CHAN WAI LING AND ANOTHER v. TANG CHI HO

HCPI 428/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.428 OF 2003

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JUDGMENT

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1. The 1st and 2nd plaintiffs claim against the defendant damages for personal injuries sustained by them in relation to a road accident which occurred on 13 March 2001.

2. In this judgment, I am only concerned with the issue of liability by reason of the fact that there is an order for split trial in this case.

3. On that day, at about 10:53 p.m. at night, the 1st and 2nd plaintiffs were passengers in a light goods vehicle bearing registration no. JN 8616 ('the LGV") driven and owned by the defendant.

4. The 1st plaintiff was seated in the front passenger seat next to the defendant driver. The 2nd plaintiff was seated in the back row of seats behind the 1st plaintiff.

5. At the time, the LGV was being driven along Lin Cheung Road on its southbound carriageway heading towards Tsim Sha Tsui. It was travelling on the outer or 3rd lane of the southbound carriageway near to lamp post KHM 335 at a speed of between 60 to 70 kph. According to the defendant, there was a private car travelling in the 2nd or middle lane about 20 feet ahead of his LGV and travelling about the same speed as his LGV. On that stretch of Lin Cheung Road, there are three lanes on the southbound carriageway. The speed limit of that part of the road is accepted by all to be 70 kph.

6. The southbound carriageway is divided from the northbound carriageway of Lin Cheung Road by central dividers which take the form, at times of a grass verge which is slightly higher than the actual road surface bordered from the road by a kerb of a few inches high. In other places, the central divider takes the form of a concrete divider which is about two feet higher than the road surface. A concrete slope connects the grass verge to the concrete dividers. This is quite clearly demonstrated in the photographs produced in evidence, and there is no dispute between the parties on this aspect of the road.

7. It is also common ground between the parties that as the LGV driven by the defendant was travelling on the outer lane of the southbound carriageway, an unidentified taxi, travelling at a much higher speed than the LGV on the middle or 2nd lane, came up, passed the LGV and suddenly and without any warning or indication cut into the outer lane just in front of the LGV. That manoeuvre by the taxi was such that the right rear corner of the taxi hit the left front corner of the LGV. The impact between the two vehicles was such that it caused the LGV to shake slightly, but sufficient enough for it to be felt by all the occupants of the LGV including both plaintiffs.

8. According to the defendant, upon the impact between the two vehicles, he immediately swerved to his left and braked. As a result the LGV mounted the grass verge, travelled a distance of some 20 to 30 feet went up the concrete slope at the end of the grass verge ending up on top of the concrete divider some two feet or so above the road level and hit against the pillar of a road sign which was erected on the top of the concrete divider. This second impact with the pillar of the road sign was a much greater impact than the initial impact with the taxi and resulted in all three occupants of the LGV sustaining injuries. Furthermore, this impact with the pillar of the road sign severely damaged the LGV such that it was a total loss.

9. It is upon these facts that the plaintiffs bring their case against the defendant.

10. Nothing in the evidence given by both plaintiffs in any way dispute, contradict or challenge any of the factual evidence given by the defendant as to how this accident came about. Indeed the evidence from the plaintiff confirmed the evidence of the defendant as to how this accident occurred.

11. In the Statement of Claim, nine particulars of negligence were pleaded. Apart from those particulars of negligence, the plaintiff also sought to rely on the doctrine of res ipsa loquitur.

12. It is correct to say that when the case was opened by counsel for the plaintiff, most of the particulars contained in the Statement of Claim were not pursued any more. The case was opened on the basis that the defendant had :

(a) failed to keep a proper lookout;

(b) failed to brake or otherwise take any effective measure to avoid hitting the taxi, mounting the central divider and/or ramming into the road sign pillars; and

(c) failed to rebut the presumption of negligence raised by the plaintiff's reliance on the doctrine of res ipsa loquitur.

13. A further issue raised by the counsel for the plaintiff in his opening is whether the defendant ought to be believed when he states in his witness statement that he had applied the brakes (my underlining) and swerved right after the initial impact with the taxi when in his police statement there is no mention at all by him that he had braked. In this respect my attention was drawn to the fact that no skid marks were found at the scene by the police and, therefore, none was depicted on the police sketch of the scene of the accident, that sketch having been agreed into evidence.

14. In his evidence, the defendant said that it was almost instantaneous when he saw the taxi cutting into his lane and the impact between the taxi and his LGV. When in cross-examination he was pressed as to the time gap between seeing the taxi cutting into his lane and the impact between the two vehicles, he said that it may have been about a second.

