WONG KING CHEUNG v. CHAU KAM CHOI

HCPI 101 of 1998
formerly HCA 1623 of 1990

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 101 OF 1998

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J U D G M E N T

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1. The Plaintiff ("Mr. Wong") was riding his motorcycle CG5270 along the Kowloon bound carriageway of Kwai Chung Road at about 8 a.m. on 21st April, 1987. The Defendant ("Mr. Chau") driving a lorry CY2572 arrived at that location at the same time. The two vehicles collided at a position about 30 metres from the exit of Container Port Road into Kwai Chung Road. As a result, Mr. Wong suffered severe injuries in the back of his head and, apparently, loss of memory. In 1990, a writ was issued on his behalf for negligence against Mr. Chau. I now have the task of determining his claim for damages against Mr. Chau.

The Plaintiff's Case

2. In his evidence in chief in the form of written witness statement, Mr. Wong alleged that, in that fateful morning, he went from Kam Tin to Tsuen Wan through Yuen Long and Tuen Mun Highway. In Tsuen Wan, he got onto Kwai Chung Road heading for Kowloon. Along Kwai Chung Road a train of vehicles led by Mr. Chau's lorry followed Mr. Wong's motorcycle. Mr. Wong felt that the lorry wanted to overtake him. He thought it was too dangerous to let the lorry overtake him because half the road was closed and the remaining passage of the road would not allow two lorries to travel abreast. When he reached that stretch of Kwai Chung Road merging with the Kowloon bound Container Port Road, the lorry driven by Mr. Chau started to overtake him. He was hit at the back of his head by the left wing mirror of the lorry and lost consciousness.

3. When cross-examined by Miss Sze for the defence, Mr. Wong at times was either going off on a tangent or being evasive. But, question by question, he elaborated upon his original account. He said he was followed by Mr. Chau's lorry for at least 600 metres and the distance between Mr. Chau's lorry and his motorcycle was about 12 to13 metres. When pressed for the reason why he felt the lorry wanted to overtake him, he said because the lorry was not far behind and it followed him when he rounded a bend. Asked several times, he maintained that half of Kowloon bound Kwai Chung Road was closed making it dangerous for the lorry driven by Mr. Chau to overtake him on his motorcycle. Asked what he meant by half of Kwai Chung Road being closed, he said at least two lanes closed. At one stage, he said it was the two lanes on the right there were closed. After being shown a sketch and photographs taken from the police file, he conceded that he was wrong about the right side of Kwai Chung Road being closed. He said he was on the third lane from the kerb before the accident occurred. At this point, the hearing was adjourned for lunch.

4. After lunch, in the wake of a series of questions again and further about the conditions of Container Port Road, Kwai Chung Road and what he experienced, Mr. Wong suddenly said that there was no traffic following him when he was travelling along Container Port Road. He was immediately asked if he came out of Container Port Road into Kwai Chung Road. He said he did. Then he said he continued to travel for a distance along Kwai Chung Road before the accident occurred. During that distance, Mr. Chau's lorry followed him. He insisted that at least half of Kowloon bound Kwai Chung Road was closed making it dangerous for the lorry driven by Mr. Chau to overtake him on his motor cycle. He also maintained that on Kwai Chung Road the lorry driven by Mr. Chau came up from behind causing the collision. Asked why earlier he went into great lengths to say that he did not come out from Container Port Road, he said that was irrelevant.

5. When re-examined by Miss Lau, Mr. Wong replied again that he entered Kwai Chung Road from Container Port Road. Miss Lau drew a blank from Mr. Wong as to how he got onto Container Port Road. He was adamant, however, that whilst on Kwai Chung Road the lorry driven by Mr. Chau followed him for some distance. The distance, he revised his earlier estimate, was 500 metres but it could also be 400 metres or 300 metres.

