LEE WOON LAN v. CHENG HING PUN and Others

1995 No. PI 465

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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J U D G M E N T

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1. The Plaintiff in these proceedings is the mother and administratrix of the estate of Ngai Chi Leung, deceased, who died as a result of a traffic accident on 25th May 1991.

2. The accident involved a total of four vehicles in what may be described as a chain collision. The first three vehicles were all Isuzu light goods vehicles, and the fourth was a Mitsubishi Pajero. For the sake of brevity I shall refer to them as the first, second, third and fourth vehicles respectively. The first vehicle was driven by the 1st Defendant and owned by the 2nd Defendant; the second vehicle was driven by the 3rd Defendant and owned by the 4th Defendant; the third vehicle was owned and driven by the deceased; and the fourth vehicle was owned and driven by the 5th Defendant.

3. At the commencement of this hearing, Miss Pinto on behalf of the Plaintiff informed me that the claim against the 5th Defendant was not being pursued by the Plaintiff who now only sought damages against the drivers and owners of the first and second vehicles. However, notices of contribution having been served by the Defendants on each other, the 5th Defendant remained in the proceedings as a Third Party.

4. The accident took place at about 6.30 a.m. on 25th May 1991 on Ching Cheung Road, Kowloon, near to its junction with Butterfly Valley Road at a place in the road where it curves in a bend to the left. All three vehicles were travelling in the outside lane of the road when three collisions occurred, the second third and fourth vehicles colliding with the rear of the vehicle in front, the third with sufficient force to crush the driver's cab causing injuries to the deceased from which he died the same day.

5. It is the case of the Plaintiff that the reason for the collisions was that the 1st Defendant skidded and then stopped his vehicle on the road, the second vehicle also managing to stop behind him. The deceased was unable to avoid the second vehicle and crashed into the rear of it. The fourth vehicle then struck the rear of the deceased's vehicle.

6. Evidence as to the events of that morning was given by the drivers of the 1st, 2nd and 4th vehicles, the 1st, 3rd and 5th Defendants respectively, and the passenger in the deceased's vehicle. In addition I heard from no less than four accident investigation experts with their opinions on the cause of the accident.

7. A number of facts appear to be undisputed. The first of these is that the road was wet and it had been drizzling, and may still have been, although there was no agreement on this. In any event there was no suggestion that visibility was other than good, and it was daylight although overcast. The second is that the speed limit on that road was 70 k.p.h. and that the drivers were travelling at various speeds between 50 and 60 k.p.h. The third is that the sequence of events was precipitated by the 1st Defendant skidding.

8. Although initially claiming that he had only slowed his vehicle to negotiate the left hand bend, when asked by the police in the course of taking his statement the 1st Defendant admitted his vehicle had "wobbled" a bit, and in evidence said that it had skidded on entering the bend, whereupon his natural instinct was to slow down. He said that he did this by taking his foot off the accelerator and braking gently, thereby reducing his speed substantially, when his vehicle was struck from behind. In both his evidence and his statement to the police he is adamant that he did not stop, but merely slowed down.

9. There is no doubt that the 1st Defendant's vehicle did skid on entering the bend, and all the other witnesses of the accident confirmed that it swerved, wobbled, or skidded. What happened next is not so clear. The 1st Defendant says that as he was skidding towards the concrete central road divider, he applied his brakes gently and steered slightly to the left. There is no evidence that at any time he totally lost control, and, indeed, no evidence from the other witnesses that it was other than a slight skid over a short distance, with the vehicle briefly moving from side to side. The driver of the second vehicle, Mr. Lo Chi Kuen, says that the 1st vehicle stopped in the outside lane after he saw it skid, but that he managed to stop as well before he was struck from behind.

10. This account was initially supported by the passenger in the deceased's vehicle, Mr. Koo Man Fai, who said in his witness statement that the 1st vehicle "skidded and wobbled and came to a halt suddenly". However, this is not what he told the police at the time. There was no mention in his statement to them of the 1st vehicle stopping after the skid. Indeed, he told them that the 1st vehicle was still moving when the 2nd vehicle braked "very abruptly" and their vehicle could not stop in time so collided with it. He confirmed this in his evidence to the Court when he said that the collisions started the moment the skidding began, and that he assumed that the 1st vehicle had braked as he saw the brake lights of the 2nd vehicle.

