WILLIAM ARTHUR CAMPBELL v. IP HO KAM AND OTHERS

HCPI419/97

IN THE HIGH COURT OF THE

HONG KONG SPEICAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES LIST NO.419 OF 1997

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J U D G M E N T

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1. The Plaintiff brings this action against the 1st, 2nd and 3rd Defendants for damages as a result of personal injuries sustained by him in a traffic accident, in which he was a passenger in a taxi, driven by the 2nd Defendant and owned by the 3rd Defendant, which collided with a private car, driven and owned by the 1st Defendant at the cross-road intersection of Harbour Road and Fleming Road in the early hours of 5th March 1992.

2. I am only concerned with the question of liability, firstly as between the Plaintiff and the Defendants, and secondly the apportionment (if any) as between the 1st Defendant on the one hand, and the 2nd and 3rd Defendants on the other hand, as there have been notices of contribution given by the 1st Defendant to the 2nd and 3rd Defendants and vice versa. Contributory negligence, although initially pleaded by the 1st Defendant in his Defence, I was informed by Counsel for the 1st Defendant at the start of the trial that this will no longer be relied on. No other defendants have pleaded contributory negligence.

3. The simple facts of this case was that at about 3:25 a.m. on 5th March 1992, the taxi, driven by the 2nd Defendant, in which the Plaintiff was a passenger, was travelling southwards along Fleming Road in the middle lane. At the same time, the private car, driven by the 1st Defendant, was travelling in an easterly direction along Harbour Road. At the intersection, the 1st Defendant's car collided into the right side body of the taxi. As a result of that impact, the taxi was pushed into and hit against the iron railings at the corner of the Chinese Arts and Crafts Building. Also as a result of that impact, the 1st Defendant's car came to rest along Fleming Road beyond the intersection, pointing southwards. This intersection of Harbour Road and Fleming Road is controlled by traffic lights.

4. The Plaintiff claims against the 1st and 2nd Defendants on the basis of their negligence in driving their respective vehicles in the manner as particularised in the Statement of Claim. The claim against the 3rd Defendant is based on the 3rd Defendant being vicariously liable for the negligence of the 2nd Defendant. The Plaintiff also seeks to rely upon a conviction of the 1st Defendant for careless driving on his own plea as a result of this accident in Case No. WS19606 of 1992 which was dealt with at the Western Magistracy.

The Plaintiff's evidence

5. The Plaintiff is a Canadian citizen normally resident in Vancouver. In March 1992, he came to Hong Kong on business, arriving in Hong Kong about two days before the accident. He had dinner with friends about three hours before the accident in a restaurant in Wanchai, and during dinner had two glasses of beer. Some time after 3:00 a.m. on 5th March 1992, he boarded the taxi driven by the 2nd Defendant, intending to go back to his hotel in Kowloon. As the taxi approached the intersection where this accident occurred, he had noticed that the traffic lights were green in favour of the taxi. The lights were green for a while before the taxi reached the intersection. According to the Plaintiff, it was his habit to pay attention and notice to the traffic lights because, in the past, he has had several close shaves with traffic at intersection. After the taxi had entered into the intersection, he noticed a blur coming from the corner of his eye on the right side of him. Immediately he felt a jerk as though the taxi driver was taking evasive action swerving to his left. That was followed by the impact of collision. This impact was followed shortly by a second bang which, undoubtedly, was when the taxi hit against the railing. The Plaintiff also said that because of these two impacts, first with the other car and then with the railing, he found himself thrown about in the taxi and after the taxi had come to rest, he was somewhere in the front passenger well with his head down and feet up. He then had to struggle to get himself back into position. He also said that at that time he was lapsing in and out of semi-consciousness.

