WONG KING CHEUNG v. CHAU KAM CHOI

CACV 278/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 278 OF 1998

(ON APPEAL FROM COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 101 OF 1998)

---------------------------------

----------------------

J U D G M E N T

----------------------

Leong, J.A.:

1. On 21st April 1987, a collision occurred on the south bound carriageway of Kwai Chung Road, near the junction where Container Port Road, a slip road joined Kwai Chung Road. Before the junction, Kwai Chung Road provided 4- lane traffic. Near the junction, the 1st lane merged with the 2nd lane to form a double width 2nd lane. On that day the near side of the wider 2nd lane was cordoned off by a line of cones for road works. The speed limit on this stretch of Kwai Chung Road at the time was 70 kph. The collision involved a motor cycle ridden by the appellant Mr. Wong and a lorry driven by the respondent Mr. Chau. After the collision, Mr. Wong's motor cycle was found lying on its side at the end of a 14.4 meter scratch mark on the 2nd lane and this scratch mark started at about 20 meters from the tip of the chevron markings at the merger point of the two roads. The point of impact was at the start of this scratch mark. Mr. Chau's lorry was found straddling the 2nd and 3rd lanes. There was a distance of 3 meters from the point of impact to the line of cones. White paint scraps were found on the helmet of Mr. Wong and these matched the white paint on the left front wheel of the lorry. The motor cycle was only damaged on the right side of its handle bar. The near side rear-view mirror of Mr. Chau's lorry was found to be too high from the ground for it to hit a motorcyclist riding alongside the lorry. These investigation results were not challenged by the parties. There was no eye witness of the accident. Mr. Wong received a head injury and superficial abrasions to his leg and face in the accident. Mr. Wong also suffered a temporary lapse of memory. He issued a writ in 1990 claiming damages for negligence against Mr. Chau.

2. The case was tried before Deputy Judge Z.E. Li who found Mr. Wong's case not proved and dismissed the claim with no order as to costs. Mr. Wong appeals from that judgment while Mr. Chau cross appeals the judge's order on costs.

3. Mr. Wong's case was that he was travelling along Kwai Chung Road followed by Mr. Chau's lorry. When he reached the junction, where part of the carriageway was closed, Mr. Chau attempted to overtake him. As the part of the road open to traffic was not wide enough for both vehicles to travel abreast, he was hit on the head from behind by the left rear mirror of Mr. Chau's lorry. In cross-examination he changed his version and told the judge that he had come from Container Port Road before the collision. Despite this prevarication, counsel for Mr. Wong invited the trial judge to consider Mr. Wong's case on the primary basis that he was hit from behind by Mr. Chau's lorry when he was travelling along Kwai Chung Road. Alternatively, so counsel submitted, Mr. Wong had come out from Container Port Road on to Kwai Chung Road and both his motor cycle and Mr. Chau's lorry were travelling at high speed south-bound on a collision course, and but for Mr. Chau's failure to slow down or take avoiding action, the collision would not have occurred. In either case, Mr. Chau was said to be negligent.

4. The case of Mr. Chau was that he was travelling on the lane nearest to the kerb all along with no traffic ahead of him. When he reached the point where the two roads merged and his lane merged with 2nd lane because of the road works, he saw at a glance, a very slow moving, almost stationary container truck in Container Port Road. He also saw Mr. Wong's motor cycle pull out from the rear of the container truck to overtake it. He was about eight lorry lengths or 45 meters from the motor cycle. He was sure that the container truck was going to give way to him because he was on the main road and he thought Mr. Wong would do the same. He could not estimate the speed of the motor cycle but he agreed that it was 5 - 10 kph slower than his own speed of about 60 kph. He then continued at the same speed ahead. That was the first and last time he saw the motor cycle before the collision. After he passed the junction, he heard a bang sound and he felt an impact on the left of the lorry. Instinctively he swerved the lorry to the right and eventually it stopped straddling the 2nd and 3rd lanes. He found Mr. Wong's motor cycle had collided with his lorry. Except for some questioning on the respective speeds and positions of his lorry and the motor cycle when Mr. Chau first saw the motor cycle, the substance of Mr. Chau's evidence was not challenged by Mr. Wong. In fact, Mr. Chau's evidence was very much relied on by Mr. Wong to establish his alternative case.

5. The judge found Mr. Wong suffering from a lapse of memory but was "in possession of his critical faculty". The judge did not accept that Mr. Wong came out from Container Port Road before the collision and he found the alternative factual basis for his claim not credible. As to Mr. Wong's primary factual basis, the judge said:

"I do not accept Mr. Wong's original account in its entirely either. For one reason, Mr. Wong himself more or less abandoned this account. For another, his evidence that half of Kowloon bound Kwai Chung Road was closed is simply not true. Last but not the least, if Mr. Chau wanted to overtake him as he said, there was ample room and opportunities for Mr. Chau to do so using the 3rd or 4th lane without squeezing past Mr. Wong."

6. Having considered the damage to the motor cycle, the judge rejected Mr. Wong's primary case that he was hit from behind.

