HO KIN WAH v. WONG YIM KWONG AND ANOTHER

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J U D G M E N T

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Clough, J.A. :

1. The appellant, who is the second defendant in these proceedings which arise out of a motor accident, appeals from the order of His Honour Judge Scriven made on the 29th July 1988 requiring her to pay the respondent plaintiff agreed damages in respect of damage to and loss of income from his taxi in the sum of $29,450.20 with costs and dismissing the counterclaim of her husband, the first defendant, for agreed special and general damages in respect of damage to his Mercedes car.

2. Counsel for the plaintiff abandoned the claim against the first defendant at the close of the trial.

3. The plaintiff's claim arises out of a collision which occurred between the plaintiff's taxi and the car driven by the appellant at the entrance to the Excelsior Hotel in Causeway Bay. The plaintiff is entitled to bring the action by virtue of his ownership of the taxi. However the judge accented as a matter of fact and law that Mr. Cheung Wing-chau, the driver of the taxi at the time of the accident, who was not a party to the proceedings, was not the plaintiff's agent, so that the plaintiff could not be vicariously responsible for any negligence of Mr. Cheung causing or contributing to the accident.

4. There is no appeal against this finding which was the basis for the judge's dismissal of the first defendant's counterclaim, and also for his conclusion that any slight degree of negligence on the appellant's part sufficed to enable the plaintiff to establish the full amount of his claim against her.

5. The accident occurred at about 2:30 am. on the 23rd September 1987. The plaintiff's taxi, driven by Mr. Cheung, had been travelling in a westerly direction along Gloucester Road and turned left towards the Excelsior Hotel to pick up a fare. It was struck by the appellant's husband's car which had been travelling in the same direction. The taxi sustained extensive damage on its near side which can be seen in the photographs extensive at the trial. The only evidence of the damage to the car is the estimate or invoice for the cost ($4,500) for work on the front of the car including the removal and reinstatement of the front bumper.

6. The witnesses concerning the circumstances of the accident were confined to the drivers of the vehicles whose versions conflicted. Mr. Cheung's evidence was that he entered Gloucester Road from Paterson Street where he had set down a passenger. When he entered Gloucester Road he could not pick up a fare because there were double yellow lines. He did not intend to drive into the Excelsior Hotel but to so on into Cannon Street. This involved taking the inside lane in Gloucester Road. According to him he was in the inside lane when he entered that road and remained in that lane. He described the weather as drizzling.

7. He said that as he approached the traffic lights near the Excelsior he saw them. change from green to amber and :that when he saw the lights change his intention was to slow down and stop at the lights. He was therefore travelling slowly. At this stage, according to his evidence, before he reached the entrance to the Excelsior, he saw a woman running from the main entrance of the hotel and hailing his taxi. He put his left indicator on and turned towards the woman. He was travelling slowly and had to pull over to the right as he did so because there were plastic cones in the entrance.

8. He marked on a plan of the scene the position (in the inside lane of Gloucestor Road and opposite the driveway into the Excelsior) where he said the taxi was when he first saw the woman who hailed him. He said that he did not notice any traffic behind him other than a public light bus in the middle lane, he did look in his rear mirror but did not see the Mercedes car behind him as it was drizzling and his rear window was not clear. He explained that his second driver's mirror was on the right side and he could only use it to see traffic on his right hand side.

9. According to Mr. Cheung he was about to stop his taxi as it approached the running woman when she seemed scared and jumped back and he heard a hang from behind his rear wheel and his mudguard was damaged. He said he was about to turn when there was another bang on the front door of the taxi. He maintained that after the first impact his taxi had stalled and swung to the left to receive the second impact on the front door. It all happened too fast for him to see which part of the Mercedes car struck the taxi.

10. Mr. Cheung marked on the plan the place and positions where he said the vehicles were at the time of impact. He showed his taxi as being on the further or westerly side of the slip road affording access to the Excelsior at right angles to the pavement of Gloucestor Road and its traffic lanes, with the Mercedes car at an angle of 45 decrees striking the nearside rear wing of the taxi with the car's offside wing. He said that on impact two thirds of his taxi was on the slip road and one third on the pavement line. He described how the car reversed away and said he had difficulty in getting out of his taxi because he was blocked by a pillar which he marked on the plan.

11. The appellant's version of the accident was that before the accident she had been driving at 25 m.p.h. in the inside lane of Gloucester Road. There were no vehicles immediately in front of or behind her car but she noticed the taxi driving in the middle lane at about the same speed as her car. Her evidence was that she noticed the taxi just past the junction with Paterson Street. She said she was a little behind the taxi and the front of her car was close to the front door of the taxi. Under cross-examination she said the two vehicles were nearly abreast.

12. According to the appellant she had almost reached the slip road leading to the Excelsior when the taxi suddenly put out its indicator and cut in from right to left in front of her car, so that although she braked only a few seconds before impact her car struck the front door of the taxi on its left side. She marked the. position of the vehicles on the site plan showing them as being at the time of impact in the nearside lane of Gloucester Road,  just short of the entrance to the Excelsior slip road, with the nearside front door of the taxi being struck by the offside wing of the car.

13. She insisted that her car never entered the Excelsior slip road and said she could not have parked on the pavement because there were railings and plastic cones. After the accident she had, she said, braked and stopped in Gloucester Road whereas the taxi continued into the Excelsior slip road and came to a halt at a position she indicated on the site plan a little further in to the slip road from the position marked by Mr. Cheung on his plan as the position of impact.