6. At some stage he told the Court whilst he was still sitting at the back seat of the taxi and trying to get out, a person came up to the left rear door of the taxi and apologized to him in not very good English. He cannot remember all the words said by this person now, but he can remember this person saying : "I am sorry" and "It's my fault". He also told the court that this person smelt of alcohol when this person leaned over trying to give him a hand in getting out of the taxi, and at that stage, he was only about two feet away from him. This person also said something which he cannot now remember but which at the time made him realize that this person was the driver of the other car which had collided with the taxi.

7. The Plaintiff was then taken to hospital and whilst in hospital, although he was nauseating and vomiting, was nevertheless in a condition, according to him, to give a statement to the police. He also agreed that when he gave that statement, which was made shortly after the accident, events were clearer in his mind than when giving evidence in Court, some six years later.

8. In cross-examination, he said that he had been a driver for 24 years before the time of the accident, and he did not think that the speed with which the taxi was travelling immediately before the collision was anything unusual, and that in Vancouver the speed limit within the city is also 50 kph.

The 1st Defendant's evidence

9. The 1st Defendant gave evidence. He told the court that on the day in question, he was a serving police officer attached to the Criminal Investigation Department of North Point Police Station. At 12:00 midnight on 5th March 1992, he came off duty. He then drove his car, a BMW bearing Registration No. DJ9665, to Wanchai to meet a policeman friend of his for a night snack after which, some time past 3:00 o'clock in the morning, he was making his way back home to the North Point Police Quarters in his car. Thus he was driving easterly along Harbour Road.

10. He denies having taken any alcoholic drink at all during his night snack with his friend. He told the Court that he was driving along Harbour Road at the speed of 40-45 kph. As he approached the intersection between Harbour Road and Fleming Road, he slowed down his car to 30-35 kph. He told the Court that the lights were green in his favour at this intersection but as he crossed the white line at the intersection, the lights turned to amber. As a result, he further slowed down his car to between 10-20 kph. He then saw, on his right hand side, another car (not the 2nd Defendant's taxi) coming down from the flyover along Fleming Road. Because he feared that at his slow speed of 10-20 kph, he might collide with this car coming down from the flyover on his right, therefore he increased his speed with a view to crossing the intersection as soon as possible. Having increased the speed to about 20 kph, all of a sudden, on his left, the taxi driven by the 2nd Defendant came out from the middle of the road on his left hand side. Once he saw this, he applied his brake and swerved to his right to avoid a collision but to no avail as the distance between the two vehicles was too small. The left front side of his car came into contact with the front right side of the taxi. His car came to rest finally along Fleming Road on the lower part of the flyover.

11. After the accident, he said he went over and spoke to the taxi driver, i.e. the 2nd Defendant. The taxi driver told him that he was alright, but his passenger, an expatriate, was injured. He then asked the taxi driver to make a report to the police, and he himself walked over to the left side of the taxi to speak to the passenger in English, saying "Sorry, we call police, ambulance coming". He also gave evidence that as he was crossing this intersection, he did not have a clear view of the carriageway on which the taxi was travelling because of a flowerbed dividing the northbound and southbound carriageways of Fleming Road which was some four to five feet high. He also estimated the speed of the taxi to be more than 35 kph.

12. In the Magistrate's Court, he had denied that he was driving recklessly but admitted to careless driving. He accepts that he was careless in first slowing down the vehicle after entering the intersection and then increasing speed again.

13. Under cross-examination, he admitted that traffic was very light at that time of the night in Harbour Road and that pedestrian was almost non-existent. When he was asked about the Police Witness Statement made by him at 11:15 p.m. on 6th March 1992, he accepts that his recollection of events at that time was better than what it is when giving evidence in Court. He further accepts that in his statement, it was stated that he was travelling along Harbour Road at 35 kph, and also stated that even after crossing the white line, he maintained the speed of 35 kph.

14. Faced with this, he had to accept that what he said in Court as to the variation of the speeds before and after entering the intersection was not supported by what was stated in his Police Witness Statement. When further confronted by this Police Witness Statement given by him in cross-examination, he had to accept that in that statement there was no mention of a car coming down from the flyover on his right side which caused him to change speed.

