FAN WAH AND ANOTHER v. KONG CHUNG KWONG AND OTHERS

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

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JUDGMENT

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1. The late Mr. Fan Sin Shun was killed on the 27th May 1979 when the 1,000 c.c. Suzuki motor cycle registration no. BU 8952 on which he rode as a pillion passenger collided with a tree on the Castle Peak Road near the 28½ milestone. He was thrown from the motor cycle, receiving injuries from which he died later the same day. The motor cycle was driven by the 1st defendant and owned by the 2nd defendant. The pleadings admit that the 1st defendant was driving as the 2nd defendant's servant or agent at the time of the accident.

2. A 40 hundredweight Leyland goods vehicle, bearing registration no. BV 8946, was also involved in this accident. That lorry was driven by the 3rd defendant and owned by the 4th defendant. Although there is no explicit admission on the pleadings that the 3rd defendant was driving as the servant or agent of the 4th defendant, this was not a live issue in the case so that, applying the usual presumption, I unhesitatingly hold that the 3rd defendant was driving as the 4th defendant's servant or agent.

3. The present proceedings are brought on behalf of the estate of the late Mr. Fan, alleging that either or both of the 1st defendant and the 3rd defendant are liable in negligence in respect of Mr. Fan's death. Vicarious liability is alleged against the 2nd and 4th defendants.

4. I am asked to rule solely on the issue of liability.

5. The accident occurred on a long, straight stretch of road in ideal driving conditions. It was 9.40 in the morning; visibility was excellent; the weather was fine and dry; the road surface was good. There was a single carriageway in each direction.

6. The 1st defendant was aged 44 at the time of the accident. He had only been licensed to drive motor cycles for a year or so at that stage, but he had been driving cars for over 20 years. That morning, he picked up his friend, the late Mr. Fan, at Fanling Railway Station. Mr. Fan had his own crash helmet with him. I have no doubt that Mr. Fan donned his crash helmet immediately on mounting the motor cycle and continued to wear it until the crash. Although the pleadings disputed this, the matter was not actively pursued at the trial. The unchallenged evidence of Police Sergeant 7521 who saw Mr. Fan lying on the road immediately after the accident showed beyond all doubt that he had been wearing his crash helmet at the time of the crash.

7. The arrangement between the 1st defendant and Mr. Fan was to drive to Pearl Island for tea. They proceeded along Castle Peak Road, heading towards Yuen Long.

8. According to the 1st defendant's version, the last thing he remembers is driving along a tree-lined stretch of Castle Peak Road. As it was a road with which the 1st defendant was unfamiliar, Mr. Fan was giving him directions as to the route. He drove along, on his own side, near the centre line of the road. The conditions were perfect for motor cycling. There was nothing ahead of him. He did not look in his rear view mirror. The next thing he knew was when he woke up in hospital, severely injured in the accident which took Mr. Fan's life.

9. In a statement which the 1st defendant made to the police a few weeks, after the accident, he claimed that, as he rode along, it seemed as if "someone had chopped me with a knife at my back and when I regained consciousness I was lying in hospital where I have been remaining till now".

10. In his evidence in chief, the 1st defendant made no reference to having been hit by anything from behind. When, under cross-examination, his statement to the police was drawn to his attention, he contended that he remembered sensing something pushing him from behind.

11. If the court were to accept the 1st defendant's suggestion that something had hit or pushed him from behind, it would support a hypothesis that the lorry driven by the 3rd defendant had ran into the back of the motor cycle. Such a hypothesis would totally exonerate the 1st defendant, while wholly inculpating the 3rd defendant.

12. The condition of the motor cycle and the lorry after the accident are not consistent with the lorry having driven into the back of the motor cycle. The motor cycle was undamaged at its rear, while there are no marks visible on the front of the lorry. Moreover, there were marks on the wooden step of the lorry leading up to the driver's door on the offside, and also on the offside front wheel, which indicate that the part of the lorry which came into contact with the motor cycle was the offside part in the vicinity of the front wheel and the driver's door. In particular, there was gear oil on the edge of the step of the lorry which could be indicative of the side of the motor cycle in the vicinity of its gear-box coming into contact with the side of the lorry. The condition of the motor cycle, too, militates against a suggestion that the motor cycle was struck from behind. The left handle bar of the motor cycle was bent downwards, suggesting that the point of impact for the motor cycle was its nearside in the vicinity of the handle bars.

13. The total picture from the condition of the two vehicles strongly suggests that the offside of the lorry in the vicinity of the driver's door came into contact with the nearside of the motor cycle in the vicinity of the handle bars.

14. The evidence about the condition of the vehicles comes from the undisputed photographs exhibit P1A - O, and from the testimony of Police Sergeant 7521 which I accepted in full.

