LAI TIN FAT v. LAM CHI YIN AND ANOTHER

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

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JUDGMENT

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1. At about 9 p.m. on the 27th February 1980 the Plaintiff was riding a bicycle on Tai Tong Road near Yuen Long in the New Territories when it was struck by a goods van driven by the 2nd Defendant. At that time a taxi driven by the 1st Defendant was passing in the opposite direction. The Plaintiff was injured and now claims damages alleging negligence on the part of the 1st Defendant for failing to dip his lights and on the part of the 2nd Defendant primarily for failing to maintain a proper look-out, driving too fast and for not slowing down and stopping when dazzled by the lights of the 1st Defendant.

2. The two Defendants have issued Third Party notices each seeking contribution from the other if found liable. By agreement between the parties only the issue of liability has been presented for determination and accordingly I do not have to concern myself with the quantum of damages.

3. Only the Plaintiff and the investigating constable called by the Plaintiff gave evidence. The plaintiff, who has no recollection of the accident gave evidence that it was his practice to cycle home from work on the Tai Tong Road from Yuen Long and to use the dynamo powered lamp on his cycle which was in working order before the accident. The constable testified that he reached the scene soon after the accident, took measurements and interviewed the two Defendants at the scene. Shortly thereafter he took statements from them and prepared a sketch plan drawn to scale.

4. An agreed bundle of documents comprises the remaining evidence. In substance it consists of the constable's sketch plan and the Defendants' statements recorded by him and the motor vehicle examiner's reports on the three vehicles involved.

5. The Defendants did not give evidence or call witnesses. It is not disputed and the evidence clearly establishes that the goods vehicle driven by the 2nd Defendant was travelling along Tai Tong Road going north towards Yuen Long and the taxi being driven by the 1st Defendant was proceeding along the same route in the opposite direction. The accident took place on a fairly narrow bridge over a nullah. Along each side of the nullah are tracks or minor roads which intersect the main road, i.e. the Tai Tong Road. One of these (the Shun Ching Road) leads to Shun Ching Sai Tsuen on the eastern side of the Tai Tong load on which the 1st Defendant was travelling south from Yuen Long.

6. Having regard to the position of the broken glass, the precise point of impact in my view was on the bridge some 2 metres or a little more behind the final resting position of the goods vehicle and some 7½  metres on the Yuen Long side of the junction of the Tai Tong Road with the Shun Ching Road.

7. It is not disputed that the 2nd Defendant's goods vehicle struck the Plaintiff's bicycle. The first question is whether the 2nd Defendant was negligent. Mr. Chong for the Plaintiff conceded that the Plaintiff must have come on the main road from the Shun Ching Sai Tsuen Road. That is clearly the overwhelming probability from the statements of the two Defendants.

8. The usual practice of the Plaintiff to cycle home from Yuen Long simply does not fit in with that nor, more to the point, with the undisputed direction and the ultimate position of the vehicles and the point of the impact. He could not have been heading directly home to Tai Tong at the time. On the probabilities, therefore, the Plaintiff was not in the course of his usual practice and I find that he came on to the main road from the Shun Ching Road. The question then is why the 2nd Defendant did not see the Plaintiff until he, as the 2nd Defendant himself says, was within 7 to 8 feet of the Plaintiff. The material part of the 2nd Defendant's statement and subsequent questions and answers is as follows:

9. At around 9:45 p.m., I was travelling along Tai Tong Road, Yuen Long, going from Tai Tong towards Yuen Long. Along the way, the speed of my car was about 30 m.p.h. and the 4th gear was engaged (4 forward and one reverse). The street lights at the side of the road were all on but the street lights were very dim. At that time, the weather was fine, the road surface was dry. When I arrived at the spot of the accident, there was no vehicle in front or behind me. When approaching the Lai Sau Tsuen bridgehead, I saw the headlights of a vehicle at the other bridgehead in the opposite direction; the headlights were quite dazzling, and the street lights at that section of the road were particularly dim. At that time I only saw a dark shadow suddenly appearing in front of my vehicle, flashing from my right hand side to my left hand side. At the first sight of that, I immediately applied the brake, then there was a 'bang' from collision with some object, as a result of the collision the windscreen of my car was broken. When I managed to stop my car, I alighted and saw a bicycle lying on the carriageway in front and a man lying in front of the bicycle, and the car with dazzling headlights was also stopped.

10. As to the 2nd Defendant's statement that he was dazzled, the evidence is that the road at that point is straight for almost 300 feet in the direction from which the 2nd Defendant had come and for approximately another 3,000 feet in the opposite direction. So he must have been dazzled for some considerable distance before the point of impact, for the taxi reached the bridge about the same time as he did and he must therefore have been caught by its lights as soon as he rounded the curve nearly 300 feet from the bridge. There was no suggestion that the taxi's full beam was suddenly switched on. Paragraph 86 of the Highway Code then current under section 7 (4) of the Road Traffic Ordinance provided as follows and I quote:

"Never look into the headlights of an approaching car, but watch your nearside kerb. If you are dazzled by the headlights slow down or stop."

11. To slow or to stop is in any case what a reasonable person should do. On the evidence, the 2nd Defendant neither slowed nor stopped. On the contrary, the 1st Defendant's statement is that the goods van was coming along very fast. In my finding, the 2nd Defendant was negligent in not slowing down or stopping in the particular circumstances of a relatively high speed, albeit not in excess of the lawful limit, a relatively narrow road and dim street lighting; not negligent in any extreme degree but negligent nonetheless. Of course, had he slowed down he might well have spotted the Plaintiff earlier and been in a better position to take avoiding or mitigating action.

