HUYNG KHANH LING MONICA v. CHAN CHOI LAI, STEPHEN and LAM WING KEE (Third Party)

HCPI 291/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 291 OF 1999

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J U D G M E N T

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1. On the 18 November 1996 at about 2045 hours in the evening the Defendant's Saab motor car collided with the Third Party's Honda motor-cycle in Pokfulam Road at the junction with a slip road. Travelling as pillion passenger on the Third Party's motor-cycle was the wife of the motor-cyclist. Her claim for damages for the injuries she suffered in the main action has already been settled on terms which are without prejudice to the issue between the Defendant and the Third Party. The Defendant claims a contribution and/or indemnity from the Third Party in respect of the Plaintiff's settled claim.

2. The Third Party was travelling along the main road, a single carriageway with two lanes in each direction, towards Aberdeen. The Defendant emerged from the slip road, which is governed by a "Give Way" sign, intending to cross the Aberdeen bound lanes and travel towards Chi Fu, and the University of Hong Kong, at which he holds the post of lecturer.

3. The Defendant's version of events is as follows. He drove down the slip road to the junction intending to turn right on the main road. He was unaware of any traffic coming from his right and deemed it safe to enter the main road. When halfway across he checked to his right and saw no vehicle. He continued on. When he was about two-thirds of the way into the Aberdeen bound half of the road, he suddenly became aware of the light of an approaching vehicle to his right which he estimated to be 50 to 60 metres away. He assumed that the oncoming vehicle was travelling at a normal speed. He decided to continue and shortly afterwards felt the impact of the collision. At that stage he thought the front of his car was just over the central double white lines.

4. There is no doubt that Dr Chan, a physicist as well as a lecturer in mathematics, has given some thought as to how he came to be in collision with the motor-cyclist. He has calculated, approximately, the extent of his visibility to his right. In a form of mental reconstruction he has based his hypothesis on the premise that at the time just before he entered Pokfulam Road, there was no vehicle on the road within the 100 to 120 metre range to his right, or, at least, if there was, it was only just entering the range. Consequently, he has calculated, if it were to travel at a normal, legal, speed it would take between 7 to 9 seconds to reach him. That would allow him plenty of time to cross the junction safely - he would need at the very most, half that lapse of time. Ipso facto, he concluded, the motor-cyclist must have been travelling at about twice the permitted speed i.e. about 100 k.p.h.

5. Dr Chan fairly conceded that what he was postulating as the explanation was really a matter of hypothetical reconstruction. It does of course fly in the face of his own evidence - there was no vehicle in sight when he moved out, none when he checked to his right when halfway across, and then suddenly a vehicle to his right, 50 to 60 metres away when he was two-thirds of the way across. In the fraction of a second which it took for Dr Chan to move from halfway across to two-thirds of the way across, the motor-cyclist must have covered 50 to 60 metres. I cannot accept that in any event.

6. Dr Chan also relied upon the extent of the damage to his vehicle as supporting an impact at very high speed on the part of the motor-cyclist. Damage to a vehicle is notoriously unreliable as an indicator of speed of impact. There is no expert evidence advanced to suggest, from a simulation, the range of speed of a motor-cycle of a certain weight plus the weight of two passengers, striking the Saab at that angle and causing such initial and collateral damage to wing and bonnet of an unknown gauge or thickness.

7. The nature of the collision and its surrounding circumstances do not indicate to me high speed on the part of the motor-cyclist. The motor-cycle was found lying in the outer lane at the point where the collision had taken place. The Defendant had moved his vehicle on at a diagonal angle to the offside of the road. The rider has escaped with comparatively minor injuries. His wife had more serious injuries but those are more compatible and consistent with her being a pillion passenger than with excess speed on the part of the motor-cycle, such is the lot of pillion passenger in a collision.

