14 May and 9 August 2008 (“1^st/2^nd Interviews”) and gave her 1^st and 2^nd police statements during such interviews (“1^st/2^nd P PStmts”). D2 adopted his witness statements dated 12 September 2011 and 6 March 2012 (“1^st and 2^nd D2 WStmts”). D2 also gave a cautioned statement to the police dated 22 April 2008, ie 3 days after the Accident (“D2 PStmt”). Tsang also gave a police statement dated 11 September 2008 (“Tsang PStmt”), but she did not give evidence at the Re-trial.

13.  This case fell to be decided essentially on the facts, so questions of credibility/reliability loomed large. In assessing witnesses’ credibility, I bear in mind not only their demeanour in court but also the intrinsic value of their evidence upon considering the totality of their evidence against the pleadings, chronology of events, documentary evidence and inferences based on inherent probabilities and/or undisputed facts.[13]

14.  P could read/write Chinese, and was a solicitor by profession. She did not have a driver’s licence and had no driving experience, but that did not stop her from arguing her own case by offering to the court her surmises as to what happened (often with some exaggeration and/or without reliable foundation).[14] In my view, even though P gave some candid responses under cross-examination, her evidence was rifed with inherent inconsistencies and there was a degree of reconstruction, much of which sought to put a positive but unrealistic spin on the situation. I find her testimony unreliable and self-interested.

15.  D2 was a professional driver who by April 2008 had a few years’ experience[15] of driving taxi, motorcycle, truck, and double-decker public bus. He fairly agreed his memory of details of the Accident was better at the time when he gave the D2 PStmt rather than when he made the 1^st/2^nd D2 WStmts. I find D2 to be a relatively more reliable witness, and I am more confident in placing weight on his statement evidence and oral testimony as to existence of the Unknown Car, which account I find to be consistent/credible. Nonetheless, D2’s evidence could not be accepted in its entirety, especially his perceptions/estimations in an “agony” and/or emergency, which might be difficult/unreliable even if honestly held/made.

V.  PICKING UP P/ TSANG

16.  D2’s Taxi queued up at the urban taxi stand (with 8 lanes) at the Hong Kong International Airport (“Airport”) to wait for passengers. P/Tsang landed at the Airport on a flight from Beijing. At/about 1am, D2 moved the Taxi to the front of the taxi queue, and P/Tsang boarded the Taxi. P/Tsang respectively sat at the right/left rear seats, and informed D2 their destination on Hong Kong island. P fastened her seatbelt, and then chatted casually with Tsang as the Taxi headed towards Kowloon.

VI.  ROAD CONDITION

17.  Layout of the Road  P did not know the Taxi was on the 2^nd Lane and had no idea of the layout of the Road beyond the Scene. Although P claimed she was looking towards the front of the Taxi (“Front Direction”) when she was casually chatting with Tsang, she did not pay particular attention whether there was a gentle right bend of the carriageway ahead. As seen below, I find on balance that during the Taxi journey, P was largely focusing on Tsang and their conversation, and for most of the time she was looking at Tsang rather than at the Front Direction.

18.  Road surface According to the Observatory’s records, (a) a black rainstorm warning was in effect until 9:30pm on 19 April 2008 (about 3½ hours before the Accident), (b) at/about 10pm on 19 April 2008 (ie about 3 hours before the Accident) 2mm of rainfall was recorded at Tsing Yi Road, (c) the relative humidity recorded in Tsing Yi was 98% at/about the time of the Accident, and (d) TS3 was still in force at the time of the Accident.

19.  In the 1^st P PStmt and 2^nd P WStmt, P stated the weather was fine, the Road was dry, and there was not much wind. The Tsang PStmt also stated the weather was fine without rain, the Road was dry, and there were bright street lamps. P testified under cross-examination that before she boarded the Taxi and when she sat at the roadside after the Accident, there was no rain and the Road surface was dry. But in the D2 PStmt D2 stated it had just stopped raining at the time and the Road surface was wet, and in the 2^nd D2 WStmt D2 claimed it had rained before the Accident and the Road surface was a bit wet.

20.  On balance, I prefer P’s case that at the time of the Accident the Road surface was dry. First, the objective matters in paragraph 18 above did not necessarily speak of the Road condition at the Airport when P/Tsang boarded the Taxi and/or at the Scene where the Accident happened. I find that upon cessation of the black rainstorm warning which was not followed by any amber/red warnings, the skies cleared for a few hours and by 1am-1:15am the road surface at the Airport and along the Road at/near the Scene was dry. I bear in mind P must have personal knowledge of the condition of the Road surface because after the Accident she alighted from the Taxi and sat at the roadside to wait for the ambulance. Her evidence in this respect was consistent and corroborated by the Tsang PStmt. I also note SPC48207’s police statement did not mention the Road surface was wet. Further, D2 claimed he had slept for 1-2 hours whilst queuing up at the urban taxi stand at the Airport to wait for passengers until the security guard knocked on the door of his Taxi about 10 minutes before he drove forward to pick up P/Tsang (see paragraph 65 below). In such circumstances, I reject D2’s suggestion it had just stopped raining. In my view, had D2 noticed any rainfall, it would have been before he fell asleep 1-2 hours ago, and I find the Road surface had dried by the time of the Accident. I disagree the Road surface at the time of the Accident was wet/slippery, and find the Road condition had no impact on D2’s driving or evasive action.

VII.  SPEED OF THE TAXI

21.  P pleaded that D2 drove at an excessive speed in all the circumstances. But such complaint did not feature in Mr Wong’s opening/ closing submissions, and D2 was not seriously cross-examined on this. In my view, this was unsurprising since such averment was not made out.

22.  General speed SPC48207’s police statement dated 29 April 2008 recorded P/Tsang told him at the Scene the Taxi was driven slowly. Under cross-examination, P could not recall whether she told SPC48207 the speed of Taxi or used the words “好慢”, but conceded she probably did in light of the record in SPC48207’s police statement.

23.  The Tsang PStmt stated the speed of the Taxi at the time was neither too fast nor too slow, which speed could be described as normal. P also testified she told PC48302 who took the 1^st P PStmt from her at the 1^st Interview (“PC48302”) that “I am not sure of the speed of the taxi at that time. I don’t think it was high. Very slow. I do not know whether it was fast or not” (as recorded in the 1^st P PStmt). Although P claimed under cross-examination the 1^st P PStmt simply meant she was unclear about the speed of the Taxi as evident from the statement “I don’t know whether it was fast or not”, she eventually conceded (a) the 1^st P PStmt actually gave her impression of the speed of the Taxi albeit not its exact speed in kph, and (b) its ambiguous description of the speed of the Taxi (ie “I am not sure of the speed of the Taxi at that time …… I do not know whether it was fast or not”) was contrasted to the firm view she expressed at the Scene (ie the speed of the Taxi was slow). In any event, it was clear and I find P was saying the speed of the Taxi was not fast/excessive.

24.  But about 3 months later, P stated in the 2^nd P Stmt as follows:

“…… I want to provide supplemental information because I now recall that [the Taxi] taken by me was moving along a straight road and before reaching the accident scene. Although I don’t know the speed of the [Taxi], it shouldn’t be slow in speed. In addition, it was night time and there wasn’t other car on the road ……” (my emphasis)

P at first disagreed but eventually accepted such positive assertion in the 2^nd P PStmt that the speed of the Taxi was not slow reflected a change from the 1^st P PStmt that suggested P was uncertain/unsure about the speed of the Taxi (see paragraph 23(b) above). Further, although P could not remember clearly, she believed the phrase “但應該唔會係慢” in the 2^nd P PStmt was her own words to Sgt47257 who took the 2^nd P PStmt from her at the 2^nd Interview (“Sgt47257”). As P agreed, speed that was not slow could only have meant it was either normal or fast. But the 2^nd P WStmt made clear P was asserting the former and not the latter: “[P] can say that its speed is neither too slow nor too fast, ie at normal speed a vehicle would travel along a highway with low traffic ……”.

25.  I accept P’s own impression and find the speed of the Taxi was normal. It was about 60-70kph, which was well within the speed limit of 80kph at that stretch of the Road, and reasonable (and not fast/excessive) in the circumstances (see the D2 PStmt and 1^st D2 WStmt). Further, with no vehicle in front of the Taxi and smooth traffic along the Road, sufficient lighting and dry Road surface at that stretch of the Road, I find P failed to make out any claim of excessive speed.

26.  Slowing down  In the 2^nd P WStmt, P claimed that “…… [immediately] before the collision, [P] noticed that the speed of the Taxi was gradually slowing down, which was most unusual for no good reason. [P] could see [D2] suddenly and momentarily bowed”. P agreed she should not have offered her opinion in the 2^nd P WStmt that the Taxi gradually slowed down “…… was most unusual for no good reason” in the 2^nd P WStmt as it was not a statement of fact and not based on actual driving experience on her part. Anyway, to put P’s aforesaid assertion in context, bearing in mind P claimed that the Taxi was travelling at normal speed (see paragraph 25 above) before gradually slowing down as P alleged, the speed of the Taxi just before the Accident would have been slightly less than normal speed. In any event, P testified that just before the Accident she did not feel endangered by the speed of the Taxi. In the Tsang PStmt, Tsang said she was not sure of the speed of the Taxi just before the Accident.