7. The Deputy Judge examined the evidence of Mr. Chau in detail, focusing on the separating distance between the motor cycle and Mr. Chau's lorry when he first saw it in the slip road and the respective speeds at which the lorry and the motor cycle travelled. The Deputy Judge provided his own calculations based on such speeds and separating distance for demonstrating that the collision could not have occurred at the start of the scratch mark. He also rejected the evidence of Mr. Chau on the cause of the collision. He nevertheless accepted the speed of Mr. Chau's lorry as 60 kph. No finding was made on the speed of Mr. Wong's motor cycle.

8. Relying on the evidence of the white paint on the helmet, the scratch mark and the damage to the handle bar, the Deputy Judge proffered a theory for the accident. He concluded that Mr. Wong lost his balance when he was riding his motor cycle alongside Mr. Chau's lorry and he fell against the left side of the lorry. The Deputy Judge did not deal with how it came about that the two vehicles were travelling alongside before Mr. Wong as said to have lost his balance. The judge's theory was not pleaded, nor supported by either party. The Deputy Judge came to the conclusion that "since neither drivers (were) reliable witnesses and in the absence of additional objective evidence, there (was) insufficient basis for (him) to be satisfied on the balance of probabilities which of the three situations (was) more credible." He found Mr. Wong's case not proved as he disbelieved both Mr. Wong's versions.

9. Miss Lau for the appellant Mr. Wong, has advanced a number of grounds of appeal which are critical of the judge's finding of facts. She accepts the usual difficulties in overturning a judge's findings of facts. However, she submits that the evidence does not support the judge's speculation as to how the accident occurred, particularly in the light of the scratch mark left by the motor cycle and the damage to the handle bar. She also submits that there was no cogent reason for the judge to reject Mr. Chau's evidence that Mr. Wong came from the slip road since Mr. Wong himself admitted he came from there. Mr. Chau's observation near the junction should not have been disregarded for peripheral inconsistencies. Miss Lau also complains about the judge's own finding on the speed of Mr. Chau's lorry.

10. Miss Sze Kin for Mr. Chau submits that Mr. Wong as plaintiff carried the burden to satisfy the judge that the accident occurred in a case as put. The Deputy Judge was not so satisfied, and his claim failed. Counsel seems to accept that the Deputy Judge's theory of the cause of the accident was speculative. Miss Sze submits that the Deputy Judge ought not have rejected Mr. Chau's evidence. She directs this court's attention to evidence that people coming from Tsuen Wan often used the slip road to go onto Kwai Chung Road. Counsel submits that on Mr. Chau's version, he could not be blamed for the accident because he was travelling well within the speed limit and was entitled to assume Mr. Wong, coming from a side road, to give way to traffic on the main road. Counsel argues that there was nothing to alert him as a reasonable driver that Mr. Wong would come onto Kwai Chung Road across his path. In any case, so counsel maintains, the uncordoned off part of the wider 2nd lane was wide enough for the lorry to travel safely abreast with the motor cycle. Counsel suggests that Mr. Chau had moved his lorry to the extreme right of the 2nd lane at or near the junction and that he had therefore taken avoiding action to prevent a collision with the motor cycle. In these circumstances, so it is submitted, it was not incumbent but instead unsafe for Mr. Chau to slow down or brake as he was approaching the junction. There was hardly any need to sounding his horn since Mr. Wong would have seen his lorry and was aware of its presence on the main road.

11. In my view, the evidence does not support the judge's conclusion that Mr. Wong lost his balance and fell against the side of the lorry. Such a conclusion is speculative. But for Mr. Chau's own evidence, it might have been open to the judge to find Mr. Chau not negligent once he rejected the primary and alternative factual basis of Mr. Wong's case. There was clear and unchallenged evidence from Mr. Chau that Mr. Wong had come from the slip road and he was 45 meters behind when he saw Mr. Wong overtake the container truck near the tip of the chevron makings. The speed of Mr. Chau's lorry was 60 kph and it was accepted on all hands that the speed of the motor cycle was faster than the container truck but slower than Mr. Chau's lorry by 5 - 10 kph. These matters should not be lightly ignored. Also, there seemed to be little justification for wholly rejecting the evidence of Mr. Chau.

12. There are endless decisions on the duty of a driver on a main road in approaching a junction, but it is largely a matter of common sense. Circumstances could be such that he must not assume a driver from a side road to conform with the highway code in slowing down and giving way. See Macintyre v. Coles [1966] 1 All ER 723; Lang v. London Transport Executive and another [1959] 3 All ER 609; Walsh v. Redfern and another [1970] RTR 201. The following passage in the judgment of Stephenson LJ in Truscott v. McLaren [1982] RTR 34 would seem to be pertinent:

"... test for negligence in a case of this kind is that which was stated by Lord Dunedin in Fardon v. Harcourt-Rivington [1932] 146 LT 391,392 which is frequently cited with approval, and was cited by Lord du Parcq in his speech in London Passenger Transport Board v Upson [1949] AC 155,176

'if the possibility of the danger emerging is reasonably apparent, then to take no precautions is negligence; but if the possibility of danger emerging is only a mere possibility which would never occur to the mind of a reasonable man, then there is no negligence in not having taken extraordinary precautions.'

