CHENG KIN PING AND ANOTHER v. WOO CHO WING JOHN

CACV 252/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 252 OF 1999

(ON APPEAL FROM HCPI NO. 7 OF 1999)

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J U D G M E N T

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Keith JA (giving the first judgment at the invitation of Godfrey J.A.):

Introduction

1. The action to which this appeal relates arose out of a road traffic accident. The Plaintiffs were injured in the accident, and sued the Defendant for negligence and breach of statutory duty. The Defendant in turn issued a Third Party Notice against the Third Party claiming to be indemnified by him against the Plaintiffs' claim on the ground that the Third Party had caused, or at least contributed to, the accident. Shortly before the trial of the action, the Plaintiffs accepted increased sums which had been paid into court by the Defendant in settlement of their claims, and the trial in the Court of First Instance proceeded on the Third Party claim only. Deputy Judge McMahon apportioned the liability for the accident by holding that the Defendant was 80% to blame for the accident and the Third Party 20%. The Third Party now appeals, contending that the Defendant should have been held wholly to blame for the accident. The Defendant cross-appeals, contending that the Third Party should have been held to have been more than 20% to blame for it.

The circumstances of the accident

2. The background facts were not in dispute. At about 1.00 a.m. on the morning of 21st August 1987, the 1st Plaintiff was driving his car up and over a one-lane flyover. The flyover spanned Gloucester Road and led to the Cross-Harbour Tunnel. It was raining, or at least drizzling, and the road was wet. As the car went round the right-hand bend on the flyover which led onto the flyover's downslope, its way was blocked by stationary traffic. As it slowed down, a car driven by the Third Party slid into its rear. Minor damage was caused, but no-one was hurt.

3. The 1st Plaintiff got out of his car, as did the 2nd Plaintiff who had been a passenger in it. So did the Third Party and other passengers in both vehicles. They inspected the damage. While they were standing by the Plaintiffs' car, a car driven by the Defendant came round the same bend on the flyover. The Defendant applied his brakes when he saw the two stationary cars on the flyover, but the car went into a skid and he lost control of it. The car slid into the group of people standing by the Plaintiffs' car injuring the Plaintiffs. A sketch plan prepared by a police officer who visited the scene after the accident depicted the position of the two cars when he saw them. The Third Party's car was about 22 metres from the point of exit from the right-hand bend when the Defendant would first have seen it, and the Plaintiffs' car was another 4 metres further on. When it was examined, the Defendant's car was found to have a defective right rear brake.

4. Some of the details were in dispute. On those issues, the judge found that

(a)	both cars had been moved over to the extreme left of the flyover after the initial collision,
(b)	the hazard warning lights and the main headlights of the Third Party's car were switched on as the Defendant's car came round the bend,
(c)	the Defendant's car was "probably approaching" 50 k.p.h. as it rounded the bend, which was too fast in the conditions prevailing at the time, and
(d)	the defective right rear brake on the Defendant's car had contributed to the skidding of the car and the loss of any directional control during the skid.

None of these findings are challenged on this appeal.

The duty of care owed to the Plaintiffs

5. The Defendant's case against the Third Party was that the Third Party had caused, or contributed to, the accident by negligently leaving his car in a dangerous position on the flyover. If the Third Party was to be found to have caused, or contributed to, the accident, the Third Party had to have owed a duty of care to the Plaintiffs. Mr Denis Chang S.C. for the Third Party contended in his skeleton argument that the judge erred in law in concluding that the Third Party owed such a duty to the Plaintiffs, but in the course of the hearing he modified his stance and merely said that he did not concede that the Third Party owed a duty of care to the Plaintiffs.

6. For my part, I have no difficulty in affirming the judge's view that the Third Party owed a duty of care to the Plaintiffs. In the normal course of events, the driver of a motor vehicle owes a duty to take reasonable care for the safety of other road-users. The duty to take reasonable care extends not merely to how he drives the motor vehicle but also to where he parks it, and the persons to whom the duty is owed includes all road-users, i.e. pedestrians and bystanders as well as drivers and passengers.

7. In the context of this case, the Third Party was under a duty to take such steps as were appropriate in the circumstances to render the scene of the initial collision safe for other road-users. Putting it in terms of reasonable foreseeability in line with the preponderance of modern authority, it was, in my view, entirely open to the judge to find, as he did, that it was reasonably foreseeable to someone in the position of the Third Party that parking his car where he did after the initial collision might cause oncoming drivers, including those driving too fast and not keeping a proper lookout, to lose control of their cars as they emerged from the bend.

