YANG YEE MAN, THE ADMINISTRATRIX OF THE ESTATE OF LAM LOK KIN, DECEASED v. LEUNG HING HUNG

HCPI 443/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 443 OF 2010

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J U D G M E N T

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1. These proceedings involve contribution claims made by the defendant against the 1^st and 2^nd third parties. The proceedings arise from an accident that occurred at about 1:20 pm on 31 August 2007 in the car park at the Tai Pei Public Square Car Park in Tsuen Wan. The defendant was driving a medium goods vehicle at the time and turned into the northeast bound driveway of that car park where he stopped to take a look before proceeding further. He then tried to make a right turn but found that he had insufficient space to do so. He drove his vehicle in reverse before proceeding onwards and, in the course of making the right-hand turn, caused the side guard on the offside rear of his vehicle to strike and knock down a parking sign post. The sign post fell over and, unfortunately, struck the head of Mr Lam Lok Kin, who happened to be at the vicinity of the sign post at the material time, and caused him serious injuries from which he subsequently died.

2. On 14 December 2012, I struck out the defence of the defendant and entered interlocutory judgment for damages to be assessed against the defendant on the ground that the defence was frivolous and vexatious.  Given the defendant’s careless driving conviction in respect of the occurrence and the absence of a plea that the conviction was erroneous, I concluded that the defence was obviously unsustainable, particularly having regard to the evidence of his own expert witness, Mr Timothy Runnacles, who had stated in his report dated 3 January 2009 that :

“The defendant cannot avoid some responsibility for the accident that killed Mr Lam Lok Kin. He was driving the vehicle that caused the traffic sign pole to fall. If he had started the right turn from a somewhat different position and if he had been paying greater attention to right-hand side of his vehicle, rather than its opposite side, the accident might have been averted.”

3. The defendant pleaded a case that the design of the car park was faulty, and he brought these third party proceedings against the 1^st and 2^nd third parties asserting that they were wholly or partly to blame for this accident by reason of the negligent design of this car park and the location of this particular sign at that part of the car park where the accident occurred.  In entering interlocutory judgment against the defendant, I concluded that, even if the accident would not have happened if the car park had been properly designed, the defendant was not without blame: if he had exercised reasonable care, his vehicle would not have collided with the wrongly positioned parking sign.  It was not necessary for the plaintiff to prove that the defendant was entirely to blame for the accident: even if the defendant was only partly to claim, or even only minimally to blame, as compared with other potentially liable tortfeasors, that was sufficient for interlocutory judgment to be entered against the defendant for damages to be assessed. 

4. The third party proceedings were commenced by the defendant who sought, from the 1^st third party, the Secretary for Justice, for and on behalf of the Commissioner for Transport (‘the Commissioner”) and the 2^nd third party, Hong Kong Parking Limited (“HKPL”), an indemnity against, or contribution towards, his liability to the plaintiff.

5. I have already mentioned the defendant’s expert, Mr Runnacles.  The Commissioner appointed Mr Vincent Man Hong Chan, to be his expert in this matter.  The experts have prepared a number of reports and they have also completed a joint report which sets out their agreement on a number of issues. I make the following findings of fact from the documentary evidence I have received, the oral evidence I have heard, and from the expert’s agreement on those issues. 

Tai Pei Public Square Car Park

6. The accident occurred at a road side car park called the Tai Pei Public Square Car Park which is situated south of Tsuen Wan market.  At the time of the accident, the car park comprised of 29 marked parking spaces located within the square.  The car park is approached from Hoi Pa Street via Chuen Lung Street.  Upon entering the car park, the driver would see on his right-hand side six right-angle (“perpendicular”) parking spaces, 5 of them immediately in front of him and the last parking space at the far end of the square.  These parking spaces have been described by the defendant’s expert as the parking spaces situated on the south western side of the square.  If the driver continued to drive into the square, on turning left into the one way circulation aisle, the driver would see 14 right-angle parking spaces in front of him.  The defendant’s expert has described these spaces as the parking spaces situated on the north-eastern flank of the square. There were another eight right angle parking spaces arranged as an “island” along the square’s longitudinal (northwest to southeast) axis.  These parking spaces have been referred to as the middle row of car park spaces.  As he turned left into the square, the middle row of parking spaces would appear to the driver on his right-hand side.  All the parking bays in the square were 5.0 metres long and 2.5 metres wide and conformed to the Transport Department’s guideline for parking spaces intended to be used by cars[1] and other vehicles of a length not exceeding 5 metres.

7. Internal circulation within the square is clockwise and requires three 90 degree right-hand turns.  The 1^st circulation aisle that the driver would turn left into has been referred to by the defendant’s expert as the northbound aisle (following the compass points of the sketch prepared by the police after the accident[2]).  This circulation aisle was measured by the police to be 5.8 metres wide.  The 1^st 90 degree right-hand turn would then bring the driver into the eastbound aisle which was measured to be 6.4 metres wide.  The driver would then need to make two more right-hand 90 degree turns to bring him onto the westbound circulation aisle leading out of the square.  An overview of the car park can be seen from the aerial photograph taken after the accident showing the defendant’s goods vehicle at the location of the accident[3].