I read that statement of principle with what Lord du Parcq himself said in Grant v. Sun Shipping Co. Ltd [1948] AC 549,567;

'... a prudent man will guard against the possible negligence of others when experience shows such negligence to be common.'

and what he went on to say in the Upson case, at p 176:

'A driver is never entitled to assume that people will not do what his experience and common sense teach that they in fact likely to do.'"

13. The issue seems to be: was it not reasonably apparent to Mr. Chau that Mr. Wong would come onto the main road without giving way to the traffic on the main road and cut across his path? If it was, then he should take precautionary measure for averting the danger of a collision, which was more than a mere possibility. If that was so apparent to Mr. Chau in this case, did he take precautionary measure to avoid the collision? Mr. Chau saw Mr. Wong overtake an almost stationary container truck near the merger print of the two roads at a speed of 5 - 10 kph slower than his speed of 60 kph. It may well be that Mr. Chau was justified to assume the almost stationary truck would not traverse into his path but the fact that Mr. Wong was seen overtaking the container truck at a speed of 50 - 55 kph should have alerted any prudent driver of the real possibility of Mr. Wong not slowing down or yielding to the main traffic stream. It was reasonably apparent to Mr. Chau that Mr. Wong was not likely to conform with the accepted traffic code. Mr. Chau allowed himself only a glance of the situation when he was some 45 meters away and he pressed ahead towards the junction without slowing down or taking other precaution. He did not keep any proper look-out for the Mr. Wong's motor cycle. Despite having seen how the motor cycle was being driven, he should not have assumed that Mr. Wong would not short out of the slip road. There was no evidence that the moving to the right was a precautionary measure taken. Miss Sze's submission that he had taken precaution by going to the right does not seem to be supported by evidence. It should have been noted that the motor cycle might bore out coming from the slip road. From the point of impact, it cannot be ruled out entirely that Mr. Chau's lorry was travelling to the right of the 2nd lane just before the collision; and this cannot be conclusive evidence of a precautionary measure to avoid the collision. Mr. Wong is decidedly negligent in the way in which he drove on to the main highway, but Mr. Chau is not free from blame in this collision. For the criticisms levelled at him, I would apportion the blame on the part of Mr. Chau at 20%. I would allow the appeal and set aside the order of the Deputy Judge. I would give judgment on liability of 20% against Mr. Chau with damages to be assessed.

14. The cross appeal on costs falls away. Costs are to follow the event. I would make an order nisi that the judge's order be set aside and that Mr. Wong to have the costs of this appeal and below.

Liu, J.A.:

15. I agree.

Nazareth, V.-P.:

16. I also agree with Leong J.A.

17. It has to be accepted in this Court that Mr. Wong was grossly negligent in emerging from a slip road i.e. Container Port Road into Kwai Chung Road, a major road, in the face of oncoming traffic; moreover, in emerging at the relatively high speed of about 50-55 kph, and then compounding this by travelling 9 feet from the near side edge of the available carriageway of the enlarged first lane where it was narrowed by the road works traffic cones.

18. It then remains to consider whether Mr. Chau was also negligent. That is a rather more difficult question. Mr Wong's evidence was rightly rejected; even Miss Lau, his own counsel, accepts that and uses that as part of the foundation of the new formulation of his case. There is thus precious little evidence against Mr. Chau except perforce his own evidence, upon which Miss Lau primarily relies. On that evidence, which seems to me to be consistent with the 14.4 metre scratch mark on the enlarged first lane of the carriageway, the position Mr Chau's lorry came to rest, and the associated physical features and road markings, Mr. Chau did not slow down from his speed of 60 kph, but he did move to the far side of the enlarged first lane. It seems to me that it may just be probable that he did so to avoid Mr. Wong, instinctively if not as a calculated response to the then clearly apparent danger of Mr. Wong not stopping at the junction of the slip road with the main road. It may be that either alternative might qualify as some degree of precaution. But it was a wholly inadequate degree of precaution. He had seen the motorcycle approach the junction at the relatively high speed of 50-55 kph which must have suggested that he would shoot straight into the main road. Yet, he did not slow down nor sound his horn. And although the enlarged first lane could be seen to narrow somewhat as marked by the traffic cones, and although moving to the far side, he remained in it, while the second and third lanes appear to have been clear. That, in my view, was negligence within the criteria stated in Truscott v McLaren which Leong J.A. has set out in his judgment, although of a very minor degree. For my part, I would have been inclined to put his contributory negligence at not much higher than 10%, but I am not disposed to dissent from Liu and Leong JJ.A. in that minor respect. I also agree with the costs order they propose.

19. The appeal is accordingly allowed. There will be judgment for Mr. Wong amounting to 20% of the damages to be assessed, for which purpose the matter is remitted to the Court of First Instance.

20. There will also be an order nisi that Mr. Wong is to have his costs of the appeal and below.