6. Miss Lau was naturally concerned about the accuracy of the case she opened on behalf of Mr. Wong. I told her she needed not worry. I understood she and those instructing her might have had difficulties getting instructions. The same evening, Miss Lau and those instructing her spent considerable time surveying Kwai Chung Road and looking for Container Port Road. The following morning, Miss Lau informed the court that she could not find Container Port Road but she did find a major road on a flyover leading from Tuen Mun descending into Kwai Chung Road. She could not figure out how Mr. Wong coming by Tuen Mun Highway could get on to Container Port Road. Clarification was then sought from Mr. Cheng the senior police constable who investigated the traffic accident. The officer said that the part of Container Port Road referred to by Mr. Wong no longer exists. The other flyover Miss Lau discovered is Tsuen Wan Road which merged with Kwai Chung Road at a point about one kilometre from where the Container Port Road exit used to be. The officer confirmed that it was possible to get onto Container Port Road from somewhere in Tsuen Wan although this would not be a short cut. Miss Lau also later questioned Mr. Chau about the route to Kowloon bound Container Port Road. Mr. Chau naturally replied that it was possible to get onto Container Port Road from somewhere in Tsuen Wan.

The Defendant's Case

7. Mr. Chau's evidence in chief was that he was originally travelling in the first lane along Kwai Chung Road. When that lane merged with the second lane, he became travelling on the second lane. There was no traffic on that road ahead of or behind him. Shortly before reaching the Container Port Road exit into Kwai Chung Road, he noticed a container lorry on Container Port Road coming to a halt at the junction of that road with Kwai Chung Road. He also noticed Mr. Wong's motorcycle, still on Container Port Road, coming out from behind the container lorry to overtake that container lorry. Mr. Chau decided to continue on his path along Kwai Chung Road. Seconds later he heard one bang sound and then he noticed that an accident had happened. At no time did Mr. Wong's motorcycle travel along Kwai Chung Road ahead of his lorry. He believed that the accident occurred when Mr. Wong or his motorcycle came into contact with the middle of his lorry on the left.

8. Although Mr. Chau held fast to his basic account during cross-examination, probing and taxing by Miss Lau during cross-examination exposed weaknesses in Mr. Chau's account of the accident. These will be addressed in due course.

Other Evidence

9. Neither party really challenged the evidence of Mr. Cheng the traffic police officer. Before the police arrived at the scene of the accident, the motorcycle had not been moved from the place where it rested after the collision; but Mr. Chau had moved his lorry in order not to cause obstruction to traffic.

10. Mr. Cheng gave indisputable evidence about the layout of Kwai Chung Road and Container Port Road near the scene of the accident. A sketch prepared by him shows that the Kowloon bound carriageway of Kwai Chung Road had four lanes. The first and second lanes from the kerb did not merge as Mr. Chau said. The broken lines separating the two lanes simply stopped a short distance before the exit from Container Port Road making it difficult to distinguish the two lanes from then on. My reading of the sketch is that the exit from Container Port Road merged with the first lane on Kwai Chung Road. The merger insertion was marked by chevron markings on the road surface. Unless it is a motorcycle with a very small footprint, I believe a vehicle travelling on the first lane of Kwai Chung Road would have to traverse the chevron markings to continue to the first lane beyond the exit from Kwai Chung Road. On the day in question, almost the entire width of the first lane of Kwai Chung Road shortly beyond the exit from Container Port Road was sealed off by standing cones. Thus, vehicles which came from Container Port Road or were travelling on the first lane of Kwai Chung Road had to move into the second lane of Kwai Chung Road to continue heading for Kowloon.

11. Mr. Cheng informed the court that, after collision, Mr. Wong's motorcycle left a single line of scratch mark, 14.4 metres long, on the road surface of the second lane from the kerb of Kwai Chung Road. The distance from the point where Container Port Road merged with Kwai Chung Road to the starting point of this scratch line was about 20 metres. The end of that scratch line was marked by two blood stains. Beyond that, there was a patch of scratch marks on the road surface made by Mr. Wong's motorcycle until where it rested on its side. Mr. Cheng believed that the blood stains indicate the position where Mr. Wong and his motorcycle had fallen flat on the ground.

12. Mr. Cheng himself inspected both vehicles for damage. He agreed with the police Motor Vehicle Examiner's report that the only damage found on Mr. Wong's motorcycle was the bent off-side steering handlebar and the only damage on Mr. Chau's lorry was scratch marks on the left front wheel metal ring which was painted white. Two patches of white paint which he believed matched the scraped paint of the said metal wheel ring were found on the right rear part of the helmet worn by Mr. Wong. The helmet also had a number of scratch marks or indentation on the side and in the back. Mr. Cheng said that some of the scratch marks were clearly old ones. The helmet was admittedly bought second hand. The big indent on the back of the helmet, visible on photograph produced at the trial, was fresh and he believed it was caused by the helmet scraping against the left front wheel metal ring of Mr. Chau's lorry. Mr. Cheng did not think the big indent was caused by a smacking blow.