The defendant’s evidence

8. The defendant gave evidence before me.  His oral evidence and the evidence contained in his witness statement accorded with the statement that he gave to the police on the afternoon of 31 August 2007.  I found his evidence to be truthful.  He had been driving medium goods vehicles for 15 years.  He had received an order to deliver some goods to Emperor Plaza in Tsuen Wan.  The owner of the goods requested that the goods to be delivered to the Tai Pei Public Square Car Park.  This was the first time he had ever driven to that location and he used a map to get there.  The weather was fine that afternoon.  The defendant had not seen any signs prohibiting medium goods vehicles, or vehicles exceeding a certain length, from entering or using the Tai Pei Public Square Car Park.  After entering the car park, he realised that the circulation aisles were narrow.

9. He turned left into the northbound circulation aisle and drove as far left as possible to align the nearside of his vehicle close to the kerb.  He then stopped his vehicle.  The front of the vehicle was stopped beyond the middle row of parking spaces while the middle part of his vehicle was alongside the middle row of parking spaces.  He had stopped for about 20 to 30 seconds to see where he could unload the goods and also to see if there was enough space for his vehicle to make the first right-hand turn.  He saw, from the open window at his driver’s seat, that there was space available on the roadside, at the far end of the square, where his vehicle could stop and offload goods.  Seeing that, he reversed his vehicle a short distance of about 1 to 2 metres, so as to be in a better position to commence the first right-hand turn into the second circulation aisle.  He had to reverse his vehicle because he had stopped too far ahead to be able to negotiate the right-hand turn.  After reversing his vehicle, he thought that there was enough clearance space for him to negotiate the bend.

10. The first three parking spaces in the middle row of parking spaces were occupied with vehicles, and the row of parking spaces, on the northern side, to the left of the eastbound circulation aisle, were also occupied by vehicles.  This state of affairs led him to keep looking at his left and right sides rear-view mirrors of his vehicle during the time that he was making the right-hand turn.  As soon as he started to turn right, he saw a person between the 1^st and 2^nd car parking space in the middle road of parking spaces.  That person was walking from the defendant’s right-hand side to the defendant’s left-hand side, that is to say that he was walking in a northerly direction towards the parking meter which was positioned between the middle row parking spaces on the side of the eastbound circulation aisle.  He had seen, from his right rear-view mirror, that there was still a distance of about 1 to 2 feet between the right side of his vehicle and the first parking space in the middle row of parking spaces.  He then looked towards the front left of his vehicle, whilst slowly making the right-hand turn, so as to avoid hitting the vehicles parked on his left hand side.  At that time, the left front of his vehicle was positioned close to 5^th and 6^th parking spaces on the northern flank of the car park.  Suddenly, he heard a sound of a “bang” from behind his vehicle.  He then stopped his vehicle and alighted to see what had happened.  After he had alighted, he saw that a parking sign post, that had been positioned on the right-hand side of, and behind his vehicle, had toppled, and that a pedestrian was lying on the ground and bleeding from his head.  That person appeared to him to have been struck by the toppled parking sign post.  Someone called the police, and an ambulance arrived to take that person to hospital. 

The basis of the defendant’s liability    

11. The police also arrived and took photographs of the scene, including the photograph showing the side guard at the offside rear of the medium good vehicle[4]. The lower rave of the 2 raves of the side guard is shown on the photograph to be indented.  About 2 feet of the lower rave had sustained damage.  The defendant confirmed that it was not in that condition prior to the accident.  The damage to the lower rave of the vehicle was consistent with it coming into contact with the parking sign post.  I find that the force created by the rave coming into contact with the parking sign post caused it to bend over and to strike the head of the Mr Lam Lok Kin, who suffered fatal injuries as a result. 

12. In the course of his evidence before me, the defendant said that he was checking the whole situation in the square but did not pay particular attention to this parking sign post before he started to turn right.  He acknowledged, in his statement to the police, that, as he was making the turn, he only paid attention to the left front and right rear of his vehicle and that he had failed to notice the parking sign post.  It is clear from his evidence, and from the photographs showing the view from his right rear view mirror[5], that the parking sign post was not in his blind spot.  If he had looked at his right rear view mirror, he would have realised that the offside rear of his vehicle was going to come into contact with the parking sign post.  He confirmed that he had been looking at the left rear view mirror for a period of about 2 to 3 seconds immediately before the time when he heard the soundof a “bang” coming from behind his vehicle.   

13. I find that the defendant failed to take proper notice of this parking sign post, and failed to appreciate that it posed a risk of being struck by the offside rear of his vehicle.  If he had, and if he had taken proper measures to avoid this parking sign post, such as by reversing his vehicle to obtain a better turning angle, his vehicle would not have collided with the parking sign post and the accident complained of could have been avoided.  As he explained in his police statement, he was worried that the left front of his vehicle would collide with the cars parked to his left and that was the reason why he kept looking left.  That might have been so, but the manner in which he drove this vehicle during this manoeuvre departed from the standard to be expected of a reasonable driver.  Concern for one potential hazard is no excuse for ignoring other hazards.  He appreciated that the clearances were tight for his vehicle and he should have paid equal attention to both sides of his vehicle as he made that turn.  If that was difficult to do when the vehicle was in continuous motion, he could have stopped his vehicle and then proceeded very slowly, stopping as and when it became necessary to do so in order to get a better view, and re-starting again, and even reversing the vehicle to obtain a better turning angle.