27.  When pressed as to why, given the 2^nd P WStmt as explained in the above paragraph, she asserted in the 2^nd P PStmt the Taxi was not travelling at a slow speed, P tried to explain this away by saying she gave information to the police at the 2^nd Interview to the best of her ability/ memory, but she did not recall then the Taxi slowed down just before the Accident. I find such explanation unconvincing. First, P admitted she prepared for the 2^nd Interview by re-reading the 1^st P PStmt and identifying some error(s) in the 1^st P PStmt (see Part XIII below). Secondly, according to the page 21 of the transcript of proceedings at the 1^st Trial, P gave evidence that she took initiative to ask for the 2^nd Interview with the police in August 2008 because:

“A few months before the accident, in fact, I was not thinking about the accident. I was just thinking about why the accident happened, why it was me. …… At that time, I was really upset …… Then a few months later, that is, in August, I started to think back how the accident happened …… Then I thought back to the course of the accident …… Then I recalled that when the accident happened, I was on board this vehicle; my experience at that time and how the accident happened. Then I recalled at that time I was talking to [Tsang]. But I felt that, and it seems that, the vehicle was moving slower and slower. And then I looked at the driver and it’s bowed once ……”

Such evidence at the Trial plainly dealt with the period before the 2^nd Interview, but did not sit well with P’s testimony at the Re-trial that she did not recall at the 2^nd Interview the Taxi slowed down. When pressed on such discrepancy, P said “[well], this – I don’t know why it was not mentioned there, I can’t remember”, and later conceded “[well], I made a mistake just now, I don’t know why”. When further pressed as to whether she thought about the so-called “unusual” slowing down of the Taxi before the 2^nd Interview, and whether she told the police about this at the 2^nd Interview, P testified “I can’t remember very clearly but I could have told the police …… because we have a general discussion of what I’m going to say, but …… I don’t think the police had written down everything I said”. But if that were so, P was unable to satisfactorily explain why she did not ask for this point to be added to the 2^nd P PStmt when she read it before signing the same. All she could say was “I don’t know, I just missed it”.

28.  On balance, I reject P’s claim that the Taxi gradually slowed down. As seen in Part XIII below, P took the initiative to schedule the 2^nd Interview several months after the Accident to give supplemental information to the police. Had P prepared for the 2^nd Interview and thought about what she would say to the police (as she confirmed), and had the Taxi slowed down just prior to the Accident (as P alleged), I find it would have been improbable for P to have omitted to mention such fact in the 2^nd P PStmt at the 2^nd Interview when she particularly addressed the issue of the speed of the Taxi (see paragraph 25 above). Such assertion only came up 3 years later in the 2^nd P WStmt, and P did not offer any satisfactory explanation why she remembered such fact after such lapse of time. I find on balance the Taxi did not slow down and there was no such “unusual” event.

29.  In my view, such assertion in the 2^nd P WStmt was a poor attempt to bolster P’s case that D2 bowed his head suddenly/momentarily and appeared to have dozed off at the wheel. This was quite evident as P’s evidence was to the effect that (a) she was chatting with Tsang so she sometimes looked at Tsang and sometimes looked in the Front Direction but most of the time she looked in the Front Direction without paying particular attention, (b) “the taxi …… getting slower and slower, like it’s sliding or something” was unusual, “so …… I have a particular look at the driver and I notice [D2’s] head bow”, and (c) then the Taxi began to spin with eventual collision so P felt differently about the speed of the Taxi. But, as seen below, I reject P’s case that D2 bowed his head and appeared to have dozed off, and there was no reason for D2 to slow down the Taxi, which allegation I find to be unreliable embroidery of P’s case.

VIII.  ACCIDENT

30.  In the 1^st P PStmt, P stated she was chatting to Tsang and was not even aware the Taxi was travelling on which lane when the Taxi reached the Scene. P felt the Taxi suddenly swayed once (which was confirmed by the Tsang PStmt), but she was not sure how many times it actually swayed. In the 1^st P WStmt, P claimed the Taxi suddenly started to shake.

31.  In the 1^st P PStmt and 1^st P WStmt, P stated (a) D2 lost control of the Taxi, (b) she used her right hand to grab the overhead handle to her right, and (c) the Taxi had collisions and made “bang” sound 3 times. The Tsang PStmt also stated Tsang immediately held onto something inside the Taxi and felt collisions to the body/front of the Taxi with 3-4 bang sounds. The Accident happened as set out in paragraph 11(b) above. In the 1^st P PStmt, P stated she was then in a state of confusion, and injured her forehead, right hand and right leg with her glasses thrown off by the force of the collisions. The 2^nd P PStmt stated there was bleeding of P’s right eye corner that was hit by shattered glass from the front windscreen.

32.  SPC48207’s police statement dated 29 April 2009 recorded P/Tsang both said they did not witness the course of the Accident. Indeed, in the 1^st P PStmt, P stated “…… I am not sure how the taxi crashed and why it lost control. I only know that I hurt my forehead, right hand and right leg at the time of crash. Thereafter, the taxi came to a stop transversely between the fast lane and the shaded line”. So it appeared that even up to 14 May 2008 (ie about a month after the Accident), P was still unclear as to the cause of the Accident. Indeed, when PC48302 asked P at the 1^st Interview whether she knew how the Accident happened, her reply as recorded in the 1^st P PStmt was that “[as] I was talking to my friend at that time, I didn’t notice and don’t know how the accident happened to it”, which P said was a true answer under cross-examination at the Re-trial. She agreed the recorded reply suggested (a) she did not pay attention and (b) she did not know how the Accident happened. Even though P tried to say under cross-examination her chatting with Tsang was not why she did not pay attention, she eventually conceded use of the character “as” (因) in the 1^st P Stmt suggested there was a causal link between her chatting with Tsang and her failure/inability to pay attention, and although she noticed this causal link when she read the 1^st P PStmt before she signed the same, she not only did not seek any correction but instead confirmed such statement by asserting therein “I don’t have anything to add”. P’s belated attempt to salvage the situation by saying “I missed out the word “因” at that time” was far from convincing given her appreciation of the causal link as aforesaid. Further, irrespective of what was recorded in the 1^st P Stmt, P recollected (even though the Accident happened more than 9 years before the Re-trial) that by and large she told PC48302 at the 1^st Interview “I didn’t pay particular attention; I didn’t know what caused the accident; at that time I was chatting with my friend sitting next to me”. In the end, P admitted in her testimony that in truth she did not know how/why the Accident happened.

33.  I find on balance P did not know the cause/course of the Accident, which was obvious from P’s account to SPC48207 (see footnote 2(b) above) and from the 1^st P PStmt, and which was natural/understandable since P was chatting with Tsang during the Taxi journey and giving Tsang her attention. In my view, P’s subsequent insistence that she was looking at the Front Direction despite chatting with Tsang had an aura of artificial unreality, and reflected poor effort to bolster her afterthought contention that the Accident was caused by D2 bowing his head suddenly/momentarily and having apparently dozed off at the wheel (see 2^nd P PStmt, 1^st/2^nd P WStmts and Part XIV below) and by D2 wearing Flip-flops (see 1^st P WStmt and Part XVI below), which contentions I reject in the discussions below. Indeed, even P herself admitted under cross-examination that (a) she would sometimes look at Tsang when chatting with her on the Taxi journey, but (b) she would look at the Front Direction most of the time without paying particular attention (see paragraph 29 above). On balance, I find it was closer to the truth that P spent most of the time for (a) above, and only just now and then for (b) above, which explained why she had little idea of the Road layout/condition, the traffic on the 3^rd Lane, and how the Accident happened. On balance, I also do not accept P was paying attention to the back of D2’s head. In short, I find P was caught unawares by the sudden Accident.

IX.  POST-ACCIDENT

34.  In the 1^st P PStmt and 1^st P WStmt, P stated “I got out of the taxi afterwards and only noticed that the front windscreen and the right body of the taxi was damaged. But I am not sure of anything else”. In the 2^nd P PStmt and 2^nd P WStmt, P said D2 alighted from the Taxi and asked her whether she was trapped (as she had blood on her face).[16] In the Tsang PStmt, Tsang said she noticed P injured her forehead and was bleeding. Tsang claimed she sprained her neck with no other obvious injury, and she alighted from the Taxi. In the 2^nd P WStmt, P said Tsang helped her unfasten the seat belt, alight from the Taxi from the left side (as the right side was damaged), and sit down at the roadside to wait for the ambulance. In the Tsang PStmt, Tsang said D2 made a report to the police. Later, police officers arrived at the Scene, and an ambulance came to take P (accompanied by Tsang) to PMH for medical treatment.

35.  In the D2 PStmt, D2 stated he injured the right side of his body, but it was not immediately painful. He alighted from the Taxi (and did not move it before the police arrived), and noticed the front and right side were damaged. By about 5:00am D2 felt painful and sought medical treatment.

X.  STATEMENTS BY D2 AT THE SCENE

36.  In the 2^nd P WStmt, P claimed she was hurt and in need of medical help, so she did not discuss with D2 at the Scene what caused the Accident, and D2 said nothing to her about the Unknown Car. The Tsang PStmt also stated D2 did not tell Tsang the reason for the Accident. The 2^nd P WStmt suggested “the case of the alleged [Unknown Car] was only a story made up by [D2] on a second thought”.

37.  In the 2^nd P WStmt, P stated that after the police officers arrived D2 left her sight for a short while, and when he returned he claimed “skidding of tyres” caused the collision. “However, as [P] noticed that [D2] was wearing a pair of [Flip-flops her] immediate response to his assertion was that it was “skidding of foot” but not the “tyres”.” I will discuss this aspect of P’s evidence in paragraphs 41 and 67-69 below.

38.  According to SPC48207’s police statement dated 29 April 2008, D2 told SPC48207 at the Scene he did not require medical treatment and gave the following account (which corresponded with D2’s case as explained in paragraph 8 above and which was similar to the account in D2’s other statements):

“At the time of the accident, I was driving [the Taxi] on the [2^nd Lane] at the above scene. A private vehicle in dark colour (whose vehicle registration number was unknown) on the [3^rd Lane] suddenly cut from the [3^rd Lane] into the [2^nd Lane]. Thus, I avoided it by swerving to the left. My vehicle was out of control and the right side of it bumped against a crash barrier between the [1^st and 2^nd Lanes]. Thereafter, my vehicle bumped against [the Concrete Embankment] on the right.”