13. Additional evidence that may be taken into account is the finding by the police Motor Vehicle Examiner that Mr. Chau's lorry had a bald tyre for which he was later convicted of a technical breach of vehicle safety regulations. Mr. Wong's motorcycle was also defective - the rear tyre was baldy and the braking system for the rear tyre was also found to be mal-functional due to mechanical mis-alignment. However, neither Mr. Wong nor Mr. Chau has been prosecuted for careless driving or other driving offence in relation to the accident.

14. The agreed report by Dr. Y.Y. Chow of Princess Margaret Hospital dated 20th October, 1990 says that Mr. Chau suffered from "Large haematoma over the occiput region with bleeding from the right ear. Multiple superficial abrasions over the right leg and left face." These were the only injuries resulting from the accident.

Cause of the Accident

15. Two issues may have very significant bearing on the cause of the accident - (1) Did Mr. Wong join Kwai Chung Road from Container Port Road or had he travelled along Kwai Chung Road for considerable distance before the accident occurred? (2) How did Mr. Wong or his motorcycle come into contact with Mr. Chau's lorry? It will be seen that these two issues may or may not be inter-related. As the plaintiff, Mr. Wong of course bears the burden of proof, albeit at the lower civil standard of balance of probabilities.

16. Miss Lau contends that I should accept Mr. Wong's primary case which is that the motorcycle was all along on Kwai Chung Road, that Mr. Chau having followed for some distance started to overtake Mr. Wong, that when by-passing the motorcycle the lorry pushed Mr. Wong or a certain part of his motorcycle from behind. If I reject this scenario, Miss Lau says that I should determine liability on the basis of the alternative scenario which was that Mr. Wong joined Kwai Chung Road from Container Port Road and the accident occurred because the two vehicles approached each other at an angle at such speeds as putting them on a collision course. Miss Sze for Mr. Chau also urged me to find that Mr. Wong came from Container Port Road.

17. Relying on his fifteen years experience investigating traffic accidents, Mr. Cheng believes that the accident was due to Mr. Wong's fault, meaning Mr. Wong coming out from a slip road did not stop at the junction to give way to oncoming main traffic on Kwai Chung Road.

18. As to precisely how the lorry came into contact with the motorcycle, Miss Lau suggests that I should draw the following irresistible inferences:-

1. The motor cycle was on the second lane of Kwai Chung Road at the time of the collision;

2. The force of impact was such as to propel the Plaintiff and the motor cycle forward relatively straight ahead for a considerable distance even after the motor cycle had fallen on its side. Such force of impact must have come from relatively straight behind the motor cycle. If it was the motor cycle that had run into the left side of the lorry, one would expect twisting damage to the frame of the motorcycle and as the motor cycle would have struck the lorry at an angle pointing towards the right, one would not expect the motor cycle to be propelled forward in a relatively straight line.

3. Given that the collision contact point on the part of the lorry was the angle iron on the left front corner of the tray, the theory of an impact by the lorry on the motor cycle from behind is also the only one that is consistent with the absence of damage marks on the frame of motor cycle save for the handle bar. It can be seen from photos on pp 19-21 that the parcel rack or things carried on the parcel rack at the rear of the motor cycle was the probable point of contact on the part of the motor cycle.

4. Further, it would seem that the only thing high enough on the motor cycle to come into contact with the angle iron bar of the lorry was the rear parcel rack. That again bespeaks an impact from the lorry on the motor cycle from behind.

19. In the opinion of Mr. Cheng the traffic police officer, Mr. Wong could not have been hit in the back of his head by the left wing mirror of Mr. Chau's lorry because the wing mirror was probably taller than Mr. Wong seated in his motorcycle. Mr. Chau's evidence is that Mr. Wong's motorcycle bumped into the front left corner of the cargo tray, just behind the left front wheel, of his lorry. Mr. Cheng believes so too. Both Miss Lau and Miss Sze adopted these views.