8. The Defendant's case against the Third Party was quite a simple one - that the motor-cyclist was travelling too fast and was not keeping a proper lookout. In more specific and relative terms it was that he should have seen the Defendant emerge and should have passed behind him safely had he been driving at a proper speed. Against this it is necessary to examine the motor-cyclist's evidence.

9. When he passed the traffic lights there was another vehicle in front of him in the same lane at a distance of about 20 metres. Neither had had to stop for the traffic lights. The distance between them increased somewhat as they proceeded in the outside lane towards Aberdeen. In his evidence the motor-cyclist said that as he approached the junction, having left the traffic lights, he became aware of a "dark object in the slip road" on his near side. He felt something rush out as he was close to the junction. He added, "by the time I could be sure it was a car it was already in front of me".

10. He made a statement to a Police Officer about 10 days after the accident. In that he described the Defendant's vehicle suddenly moving out of the junction on his left hand side after he passed Ebenezer School and Home for the Visually Impaired. He repeated - "The vehicle suddenly moved out from the slip road at that time." "It was very close [when I saw the private car.]" "I did not notice [whether it had ever been stationary at the junction.]"

11. The motor-cyclist, Mr Lam Wing Kee gave evidence for the prosecution of the Defendant for careless driving. In the course of that evidence he said that he did not expect that the vehicle would suddenly come out from the slip road - "It crossed the slow lane, crossed the fast lane and blocked two lanes and me."

12. "I could not see [how the vehicle came out.] "[It] suddenly came out in a rush and blocked my vehicle ....... cannot estimate its speed."

13. In cross-examination, which was no doubt designed to suggest that Mr Lam had not taken sufficient account of the possibility of the Defendant's car emerging from the slip road, the motor-cyclist said:

"Actually I did see it go down on the slope but I did not expect that it came out so fast."

"I saw a vehicle coming down but don't know where it was going to .... There was something black up there coming down but I never thought whether it was a vehicle."

In answer to a question "whatever it was, at the moment of collision, that is the moment when the vehicle was first seen," the answer was "Yes".

14. It is this series of questions and answers in evidence before me and at the Magistrate's Court which forms the basis of the suggestion that the motor-cyclist did not see the Defendant's car until momentarily before the collision. In my view this is quite unrealistic.

15. I am quite satisfied that what Mr Lam has been saying consistently throughout is that he saw some type of vehicle, cart, wagon or whatever, coming down the slip road towards the junction. He did not expect it to come out into his path but when it did rush out, when he was virtually on top of the junction and had no chance to avoid it, it was apparent that it was a motor car. That is the only reasonable construction to be put upon all his evidence.

16. In his evidence before the magistrate Mr Lam described seeing a car ahead of him in the same lane, which he had just noticed at or near the traffic lights and that it had stopped at the lights. It is true that he made no mention of this in his statement to the Police Officer. I do not find that at all surprising. No doubt the Police Officer concentrated on the part played by the two vehicles involved in the collision. Almost one year after the accident the loss adjusters for the Defendant's Insurance Company took a signed statement from the motor-cyclist Mr Lam. In that he said that when he was near the junction (outside No. 131) there was no vehicle in front of or to the left of him. I do not regard this as inconsistent with the evidence he gave to the magistrate or with his evidence in this case. In the former he had added that he was not aware of any preceding vehicle when he was about twenty metres from the junction. He did in fact make it clear that the distance between his motor-cycle and that preceding vehicle was increasing. Over the years it may be that his memory about this is not wholly clear. It would not appear to him to be of any significance. However, I accept his evidence that there was such a vehicle but that it was sufficiently far ahead of him at the time when he reached the junction as to have played no significant part in events, save possibly for one aspect with which I shall deal later.

