LING SAI CHEONG v. WAH TUNG THAI TRANSPORTATION CO LTD

HCPI 411/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.411 OF 2004

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J U D G M E N T

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1. The plaintiff claims damages for personal injuries sustained by him in a traffic collision which occurred on 8 May 2002 at about 9:00 a.m. on the Kowloon bound carriageway of Tuen Mun Highway near milestone 27.7.

2. The collision involved a dump truck (Reg. No. JX 8020) driven by the plaintiff and a container lorry (Reg. No. GE 3072) trailing a fully laden container and driven by the 2^nd defendant.

3. In this judgment I am only concerned with the issue of liability since there was an earlier order made for a split trial in this matter.

Background

4. At the time of the collision between the two vehicles, the plaintiff’s dump truck was following the container lorry driven by the 2^nd defendant.

5. About 10 minutes before the collision, both vehicles had been travelling along Tuen Mun Road (as opposed to Tuen Mun Highway).  Tuen Mun Road consists of two lanes.  Both vehicles had been travelling on the slow land of Tuen Mun Road with the plaintiff’s dump truck following the 2^nd defendant’s container lorry.

6. There comes a point when the two lanes of Tuen Mun Road merge with two lanes of the adjoining Wong Chu Road.  After the merger, these four lanes make up the Kowloon bound carriageway of Tuen Mun Highway with the two lanes of Tuen Mun Road becoming the 3^rd and 4^th lanes of that carriageway of Tuen Mun Highway.  The two lanes of Wong Chu Road make up the 1^st and 2^nd lanes of Tuen Mun Highway.

7. When the two vehicles continued past the point of merger and into Tuen Mun Highway, the plaintiff’s dump truck continued to follow the 2^nd defendant’s container lorry on what now becomes the 3^rd lane of Tuen Mun Highway.

8. Shortly after going past the point of merger, the nearside front of the plaintiff’s dump truck scraped into and collided with the rear offside of the container lorry driven by the 2^nd defendant.  After that initial impact, the plaintiff’s dump truck then continued across the 4^th lane of the Kowloon bound carriageway of Tuen Mun Highway and crashed into the concrete central divider of that highway.

9. This accident has resulted in the plaintiff sustaining severe injuries from which he is now left a paraplegic and wheelchair bound.

The plaintiff’s claim

10. The plaintiff claims against the 2^nd defendant for negligence.  The claim against the 1^st defendant is on the basis of vicarious liability for the negligence of the 2^nd defendant, the 1^st defendant being the owner of the container lorry and the 2^nd defendant driving it as the servant or agent of the 1^st defendant.

11. The negligence alleged by the plaintiff against the 2^nd defendant is that the 2^nd defendant braked suddenly and heavily in order to stop and braked in such a way that was unsafe to the plaintiff travelling behind in the dump truck having regard to the traffic conditions along that stretch of the highway.  It is also alleged by the plaintiff that the 2^nd defendant, in braking heavily and suddenly, did so without adequate warning to the plaintiff following.

The defence

12. The defence of the 2^nd defendant is that he had slowed down lightly and gradually due to the traffic in front of him slowing down and was not negligent in so doing but that the plaintiff had failed to maintain a safe distance behind his container lorry.

The evidence

13. The evidence relating to the occurrence of the accident, and more particularly how it happened, comes mainly from the plaintiff and the 2^nd defendant, being the respective drivers of the two vehicles involved.

14. There are other evidence such as the sketch plan prepared by the investigating officer and also photographs taken at the scene shortly after the accident showing the positions of and the damage to the two vehicles, especially the damage to the plaintiff’s dump truck.

15. The evidence from the plaintiff and the 2^nd defendant takes the form of statements given by them to the police, both at the scene and later in written police statements, their respective witness statements prepared for this case (which were adopted by them as their evidence-in-chief), and their oral evidence given in court and more particularly under cross-examination.

16. I shall endeavour to summarise the salient parts of these three aspects of their evidence since they should be seen their proper perspective.

