CHAN YAM MOU v. CHIK WING KEUNG

1987, No. A3851

IN THE HIGH COURT OF JUSTICE

HONG KONG

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J U D G M E N T

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1. This is an action by the plaintiff for damages for personal injuries and loss which he suffered in a road traffic accident that occurred on the 28th August 1984.

2. I am only concerned with the question of liability for by an order made on the 12th January 1988 the issue of damages is to be tried separately by a master in chambers.

3. The accident happened at about 12:30 am on Island Road, Hong Kong near the Deep Water Bay cafe which is opposite to the Deep Water Bay Golf, Club, when the motorcycle driven by the plaintiff collided with a taxi driven by the defendant. The defendant was driving along Island Road in the direction of Repulse Bay when he was hailed by some pedestrians who were standing outside the cafe. He had passed the point at which they were standing so had to slow down and turn to his right across the opposite carriageway with the intention of making a "U" turn. When he was executing his manoeuvre, the motorcycle collided with the near side rear door of the taxi. The impact was obviously severe for the plaintiff was thrown off his motorcycle onto the ground and he became unconscious. It is not in dispute that the plaintiff was travelling on his correct side of the road after attending a barbecue a short distance away from the accident.

4. Following the incident, the defendant was convicted of careless driving on the 1st August 1985 and was fined $500. An appeal against the conviction was dismissed on the 12th November 1985.

5. The plaintiff who was born in 1966 did not give evidence as he has no recollection of the accident. However, at the time he was a learner driver and was driving the motorcycle without displaying "L" plates and outside the permitted hours for a learner driver in contravention of the provisions of the Road Traffic (Driving, Licences) Regulations, Cap 374. He was convicted of two offences under the regulations on the 15th April 1985. Whilst there is no doubt that the plaintiff was a young and inexperienced driver, the convictions are not relevant to the issue of negligence. Although the convictions were pleaded in the defence as a breach of statutory duty by the plaintiff, they were in fact not pursued at the hearing.

6. The only witness for the plaintiff was Mrs Chong who at the time of the accident was e waitress employed by the Deep Water Bay Golf Club. She was sitting in the cafe with some colleagues at a table facing towards the direction of Repulse Bay as shown in the sketch plan, document 1 of the Agreed Bundle. After noticing the pedestrians hailing the taxi, she heard the sound of a vehicle approaching at a very high speed braking with a squeaking sound. She saw the taxi turn sharply towards the direction of the cafe and the motorcycle travelling in the opposite direction collide with it. At the moment of impact, the taxi did not stop immediately, but drove on into that parking space before coming to a halt. According to her evidence, both vehicles had their headlights on, but the taxi gave no indication that it was turning right. In cross-examination, Mrs Chong said that when she first saw the taxi it had just gone over the centre white line and the motorcycle had no opportunity to avoid the collision. She also mentioned that a white-coloured 7-seater van had been travelling behind the motorcycle before the accident.

7. The defendant testified that he was travelling at about 30 m.p.h. towards Repulse Bay when he was hailed by the pedestrians. Accordingly, he applied his brakes stopped the taxi and drove into a parking space by the cafe with the intention of reversing out. As he was turning the taxi the collision occurred. He alleged that when he saw the motorcycle it was travelling down from the bend in Island Road which is a distance of about 170 yards, although in cross-examination he said it was about 20 yards away. During his evidence-in-chief the defendant said that he was about to stop for the motorcycle, but noticed that it swerved out tot yards his lane in an attempt to overtake him from behind on his near side for part of the taxi was over the centre white line. However, the defendant stated that as he was stunned, he continued to drive into the parking space. Before he drove into the parking space the defendant said there was no traffic coming from either behind or towards him in the opposite direction. He agreed that a van arrived at the scene from the same direction as the motorcycle, but that this was about one minute later. This evidence was corroborated by Mr Shek on behalf of the defendant. who had also attended the same barbecue as the plaintiff whom he described as a friend.

8. The issue to be determined in this case is one of fact that depends upon the credibility of the witnesses. Mrs Chong was an independent witness who gave a fair, frank and honest account of the details of the accident. Where her evidence conflicts with that of the defendant and Mr Shek, I accept that given by Mrs Chong. The defendant was unsure in giving his evidence which carried little conviction. Mr Shek's evidence was of no real assistance for he was sitting in the second row of the van. I do not place any reliance upon his estimate of time, and prefer the evidence of Mrs Chong.

9. Although, as with all road traffic accidents, the events happened very quickly, Mrs Chong had a good view from where she was seated in the cafe for there was adequate street lighting available. There is no doubt that the defendant had to brake sharply when he was hailed by the pedestrians and turned right across the opposite carriageway. It appears that the pedestrians wished to travel in the opposite direction to Repulse Bay so that he intended to drive into the parking space next to the cafe where no cars were parked at the time, and then to reverse out rather than to do a "U" turn. Although the defendant said that he stopped the taxi before he turned, I have no hesitation in rejecting his evidence on this matter. I find, as a fact, that he did not stop, but went straight across the opposite carriageway into the path of the motorcycle and after the impact, drove into the parking space as he had intended. While the defendant said that he had seen the motorcycle coming towards him from the bend or at a distance of about 20 yards, this evidence cannot be reconciled with the fact that he had travelled a mere 5 feet into the opposite carriageway.I am quite satisfied that the defendant did not see the motorcycle until virtually the moment of impact. In fact he was unable to give any explanation as to why he had not seen the motorcycle beforehand. The defendant's attention had obviously been distracted by the pedestrians and in his desire to pick them up, he braked sharply, swerved to the right onto the opposite carriageway without seeing the motorcycle. The defendant in these circumstances drove negligently by failing to keep a proper lookout for other traffic and by driving into the path of the motorcycle without giving any indication of his intention to do so.

10. It has been alleged by the defendant that the plaintiff was guilty of contributory negligence by inter alia driving too fast and failing to keep a proper lookout. Mr Tang who appeared for the defendant asked me to infer that as the plaintiff was a teenager at the time of the accident, it was likely that he was driving fast and that this was supported by the evidence that there was a powerful impact. The defence even pleaded that the plaintiff was racing before the accident occurred. However, there was no evidence to support this allegation.

11. The defendant was admittedly young and an inexperienced driver, but I am not prepared to infer that he was driving at an excessive speed based upon those reasons. There was no reason to show that he was not driving at a proper speed. In my judgment, Mrs Chong was right when she said that the plaintiff had no alternative, in other words, he was in no position to avoid the collision.

12. Having regard to the evidence and all the circumstances, I am quite satisfied that the plaintiff was in no way to blame for the accident with the result that the defendant has failed to substantiate the allegations of contributory negligence.

13. Accordingly, judgment will be entered for the plaintiff on the basis of full liability.