14. The defendant was convicted subsequently, after trial, of careless driving.  He did not appeal against that conviction.

The deceased

15. I also find that, prior to the accident, the deceased had parked his private car, KL4486, in the second parking space in the middle row of the parking spaces and that, at the time when he was struck by the parking sign post, he was either about to pay, or was paying, the parking charge at parking meter no. 20148[6], having alighted from his parked car and having walked to the parking meter in order to do so.  Mr Edward Shum, who appeared for the Commissioner accepted, and I find, that the deceased was within the confines of the marked parking space when he was struck by the parking sign post.  He was not, either then, or at any time, standing on the circulation aisle. 

The case against the Commissioner

16. Mr Robin McLeish, who appeared on behalf of the defendant, submitted that I need not consider the case against the Commissioner for liability as a highway authority, whether on the grounds of nonfeasance or misfeasance, or even under the recently developing common law of negligence imposing a duty of care on public authorities, if I accepted his primary contention that the Commissioner was liable as an occupier for breach of the common duty of care owed to the deceased as a lawful visitor to the car park. I shall, therefore, first address the evidence and the submissions I received relating to this contention. 

17. It was pleaded in the third party proceedings that the Commissioner had the management and/or control of the car park by reason of his responsibility for its design and management, and that the Commissioner was an occupier of the car park.  In his defence, the Commissioner admitted being responsible for the design and management of the car park but did not admit that he was an occupier of the car park.  The Commissioner specifically averred that HKPL was responsible for the management, operation and maintenance of the parking meter system and associated equipment and facilities in the car park under a management contract, Clause 14.4 of which required HKPL to maintain all sign posts in the car park in a firm, safe, clean and legible condition.  The Commissioner also specifically denied that he was in breach of the common duty of care under the Occupiers Liability Ordinance, Cap. 314 (“OLO”).  

18. Was Tai Pei Public Square Car Park a car park or a road?  Although there was no traffic sign post prohibiting medium goods vehicles from driving into the square, it was common ground that the 29 parking spaces in the square conformed with the Transport Department’s guideline of 5.0 metres long by 2.5 metres wide, and were dimensioned for use by standard private cars and other vehicles of a length not longer than 5 metres, rather than by goods vehicles.  The parking signs in the square also limited the use of the parking spaces to vehicles other than medium and heavy goods vehicles, buses, motorcycles and pedal cycles.  Notwithstanding that the square contained these 29 parking spaces for private cars, it was common ground that the square was also a road that provided access to the shops and other premises around the square. Indeed, a road is defined in Section 2 of the Road Traffic Ordinance, Cap. 374 to include:

“every highway, thoroughfare, street, lane, alley, court, square, car park, passage, path, way and place to which the public have access either continuously or intermittently, whether or not the same is the property of the Government … ”[7]

19. As the square was a road, Mr Edward Shum submitted, quite boldly, that the Commissioner could not be liable under the OLO because a  highway authority was not the occupier of a public road and did not owe the common duty of care under the OLO, relying on Gorringe v Calderdale Metropolitan Borough Council [2004] 1 WLR 1057 and, in particular, the judgment of Lord Hoffmann who stated:

“10. … the highway authority is not of course the occupier of the highway and does not owe the common duty of care. Its duties (and those of its predecessors, the inhabitants of the parish) have for centuries been more narrowly defined, both by common law and statute.”

20. I was also referred to two earlier decisions of the House of Lords, the first one in time being McGeown v Northern Ireland Housing Executive [1995] 1 A.C. 233 which concerned the claim for damages for personal injury brought by the plaintiff who lived with her husband in a house in a housing estate of which he was a tenant.  Part of the land of the estate, in the ownership of the defendant housing authority, was crossed by footpaths, over which the public had acquired the right of way.  The plaintiff was walking on one of the paths when she tripped in a hole in it and broke her leg.  The hole was a danger to persons using the path and resulted from a failure to keep the path in good repair.  The plaintiff’s action against the housing authority for damages for, inter alia, breach of the Occupiers’ Liability Act (Northern Ireland) 1957was, however, dismissed by the trial judge, whose judgment was affirmed on appeal.  On further appeal to the House of Lords, the law lords dismissed the appeal holding that a person using a public right of way did so by right and could not be the visitor of the owner of the land over which the way passed for the purposes of the Occupiers’ Liability Act of Northern Ireland nor the Occupiers’ Liability Act of England and Wales; and that the landowner was not liable to the user of a public right of way for negligent nonfeasance.  In so concluding, House of Lords affirmed the correctness of the common law rule established in Gautret v Egerton (1867) LR 2 CP 371 to the effect that the owner of land, over which a public right of way passes, is under no liability for negligent nonfeasance towards members of the public using it.  Lord Keith, with whom the other law lords agreed, was of the opinion that the rule in Gautret v Egerton was a sound and reasonable one, explaining that the person using a right of way does so, not with the permission of the owner of the soil over which the public right of way passes, but in the exercise of a right.  In his judgment, Lord Browne-Wilkinson, expressed doubts[8] as to whether an invitee was necessarily within the rule.  Those doubts were dismissed in the decision of Court of Appeal in Campbell v Northern Ireland Housing Executive [1996] 1 B.N.I.L. 99 which held that the rule applied even though the plaintiff was acting on the express invitation of the occupier to use the public right of way as a means of access to the premises of the occupier.  Hutton LCJ held[9] that it was clear from the judgment of Lord Keith, with whom the other law lords agreed, that a person on a public right of way must be taken to be using that right of way, and is not to be regarded as an invitee of the occupier of adjoining premises, particularly as the distinction between a licensee and an invitee, drawn by Lord Browne-Wilkinson, was removed by the Northern Ireland and English Occupiers Liability Acts.[10]