Breach of the duty of care

8. The judge found that the Third Party had taken "considerable" steps to render the scene of the initial collision safe. He had left the headlights of his car switched on and had turned the hazard warning lights on. He had moved his car to the extreme left of the flyover to permit other cars to pass by. But the judge found that these precautions were insufficient in the circumstances. The Third Party had not moved his car far enough from the point of exit from the right-hand turn, bearing in mind that the road was slippery and that he himself had skidded out of control as a result of the rain. It was in that respect that his conduct had fallen below the standard to be expected of a reasonable and prudent driver.

9. The first attack which was mounted on the judge's conclusion is that, in deciding whether the Defendant was in breach of his duty of care, the judge failed to give due weight to the fact that the headlights and the hazard warning lights of the Third Party's car were switched on. Two passages in the judgment were relied on. At one stage, the judge said:

"From [the] evidence of the Defendant, it seems to me that the alleged lack of lights on the Third Party's vehicle had only a minor, if any, effect on the Defendant's reactions."

A little later, the judge said:

"On [the Defendant's] own evidence the only relevance of the state of lighting of the Third Party's vehicle would be perhaps to have rendered it detectable through the obscuring trees or perhaps seen by the Defendant from the other side of the flyover."

In my view, these passages do not begin to show that the judge failed to give due weight to the fact that the headlights and hazard warning lights on the Third Party's car were switched on. The judge's comments were made in that part of his judgment in which he was addressing the factual question whether the headlights and hazard warning lights on the Third Party's car were switched on. The judge was recounting the Defendant's evidence, and commenting on whether, on the Defendant's case, the absence of lights on the Third Party's car was significant. He was expressing the view that since the Defendant claimed that his view of the downslope from the upslope was obscured by trees, the absence of any lights on the Third Party's car was, on the Defendant's case, not significant.

10. Mr Chang drew our attention to the Defendant's evidence that if the Third Party's lights had been on, he would have seen them and the accident would not have occurred. That does not lie well with the Defendant's assertion that his view was obstructed by trees, but since the judge found that the lights had been on, and that the accident had still happened, the judge was necessarily rejecting the Defendant's evidence on the topic. All that the judge was doing in the passages relied upon was saying that the lights did not in fact put the Defendant on notice that there was a stationary car on the flyover. That was because the judge found elsewhere in his judgment that the Defendant had not been keeping a proper lookout.

11. In the final analysis, the judge was not saying that, in determining whether the Third Party had been in breach of duty, the fact that the headlights and the hazard warning lights on his car were switched on was not a matter of significance. Indeed, in that part of his judgment headed "The Third Party's liability" in which the judge addressed the question whether the Defendant had taken sufficient precautions to render the scene of the accident safe for other road-users, the judge said:

"I am satisfied that his [i.e. the Third Party's] vehicle was parked too close to the exit of the flyover bend even given that its lights were on ....." (Emphasis supplied.)

That passage also disposes of the argument that the two passages in the judgment relied upon by Mr Chang show that the judge regarded the lights as relevant only to the Defendant's reaction to them, i.e. whether the Third Party's breach of duty caused, or contributed to, the accident, rather than to whether the Third Party had been in breach of duty at all.

12. Another criticism of the judge related to the passage in his judgment when he referred to "the First Plaintiff parking his car in the immediate vicinity of the Third Party's car". It was said that the judge overlooked what normally happens when one car runs into the back of another. If the drivers then move their cars to allow other vehicles to pass, the driver of the car behind will normally move his car to a position behind the car in front. Accordingly, it was said that the judge ignored the fact that the place where the Third Party parked his car was dictated by where the Plaintiffs' car had been moved to.

13. I am very far from saying that I agree that the judge failed to take that into account. But if he did, and if therefore it is open to this court to determine what weight should be given to the fact that the Plaintiffs' car dictated where the Third Party parked his car, I do not think that it would relieve the Third Party of liability. There was no absolute need for the Third Party to park his car behind where the Plaintiff had parked his car. If the place where the Third Party parked his car was too close to the bend of the flyover, the fact that he parked it there in order to be behind the Plaintiffs' car does not absolve the Third Party from liability.