39.  A number of matters were of note. First, the fact D2 did not tell P/Tsang about the Unknown Car at the Scene did not mean it was a made-up story. After all, P was injured and there was bleeding on her face. In my view, D2 would not have tried to engage her to explain to her why the Accident happened whilst she waited for the ambulance. But D2 did tell SPC48207 at the Scene that the Accident was caused by the Unknown Car abruptly cutting into the 2^nd Lane, and D2 swerved left and lost control of the Taxi. Such explanation given by D2 to SPC48207 at first opportunity was consistent with D2’s case all along.

40.  Secondly, I find it improbable D2 would leave P’s line of vision (presumably to talk to the police officer(s) who had arrived at the Scene) and then return to tell her the collision was caused by skidding of tyres, which was wholly different from the account he gave to SPC48207 at the Scene. Such account was also somewhat different from the 2^nd P PStmt in which P stated “[when] the police first arrived at the scene to conduct investigation, I heard the driver mentioning tyre skidding to the police. But I don’t think it was caused by tyre skidding because I didn’t feel he had applied the brake. On the contrary, I think that as he was wearing flip-flops at that time, it should be the case that his foot slipped”. There was no suggestion of D2 going out of sight and then returning to talk to P. Instead, P asserted in the 2^nd P PStmt that D2 spoke within earshot of P.

41.  Thirdly, P claimed her immediate response to what D2 allegedly told her was it should be “skidding of foot” rather than skidding of tyres. But if that was her immediate response at the Scene, I find it strange she did not mention this to SPC48207, and instead told him she did not know how the Accident happened. It was even more unconvincing for her to put forward the reasons in paragraph 68 below for not mentioning D2’s footwear to the police officer(s) at the Scene. On balance, I reject P’s assertions in the 2^nd P WStmt in paragraph 37 above. In coming to this conclusion, I also bear in mind the common ground that there were no skid marks on the Road surface at the Scene.

XI.  P’s INJURIES AND TREATMENT

42.  After the Accident, P was admitted to PMH with fractures of right middle finger and right femur but no brain injury. On the following day (ie 21 April 2008), she was transferred to Queen Mary Hospital. On 25 April 2008, she was transferred to Duchess of Kent Hospital. On 2 May 2008, she was discharged home. Before I turn to the various reasons P put forward as alleged causes of the Accident, it is necessary to put such contentions in context, especially in light of the 1^st/2^nd Interviews and 1^st/2^nd P PStmts.

XII.  1^ST P PSTMT

43.  P received a telephone call from the police during her hospitalisation requesting for an appointment to interview her after her discharge, and the 1^st Interview was scheduled on 14 May 2008. P received physiotherapy/other medical treatment between 2 and 14 May 2008. P claimed to suffer from post-traumatic stress disorder (“PTSD”) which caused her to avoid thinking about the Accident as it made her uncomfortable. But P conceded she probably talked to her family (including her husband) about the Accident, which was only natural, so she did think about the Accident although she disagreed she kept thinking about it.

44.  P had the 1^st Interview with PC48302 at the police station from 4:15pm to 4:55pm (ie about 40 minutes) during which she gave the 1^st P PStmt. P claimed PC48302 asked her to talk generally about the Accident and what happened, and then asked her some questions to which she gave oral answers. PC48302 wrote the 1^st P PStmt, asked P to read it, then asked whether she had anything to add/correct, and finally asked P to sign the same. Although P could not clearly recall whether PC48302 read the 1^st P PStmt to her, she accepted it must have been so read to her when she was shown the chop on the last page of the 1^st P PStmt to such effect. P also signed on the 1^st page of the 1^st P PStmt to confirm its contents were true to the best of her knowledge.

45.  P was given a copy of the 1^st P PStmt. At first P testified that she could not recall whether she re-read it or showed it to anyone else (including her family who were more concerned about her health and wellbeing rather than what happened at the 1^st Interview), but she eventually conceded she might have done so although she tried not to think too much about the Accident. P could not recall clearly but believed she had not received any notification that there would be no police prosecution. Although the statement “I have received a copy of the Notice of Intended Prosecution and I have been explained the contents thereof” in the printed form of the 2^nd P PStmt had not been crossed out (in contra-distinction to the 1^st P PStmt which had this statement crossed out and initialed by P to acknowledge such deletion), P confirmed she had not seen any Notice of Intended Prosecution, and she missed such printed statement in the 2^nd P PStmt and so failed to ask PC48302 to cross it out.

46.  In my view, this must have been an inadvertent omission. P as a passenger of the Taxi was at best a witness to the Accident, and it was most unlikely for her to be regarded an offender or suspected offender of any traffic offence to support issuance of a Notice of Intended Prosecution against her. In any event, the police made clear they had not contemplated any prosecution against P and/or D2 (see footnote 9 above), so I find no Notice of Intended Prosecution was ever issued.

XIII.  2^ND P PSTMT

47.  During the period of about 3 months from 14 May to 9 August 2008 (the latter being the date of the 2^nd P PStmt), P received physiotherapy, occupational therapy, and specialist orthopaedic treatment in private setting. She also had a 2^nd operation on her finger for removal of implant. P believed she had not yet started psychological treatment (upon referral by private doctor) as she consulted Dr Chan in December 2008.

48.  Although P claimed (a) she still tried to avoid thinking about the Accident and (b) did not show copy 1^st P PStmt to anyone, she took the initiative to telephone the police to make an appointment for the 2^nd Interview to give a supplemental statement. P claimed she did so because she had just remembered D2 bowing his head suddenly/momentarily and some other details about the Accident, and therefore wished to provide such additional information to assist police investigation. P could not recall when precisely she remembered such details, but agreed it would have been between the 1^st and 2^nd Interviews.

49.  When pressed, P agreed she re-read the 1^st P PStmt before she attended the 2^nd Interview,[17] but could not recall whether she brought a copy with her for the 2^nd Interview. P’s 2^nd Interview by Sgt 47257 (a higher ranking police officer than PC48302 who took the 1^st P PStmt at the 1^st Interview) took 1½ hours from 4:35pm to 6pm, and P signed each page of the 2^nd P PStmt to confirm the truth of its contents. P agreed since she was the one who wished to give further information to the police, she paid particular attention to the contents of the 2^nd P PStmt.

XIV.  ALLEGED HEAD BOWING AND DOZING OFF

50.  P agreed she told SPC48207 she did not see how the Accident happened and/or did not complain to SPC48207 D2 bowed his head suddenly/momentarily apparently having dozed off at the wheel just before the Accident (even though P accepted this was materially relevant to the issue of what caused the Accident). But P claimed this did not mean she did not see D2 dozing off. She insisted she simply did not address her mind as to why the Accident happened at the Scene, and disagreed she already formed the belief D2 had dozed off at the wheel when she spoke with SPC48207 at the Scene because (a) SPC48207 only spoke with her and did not formally interview her, (b) the situation at the Scene was chaotic, and (c) she was injured with blood running down her face and pain at her finger/knee such that she was more concerned to get help for her injuries.

51.  However, some 3 months after the Accident, P in the 2^nd P PStmt volunteered the following information on her own initiative:

“I was sitting behind the driver’s seat at that time. At that time, I was actually talking to my friend who was on my left. Although I was talking, I still looked at the front. At the moment before the accident, I clearly saw the driver in front of me (at that time, I knew that he was a male driver without wearing a hat, rather well-built, around 30 years old, whose hair was not too long, but not short either) suddenly dropped his head forward for a split second (I could see that because the driver’s seat was without headrest). After the driver dropped his head for a split second, the taxi was swaying.” (my emphasis)

These details were not mentioned in the 1^st P PStmt, which simply recorded P was talking to Tsang and therefore did not pay attention. At first P tried to say the 1^st/2^nd P PStmts were not inconsistent because “I was talking with [Tsang], but at the same time my eyes was looking at front so I can see the driver sitting right in front of me. I can see the back of the driver sitting right in front of me”. But I have found P was focusing more on Tsang and their conversation rather than looking at the Front Direction. Further, P (when pressed) agreed the 1^st/2^nd P PStmts were not the same in that the former expressly mentioned she did not pay attention but the latter positively asserted what she observed, but she still weakly denied they were inconsistent and/or “exact opposites”.

52.  P disagreed that had this been true she would have mentioned it in the 1^st P PStmt, and she denied that she made this up to have D2 convicted of traffic offence(s). Instead, P said if she had thought more carefully about fine details of the Accident she would have told the police at the 1^st Interview about D2 bowing his head and dozing off as it concerned the Accident, but at that time she avoided thinking about details of the Accident. I note with interest P actually told PC48302 at the 1^st Interview that the Taxi suddenly swayed and lost control, that she used her right hand to grab the overhead rail, that she thereby injured her right hand, and that the Taxi suffered collisions and made “bang” sound 3 times, so P did not avoid thinking/addressing the Accident at the 1^st Interview. In all the circumstances, I find P’s assertions unreliable.

53.  In my view, notwithstanding P’s assertions of receiving medical treatment and suffering from PTSD, there was no plausible/convincing reason why (if it were true) P did not mention in the 1^st P PStmt D2 bowed his head suddenly/momentarily apparently having dozed off at the wheel. Despite P’s disagreement, I find on balance P was silent about this at the 1^st Interview (when her memory would have been more vivid than at the time of the 2^nd PStmt) because it did not happen, and her late assertion 3 months later gave pause for concern. P put forward some excuses for not addressing her mind at the Scene as to why the Accident happened (see paragraph 50 above). But in my view, had it been true that the Taxi slowed down in tandem with D2 bowing his head suddenly/momentarily apparently having dozed off at the wheel, P would have mentioned this at the 1^st Interview despite the havoc of the Accident and her injuries with bleeding because these events would have been quite unusual, and SPC48207 spoke with her about what she observed about the Accident.

54.  P did not say what triggered her memory of D2 bowing his head suddenly/momentarily just before the Accident (see paragraph 48 above and question/answer 3 of the 2^nd P PStmt – see paragraph 55 below). Of even more concern was P’s statement in the 2^nd P PStmt that she was able to see D2 suddenly/momentarily bow his head because there was no “頭枕” (head pillow) or headrest at the driver’s seat (“Headrest”). I agree with Mr Gidwani this was a poor attempt by P to justify why she was able to see D2 apparently having dozed off at the wheel.