15. It was pointed out to him by Mr Sakhrani that in this Police Witness Statement of his, he had stated that the taxi was travelling at very high speed, but it was only after numerous questions by Mr Sakhrani that the 1st Defendant came round to say that what he considered to be a high speed was 55 kph and a very high speed was between 60-70 kph. And when asked why he had estimated in his evidence-in-chief the speed of the taxi to be "more than 35 kph", he answered that that was simply his estimate. He disagreed that in his Police Witness Statement he had played down his own speed but exaggerated that of the taxi. He also agreed that in his initial Witness Statement filed in these proceedings in June of this year, there was no mention of his varying speed, or of his seeing another car coming down the flyover on his right hand side, but that these matters were only stated by him in a Supplemental Witness Statement filed in these proceedings in October this year.

16. When further cross-examined by Mr Sakhrani as to why he should think that the vehicle coming down the flyover on his right would not stop at the traffic lights in the intersection but would proceed into the intersection, the 1st Defendant was unable to give any reasons as to why he thought that, but nevertheless maintained that he feared that there would be a collision if that car travelled into the intersection. When further pressed on this point, the 1st Defendant said there was also the possibility that this car might have lost control due to brakes failure. However, he was again unable to point to anything which would suggest that to be the case. Finally, although he accepts that he was careless, the 1st Defendant says that the 2nd Defendant was also to blame for the accident in that the 2nd Defendant had either jumped the red light or he had failed to keep a proper lookout.

The 2nd Defendant's evidence

17. The 2nd Defendant gave evidence that on the night in question, he was driving a taxi with Registration No.ER3656, had picked up the Plaintiff in Lockhart Road and was told to drive to the New World Hotel in Kowloon. That being the case, the route that he took was to drive northwards along Fleming Road, then make a U-turn into the southbound carriageway of Fleming Road, and from there to proceed towards the Cross-Harbour Tunnel. After making the U-turn, he was some one hundred feet away from the intersection between Fleming Road and Harbour Road. As soon as he had made the U-turn, he had noticed the traffic lights to be green in his favour. He had reduced speed to about 20-30 kph in making the U-turn. After making the U-turn, he had picked up speed and he was travelling at about 50 kph when he came to the intersection. It was at that speed that he entered the intersection at which time the lights were still showing green in his favour.

18. He told the Court that before he reached the intersection, he was unable to see the traffic along Harbour Road to his right because of the flowerbed which divided the two carriageways of Fleming Road. After passing the flowerbed, when he was already onto the intersection, he saw a vehicle coming at him on his right. He immediately tried to swerve to his left but was already too late, and there was a collision. He told the Court that this collision took place about half a second after he had gone past the flowerbed.

19. After the initial impact, his taxi had crashed into the railings at the corner of the China Resources Building. He himself was unhurt, but he noticed his passenger who got out of the taxi, stamped his feet on the ground a couple of times and then got back into the rear seat of the taxi. The 1st Defendant then came over to him, and he asked the 1st Defendant to check with the passenger to see if he needed any medical treatment. He heard the 1st Defendant speaking to the passenger in English and saying "this is my false" (sic), which he understood the 1st Defendant to mean that the 1st Defendant was in the wrong.

20. He also gave evidence that the 1st Defendant then spoke to him, saying that if the passenger did not require medical treatment, he would then compensate the 2nd Defendant for the repair to the taxi. However, ultimately that was not done because the passenger did require to see a doctor. He maintained that he did not drive through a red light but that the lights were green in his favour and had been so for some time when he entered into the intersection.

21. In cross-examination, he agreed that he did not decrease his speed as he approached this intersection, but instead, having made the U-turn, he had increased speed from between 20-30 kph to 50 kph as he approached the intersection and it was at this speed of 50 kph that he entered the intersection. When asked by Mr Wong for the 1st Defendant when it was that he reached the speed of 50 kph, the 2nd Defendant initially said it was about 20 feet from the white line. Later on, he slightly changed his evidence to saying that it may have been about 30-40 feet from the white line that he reached the speed of 50 kph.