Statements made to the police

17. After the accident, the plaintiff had said to PC 4832, while still at the scene of the accident, “the container truck in front suddenly stopped.  I intended to pass it on the fast lane and had not expected that the left front would hit his right rear”.  These words were recorded by PC 4832 in his notebook contemporaneously.

18. As for the 2^nd defendant, when still at the scene of the accident, he had said to PC 48966 words along the following lines : that he was driving the container lorry along Tuen Mun Road in the direction of Kowloon in the slow lane at a speed of about 40 to 50 k.p.h.  When he reached the spot where the accident occurred, he saw that there was traffic jam in front, he therefore slowed down preparing to stop.  About two seconds later, his vehicle was hit from behind (later known to be by the plaintiff’s dump truck).  His vehicle was pushed forward then stopped.  The right rear of his container was slightly scratched. 

19. At about shortly after 10:00 a.m. on the same day as the accident, PC 48966 went to Tuen Mun Hospital and saw the plaintiff there.  The plaintiff told this officer that at the time of the accident, he was driving JX 8020.  The container lorry in front of him suddenly stopped but he could not brake his vehicle in time and therefore hit the rear part of the container lorry.

20. On 20 May 2002, a written statement was taken from the 2^nd defendant by PC 48966.  That written statement largely repeated what the 2^nd defendant had told PC 48966 at the scene of the accident as to how the accident occurred.

21. On 5 July 2002, the plaintiff gave a written statement to PC 48966 after having been cautioned by the officer for suspected careless driving.  In that statement, the plaintiff said that on the day of the accident, he drove the dump truck JX 8020 along Tuen Mun Highway travelling at about 60 k.p.h. following a container lorry GE 3072 hauling a container.  His truck was some 12 to 15 metres behind the container lorry.  The container lorry suddenly stopped.  He then immediately braked and swerved to the right to avoid it.  However, he was unable to brake in time.  Therefore the left front of his truck collided with the right rear of the container lorry.  The right front of his truck then hit the concrete divider of the highway.  He was trapped inside his truck and felt weakness of his neck and hands but remained conscious without bleeding.  He was later rescued by firemen and sent to Tuen Mun Hospital.

The witness statements

22. In his witness statement dated 27 October 2004 prepared for this case, the plaintiff stated that on the day of the accident, he was driving his dump truck JX 8020 following the container lorry GE 3072 travelling at a speed of about 60 k.p.h.  He believed that was also the speed at which GE 3072 was travelling at since all along he was keeping a distance of about 15 metres from GE 3072.  He was unable to see the traffic condition ahead of GE 3072.  When he reached near milestone 27.7 he saw that GE 3072 suddenly braked.  He also braked and immediately steered right.  However he could not stop his dump truck in time which hit the rear of GE 3072 which then crashed into the central concrete divider before coming to a halt.  The plaintiff did not know why GE 3072 suddenly braked but was sure that the driver of GE 3072 (i.e. the 2^nd defendant) must have braked abruptly.  There was no signal or warning from GE 3072 before the sudden braking.  There was also no traffic jam along that part of the road.

23. The 2^nd defendant also made a witness statement in this matter dated 27 November 2004.  In that statement, the 2^nd defendant stated that he was travelling along Tuen Mun Highway at about 50 k.p.h. and the traffic was busy but not congested.  He was on the 3^rd lane from the left after Tuen Mun Road merged with Wong Chu Road.  The speed limit on that road was 70 k.p.h. for all goods vehicles including container lorries.

24. At that time there was another container lorry travelling in front of him and he had kept a distance of about 100 feet between his container lorry and the one in front of him.  His container lorry was totally 60 feet long (40 feet container and 20 feet cab).  The container lorry in front of him was of a similar length as his.

25. After passing the point where Tuen Mun Road merged with Wong Chu Road, he noticed that the container lorry in front of him slowed down and the distance between them reduced to about the length of one container lorry (i.e. 60 feet).  He checked his rear view mirrors on both sides and found that there were no vehicles travelling behind him on the two lanes to his left and on the fast lane to his right.  He did not see the plaintiff’s dump truck travelling immediately behind him.