12. Proceeding then to the allegation that the 2nd Defendant failed to keep a proper look-out, the position of the broken glass at the scene indicates that the point of impact was approximately 3½ metres or so into Tai Tong Road from the level of the corner of the junction with the Shun Ching Road on the opposite side of the road. It is apparent from the sketch plan that the Plaintiff must have travelled some 11½ metres or so across and along the main Tai Tong Road before he was hit and an additional 3 metres or so if he was on the correct side of the Shun Ching Road before entering the Tai Tong Road. According to the 1st Defendant's statement, he saw the bicycle when it was at the junction before it crossed the carriageway. Why then did the 2nd Defendant not see it until almost on top of it? The 1st Defendant mentions a mini-bus that had stopped just past the road to Shun Ching. This possibly might have obscured the bicycle but even so from the photographs and the sketch plan it seems to me that the 2nd Defendant should have sighted the Plaintiff well before he got within 7 to 8 feet of him. The conclusion therefore follows that he failed to keep a proper look-out and was negligent in that respect also, however minor the degree of negligence.

13. In reaching that conclusion I have taken into account the relatively high speed at which the 2nd Defendant was travelling which caused for a proportionately high degree of alertness. The 1st Defendant's statement suggests that the Plaintiff went straight across the road presumably into the 2nd Defendant's path. Unless the plaintiff was moving very quickly, the 2nd Defendant should have spotted him earlier. But if the Plaintiff went straight across Tai Tong Road or also if he moved very quickly, it seems to me he would have been struck more or less at the level of the junction with the Shun Ching Road and would not have got as far up at Tai Tong Road towards Yuen Long as the broken glass indicates even if suitably discounted for the momentum of the 2nd Defendant's van.

14. In view of the findings I have already made, it is not necessary for me to find that the 2nd Defendant's speed was excessive and negligent and I would hesitate long before doing so.

15. Mr. Barretto for the 2nd Defendant has pointed out from the tables at p. 120 and p. 121 of the 9th Edition of Bingham's Motor Claim Cases that at 30 m.p.h. the overall stopping distance would be 75 feet, and at 15 m.p.h. it would take the Plaintiff only l or 2 seconds to get from the end the Shun Ching Road to within 7 or 8 feet from the point of impact, that that would only have enabled the second Defendant at 30 m.p.h. to travel 44 to 88 feet and that therefore he could not have been negligent. I find it difficult to speculate on the speed at which the Plaintiff moved, whether he attempted to accelerate to beat the vehicles whose lights he must have seen, or even whether he stopped at the junction and might not have got up much speed before he was hit. At 30 m.p.h. the thinking distance is 30 feet. The 2nd Defendant's brake marks start at a level of almost the northern verge of the Shun Ching Road. Even if there had been a minibus stationary to the south of the junction, I can see no explanation for the 2nd Defendant's failure to spot the Plaintiff considerably earlier than 30 feet before commencement of the brake marks. Indeed the length of the brake marks ahead of the point of impact and any allowance for thinking distance suggest that the 2nd Defendant's statement that he only spottedtthe Plaintiff when he was 7 to 8 feet away is false, unless he was in fact not keeping a proper look-out as I have found. I do not think the tables can rebut the negligence I have found in the 2nd Defendant's failure to slow down when dazzled and in failing to keep a proper look-out.

16. Mr. Barretto has also referred to several cases in the 9th Edition of Bingham and in particular at p. 136 to Humphrey v. Leigh and Roe (1971 RTR 363). I accept entirely the thrust of those decisions that a driver is not expected every time he comes across a side road to take his foot off the accelerator and poise his foot over the brake pedal being prepared to stop short of the crossing. The basis of my finding of negligence is first the failure to slow down or stop when dazzled and second and to a slightly lesser extent the failure to keep a proper look-out. I note that in Humphrey v. Leigh and Roe the driver concerned was keeping a proper look-out and there was no negligence of any sort on his part.  Another car shot out of a side-road and collided with him giving him no chance at all.

17. Proceeding then to the 1st Defendant, the allegation against him boils down to a failure to dip his lights in the face of an oncoming vehicle. The evidence upon which the Plaintiff relies is that in his statement the 1st Defendant said he was using "high light dipped light". I do not accept that those patently ambiguous words either on their own or in the context of the 2nd Defendant's statement that he was dazzled by the 1st Defendant'shead lights, as an admission of the 1st Defendant's failure to dip his lights. On the contrary those words to me suggest that the 1st Defendant was claiming that he used headlamps which had been dipped. In my judgment, the Plaintiff has failed to establish that the 1st Defendant did not dip his lights and his claim, on that account, that the 2nd Defendant was negligent, must therefore fail.

18. I turn then to the question of contributory negligence on the part of the Plaintiff. Mr. Chong has conceded that the Plaintiff must have been negligent and indeed that is indisputable but he goes on to submit that the Plaintiff's negligence was minimal and contributory only to the extent of 20%. The Plaintiff's evidence that his practice was to use a light was not challenged. Having regard to this and the dynamo and lamp at the scene, I find upon the probabilities that he must have had a light that night. But he nonetheless clearly took a very great risk, approaching recklessness, in cycling across at least half the two-way carriageway in the face of two oncoming vehicles which he must have seen or, alternatively, which he was grossly negligent in not seeing. I consider that his conduct was by far the major factor in causing the accident and I assess his responsibility at 80% and that of the 2nd Defendant at 20%.

19. As I have found that negligence on the part of the 1st Defendant has not been established, the question of apportionment between the two Defendants does not, as I see, arise. I will now hear Counsel upon costs.