CHEUNG WAI KUEN v. WONG MAN SHE

CACV 415/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 415 OF 2002

(ON APPEAL FROM HCPI NO. 845 OF 2001)

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J U D G M E N T

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Hon Rogers VP:

1. This is an appeal and a cross-appeal from a judgment of Seagroatt J. given on 26 September 2002. The action concerned a traffic accident which had occurred shortly after 5 pm on 25 July 1999. The plaintiff was riding a Honda 750 c.c. motorcycle along Sha Tau Kok Road towards Fanling when the plaintiff's motorcycle was in collision with a car that had been travelling in the same direction and which the plaintiff had wished to overtake. The judge held that the defendant, who was the driver of the car, was 60 percent responsible for the action and that the plaintiff was 40 percent responsible. Both the plaintiff and the defendant have appealed that finding. At the conclusion of the hearing of this appeal, this court reserved its decision which we now give.

Background

2. The stretch of road on which the plaintiff had been travelling was a straight stretch. There were photographs taken at the scene on the day of the accident and there were also sketch plans as well as a map of the area. The plaintiff's case was that he had been following what has transpired to have been the defendant's car for some distance. That car had been travelling at about 50 k.p.h. Since the oncoming traffic was light the plaintiff said that he checked his rear mirror for traffic behind him, signalled with his indicator and accelerated. He crossed the broken central white line in order to overtake. At that stage he estimated his speed to be about 60 to 70 k.p.h.

3. Along this straight stretch of road, on the plaintiff's offside, is a narrow turning to Tai Long Tsuen. It is a concrete road, rather in the form of a wide pathway leading to the settlement. It is wide enough to carry single line traffic. Although the defendant had his family with him in the car, the judge considered that did not make any difference. There is no dispute that the defendant intended to turn right in to the narrow road leading to Tai Long Tsuen.

4. As the plaintiff was in the course of overtaking the defendant's car, the plaintiff noticed that the car suddenly moved sideways towards his left-hand side. It would seem that at that stage according to passages in the transcript we have been shown that the plaintiff was saying that he was abreast of the driver's door if not slightly further ahead. The plaintiff then braked. There are skid marks which are marked on the plan and can also be seen in the photographs. They start about 13 metres before the mouth of the lane into which the defendant was intending to turn. The judge made the following finding in respect of how the accident happened at paragraph 25 of the judgment:

"25. The Plaintiff, I find, began his overtaking of the Defendant's car as he himself described, by going to the offside of the road. He was giving the Defendant's car a reasonable clearance but suddenly that car began to veer to the centre of the road and gave no signal of his intention. The reason for this may have been there was no oncoming traffic for the Defendant to warn and, more importantly, no following traffic within his immediate sphere of vision to alert to his intention with the exception of the Plaintiff. He never saw the Plaintiff until probably fractionally before impact.

26. That impact was a glancing impact consistent with the minor damage to the offside lower wing, just short of the offside front wheel. The effect of that impact was to cause the Plaintiff to lose control of his motorcycle. It left a tyre mark recorded by the Police Officer on the plan, as the Plaintiff braked and struggled to control it. Eventually he and his motorcycle parted company. The motorcycle itself sustained only minor damage. That again was entirely inconsistent with a positional impact described by the Defendant."

5. The judge's finding as to liability was as follows:

"28. The responsibility for this accident lies largely with the Defendant. He was negligent in failing, as I find, to give a signal indicating his intention to turn right. He failed to see the Plaintiff's motorcycle. He ought to have seen him. He was there clearly to be seen. In any event, the colour of his machine was unmistakable. I have some suspicion that when the Defendant referred to a red car immediately following him, he has consciously or unconsciously transposed the colour of the Plaintiff's motorcycle to an imagined closely following car. The Defendant knew this road well enough. I do not think that the fact that his family was in the car is a factor giving rise to the likelihood of extra care on his part. Regrettably motorists often fall short of the standards of care which could reasonably be imputed to them in theory, and based of the need to have regard for one's passenger. In his familiarity with this junction, he was approaching it without a proper adjustment of speed and position, relying on last minute braking and a sharp swing into the mouth of the side road. This too is not an unknown shortcoming of motorists.

29. The Plaintiff himself should not have attempted to overtake on this stretch of the road. He knew this road equally well. Whilst there was no oncoming traffic to inhibit him, the presence of the junction was itself the inhibiting factor. He should have been prepared for the chance or risk that stupidly careless motorists would attempt to turn into such a road without a signal or proper positioning and adjustment of speed. The use of the horn is often sensible in such circumstances if only to make the driver of the vehicle aware of his position and intention to overtake. I bear in mind that a motorcycle is much narrower than a car, and the position on the offside lane when overtaking calls for proper care on the part of the driver of the overtaking vehicle. The overtaking vehicle must thus be prepared for a predictable lack of care on the part of vehicles being overtaken, particularly on the roads of Hong Kong.

30. I have concluded that the Defendant must bear 60% and the Plaintiff 40% of responsibility for this collision."

The plaintiff's appeal

6. Before us Mr Pirie, on behalf of the plaintiff, sought to argue that there should have been no finding of contributory negligence on behalf of the plaintiff, alternatively if there had been contributory negligence it was very minimal. In support of his argument his primary case was that the judge fell into an error of law because in his words "one does not have to take account of idiocy". Mr Pirie's point was that when the judge said that the plaintiff should have been prepared for the chance or risk that stupidly careless motorists would attempt to turn in to such a road without a proper signal, the judge was putting the onus on the plaintiff to guard against something which was beyond normal expectation. In this regard Mr Pirie relied on the decision of this court in Lau Shun Hing v Ng Chung Hung [1991] 1 HKC 179. In giving the judgment of the court Power JA referred to the statement of Lord Dunedin in Fardon v Harcourt-Rivington (1932) 146 LT 391 at 396:

"the root of this liability is negligence and what is negligence depends on the facts with which you have to deal. If the possibility of the danger emerging is reasonably apparent, then, to take no precautions is negligence but if the possibility of danger emerging is only a mere possibility which would never occur to the mind of a reasonable man, then, there is no negligence in not having taken extraordinary precautions."