26. He then slowed down by taking his foot off the accelerator but cannot now remember if he had placed his foot on the brake pedal.  Even if he did, he would have only pressed lightly on the brake pedal.

27. After slowing down for two to three seconds, he felt an impact from the rear of his vehicle and heard a sound from behind.  He also felt his vehicle was pushed forward with a sudden jerk.  He looked into the rear view mirror on his right and saw the plaintiff’s dump truck had hit the concrete central divider.

28. After being hit from behind, his container lorry was still moving forward.  He then braked hard and applied his handbrake and brought his container lorry to a complete stop.  His trailer had been pushed slightly to the left.

29. He estimated that his container lorry travelled for about 120 feet for the two to three seconds between when he started to slow down up to the point of impact.  He also estimated that his vehicle travelled for a further ten feet from the point of impact until it came to a complete stop.

30. As for the container lorry which was travelling in front of him, it did not slow down or stop after the accident occurred but continued to travel forward and went off.

31. After he had stopped, the 2^nd defendant went over to the plaintiff’s dump truck.  He saw that both the left and the right part of the dump truck to be damaged.  He also saw a fire on the right front part of the dump truck below the driver’s seat.  He tried to rescue the plaintiff from the dump truck, but the plaintiff’s legs were trapped.  The plaintiff was conscious and was complaining of pain.

32. He tried to put out the fire using a fire extinguisher but could not do so.  Later a policeman came along and using another fire extinguisher put out the flame.  The injured plaintiff was still in the dump truck and was only freed when firemen came to the scene.

33. There was also a supplemental witness statement from the plaintiff dated 16 December 2004 in which the plaintiff stated that throughout the journey (leading up to the accident) he had never thought of nor done anything trying to overtake GE 3072.  When GE 3072 suddenly braked, he also braked and steered to the right.  He steered to the right because he did not want to crash into GE 3072 directly.  He had never intended to overtake GE 3072.

The evidence in court and cross-examination

34. As already indicated, both the plaintiff and the 2^nd defendant adopted their witness statements as their evidence-in-chief at the trial.  When the plaintiff gave evidence, he confirmed that the traffic condition on the day of the accident was smooth and the traffic was moderate.  He had followed GE 3072 for some 10 minutes before the accident happened.  Both vehicles were travelling at about 60 k.p.h. and he had kept a distance of about one to two vehicles’ length (i.e. the length of his dump truck, being about eight metres) from GE 3072.

35. He said that he had checked the traffic behind him on the outer lane (i.e. the 4^th lane) to his right by looking at the right rear view mirror.  After checking the traffic on the outer lane, he looked in front and saw the brake lights of GE 3072 come on and that GE 3072 slowed down a lot.  He at once applied his brakes and steered to the right to avoid hitting GE 3072.  After its brake lights had come on, GE 3072 still travelled further a short distance.  He was unable to avoid hitting the rear of GE 3072.  At the time of this impact, he was not sure but thinks that GE 3072 had halted.  His dump truck then continued across the 4^th lane and crashed into the central concrete divider.

36. He also said he had told the officer investigating the accident that he had kept a distance of about one to two vehicles’ length (meaning his own vehicle) from GE 3072 and that his dump truck was about eight metres long.

37. Under cross-examination, it was suggested to the plaintiff that he did not see the brake lights of GE 3072 come on.  This was denied by the plaintiff.

38. It was also suggested to the plaintiff that he was trying to overtake GE 3072 and just at that time GE 3072 slowed down leaving insufficient clearance space for him to overtake but the plaintiff still attempted to overtake.  That was why the plaintiff said what he said to the officer at the scene of the accident and that was also consistent with the plaintiff’s evidence of checking the outer lane for traffic before he saw the brake lights of GE 3072 come on.