15. Beside the inference to be drawn from the condition of the vehicles, there was also the evidence of the 3rd defendant and his wife, Chan Kiu, who was in the passenger seat in the cabin of the lorry at the time of the accident. Both the 3rd defendant and his wife disputed that the lorry had run into the back of the motor cycle, their evidence being to the effect that the offside of the lorry must have come into contact with the nearside of the motor cycle while the two vehicles were being driven in the vicinity of the tree with which the motor cycle collided.

16. I reject the hypothesis that the lorry might have run into the back of the motor cycle. Such a hypothesis is inherently improbable; it is contradicted by the physical condition of the vehicles; and it is contradicted by the evidence of the 3rd defendant and his wife which I accept generally on how the accident happened, although I do not accept all the details of the 3rd defendant's evidence as to how he was driving. In due course, I will elaborate my views on the evidence of the 3rd defendant and his wife.

17. The 1st defendant's evidence about sensing something pushing him from behind was very vague, to say the least. I did not feel that he was telling the court what he genuinely remembered on that. I think it is possible that, as the result of endlessly pondering over this event in his mind, the 1st defendant has convinced himself that he could have been pushed from behind. The impression I got was that, more probably than not, he was suffering from amnesia in respect of the actual circumstances of the accident. He got a knock on the head, and I think he simply cannot remember what happened. His evidence suggesting he might have been struck from behind is, I think, more in the nature of speculation on his part rather than what he actually remembers.

18. I accordingly reject any part of the 1st defendant's evidence suggesting that his motor cycle might have been struck from behind. However, I see no reason to doubt his evidence that up to the point where his recollection ceased he was driving along the crown of the road in a normal manner at about 40 m.p.h.. As he was a mature man at the time of the accident and as he impresses me as a reasonable sort of person, I am prepared to accept that, generally, he was driving sensibly that day. However as, on the view I take, his recollection fails in respect of the crucial phase immediately before the accident, his evidence is of very limited value for the purposes of the present case.

19. Another possibility, of course, is that he does remember what happened, but does not wish to tell the court about it for fear of inculpating himself. I cannot look into his mind, and the most I can say is that the impression I got on a balance of probability was that he cannot remember what happened.

20. The 3rd defendant's version of what happened is that as he drove along towards Yuen Long he saw a New Territories taxi some four or five hundred yards ahead of him. As he got nearer that taxi, he saw that it was stationary at the kerb on the same side of the road as himself, just before a bus bay, picking up passengers. The 3rd defendant had been proceeding along that stretch of road at about 30 m. p. h.. When he was about 20 yards away from the stationary taxi, he looked in his rear view mirror and for the first time saw a motor cycle which was then about a 100 yards behind him at the crown of the road coming in the same direction. Despite looking in his mirror, the 3rd defendant got no idea of the motor cycle's speed. The 3rd defendant put on his indicator and pulled to the other side of the road to overtake the taxi. When he was about 15 yards past the taxi and still continuing straight ahead on the wrong side of the road, he heard a cracking sound from the vicinity of the driver's door on his vehicle. Apart from his initial glance in the mirror before overtaking, the 3rd defendant did not look in his rear view mirror again during the whole manoeuvre. Imagining that the cracking sound was caused by the offside of his vehicle brushing against the trees at the side of the road, the 3rd defendant pulled back to his side of the road, stopping about 20 yards past where he had heard the cracking sound. On alighting from his lorry, he saw that the motor cycle had crashed next to a tree in the vicinity where he had heard the cracking sound. On this version, the 3rd defendant would have maintained a constant speed of about 30 m.p.h. in his approach to, and the overtaking of the New Territories taxi.

21. On the 3rd defendant's version, the 1st defendant's motor cycle must have tried to overtake the 3rd defendant's lorry while the 3rd defendant was engaged in the manoeuvre of overtaking the taxi. I am satisfied that is what did in fact happen, namely that the lorry and the motor cycle overtook at the same time with the tragic consequence that the motor cycle got squeezed between the lorry and the tree next to which the motor cycle came to rest.

22. However, I cannot see my way to accepting the 3rd defendant's version of how he looked in his mirror before overtaking, and of what he is supposed to have seen in his mirror.

23. Even on the 3rd defendant's own version of this overtaking, he was not keeping a proper lookout and did not execute the overtaking in a safe manner. To leave the overtaking until he was only 20 yards away from the taxi when he was travelling at 30 m.p.h. was not safe, for a start. Being so close to the taxi, he would have had no choice other than to overtake, regardless of what was coming up from behind. To see the motor cycle for the first time on a straight stretch of road when it was as close as 100 yards behind is not indicative of keeping a proper lookout. A reasonable driver constantly monitors the rear view mirror. During the 400 to 500 yards stretch while the 3rd defendant's lorry was closing on the New Territories taxi, the 3rd defendant must have contemplated that in all probability he would need to overtake the New Territories taxi, and, in preparation for that, he should have frequently looked into his rear view mirror to see whether overtaking would be a safe exercise. On his own admissions, he was not doing that. Then, to overtake without determining the speed of the motor cycle coming up from behind was not safe. Just to look in the rear view mirror is not by itself sufficient. The glance has to be sufficiently long to gain an idea of the speed of the machine approaching from behind. Knowing that a machine is approaching from behind, a careful driver continues to pay regular heed to it in his rear view mirror.