The cause of the accident

14. In Rouse v. Squires [1973] Q.B. 889, A's articulated lorry, as a result of negligence, "jack-knifed" and caused an obstruction on a motorway, into which a car crashed, on a frosty winter's night. B's lorry stopped behind it in time and illuminated the scene ahead using his headlights so that the obstruction became clearly visible. Some 10 minutes later, C's lorry came up, travelling much too fast, and collided with the rear of B's parked lorry, ramming it with such force that it moved forward, knocked down and killed the Plaintiff's husband, who was assisting at the original collision. The Court of Appeal held that if a driver negligently obstructs a highway, thereby creating a danger to other road-users, his negligence contributes to the causation of any subsequent accident, of which the immediate cause is the negligent driving of another driver, because of the continuing danger of the obstruction caused by him. Accordingly, whilst the immediate cause of the fatal accident was the negligent driving of C's lorry, there had been no break in the chain of causation between A's negligent driving and the fatal accident.

15. The judge held that the fact that the Third Party had moved his car distinguished the present case from Rouse v. Squires on the facts. Accordingly, the judge held that there had been a break in the causation between the initial collision and the subsequent accident. Thus, even if the Third Party had been negligent in respect of the initial collision, the effect of it had been exhausted as a cause of the subsequent accident. In effect, the judge was finding that the fact that the Third Party's car was stationary on the flyover immediately after the initial collision did not contribute to the subsequent accident. There is no cross-appeal from that finding. The question was whether the continuing presence of the Third Party's car on the flyover, i.e. the failure of the Third Party to move it to a position which would not have constituted a danger to other road-users, contributed to the subsequent accident to such an extent that it could be said to have been one of the causes of it.

16. The technical criticism which is levelled at the judge is that he blurred the distinction between the effective cause of the accident and the allocation of blame for the accident. More than one person might bear some degree of responsibility for an accident, but that is not necessarily inconsistent with the conduct of only one person being regarded as the effective cause of the accident. As Lord Asquith of Bishopstone explained in Stapley v. Gypsum Mines Ltd. [1953] AC 663 at p.687:

"Courts of law must accept the fact that the philosophic doctrine of causation and the juridical doctrine of responsibility for the consequences of a negligent act diverge. To a philosopher .... the whole legal doctrine of responsibility must seem anomalous. To him, if event C could not occur unless each of two previous events - A and B - had preceded it, it would be unmeaning to say that A was more responsible for the occurrence of C than was B, or that B was more responsible for its occurrence than was A. The whole modern doctrine of contributory negligence, however, proceeds on the contrary assumption. If not there would be no question of apportionment. But the fission between law and strict logic goes deeper than that. For I am persuaded that it is still part of the law of this country that two causes may both be necessary pre-conditions of a particular result - damage to X - yet the one may, if the facts justify that conclusion, be treated as the real, substantial, direct or effective cause, and the other dismissed as at best a causa sine qua non and ignored for purposes of legal liability."

Similar sentiments were expressed by Lord Reid at p.681:

"To determine what caused an accident from the point of view of legal liability is a most difficult task. If there is any valid logical scientific theory of causation, it is quite irrelevant in this connection .... The question must be determined by applying common sense to the facts of each particular case. One may find that as a matter of history several people have been at fault and that if any one of them had acted properly the accident would not have happened, but that does not mean that the accident must be regarded as having been caused by the faults of all of them. One must discriminate between those faults which must be discarded as being too remote and those which must not. Sometimes it is proper to discard all but one and to regard that one as the sole cause, but in other cases it is proper to regard two or more as having jointly caused the accident. I doubt whether any test can be applied generally."

The textbooks show that no definitive test has yet been formulated to enable this question to be answered. Thus, the "last opportunity" rule (i.e. the rule that where an accident has occurred through the combined negligence of two people, the person who had the last opportunity to avoid the accident by taking reasonable care is solely liable) has been laid to rest, and the "but for" test (i.e. the rule that it is only where an accident would not have occurred but for a particular person's wrongdoing that that person is liable) is not universally applicable. It all depends on the facts of each case.