11. The driver of the 4th vehicle, Mr. Kung Chou Chi, further supported this version of the events of that morning. His account to the police and in evidence, although saying that the 2nd vehicle stopped before being hit by the 3rd, is clear that the 1st vehicle was still moving when it was struck by the 2nd. He went further in evidence, and said that the collision between the 3rd and 2nd vehicles was the first, that caused the 2nd to hit the 1st, and his collision with the deceased's vehicle was the last.

12. In my view that is the most likely scenario. The 1st Defendant is an experienced driver who had at the time been driving for about 16 years and had driven the 1st vehicle for about 5 years. Upon encountering a skid he naturally decelerated and braked to control it. There is no evidence that he braked hard, for to have done so would have had the effect of locking the wheels and causing the 1st vehicle to continue the skid in the same direction and collide with the central divider. This did not happen, and there is no evidence that the 1st Defendant lost control at all, but in the course of controlling the skid, slowed his speed, was then struck from behind, and continued on to stop further forward on the left of the road.

13. The evidence of the damage to the first two vehicles to some extent also supports this. There is no dispute among the experts that the damage to the rear of the 1st vehicle and the front of the 2nd was comparatively light. If the 1st vehicle had indeed been stationary with the 2nd vehicle also stationary a foot behind before it was struck by the deceased's vehicle, it does not take a lot of imagination to appreciate that the force of the impact would have pushed the first two vehicles together to cause greater damage than that which occurred here.

14. I am accordingly satisfied on the balance of probabilities that the sequence of events was that the 1st vehicle skidded slightly and slowed down, the speed possibly dropping quite fast. The 2nd driver, seeing the skid and the brake lights of the 1st vehicle, also applied his brakes, rapidly slowing his speed but coming closer to the rear of the 1st vehicle. The deceased, who was clearly driving too close for the conditions, which I will deal with at greater length below, could not slow down fast enough and collided with the 2nd vehicle with sufficient impact to cause damage to such extent that his cab was crushed and the 2nd vehicle was pushed forward to collide with the rear of the 1st, which was still moving. The 4th vehicle was also travelling too close and struck the rear of the 3rd. The 1st vehicle then continued forward to stop further along the road on the left hand side.

15. In arriving at this conclusion, I have not relied to any great extent on the opinions of the experts. I mean no disrespect by this, but their conclusions as to what occurred in this accident are based heavily on their view of the statements of the witnesses, and two of them, Mr. Vickers and Mr. Wong, have accepted that the 1st Defendant actually came to a complete stop before the collision. Having had the advantage of seeing these witnesses give evidence, I am satisfied that this was not the case. Indeed, it is not a logical conclusion. Accepting as I do that the 1st vehicle's skid was not severe, was of short duration, and that the driver had regained, or was about to regain, full control of the vehicle, there is no sensible reason why any driver should bring his vehicle in those circumstances to a complete stop.

16. Those being the facts as I find them, I will go on to consider where the responsibility lies for the collisions.

Liability of the 1st and 2nd Defendants

17. As I have said above, the whole sequence of events was precipitated by the 1st Defendant's skid. But was that skid the result of his negligence?

18. Dr. Lingard says in his report:

"The accident happened where it did because of something driver V1 did or omitted to do, and it is probable, in my view, that he entered the bend going too fast for the wet road conditions and his own skills, skidded a bit, then slowed dramatically and misguidedly so as to put the drivers behind him in difficulty. On those grounds I would hold him partly responsible for the consequences."

19. But what evidence is there to support this conclusion? There is no evidence of excess speed, all the witnesses agreeing that the speed of all four vehicles was reasonable for the conditions. They may have been travelling too close together for that speed, but that is not relevant in respect of the 1st Defendant. Apart from the happening of the skid itself, there is no evidence of lack of skill on the part of the 1st Defendant. Indeed, the fact of his controlling the skid as he did may be evidence of driving ability commensurate with the length of his driving experience.