15. As against that evidence, the evidence from the 1st plaintiff (who was sitting in the front passenger seat) was that she did not even see the taxi before the impact between the two vehicles.

16. The evidence from the 2nd plaintiff was that only when he felt the LGV shake slightly (due to the impact between the two vehicles) that he looked to see what was the matter and only then that he saw the taxi.

17. In his final submission, counsel for the plaintiffs submitted that on the evidence before the court, the defendant must have been negligent in failing to take any evasive action between the time the taxi cut into the outer lane on which the LGV was travelling and the impact between the two vehicles.

18. In my view that submission assumes that there was a sufficient time gap between the cutting in by the taxi and the impact for the defendant to have reacted and taken evasive action to avoid such impact. When this was asked of counsel for the plaintiff, his reply was that the submission on this point is irrespective of what the time gap there was between the cutting in and the impact between the two vehicles.

19. I cannot accept that. If counsel for the plaintiff is right, then it would impose far too heavy a burden on the defendant. Effectively it would mean, as suggested by Mr Sakhrani who appeared for the defendant, that the defendant was under a duty to anticipate without the least indication, that the taxi would cut into his lane (before it did so) in such a way that it would create a danger or cause a collision. That just cannot be right.

20. The second point made by counsel for the plaintiff, relates to the braking or failure to brake by the defendant after the initial impact between the taxi and the LGV.

21. It is correct that in his statement to the police after this accident, the defendant stated that he swerved to his right after the impact between the LGV and the taxi. There was no mention of any braking in his police statement.

22. In his witness statement prepared by solicitors for these proceedings, the defendant states that after the initial impact with the taxi when it cut into his lane that (he) "immediately steered right and applied brake."

23. When the defendant was cross-examined, he was asked by counsel for the plaintiff whether he had applied 'emergency braking' after the initial impact between the two vehicles. After it was explained to the defendant what was meant by 'emergency braking' the defendant answered "Yes" to counsel's question.

24. However at a later part in the cross-examination, the defendant seemed to suggest that he had only applied the brakes of the LGV at the same time when he swerved right after the initial impact between the two vehicles, but that such braking was not the kind of slamming of his brakes which could be described as 'emergency braking'. Nor was this ambiguity, if it was an ambiguity, cleared up in re-examination.

25. When asked as to why it was not mentioned in his police statement anything about braking, the defendant's evidence was that he had told the police officer taking the statement that he had braked and swerved right but that had not been recorded by the officer and that he was not aware of that being missed out by the officer until he was cross examined on it in court. The defendant further said that he only told the officer he had braked and swerved right (as distinct from emergency braking).

26. If it should be necessary for me to make a specific finding on this part of the defendant's evidence, I am prepared to accept the evidence given by the defendant that he did brake and swerve right at the same time upon being hit by the taxi when it cut into his path.

27. In that situation, it is likely that the braking would not be the kind of 'emergency braking' which counsel had in mind when he used that phrase in cross examination (i.e. the slamming of brakes intending to stop the vehicle in the shortest possible distance). I say this because in the situation that the defendant found himself, where the taxi was overtaking him at a much faster speed than the defendant's LGV and cutting into his lane, it was not essential for the defendant to bring his vehicle to an emergency halt. This is especially so since the taxi (travelling at a much greater speed than the LGV) then sped away ahead of the LGV. However, braking, perhaps even quick action in braking (but not emergency braking) was necessary since at that juncture the LGV having swerved right, mounted the kerb and grass verge which was several inches higher than the road surface. Moreover, on the other side of the grass verge was the northbound carriageway.

28. Apart from the above, perhaps the most obvious reason that the defendant must have braked was that in the emergency situation that the defendant found himself because of the taxi cutting in and hitting his LGV, it would be almost instinctive for any driver to have braked at the same time as he swerved right in an attempt to avoid any further collision between the two vehicles whether or not he would have appreciated all of the other matters which made it necessary for him to brake.

29. Therefore, I reject the suggestion by counsel for the plaintiff that because there is no mention in his police statement of the defendant braking it follows therefrom that the defendant had failed to brake at all.

30. It follows from such finding that I accept that the defendant did tell the officer that he had braked and swerved right but that was omitted from being recorded in his statement by the officer.

31. It was further submitted by counsel for the plaintiff that the evidence of the defendant to the effect that the LGV had travelled a distance of some 20 to 30 feet after he had applied the brakes before hitting the sign post on the concrete divider further shows that the defendant had failed to apply the brakes. Counsel went as far as to suggest that if the defendant had applied emergency brakes the LGV would have stopped instantaneously.