55.  P explained under cross-examination why she asserted in the 2^nd P PStmt there was no Headrest:

“I was sitting right behind the driver and …… I can see clearly …… the back of his head, and the thing that is known as ‘頭枕’ is actually up to the neck so I can see his head, and when the policeman said ‘頭枕’ …… I was thinking that …… I can see his head, so I say there is no head pillow …… And of course it is a mistake.” (my emphasis)

In short, P asserted “頭枕” were Sgt47257’s words and not hers,[18] but she acknowledged that in 2008 she knew what “頭枕” meant. When pressed on whether she told Sgt47257 at the 2^nd Interview there was no “頭枕”, P in her oral testimony insisted she could clearly see the back of D2’s head as there was nothing between her and D2 that would block her vision, so she stated there was no “頭枕” in the 2^nd P PStmt, and on such basis P further stated as follows:

“When I thought again, the road surface was dry at that time, our taxi was not affected by other cars before accident because there was no other car in front of us and the traffic condition was also normal, I believe that he fell asleep at that time. Furthermore, the typhoon signal issued before the date in question was also cancelled, he shouldn’t have been affected by the wind. The above are supplemental information given by me.

Q1: Are you sure that this accident was caused by the driver’s falling asleep while driving?

A1: Sure. I believe that this was the cause of the accident.

Q2: As you were only looking at his back at that time, how are you sure that he fell sleep?

A2: I believe that this was the cause, but there was no other reasonable explanation.

Q3: After the accident, why didn’t you tell the police that you believe that the driver had fallen asleep while driving and this led to the accident until now?

A3: As I sustained injuries after the accident and I was still in a panic. I was still unable to calm down even at the time of making the statement last time. Thus, I didn’t full recall the course. As I recall the course of the accident right now, I immediately provide such information to the police as evidence.”

56.  But it transpired from photographs taken of the Taxi by SPC48207 at the Scene (which were actually disclosed by P in her List of Documents filed on 5 September 2011) that a Headrest was affixed to the back of the driver’s seat by 2 metal poles. Faced with such incontrovertible evidence, P was constrained to agree what she said in the 2^nd P PStmt about there being no “頭枕” (ie head pillow) was a mistake.

57.  In my view, the existence of the Headrest shed a different light on what P could see when she looked in the Front Direction from her position directly behind the driver’s seat. P disagreed she would not have been able to see D2 bowing his head momentarily, and insisted she could still see a substantial part of the back of D2’s head. But in contra-distinction to her assertion in the 2^nd P PStmt that “…… I can see clearly …… the back of [D2’s] head ……” because there was no Headrest (see paragraph 55 above), P had to accept when she looked in the Front Direction the Headrest was directly in front of her and blocked part of her view, so what she could see was the Headrest and part of the back of D2’s head.

58.  But quite strangely, in the 1^st P WStmt dated 27 October 2011 (ie about 1½ months after P filed her List of Documents disclosing photographs taken by SPC48207), P persisted in saying she had an unobstructed view of D2’s head “because the driver’s headrest was not installed”, and she consequently saw D2 suddenly/momentarily bowing his head apparently having dozed off at the wheel just before the Taxi started to shake. P acknowledged under cross-examination that she repeated her error in not pointing out she made a mistake in the 2^nd P PStmt and in further saying she had an obstructed view of D2’s head in the 1^st P WStmt “because the driver’s headrest was not installed”, but she offered no credible reason for such repeated mistake when she already had access to the police photographs which plainly demonstrated the inaccuracy of her assertion of no Headrest in the 2^nd P PStmt.

59.  P apparently realised her error sometime after the 1^st P WStmt (presumably after service of the 2^nd D WStmt which made reference to the police photographs). P tried to explain why she did not cross out or amend the assertion of no Headrest[19] before she signed the 2^nd P PStmt and why she repeated her error in the 1^st P WStmt. According to P’s testimony, “[at] that time [her] understanding is really there’s no partition between [her], the backseat passenger, and the driver in the front so that [she] could see the driver’s head clearly”. This explanation first surfaced in the 2^nd P WStmt in which P claimed at the time she just returned from Beijing where taxi usually had a plastic shield partition with metal frame between the driver and rear seat passenger (“Partition”), and in saying “the driver’s headrest was not installed” in the 1^st P WStmt she was in fact saying there was no such Partition in the Taxi.

60.  P accepted she erred in confusing the Headrest with the Partition (that was rarely seen in taxis in Hong Kong). Even though P denied she fabricated or lied about such matter to justify her alleged ability to visualise the back of D2’s head and/or she could not have misunderstood and/or could not have been mistaken given her level of education and nature of her profession, especially when she admitted she understood in 2008 what “頭枕” meant, I find P’s explanation in the above paragraph to be nothing more than an unreliable attempt to salvage her credibility when faced with incontrovertible existence of the Headrest that seriously undermined her case. I find myself unable to place any weight on such poor explanation.

61.  But notwithstanding the existence of the Headrest and weakness of such poor explanation, P insisted she still had an unobstructed view of D2 bowing suddenly/momentarily and apparently having dozed off at the wheel, and even went on to assert “…… at that point the taxi started to move in a zig-zag manner”, and to suggest the Accident “was caused by the momentarily dozing off of [D2] and he had voluntarily or involuntarily swung the steering of Taxi causing the collisions”. But even on P’s case, the interior of the Taxi was quite dark, and she saw D2’s head slightly bowed only once. In the circumstances, given (a) I have found P was paying attention to Tsang and their conversation as they chatted away on the Taxi journey, and only glanced in the Front Direction without paying attention to anything in particular, (b) the Headrest obstructed P’s view of the part if not the entire back of D2’s head from her position directly behind D2, and (c) the inherent inconsistencies in P’s statement/oral evidence that undermined her reliability, I find on balance P did not observe D2 bowing his head at all.

62.  In any event, even if I am wrong and D2 did make a slight bow of his head, it was a far cry from P’s suggestion that D2 had apparently dozed off at the wheel. P obviously could not see D2’s facial expression from her position behind him, and she was constrained to accept she did not know as a matter of fact whether D2 had actually fallen asleep. In any event, P conceded that in respect of D2 bowing his head slightly once, she could not rule out it was possibly caused by movement of the Taxi, especially when she claimed the Taxi began to shake when D2 bowed his head. In my view, this could have been D2’s reaction to the Unknown Car cutting from the 3^rd Lane to the 2^nd Lane as he swerved left. In the end, P confessed her allegation that the Accident was caused by D2 dozing off was simply her guess/inference.

63.  In coming to the above conclusion, I also note the Tsang PStmt in stating Tsang was not sure how the Taxi crashed and why it lost control did not corroborate P’s case. Indeed, Tsang made clear she did not know the reason for the Accident and D2 did not tell her, and she did not feel anything special about the driver. In my view, there was no reliable foundation for P’s surmise that D2 appeared to have dozed off momentarily just before he lost control of the Taxi.[20] On balance, I disagree the Accident was caused by D2 suddenly/momentarily bowing his head and/or “apparently” having dozed off at the wheel.

XV.  D2 SUFFICIENTLY RESTED?

64.  In the 2^nd P WStmt, P made observations on D2’s affirmation dated 6 March 2012 that stated (a) D2 started his Taxi shift at 10am on 19 April 2008 and had 1-2 hours’ sleep before he picked up P/Tsang so he was “wide awake and not sleepy”, and (b) before the Accident D2 on average worked about 12 hours/day and 6 days/week and his normal working hours were from 6am to 6pm with 1-hour lunch break and a few toilet breaks. P suggested that since D2 had worked for over 15 hours (ie 3 hours more than his normal schedule) before he picked up P/Tsang at the Airport at about 1am on 20 April 2008, he must have been very tired otherwise he would not have slept for 1-2 hours, especially when his claimed working schedule/routine did not allow any break for him to have a nap. Even if D2 had slept for 1-2 hours (presumably in the Taxi), P doubted whether D2 felt refreshed and/or whether he was reasonably alert with sufficient responsiveness suitable for driving, “particularly as a professional driver and on a high speed road in Lantau Link with a maximum speed of 110 km per hour”. P considered it was not reasonable for D2 to drive in such tired condition as it would endanger others.

65.  First, the relevant speed limit was 80kph and not 110kph. Secondly, as P conceded under cross-examination, her observations in the 2^nd P WStmt in the above paragraph were matters of inference and not fact which should be better left to the tribunal of fact upon evaluation of the evidence. As D2 said in the 1^st D2 WStmt, P did not talk to him after she boarded the Taxi other to give her destination, and she could hardly have known his mental state and/or his alertness. In my view, P’s assertions were nothing more than speculative surmise. Thirdly, I find on balance that at the time of the Accident D2 had sufficient sleep/rest and was sufficiently alert. In my view, there was no credible/reliable basis to suggest D2 was so tired that he suddenly/momentarily bowed his head and dozed off at the wheel. On the day in question, D2 started his shift at 10am rather than his usual 6am because there was not much business with TS3 still in force that morning. He mainly remained at the Airport during the day, and had queued at the urban taxi stand for 1-2 hours before P/Tsang boarded the Taxi. I accept D2 slept/rested during those 1-2 hours as there were 8 lanes for queuing taxis which meant he did not have to move forward along his lane whilst waiting for passengers. I further accept the security guard at the Airport knocked on D2’s car door about 10 minutes before D2 was to drive forward to pick up passengers.[21] On balance I find D2 had sufficient rest before P/Tsang boarded the Taxi, and there was no reliable evidence that I accept to show D2 was other than sufficiently alert/awake at the material time.