20. What of the slowing down? None of the witnesses including the experts, apart from those who maintain he stopped, has suggested that the actions of the 1st Defendant once the skid commenced were anything but proper to control such a skid.

21. We are left only with the skid itself, and whether this happening at all is evidence of negligence. A skid in itself can be evidence of negligence where, as in Richley v. Faull [1965] 1 W.L.R. 1454, it is unexplained and violent. It was certainly not violent. Was it unexplained? In the absence of excess speed or obvious lack of skill I have to look at the evidence to see if there was any reason for the skid. It is not in dispute that the road was wet and slippery. I am told by Mr. Seymour-Hart that the road surface is not good, and that as it is heavily used, material can collect on the surface to make it worse. By this I take him to mean rubber and oil from the lorries and other vehicles passing over it. He said that this could accumulate in patches, and a skid could occur if a vehicle hit such a patch even if driving reasonably. No other witness offered an explanation that I can accept in the light of the evidence as a whole, and I can only conclude that the 1st vehicle lost its grip on the road temporarily through the natural consequences of the conditions at the time over which the 1st Defendant had no control.

22. It follows that, on the evidence before me, I can find no fault with the behaviour of the 1st Defendant and no negligence on his part, and consequently no vicarious liability on the part of the 2nd Defendant.

Liability of the 3rd and 4th Defendants

23. There has been a considerable amount of evidence regarding safe braking distances from the experts, which I do not need to analyse at length here. Suffice it to say that there is no doubt on the evidence that the 2nd, 3rd and 4th vehicles were all travelling closer than the distances recommended by the Hong Kong Road User's Code and similar publications in the United Kingdom. Those distances are, in dry conditions, 20 metres at 40 k.p.h., and 35 metres at 60 k.p.h., and double that in the wet. These are, of course, subject to other variables such as the driver's reaction time and the state of his vehicle, and these distances are a guide to the distance required to come to a complete stop, so it follows that, where the vehicle in front is still moving, although braking and slowing down, you have the additional distance before it comes to a stop. While it is good practice therefore to keep the recommended distances from the vehicle in front, failure to do so does not make an accident inevitable should an emergency occur involving that vehicle.

24. The 3rd Defendant says that he was travelling about 1½ lorry lengths behind the 1st vehicle, which is estimated by Mr. Seymour-Hart to be about 12 metres. This is clearly far less than the recommended distance he should have left clear, particularly as he was a relatively inexperienced driver, having held a licence only 6 months. Nevertheless, the fact remains that he did manage to slow his vehicle sufficiently to avoid running into the 1st vehicle, as I have already found that the 1st vehicle did not stop, and it was only the collision between the 3rd and 2nd vehicles that caused the 2nd to strike the 1st.

25. I conclude from this that, although the 3rd Defendant had placed himself and his vehicle in a dangerous situation by following closer than was safe in the circumstances, he had sufficient control over his vehicle in the emergency that developed to avoid a forward collision, and, had no collision happened to his vehicle from the rear, would have continued unharmed.

26. The fact that he was closer than he should have been possibly meant that he had to brake harder than he might otherwise, but, as I shall further consider when I look at the contributory negligence of the deceased below, this was not a matter that was a factor in the collision between the 3rd and 2nd vehicles.

27. I accordingly find no negligence on the part of the 3rd Defendant that contributed to this accident, and, again, consequently no vicarious liability on the part of the 4th Defendant.

Liability of the 5th Defendant

28. Although my findings as to the liability of the other Defendants make it unnecessary to consider that of the 5th Defendant as Third Party, for the sake of completeness, and in the event of an appeal, I will do so.

29. The evidence of the 5th Defendant is that he was driving about 28 metres behind the 3rd vehicle, he saw the skid of the 1st vehicle, saw the 3rd hit the 2nd vehicle, but was unable to stop in time and his vehicle slid forward to hit the rear of the 3rd vehicle. This corresponds more or less with what he told the police at the time, save that he did not mention to them that he had seen the first skid, but saw first the collision between the 3rd and 2nd vehicles. This I believe is more likely, and would explain why he was so late in reacting to the emergency.