7. In my view the judge did not err in his approach. He was not saying in the passage criticised by Mr Pirie that the plaintiff should have taken extraordinary care. In that passage the judge was considering what was reasonably to be anticipated by the plaintiff. Again, the reference to the use of the horn was not, on my reading of the judgment, something which the judge below considered was an element of the contributory negligence of plaintiff. Rather, in the context in which he referred to it, it seems to me that the judge was indicating that if the plaintiff were to undertake a risky manoeuvre near a junction, it would have been sensible for him to have sounded his horn.

8. In those circumstances, I do not consider that Mr Pirie's attack on the judge's approach is sustainable. Although Mr Pirie sought to suggest that some of the findings of the judge might have been in error, his criticisms of the judgment fell far short of anything which, in my view, would justify this court in interfering with any findings of fact made by the judge.

9. Before turning to the question of the apportionment of liability, it is necessary to deal briefly with the case sought to be made by Mr Sakhrani on behalf of the defendant. Counsel attempted to argue that the judge should have found that the accident had occurred much closer to the entrance of the lane into which the defendant intended to turn and that the defendant had been much closer to his side of the road than would seem from the description of the accident.

10. In this regard it must be observed that the judge was assessing the evidence of a plaintiff who had suffered considerable injury as a result of the accident, a defendant, whose evidence the judge did not, for the most part, accept and a third witness who did not have a proper view of the accident. In those circumstances, the judge made the best assessment which he could. Although Mr Sakhrani attempted to demonstrate that there was something wrong with the judge's conclusion, I, for my part, cannot see where the judge must have erred in any material respect.

Apportionment of liability

11. The crux of each party's case on this appeal and cross-appeal was that the apportionment of liability was too high against himself. In approaching an appellate court's task on an appeal as to apportionment of liability, it is important to bear in mind that the apportionment is a decision which the judge below has arrived at on the basis of the facts which he has found. If there is no ground for disturbing his findings of fact and he has not erred in law, it is not for an appellate court to substitute its own views unless it can be sure that there was a clear error. In Wishing Long Hong v Wong Kit Chun [2001] 4 HKCFAR 289 at 297-8 Sir Thomas Eichelbaum said:

"However, apportionment for contributory negligence is a discretionary exercise, and there are many precedents to the effect that an appellate court is justified in interfering only in exceptional cases, see e.g. The Macgregor [1943] AC 197. This principle may apply with less rigour where, as here, the apportionment was made on appeal, rather than by a Judge who had the advantage of hearing the witnesses, and thus had the best opportunity for obtaining the feel of the whole case and assessing the degrees of responsibility. Nevertheless, this Court should not interfere unless the result is outside the limits reasonably available to the Court below. It will not simply substitute its own discretionary judgment."

12. In referring to the House of Lords decision in the Macgregor [1943] AC 197, Sir Thomas no doubt had the following passage in the speech of Viscount Simon LC in mind:

"The Court of Appeal has thought it right, while maintaining the view that both ships are to blame, to vary the distribution of the blame by putting two-thirds of it on the British Fame and relieving the Macgregor so that the Macgregor has to carry only the remaining one-third. It seems to me, my Lords, that the case s must be very exceptional indeed in which an appellate court, while accepting t he findings of fact of the court below as to the fixing of blame, none the less has sufficient reason to alter the allocation of blame made by the trial judge. I do not, of course, say that there may not be such cases. I apprehend that, if f a number of different reasons were given why one ship is to blame, but on examination some of those reasons were in the Court of Appeal found not to be valid, that might have the effect of altering the distribution of the burden. If there were a case in which the judge, when distributing blame, could be shown to have misapprehended a vital fact bearing on the matter, that might perhaps be--it would be, I think--a reason for considering whether there should be a change made on appeal. But subject to rare exceptions, I submit to the House that when fin dings of fact are not disputed and the conclusion that both vessels are to blame stands, the cases in which an appellate tribunal will undertake to revise the distribution of blame will be rare.

I remind your Lordships of the language used by my noble and learned friend, Lord Wright, in The Umtali."

13. Viscount Simon LC then read a short passage from Lord Wright's speech at 117. In his opinion in that case, which was agreed to by the other members of the House, Lord Wright said:

"I am opinion that both vessels were seriously to blame. It was contended by the appellants that in that event this House should vary the apportionment of liability which the judge has found, because it was said the misconduct of the Umtali in porting was very gross and that of the Corrientes was slight in comparison. But I agree with the judge's apportionment I think with him that both vessels were seriously to blame and that there is no satisfactory reason for saying that one is to blame more than the other. The assessors sitting with your Lordships also take that view, as did those sitting with the judge. I ought to add t hat it would require a very strong and exceptional case to induce an appellate court to vary the apportionment of the different degrees of blame which the judge has made, when the appellate court accepts the findings of the judge."

14. In the present case, I do not see that there is any ground upon which this court should interfere with the exercise of the discretion by the trial judge.

15. In those circumstances I would dismiss this appeal and the cross appeal. Since both parties have taken an equal part in the proceedings in this court, I consider that it would be an unnecessary waste of costs for there to be any taxation and that the simplest order would be that there should be an order nisi that there be no order as to costs.

Hon Le Pichon JA:

16. I agree.

Hon Yuen JA:

17. I agree.