22. He was also cross-examined as to the Witness Statement which he had made pursuant to these proceedings. He agreed that in that Witness Statement, as well as in the Magistracy proceedings in which he gave evidence, he had said that the first time he saw the light was green was when he was about 30 feet away from the lights. He further acknowledged that in his Witness Statement there was no mention of seeing the green lights when he was some 100 feet away.

23. The 2nd Defendant also called as his witness, a traffic engineer from the Transport Department, Mr Wong Wing Hing. One of Mr Wong's duty in the Transport Department is to monitor traffic lights which is controlled by the central computer system in their department. He produced into evidence a graph showing the inter-relation between the two sets of traffic lights controlling Harbour Road and Fleming Road at the junction of these two roads.

24. It is Mr Wong's evidence, which is also readily apparent from the graph he produced, that when the traffic lights are green in favour of traffic along Fleming Road, during the whole of that time the lights controlling Harbour Road would be showing red.

25. He also gave evidence that these traffic lights would never show the green light to traffic along Harbour Road as well as to the traffic along Fleming Road at the same time as that is likely to cause traffic accident. From the graph, he explained that after the traffic lights controlling Harbour Road turns red, there would be a seven second lapse before the traffic lights controlling Fleming Road would turn green. He further gave evidence on the traffic lights controlling traffic along Harbour Road - after it stops to show the green light, there would be a 10 second lapse before the traffic lights in Fleming Road turns green. From the graph, it can be seen that this difference of three seconds is accounted for by the fact that in between the green light controlling Harbour Road stopping and the lights turning to red along Harbour Road, there would be three seconds where this traffic light shows amber. He also gave evidence that these traffic lights at this intersection was operating in such a way in March 1992 and with the exception of a three-months' period in the summer of 1997 when the way in which these traffic lights were operating were altered to cater for the traffic during the World Bank Conference which was held at the Convention Centre at that time, these traffic lights have always operated in that way.

26. His evidence was not seriously challenged by either the 1st Defendant nor by the Plaintiff.

The 3rd Defendant's evidence

27. A Mr Tam Wai Leung, a director of the 3rd Defendant, gave evidence that in March 1992, the 3rd Defendant owned some 20 taxis, one of which bore the Licence Registration No. ER3656, which was the taxi driven by the 2nd Defendant at the time of this accident. His evidence was that all the taxis owned by the 3rd Defendant were hired out to various taxi drivers in March 1992 including ER3656 which, on the day in question, was hired out to the 2nd Defendant, and that the 3rd Defendant had never employed drivers to drive taxis for the 3rd Defendant. He elaborated in his evidence that the fuel for these hired taxis were paid for by the drivers who hired them although basic maintenance for the taxis were paid for by the 3rd Defendant. He also told the court that the 3rd Defendant never shared profit with the drivers who hired these taxis. His evidence was also not challenged.

Findings of fact on liability

28. I find the Plaintiff and the 2nd Defendant to be truthful and honest witnesses, that they were telling as accurately as possible the events that took place leading up to, at the time of and immediately after this accident on 5th March 1992 at about 3:25 a.m.

29. In the case of the 2nd Defendant, although there are some minor discrepancies between his evidence and what is stated in his statement, or in his evidence in the Magistrate's court, such discrepancies concerning estimates of time and distances are almost inevitable when one is talking about an accident which happened some six years ago. Barring these discrepancies, I accept generally the evidence that he gave as to the occurrence of this accident and the matters related thereto. On the other hand, however, I find the 1st Defendant to be an untruthful witness, not only is it true that most of his evidence cannot be reconciled with the evidence of the Plaintiff and that of the 2nd Defendant, but some parts of his evidence is not even consistent with other parts of the evidence that he gave.