XVI.  FLIP-FLOPS

66.  In the 1^st P PStmt, P stated “[after] I got out of the taxi, I noticed that the taxi driver was wearing a pair of flip-flops”. In the 2^nd P PStmt, P reiterated “[after] the accident, the driver got out of the taxi first, and I saw him wearing a pair of flip-flops”. But P claimed under cross-examination she actually saw D2 wore Flip-flops before she boarded the Taxi, which fact stuck in her memory as she thought it was improper footwear for driving, and which was why she was able to mention such fact in the 1^st/2^nd P PStmts. But I find such oral testimony to be unreliable embellishment. The tenor of the 1^st/2^nd P PStmts suggested P observed D2’s footwear when he alighted from the Taxi after the Accident. I also note P acknowledged she could not see D2’s feet from her position inside the Taxi, and there was no evidence D2 had ever alighted when P/Tsang boarded the Taxi at the Airport. On balance I disagree P noticed D2’s footwear before the Accident.

67.  P said that in P’s 2^nd WStmt she complained to PC48302 at the 1^st Interview about D2 wearing a pair of Flip-flops saying that “跣軚? 跣腳差唔多 ……”, but for reason unknown it was not recorded in the 1^st P PStmt. In the 2^nd P PStmt, P stated “[when] the police first arrived at the scene to conduct investigation, I heard the driver mentioning tyre skidding to the police. But I don’t think it was caused by tyre skidding because I didn’t feel he had applied the brake. On the contrary, I think that as he was wearing flip-flops at that time, it should be the case that his foot slipped”. So even on P’s case, the fact D2 wore Flip-flops was on her mind right after the Accident. P claimed this was because she believed it was unsafe/inappropriate for professional drivers to wear Flip-flops for driving.

68.  But as pointed out in paragraph 41 above, quite strangely P did not complain to SPC48207 at the Scene about D2 wearing Flip-flops. P tried to explain this away by saying (a) the police officers at the scene should have noticed this themselves, (b) the situation was chaotic at the time, and (c) she hoped the police officers would help her with her injuries. On balance, I reject such assertions as poor attempts to excuse P’s silence about D2 wearing Flip-flops at the Scene. In my view, if (i) D2 wearing Flip-flops was on her mind right after the Accident, (ii) she firmly believed it was unsafe/inappropriate for drivers to wear Flip-flops (given what her friend allegedly told her in paragraph 70 below), and (iii) at the Scene she already thought “slipping of foot” rather than “skidding of tyres” caused or contributed to the Accident, P (as victim who suffered the Accident) would have mentioned to SPC48207 at the Scene that D2 wearing Flip-flops caused “slipping of foot” over brakes when he queried her understanding of the Accident (see paragraph 41 above).

69.  In any event, SPC48207’s police statement did not record any mention by D2 of skidding of tyres, and in fact there were no skid marks on the Road surface (see paragraph 41 above). P also confirmed she did not feel any abrupt/hard braking of the Taxi. On balance, I do not accept there was any skidding of tyres and/or D2 made such assertion to P (especially in light of my findings in Part X above).

70.  P’s evidence also had other inherent difficulties. P claimed that (a) generally speaking wearing Flip-flops could contribute to a driver losing control over his vehicle, and (b) D2 losing control of the Taxi might be a cause of the Accident, but (c) she did not know whether D2 wearing Flip-flops caused the Accident. When pressed on how (a)-(b) above could sit comfortably with (c) above, P claimed D2 wearing Flip-flops could have been a cause of the Accident which occurred upon D2 losing control of the Taxi, and she explained her friend would change her sandals for flat-soled shoes for driving and told her it was dangerous to wear sandals as it would be difficult to brake effectively (which made P realise improper footwear might interfere with effective braking in emergency situation), so P believed D2 wearing Flip-flops might have caused him to lose control of the Taxi upon braking, but she did not know what caused D2 to brake in emergency.

71.  But P’s understanding of the alleged danger of a driver wearing Flip-flops was not given in the 1^st/2^nd P PStmts and/or 1^st/2^nd P WStmts, and I find it was nothing more than an afterthought that P put forward to shore up her surmise that the Accident was caused or contributed to by D2 wearing Flip-flops. Whilst I accept it might have been more desirable for D2 (or indeed any driver) to wear sensible shoes when driving, the relevant question was not what would have been better footwear for driving, but whether D2 wearing Flip-flops caused or contributed to the Accident. On balance, I am unable to accept there was any “slipping of foot” (whether as a result of D2 wearing Flip-flops or otherwise) over the brakes by D2. I bear in mind that the interior of the Taxi was dark, and P admitted she could not see D2’s feet from the rear seat directly behind the driver’s seat. She was quite unable to observe whether D2 actually “slipped her foot” and lost control of the Taxi because he was wearing Flip-flops. Further, as seen below, D2 did not slam hard on the brakes when the Unknown Car cut into the path of Taxi, and I find it improbable D2 slipped his foot when he feathered the brakes.

72.  Although P said “[in] this particular case, this driver wearing flip-flops contribute to the accident”, when pressed she acknowledged the only basis for such surmise was simply because she observed D2 was wearing Flip-flops. This, in my view, was insufficient basis to attribute causation of the Accident to alleged failure by D2 to securely step on the brakes, and on balance I accept D2’s evidence that his wearing Flip-flops did not hinder his ability to control the Taxi.

XVII.  UNKNOWN CAR

73.  There was no dispute that at the material time traffic was smooth with no vehicle on the 2^nd Lane ahead of the Taxi. But this did not mean the Taxi was unaffected by other car(s). In the 2^nd P PStmt P claimed she did not notice whether there was any vehicle behind the Taxi, but there was no evidence at trial there was any such vehicle. The Tsang PStmt stated Tsang did not feel other cars around them just before the Accident, but she was not paying attention to the situation outside the Taxi as she was focusing on her conversation with P.

74.  In the 2^nd P PStmt, P made a bare assertion that “[D2] shouldn’t have been affected by other cars …… before the accident”. Mr Wong put forward 3 reasons for suggesting there was no Unknown Car that would put D2 in any “agony”: (a) P never saw/notice the Unknown Car, (b) there was no sensible need for lane change, and (c) D2 made a big/hard swerve which was inconsistent with alleged need for evasive action.

75.  First, it was said this court should place weight on P’s evidence that she never saw/notice the Unknown Car. In 2^nd P WStmt, P claimed she did not see the Unknown Car, and even suggested D2’s assertions about the Unknown Car was self-contradictory because such vehicle (if it existed which P disagreed) would have the necessary speed/space to cut into the 2^nd Lane, so “there was no reason why [D2] would swing the left steering, as stated in paragraph 8 of [the 1^st D2 WStmt], unless he had momentarily dozing off and was suddenly woke up and frightened by the alleged [Unknown Car] to swing the steering”.

76.  Under cross-examination, P was constrained to agree such observation was argumentative rather than factual. I have rejected P’s contention that D2 had momentarily dozed off at the wheel, so it followed I also reject P’s contention that D2 was startled when he “suddenly woke up”. I will deal D2’s evasive manoeuvres in reaction to the Unknown Car below.

77.  Under cross-examination, P claimed “there was no vehicle on the right because …… the street lamps are bright all along. So if there were indeed a vehicle on the right, I would be able to know it without paying particular attention.” I disagree even on P’s own case because (a) she agreed under cross-examination that she did not pay particular attention to traffic on the 3^rd Lane in the few seconds before the Accident as she was chatting with Tsang and also looking in the Front Direction (with her view partly obstructed by the Headrest), and (b) she reiterated under re-examination that she was looking at the Front Direction as she chatted with Tsang just before the Accident, and only saw D2 bowing his head slightly as if momentarily dozing off and saw nothing else ahead just before the Taxi lost control.

78.  It was quite clear from paragraph 77(a)-(b) above that prior to the Accident P (even on her own case) was not paying attention to traffic on the 3^rd Lane, which explained why she did not see the Unknown Car which I accept came up along the 3^rd Lane at a speed faster than that of the Taxi. This was unsurprising since P was chatting with and paying attention to Tsang. Further, I have found she gave her attention more to Tsang and their conversation rather than to the Front Direction let alone traffic on the 3^rd Lane. As a passenger in the Taxi, there was nothing untoward that would have required P to pay particular attention to the 3^rd Lane, and she therefore failed to observe the Unknown Car coming up along the 3^rd Lane and cutting from the 3^rd Lane into the 2^nd Lane in front of the Taxi. On balance, I reject P’s evidence to the contrary.

79.  Secondly, turning to D2’s evidence, D2 stated in the D2 PStmt that a dark-colured Unknown Car (whose registration number was unknown) appeared to the right of the Taxi. It came up along the 3^rd Lane at a speed faster than that of the Taxi (but D2 was not sure of its actual speed), and by the time D2 noticed the Unknown Car it was already parallel to the Taxi. After the Unknown Car went past the Taxi (ie its rear part went past the right front of the Taxi), it cut from the 3^rd Lane to the 2^nd Lane in front of the Taxi without turning on the left indicator light. D2 claimed he immediately applied brakes and swerved left. There was no collision, and the Unknown Car continued towards Kowloon. But the Taxi lost control and spun anti-clockwise so that its right (offside) body collided with the left Metal Barrier and rebounded anti-clockwise so that its front hit the right Concrete Embankment before stopping transversely across the Road.

80.  In the 1^st D2 WStmt, D2 gave the same account and added that when the Unknown Car cut from the 3^rd Lane to the 2^nd Lane, it was so close to the Taxi that the distance between its right front and the Unknown Car’s left rear was about 1m.

81.  In the 1^st/2^nd D2 WStmts, D2 claimed (a) he first noticed the Unknown Car on the 3^rd Lane when it was almost parallel to the Taxi, (b) the Taxi was near the Chevron Area when the Unknown Car on the 3^rd Lane went past the Taxi and cut into the path of the Taxi on the 2^nd Lane, (c) there was no vehicle in front of the Taxi at the time, and (d) the Unknown Car did not turn on the left indicator light before or at the time when it suddenly cut into the 2^nd Lane in front of the Taxi.[22] D2 claimed he did not expect such behavior by the Unknown Car so close to the Taxi, so he was unable to slow down smoothly/steadily to avoid collision with the Unknown Car, and he immediately applied brakes and swerved left. According to 1^st/2^nd D2 WStmts, the Taxi slided and spun anti-clockwise to crash into the left Metal Barrier, rebounded to hit the right Concrete Embankment, and eventually stopped on the 3^rd Lane. The Unknown Car drove away without stopping, but D2 claimed he did not know which direction (Tsing Yi or Kowloon) it went.