21. The second case I have been referred to is Stovin v Wise & Anor [1996] AC 923, a leading case on the liability of the highway authority and the liability, in tort, of public authorities.  In his judgment at p 945F to 946B, Lord Hoffmann did not agree that it was proper to draw an analogy between the position of the highway authority and an occupier of premises.  Occupation of premises was one of the exceptional grounds upon which there may be a duty to take positive steps to protect others from harm.  Lord Hoffmann disagreed with Roch L.J. in the Court of Appeal who drew the analogy and thought that the highway authority should be equally liable.  Lord Hoffmann explained :

‘But an occupier can ordinarily limit his liability by deciding whom he will allow to come upon his land. He has a limited duty to trespassers and can take steps to keep them out. An occupier of land over which there is a public right of way cannot stop anyone from using it. So in McGeown v. Northern Ireland Housing Executive [1995] 1 A.C. 233 this House decided that an occupier of land over which there is a public right of way owes no duty to take reasonable steps to make it safe for members of the public who use it. Because he has no choice as to whether to allow them upon his land or not he should not be required to spend money for their benefit. Lord Keith of Kinkel, at p. 243:

“Rights of way pass over many different types of terrain, and it would place an impossible burden upon landowners if they not only had to submit to the passage over them of anyone who might choose to exercise the right but also were under a duty to maintain them in a safe condition.” ’

22. I was also referred to decisionof Mr Commissioner O’Connor as he then was, in Cheung Fung Ying (as administratrix of the estate of Wong Ming Mui, deceased, plaintiff) and Attorney General & Anor, HCA No. 2476 of 1975, 12 July 1977, who held that a person using a public highway is not a visitor within the meaning of the OLO, citing the decision of Greenhalgh v British Railways Board [1969] 2 QB 286 as an authority in support of that proposition.  The Court of Appeal in that case rejected a counter argument based on Section 2(6) of the U.K. Act[11], which stated :

“For the purposes of this section, persons who enter premises for any purpose in the exercise of a right conferred by law are to be treated as permitted by the occupier to be there for that purpose, whether they in fact have his permission or not.”

It is instructive to have regard to the judgment of Lord Denning M.R. in this case which concerned a plaintiff who was walking over an accommodation bridge over a railway, stepped into a pot-hole, fell and fractured her left arm.  Lord Denning stated[12]:

“It was said that she was a “visitor.” But I do not think she was. Section 1(2) shows that, in order to determine whether a person is a “visitor,” we must go back to the common law. A person is a “visitor” if at common law he would be regarded as an invitee or licensee; or be treated as such, as for instance, a person lawfully using premises provided for the use of the public, e.g., a public park, or a person entering by lawful authority, e.g., a policeman with a search warrant. But a “visitor” does not include a person who crosses land in pursuance of a public or private right of way. Such a person was never regarded as an invitee or licensee, or treated as such.”

Lord Denning then referred to Section 2(6) of the Act and said[13]:

‘The important words to notice are the opening words: “For the purpose of this section,” i.e., for the purpose of section 2, which defines only the extent of the occupier’s duty to acknowledged visitors. It does not expand the range of persons who are to be treated as visitors. Section 2(6) applies, for instance, to persons who enter a public park, or a policeman who enters on a search warrant, for they enter in the exercise of a right conferred by law and are treated as if they were invitees or licensees. They are acknowledged “visitors.” Section 2(6) shows that the occupier owes to such persons a duty of care when they are using the place for the authorised purpose, but not when they are abusing it. But section 2(6) does not apply to persons crossing land by virtue of a public or private way: because they are never “visitors” at all.’

23. On the facts as I have found, I conclude that the Commissioner was the occupier of the parking space to which the deceased had been invited expressly by the parking sign post permitting the parking of vehicles up to a length of 5 metres at that parking space.  The deceased remained a lawful visitor up to the time of the accident when he was in the process of feeding the parking meter.  The Commissioner was not an occupier of the circulation aisle, and did not owe a duty of care to the deceased as he drove along the circulation aisle, within the square, in order to access the parking space.  Once he entered the parking space, he became a lawful visitor and the Commissioner owed a duty of care towards him qua occupier of that parking space.