32. I do not accept that submission. The uncontradicted evidence was that the defendant's LGV was travelling at a speed of some 60 to 70 kph before the accident. At that speed it would be impossible to expect the LGV (or for that matter any other vehicle) to have stopped instantaneously even if emergency braking had been applied. It is well known that there must need be a thinking distance and a stopping distance. No expert evidence was adduced as to what the overall stopping distance would be. However, using a common sense approach, and there being no necessity for me to make any specific finding as to the actual stopping distance at such speed, it would not surprise me that the LGV travelled for some 20 to 30 feet after the brakes were applied, particularly if it was not the kind of emergency braking envisaged by counsel for the plaintiff.

33. A further point made by counsel for the plaintiff in submission concerns the lack of skid marks. In view of my finding above that the defendant had applied the brakes but not in the way generally described as 'emergency braking' that hardly surprises me. Moreover, while skid marks are usually indicative of very hard braking or emergency braking resulting in the wheels locking and therefore skidding of the tyres, the lack of skid marks are not, per se, indicative of no braking having taken place.

34. The plaintiff seeks also to rely on the case of Chow Yik Kwan v. Lee Hon Yin [1966] 1 HKL 635, a decision at first instance of Seagroatt J. That case was decided on its own facts and while there may be some similarity (in facts) between that and the present case in that it also involved another unidentified vehicle cutting into the path of the vehicle driven by the defendant, there are also differences in facts between them which distinguish the present case from Chow Yik Kwan's case.

35. The main distinguishing feature of Chow Yik Kwan's case is that it was the evidence of the defendant driver in that case that he found the brakes of the vehicle to be not as efficient as they should be. On that admission by the defendant, Seagroatt J found the defendant to be negligent to have driven the vehicle in question when he knew in advance the brakes to be inefficient and that his employers to be negligent in allowing such a vehicle with such brakes to be driven by the defendant. That is not the evidence in the present case.

36. There are other facts which further distinguish the present case from Chow Yik Kwan's case but it is unnecessary for me to go into them in detail for present purposes. It is sufficient for me to conclude that since no principle of law is laid down in Chow Yik Kwan's case and that the facts of that case can be distinguished from the present case, I do not see how the judgment of Seagroatt J in that case can assist the plaintiff here.

37. In the overall context of this case, I make the finding that the dangerous situation was created by the driver of the taxi cutting into the path of the LGV suddenly and without sufficient warning. Almost instantaneous with the cutting in of the taxi, the right rear corner of the taxi hit the left front corner of the LGV. The defendant at once braked and swerved right, mounting the kerb and grass verge, then went up the concrete slope of the divider and hit the pillar of the sign post. The total distance traverse by the LGV after the defendant braked and swerved right until it hit the pillar of the sign post was some 20 to 30 feet.

38. It may well be that with the benefit of hindsight, it was not necessary for the defendant to have swerved his LGV to the right and that it would have been sufficient for him to have braked to slow down his LGV such that after the initial impact between the two vehicles, the taxi sped off ahead of the LGV and the only consequences arising from this whole incident would have been the slight impact between the respective corners of the two vehicles. However, the defendant's action in also swerving to his right has to be judged and looked at, not with hindsight, but in the agony of the dangerous situation in which the defendant was placed and which was created wholly by the appalling manoeuvre of the taxi driver.

39. In this respect, I can do no better than to cite the words of Deputy Judge Saied (as he then was) in the case of Wong Man Kit Michael (a minor) v. Wong Fong Woon, HCA No. A283 of 985, where he said :

"It is trite to say that the actions of someone placed in a situation of danger like the defendant are not to be judged with the benefit of hindsight to see whether what he did was the best way to extricate himself. The law does not require drivers to exhibit "perfect nerve and presence of mind, enabling him to do the best thing possible"; it does not expect men to be more than ordinary men - Mazengarb on Negligence on the Highway, 4th edition p.338"

and also :

" There is sufficient authority including Brandon v. Osborne Garrett, (1924) 1 KB 548, Tocci v. Hankard, (1966) 110 S J 835 and Ng Chun Pui's case (supra) that one ought not to be too critical of what was done instinctively on the spur of the moment in a situation of extreme danger."

40. Considering the evidence as a whole and from the facts as I have found them, I find that the defendant acted in a manner in which a reasonably careful driver would fairly be expected to act in all the circumstances of this case. I am, therefore, satisfied that the defendant has sufficiently rebutted the presumption of negligence arising from the doctrine of res ipsa loquitur.

41. Accordingly, the plaintiffs claim herein is dismissed.

42. There shall be a costs order nisi that the plaintiffs pay the costs of the defendant in defending this case such costs to be taxed if not agreed.