17. The argument that the judge wrongly treated the effective cause of the accident and the allocation of blame for the accident as one and the same thing is based on the language he used and the structure of his judgment. He found that "the predominance of causative potency in respect of the Plaintiffs' injuries is attributable to the Defendant", but he added that "some blame in this regard must attach to the Third Party" (emphasis supplied). Moreover, he made those comments in that part of his judgment which was headed "Apportionment". However, the judge was alive to the liability of the Third Party being dependent on the Third Party's conduct having been a cause of the accident. Having expressly rejected the possibility of the Third Party's driving of his car being an effective cause of the accident (because the chain of causation had been broken), he concluded that part of his judgment in which he analysed the Third Party's liability with the words:

"I am satisfied that his vehicle was parked too close to the exit of the flyover bend even given that its lights were on and that this caused the Defendant to brake suddenly and, in the conditions, his car to slide into the Plaintiffs." (Emphasis supplied.)

Not without some hesitation, I have concluded that this shows that the judge treated the question whether the positioning of the Third Party's car had been an effective cause of the accident separately from the allocation of blame for the accident.

18. In those circumstances, it is necessary to consider the more substantive criticism levelled against the judge, and that was that in concluding that the place where the Third Party parked his car had been an effective cause of the accident, the judge failed to take into account three highly relevant matters:

(i)	There was unchallenged evidence that a number of other vehicles - varying from "several" to "8-10" - were able to drive past the scene of the initial collision without incident or apparent difficulty during the interval of about 5 minutes between the two accidents.
(ii)	It was said that the judge failed to consider the possibility that the accident would have occurred even if the Third Party had parked his car elsewhere. That is because the Plaintiffs had been examining the damage to their car, and accordingly the reason why they were where they were at the time of the accident was because of where the Plaintiffs' car had been parked. Since the judge found that the Defendant's car avoided the Third Party's car but struck the Plaintiffs' car and the Plaintiffs themselves, the presence of the Third Party's car behind the Plaintiffs' car could not have been an effective cause of the accident.
(iii)	The cases have drawn a distinction between the reckless and the merely careless driving of one tortfeasor for the purposes of determining whether the conduct of another tortfeasor should be regarded as amounting to an effective cause of the accident. In Rouse v. Squires, Cairns L.J. said at p.898C-D:

"If a driver so negligently manages his vehicle as to cause it to obstruct the highway and constitute a danger to other road users, including those who are driving too fast or not keeping a proper lookout, but not those who deliberately or recklessly drive into the obstruction, then the first driver's negligence may be held to have contributed to the causation of an accident of which the immediate cause was the negligent driving of the vehicle which because of the presence of the obstruction collides with it or with some other vehicle or some other person." (Emphasis supplied.)

A similar view was expressed in Wright v. Lodge [1993] RTR 123, in which the distinction between reckless or deliberate driving and negligent driving was confirmed, and in which it was held that an obstruction which is only a danger to a reckless driver did not constitute a relevant danger. Accordingly, if the driving of the Defendant in the present case could be regarded as reckless, that would prevent the Third Party's negligent parking of his car from becoming an effective cause of the accident.

19. The judge did not refer to any of these three matters in his judgment. I am far from saying that he did not consider them. After all, it is not incumbent on a judge to spell out his conclusions in his judgment on each and every issue argued before him. But they were all highly relevant factors for the judge to weigh in deciding whether the place where the Third Party parked his car was an effective cause of the accident, and they should all have been considered by the judge. Even if he did not consider them, though, that does not necessarily mean that a new trial should be ordered. There is no challenge to the findings of primary fact made by the judge. It is therefore open to this court, on those findings of primary fact and on the unchallenged evidence, to determine for itself whether the judge's conclusion that the place where the Third Party parked his car was one of the effective causes of the accident should be affected by one or more of these factors.

20. As for (i), I do not regard the evidence relating to the cars which were able to pass the Plaintiffs' and the Third Party's cars as particularly telling. The fact that all of those vehicles were able to drive past the Third Party's car easily did not mean that it was not in a dangerous position. The fact that it was in a dangerous position is suggested by the fact that within 5 minutes of it stopping on the flyover the Defendant's car had collided with it.

21. As for (ii), the reason why the Defendant's car hit the Plaintiffs was because the Defendant had lost control of it. The reason why he had lost control of it was because it had gone into a skid. The reason why it had gone into a skid was because the Defendant had applied his brakes too sharply. All that is uncontroversial. The critical question is what caused the Defendant to brake so sharply. Was it the presence of the Third Party's car so close to the exit of the bend as the Defendant came out of the bend? Or would the Defendant have applied his brakes so sharply as to go into the skid even if the Third Party's car had not been there?