24. If I am wrong to find that the deceased was expressly invited to park at that space, and became a visitor by virtue of that invitation, I would find that the present case falls within that class of case where members of the public, using premises provided for public use, for example, public parks, libraries and conveniences, are lawful visitors to those premises.  If the deceased ought to be classified as entering the parking space “as of right”, and not because he was invited to do so by the Commissioner (because the Commissioner has no power to prevent him from entering that space) then I would hold that section 3(6) of the OLO applied to the present case.

25. McKaskie v. Cameron, unreported, July 1 2009, HH Judge Howarth, Blackpool County Court, is a good illustration of the liability that can arise when members of the public exercise a right of way.  In that case, a farmer was held liable under the Occupiers Liability Act 1957.  His cattle had mauled a walker, who had strayed off a public path that crossed the farmer’s field and who had used a tolerated shortcut across the farmer’s field.  If the walker had stayed on the public path and had been injured whilst using it, the farmer would not have been adjudged liable.    

Breach of Duty as Occupier

26. I have no hesitation in concluding that the Commissioner was in breach of his duty as occupier of the parking space which he owed to the deceased as a lawful visitor thereto.  Although both expert witnesses agreed that the width of the circulation aisle would have enabled the defendant’s medium goods vehicle to negotiate the subject corner, they also agreed that it would have been difficult for him to do so.  Mr Chan, the expert on behalf of the Commissioner, agreed that it was difficult to negotiate round the subject corner, and that the driver had to drive slowly, and to steer the vehicle at full lock in order to do so.  I do not need to rely on the expert witnesses to conclude that it must have been reasonably foreseeable to the Commissioner that medium goods vehicles entering the square, which they were permitted to do, would have considerable difficulty negotiating this specific right-hand turn and that it was reasonably foreseeable that the driver of such a vehicle could easily cause the offside of his vehicle to strike and topple the parking sign post in question, thereby endangering lawful visitors utilising the parking space, just as the deceased was doing on the day of the accident.  

27. It is common ground that, after the accident, changes were implemented by the Commissioner in the square.  New signs were erected at the entrance to the square prohibiting vehicles of a length greater than 11 metres from entering the square.  The northbound aisle was widened from 5.8 metres to 7.99 metres, and the number of parking spaces in the middle road of parking spaces was reduced from 8 to 6.  The parking sign post was replaced with one embedded in a 600 mm high concrete base (at the time of the accident the sign post in question had been fixed into the road surface with no protective guard).   Finally, a hatched area of about 1.5 m in width was painted along the north side of the middle row of parking spaces within which the replacement for the sign post was located (there was no such hatching at the time of the accident).  Of course, I do not rely on the measures taken after this accident as evidence of negligence.  In Cathay Pacific Airways Ltd v Wong Sau Lai (2006) 9 HKCFAR 371, the Court of Final Appeal reiterated the point made in Hart v Lancashire and Yorkshire Railway Co (1869) 21 LT 261 at p 263 that it was wrong to suggest that, “because the world gets wiser as it gets older, therefore it was foolish before”; and stated that people should not be discouraged from introducing enhanced safety measures for fear that doing so would be seen as an admission that the previous measures were inadequate[14]. However, as was made clear by the Court of Appeal in Wong Wai Ming v the Hospital Authority [2001] 3 HKLRD 209[15], the relevance of the precautions taken since the accident is that they demonstrate that it would have been practicable to take those measures before the accident. 

28. In my judgment, the common duty of careon the Commissioner as occupier of the parking space extended to safeguarding the deceased from the danger posed by a parking sign post at the vicinity of that parking space that might be struck by a vehicle driven by a motorist exercising his right of way within the square.  As I have already found, such a collision was reasonably foreseeable given the substantial difficulties posed by the narrow circulation aisle that the driver of a medium goods vehicle would face.  Although I do not accept the observation of Mr Runnacles that the defendant was like a lobster trapped in a cage, that metaphor does convey some idea of the tight corner that a driver of a medium goods vehicle would have to negotiate to get around this square.  Even Mr Chan conceded, in cross examination, that a similar accident could happen in future, if the measures taken after the accident to alter the layout of the square had not been taken.

29. Whether or not the Commissioner is also liable as a highway authority in misfeasance for creating a danger on the highway by positioning the parking sign post at a location in the square which created a danger to road users, I have no hesitation in concluding that the Commissioner, by causing or permitting the parking sign post to be located where it was, created a risk that a negligent a road user might strike the parking sign post when he or she wasnegotiating was the corner in question.  In my judgment, this case comes within the first category of cases, in which the defendant created the risk or danger that the third party may cause harm to the plaintiff, where the failure to protect from the acts of a third party may amount to a breach of a duty of care owed to the plaintiff, as set out by Lord Hope in the House of Lords decision in Mitchell v Glasgow City Council [2009] 1 AC 874[16].