82.  But under cross-examination, D2 said (a) he did not think the Unknown Car reached the level of the Chevron Area when it cut from the 3^rd Lane into the 2^nd Lane, (b) when the Unknown Car cut into the 2^nd Lane ahead of the Taxi it was parallel to or alongside the Chevron Area (as marked in exhibit D1), and (c) D2 was not sure but believed the Unknown Car continued on the 2^nd Lane towards Kowloon.

83.  Mr Gidwani suggested it remained a mystery why the Unknown Car behaved the way it did since it irresponsibly left the Scene. [23] But Mr Wong noted even though D2 in the 2^nd D2 WStmt claimed he did not know which direction (Tsing Yi or Kowloon) the Unknown Car went (see paragraph 81 above), D2 confirmed in D2 PStmt (see paragraph 79 above) and in his oral testimony (see paragraph 82 above) that the Unknown Car eventually drove off towards Kowloon along the 2^nd Lane. Since D2 fairly conceded his memory of the details of the Accident was better at the time of the D2 PStmt than when he made the 1^st/2^nd D2 WStmts, Mr Wong submitted the Unknown Car must have continued towards Kowloon along the 2^nd Lane. I agree with Mr Wong’s submissions. Mr Gidwani complained D2 was not given an opportunity to explain the D2 PStmt on this point. But I see no forensic need for Mr Wong to do so when it was part of D2’s own cautioned statement, the contents of which he confirmed to be correct and to be more fresh in his mind as compared with his subsequent statement evidence. As Mr Wong submitted, it was not P’s case that D2 lied in the D2 PStmt in this respect. In any event, at the time the Unknown Car cut into the 2^nd Lane, it was already next to or alongside the Chevron Area, and given that it was driven at a faster speed as it came up along the 3^rd Lane to move ahead of the Taxi travelling at 60-70kph to cut lane, I find on balance there would not been sufficient time/opportunity for the Unknown Car to further cut across the Chevron Area (before it reached the level of the Metal Barrier that marked the divergence between the 1^st and 2^nd Lanes) onto the 1^st Lane to proceed towards Tsing Yi.

84.  Secondly, Mr Wong submitted that since both the 2^nd/3^rd Lanes were Kowloon-bound, there was no sensible reason for the Unknown Car to change lanes so abruptly at that Scene, especially when such lanes were divided by broken single line (which permitted lane change) until they reached the mouth of the Tunnel.

85.  On balance I am unable to accept such submissions. I note there was no evidence as to the distance between the Scene and the mouth of the Tunnel. In my view, depending on choice of lane for the Tunnel and beyond given the Taxi journey and its ultimate destination, it was not entirely unreasonable for a driver to consider/effect change to a suitable lane for the Tunnel and beyond before reaching the mouth of the Tunnel, especially when the straight stretch of the Road ended at/about the Scene and beyond that point there was a right curve downwards towards the Tunnel. Further, Mr Wong’s submissions assumed the driver of the Unknown Car drove in a careful, prudent and reasonable manner. But it is not unknown for drivers to be less than careful in their driving, and there was no reliable/credible countervailing evidence that I accept for disputing D2’s case that the Unknown Car cut lanes into the path of the Taxi without warning.

86.  Thirdly, Mr Wong submitted that if there was “agony” of the moment caused by the Unknown Car suddenly cutting into the 2^nd Lane from the 3^rd Lane, D2’s evidence pointed to him making a left swerve big/hard enough for him to lose control of the Taxi (rather a light/slight swerve to the left as D2 alleged), and Mr Wong suggested this was a negligent reaction since (a) slight braking would have enabled the Taxi to maintain a safe distance from the Unknown Car, and (b) it was unsafe to so swerve as it was near the left Chevron Area and Metal Barrier (object first hit by the Taxi) that divided the 1^st/2^nd Lanes. The issue of whether the left swerve was big/hard or light/slight is discussed in Part XIX below, but suffice to state here I accept it was the former.

87.  But Mr Wong also attempted to go further to argue that a big/hard left swerve was inconsistent with the alleged need for evasive action, which pointed to non-existence of the Unknown Car that allegedly put D2 in such an “agony”, hence D2’s evidence in this regard was not credible.

88.  In making the 2 arguments in paragraphs 86-87 above, Mr Wong was asking the court to find/infer 2 inconsistent scenarios (ie (a) the Unknown Car did not exist and (b) the Unknown Car did exist but D2 reacted negligently to the situation) on exactly the same basis (ie big/hard left swerve by D2). In his closing submissions, Mr Wong recognised the forensic difficulty posed by such approach, and acknowledged it was a “high jump” for him to urge this court to find/infer (a) above by reason of D2 performing a big/hard left swerve. In my view, such reaction was inadequate to support such bold inference, especially when P contended it also supported the inference of negligent reaction to the “agony” caused by the Unknown Car.

89.  I therefore find the Unknown Car came up along the 3^rd Lane at a much higher speed than that of the Taxi, and after going past the Taxi, it suddenly cut into the 2^nd Lane ahead of the Taxi without turning on its left indicator light. However, I have reservations as to D2’s allegation that the distance between the left rear of the Unknown Car and right front of the Taxi was just 1m, and will deal with this in Part XIX below.

XVIII.  LEGAL PRINCIPLES

90.  Burden of proof In the normal course of events, P bore the burden of proof that the Accident occurred in the way she pleaded, and that it was caused by the negligence as particularised. There was no dispute the Accident happened in the manner set out in paragraph 11(b) above. As regards causation of the Accident, my findings in Parts VII and XIV-XVI and paragraph 89 above were tantamount to acceptance of D2’s pleaded case that the Unknown Car suddenly cut into the 2^nd Lane just ahead of the Taxi without warning whereupon D2 immediately braked and swerved, but lost control of the Taxi.

91.  But did it mean the entirety of P’s pleaded case was rejected? I note P’s pleaded particulars of negligence included an averment that D2 failed to properly control the Taxi by reason of unsuitable footwear or otherwise so as to avoid (a) losing control of the Taxi and/or (b) colliding with any other object(s). Such particulars were not limited to “unsuitable footwear”, and D2 did not seek further and better particulars of the averment “or otherwise”. In paragraphs 15(c) and 15(e)(ii) of his written opening submissions, Mr Wong was upfront as to what was meant by D2’s failure to properly control the Taxi on the “or otherwise” basis, ie such plea rested on the matters in paragraph 86 above, and also on the allegation that “[if] the road surface was dry, then it would need an even harder left swerve to result in losing of control, ie D2 even more negligent”. Mr Wong also put to D2 in cross-examination that (i) D2’s left swerve was not slight/light but was a big/hard swerve, and (ii) even if the Unknown Car did cut into the 2^nd Lane D2 did not have to swerve left to avoid collision. D2 was given the opportunity to address (and he disagreed with) such propositions.

92.  In my view, if P was able to establish the matters in the above paragraph and the court was satisfied they amounted to negligent reaction on the part of D2 to the factual matrix at the time, those matters would not fall afoul of P’s pleadings and would support finding of liability against D2.

93.  Alternative basis for liability  But even if I am wrong and P’s pleadings did not include the matters in paragraph 86 above whether as primary or alterative particulars of negligence, D2’s pleadings described the Accident as set out in paragraphs 8 and 90 above. It was said in Poon Hau Kei v Hsin Chong Construction Co Ltd, Taylor Woodrow Internal Lid Joint Venture[24] that where an accident occurs on the basis of a scenario not pleaded by the plaintiff but is pleaded by the defendant, and it can be established that default arises on the defendant’s scenario, then provided it does so in a fair manner, the court may find liability for the plaintiff against the defendant.[25] This is because where the alternative scenario has been fully and clearly pleaded, usually there will be nothing unfair to find for the plaintiff on the basis of the defendant’s scenario.[26] This was reiterated by the Court of Final Appeal in Mak Kang Hoi v Ho Yuk Wah as follows:[27]

“102. However, industrial accident cases often raise the pleading point more clearly than others. If the accident is not shown to have taken place in the way or at the place alleged usually the plaintiff must fail. The defendant has pleaded and prepared his case to meet the case alleged and no other.

103. On the other hand, in such cases it is not unusual for a defendant to plead an alternative version of the accident knowing that at least partial liability may result. A plaintiff may then succeed on the defendant’s pleaded case if it is accepted by the judge. If otherwise he may amend to plead the defendant’s version as an alternative. But in any event, the defendant cannot suggest he is taken by surprise, nor that he is unprepared, nor that the trial is unfair if his pleaded version is accepted.” (my emphasis)

94.  Here, P clearly stated her position in paragraph 15(c) and 15(e)(ii) of Mr Wong’s written opening submissions, and the relevant assertions of negligence premised on D2’s case had been put to D2 under cross-examination (see paragraph 91 above). Mr Gidwani submitted it was not part of D2’s pleadings that he oversteered to the left or that it was unnecessary to swerve left at all. I am not persuaded by such arguments for Poon Hau Kei only required the defendant to plead the relevant factual scenario and did not require the defendant to admit having done negligent acts. Here, D2 did plead the relevant scenario, ie the “agony” of the Unknown Car cutting into the 2^nd Lane ahead of the Taxi, and he reacted by braking and swerving left. Whether default (ie liability for negligence) arises on such scenario (once accepted by the court) would be a determination of mixed fact and inference by the court, and not a mere matter of pleadings. I see nothing unfair in making determination on the basis of D2’s pleaded version of events as I have found.

