FU SUI YU v. WONG MAN KEE AND OTHERS

1985, No. A3060

IN THE HIGH COURT OF JUSTICE

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JUDGMENT

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1. The plaintiff's claim against the defendant is for damages in a running down case. The traffic accident occurred at about 1.25 p.m. on the 2nd January 1983.

2. At the commencement of this action, it was agreed that liability was deemed to have been proved by the plaintiff with no possible contributory negligence on her part, and quantum was set at $200,000. Nothing turns on the relationship of the 1st and the 2nd defendants. In consequence, it was a contest between the 1st and the 2nd defendants on one hand and the 3rd defendant on the other.

3. At the time of the accident, the plaintiff was injured by a taxi driven by the 3rd defendant. On the allegations of the 3rd defendant, the 2nd defendant as driver of a van was implicated; hence, the 1st defendant was also involved. With the plaintiff's cause of action duly conceded and the quantum agreed, for the purposes of having all matters fully adjudicated between the 1st and the 2nd defendants and the 3rd defendant, an issue was framed in very broad terms as follows:-

                "Who is liable to pay the agreed damages and costs and to what extent?"

4. Counsel for the 1st and 2nd defendants was, by agreement, to open on facts. It was so ordered by consent. The burden of proof was not then specifically settled. It was only slightly later in these proceedings that it was ordered that the 1st and 2nd defendants do carry the burden of proof in the framed issue as if they were plaintiffs.

5. Those are the preliminaries. As far as the facts are concerned, they could not be simplier. On the day in question, along Tong Mei Road near the Bedford Road, the taxi driver ran his taxi into the central railings, denting and damaging posts and in the course of that the plaintiff was knocked down. At the material time, the van driven by the 2nd defendant was travelling along the same road, with the taxi on the 4th lane, the van driven by the 2nd defendant in the 3rd. I should really set the scene with more particularity, in which the accident arose.

6. Ahead in Tong Mei Road, there were the traffic lights, red against both the taxi and the van. Stationary in front in the 3rd lane were four vehicles and stationary in front in the 4th lane was one. Just before the accident, the taxi and the van were both approaching these stationary vehicles towards the traffic lights in the 4th and the 3rd lanes respectively. The lights changed, the stationary vehicles moved ahead, the taxi and the van followed. As far as the van is concerned, I was told that the driver hesitated, reducing its initial speed of 20 m.p.h. down to 10 but that with the vehicles in front moving with the traffic signals in favour, it picked up speed again to 20 m.p.h. According to the 2nd defendant, he had intended to go to the 4th lane, turned on his, I am told, trafficator, but he had second thought and stayed on in the 3rd lane. The 2nd defendant told the court that after he had passed the traffic lights, he heard sound of an impact. As he had a hand-cart in his van, thinking that it might have overturned, he slowed down. Just as he was assured that the hand-cart eras in proper position, he noticed that the taxi driver had alighted from the taxi running from behind in his direction. He told the court that he was intercepted, but the evidence given in this regard was not quite clear as to whether he was physically intercepted or shouted to stop. But in any case, he stopped and subsequently, so he claimed, pulled into the 4th lane. According to the 2nd defendant, the taxi driver accused him for having attempted to and did in fact cut into the 4th lane causing an accident whereby the victim was hurt. To this accusation, he violently denied.

7. The taxi driver also gave evidence, his was a different version : He was travelling in the 4th lane at 26-27 m.p.h. and suddenly without warning, the van cut into his path 20 odd feet from the white stop line. He slammed on his brakes and swerved, ramming into the central railing, injuring the plaintiff. After the accident, he immediately notified the police on the phone. When he returned to the scene of the accident, he was approached by a very frightened 2nd defendant. Thereupon he accused the 2nd defendant of having cut in and caused the accident. The timing of such accusation was not very specific. It seems that he testified in this court, he accused the 2nd defendant in the presence of the traffic policeman, but before the Magistrate, it would appear that he said he accused the 2nd defendant in the absence of any police officer. Nothing much turns on this aspect.

8. After the accident, different versions were given by the 2nd and the 3rd defendants with the brother of the 2nd defendant corroborating his. The police chose to have the 2nd defendant prosecuted. It has never been suggested throughout these proceedings, and I think quite rightly, that the police exercised their discretion in this matter other than properly. The 2nd defendant appeared before the learned magistrate by whom he was found guilty. The plaintiff was one of the prosecution witnesses; so was the taxi driver. The brother of the 2nd defendant, who had given a statement to the police, was not called either by the prosecution or the defence.