22. On this issue, the express finding of the judge was that it was the presence of the Third Party's car so close to the exit out of the bend which caused the Defendant to brake suddenly. Despite the view of Rogers JA (whose judgment I have read in draft), that was a finding which, in my opinion, the judge was entitled to make. After all, the Defendant's own evidence was that the first thing he saw when he came out of the bend was the Third Party's car. Thus, even though the Plaintiffs were where they were because of where the Plaintiffs' car had been parked, the judge's thinking must have been that the Defendant would have had a better chance of avoiding the Plaintiffs if the Third Party's car had not been where it was, because he would not have had to apply his brakes so sharply, and he might therefore not have gone into the skid which caused him to lose control of his car. For my part, I am unable to fault the judge for proceeding on those lines.

23. As for (iii), the question is whether the Defendant's driving that night was reckless rather than merely careless. I bear in mind that he was driving over the flyover at a speed "probably approaching" 50 k.p.h. despite the bend around the flyover and the wet surface of the road. I bear in mind that the Defendant's car had a defective rear brake which reduced its stopping distance and its directional stability. I bear in mind that the hazard warning lights and the headlights on the Third Party's car were switched on, and that the Defendant should have been able to see them when he was on the upslope at the opposite side of the flyover. And I bear in mind that had the Defendant taken reasonable care, he should have been able to avoid the two stationary cars on the flyover as a number of other cars already had. But looking at all these factors, this was, in the final analysis, no more than a case of a driver driving too fast and not keeping a proper lookout, rather than of a driver recklessly driving into an obstruction.

24. Not without some hesitation, I have concluded that the Third Party's negligent parking of the car on the flyover was an effective cause of the accident.

The apportionment of blame

25. Mr Chang challenged the judge's allocation of blame. In the particular circumstances of the case, it was submitted that to attribute one-fifth of the responsibility for the accident to the Third Party was manifestly excessive. That was said to be especially so when one remembers that the judge appeared to acknowledge that the Plaintiffs might themselves have contributed to their injuries by standing where they did.

26. I do not regard the possibility of contributory negligence on the part of the Plaintiffs as relevant at all to the allocation of blame as between the Defendant and the Third Party. Any contributory negligence on the part of the Plaintiffs would simply have resulted in their damages being reduced by a percentage to reflect the extent of their negligence. It would not have had an impact on the respective degrees of responsibility as between the Defendant and the Third Party.

27. Mr Chang and Ms Sze Kin for the Defendant both realistically recognised that an appellate court will be slow to interfere with a trial judge's apportionment of responsibility between two tortfeasors unless it can be demonstrated that he proceeded on a misapprehension of the facts or on an error of law or the apportionment of blame was so manifestly excessive or inadequate that no judge could reasonably have allocated responsibility in that way. In Stapley, Lord Reid said at p.682:

"A court must deal broadly with the problem of apportionment and in considering what is just and equitable must have regard to the blameworthiness of each party, but 'the claimant's share in the responsibility for the damage' cannot, I think, be assessed without considering the relative importance of his acts in causing the damage apart from his blameworthiness."

The words in quotation marks are from section 1(1) of the Law Reform (Contributory Negligence) Act 1945. The same sentiment is expressed in section 4(1) of the Civil Liability (Contribution) Ordinance (Cap. 377), which provides, so far as is material:

"... in any proceedings for contribution .... the amount of the contribution recoverable from any person shall be such as may be found by the court to be just and equitable having regard to the extent of that person's responsibility for the damage in question."

Thus, the judge would have fallen into error if he had determined the question of apportionment without considering both causation and blameworthiness. Having said that, though, this refinement of the law is, I believe, more theoretical than real: once it is found that a tortfeasor's conduct has been an effective cause of an accident, I suspect that "the relative importance of his acts in causing the damage" will not in practice affect his degree of responsibility.

28. Ms Sze contended that the judge considered the question of apportionment by concentrating on causation and ignoring blameworthiness. In the light of the passages in the judgment to which I have already referred, I do not think that the judge did any such thing. But the three matters which he may have overlooked on the issue of causation are equally relevant to the question of apportionment, and if he in fact overlooked them, it is necessary for this court to determine the question of apportionment for itself.

