CHENG KIN PING AND ANOTHER v. WOO CHO WING JOHN and CHEUNG MING WO (Third Party)

HCPI 7/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 7 OF 1999

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

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

J U D G M E N T

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

1. In this matter I am asked to determine liability as between the Defendant in the original action and the Third Party subsequently joined thereto.

The accident

2. The facts of the case are largely not in issue.

3. At about 1 a.m. on the morning of 21st August 1987 the First Plaintiff in the action drove his car up and over a one lane flyover spanning Gloucester Road which eventually led into the Cross Harbour Tunnel. His vehicle was followed by that of the Third Party.

4. As the plaintiff proceeded around a right hand bend on the flyover which led onto the downslope into the Tunnel entrance his way was blocked by stationary traffic. He braked. The Third Party braked behind him. It was raining or at least drizzling and the road was wet. The Third Party's car slid into the Plaintiffs vehicle causing minor damage. No one was injured.

5. The First Plaintiff left his vehicle, as did the Second Plaintiff who was a passenger in it and as did the Third Party and other passengers in both vehicles. They inspected the damage.

6. An issue arose at trial as to whether the vehicles had remained in this position or whether they, following this collision, were moved over to the extreme left hand side of the flyover by the Third Party and First Plaintiff to leave room for other traffic to pass.

7. In any event at some time after this original collision while the Plaintiffs and the Third Party were standing by their vehicles discussing the matter, the Defendant drove his vehicle around the same corner of the flyover and came upon the two stationary cars and the group of people standing by them.

8. The Defendant applied his brakes but lost control of his vehicle and it slid into the group of people standing beside the two cars and injured the two Plaintiffs.

9. Photographs and a sketch plan of the flyover were produced in evidence. The sketch plan was made by an officer who visited the scene after the accident and was drawn to scale. It depicted the position of the vehicles of the Third Party (as V2) and of the Plaintiffs (as V1). According to that sketch plan the Third Party's vehicle was approximately 22 metres from the point of exit from the right hand turn where the Defendant would first have been in a position to see it and the Plaintiffs were approximately another 4 metres further on at the point they were struck. The Defendants vehicle was not represented as it had been moved when the sketch was made. The sketch was agreed to be accurate and to scale.

10. The Defendants vehicle had a defective right rear brake. An issue arose as to whether in the circumstances and road conditions at that time that defect contributed to the Defendants vehicle striking the Plaintiffs.

11. A further issue was whether the Third Partys vehicle, which was behind the Plaintiffs vehicle and which would have been the first vehicle the Defendant saw, had warning lights or other lights on and whether it had been left by the Third Party too close to the exit from the bend leading onto the downslope where the Plaintiffs and Third Party's vehicles were.

12. The action between the Plaintiffs and the Defendant has been compromised and, as I say, this matter comes before me only as to the resolution of liability between the Third Party and the Defendant.

13. I will deal with the issues and the evidence relating thereto.

The Defendants Vehicles defective brakes

14. Miss Sze for the Defendant admits that the Defendants vehicles right rear brake was defective. The defect is described in the agreed Motor Vehicle Examiners Report as being contamination of the brake shoe of that brake by hydraulic oil leaking from a cylinder in that brake. According to the contents of the M.V.E.'s report, which were not in this regard challenged by the parties, the defective right rear brake resulted in a foot brake efficiency in respect of the Defendants vehicle of 70%. Both parties called expert witnesses as to the effect that defect would have on the vehicle under heavy braking.

15. Mr M. Vickers for the Defendant gave evidence to the effect that given heavy braking by the Defendant as he exited the right hand bend causing his vehicle to skid, which was not in issue, the defective right rear brake would not have contributed to either the vehicle skidding or any loss of directional control of the vehicle during that skid.

16. His opinion in that regard was based on the assumption that the defective brake would have allowed the right rear wheel to continue to revolve as the car skidded and so allow the rear of the car to resist swinging out as it entered the downslope from the bend when the brakes were applied.

17. His opinion was that in addition to the directional stability the revolving right rear wheel imparted there would have been no loss in effective braking efficiency.

18. This latter view was based on the further opinion of Mr Vickers, which was shared by the Third Party's expert Mr Seymour-Hart that the coefficient of friction of the road surface, given the wet conditions and the downslope, was no more than 50%.

19. Mr Vickers view was that as the efficiency of the Defendants vehicles braking system was 70%, even with the defective brake, as set out in the M.V.E. report, there was greater braking potential still vested in the vehicles braking system than the road surface could bear.

