LUI CHONG YUE AND OTHERS v. LUI WAI AND OTHER

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J U D G M E N T

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Power, J.A.:

The Appeal

    On the 5th of January 1985 at about 7.40p.m. the three plaintiffs were passengers in public light bus CJ3304 being driven by the 3rd defendant along Lai Yip Street towards its intersection with Wai Yip Street which is controlled by traffic lights and has painted thereon what was referred to at the trial as a "box junction". At a time when the public light bus had almost passed through the intersection it and a motor Bus BM7739 owned by the 2nd defendant and driven by the 1st defendant came into collision. The front of the bus struck the near side rear section of the public light bus. The sole issue falling for determination at the trial before Deputy Judge Cruden was the liability for the accident as between the defendants. The trial judge found the 3rd defendant 55% to blame for the accident and the 1st defendant, and vicariously the 2nd defendant owner, 45% to blame. All defendants now appeal against those findings.

Traffic Lights

    The traffic light signals in Hong Kong are dealt with in Reg.17 of the Road traffic (Traffic Control) Regulations. The sequence of lights is as follows:

    (1) Red

    (2) Red and amber

    (3) Green

    (4) Amber.

Regulation 17(a) prohibits vehicles from proceeding beyond the stop line when the red light is showing. Regulation 17(b) provides that when amber and red lights are showing they indicate an imminent change from red to green but do not alter the prohibition conveyed by the red light signal. Regulation 17(c) provides that vehicles are entitled to pass the light signal on the green light signal. Regulation 17(e) provides that when the amber light alone is showing traffic is prohibited from proceeding beyond the stop lime "except in the case of any vehicle which when the light signal first appears is so close to the stop line or light signals that it cannot safely be stopped before passing the stop line or the light signals."

    It is to be noted that the Kowloon motor bus was being driven in the inner lane, i.e. the one next to the footpath, and that in the three outer lanes there were stationary vehicles. This is of significance as a driver approaching as the 3rd defendant was would see that there were three lanes of stationary vehicles having stopped in apparent compliance with the red light which he would be entitled to expect would remain stationary until they received the green signal.

The Findings at Trial

    After setting out the evidence. and detailing the arguments of counsel the trial judge went on to deal with the "facts which are, on the balance of probabilities, clearly established". He found firstly that even if the KMB driver crossed the stop line after the lights had turned green he was still under a duty to ensure that vehicles which may have lawfully entered the intersection from Lai Yip Street on an amber light had cleared the intersection. This finding is, not, in the outcome, of any significance as the trial judge was satisfied that the KMB driver, drove onto the junction in the face of a red light. He found also that his speed was in the circumstances excessive. He went on to find that the PLB driver had driven past the stop line when the lights had changed to amber and said that he was satisfied that the KMB driver "was nxious to go through his traffic lights at the earliest possible moment and that the PLB driver was anxious to hurry through his traffic lights at the last possible moment before they turned red". He then made the following finding with regard to Regulation 17(e):

"Assuming that the Lai Yip Street traffic lights were only amber and not red, do the facts give rise to the statutory exception, entitling him to proceed against the amber light? After examining the evidence, including the police plan, I find that the distance between the stop line and the box junction was approximately 7 metres. A stud crossing occupies part of that intervening space. I am satisfied that the PLB driver, approaching the box junction knowing the traffic lights had changed to amber, should have been able to stop his bus safely, both in regard to his own passengers and any other vehicle in the vicinity. On the facts I hold, that the exception contained in Regulation 17(e) and reflectedin para. 67 of the former Highway Code and at p.89 of the current Road Users Code, does not arise. In these circumstances the obligation to stop when.the amber light shows, is not materially different to the red lights still showing."

    The trial judge was also satisfied that although the public fight bus was being "driven in an urban well-lit area the driver's duty of care was not discharged by merely having his sidelights on particularly when he elected, with that limited lighting, to cross a relatively long junction against, at least, an amber light".

    He then held that:

"On the basis of the evidence, I am satisfied that both drivers were negligent. The more difficult task is to quantify the extent to which, their respective negligence, contributed towards the accident. This issue essentially gives rise to two decisive questions. First, when the KMB driver passed the Wai Yip stop line, were the traffic lights green? Secondly, when the PLB driver passed the Lai Yip stop line, were the traffic lights amber?"

Having further considered the evidence he said:

"I find that the KMB driver passed the Wai Yip Street stop line when the traffic lights were either red or had just changed from red to amber and red. In any event he crossed the stop line before the traffic lights changed to green. I further find that the PLB driver crossed the stop line of the Lai Yip Street traffic lights when they were either about to change from red to amber or had, at best, just changed to amber."

(It was common ground that the words "red to amber" should read "amber to red".)

    There is no challenge made to the judge's findings that the 3rd defendant crossed the stop line in Lai Yip Street when. the traffic light had just changed to amber or was about to change from amber to red, i.e. when it was amber, and to his finding that the 1st defendant had driven his bus past the Wai Yip. Street stop line when the traffic light was either red or had just changed from red to amber and red.

    Given these findings there can be no doubt that the driver of the bus was negligent in deliberately driving past a red or red and amber light either of which require him to stop and wait until the green light appears.