30. The one matter that I find wholly incomprehensible comes from the evidence of the 1st Defendant that the lights turned amber as he crossed the white line. Given that it was his evidence that at that time of the night, traffic was very light along Harbour Road, it must be normal for any driver to think that he should be able to cross the intersection without much hazard with normal speed simply by keeping a watchful eye open. Yet, quite inexplicably, there is the 1st Defendant saying that he had to slow down his vehicle to between 10-20 kph, then when he saw another vehicle coming down the flyover on his right, he had to increase his speed so as to avoid a collision with that vehicle; and that without the slightest indication of that other vehicle not being able to stop at the intersection, if what the 1st Defendant says is true.

31. I therefore make the following findings of fact based on the evidence adduced in Court :-

1. The taxi, driven by the 2nd Defendant, had made a U-turn from the northbound carriageway of Fleming Road into the southbound carriageway of Fleming Road before this accident took place. After making the U-turn, the traffic lights controlling the southbound carriageway of Fleming Road was green colour in favour of the taxi.

2. The 2nd Defendant then increased the speed of his taxi from about 30 kph to about 50 kph, at which speed he entered the intersection. When he entered the intersection, the traffic lights were still showing green in his favour. The 2nd Defendant was unable to see traffic along the eastbound carriageway of Harbour Road until he entered into the intersection because of the flowerbeds dividing the two carriageways of Fleming Road.

3. I further find that the 1st Defendant was at the same time driving his car in an easterly direction along Harbour Road, that he was travelling at a speed of no less than 45 kph, and that he had maintained the same speed entering into the intersection. I make the finding that the 1st Defendant had maintained the same speed into the intersection on the basis of what had been stated by him to the police in his Police Witness Statement, and on the basis that he had accepted, under cross-examination, that what was stated in that Police Witness Statement of his was true, and that his recollection of events were better at that time.

4. I further find that the collision between these two vehicles took place at the middle of this intersection and that neither the 1st Defendant nor the 2nd Defendant could see each other's vehicle until it was too late to avoid the collision because their views were obstructed by the flower bed which both had referred to in their evidence.

5. Moreover, I accept, in its entirety, the evidence given by Mr Wong from the Transport Department as to the inter-relationship between the traffic lights controlling traffic at this intersection, in particular that it is after a full 10 secs that the light stop showing green for traffic on Harbour Road, before the lights turn green for traffic along Fleming Road.

32. From the above findings, I am able to infer that the 1st Defendant had entered into this intersection when the traffic lights controlling traffic on his carriageway was showing red. I have little doubt that the 1st Defendant knew at that time that he had jumped the red light. Undoubtedly, he must have thought that because of the relative absence of traffic at that time of the night, he could get away with jumping the red light. In that he was wrong and it resulted in this collision.

33. The fact that the 1st Defendant had jumped the red light explains his apology to the Plaintiff shortly after the accident in saying "I am sorry" and "it's my fault", which evidence I accept and find to be true coming both from the Plaintiff and from the 2nd Defendant (albeit that the 2nd Defendant had misquoted those English words saying "It is my false"). It also explains the subsequent conduct of the 1st Defendant in giving different versions of events at different times subsequent to the accident no doubt, in an attempt to wriggle out of responsibility for the accident.

Liability of 1st Defendant

34. From these findings, there can be no question but that the 1st Defendant is clearly liable in negligence towards the Plaintiff for this accident. Whichever way one looks at it, whether from my findings above, or from the fact that the 1st Defendant was convicted on his own plea of careless driving, or even from the point of view that the 1st Defendant, in the witness box during this trial, has admitted that he was careless in the way that he drove.

35. Far from disproving negligence, the onus being upon him to do so by reason of his conviction for careless driving, the 1st Defendant has in fact acknowledged in the witness box that he was careless in driving as he did.

Liability of the 2nd Defendant

36. The Plaintiff has invited me to look at all the evidence, including that of the 1st Defendant, to determine whether or not the 2nd Defendant is liable for negligence.