20. He said for those reasons the defective brake did not reduce the capable stopping distance of the car and nor did it render the vehicle less controllable under braking or during a skid but, conversely, aided the directional stability of the vehicle.

21. When asked if the lesser braking ability of the right rear wheel may have caused greater loading to be placed on the brakes of the remaining three wheels causing them to lock up or skid earlier than they would otherwise have done, Mr Vickers was of the opinion that this would not have been so and that the locking up of a wheel under braking occurred when the friction of the surface was insufficient to allow the wheel to grip and that this was independent of the number of wheels on a vehicle which braked.

22. Mr Seymour-Hart, for the Third Party was of the view that the defective right rear brake, even given that it permitted that wheel to continue revolving, would not have aided the directional stability of the Defendants vehicle.

23. In his view assuming that the Defendants vehicle had left the exit from the right hand bend and had straightened up, as was also the conclusion of Mr Vickers, he was of the opinion that once the brakes of the car were applied given the fact that there was less braking force from the wheels on the right hand side of the car as a result of the defective right rear brake, then the vehicle would slowly start to rotate anti-clockwise once the heavy braking caused the wheels to lock.

24. In my view, the opinion of Mr Seymour-Hart is preferable to that of Mr Vickers. His views seem more logical to me and more in accordance with the facts.

25. The basis of his view is that even though a wheel may have locked its brakes and is skidding it is still applying frictional force to the road and is retarding the vehicles forward momentum.

26. Two wheels so locked on one side as opposed to one only locked on the other will result in more frictional force and greater retardation on the side of the vehicle where the two wheels are locked. That will cause the vehicle to slowly swing to that side. Mr Seymour-Hart's opinion explains why the Defendants vehicle avoided the Third Party's car but struck the Plaintiffs car, as I accept did happen. That was the evidence of both the Defendant and the Third Party and I accept it.

27. To avoid the Third Party's vehicle and strike the Plaintiffs vehicle must have meant that the Defendants car veered or was veering left after it passed the Third Party's vehicle. All the damage to the Defendants vehicle was on the front left of that vehicle, there was none elsewhere. Even allowing for the fact that a significant part of that damage may have been caused by the persons of the Plaintiffs the absence of damage elsewhere on the left side of the vehicle suggests that the vehicle was rotating, nose first, slowly and anti-clockwise as Mr Seymour-Hart suggests, due to the imbalance of braking from the defective brake.

28. I accept from Mr Seymour-Hart's evidence also that the defective rear brake both increased the Defendants vehicles braking distance due to it being able to apply less frictional force to the road, accepting as I do that even a locked wheel applies frictional force, and caused the vehicle to tend, nose first, to the left as it skidded. In other words the defective foot-brake reduced the stopping distance of the vehicle and its directional stability when skidding.

The Defendants speed

29. The Defendant said in evidence initially he was travelling at about 40-50 k.p.h. as he rounded the right hand bend immediately before seeing the Third Party's vehicle.

30. He was shown a statement made by him a few hours after these events and agreed that he had said then he was travelling at 50 k.p.h. He then changed his evidence to the extent that he said he would "stick to 50k".

31. He said because it was a flyover he felt it was safe to negotiate the bend at 40-50 k.p.h. in third gear. He said if it was an ordinary road he would have gone around in second gear. Whether he was referring to the camber of the flyover in this part of his evidence, or whether he was referring to his earlier evidence that as he had driven up the upslope of the flyover on the other side of Gloucester Road he had looked over to the downslope and had thought it was clear was not certain. In any event from his evidence, I find he was probably approaching 50 k.p.h. as he rounded the bend on the flyover before the downslope. In my view this was too fast in the conditions prevailing at the time and this is amply borne out by the fact the Defendants vehicle did not stop until it came to rest beyond the Third Partys and First Plaintiffs vehicles.

Were the Third Party's vehicles hazard lights or other lights on

32. When the Defendant rounded that right hand turn he said his view was briefly blocked by the trees that appear in the photographs of the scene that he took in 1988.

33. He said once past the trees, while he was just emerging from the trees, he saw a vehicle ahead on the left hand side of the flyover. He applied his brakes immediately but his vehicle skidded and collided with a group of people near the vehicle and with a another vehicle in front of the first he saw.

34. From this evidence of the Defendant, it seems to me that the alleged lack of lights on the Third Party's vehicle had only a minor, if any, effect on the Defendants reactions.