95.  “Agony” of the moment  The law of negligence does not require a car driver to drive perfectly, but to adopt reasonable driving behavior in the relevant circumstances, which circumstances may include “agony” of the moment. Mr Gidwani reminded it was not P’s case that D2 failed to keep a proper lookout of the Unknown Car or D2 could have taken earlier precautions against the sudden manoeuvre by the Unknown Car. He argued there may be a spectrum of options open to a reasonable driver faced with an emergency situation, but his reaction should be treated with some leniency since there was only a narrow opportunity for him to take such options.

96.  In Ng Chun-pui & ors v Lee Chuen-tat & anor, a coach crossed a grass central reservation and collided with the vehicle in which the plaintiffs were travelling. The plaintiffs did not adduce oral evidence. The defendant owner and driver called evidence to show the bus skidded after taking evasive action to avoid colliding with a car that had suddenly and without warning swerved into its path. It was held that once the defendant driver’s explanation of the accident was accepted, his driving had to be judged in the light of the emergency in which he had been placed by the driver of the car that swerved in front of him, and that given the situation of danger in which he was placed, he had acted with reasonable alertness, skill and judgment.[28]

97.  In Wu Yuk Ling v Leung Man Lai,[29] the plaintiff crossed the eastbound carriageway and stood beside the light box at the end of the central reservation waiting for the traffic on the westbound carriageway to clear. The defendant driving his car on the 2^nd lane of the eastbound carriageway mounted the central reservation and knocked down the plaintiff. The defendant’s case was that a minibus in the 1^st lane cut into the 2^nd lane without any signal/warning with about 2m between the 2 vehicles (which thereby created an emergency), so he braked hard and swerved right to avoid collision with the minibus but could not avoid collision with the central reservation, so the plaintiff was knocked down. DHCJ Muttrie observed as follows:

“18. Whether the minibus accelerated away from the car at the lights, or whether the two traveled abreast and it accelerated later, on the Defendant's evidence, it must be taken that when the minibus cut in, it was either going faster than the car or going at the same speed. He does not say that it slowed or gave any indication, such as by brake lights, that it was to do so. The Defendant says that it was about two metres ahead. This is about half the length of a medium-sized car.

19. It is far from unknown for one vehicle to cut suddenly in front of another at 50 k.p.h., going at the same speed or faster, so as to leave a space of only half a car's length. One can observe this kind of driving commonly enough on the roads in Hong Kong. It is obviously not the action of a careful driver to do this. It may well startle the following driver. But if he is properly alert and keeping a proper lookout there is no need for him to swerve, because so long as he is going at the same speed or slower than the front vehicle, there is nothing to avoid. A simple braking action will allow him to fall back to a safe distance. ……”

98.  In The Kowloon Motor Bus Co (1933) Ltd v Chung Tak Hi & anor,[30] the 1^st defendant drove a public light bus (“PLB”) into a bus stop bay and collided with the left rear of the bus that had just completed loading and unloading passengers at the bus stop, and then mounted the pavement and rammed into the bus shelter. The 1^st defendant alleged he was driving on the far left lane (1^st lane) at 60kph and observed a green PLB approaching from the far right lane (3^rd lane) at high speed, and when he approached the area of the bus shelter the green PLB cut into the 1^st lane from the 3^rd lane at a sharp angle, so the 1^st defendant swerved left and braked hard to avoid collision with the green PLB, but while braking the 1^st defendant lost control of the PLB which skidded into the bus, mounted the pavement and rammed the bus shelter. DDJ Anthony Chow referred to Ng Chun-pui and observed as follows:

“25. In any event, even if I held that there was an emergency situation, which is not my holding, the First Defendant must still establish that he had reacted as any prudent and reasonable driver would have done under the circumstance. Whether the First Defendant acted negligently or not depended upon what he did in reaction of that emergency situation.

……

28. The problem was why did the First Defendant swerve left before he braked? The reaction of any reasonably prudent driver would be to brake first. Only when the situation permits and the lane to either right or left is clear of traffics, would he then swerve to another lane to avoid a collision. …… It was simply not safe for him to swerve left into the bus stop bay under the circumstances.

……

30. Having balanced all of the circumstances, even if the First Defendant had proved that there was an emergency situation, I would still find that he had failed to react, as a reasonably prudent driver should have done under the circumstance. The First Defendant's action of swerving left, without first ensuring that it was safe to do so, was a breach of his duty of care.”

99.  In Tsang Mei Luen v Yip Wai Biu,[31] the court found that the collision between the plaintiff pedestrian and the car driven by the defendant “occurred within a matter of seconds, if not splits of seconds, after they discovered the presence of one and another, and for that matter they realized the impact was going to be imminent”. The plaintiff claimed she continued to cross the road believing she would beat the defendant to it, but had the impression the defendant changed direction to follow her and she was hit. The defendant maintained he applied his brake and swerved a bit to the right to avoid the plaintiff who emerged suddenly behind a vehicle alongside the road, but the left front of the car still hit the plaintiff lifting her off the ground onto the bonnet of the car and shattering the windscreen. HHJ Yung observed as follows:

“8. I accepted the evidence of the Defendant that he took evasive action immediately, by applying the brake and swerving a bit to the right into the carriageway. …… It was unrealistic to suggest that a driver could bring his car to a complete stop immediately. Reaction time and braking distance did not appear to be considered by Ms Loh. Further there is simply no factual basis to support this argument.

9. Another suggestion is that if he had not swerved to the right, the collision could have been avoided and therefore he was negligent. It is trite law that a party, through no fault of its own was put in a emergency situation, cannot be criticised minutely of the reaction it made to avoid a collision. In the present case, it would be unreasonable for the Defendant to swerve to the left. Anyway the defence does not suggest he should swerve to the left. Ms Loh argued that he should not have swerved to the right. It is easy to suggest a course of action as a matter of hindsight. No one can reasonably expect that the Plaintiff would quicken her steps to cross the road. As a matter of hindsight she would not have been hit at all if she stopped or retreated immediately. I do not think both parties can be blamed for the reaction they respectively took on seeing each other’s presence.

……

11. The crucial matter of this case is the conduct of the parties before they became aware of the situation. ……

12. The Defendant had just come out of the slight bend when he entered the stretch of the road where the collision occurred. The traffic condition was light. The probability for pedestrians to cross the road to the bus stop was realistic. Likewise, no reasonable drive could safely ignore the probability for pedestrian to emerge from the stationary vehicle. With whatever speed the Defendant was doing, a reasonable driver should have kept a proper and safe distance from the side of these stationary vehicles. The Defendant was driving very close to the side of the truck. This would inhibit the opportunity of observing the emerging careless pedestrian. The carriageways in both directions were quite wide, he could have kept a much greater distance from the side of truck. Had he done so he would have noticed the Plaintiff earlier and at a greater distance. I find that the Defendant was negligent.

13.  The Defendant was driving impeccably apart from the fault mentioned above. ……”

100.  In Chu Fung Ping v Wong Wai Leung,[32] the plaintiff was the front seat passenger of a car driven by her husband (“Car”). A car approached from behind on the 2^nd lane at high speed with headlights flashing (“Car Behind”), and there was a bus on the 1^st lane which prevented the Car from moving over to give way to the Car Behind. After the Car passed the bus, the Car Behind moved to the 1^st lane, accelerated and overtook the Car. At this point, the Car slowed “a bit”, and the Car Behind moved back to the 2^nd lane and braked abruptly in front of the Car. The plaintiff’s husband immediately braked. The Car Behind braked again, and the plaintiff’s husband braked again but the Car went “slightly” out of control and crossed to the 1^st lane. The plaintiff’s husband immediately steered right to straighten the Car, and about 2 seconds later the defendant’s car on the 1^st lane collided with the Car’s left rear.

101.  On the other hand, the defendant claimed he was travelling on the 2^nd lane but moved to the 1^st lane to give way to the Car Behind. He moved back to the 2^nd lane, overtook the bus, and moved back to the 1^st lane behind the Car. He saw the Car Behind with flashing headlights came up behind the Car at high speed on the 2^nd lane, and the brake lights of the Car and Car Behind lit up once. He further saw the Car Behind move left into the 1^st lane ahead of him, overtook the Car and moved back to the 2^nd lane, and the brake lights of the Car Behind and Car lit up. He reduced his speed (because he thought it is possible the Car might move to avoid the vehicle in front), and the distance between his car and the Car was reduced to about a car-length. He then saw the front of the Car cross over the dividing line into the 1^st lane in front of him without any indication. The Car Behind then moved to straddle the two lanes and braked again. Then the Car suddenly braked. The defendant applied his brakes but, since the Car had changed lanes suddenly and was too close, he was not able to stop in time and the right front of his car collided with the rear wheel of the Car. In short, the defendant’s case was that the Car suddenly and without warning moved in front of his vehicle and braked, not allowing the defendant sufficient time to avoid an accident.

102.  DHCJ Cooney SC held the Car Behind was driven aggressively, and the defendant appreciated there was some risk of the Car moving to avoid the Car Behind that was in front and moving/braking erratically. The defendant had to take care in those circumstances, but the distance the Car and the defendant’s car had reduced to about 1 car-length immediately before impact. The learned judge held the defendant failed to allow sufficient distance between his car and the 2 vehicles in front of him in order to avoid the accident. Even though the defendant claimed the Car moved suddenly and without warning and collided with his car, he should not have allowed the distance between the Car and his car to decrease to only 1 car-length, and he failed to take evasive action early enough, especially when the he saw the lights of the Car Behind flashing 20m away. On such basis, the learned judge found the defendant was negligent and liable for the accident. “It is not necessary for me to determine whether the time between the [Car] braking and impact was two seconds or immediate because, either way, I consider the defendant was too close to the two vehicles in front.”