29. The facts relied on by Ms Sze in support of her contention that the Third Party's apportionment of blame should be as much as 50% were set out in the Respondent's Notice. I do not propose to lengthen this already lengthy judgment by setting them out here, but I have read them with care. I have also taken account of all of the matters relied on by Mr Chang to which I have already referred in this judgment. It is sufficient for me to state - without, I hope, being influenced by the judge's view - that I have come to the conclusion that an 80:20 apportionment of responsibility, taking into account both causation and blameworthiness, is correct. The Defendant's blameworthiness was, in my view, significantly greater than that of the Third Party, as was the degree to which he could be said to have caused the accident.

Conclusion

30. It follows that in my view the appeal and cross-appeal should be dismissed. However, there was an outstanding issue as to the form of the judgment. The judgment merely records the apportionment of liability as between the Defendant and the Third Party. The Defendant's solicitors wanted the judgment to record the consequences which flowed from that apportionment, i.e. a judgment in the terms of Form 223 in Chitty and Jacob's Queen's Bench Forms, 21st. ed., suitably adapted to reflect the acceptance by the Plaintiffs of the sums paid into court. I agree that the judgment, if it survives this appeal, should follow that Form, but the difficulty which emerged in the course of the hearing was that there are two issues of substance, not form, which divide the parties:

(i)	The Defendant contends that the Third Party is liable to pay to him 20% of the sums paid into court and accepted by the Plaintiffs. However, the payments into court which the Plaintiffs accepted included interest. The Third Party contends that since there was considerable delay before the Third Party proceedings were issued, that should be reflected in the amount which he should be required to pay to the Defendant.
(ii)	It is common ground that the Third Party should pay to the Defendant 20% of the costs incurred by the Defendant in defending the Plaintiffs' action, but there is a dispute as to the basis upon which the costs should be taxed. The Defendant contends that they should be taxed as between solicitor and own client, whereas the Third Party contends that they should be taxed on a party and party basis.

The judge has not had an opportunity to address these issues. In order to save costs, I would have been content to bypass the judge, and for the Court of Appeal to determine issue (ii). But issue (i) is more difficult. It may be that it is an issue for which evidence is needed. For these reasons, I agree with the consensus between the parties which emerged in the course of the hearing that, if the judgment stands, these issues, and therefore the form of the judgment itself, should be remitted to the judge for him to decide. However, none of this now matters because of the view taken by Godfrey JA and Rogers JA that the Third Party's appeal must be allowed, and that judgment should be entered for the Third Party on the Third Party claim.

Rogers JA :

31. I have come to the conclusion that this appeal should be allowed. The defendant was driving an eight-year-old vehicle, the condition of which was clearly far from satisfactory. It had virtually no hand brake power at all but, importantly, as regards this case, it had a defective off-side rear brake. The defendant drove this vehicle round a sharp right-angle bend leading to a downward slope at a speed which the judge held was too fast for the circumstances. In my view, the speed, 50 kmph, which is the maximum speed on ordinary roads in urban areas, was too fast for this stretch of road in any weather or lighting conditions. What is worse is that not only was this at night but the road was wet. As the judge held, the defendant clearly added to all this by not keeping a proper lookout. The defendant is fortunate that the judge did not find him reckless.

32. After the third party's car had hit the plaintiff's car (i.e. in the first accident) both drivers moved their cars to the left hand side of the road. The third party, as held by the judge, had moved his vehicle to a position which was 22 metres from exit of the bend. That, as the judge held, was too close to the bend. A road user, choosing to stop his vehicle in a place where vehicles clearly should not be stopped, must cater for the careless.

33. The plaintiff, who was of course badly injured in the second accident, does not refer to moving the car but it is, perhaps, understandable that his memory may have lapsed. The third party said in his witness statement "I and [the 1st plaintiff] agreed to pullover our cars over to the farthest left side of the road and then discuss the matter." That evidence was evidently accepted by the judge. What the judge did not refer to was what, in my view, is conventional - that a driver of a car which hits another car from the rear would follow the car in front which he had hit, and not overtake it. That might be said to be a matter of courtesy and an attempt not to aggravate any distress caused by the initial fault. However, that would be a matter which would have to be taken into account in apportioning blame between the plaintiff and the third party. In the circumstances of this case, however, the plaintiff's apportionment of blame seems to have been accomplished without reference to the third party.

