SOUZA, REINALDO MARIA AUGUSTO DE v. CHEUNG TZE YEUNG & ANOTHER

HCPI 240/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 240 OF 2001

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J U D G M E N T

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Judgement in Third Party Proceedings

1. These proceedings arise from a serious traffic accident in which the Plaintiff was involved while driving a private Nissan Sunny car towards Tai Po along the Tai Po Road at around 3:45pm in the afternoon of 26 July 2000. The Plaintiff was lucky to escape with his life.

2. He was forced to come to a sudden halt when the goods vehicle travelling in front of his vehicle in the middle lane of the carriage way suddenly braked to avoid hitting a carton lying in the road. After his own vehicle had come to a halt, a container truck driven by the Defendant crashed into his vehicle from behind crushing it between the Defendant's container truck and the goods vehicle in front, and pushing both vehicles some distance until the goods vehicle hit a concrete wall which adjoined the road.

3. The Plaintiff's action against the Defendant is for damages for personal injuries. The Defendant claims to be indemnified by the Third Party, who was the driver of another medium goods vehicle from which the carton had earlier fallen.

4. The action between the Plaintiff and the Defendant was settled between them. The terms of that settlement, which was made an order of the court, were approved by the Third Party.

5. The issue in these proceedings has been the respective responsibilities of the Defendant and Third Party for the injuries sustained by the Plaintiff.

6. The Defendant was convicted at Shatin Magistracy on the 4 December 2000 upon his own plea of the offences of (a) careless driving and (b) using a vehicle with a maximum permitted gross weight of 44 tonnes on the road, when its actual gross weight was 45.44 tonnes

7. The Third Party was convicted on his own plea of failing to ensure that his load was properly secured and contained on his vehicle at Shatin Magistracy on the same day.

8. The acts and omissions of the Third Party on the afternoon in question have essentially not been in dispute. The Third party had been delivering cartons containing headphones for a customer from a factory in Fo Tan to a warehouse in Ma Liu Shiu. He had being involved in stacking the cartons onto his vehicle which had been fully loaded. There was a hydraulic platform at the back of his vehicle which, when not in use as a platform, could be moved to a vertical position so as to enclose most of the rear of his vehicle. On the day in question, he had realized that this left an open area at the top of the back of his vehicle from which cartons might fall. He had therefore tied a nylon rope in the form of a horizontal V across this open area to prevent cartons falling out. He agreed with the suggestion that this method of securing the top of the rear of his vehicle was "not very satisfactory" as it left an area on the left side of the rear of the vehicle unprotected and from which a carton might fall. It was not disputed that the carton which had caused the Plaintiff and the vehicle in front of his suddenly to brake (and possibly a second carton which does not appear to have any connection with the accident) must, unknown to the Third Party, have fallen from his vehicle during the course of the journey from Fo Tan to Ma Liu Shiu.

9. Mr Samuel Chan who appears for the Third Party concedes that his client must share some of the blame for the accident but argues that his share is a minor one.

10. The position of the Defendant, primarily at least, is that he should not be held responsible for this accident.

11. The Defendant contents that his pleas of guilty to the two charges in the Magistrates Court were entered out of convenience. In this trial he said that he did not consider he had been careless and that he had not known that his vehicle was overloaded. Indeed he maintained that at the time he had believed that the vehicle had not exceeded its statutory maximum load, having performed calculations based on the approximate weight of the load supplied to him in documents by his employer and by Modern Terminals from whom he just collected the container.