The Container Port Road Scenario

20. Although both parties support Mr. Chau's case that Mr. Wong joined Kwai Chung Road from Container Port Road, this scenario is fraught with a number of difficulties.

21. Mr. Wong agreed that he came from Container Port Road under cross-examination. This was sudden and contrary to all previous instructions to his lawyers. Given some eleven years have elapsed since the accident, it is not easy for anyone to recall what happened. In this particular case, it may be more daunting for Mr. Wong for at the time of trial he could still be suffering from loss of memory due to the head injuries he received. Miss Sze acting for Mr. Chau submitted that without hearing expert medical evidence I should not find Mr. Wong having any defect in his faculties. With respect to Miss Sze, I can, if appropriate, find that Mr. Wong still suffered from some kind of abnormality of mind. Even when expert medical evidence is available, it is incumbent upon me as the trial judge to decide what weight to be given to such evidence.

22. Having seen and observed Mr. Wong at the trial, I find that Mr. Wong is in possession of his critical faculty. In the witness box, Mr. Wong was able to query unclear questions and mount arguments. He followed the trial closely. Once, he requested his counsel Miss Lau to put his questions to a witness even though Miss Lau had no more questions for that witness. On another occasion, Mr. Wong requested counsel to apply to have he himself recalled as a witness. On both occasions, Mr. Wong's requests to his counsel had to be repeated by the court interpreter so that he could be convinced that Miss Law had conveyed his requests to the court. Reasons for refusing those requests were also given by the court through interpretation so that Mr. Wong would not think it was his own counsel who stood against him. I also implored Mr. Wong to respect his counsel for there was no reason to doubt her professional ability.

23. After agreeing that he travelled on Container Port Road, Mr. Wong said there was no traffic following him on that road. But he could say nothing about how did he drive from that road into Kwai Chung Road. Without further details from Mr. Wong, one may be forgiven for thinking that Mr. Wong pulled this alternative account out of a hat rather than from inside his head. Even more baffling is that, coming from the direction of Tuen Mun, there was no reason why Mr. Wong should get on to Container Port Road which was neither a short cut nor a direct route for travelling to Kowloon through Tsuen Wan. If this scenario is what Miss Lau would call Mr. Wong's alternative or secondary factual basis for his claim, the basis is wafer thin with little substance or spirit for it to be credible. One must, therefore, turn to Mr. Chau's evidence.

24. It will be remembered that the Container Port Road scenario is Mr. Chau's case unsupported by any independent or corroborative evidence. Mr. Chau had no reason to believe Mr. Wong would adopt that scenario. There are no third party witnesses. Here are some of the problems in Mr. Chau's evidence:-

1. Mr. Chau tried to lend credence to his own case by alleging very shallow impact scratch marks on the front left corner of the cargo tray of his lorry. Bearing in mind the tonnage of the lorry and the speed at which it was travelling, one wonders why the scratch marks were barely noticeable to Mr. Chau. Neither Mr. Cheng nor the Motor Vehicle Examiner noticed any scratch marks on that part of the lorry.

2. Mr. Chau said that he saw the motorcycle coming out from behind the container lorry, overtook it to reach the tip of chevron markings. Under cross-examination and re-examination, he put the position of the motorcycle when he first saw it as at the tip of chevron markings. If in fact at the time he first saw it, the motorcycle was at or near the tip of the chevron markings, he could not have noticed the motorcycle coming out from behind the container lorry.

3. Mr. Chau said that when he first saw the motorcycle, it was travelling at a slow speed. He later agreed with Miss Lau that the speed of the motorcycle was just a little slower than his own lorry. Miss Lau did put to him that a little slower would mean at least 50 k..p.h. which cannot be regarded as slow. He agreed. The readiness to shift from slow to just a little slower speed compared with the lorry which was travelling at near the speed limit on Kwai Chung Road is at the very least indicative of feeble memory foundation.