34. On the assumption, therefore, that it was partially the choice of the third party to position his vehicle where it was, the crucial question appears to me to be whether the accident, which happened when the plaintiff pedestrians were struck by the car driven by the defendant (the second accident), was in part caused by the presence of the third party's vehicle in the position in which it was.

35. It was argued that since the 1st plaintiff had chosen to stop his car where he did, and the plaintiffs had, of their own volition, stood where they did, the accident would have happened no matter whether the third party's car had been positioned behind the plaintiffs' car or in front of it. In my view, that must be so. The plaintiff pedestrians who were hit were standing outside the line of the parked cars. It is apparent from the defendant's evidence that he saw the group of people as well as the third party's stationary vehicle at almost the same time. On pages 29 and 30 of the transcript, during examination in chief, the defendant's evidence was as follows :

"Q.	Can you tell his Lordship whether you saw this group of people at the same time that you saw the stationary vehicle, or you saw them slightly later?
A.	It was almost right at that moment. When I saw the rear of that vehicle, my vision was already wider, then I saw the people. The difference in time was just very, very short, perhaps one second.
.....
Q.	Why did you brake immediately?
A.	While I was driving along, all along I saw no vehicles on the other side, but suddenly, after rounding the bend, I saw a vehicle there and saw the people there. Of course, I would brake instantly.
Q.	And after you applied the brakes, what happened?
A.	My vehicle skidded.
Q.	Other than applying the brakes, did you do anything else to manoeuvre your vehicle?
A.	Before that, I was already steering right because I was rounding the bend, and as soon as I saw them, I steered further to the right, trying to avoid the people.
.........
Q.	Did you think how to react before you applied the brakes?
A.	The time span was indeed very short and it was just a distance of two to three vehicle lengths, so when I saw them after rounding the bend, the first thing that came to my mind was to brake. There was no time to think. I braked and steered immediately to avoid them."

Later on, towards the end of the cross-examination, the judge himself asked the question, having confirmed with counsel that they had no objection,

"Q.	When you put your brakes on, and you then tried to steer to the right, did the front of your car turn in the direction you were steering or did your steering make no difference?..."

The answer was

"A.	As far as I can remember it made no difference. It was not until my car had hit the other vehicle that my car could move to the right."

36. Naturally, anything said by the defendant has to be viewed in the light of the fact that his evidence was found to be unreliable, to put it euphemistically; the judge accepted very little of it. For example, throughout his evidence, the defendant was adamant that his car hit the third party's car (i.e. not the plaintiff's car). The judge found and it is accepted that the defendant's car hit the plaintiff's car and not the third party's car. Throughout his cross-examination, the defendant denied that he was driving too fast and that the third party's hazard lights were on, let alone the headlights, and he resolutely maintained that he was driving appropriately for the weather conditions and was keeping a proper lookout. All these matters were held against him by the judge.

37. Nevertheless, if the presence of the third party's vehicle was a cause of the accident, because of its position, then it must be primarily the defendant's evidence to which attention must be given, to understand how the accident happened and why it is that the placing of the third party's vehicle caused the second accident, when the car remained unscathed.

38. It must be borne in mind that it was the defendant's evidence that he braked and attempted to steer to the right to avoid the people. Clearly, he avoided the third party's car since his car did not hit it. There is no question therefore of the defendant's car bouncing off the third party's car. Nevertheless, the defendant's car was out of control in that it was skidding, probably, as the defendant admitted, for something in the region of 22 metres. During that time, the defendant could not steer the car to the right. It was only after the defendant's car was in collision with the plaintiff pedestrians and the plaintiff's car that the defendant could regain control of his vehicle sufficiently to steer it to the right.

39. The third party's vehicle was left in a place which was unsuitable. It was parked on a narrow stretch of downward slopping flyover, which, as can be seen from the photographs, has a slight bend. Nevertheless, I cannot see on the facts found by the judge or from the defendant's evidence that it was the presence of the third party's vehicle that was a cause of the accident. The judge found that the third party's hazard lights were on and, also, that its headlights were on. The presence of the third party's vehicle with its flashing hazard lights was thus in the nature of a warning to on-coming road users or a danger sign.