30. A substantial period of time was spent at the trial on the question of whether or not the large cluster of mirrors on the left-hand side of the cab of the medium goods vehicle had any effect on the vehicle’s swept path.  I accept the evidence of Mr Chan on this point and find that the cab-side mirrors did not prevent the defendant from safely negotiating that right-hand corner.  The police photographs[17] show that the left-hand mirrors were higher than the roof of the parked light van in the critical fifth parking space along the north-eastern side of the square.  This rear of this van was partly over the footway and its front was set back from the front edge of the parking space by about 1 metre.  I find that altogether a clearing space of about 1.6 to 1.7 metres was available for the defendant’s vehicle to negotiate round the corner. 

31. Although it does not impact on my conclusion that it must have been reasonably foreseeable to the Commissioner that the sign post in question might be struck by a road user driving a medium goods vehicle into the square who failed to exercise care and attention when doing so, I do not accept the opinion by Mr Runnacles that the sign post in question had been struck before, and was inclined outward towards the circulation aisle on the date of the accident, before being struck again by the offside of the defendant’s medium goods vehicle on that day.  His opinion is contradicted by the evidence of Mr Leung Kwok Yin and the evidence of Mr Wong Fu Yu, civilian witnesses who were shopkeepers at the square, who gave evidence before the magistrate, which I accept, that the sign post in question had stood upright, and was not crooked or bent, prior to the accident in question. 

Other bases of liability    

32. Given my conclusion on the liability of the Commissioner as an occupier of the parking space in question, I need not address the other bases of liability on the part of the Commissioner asserted by the defendant, namely, his liability as a highway authority to maintain the square and his liability in negligence as a public authority.  However, I would observe that, absent the enactment in Hong Kong of legislation equivalent to the Highways (Miscellaneous Provisions) Act of 1961, which abolished the immunity of highway authority for nonfeasance, the conclusion of Mr Commissioner O’Connor in 1977, that the common law rule absolving highway authority from liability for nonfeasance remains the law in Hong Kong, continues to be valid up to the present time, notwithstanding the criticisms levied against that common law rule[18].

33. Accordingly, I need not engage in a detailed consideration of the opposing views of the two experts on whether or not the location of the parking sign post in question created a danger on the highway for which the Commissioner was responsible in misfeasance, and whether or not the design of the car park and the narrow circulation aisles within the square was negligent so that the Commissioner was also liable in misfeasance as a highway authority for constructing the highway in a dangerous manner.

The case against HKPL

34. The defendant’s case against HKPL is put on the following bases in the defendant’s opening:

“8. At the material time, HKPL had management responsibilities with respect to the operation of the parking facilities at the Parking Lot under a contract with the Government of the HKSAR (the “Government”) dated 13 September 2006 (the “Management Contract”) [D/262-396].

…

86. The Management Contract [D/262] is an agreement for “management, operation and maintenance of the parking meter system”. Under it, HKPL had limited responsibilities with respect to the Parking Lot.

87. Pursuant to clause 3.1 of the Management Contract [D/275], HKPL was appointed by the Government to discharge the “Services”, which term is defined in clause 1.1 [D/271] as meaning:

“the management, operation and maintenance of the Parking Meter System [i.e. “the Reloadable Card Operated Parking System”], the Metered Parking Spaces [i.e. the parking spaces in Hong Kong installed with electronic parking meters], and all ancillary facilities including traffic signs, sign posts, parking posts and road studs situate thereat or thereon, and all other obligations and duties to be performed by [HKPL] under this Agreement;”

88. Clause 3.5 [D/275] expressly provides for HKPL to:

“… take all necessary measures to ensure the safety of all [HKPL’s] Employees and members of the public in the provision of the Services.” [emphasis added]

89. Pursuant to clause 5.2 [D/276], HKPL is:

“… responsible for the proper and efficient inspection, maintenance, overhaul, repair and cleansing of all constituent components of the Parking Meter System including … all the Parking Meters installed at the Metered Parking Spaces, the Central Computer System and all associated equipment and facilities in accordance with this Agreement including … the Operating Procedures [set out in Schedules to the Management Contract].” 

And, pursuant to clause 14.4 [D/287], HKPL is required to:

“maintain … all traffic signs, sign posts and road studs in a firm, upright, safe, clean and legible condition … in accordance with the Operating Procedures.” [emphasis supplied].

90. It is submitted on behalf of Leung that these contractual obligations give rise to a common duty of care (under the OLO) and/or duty of care in negligence on the part of HKPL to the Deceased as a user of the Parking Lot with respect, inter alia, to the proper maintenance of all sign posts therein and keeping the Commissioner informed of all untoward incidents in the Parking Lot noted by HKPL in the course of carrying out its duties under the Management Contract.

94. HKPL’s failure to ensure the Sign Post was maintained in an upright condition (or warn drivers of the danger posed by its not being so pending rectification) or keep the Commissioner informed of all untoward incidents in the Parking Lot discovered in the course of carrying out its duties under the Management Contract were breaches of common duty of care and/or duty of care owed by HKPL to pedestrians/other users of the Parking Lot, including the Deceased.”