17. The Defendant's argument is, apart from excessive speed on the part of the motor-cyclist, which I have already rejected, that he was not keeping a proper lookout in respect of traffic which might emerge from the slip road and put him in difficulties. That argument breaks down on the premise that the motor-cyclist had been sufficiently aware of and alert to the movement of traffic off the highway in noticing the dark vehicle coming down the slip road towards the junction. At night time it is understandable that he would not be aware of the nature of that vehicle. Having taken stock of it he would be entitled to assume that it would not drive across his path thereby ignoring the "Give Way" sign. His understanding, he explained, was that such traffic would turn left onto the Pokfulam Road but was not entitled to cross the road and turn right across his path. Another traffic factor the motor-cyclist would have to take into account would be the possibility of oncoming traffic turning to cross into the slip road.

18. The expectation of a motorist on the major road is that he will drive reasonably i.e. at a reasonable speed in the circumstances and in a manner which shows proper regard for traffic conditions and other road users, and that he will have proper regard for his own safety. Having taken account of traffic which may at some stage emerge from slip roads, junctions or feeder lanes he is not obliged to adjust his driving to allow for aberrant driving in disregard of proper standards of care. He would have to slow down to a snail's pace to guard against the sort of error of judgment committed by the Defendant on this occasion and that is unreasonable. On the evidence I have concluded that the Defendant drove out of the side road quickly enough to give the motor-cyclist the reasonable impression that he rushed out, and that he did so at a time when the motor-cyclist was so close to the junction that he had no chance of avoiding the collision.

19. Dr Chan is an experienced motorist. He is certainly more experienced that the Defendant. He has a long accident and prosecution free driving record. He was however convicted of careless driving as a result of this accident. His decision to emerge was an error of judgment. He failed to see the motorcycle until just before impact. Night-time requires extra care in observation; the light and environment can play tricks upon the perception. One needs an extra degree of vigilance. It was found wanting on this occasion. He was a frank though mistaken witness. The car which had preceded the motor-cyclist, though at some distance, had obviously cleared the junction earlier. Dr Chan made no mention of such a vehicle but its passing may have given him a false sense of safety in the situation in which he emerged from the side road. There was, it appears from the statement of Mr Lam Pak Nam, traffic on the other side of the road, travelling in the direction of Central. Dr Chan made no mention of this though clearly it was traffic of which he would have to take account in completing his manoeuvre.

20. Mr Lam Wing Kee the motor-cyclist was in my view, a straightforward and honest witness. I think that he was also a careful motorist even if he may have been oversensitive to suggestions put to him that his motor-cycle was a "sporty" machine capable of good acceleration and speed. I am satisfied that he was not riding that machine without regard for other road users or for the safety of himself or his pillion-passenger wife. The independent witness to whom I referred earlier had made a statement to the police. Although he was not called to give evidence, Mr Ismail sought to adduce this statement and Mr Kevin Wong did not object. He described in his statement the Defendant's car moving out from the slip road. He also saw the motorcycle opposite his own position and the collision which resulted. The motor-cycle's speed was very normal and the private car suddenly moved out from the junction. The sketch plan drawn by him is consistent with the position of the vehicles as described in all the evidence. He saw the Defendant's car stop in his lane in front of him. He himself braked and stopped at the side of the road. Mr Lam Pak Nam's statement is good support for the motor-cyclist's evidence if it were needed. In my view there was no negligence on the part of the motor-cyclist.

21. Mr Wong made his submission on behalf of the Defendant with admirable clarity and in an attractive fashion despite his reliance upon the decision of Havers J in Lang v. London Transport Executive, reported in 1959 W.L.R. I should say a few words about that decision. In the 1960's motor insurers frequently referred to and sought to rely upon that decision in negotiations in relation to collisions that had occurred between vehicles emerging from a side road and vehicles proceeding along the main highway, as if it laid down some authoritative principle of negligence or law generally. Some counsel boldly argued it in court. Judges firmly rejected it as laying down any such proposition. A number, in one way or another, called into question its judgment on the facts. (see, for example Sachs LJ in Watkins v. Moffatt 1970 R.T.R. 205.) It has long ceased to be a reliable indicator if it ever was such. It is best consigned to the history books.

22. There will be judgment for the Third Party against the Defendant with costs to be taxed if not agreed.