4. Mr. Chau agreed under cross-examination that when he first saw the motorcycle coming from Container Port Road, the motorcycle was at least 8 lorry lengths from his lorry. Miss Lau submitted that that estimate was quite accurate and this worked out to be at least 45 metres. With that separating distance, it would have taken Mr. Chau's lorry at least 10 seconds travelling time at 60 m.p.h. to catch up with the motorcycle. For that amount of time, assuming that Mr. Wong's motorcycle was travelling at a constant speed just a little slower than that of Mr. Chau's lorry, the motorcycle would have reached somewhere about 200 metres from the tip of the chevron markings, far far beyond the locus of the accident. The accident could not have happened on these calculations.

5. I discussed the problem of the separating distance with Miss Lau during her submission on liability. Effectively abandoning her success during cross-examination in getting Mr. Chau to agree that the motorcycle was travelling on Container Port Road at at least 50 k.p.h., Miss Lau urged the court to find that the motorcycle travelled at a speed, whatever that may be, that would bring the motorcycle to collide with the lorry as happened. That magic collision speed for the motorcycle worked out to be 20 odd k.p.h. But if this was the speed of the motorcycle, why did Mr. Chau under cross-examination in effect agree that the speed of the motorcycle was at least 50 k.p.h.?

25. In the premises, coupled with the fact that there was no apparent reason nor any satisfactory explanation as to why Mr. Wong should be travelling on Container Port Road on the day of the accident, I am not satisfied on the balance of probabilities that Mr. Wong joined Kwai Chung Road from Container Port Road.

26. I do not accept Mr. Wong's original account in its entirety either. For one reason, Mr. Wong himself more or less abandoned this account. For another, his evidence that half of Kowloon bound Kwai Chung Road was closed is simply not true. Last but not the least, if Mr. Chau wanted to overtake him as he said, there was ample room and opportunities for Mr. Chau to do so using the third or fourth lane without squeezing past Mr. Wong.

27. For the purposes herein, I can only find as a fact that Mr. Wong did travel along Kwai Chung Road for considerable distance before the accident occurred. Based on his own admission that at all material times he was in the fourth gear, I also hold that at the time of collision Mr. Chau was driving his lorry at a speed of about 60 k.p.h. The suggestion that Mr. Chau was speeding above the limit applicable to that stretch of Kwai Chung Road under consideration is not sufficiently borne out by the evidence. The physical evidence points clearly to collision taking place in the second lane at the point where the 14.4 long single scratch mark began.

The Collision

28. Both parties accepted that the point of impact on the lorry is the front left corner of the cargo tray. Miss Lau, however, contended that this jutting corner part of the lorry probably hit the parcel rack at the rear of the motorcycle. I cannot possibly be satisfied that this was the case. There was no damage at all on the motorcycle except for the off-side steering handle bar. Having studied again and again the photographs depicting the motorcycle, I cannot say I see a parcel rack at the rear of the motorcycle. If Miss Lau had in mind the structure at the rear of the motorcycle, it is virtually impossible for something like that to suffer no damage at all after being hit by a 5.5 ton lorry travelling at any speed. In any event, this explanation of the impact does not account for the white paint on the helmet.

29. Miss Sze on the other hand suggested that the lorry probably came into contact with Mr. Wong seated on the motorcycle or the off-side steering handle bar of the motorcycle. I suspect Miss Lau would adopt this as an alternative to the parcel rack proposition. Again, this explanation does not account for the white paint on the helmet.

30. Assuming that the motorcycle was travelling forward more or less in an upright position, the force of impact on Mr. Wong or the motorcycle would be coming either from behind or from the side. If it was a force from behind that struck the off-side steering handle bar of the motorcycle or the left side of Mr. Wong's person, the steering handle bar would be, either directly through hard contact or indirectly due to transmission of the force of impact through Mr. Wong's person, deflected towards heading to the left. It is a matter of simple calculation that a vehicle travelling at 10 m.p.h. would cover approximately 4.4 metres per second. Even if the motorcycle was travelling at the relatively snail's pace of 20 m.p.h. per hour, the collision causing the change of direction on the steering of the motorcycle towards the left would within the very second have led to the motorcycle moving over 8 metres, far into the first lane and the 14.4 metre long scratch mark on the road surface should not look like a straight line entirely within the second lane.