35. In my judgment, the claims against the 2^nd third party fail in limine.  I am not satisfied that the powers of management, operation and maintenance conferred on HKPL was sufficient, in themselves, to confer on HKPL the power of control over the parking spaces such as to make it an occupier of the parking spaces, which the Commissioner undoubtedly was.  In particular, HKPL was not responsible for, nor obliged, to provide any traffic engineering expertise in the design or modification of the parking spaces in the square, nor was it obliged to ensure that the parking spaces in the square were planned or designed in accordance with the Transport Planning and Design Manual of the Transport Department.   Although it wasobliged to manage, operate and maintain the parking meters, and all ancillary facilities, including traffic signs, sign posts, parking posts and road studs, HKPL did not have power over the parking spaces so as to enable it to modify the parking spaces or to relocate the parking sign posts.  Specifically, the obligation in relation to traffic signs and sign posts was to maintain them “in a firm, upright, safe, clean and legible condition”.  HKPL’s power and obligation to do so, did not, in my judgment, confer it with sufficient control over the parking spaces as to constitute HKPL an occupier of the spaces within the meaning of the OLO.

36. Even without the express contractual obligation on the part of HKPL to ensure the safety of members of the public in the provision of the services, there is sufficient proximity between HKPL and the users of the car park to create a duty of care on the part of HKPL to ensure that users of the car park were not injured by any parking meter or traffic sign or parking sign post which was defective or otherwise liable to collapse and cause injury to users of the car park.  However, the injury to the deceased in this case was not caused by any breach or failure of HKPL to maintain the sign post in question.  It was caused by the negligent driving of the defendant who permitted the raves on the offside rear of his medium goods vehicles to come into contact with the sign post in question and to cause it to topple and to strike the head of the deceased.  

37. I have already held that I prefer and accept the evidence of the civilian witnesses who were shopkeepers in the square, who testified before the magistrate that the sign post in question was in good condition, stood upright, and was not crooked or bent before the accident.

38. I also prefer the evidence of Mr Chan, who explained that it was not necessary for the sign post in question to stand at an incline before it could have come into contact with the lower rave at the offside rear of the medium goods vehicle.  It was common ground that the scratch mark found on the sign post[19] was caused by contact with the lower rave of the medium goods vehicle.  I accept the evidence of Mr Chan that, as the medium goods vehicle continued to move forward, the lower rave continued to remain in contact with the sign post, and that the momentum generated by the forward motion of the medium goods vehicle caused the sign post to bend, and the scratch mark to extend, until the offside rear wheel of the medium goods vehicle rolled over the footing of the sign post, causing the concrete around the sign post to fracture into several fragments.  Mr Chan’s opinion in this regard is supported by photographs nos. 45 and 46[20] which show the respective final positions of the bent sign post and the medium goods vehicle after the accident.  It can be seen from these photographs that the offside rear wheel of the medium goods vehicle had just gone passed the footing of the bent sign post.  I also accept the evidence of Mr Chan that the sign post would not have been bent to such an extent had its footing not been rolled over by the offside rear wheel of the vehicle.

39. It was the evidence of the defendant that he believed that the “bang” sound that he heard from the offside rear of the medium goods vehicle was caused by a collision between the rear vertical support strut connecting the two raves alongside the offside of the medium goods vehicle and the sign post. Mr Chan, however, considered that the sound was probably the result of the collision between the sign post and the parking meter no. 20148, which was beside the sign post and which the deceased, at the time, was attempting to feed.  I prefer the evidence of Mr Chan in this regard.  His evidence is supported by photograph no. 10[21] which shows the deformity of the head of the parking meter, which is inclined outward towards the circulation aisle.  I find that the damage to the head of the parking meter was caused by it being struck, with some force, by the toppled sign post, which produced the “bang” sound heard by the defendant.  Indeed, photograph no. 45[22] clearly shows that the rear vertical support strut was situated behind the two raves, and could not have come into direct contact with the sign post. 

40. Although I have found that the sign post was standing upright, and was not standing at an incline, immediately prior to the accident in question and notwithstanding the able submissions of Ms Julia Lau who appeared for HKPL, I accept the submission of Mr McLeish that there must have been at least one previous incident of damage to this particular sign post.  Mr. Chiang Hoi Hoi, the Assistance Maintenance Controller of HKPL responsible for the New Territories, including the square, confirmed, in cross examination, that parking meters had unique numbers assigned to them.  Mr Chiang also confirmed that, since parking sign posts (unlike parking meters) did not have any number identification system of their own, they were identified in HKPL’s handwritten maintenance records by reference to the nearest parking meter preceded by the shorthand “nr” (for near), i.e. the subject post would have been identified in the maintenance records by the notation “nr 20148”, as was done in the entry recording its damage in the accident[23]. HKPL’s maintenance record[24] contained an entry, reference number N92, in respect of a complaint/report dated 7  September 2004, with one “post no” highlighted over:

“P sign collapsed and meter post nr 20195, 20193, nr 20148 Sha Tsui Road Tai Pei Square” (in Chinese)