40. The 1st plaintiff had clearly himself chosen to park his vehicle where he did and to stand where he did. The third party's duty to the plaintiff was a duty to take reasonable care to avoid acts or omissions which could be reasonably foreseen would be likely to injure the plaintiff. In Donoghue v. Stevenson [1932] A.C. 562 at 580, Lord Atkin likened this legal rule which is at the foundation of the law of negligence to the biblical rule that "you are to love your neighbour". He did not liken it to the biblical rule that one is one's brother's keeper. It was the third party's obligation not to leave his vehicle in a place which would cause danger to the plaintiff should the plaintiff decide to stay where he was. It was not the third party's legal obligation to advise the plaintiff to move himself or his car.

41. The judge's finding of causation is at page 14 of the judgment where he said :

"I am satisfied that his vehicle was parked too close to the exit of the flyover bend even given that its lights were on and that this caused the Defendant to brake suddenly, and in the conditions, his car to slide into the Plaintiff's."

42. That conclusion is, as I have pointed out, not based on anything which the defendant said in his evidence. The conclusion from the defendant's evidence is that he saw the vehicles and the people at the same time and he steered to avoid them. In those places where the defendant used the word 'them', he was patently using it to refer to the people rather than the vehicles.

43. The only basis upon which the judge could have reached the conclusion that the presence of the third party's vehicle caused the accident was that its presence caused the defendant to brake more suddenly than he would have done had the plaintiff pedestrians simply been in the position which they were. In view of the fact that there could only have been at the most about four metres difference between the position of the third party's vehicle and the plaintiff pedestrians who were struck, that conclusion does not seem to me to be borne out by any evidence from the defendant and is no more than surmise. The judge held that the position of the third party's vehicle was 22 metres from the exit of the bend. The difference of an extra four metres out of a total of 26, at the most, can hardly be something which would have caused the defendant to have braked more gently and been able to retain control of his vehicle sufficient to be able to pass the plaintiff pedestrians safely. At 50 kmph, a car travels four metres in just over a quarter of a second.

44. In my view, the evidence does not lead to the conclusion that the presence of the third party's vehicle, with its flashing hazard lights, was a cause of the accident. If anything, the evidence and logical deduction from it leads to the conclusion that the presence of the third party's vehicle would have alerted the defendant by reason of the flashing lights earlier than would otherwise have been the case. On the judge's finding, the defendant was not keeping a proper lookout. Had the third party's car not been where it was, it might have been even later when the defendant would have noticed the pedestrians who were standing in a position too close to the exit of the bend and too far out into the roadway for a defective vehicle driven negligently in bad road conditions to be able to stop or avoid them.

45. For these reasons, I would allow this appeal.

Godfrey JA:

46. I have found this a difficult case.

47. The judge thought the third party, in parking his car where he did park it after the initial collision, had been negligent, and that that negligence had been an effective cause of the subsequent accident in which the plaintiffs were injured. Keith JA is of the opinion that such findings of fact were open to the judge on the evidence and, "not without some hesitation" himself, comes to the same conclusion. Rogers JA, while accepting that "the third party's vehicle was left in a place which was unsuitable" and so, as I understand his judgment, that the third party had been guilty of negligence, concludes that that negligence was not a cause of the accident and that the evidence did not justify the judge's conclusion that it was.

48. I was initially disposed to think, with Keith JA, that the judge's findings of fact were findings which were open to the judge on the evidence. But, in the end, I have concluded that the reasons given by Rogers JA for his conclusion, that there was in fact no evidence before the judge to support the judge's finding that the presence of the third party's vehicle, parked where it was, was a cause of the accident, are correct. I am now myself satisfied that there was simply no evidence here to justify the conclusion that the third party's negligence was an effective cause of the accident, although I would not go so far as to say that it could not have been, as I understand Rogers JA to do. The possibility (it can be no more than that) that the defendant would have braked less sharply if the third party's vehicle had not been parked where it was, and therefore might not have skidded into the plaintiffs, cannot be said to have been proved on a balance of probabilities and indeed was not even explored in the evidence.

49. Accordingly, I too would allow this appeal and dismiss the cross-appeal.

50. In these circumstances, there being a majority in favour of this result, the judge's order will be set aside and we will order (subject to the provisions of Order 42 rule 5B(6) of the Rules of the High Court) that the third party's costs of the proceedings here and below are to be taxed (if not agreed) and paid by the defendant to the third party.