    The argument of Mr. Tang, Q.C. who appears with Mr. Pirie for the 3rd defendant was that, given that his client drove past the stop line when the traffic light was amber and given that it is implicit in the judge's findings, according to the submission of Mr. Tang, that he could not have stopped his vehicle with safety before reaching the stop line, he was lawfully on the crossing. This being so he submits that he was entitled to cross it with the expectation that no vehicle would unlawfully come on to the junction and that he should not have been found to have been in any way negligent. He referred in this regard to Joseph Eva Ltd. v. Reeves^(l) where Scott, L.J., at 404 said:

"Nothing but implicit obedience to the absolute prohibition of the red - and indeed of the amber subject only to the momentary discretion which it grants - can ensure safety to those who are crossing an the invitation of the green. Nothing but absolute confidence in the mind of the driver invited by the green to proceed, that he can safely go right ahead, accelerating up to the full speed proper to a clear road in the particular locality, without having to think of the risk of traffic from left or right crossing his path, will promote the free circulation of traffic, which next to safety is the main purpose of all traffic regulation. Nothing again will help more to encourage obedience to the prohibition of the lights, than a knowledge that, if there is a collision on the cross roads, the trespasser will have no chance of escaping liability on a plea alleging contributory negligence against the car which has a right of way. Finally nothing will help more to encourage compliance with the summons of the green to go straight on than the knowledge of the driver that the law will not blame him if unfortuantely he does have a collision with an unexpected trespasser from the left or right."

It was Mr. Tang's contention that once lawfully on the crossing he was entitled to go right ahead, accelerating to the full speed proper to a clear road in the particular locality without having to think of the risk of traffic from left or right crossing his path." There is much force in this contention if Mr. Tang is right in his submission that it is implicit in the judge's findings that the PLB driver could not have stopped his vehicle before the stop line. Is such a conclusion implicit in his findings? The judge nowhere addressed himself to the possibility that the 3rd defendant might have been able to stop before reaching the stop line, but only to the possibility that he could have stopped his vehicle safely after passing the stop line It is, I am satisfied, proper to act on the assumption that he did not do so because he was satisfied that there was no evidence to establish that the 3rd defendant could have stopped before the stop line. Mr. Tang submits further that given the finding that this was "an urban well-lit area" there was no obligation on him to have his main headlights on and that there was nothing in the evidence to establish that he in any way materially contributed to the accident.

    Mr Litton, who appeared with Mr Aiken, sought to support the finding of the trial judge that the 3rd defendant was negligent in failing to bring his vehicle to a halt and in travelling with only his sidelights.

    He also argued that the acceptance by the trial judge that the 3rd defendant was "anxious to hurry through his traffic lights at the last possible moment before they turned red" was, in effect, a finding that he was negligently proceeding in a precipitate and wrongful manner. I am satisfied, as regards this observation by the judge, that it was to a significant extent coloured by his incorrect approach to Reg.17(e) to which I will shorly turn. Whether or not the 3rd defendant was anxious to cross the junction the fact of the matter is that if he was lawfully entitled to proceed onto the junction he was also entitled to proceed across it. It is true that the 3rd defendant might have been found negligent had it been shown that he had, failed to keep a proper lookout and that, because cf this had failed to see the Kowloon motor bus and was, therefore, not able to take appropriate evasive or braking action. However there was no finding by the trial judge in this regard. Indeed, given that there was no evidence as to exactly where the Kowloon motor bus was when he came on to the junction and that there was evidence that there were three lanes of stationary cars waiting for the traffic lights to change it is in my view understandable that there would have been no such finding.

    I turn to consider the finding of the trial judge that the 3rd defendant should have stopped when he found himself to be passing an amber light. I am satisfied that a fair reading of the evidence indicates that the trial judge was saying that where a driver passes the stop line on an amber light in circumstances where he can thereafter safely stop his vehicle he is under an obligation to do so. Leaving aside whether or not this could have been done in the present case, and 1 am by no means satisfied that the 3rd defendant would have been able to stop his vehicle before it encroached onto the crossing, I am satisfied that the trial judge was wrong in his interpretation of Reg.17(e). Once a person comes within the exception to the regulation he is entitled to proceed as though he has passed a green light. There is no obligation upon him to stop. He is of course, as I have already indicated, required to keep a proper lookout as is every driver at all times when driving a vehicle. He is not, however, under any obligation to try to stop his vehicle at some point after the stopline.

    I am satisfied that the judge's wrong interpretation of Reg.17(e) also coloured his approach when he turned to consider whether the 3rd defendant was negligent by reason of the fact that he was travelling on his sidelights. The judge said that he had elected to do so when crossing "against at least an amber light". He was, it seems to me, saying not only that the 3rd defendant should not have been crossing the intersection at all but also that he compounded his wrongdoing by crossing with "limited lighting". When considering whether the failure to turn on the headlights constituted negligence one must bear in mind that:

(i) the scene was "an urban well-lit area";

(ii) the 1st defendant was not only driving through a red light but was also, given his admission that he did not see the public light bus until the last moment clearly failing to keep a proper lookout;

(iii) there was no direct evidence to establish that the failure to put on headlights in any way contributed to the accident.

    In the circumstances 1 am satisfied that the judge was wrong to find that the 3rd defendant was negligent in this regard.

    There being no negligence on part of 3rd defendant his appeal must succeed. I am satisfied that the 1st defendant must bear the sole blame for the accident and that his cross appeal ana that of 2nd Defendant must be dismissed.

Cons, V.-P.:

    I agree with my Lord and would also allow the appeal of the 3rd Defendant and dismiss the cross appeals of the 1st and 2nd Defendants.

Clough, J.A.:

    I agree.

    IT Is ORDERED that the appeal of the 3rd Defendant is allowed and the judgment entered against him be set aside; the cross appeals of the 1st and 2nd Defendants by way of a Respondent's Notice are dismissed and judgment entered against them in full; there be an order nisi that the 1st and 2nd Defendants pay the costs of the Plaintiffs and that the 3rd Defendant here and below.

(1) [1938] 2 K.B. 393