103.  It was held the plaintiff’s driver acted in the “agony of the moment”. The learned judge found the Car Behind cut in front of the Car and braked suddenly to create a dangerous situation without giving reasonable time or opportunity for the plaintiff’s husband to avoid heavy braking:

“10. …… It was reasonable, indeed instinctive, for [the plaintiff’s husband] to brake. I find the [Car] swerving to be a consequence of braking in a difficult and dangerous situation and it should be remembered that [the plaintiff’s husband] quickly regained control of his car. In this regard, I have noted Brandon v Osborne Garrett & Co [1924] 1 KB 548, which is authority for the proposition that when a party is put in a position of danger by the negligent act of another party, then his reaction is not to be judged by the ordinary standard; one ought not to be too critical of what was done instinctively on the spur of the moment in a situation of danger. Also, the actions of someone placed in a situation of danger, as was Mr Chan, are not to be judged with the benefit of hindsight: Wong Man Kit Michael (a minor) v Wong Fong Woon (unreported), HCA 283/1985, Deputy Judge Saied, 21 December 1988.”

104.  The above authorities showed that where a party is faced with danger caused by an “agony” or emergency, then one cannot be too minutely critical of the reaction on the spur of the moment to avoid collision, and certainly one should not view the reaction as a matter of hindsight. But even though the driver’s reaction must be considered in the context of the situation he was placed in, it is still necessary to show he has reacted with the reasonable alertness, skill and judgment as any prudent and reasonable driver would have done under such circumstances. Thus, the existence of an “agony” or emergency is not the end of the matter, and the court will have to go on to determine whether the defendant’s reaction thereto in all the circumstances was in any way negligent.

XIX.  DISCUSSION

105.  D2 agreed that throughout his driving years there were many occasions when vehicles cut into his lane in front of his vehicle, and when his vehicle was overtaken by other vehicles. D2 agreed there were 2 types of vehicular change of lane:

(a)

If the overtaking vehicle had not completely gone past the other vehicle on the adjoining lane but its front had edged inside the adjoining lane, the driver of the other vehicle on the adjoining lane could swerve slightly to give way to the overtaking vehicle.

(b)

If the overtaking vehicle travelled at a speed faster than that of the other vehicle on the adjoining lane and there was no vehicle in front of such other vehicle, and after the overtaking vehicle completely went past the other vehicle, it cut into the adjoining lane in front of the other vehicle whilst maintaining the same speed (ie travelling at a speed faster than that of the other vehicle), in normal circumstances the driver of the other vehicle on the adjoining lane would not have to swerve and would only have to slow down to avoid collision, but this would also depend on the actual distance between the 2 vehicles during such manoeuvre.

106.  Turning the circumstances of the Accident, D2 testified under cross-examination that after the Unknown Car on the 3^rd Lane had completely gone past the Taxi on the 2^nd Lane the Unknown Car started to cut from the 3^rd Lane to the 2^nd Lane, but before the Unknown Car completed cutting into the 3^rd Lane, ie when it was still at an oblique angle to the lanes, D2 reacted by stepping lightly on the brakes and by turning left. D2 gave evidence as follows:

(a)	there was no need to step hard on the brakes;
(b)	D2 thought stepping lightly on the brakes would be enough as there was no other vehicle in front of the Taxi, and the Unknown Car was travelling at a speed faster than that of the Taxi;
(c)	as the Taxi slowed down upon braking the distance between the Taxi and Unknown Car increased;
(d)	after he turned the steering wheel to the left he lost control of the Taxi which started to spin anti-clockwise so its right body hit the Metal Barrier (that was positioned to the left of the Taxi before such spinning);
(e)	the Taxi continued to spin anti-clockwise to hit the right Concreate Embankment head on.

But D said under re-examination his main concern was to avoid collision with the Unknown Car, and he turned left because the distance between the 2 vehicles was too short and he still had room to his left.

107.  On balance, whilst I accept the Unknown Car abruptly changed lanes (ie cut from the 3^rd Lane to the 2^nd Lane) in front of the Taxi without prior warning, I am not persuaded the Unknown Car cut into the 2^nd Lane so close to the taxi that there was just 1m between the left rear of the Unknown Car and right front of the Taxi. If the distance was that close, the natural and instinctive reaction of any reasonable and prudent driver would be to slam hard on the brakes (irrespective whether he would turn left at the same time) rather than to feather the brakes. This was especially so when D2 claimed that at the time of the Accident he was not concerned with giving way to but to avoid collision with the Unknown Car. But contrarily D2 gave evidence that there was no need to step hard on the brakes and he considered stepping lightly on the brakes would be enough to slow down the Taxi for the Unknown Car (travelling at a higher speed) to move into the 2^nd Lane ahead of the Taxi. This was reflected by the absence of skid marks on the Road surface, and P as passenger confirmed she did not feel any abrupt braking. In my view, this fell into the situation in paragraph 105(b) above, and D2 was confident slight rather than hard braking would be sufficient, thus the actual distance between the 2 vehicles must have been more than 1m as D2 suggested. I find D2’s perception was difficult given the suddenness of the Unknown Car cutting in front of the Taxi, and his estimation of 1m was not reliable in light of the objective facts.

108.  I accept that generally gentle turning while braking can help a driver avoid a collision. But here, although D2 claimed he turned the steering wheel lightly/slightly left, he immediately lost control of the Taxi upon such turning, and the Taxi started to spin anti-clockwise such that its right side hit the left Metal Barrier, and the Taxi spun further in the same direction to hit the right Central Embankment head on. It appeared there was total loss of control of the Taxi, and D2 confessed he never experienced such spinning upon slight/light left turn.

109.  In my view, D2 could not have made a gentle turning of the steering wheel to the left to produce such total loss of control of the Taxi. This was especially so when I have found that the Road surface was dry at the time of the Accident, and it would take an even harder left swerve to result in such total loss of control. It is a matter of common sense that braking (using grip to scrub off speed) and swerving (applying lateral force on the tyres) each by themselves would demand traction from the tyres, so doing both at the same time would necessarily put more pressure on traction. If a driver had the steering wheel cranked by a big/hard swerve, the car would steer sharply, and it was simple physics that such lateral motion would sacrifice forward motion to produce condition needed for a rapid spin. In my view, this was plainly what happened. I find on balance gentle turning would not have caused such serious loss of control of the Taxi (especially when D2 was just feathering the brakes), and it must have been the result of oversteering by a big/hard swerve to the left by D2.

110.  In my view, a big/hard left swerve was inconsistent with reasonable reaction by a reasonable and prudent driver even in the “agony” of the Unknown Car on the 3^rd Lane completely surpassing the Taxi and cutting into the 2^nd Lane without prior warning ahead of the Taxi (albeit at a distance more than 1m) whilst maintaining its faster speed. I find that in such circumstances, even taking into account the latitude given for a road user faced with such “agony” and warning myself not to view the matter from hindsight, I find D2 should have braked to slow down the Taxi (and the higher speed of the Unknown Car and consequent increased distance between the 2 vehicles as the Taxi slowed down) would have avoided any collision and allowed the Unknown Car to move ahead on the 2^nd Lane. This was in fact recognised by D2 himself (see paragraphs 105(b) and 106(a)-(c) above), and I note again the observations by DHCJ Muttrie in Wu Yuk Ling (see paragraph 97 above). Further, even if I am wrong and some swerving to the left was needed and/or reasonable, I find gentle turning would have sufficed, and D2’s big/hard left swerve was overreaction not expected of a reasonable and prudent driver when faced with the aforesaid “agony”. This was of particular concern because D2 did notice the Chevron Area and the Metal Barrier beyond to his left when he began to swerve, and a big/hard swerve risked loss of control and collision with the Metal Barrier which was just 1 lane away. In all the circumstances, I find D2 was negligent in his driving which was a material cause of the Accident.

XX.  RES IPSA LOQUITUR

111.  There was much discussion in counsel’s written submissions concerning to the maxim of res ipsa loquitur. But Mr Wong conceded such maxim was not applicable if D2’s rather than P’s version of events (ie the Unknown Car cutting abruptly from the 3^rd Lane to the 2^nd Lane) was accepted by this court. Given I have rejected the various reasons P offered as causes of the Accident (eg D2 having momentarily/slightly bowed his head and apparently having dozed off at the wheel, D2 was overly tired and D2 wearing Flip-flops causing “sliding of foot” when he applied the brakes), and I have found the Unknown Car came up on the 3^rd Lane to cut into the 2^nd Lane into the path of the Taxi, there was no need for me to consider the maxim of res ipsa loquitur.

XXI.  CONCLUSION

112.  I therefore grant judgment in favour of P against D2 in the sum $900,000. Although costs should normally follow event, P failed on the core of her factual contentions, which were subject of a not insignificant part of the pleadings, statement evidence and Trial/Re-trial hearings. In my view, this should be properly reflected in costs. I therefore grant a costs order nisi that D2 shall pay P half of the costs of the action (including costs of the Trial and Re-trial, and all costs reserved if any) on High Court scale to be taxed if not agreed.

113.  Bearing in mind that agreed quantum of damages was within the District Court jurisdiction, I have debated whether costs should have been awarded on District Court scale instead. Mr Wong reminded since CA directed that the case be remitted to the Court of First Instance for re-trial before another judge, and neither party applied to transfer the present action to the District Court, so both parties should be held to costs consequences arising from such inaction. If this was the only basis for resisting costs on District Court scale, I would not have been convinced. After the Civil Justice Reform, litigants (particular the claimant who has carriage of the claim and who has the benefit of legal advice) should be alive to the need to conduct litigation in a cost-saving and proportionate manner to avoid unnecessary costs, and failure to adhere to such underlying objectives invites sanction on costs by the court. Direction by the CA for the case to be remitted to the Court of First Instance for re-trial does not prevent or absolve the parties from exercising proactive case management to apply for transfer of the action to a suitable court venue for Re-trial where appropriate.

114.  But having carefully considered the matter, there was an additional element in considering disposal on costs. By the CA Order, the CA reserved costs of the Trial for determination by the judge at the Re-trial. Since the Trial was actually tried before DHCJ Wilson Chan (as he then was) in the Court of First Instance, it was doubtful whether a District Court judge would have jurisdiction to deal with costs of the Trial tried in the Court of First Instance. In such circumstances, prudence required that the case be retained in this Court of First Instance for Re-trial to avoid any jurisdictional concern or at least costly debate.