35. He said he saw the stationary vehicle after he emerged from behind the trees at the bend which obscured his view. He then immediately braked. On his own evidence the only relevance of the state of lighting of the Third Party's vehicle would be perhaps to have rendered it detectable through the obscuring trees or perhaps seen by the Defendant from the other side of the flyover.

36. In any event I accept the evidence of the Third Party and MOK Pang Sang whose statement was admitted pursuant to a hearsay notice that the hazard lights of the Third Party's vehicle were turned on after the collision with the Plaintiffs car. It is the sort of thing which would be remembered by a person at the scene of an accident. In my view also the Third Party was a more reliable witness than the Defendant. He did not embellish or exaggerate his evidence or try to minimise his own role in these events. He said quite candidly that he could not remember if he had left his headlights on as well as his hazard lights, although the Second Plaintiff in his evidence had said the Third Party's vehicle had had its headlights on after the first collision.

37. I do not see any reason for the Second Plaintiff to give deliberately false evidence about the fact that the Third Party had left his headlights on either. Further even accepting that MOK could not be cross-examined I do take into account that this statement was made by him immediately after the event to investigating police. I bear in mind also that after the first collision the parties were outside their vehicles inspecting the damage and exchanging particulars. It seems to me that the main lights of the Third Party's vehicle would likely have been on during this exercise.

38. Taking all of this evidence together, I am satisfied that the probabilities are that the hazard lights and the main lights of the Third Party's vehicle were on as the Defendant in his vehicle rounded the bend and approached. In my view, the Defendant simply did not see them, or does not remember now seeing them.

The Defendants negligence

39. From all of this, I conclude that the Defendant was both driving too fast as he rounded the bend given the conditions of a wet road surface and a downslope after that bend, probably because he had mistakenly assumed from his earlier glance from the other side of the flyover that the downslope was clear and for the same reason had not kept a proper lookout in rounding the bend. In this regard also I am satisfied that the Defendants vehicles speed in these circumstances was too fast. In my view his vehicles brake defect was a further though lesser contributing cause to the accident and that defect existed as a result of a failure to properly maintain his vehicle and was a breach of his duty to so maintain his vehicle, including its brakes, in good and serviceable condition pursuant to Regulation 5 of the Construction and Maintenance of Vehicles Regulations to the Road Traffic Ordinance.

40. I accept from the evidence of both Mr Vickers and Mr Seymour-Hart that the Defendants vehicle had in fact negotiated the right hand bend successfully before its brakes were applied so as to cause it to skid. If its brakes had been applied as it came out of the bend so as to lock its wheels before it had completely straightened, I accept from both experts evidence that the Defendants car would probably have struck the Third Party's car.

41. To collide with the group of people and the Plaintiffs car instead must have meant the Defendant had completed the right hand bend and brought his car into a straight line before he braked so as to skid and lose control.

42. In my view, even allowing for a one second reaction time between observation and effective braking action, as was common ground in this case was required, the Defendant had, it seems probable to me, applied his brakes somewhat later than he suggested in his evidence. That was because he, on the balance of probabilities, was not keeping a proper lookout as he rounded the bend onto the downslope.

The Third Party's liability

43. A preliminary matter in this regard is whether in law the Third Party had a duty of care to the Plaintiffs.

44. From the evidence of the Third Party and from the sketch plan produced in evidence, I accept that both cars were moved over to the extreme left of the flyover as the Third Party says. That is the position they are reflected as being in according to the agreed sketch and that position seems most unlikely to have come about, even if one or both vehicles had skidded as they braked after rounding the bend, without the vehicles having been parked there.

45. On that basis, it was argued before me that there had occurred a break in causation in that the First Plaintiff and Second Plaintiff had decided to position themselves and their own vehicle at that location and had acted jointly with the Third Party in causing an obstruction on the flyover. Accordingly their own actions overlay those of the Third Party and were the most proximate and operative cause of their injuries.

46. I have considered carefully this proposition.

47. In my view my finding that following the initial collision the First Plaintiff and the Third Party both parked their vehicles on the extreme left shoulder of the flyover distinguishes this case from the facts of Rouse v. Squires (1973) Q.B. 889. Fundamental to that case was the finding that the negligence of the Third Party, the driver of the jack-knifed lorry which had caused an obstruction, continued as a matter of causation so as to attach to foreseeable damages suffered by others who were injured by collisions occurring as a result of the obstruction.