12. His account was that he had been travelling in the middle lane about 15 - 20 metres behind the Plaintiff's private car for about a minute prior to the accident. His speed was about 60 kph. Just before the accident occurred his attention had been focussed on a goods vehicle in the inner lane which was indicating that it intended to move out into the middle lane. He suddenly noticed that the Plaintiff's vehicle in front of him had stopped. In his three previous statements (the first given on the date of the accident to the police and the other two dated the 13 October 2001 and 28 May 2002 for the purposes of this action), he had stated that the Plaintiff's vehicle had already come to a complete halt at the time he noticed it. In court for the first time he maintained that he was not sure if it had fully stopped. He maintained that at the time he first noticed the Defendant's vehicle was stationary he was about 10 metres away from it. He had thought about moving into the outside lane to avoid the Plaintiff's vehicle but seeing another vehicle coming up from behind in that lane, he had applied his brake but had been unable to avoid hitting the Defendant.

13. There was no direct evidence of the Defendant's speed or his manner of driving apart from his own evidence.

14. On his own evidence there can be no doubt that he had been failing to keep a safe and proper stopping distance from the Plaintiff's car. If he was travelling at around 60 kph his shortest stopping distance would have been 35 metres (see p. 46 Road Users Code May 2000 Edition), yet on his account he was originally travelling about 15 - 20 metres from the Plaintiff's car.

15. Bearing in mind the overloading of his vehicle by 1.44 tonnes (albeit by only 3.27%) I consider it probable that the vehicle's shortest stopping distance would have been somewhat greater than 35 metres.

16. In my view, the Defendant's failure to keep a proper stopping distance was a substantial cause of this accident. Both the Plaintiff and the driver of the goods vehicle in front had managed to stop their vehicles without an accident. From the evidence of the driver of the goods vehicle and his passenger, it is apparent that there was yet another vehicle in front of theirs which had managed to change lanes to avoid the carton.

17. The Defendant did not merely just fail to stop in time but must have been travelling at a significant speed to have been able to push the Plaintiff's vehicle into the goods vehicle ahead and then continue pushing both vehicles until the goods vehicle struck the concrete wall at the side of the road.

18. Indeed if the Defendant is correct about his speed and the Plaintiff's vehicle was approximately 10 metres ahead of his when he first saw it stationary ahead, it is doubtful that he can have applied his brake much, if at all, before he hit the Plaintiff's vehicle bearing in mind thinking distance (which the Road Users Code see p. 46 estimates at 15 metres at that speed) and the Defendant's evidence that he looked into his mirror to see if it was possible to move into the outer lane.

19. If that is the case the start of the skid marks caused by the Defendant's vehicle on the road would indicate the approximate point of impact. Those skid marks ran for 48 metres during the length of which the Defendant's vehicle would have been pushing the Plaintiff's private car and the goods vehicle ahead. It is reasonable to assume that the goods vehicle only finally came to rest as a result of hitting the concrete wall.

20. Another very significant cause of the accident was the failure of the Defendant to keep a proper lookout. When questioned by the police as to why he had been unable to brake, he replied "I had been unable to brake because I was looking at the first lane and I did not pay attention ahead. When I pay attention ahead the private car had come to a complete halt and there was not enough distance for me to stop". I do not believe that the Defendant would have repeatedly stated that the Plaintiff's vehicle had already come to a complete halt unless that had been the case. Even if there had been a vehicle in the inside lane indicating its intention to move into the middle lane, the distance between the Defendant's vehicle and the Plaintiff's vehicle and the speed at which they were travelling would make it inherently unlikely that that vehicle would suddenly cut in between them. If indeed there was some additional feature in the manner of driving of that vehicle which led him to conclude that this was a possibility (and there is no evidence of this), he should have braked when he saw the indicating vehicle. The presence of the indicating vehicle if it existed did not provide a reason for diverting his attention solely to that vehicle and for ignoring the Plaintiff's vehicle, particularly in view of the proximity of the Plaintiff's vehicle.