30. As I have said above, failure to keep the recommended distance between your vehicle and that in front does not make an accident inevitable. However, where a collision occurs between your vehicle and that in front, it is clear evidence that you were not keeping sufficient distance, or were otherwise not taking care. The 5th Defendant was later charged and convicted on his own plea of guilty of careless driving. I have no difficulty in finding that he was guilty of negligence in colliding with the rear of the deceased's vehicle.

31. However, I am not so satisfied that either his negligence or the collision between his vehicle and the deceased's caused or contributed to the deceased's injuries and death.

32. Again I have to return to the reports of the damage to the respective vehicles. It is apparent from the extensive damage to the front of the 3rd vehicle and the much lesser damage to the 4th vehicle, that the first collision, between the 3rd and 2nd vehicles, was by far the most severe. It indicates, and I accept, that the deceased was driving at a speed greater than the other vehicles, and was sufficient to propel the 2nd vehicle forward into the 1st. It was also the cause of the deceased's injuries. The MVE report on the deceased's vehicle shows that the front chassis was damaged and the driver's cab crushed badly. Dr. Lingard said that the photographs showed also that the body mounting was damaged. This indicates a considerable impact between this vehicle and the one in front.

33. As against this, the damage to the rear of the 3rd vehicle is very light. There is no evidence of anything but a broken number plate and an iron bar, not part of the structure or chassis, bent. Equally, the damage to the front of the 4th vehicle is, although extensive, superficial. It consists almost entirely of bent bodywork, which does not necessarily need a violent impact, broken lights and number plate.

34. The obvious conclusion that I must draw from this is that the 4th vehicle, although striking the rear of the deceased's vehicle, had had nearly sufficient time to stop, and was not travelling at any great speed when contact was made with that vehicle. The evidence of Mr. Koo, the passenger in the deceased's vehicle did not refer to him even being aware of any impact from the rear, and I can find no evidence that the resulting collision propelled the deceased's vehicle forward at all. I therefore consider it more likely than not that it was the first collision that caused all the injuries to the deceased from which he died.

35. There remains the damage, such as it was, to the rear of the deceased's vehicle. The 5th Defendant must be held responsible for this. However, the deceased's vehicle was declared a write off by the insurance company, and this must have been as a result of the extensive damage to the front of the vehicle. I cannot accept that the minor damage inflicted by the 4th Defendant's vehicle contributed to this to a degree that would have altered that declaration. It follows that, although I find that the 4th Defendant was negligent to some extent, that negligence was not the cause of the injuries to the deceased nor any other loss suffered as a result of the accident.

Contributory negligence of the deceased

36. I come lastly to the behaviour in this incident of the deceased. His passenger, Mr. Koo Man Fai, says that their vehicle was travelling about one van's length behind the 2nd vehicle. This would have been grossly inadequate in dry conditions, and in the wet slippery conditions of that morning meant that the deceased was putting his vehicle at risk to an extreme degree should an emergency situation occur, as in fact happened. It is clear from the evidence I have heard that the deceased was driving far too close to the vehicle in front, such that, when the vehicle in front braked suddenly, and probably very hard, he had no opportunity of avoiding a collision. It appears that he may have tried to do so by steering to the left, as his vehicle struck that in front at a slight angle, which in turn resulted in the impact being taken by the driver's side of the cab, and thereby caused the injuries from which he died.

37. As I have found above that there can be no responsibility on the Defendants for the events of that morning, I find that the deceased was the regrettably the author of his own misfortune and wholly responsible for the part of the accident which caused his fatal injuries and the damage to his vehicle which resulted in its being written off.

38. For these reasons the Plaintiff's claim against the 1st to 4th Defendants is dismissed, as are the notices of contribution between the Defendants themselves.

39. Although that concludes these proceedings, I will deal with the matter of quantum in the event of an appeal.

Quantum

40. I am told by Miss Pinto that the only question now in issue between the parties as to quantum of damages is that under the Law Amendment and Reform (Consolidation) Ordinance for loss of accumulation of wealth. I will therefore only deal with this.