Mr Chiang confirmed that he had written this entry himself in the maintenance records, but he said that it recorded damage to parking meter 20148, not the parking sign post “nr PM 20148”, i.e., he denied the accuracy of the contemporaneous record.  When challenged, Mr Chiang claimed that he recalled, 8½ years later, that he had made a mistake in writing “nr” in the entry concerned, and he sought to explain the highlighting by saying it was to indicate that it related to Tai Pei Square whereas the “post nos.” on the same row related to nearby Sha Tsui Road.  I find it difficult to accept Mr Chiang’s denial of the accuracy of a contemporaneous entry in a document made by him 8½ years before.  I also do not accept his explanation regarding the highlighting of “nr 20148”.  The location of parking meter no. 20148 in Tai Pei Square can be ascertained by its unique number.  The inherent probability is that the entry was highlighted when the maintenance records were reviewed by HKPL, or its solicitors, after the accident, particularly having regard to the other highlighting in the maintenance records in respect of the entry for the damage to the sign post “nr 20148” with the notification date of 1 September 2007, the day after the accident[25]. Whilst I accept the evidence of Mr Chiang on the other matters that he spoke of, I find, based on this maintenance record, that the sign post in question had been damaged on or about 7 September 2004, some 3 years before the accident in question.

41. I also accept the evidence of Mr Cheung Yat Wah, the senior engineer attached to the Traffic Engineering (N.T. East) Division of the Transport Department.  He confirmed that the Transport Department was responsible for the design and management of the Tai Pei Public Square Car Park and that HKPL was its contractor responsible for the management, operation and maintenance of the parking meters and associated equipment and facilities in the square, including the maintenance of traffic signs and parking sign posts.  He confirmed that no report of damage to his sign post had been received by the Transport Department prior to this accident.  However, the absence of a report does not make me doubt the veracity of the maintenance record of 4 September 2007.  

42. Whilst I accept the submission of Mr McLeish and find, on a balance of probabilities, that the collapse of the sign post in September 2004 was caused as a result as a vehicle coming into contact with it, I am unable to infer that it was caused by a medium goods vehicle negotiating the tight right-hand turn, just as the defendant did on the day of the accident.  It might have been caused by a careless driver reversing into the first car parking space in the middle row of parking spaces.  However, my inability to make this specific finding does not cause me to resile from my conclusion that it was reasonably foreseeable that the sign post in question might be struck by a road user driving a medium goods vehicle into the square who failed to exercise care and the attention when negotiating this right-hand turn.

43. I also accept the submission of Mr McLeish that the evidence of Mr Yeung Mau Hing, the maintenance controller of HKPL, whose evidence I accept, and the evidence of Mr Chiang, establishes that HKPL never informed the Transport Department of repairs done by its staff to parking sign posts and to parking meters other than on those occasions when such repairs were done in response to a request by the Transport Department and, further, that there was no system for HKPL to notify the Transport Department of damage to parking sign posts and to parking meters that was not the subject of requests by the Transport Department for repairs.  In addition, Mr Yeung admitted frankly in evidence that the maintenance records were not complete.  I am not satisfied by this evidence that HKPL was in breach of its contractual obligations to the Commissioner.  However, even if it could be established that HKPL was in breach of its contractual obligations to the Commissioner, by reason of the foregoing matters, I am not satisfied that HKPL was under any duty in tort to drivers using the parking facilities in the square, such as the deceased, to keep proper maintenance records and to keep the Transport Department informed of damage to parking sign posts and to parking meters that was not the subject of requests by the Transport Department for repairs.  How such a duty in tort could arise was never explained.  Further, even if such a duty existed in tort, and was breached in this case, I am not satisfied that its breach caused or contributed to the fatal injury sustained by the deceased.  There is no evidence of any causal connection between the failure to keep proper maintenance records in respect of the parking sign post in question and the accident; nor any evidence ofany causal connection between the failure to keep the Transport Department informed of damage to the parking sign post in question, and the accident.  

Apportionment

44. The liability that arises in this case is the several liability of the defendant and the Commissioner who have caused the same damage to the deceased.  Accordingly, the defendant can seek contribution from the Commissioner pursuant to section 3(1) of the Civil Liability (Contribution) Ordinance, Cap. 377.

45. I have no difficulty in concluding that the greater responsibility for the accident lay with the defendant.  Although it was difficult to negotiate that particular turn, it was possible for the defendant to do so safely, by proceeding very slowly and by stopping as and when it became necessary to do so, and starting again, and even reversing the vehicle to obtain a better turning angle.  His concern for the potential hazard on his left-hand side was no excuse for him to ignore the hazard posed by the parking sign post which would have been clearly visible to him had he looked at his right rear mirror.  The Commissioner is also liable for breach of the common duty of care to see that his visitor, the deceased, would be reasonably safe in using the parking space which he was invited by the Commissioner, or permitted, to use.  Having regard to the dual consideration of relative blameworthiness and causal potency of the matters complained of, I find the defendant 80% liable for the loss and damage suffered by the plaintiff and the dependants of the deceased, and the Commissioner 20% liable for that loss and damage.

Costs order nisi

46. I enter judgment in favour of the defendant against the Commissioner for 20% of the damages and interest that may awarded to the plaintiff against the defendant; and I make a costs order nisi thatthe costs of the defendant incurred in pursuing the third party proceedings against the Commissioner be paid by the Commissioner, to be taxed if not agreed.  I dismiss the defendant’s claims against HKPL and make a costs order nisi that the defendant pay the costs of HKPL, to be taxed if not agreed.