37. Counsel for the 1st Defendant, in his final submission to me, accepts, having heard all the evidence in this case, that he is unable to make out a case, based on all the evidence before me, that the 2nd Defendant had driven his taxi through a red light at this intersection, and has indicated that he now accepts the fact that the 2nd Defendant drove his taxi through a green light when entering this intersection. However, he argues that, nevertheless, on all the evidence before this Court, the 2nd Defendant can still be found partly to blame for this accident. He argues that even when the 2nd Defendant entered this intersection going through a green light, the 2nd Defendant was still under a duty to keep a lookout for other traffic going into the same intersection on a collision course with it.

38. In putting forward this argument, Mr Wong for the 1st Defendant, relies on the case of Godsmark v. Knight Bros., a decision of Barry J reported in the Times, 12th May 1960. In that case, a collision occurred at crossroads with traffic lights. A lorry crossed at amber, whereas a car going slightly faster crossed at green to it. The car hit the lorry on the outside at right angles. It was held by the learned Judge that neither driver had infringed the regulations, but that the car driver was one-third to blame and the lorry driver, two-thirds to blame. In finding the car driver one-third to blame, the learned Judge based his decision on the fact that where the car emerged into the crossroad when the lights turned green in its favour, the car driver was nevertheless under a duty to keep a lookout for traffic which may have been slow in entering the crossroads whilst the light was amber in its direction, but in this case, the car driver had failed to keep the necessary lookout.

39. On the facts as I have found them in the present case, it can readily be distinguishable from Godsmark case on facts. In Godsmark case, the lorry had entered the crossroads at amber, whereas the car had entered the crossroads when the lights turned green. The present case is distinguishable in that both these facts were not present. On the other hand, Mr Sakhrani relies on the case of Eva v. Reeves [1938] 2 All ER 115 where it was held that a driver of a motor car, who enters a crossroad when the traffic lights are in his favour, is not under any obligation to assume that the driver of another vehicle may be entering the crossroads from left or right with the red light against him. Therefore, when a driver entered the crossroads with the green light in his favour and accelerated to pass traffic on his left going in the same direction which blocked his view to the left until it was too late to avoid a collision with a vehicle which had entered the crossroads from the left against the red light, he was not guilty of contributory negligence.

40. Mr Sakhrani further referred me to the case of Sudds v. Hanscombe [1971] RTR 212 and the case of Knight v. Wiper Supply Services Limited [1965] 109 SJ 358, both of which advance the same principle as laid down in the case of Eva v. Reeves.

41. Based on the facts as I have found them above, and on the principles of law contained in the cases cited to me by Mr Sakhrani, and based on the fact that the 2nd Defendant could not have seen the 1st Defendant's car until it was too late to avoid a collision, I have come to the conclusion that the 2nd Defendant is not liable in negligence to the Plaintiff.

Liability of the 3rd Defendant

42. In the light of my decision above that the 2nd Defendant was not negligent, it follows therefrom that the 3rd Defendant cannot be vicariously liable either. However, even if I had come to a different finding insofar as the 2nd Defendant is concerned, on the evidence before me which came from Mr Tam and which had gone unchallenged, I would have found the 3rd Defendant not to have been liable by reason of the fact that the 2nd Defendant was, at the material time, not driving the taxi as the servant or the agent of the 3rd Defendant, nor for the purpose of the 3rd Defendant.

43. Accordingly, there will be judgment for the Plaintiff as against the 1st Defendant, and that the Plaintiff's claim against the 2nd and 3rd Defendants are dismissed. The amount of damages will be assessed by a Master.

Costs

44. The 1st Defendant do pay to the Plaintiff the Plaintiff's costs of this action to date as well as the costs of the 2nd and 3rd Defendants. (The further costs arising from the assessment of damages will be reserved to the Master dealing with the assessment.) This costs order shall be nisi at first instance with liberty to either party to restore for argument on notice given within 14 days of the date of this judgment.