WU YUK LING v. LEUNG MAN LAI

HCPI314/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES NO.314 OF 1998

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J U D G M E N T

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1. This case arises out of a road accident which occurred on 4th December 1996 at about 10:15 p.m., in Junk Bay at the junction of Po Lam Road North and a minor road. Po Lam Road North is a dual carriage way with a central reservation. The east-bound carriage way goes towards Hang Hau and the west-bound towards Kowloon. The reservation is slightly raised above the carriage way surface and there is a railing running along it. The accident happened at an intersection. At the end of the reservation, there is a light box or bollard, then a lamp standard, and then the railing begins.

2. It is not in dispute that the Plaintiff crossed the east-bound carriage way from the north side. She stood on the central reservation beside the light-box, waiting for traffic to clear on the west-bound carriage way. The Defendant's private car, registration number FR106, which was travelling on the east-bound carriage way, and driven by the Defendant himself, left the carriage way and mounted the central reservation, knocking down the Plaintiff from behind.

3. The Plaintiff was with her two young sons, who were also injured in the accident. They had alighted from a bus further along the east-bound carriage way, and had walked back so as to cross at the junction, going towards Po Lam Estate where they lived. Between the bus stop and the junction, there is a pedestrian footbridge crossing Po Lam Road North.

4. The Defendant's case is that his car was proceeding along the second lane of the east-bound carriage way. There was a green minibus proceeding along the first lane. It, suddenly and without any signal or warning, cut from the first to the second lane, creating an emergency. The Defendant braked and swerved right to avoid collision with the minibus but could not avoid colliding with the central reservation and knocking down the Plaintiff. Accordingly, the accident occurred without negligence on his part.

5. The Defendant also pleads contributory negligence on the part of the Plaintiff for failing to keep any or any proper look-out or to have sufficient regard for her own safety when standing on the central reservation; failing to pay any or any sufficient heed to the presence of the Plaintiff's vehicle; and failing to cross the road by the footbridge.

6. The Plaintiff herself did not see the Defendant's vehicle which came from behind her. She cannot gave evidence as to what might have caused the accident. Counsel for the Plaintiff relies on the maxim "res ipsa loquitur"; in other words he argues that the action of the Defendant's vehicle in leaving its own carriage way, mounting the central reservation, knocking down the light box which was mounted on it and the pedestrians who were standing on it is prima facie evidence of negligence on the Defendant's part. This is an evidential presumption and the question is whether the Defendant's evidence rebuts it.

7. The Defendant says that, having stopped his car at a set of traffic lights, two intersections away from the place of the accident, he started off when the light changed to green and accelerated to about 50 k.p.h. His car was in the outside or second lane of the carriage way. There was a green minibus in the first lane, which also started off when the light changed to green. The minibus went a little faster and pulled ahead so that its rear was just ahead of the front of the Defendant's car. At the intersection, the minibus suddenly cut diagonally into the second lane in front of the Defendant's car, at a sharp angle. He was forced to swerve to the right to avoid it. He braked hard. Nevertheless, the car went straight to the central reservation area and knocked down the light box and the pedestrians.

8. The Defendant in Court demonstrated by using two books that the rear of the minibus had been just ahead of the front of his car when it cut in. He estimated that when the minibus swerved its rear was about two metres ahead of the front of his car.

9. He said that after the incident, the minibus continued ahead, then pulled over to the left lane and stopped at the bus stop further along, the same bus stop from which the Plaintiff had come.

10. The Defendant said that he did not know why the minibus cut in. There was no vehicle or other obstruction in front of it, and no vehicle coming out of the intersection. The only vehicle present, as appears from cross-examination, was a taxi which was standing in the turning lane of the west-bound carriage way, waiting to turn across the east-bound carriage way. The minibus gave no signal or warning before it cut in.

11. The Defendant said that his car left skid marks three feet long on the surface. The investigating police officer had seen them but had declined to record them. He marked the position of the skid marks on a photograph of the scene, but that was of little use because even if the skid marks existed their position could only be shown approximately on a little photograph. I have to say that it seems extremely unlikely that if skid marks existed, the police officer would not have included them in his sketch. This sketch is in fact an agreed document.

12. The Defendant was cross-examined at length. He said that he and the minibus had started off together at the lights, the minibus was going faster but he could not say how much faster. It was put to him that if that were so, it would have been well ahead of him by the time he reached the scene of the accident, but he disagreed with that. He explained that the two vehicles had been going at more or less the same speed until they reached the scene and then the bus had tried to pull out.

13. He also said, in re-examination, that notwithstanding the fact that the police sketch was agreed, and clearly shows his car resting partly on the central reservation, it had not in fact gone on to the central reservation.

14. The Defendant gave his evidence in a calm and measured manner. His demeanour appeared good. But inherent probabilities and improbabilities are more important than demeanour, and so is inconsistency. When one considers what the Defendant said rather than how he said it, his story seems improbable.