31. If the force of impact was sideways, such as the motorcycle swerving towards the lorry or vice versa, whether it was Mr. Wong's body or the off side steering handle bar of the motorcycle coming into contact with the lorry, Newton's Third Law of motion dictates that the collision would have caused the motorcycle to flip over to its left side. However, this does not reconcile with the evidence about the helmet. Mr. Cheng did say that sometimes a motorcycle fallen on its side may flip over to the other side. I presume this is due to a rebound force as the motorcycle hit the road surface. So it may be argued that Mr. Wong's motorcycle first came into contact with the front left corner of the cargo tray, the force of impact pushed the motorcycle to flip over to the other side, after the motorcycle fell on the (other) left side, it bounced up and flipped over back to fall on the right and it was during this second fall on the right side that the helmet worn by Mr. Wong came into contact with the left front wheel ring of the lorry. But, in such event, there would be at least two to three impact sounds, not just one bang sound heard by Mr. Chau.

32. The helmet is the most awkward piece of evidence. Miss Lau said she that she could not offer any thoughts on it. Miss Sze asked me to ignore it as irrelevant. On the other hand, I have clear evidence from Mr. Cheng that the helmet must have come into contact with the left front wheel of the lorry. Miss Sze said that the white paint scrapes on the helmet had not been analysed to see if they match the paint on the left front wheel ring. But Mr. Cheng stated that visually the white paint scrapes on the helmet were fresh and matched the paint on the left front wheel ring. I have no reason to doubt that. In any event, the fresh white paint scrapes on the helmet could not have come from contact with the road surface or another vehicle. Moreover, Mr. Wong's head injuries, the worst result of the accident, most probably was caused by hard force working through the helmet. In the premises, I must find that the helmet had contact with left front wheel of the lorry. Considering the scratch marks on the helmet, I find that the contact time with the wheel was not a fraction of a second but longer.

33. Taking all factors and circumstances into account, I believe this is how the accident happened. I find that collision occurred whilst Mr. Wong was riding his motorcycle next to Mr. Chau's lorry, Mr. Wong himself lost balance and control of the motorcycle. He and the machine spontaneously fell towards the right side. As Mr. Wong tilted with the motorcycle to the right side, since he was close enough, his head wearing the helmet came into contact with a high point of the left front wheel of the lorry for a second or two. That second or two was when the scraping on the helmet and the head injuries occurred. That contact prevented Mr. Wong from falling further and he managed to hold on to the steering handle bar the left side of which supported the motorcycle up at an acute angle with the road surface whereby the motorcycle continued forward more or less on a straight line. The off-side steering handle bar was bent as the motorcycle eventually fell flat on the road surface.

34. I cannot determine why Mr. Wong lost balance. He could have easily lost balance because of momentary lapse of control of the motorcycle. He might have run over a pebble from the road works. The bald rear tyre, the defective rear brake and the uneven road surface or a combination of the three may be the cause of the accident. There is simply not enough evidence to decide which factor or factors led to the loss of balance.

35. As to why the two vehicles were travelling parallel to each other when Mr. Wong lost balance, obviously it could be like Mr. Wong said the result of the lorry overtaking the motorcycle. Mr. Chau denied that. It could also be that the motorcycle trying to overtake by the inner lane. But both drivers denied that. Another possibility is that the two vehicles had been travelling on adjacent lanes for some time. Since neither drivers are reliable witnesses, in the absence of additional objective evidence, there is insufficient basis for me to be satisfied on the balance of probabilities which of the three situations is more credible.

Liability

36. In view of the findings of facts I have made and not able to make, no liability for the injuries, loss and damage to Mr. Wong can be assigned to Mr. Chau. It is, therefore, unnecessary to consider the questions of contributory negligence and apportionment of liability. I do, however, thank both counsel for their diligent research and submissions on these difficult areas.

Costs

37. Mr. Wong is legally aided. Mr. Chau's costs, I believe, are covered by insurance. In principle, costs should follow the event. However, Mr. Chau is not entirely blameless in that I found him to have presented an untrue account of events which almost led the trial to be conducted on false premises. In exercise of my discretion, I think it is only fair that each side should bear its own costs.

Order

38. The Plaintiff's claim is dismissed. There be an order nisi that each party bears its own costs and that the Plaintifff's costs be taxed in accordance with legal aid regulations.

Z. E. Li

Deputy Judge