39. This too was denied by the plaintiff.  The plaintiff also denied that he meant to tell the officer at the scene that he was overtaking or intending to overtake GE 3072.  What he meant to tell the officer was that he was trying to avoid hitting GE 3072 by steering to the outer lane on the right.

40. Under cross-examination the plaintiff also said that it was his understanding that a driver was required by law to keep a distance of two vehicles’ length from the vehicle in front of it.

41. In re-examination, the plaintiff clarified that he had kept a distance of one to two vehicles’ length from GE 3072 before the brake lights of GE 3072 came on.  When he saw the brake lights of GE 3072 and re-acted to it, he was about one and a half vehicle’s length from GE 3072.  Before seeing the brake lights of GE 3072, he was more than one and a half vehicle’s length from GE 3072.

42. The 2^nd defendant adopted his witness statement as his evidence and topped it up by giving the following evidence in court.

43. He was driving the container lorry GE 3072 following another container lorry along Tuen Mun Road and then Tuen Mun Highway for some 20 minutes before this accident.  For those 20 minutes, he was travelling at a speed of about 60 k.p.h., sometimes faster sometimes slower.  Traffic was busy that time of the morning.

44. The gap which he had kept between GE 3072 and the container lorry in front was about 120 feet (i.e. two vehicles’ length of his container lorry) but varied from time to time during that 20 minutes before the accident.  Sometimes it was more than two vehicles’ length and sometimes, as at the time of collision, it was down to about half a vehicle’s length.

45. Just before the collision occurred, that gap was reduced to about one vehicle’s length because vehicles in front of him slowed down which caused him to decelerate with the intention to widen that gap again.  He decelerated by lifting his foot off the accelerator.  His normal practice was after removing his foot from the accelerator to place that foot over the brake pedal but he can’t remember whether in this case he had applied any force on the brake pedal.  However, he was sure that he did not apply heavy braking.

46. At that time after decelerating, the gap with the container lorry in front was down to half a vehicle’s length when he heard a bang sound from the rear.  He then looked into the rear view mirror on the right and saw the plaintiff’s dump truck.  He only saw the plaintiff’s dump truck after the initial impact with his container lorry (at that time he did not know of the plaintiff’s truck crashing into the central concrete divider).

47. His container lorry was pushed forward by the impact with the plaintiff’s dump truck before he braked to bring it to a complete stop.

48. Before hearing the bang sound from behind, he did not brake hard.  He had decelerated to about 30 k.p.h. when he heard the bang sound from behind.

49. After the collision with the plaintiff’s dump truck, the container lorry which was in front of him drove off and never came to a complete stop.

50. When cross-examined, the main thrust of the questions put to the 2^nd defendant was on the basis that his oral evidence was put on the footing that he had taken off his foot from the accelerator to decelerate the container lorry because traffic in front had slowed down.  On the other hand, he stated in his police statement that because of traffic jam ahead, he slowed down and prepared to stop.  When it was suggested to him that “slowing down preparing to stop” is very different from taking one’s foot off the accelerator, the 2^nd defendant agreed that he had told the police officer that he was braking preparing to stop.

51. Further cross-examination along these lines drew the further admission from the 2^nd defendant that he had pressed on the brakes (before the actual collision) for if not, he would have collided with the container lorry in front of him (which was slowing down).

52. In re-examination the 2^nd defendant said that the vehicle in front of him did not brake heavily but had slowed down from about 60 k.p.h. to about 30 k.p.h. gradually.  He then applied fair or medium force to his brake pedal to slow down his own container lorry.  It was not possible that he had completely stopped before the impact.

The other evidence

53. Quite apart from the evidence given by the plaintiff and the 2^nd defendant, there are some other evidence which I took into account in coming to my determination in this case.  These other evidence are as follows :

(a)	the sketch plan prepared by PC 48966, the investigating officer in respect of this accident;
(b)	the evidence as contained in the witness statement of PC 48966 that he saw no tyre marks from the two vehicles involved in this accident when he was at the scene of the accident carrying out investigations; and
(c)	all the photographs and video produced into evidence showing the layout of the scene and the damage to both vehicles.