9. The plaitiff apparently felt and still feels aggrieved. That is understandable. She must have sustained dreadful injuries. She voiced her disatisfaction that she had been marked for life and the driver received merely a fine. She was on the point of tears when she gave evidence in this court. She was particularly displeased with and was unable to understand why the van driver, instead of the taxi driver was being prosecuted. Afterall the culprit, as far as she is concerned, was the person who directly caused her suffering. She was quite frank and protested in this court that she was surprised at the result of the magistrial trial in which the wrong man was convicted and punished. She came to this court and she gave her version of the incident. She was knocked down and injured on that day. She told the court that she did not see any van, that the taxi was travelling faster than the other vehicles and that she was absolutely sure there was no vehicle passing in front of the taxi. She also told the court that the taxi driver immediately left his car and ran after another car. To her evidence, I shall later return.

10. Perhaps it is convenient for me to give the facts which in my view, are sufficient to found the conclusions I have reached in favour of the 3rd defendant. First, there was no conceivable reason why the van should slow down and stop unless the 2nd defendant was conscious of his involvement in an accident. The 2nd defendant was hard put to offer some explanation. He told the court that he slowed doom because of his anxiety that the hand-cart carried in the van might have overturned. That obviously could hardly be a sensible excuse for a van driven in a road such as the Tong Mei Road in Hong Kong so to slow doom and subsequently stop. He was almost immediately reassured as to the hand cart, but he slowed down for a significant period so as to be "intercepted'. The proper inference to be drawn is, in my opinion, that the 2nd defendant must have realised that he had caused the traffic accident a little behind the junction. Secondly, granted that there was some dispute about the length of the skid marks, but be that as it may, these skid marks were left  by emergency braking was not a fact disputed by any of the defendants. If, in fact, nothing untowards had ever happened, it would have been quite improbable for the taxi driver to apply his brake with such ferocity. Either with or without sufficient time to regain his composure after the accident -I do not regard that as a matter of great importance - with the taxi having rammed into the central railing and the plaintiff lady bleeding in her abdomen in the middle of the road or the central island, there would still be hardly time enough for anyone to manufacture facts and raise false accusations. The accusation was serious and, if untrue, would likely draw unpleasant retaliation. According to the plaintiff, the taxi driver immediately ran to the van. The plaintiff might be mistaken but that is what she said, and the inference from that must be that the taxi driver obviously felt that he had a score to settle. The undisputed fact is that the taxi driver did, soon after the accident, accuse the 2nd defendant of having cut in and caused it, even though according to the taxi driver, the 2nd defendant remained silent and according to the 2nd defendant, he denied the accusation. Fourthly, we have a conviction before the learned magistrate. That the taxi driver was not singled out for prosecution by the police is not a matter of any relevance. But the 2nd defendant was prosecuted and found guilty by the learned magistrate. He described vaguely certain steps or measures taken with a view to seeking a review or an appeal. Be that as it may, the conviction now stands.

11. It is encumbent upon the 2nd defendant to show, upon the balance of probabilities, in these proceedings why I should not place any reliance on that criminal conviction against the 2nd defendant. The learned magistrate returned a verdict of guilty after a singularly precise judgment, "Proved". But as I understand it, magistrates would give full reasons upon due service of a notice of any intended further proceedings. I have not been shown any Statement of Ressons of the learned magistrate who has given none and quite rightly so. This is not a court of criminal appeal.