41. At the date of his death the deceased had two sources of income: a salary of $4500 a month from his employment as a driver, which is not in dispute, and his earnings from his own transport business, the income from which is very much a live issue. The Plaintiff has produced a report by a firm of accountants, who have attempted to estimate his income from a number of receipts, found among the deceased's possessions, in respect of the months of December 1989 to June 1990, and November 1990. Unfortunately it seems that the deceased did not keep any other records of his business, and receipts up to the date of the accident have been lost.

42. The total of the sums represented by the receipts comes to $106069.90, and the accountants have made a number of assumptions to arrive at an average monthly income of $19095.33. The first of these is that the receipts are not complete and only show part of each month's income, so the figures have been rounded up to show what the income would have been for the whole month had the deceased worked at the same rate every day of each month. The second is to exclude from the calculations months where there is no, or very little evidence of earnings, on the basis that there must have been income of which they have no documentary evidence.

43. Considering the pattern of the deceased's work, the second assumption is a valid one. However, the first does not stand up to close scrutiny. It is not clear how the deceased was running his business at all, while at the same time working as an employee at a salary of $4500 a month for another company. There is no evidence as to the number of hours he put in to each job, but I cannot accept the basis of the accountant's calculations that he worked every day of the month on his own. The proper gross figure for calculating his income from his own business is therefore $106069.90, which produces an average monthly income of $15152.00 when divided by the seven months of which there are records. To arrive at his net profit one must further deduct from this the hire purchase instalments on his vehicle of $3990, the sum of $6000 he had agreed to pay his assistant Mr. Koo Man Fai, but which had not yet fallen due by the time of the accident, and running costs for his vehicle which Miss Pinto has estimated at what seems to me to be a reasonable sum of $1800. This leaves him with a net income of $3362.00 a month from this source, and when combined with his other income, a total of $7862.00 a month.

44. This of course is based on the figures available for 1990, and there is no evidence of his current income from his own business save the fact that he had taken on an assistant at a salary of $6000 a month, which does not make sense unless the income of the business had increased to make this worth while, and he had, four months before the accident, started a regular savings account, paying in $3000 a month by standing order. On this evidence I am prepared to accept that his income must have increased at least in line with inflation, and I assess it to be about $9000 a month at the time of his death, and, continuing in line with inflation, about $15900 at the date of trial, giving a median of $12450.

45. What then would have been his savings out of this to provide the accumulation of wealth for his estate which is claimed?

46. It is argued on behalf of the Defendants that the pattern of saving is not such as would support a finding of any accumulation of wealth, and Mr. Ho, on behalf of the Third Party, referred me to the decision of Kaplan J. in Chan Sim Lan & Anor. v. Sheen State International Ltd. & Ors. HCA 747 of 1992, where the judge declined to follow the decisions which awarded a notional figure of 10% in the absence of evidence of savings. The reasoning behind that decision was logical: to claim a loss of accumulation of wealth there must be some evidence that there would have been such accumulation at the time of the deceased's likely date of natural death. He went on to say that some evidence of savings was not enough, as these may well be earmarked for retirement, or spent on other things during his lifetime.

47. While I agree with this reasoning, I do not agree with Mr. Ho that the evidence here is such that no finding of accumulation of wealth could be made. The deceased was aged 29 at the date of death. Some 17 months earlier he had set up his own transport business, buying a vehicle on hire purchase, and had built it up to the stage where he could take on a full time employee. He had, as has already been observed, commenced a regular savings programme. In my view this evidence points to him being an ambitious and forward thinking man, determined to improve his lot in life. This would inevitably have led to the building up of savings and possessions in the fullness of time which would have passed with his estate.

48. At the time of his death his total savings were modest, and I am not satisfied that the increased expense of an employee would have permitted the continuation of savings at the high level, in relation to his earnings, of $3000 a month. For the purposes of these proceedings therefore, I believe that an average of 10% of his income is as accurate an estimate that can be made as to his likely savings had he not died when he did.

49. Taking a multiplier of 15, which in the circumstances of this case I consider reasonable, The loss pre-trial would be $85905 (i.e. $12450 x 10% x 69 months) and post-trial $176490 (i.e. $15900 x 10% x 111 months).

50. In view of my findings on liability above I do not consider it necessary to deal with the question of interest.

51. I will hear the parties on the question of costs.