21. I also formed the strong impression that the Defendant's presence in the middle lane at the material time was not simply because he was overtaking another vehicle or vehicles but because he found it convenient to travel in that lane. It was apparent from his answer to a question early in cross-examination regarding the vehicle he alleged was in the inside lane and indicating its intention of moving out into the middle lane, that he did not consider he was overtaking it but rather proceeding in a different lane. He had made no mention in his three statements of being in the middle lane because he was overtaking another vehicle or vehicles. He agreed that he had been in the middle lane for quite some time. Initially he said he could not remember for how long. Later when the significance of the questions must have been apparent to him, he said that he thought it was about one minute. I found that he was probably in breach of his duty to drive his vehicle in the inside lane of the express way save in the circumstances provided in Regulation 12 Road Traffic (Expressway) Regulations Cap. 374.

22. I find also that the overloading of the Defendant's vehicle was a contributing factor to this accident, albeit less significant then the other factors I have mentioned, in that it is bound to have affected to some extent the ability of the vehicle to brake. I found myself totally unconvinced by his evidence of having made his own calculations of the laden weight of the vehicle before the accident. He admitted that he knew that he was likely to be prosecuted for the excessive load at the time his vehicle was weighed shortly after the accident. Bearing in mind the gravity of the accident I have no doubt that if he had been in possession of documentary evidence of the weight of the container as he alleges and that they had shown that he had some justification for believing that the vehicle was not overloaded, he would have drawn those documents to the attention of the police and/or retained them. He did not. Nor were these matters put to the Magistrate in mitigation. I find that the Defendant either knew his vehicle was overloaded or had negligently failed to take steps to find out if that was the case.

23. I also did not believe that the Defendant's explanation that he had pleaded guilty to the offence of careless driving because of difficulty in applying for leave and by calculating his likely fine and the loss of 5 penalty points. Bearing in mind again the gravity of this accident, I do not believe he would have pleaded guilty unless he was well aware of his own negligence.

24. Although it is alleged that the Defendant drove at an excessive speed the evidence from which it might be in inferred that the Defendant drove at an excessive speed such as the skid marks and the distance his vehicle pushed the stationary vehicles in front could be accounted for by his driving too close to the Plaintiff's vehicle and failing to keep a proper lookout.

25. As I have stated earlier Mr Chan for the Third Party has not sought to argue that the Third Party should be absolved from blame for this accident. The Third Party was not entitled to assume that other road users would all exercise a proper degree of care and be able to pull up within the distance ahead that they could see to be clear. It would require the court making a finding of recklessness rather than negligence on the part of the Defendant for the chain of causation to be broken and the Third Party to be absolved from all liability. Mr Chan has not sought to allege recklessness on the part of the Defendant but simply a high degree of negligence.

26. I am satisfied that although the negligence of the Third Party was a contributory cause of the accident, the high degree of negligence displayed by the Defendant was predominant cause of the injuries sustained by the Plaintiff.

27. I have been referred to a number of previous cases by counsel in their submissions regarding the appropriate apportionment of liability in this case, in particular to Rouse v Squires 1973 1QB 889 by Mr Chan and Clift v Hawes (unreported English CA (Civil Division) 24-11-99) by Mr Wu. It must be borne in mind that every case is different and must be assessed on its own facts. Furthermore I do not believe that one can entirely ignore when considering the two cases to which I have been referred that the Court of Appeal were dealing with situations in which the respective trial judges had found no liability on the part of the Third Party (Rouse v Squires) or the Plaintiff (Clift v Hawes). I consider that the negligence of the Defendant in this case was qualitatively wholly different to that the Plaintiff in the case of Clift v Hawes. The Defendant in this case was driving an overloaded container truck much too close to the Plaintiff's vehicle while keeping such inadequate lookout as to the Plaintiff's vehicle's movements that he did not notice anything was amiss until after the vehicle had stopped. Three vehicles, including that of the Plaintiff had either stopped or manage to avoid the carton which the Third Party had negligently permitted to fall into the roadway. The Defendant could at best only have started to brake at or about the time when he collided with the Plaintiff's vehicle. I assess the liability of the Third Party for this accident at 30% and that of the Defendant at 70%.

28. I make the following order nisi as to costs that unless either party applies to be heard on the question of costs within 14 days costs of the Defendant be taxed and paid by the Third Party.