48. In this case the Third Party's original negligent act, if that's what it was, in colliding with the First Plaintiff's car was extinguished as a cause of the following collision involving the Defendant because in the meantime both the Third Party and the First Plaintiff had performed another act in moving their vehicles to another close by, but chosen, location on the flyover.

49. In my judgment what the Defendant must establish is that the Third Party was in breach of a duty of care he owed the Plaintiffs in parking his car at that position.

50. In my view, the Third Party owed the Plaintiffs a duty of care. On fundamental principles the Third Party, particularly himself having a few minutes before skidded into the back of the Plaintiffs vehicle, should have foreseen the possibility of injury to the group of people, including the Plaintiffs. That is because in my opinion, the immediate proximity of the Plaintiffs to the parked cars, wherever they particularly chose to stand, was such as should have been in the contemplation of the Third Party that if the location he had parked his vehicle caused oncoming drivers, including those driving too fast or with an imperfect lookout, to lose control of their vehicle then bystanders, including the Plaintiffs, could suffer injury.

51. That duty of care, in my view was owed to the group of individuals gathered at the scene.

52. What was of concern about the Third Party's duty of care to the Plaintiffs was really, in my view, tantamount to concern as to whether the Plaintiffs, by remaining at that location and themselves being aware of the slippery road surface had voluntarily assumed the risks consequent to their being there.

53. No such defence, however was pleaded, nor did the evidence go so far as to support such a defence.

54. I am sure that the Third Party did owe the Plaintiffs a duty of care, just as he did to every individual in that group and that the aspects of the case involving the First Plaintiff parking his own car in the immediate vicinity of the Third Party's car and both Plaintiffs standing outside the line of the parked vehicles go to their possible contributory negligence and does not detract from the duty of care the Third Party owed them.

55. From the sketch plan the Third Party's parking of his vehicle only some 22 metres from the exit of the bend fell below the standard of the reasonable and prudent driver.

56. He knew the road was slippery. He himself had skidded as a result of the rain. He had been travelling, on his own evidence, in second gear and at about 30 k.p.h. at the time. It was a downslope. The vehicle was parked, in vehicle length terms, only some 5-6 such lengths from the corner exit estimated on a bumper to bumper basis.

57. He should have foreseen a faster driver, perhaps one driving somewhat too fast with less than a proper lookout or imperfect brakes skidding to avoid his vehicle and losing control of his own vehicle.

58. I am satisfied that his vehicle was parked too close to the exit of the flyover bend even given that its lights were on and that this caused the Defendant to brake suddenly and, in the conditions, his car to slide into the Plaintiffs.

59. Accordingly the Defendant has made out particulars 2 and 4 of paragraph 6 of his statement of claim against the Third Party.

Apportionment

60. In my opinion considerable, but insufficient, steps were taken by the Third Party to render the scene of the original accident safe. He had turned on his hazard light and left on his main lights. He had parked his car over on the left shoulder of the flyover. He had simply moved his vehicle an insufficient distance from the exit to the bend in the conditions at the scene.

61. The primary responsibility in my mind was that of the Defendant.

62. He was travelling too fast in the circumstances. He knew there was a downslope on the other side of the flyover and that the road surface was wet. He had failed to maintain his vehicle properly and the impaired braking efficiency had reduced his ability to stop and had caused his vehicle to veer into the Plaintiffs.

63. He had not been keeping a proper lookout and had wrongly relied upon the glance he had taken while proceeding up the other side of the flyover so as to assume the road ahead of him around the corner leading to the downslope was clear. In my view the predominance of causative potency in respect of the Plaintiffs injuries is attributable to the Defendant but that some blame in this regard must attach to the Third Party.

64. I apportion liability between the Defendant and Third Party as being 80% of the blame to the Defendant and 20% to the Third Party.

65. I might add two matters. Firstly Miss Sze for the Defendant in the course of her submissions argued that the Third Party's Defence particularised only the Defendants vehicles defective light, which had no causative effect on the accident, and did not particularise the vehicles defective brake which therefore could not be relied upon. But by paragraph 13 of his Defence the Third Party relies on the Plaintiffs statement of claim against the Defendant in support of his claims of contributory negligence and breach of a statutory duty against the Defendant.

66. That statement of Claim amply asserts in its particulars of negligence in paragraph 10 thereof the fact of the defective foot-brake of the Defendants vehicle.

67. I order costs nisi of this hearing to the Defendant.