Assessment of the evidence and finding of fact

54. The plaintiff was quite obviously physically handicapped as a result of the injuries sustained by him from this accident and he had to give evidence from his wheelchair.  However, apart from the physical handicap, the plaintiff’s evidence was not in any way affected by his being physically handicap and wheelchair bound.

55. It was suggested by the defence to the plaintiff that immediately before the accident, the plaintiff was intending to or attempting to overtake GE 3072 in front of it.  The plaintiff denied such suggestion.  I have no hesitation in accepting the plaintiff’s denial of that suggestion even though it may appear on the face of it that the plaintiff had admitted as much to PC 4832 at the scene of the accident.

56. There are a number of good reasons for me to accept the plaintiff’s evidence that he was not trying to overtake GE 3072 which are as follows :

(a)	there is no dispute that the plaintiff had been following GE 3072 travelling at about 60 k.p.h. for some 10 minutes or so before the collision.  If the plaintiff had wanted to overtake GE 3072, he would not have followed GE 3072 for all that 10 minutes at that speed;
(b)	60 k.p.h. was almost the maximum speed for goods vehicle on that part of Tuen Mun Highway, the maximum speed being 70 k.p.h.  There was no reason for the plaintiff to want to go any faster without exceeding the speed limit; and
(c)	there is evidence from the 2nd defendant that goods vehicles (including the plaintiff’s dump truck) are not permitted to travel on the 4th lane (i.e. the outer lane of Tuen Mun Highway).  The plaintiff is an experienced truck driver who has frequently driven on the Tuen Mun Highway and can be expected to know this.  There was no good reason for the plaintiff to commit a traffic violation by overtaking GE 3072 on the outer lane of the highway.

57. I further accept that although PC 4832 had recorded what the plaintiff said to him when at the scene of the accident contemporaneously in his notebook, at the time that these words were said by the plaintiff, the plaintiff was in great pain such that he may not have expressed himself clearly or that what he had said may have been misunderstood by PC 4832.

58. This is further supported by the fact that shortly after 10:00 a.m. that same morning, when the plaintiff was seen by PC 48966 in Tuen Mun Hospital, what the plaintiff said to PC 48966 was quite different from what had been noted down by PC 4832 less than an hour earlier, but was consistent with the rest of the plaintiff’s evidence as to what had happened.

59. I must also take into account the plaintiff’s own evidence that he believed that it was the law that a driver had to keep the length of two vehicles’ spaces behind the vehicle in front of him.  That I think is a complete misunderstanding on the part of the plaintiff and counsel for the plaintiff has not sought to uphold or justify that understanding of the plaintiff as being correct.

60. As for the evidence of the 2^nd defendant, it is quite clear that he has been very defensive and guarded when giving his statements and his evidence.

61. Initially he gave his speed before the accident to be 40 to 50 k.p.h. but by the time he was in the witness box, he had accepted that he was travelling at about 60 k.p.h. before the collision.

62. In all his statements (witness as well as to the police) he had never committed himself to saying that he had braked before the initial impact between the two vehicles.  All along, it was put on the basis that he had decelerated by taking his foot off the accelerator.

63. It was only in the witness box under cross-examination that he agreed he had to brake else he would have collided with the container lorry in front of him.

64. With this final admission by him as to braking with fair or medium force in re-examination, I am of the view that the braking was somewhat heavier than he had cared to admit before being cross-examined.

65. However, I must also keep in mind his evidence that he had kept about 120 feet from the container lorry travelling in front of him and that the closest they came to was half a vehicle’s length which translates to about 30 feet away.  That was when the impact with the plaintiff’s dump truck occurred.

66. There is also his evidence that after the impact with the plaintiff’s dump truck, the container lorry in front of him never did stop but went off ahead.

67. This evidence from the 2^nd defendant cannot and has not been disputed by the plaintiff.

68. What is quite obvious is that there was no collision between the container lorry driven by the 2^nd defendant and that other container lorry travelling in front of the 2^nd defendant.