14. Under cross-exaimination the appellant said that after her car had bumped the door of the taxi it had continued so that damage extended to the rear of the taxi. It was put to her in cross-examination that the taxi had in fact been turning slowly from the inside lane and that she had also turned into the Excelsior slip road and collided with the taxi in that road in two humps. She insisted that this was not the case and repeated that the taxi had moved forward after her car bumped the front door of the taxi.

15. Faced with this conflict of evidence between Mr. Cheung and the appellant the judge concluded that both drivers were equally to blame for the accident, Mr. Cheung for turning suddenly and without due warning to his left towards the Excelsior Hotel and the appellant for driving too close to the taxi to be able to pull up.

16. In arriving at this conclusion the judge decided the issue concerning the position of the collision in favour of the the plaintiff. He observed that he had come to the conclusion that the taxi in all probability had been in or near the nearside lane, since he had just turned out of Paterson Street (which is very near to the Excelsior Hotel) and that the appellant's vehicle had been following in "about" the same lane. He also found that when the taxi had braked suddenly and turned to its left without adequate warning it had forced the appellant's following car to try to turn with it to avoid the collision.

17. Having found these faces the judge concluded that the appellant was equally to blame for the accident because, as he put it:

"A following vehicle must of course remain at a distance at which the driver is able to deal with foreseeable emergencies and taxis outside the Excelsior are likely to turn into the hotel."

18. On appeal the judge's decision has beep attacked, both on issues of fact and law. As regards fact the appellant contends in substance that the judge's decision that both the vehicles were in or near the nearside lane before the taxi's fatal turn to the left, that the appellant's following vehicle had followed too close behind the taxi to pull up in time and that the appellant's vehicle had turned with the taxi to the left to avoid a collision, were contrary to the weight of evidence.

19. I have found difficulty in reconciling all the Judge's findings of fact, but I consider that it is not necessary for the purposes of this appeal to decide whether the findings attacked in the initial grounds of appeal are or are not sustainable because, in my judgment, the last ground of appeal must succeed.

20. On the appellant's behalf Mr. Wong has contended that as a matter of fact and law the judge erred in holding that the appellant was negligent and equally to blame with Mr. Cheung for the accident in that there was no evidence upon which the judge could properly find that the appellant had failed to exercise reasonable care in all the circumstances of the case.

21. Mr. Wong has cited to us a number of authorities in support of the proposition, which I accent, that notwithstanding the evidential value of breaches of the Road Users Code, there is no rule of law which imposes an absolute duty upon a following driver to keep a sufficient distance from the vehicle in front of him to allow for every possible emergency. The standard of care to be expected of a following driver for purposes of civil liability must depend on the circumstances of the particular case and must be only such as to enable the driver to deal successfully with all traffic exigencies reasonably to he anticipated.

22. It suffices to cite as authority for this proposition the following dictum of Lord Cooper in the Scottish case of Brown & Lynn v. Western S.M.T. Co. Ltd. (1945) S.C. 31 at p. 35 which was applied by Lord Widgery in Scott v. Warren (1974) R.T.R. 104 (C.A.) at p. 107:

"We were urged in the course of debate to substitute our own definition of the limits of a following driver's duty, and even to prescribe the proper interval at which successive vehicles should keep station when travelling in a city street. I am not prepared to do so. The distance which should separate two vehicles travelling one behind the other must depend upon many variable factors - their speed, the nature of the locality, the other traffic present or to be expected, the opportunity available to the following driver of commanding a view ahead of the leading vehicle, the distance within which the following vehicle can be pulled up, and many other things. The following driver is, in my view, bound, so far as reasonably possible, to take up such a position, and to driver in such a fashion, as will enable him to deal successfully with all traffic exigencies reasonably to be anticipated: but whether he has fulfilled this duty must in every case be a question of fact, just as it is a question of fact whether, on any emergency disclosing itself, the following driver acted with the alertness, skill and judgment reasonably to be expected in the circumstances."

23. In the present case I consider that the judge applied too stringent a test, amounting almost to a counsel of perfection when he held that the appellant as the driver of the following vehicle was in breach of her duty of care when she failed to avoid the accident. He had made no finding adverse to her evidence that both vehicles were travelling at 25 m.p.h. before the accident and there was no evidence of the actual distance between the vehicles before the accident.

24. The judge found that the taxi hare:

"... slowed rapidly and pulled to his left to enter the Excelsior Hotel without ensuring that his signal of his intention to do so was seen by any driver affected thereby,"

He also held that having spotted a fare late at the Excelsior Hotel Mr. Cheung had "undoubtedly made a sudden and unpremeditated turn to his left."

25. Applying the test of Lord Cooper to such circumstances it seems to me that it was not reasonably to be expected of the appellant, as she drove her car at 2:30 a.m. along Gloucester Road which has a double yellow line restriction, that a taxi in front of her would make a sudden 90 degree turn without warning into the Excelsior slip road and that she should therefore drive at a speed and at a distance from the taxi which would ensure that she could avoid collision in the event of such extraordinary driving by the taxi driver.

26. The judge seems to have in effect equated the failure of the appellant to avoid the collision with negligence on a res ipsa loquitor footing once he had decided that her car was the following vehicle. In doing so I consider that he went too far and applied too stringent a test which he probably would not have adopted had he had the benefit of the citation of the decisions which were cited to this court.

27. Accordingly I conclude that in all the circumstances, even if the appellant's car was rightly held to have been the following vehicle, no liability in negligence in any degree attaches to the appellant. I would therefore allow this appeal.

Cons, V.-P. :

28. I agree with all my Lord has said and I too would allow the appeal.

Kempster, J.A. :

29. I also agree.