12. In addition to other difficulties, Mr. Lau, counsel for the 1st and the 2nd defendants, was saddled with the task of not only having to criticize the decision of the learned magistrate blind but to persuade this court, in the absence of such Statement of Reasons, that his verdict is unsafe and unsatisfactory and ought not to be relied upon. At one time, counsel conceded that there was sufficient evidence to found the conviction, but then at other times, Mr. Lau would seem quite undecided. Counsel referred me to, first of all, the evidence of the taxi driver. Counsel directed me to the measurement of 9.6 m. of the skid marks plus the estimated thinking distance given by Dr. Lingard as 8 m. Therefore, so counsel concluded, from the time when there was a need to slam on the brake of the taxi to the time it actually stopped, there was some 18 meters from the white stopping line before the traffic lights. The taxi driver told the court that he first saw the van from 20 odd feet behind the white stop line. Hence, Mr. Lau on behalf of the 1st and 2nd defendants argued : The taxi driver was miserably inaccurate and with that being the basis on which the learned magistrate allegedly relied, the whole conviction must therefore be unsafe and unsatisfactory. I know not how the learned magistrate reached his conclusion and what evaluation he had made. It is neither here nor there to say that I would have reached the same conclusion except perhaps with a little more to say about the defence put up by the 2nd defendant. But the learned magistrate found the case proved and his reasons have yet to be known. It is highly undesirable for a defendant to choose not to seek vindication under the criminal procedure thus depriving himself of the Statement of Reasons and yet come to a civil court on monetary liability to condemn or criticise the reasoning of a magistrate. That is speculation in the extreme.

13. Counsel also submitted that there are holes in the evidence of the prosecution case to make the verdict of guilty of careless driving returned by the learned magistrate against the 2nd defendant completely insupportable. I see no substance in counsel's submission in that regard.

14. I am not persuaded by the evidence, on the balance of probabilities, that I should refrain from relying on the conviction of the 2nd defendant.

15. Mr. Pirie also attacked the 2nd defendant on account of his credibility, or shall I say the lack of it. Counsel submitted that apart from all these unsatisfactory aspects of the case of and for the 2nd defendant, the 2nd defendant had made no effort in securing the attendance of his brother who had given a statement to the police, before the learned magistrate. It is true that the 2nd defendant maintained that he was not legally advised, but under the able guidance of Mr. Lau, counsel for both the 1st and the 2nd defendants, this court has also been deprived of the opportunity of having the police statement given by the 2nd defendant's brother properly tested. The statement of the brother of the 2nd defendant as appears at pages 22, 23 of Bundle A, (of course, I refer to the certified translation), in substance corroborates the version of the 2nd defendant, but he gave a very interesting reply to a question asked of him by the police. He was asked point blank by the police officer as to whether the van had cut into the path of the taxi Registration No. CA7342 in the 4th lane. To that question, he replied: "I do not know".

16. For all these reasons, it cannot be really doubted that the 2nd defendant did abruptly cut into the path of the 3rd defendant thus causing him to brake violently, swerve in panic and uncontrollably ram into the central railings with the result of injuring the victim. He, I find, must be the person wholly responsible for the damage. Measures taken by the 3rd defendant in the emergency are, in the circumstances, justified, and such instantaneous action taken as a matter of natural reaction to the unexpected on the part of the 3rd defendant cannot, in the circumstance, attract any contributory negligence. That would be sufficient for my decision. But less I should be taken as being incomplete, I think I have to say a word or two about the various submissions advanced on behalf of the 1st and 2nd defendants by Mr. Lau.

17. I think I have said enough about the conviction of the 2nd defendant before the learned magistrate. I hardly need say any more.

18. My attention was drawn by Mr. Lau to the plaintiff's evidence that there were no vehicles seen passing in front of the taxi. Consequently, there could be no cut in. Mr. Lau submitted that that alone would cast doubts on the assertion of an abrupt cut in by the 2nd defendant, the van driver. The plaintiff did also say that she saw the taxi change lane from the middle. But she did not hear the screeching sound of braking, and she even offered an explanation that the taxi did not brake because the driver was in a panic; nor did she notice the 2nd defendant's van. She also did not see any van stop after the accident. When she was pressed for a more damaging answer : "And it is right, is it not, the changing lane of this taxi was not affected by any vehicle in front of it?", she said: "That I am not clear. What I saw was the taxi rushed very fast towards central reservation and hit the central poles, and as a result, it bounced onto the reservation and hit me." She also did not refute the suggestion that she did not have "a particularly clear recollection of the accident" and was confused. She merely replied: "Anyway, it was the taxi which hit me. I know nothing about the others. This is a deep impression in ml mind." In the situation she was put, the plaintiff could not possibly be expected to observe or be aware of all the surrounding circumstances. Mr Lau further submitted that with the speed of the taxi being faster than that of the van, any attempted cut in must involve a collision between the two vehicles. Counsel relied on (1) Dr. Lingard's estimate for the taxi at 33-35 m.p.h. or 24 m.p.h. 4 meters from the white stop line and 21 m.p.h. 2 meters away, and (2) the van driver's estimate of his own speed of 20 m.p.h. Counsel further referred to the plaintiff's evidence that the taxi was faster than the others. However, the plaintiff did not see the 2nd defendant's van, and her evidence would be of no assistance on this aspect. Counsel submitted that since there was no collision between these two vehicles that day, there could not have been any cutting in. All this must depend on how true or accurate an estimate the van driver gave of his speed. I am not prepared to give much credence to his estimate. Afterall, even the taxi driver claimed that his speed was merely 26-27 m.p.h. Much would also depend on any margin of error in the Dr's calculations. Suffice it for me to say that the inference which I have been invited to draw by Mr. Lau cannot be very inviting on account of such laymen's and mathematical reconstructions.