24. The view I have formed on the evidence as a whole is that probably the 3rd defendant did not look in his mirror at all before overtaking. If he had done so, it is almost inconceivable that he would not have realised that the motor cycle was going to attempt to overtake as well. That the 3rd defendant was unaware that the motor cycle was running along side him, trying to overtake, can be gathered from the way in which the 3rd defendant brought his vehicle to a halt. If he had known that the motor cycle was attempting to overtake, I am sure he would immediately have realised that the sound which he undoubtedly heard from the vicinity of his offside door was caused by the motor cycle coming into collision with his vehicle. He would then have done everything within his power to stop immediately, rather than pull into his own lane before stopping.

25. On the 3rd defendant's version of events, the 1st defendant would have needed to be driving his motor cycle at about 100 m.p.h. at the time of the collision. The 3rd defendant was travelling at 30 m.p.h.. He pulled out to overtake 20 yards behind the taxi and had travelled 15 yards past the taxi when he heard what was undoubtedly the impact of the motor cycle. Allowing for the length of the taxi, the 3rd defendant would have travelled about 40 yards. In the same time, the motor cycle would have travelled 140 yards. A simple calculation shows how fast the motor cycle would have needed to be going to do that. Had the motorcycle been travelling at such an enormous speed, it is inconceivable that the 3rd defendant would have been unaware of that circumstance had he really looked in his rear view mirror.

26. The 3rd defendant is obviously hiding something. What he says just does not make sense. The reality of the matter is, I think, that he faces a dilemma. He clearly did not know what was happening on his offside as he drove along, but he does not want to have to admit that he was not paying proper attention to his rear view mirror. To get around the difficulty of not being able to explain why he did not know what was going on behind him, he has come up with this implausible story of having looked in his mirror once only, seeing the motor cycle, but having nothing register in his mind about its speed. As I have said, I do not believe he looked at all to see what was behind him before overtaking.

27. I believe the 3rd defendant's evidence generally about what happened, except for the part about his use of his rear view mirror. I also believe his wife's evidence generally, although I really wonder whether she did notice her husband put on his indicator, as she claimed. However, even if he put on his indicator, it would not follow that he looked in his mirror. All her evidence amounted to, really, was that the side of the lorry must have been in collision with the side of the motor cycle, rather than a rear-end collision of the type suggested by the 1st defendant.

28. I am satisfied that the 3rd defendant was not keeping a proper lookout and that his manner of driving amounted to negligence which caused the motor cycle to crash. However, this does not exonerate the 1st defendant. The only reasonable hypothesis is that he was trying to overtake the lorry as it was overtaking the New Territories taxi. For the 1st defendant to attempt to overtake on a motor cycle in the circumstances existing on that road was clearly negligent. From the plan (Exh. P2) the accuracy of which I accept, and the photographs (Exh. P1), it is clear that the road was only about 19 or 20 feet wide, and had trees along both sides. For a motor cycle to attempt to squeeze past as a lorry overtook a taxi in such circumstances was clearly negligent on the part of the rider of the motor cycle.

29. I therefore hold that the 1st defendant and the 3rd defendant were each guilty of negligence and I therefore give judgment against both of them. Inevitably, I also give judgment on normal vicarious principles against each of the 2nd and 4th defendants.

30. As between the lot and 3rd defendants, I regard them as equally to blame for this accident so that as between themselves contribution to the damages will be at the rate of 50%. Likewise, of course, the contribution between the 2nd and 4th defendants will also be at the rate of 50%.

31. One further aspect of this case calls for comment. Under the routine application of Police Standing Orders, the Police Accident Investigation File appears to have been destroyed some time last year. Prior to such destruction, the police made microfishes of part of the contents of the file, but not all. In particular, no copy was kept of the statements originally taken from witnesses in Chinese. All that remain are uncertified translations of those documents, which, needless to say, causes no end of problems from an evidentiary point of view.

32. Although the accident happened a long time ago, the police should have realised that there still might be a need for the whole of the material on their file for the purpose of pending litigation. Letters from solicitors for the parties must have alerted the police to that possibility.

33. Obviously, the destruction of a file in such circumstances creates difficulties for the proper administration of justice. I therefore suggest that Police Standing Orders should be amended so as to ensure that original material is not destroyed where litigation is still in prospect. If keeping the originals poses too many problems, then the policy should be changed so that the whole of the content of the file is mircrofiched, rather than just selected parts, as at present.