69. Another aspect of the evidence which, in my view, is quite important in this case is the fact that there were no brake marks or tyre marks left by either the plaintiff’s dump truck or the container lorry driven by the 2^nd defendant on the road at the scene of the accident.

70. This indicates that there was no emergency or heavy braking by either driver to the extent that the wheels of their respective vehicles locked causing brake marks to be left on the road surface, bearing in mind that the morning in question was fine and sunny.

71. I therefore make the following findings of fact in this case.

72. What I believe to have happened based on all the evidence before me is that when the traffic in front of the 2^nd defendant slowed down, the 2^nd defendant had lifted his foot from the accelerator pedal when the container lorry in front of him was about one and a half vehicle’s length ahead, which means about 90 feet away.

73. It is not clear from the evidence at what point in time the 2^nd defendant applied his brake with fair or medium force as he said, but it would appear likely that that was done when the container lorry in front of him was much less than 90 feet away or else the 2^nd defendant would not have thought there might be a collision with the vehicle in front if he did not apply his brakes, bearing in mind that the closest the container lorry in front of the 2^nd defendant came to was about 30 feet.

74. In any event, I accept his evidence that it was not hard braking or emergency braking, but fair or medium braking by which he was able to reduce his speed down to 30 k.p.h. in a matter of two to three seconds.

75. The plaintiff’s evidence was that he saw the brake lights of GE 3072 come on when it was about one and a half vehicle’s length away (i.e. about 10 or 12 metres).

76. What very likely happened was that when the plaintiff saw the brake lights of GE 3072, the plaintiff did not expect that GE 3072 would reduce its speed to 30 k.p.h. in those two or three seconds and therefore the plaintiff, although he re-acted, did not apply his brakes hard enough to sufficiently reduce his own speed.

77. The fact that the plaintiff had time to check his rear view mirror and then to steer right further support my view that neither vehicle were applying their brakes hard or by way of emergency stopping.

78. As a result, the nearside front of the plaintiff’s dump truck scratched against the offside rear of the 2^nd defendant’s container lorry.  Also as a result of the plaintiff’s failure to apply his brakes heavily enough, his dump truck continued across the outer land and crashed into the concrete central divider of the highway.

Liability

79. On the facts as I have found above, I cannot see how the 2^nd defendant was negligent.

80. The question of the liability of the leading driver (in this case the 2^nd defendant) will depend on whether the sudden stop was owing to that driver’s negligence or to some other cause.

81. In the present case, on the facts as I have found, I cannot see that there was anything which the 2^nd defendant did or failed to do which was below the standard of a reasonable driver.

82. With hindsight it may be said that it would have been better for all concerned if the 2^nd defendant had put on his hazard lights the moment that he saw traffic in front of him slowing down.  That may well be so, but the standard which I have to apply to determine whether or not the 2^nd defendant was negligent in this case is the standard of a reasonable driver, not any higher standard than that.

83. If it was necessary for me to make a specific finding as to the cause of this accident, I will have to put it down to the plaintiff’s misconception as to the distance which he should keep from the vehicle in front of him.  In this case 15 metres was not a reasonably safe distance to keep from GE 3072 in front when both of them were travelling at a speed of about 60 k.p.h.

84. Moreover a further cause of the accident was due to the fact that the plaintiff failed to appreciate the intensity of the deceleration by GE 3072 when he saw its brake lights.

85. I accept that the brake lights alone will never tell a following driver the intensity of the force of the brakes being applied and very often that can only be gauged by the naked eye seeing the speed by which the gap with the vehicle in front reduces.

86. That makes it all the more important for a following driver to keep at a safe distance, particularly when travelling at a higher speed when a dead stop is more difficult to achieve.

87. Accordingly and for the reasons given, I find that the plaintiff has failed to establish negligence on the part of the 2^nd defendant and liability has not been proven.

88. The plaintiff’s claim against both defendants is therefore dismissed with costs (being a costs order nisi).