19. Mr. Lau further submitted, again on Dr. Lingard's postulated speed for the taxi i.e. about 33 to 35 m.p.h. before it started to brake, about 24 m.p.h. four meters from the stop white line and 21 m.p.h. 2 meters away, and on the van driver's estimate of 20 M.p.h., that with 10 feet in between as estimated by the taxi driver, the taxi would have crushed into the middle of the van if there had been any attempted cutting in. Again, there might be substance in counsel's conclusion if we accepted the estimated speed of the van driver of 20 m.p.h. as deadly accurate. The taxi driver stated at page 24D of the Agreed Bundle that he had already started to brake and swerve at 10 feet. He said : "When I did this I was 10 feet away and he had cut across. He had entered at an angle." The taxi driver was less specific in his cross-examination, but he also mentioned 10 feet. If the taxi driver had managed to brake, it cannot be convincingly demonstrated that he could never have avoided a collision. In this sort of traffic accident cases, most of the information, particularly that in relation to speed can only be estimated or postulated. It is not an exact science. Therefore, in the end, I find myself equally unimpressed with counsel's submission.

20. Counsel also referred the court to the very straight skid marks left by the taxi. Counsel concluded that the taxi could not have swerved. That postulation can only be justified by the assumption that the two reactions, swerving and braking, though taken simultaneously, must necessarily result in some initial swerving. One can appreciate that actions taken in emergency, thought to be simultaneous, may be in succession, sometimes one after the other and another time, braking before swerving. In fact, the taxi driver said that he braked and then swerved. I can attach no real significance to this analysis of counsel.

21. Again, it was contended that since the skid marks as drawn did not come right up to the rear of the stationary taxi, the taxi driver must have negligently failed to continue to keep his foot on the brake, thus in consequence allowing the taxi to accelerate and swerve causing the accident. But the taxi driver maintained that he had kept the brake pedal down from start to finish and that the taxi stopped in 3rd gear with a dead engine. The 3rd defendant further explained that he did not particularly examine the drawn skid marks at the time although he signed the sketch as correct. He claimed that the skid marks started right from behind the stopped taxi. In the Magistrates, Court, the police officer said that he "measured from the rear of taxi". Before me, his evidence was brief but he said that the skid marks were 0.8 meter from the white stop line. The policeman said that the skid marks were not drawn to scale. He was not cross-examined on this or his evidence before the learned magistrate. Even if the 3rd defendant taxi driver had unwittingly lifted his foot off the brake, I could not find him negligent. In any case, I do not find the drawn skid marks of any real assistance. There was also an attempt to attach some negligence to the taxi driver for not looking at another lane. What he said, in essence, was that he concentrated on his driving and paid no particular attention to the 3rd lane. That is not failure to keep a proper lookout.

22. The matters to which my attention was drawn on behalf of the 2nd defendant may not be wholly or satisfactorily explained despite my attempted analyses, but those on which I have relied are so over-whelmingly against the 2nd defendant that none of these other matters has, in any way, affected the conclusions I have reached in favour of the 3rd defendant.

23. In the circumstances, it remains for me to grant judgment to the plaintiff in the agreed sum of $200,000 against the 1st and 2nd defendants. Costs of these proceedings for the plaintiff and the 3rd defendant be paid, subject to what Mr. Lau has to say, by the 1st and 2nd defendants.

24. Mr. Lau has refrained from addressing this court on the question of costs, in particular costs proposed to be awarded in favour of the plaintiff. Therefore I make an order in terms as proposed. I am informed by counsel for the plaintiff that the $200,000 agreed is a sum inclusive of interest.

25. I intimated that I would reduce my oral judgment into writing with full reasons, which I now do.