15. The Defendant's account of the sudden cutting-in by the minibus is inherently improbable given the fact that there was no other traffic on the same carriage way, nor any other obstruction which might have caused it to cut in. This is not to say, of course, that it could not have happened, but it is not likely.

16. The Defendant's account of how his vehicle and the minibus got to the scene is rather inconsistent. At first he said in effect that the minibus was going faster than his car, all the way from the traffic lights. The distance, as may be observed from the photographs, is quite far. One can count four lamp standards apart from the one at the western end of the intersection, and the point identified by the Defendant is well beyond the fourth. He said that the lights were two junctions away. Given this distance, it is obvious that even if it only went a little faster, the minibus could be expected to be quite far ahead of the car by the time both vehicles reached the scene.

17. The Defendant sought to explain this away when it was put to him by saying that they were more or less together at first and then the minibus accelerated. This inconsistency causes me to doubt the accuracy of the Defendant's evidence.

18. Whether the minibus accelerated away from the car at the lights, or whether the two traveled abreast and it accelerated later, on the Defendant's evidence, it must be taken that when the minibus cut in, it was either going faster than the car or going at the same speed. He does not say that it slowed or gave any indication, such as by brake lights, that it was to do so. The Defendant says that it was about two metres ahead. This is about half the length of a medium-sized car.

19. It is far from unknown for one vehicle to cut suddenly in front of another at 50 k.p.h., going at the same speed or faster, so as to leave a space of only half a car's length. One can observe this kind of driving commonly enough on the roads in Hong Kong. It is obviously not the action of a careful driver to do this. It may well startle the following driver. But if he is properly alert and keeping a proper lookout there is no need for him to swerve, because so long as he is going at the same speed or slower than the front vehicle, there is nothing to avoid. A simple braking action will allow him to fall back to a safe distance. This, therefore, also seems to me to cast doubt on the accuracy of the Defendant's evidence. So, incidentally, does his attempt to contradict the police sketch which he had already agreed.

20. I conclude that I am not satisfied that the incident happened in the manner described by the Defendant. I cannot be clear as to how it happened. Therefore, I cannot find that he has rebutted the evidential presumption of negligence.

21. Though this was not specifically canvassed, I am not clear why the Defendant's car should have been in the outer lane at all. Generally a driver should use the left lane except when overtaking. This advice is contained in the Road User's Code, issued under the Road Traffic Ordinance, and is in any event something that every driver is taught from the very beginning. There is no evidence from the Defendant that he was doing any of these things. If the minibus was pulling ahead of him, his proper course was to drop back and take the left lane behind it. It would not be prudent or even necessary, on a clear road, for him to drive along in the right lane abreast of the minibus. He should either have overtaken or dropped back into the left lane.

22. It seems to me that if the two vehicles had been going along, abreast or nearly abreast on a clear road, and the minibus had cut into the right lane so as to cause a collision with the car, the Defendant would have been open to a finding of contributory negligence on the basis that his car was not overtaking, turning or passing parked vehicles and should not have been in the outside lane.

23. It would follow that even if the incident happened in the manner described by the Defendant he was still negligent to some degree in driving his car in the outer lane.

24. I will deal with the contributory negligence point. It is quite clear from the Plaintiff's own evidence, and it is not disputed that when the accident happened, she was standing on the raised central reservation. She had already crossed the east-bound carriage way. She was not in a hazardous position. She was entitled to expect that no vehicle, properly driven, would mount the reservation and knock her down. She was watching the traffic and waiting for an opportunity to cross the west-bound carriage way safely and there was no reason for her to keep a look-out for vehicles in the east-bound carriage way. In any event, there was absolutely nothing she could have done to avoid the accident even if she had seen the Plaintiff's vehicle coming.

25. As to the footbridge, the Plaintiff said that she did not use it because there was work going on it and hoarding round the work site. She would normally have used it, it was not quicker to cross at the road junction. The bridge was in use and she thought that she could have crossed it, but there were no lights on the bridge and it was very dark. Also the hoarding were blocking the entrance to the bridge stairs.

26. I do not see that it would, in any event, be the Plaintiff's duty always to use the footbridge. If she could cross safely on the ground she was free to do so. Cf. Tremayne v. Hill [1987] RTR 131. But, in any event, in the circumstances she describes she could hardly have been expected to use the bridge. If she could have got on to it past the hoarding which is not clear, she would have had to pick her way through a work site, with no lights. She would have put herself in danger.

27. I conclude that there was no contributory negligence on the part of the Plaintiff.

28. The Plaintiff's claim must succeed on liability. Quantum is agreed at $223,737.40. Judgment in favour of the Plaintiff for $223,737.40 with interest thereon at the judgment rate until payment and costs to be taxed if not agreed. The Plaintiff's own costs to be taxed in accordance with the Legal Aid Regulations.