WIMPEY ASPHALT HONG KONG LTD. v. SZE CHOK CHUEN AND ANOTHER

HCA6951/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 6951 OF 1997

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J U D G M E N T

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1. The plaintiff claims for the recovery of HK$1,469,565.80 from the defendants being employee's compensation, interests and legal costs either paid or incurred by the plaintiff in Employee's Compensation Case No.285/95 arising from the death of the deceased, Law Kau, on 16 July 1994 in the course of his employment with the plaintiff at the time. On that date, the deceased was driving a light goods vehicle DJ2522 ("the LGV") along the fast lane of Tolo Highway heading towards Kowloon when it collided into the back of a truck with Registration No.EE2460 owned by the 2nd defendant and driven by the 1st defendant ("the defendants' truck") and which, at the time of the collision, was stationary on the fast lane of Tolo Highway. The reason the defendants' truck was stationary on the fast lane at the material time was because it was in the course of collecting road signs in relation to road works which had taken place the night before. As a result of this collision, the deceased died on the same day.

2. The plaintiff's claim is founded on the negligence of the 1st defendant in failing to give sufficient warning that the defendants' truck was stationary on the fast lane; leaving the defendants' truck at a place which was unsafe and dangerous as well as failing to take effective measures to prevent the LGV running into the defendants' truck. The 2nd defendant is sued on the basis that he is vicariously liable for the 1st defendant's negligence.

3. The defence on the other hand admits that there was an accident at the time and place alleged. It is also admitted that at the time of collision, the defendants' truck was stationary on the fast lane of Tolo Highway. However, the defence says that the accident was caused by the deceased's negligent driving in that he was driving too fast and failed to pay a proper lookout for the defendants' truck which, although stationary on the fast lane, was itself bright yellow in colour, had rear facing multiple sequence warning signal (which is a huge signboard mounted on the top of defendants' truck with bright amber colour spot lights forming an arrow sign progressively moving from right to left, thus indicating to traffic on the fast lane to switch to the middle lane) as well as blinking amber flashing hazard lights at the rear of the truck and on top of the signboard. The defence further says that the road was straight and flat with little traffic at the time and place where the accident occurred, and the deceased should reasonably have seen the defendants' truck with all its flashing and warning lights and signs sufficiently early for the deceased to have taken avoidance action either to change lanes or to stop.

4. From the outset of this trial, the plaintiff readily concedes that at best the defendants will only be 20% to 25% liable for the accident causing the death of the deceased. It is accepted by the plaintiff that the deceased was primarily to blame for this collision.

The evidence

5. There is no dispute between the parties that the night before, road works had been carried out on the north bound carriageway of Tolo Highway, i.e. the carriageway leading into Fanling. No road works were carried out on the south bound carriageway, namely the carriageway where this accident occurred. Because of the road works on the north bound carriageway, advance warning road signs were placed along the central divider indicating to approaching motorists on the north bound carriageway that road works were being carried out 600 m, 400 m, 200 m, and finally 100 m away. Placed in that order, the 100 m sign would be at the northern most part of the central divider. After the road works had been completed by early morning on 16 July 1994, the 1st defendant was given the task of driving the defendants' truck with two other workmen on board to collect these four advance warning road signs from the central divider. The 1st defendant then drove the defendants' truck along the fast lane of the south bound carriageway coming up firstly to the 100 m sign, stopping there and having the workers removed that sign onto the truck. He then proceeded towards the second sign, namely the 200 m sign and while he was stopped on the fast lane at the 200 m sign with one of the workers having alighted to collect that road sign and the other worker on the back of the truck, ready to receive it, this collision occurred.

6. The factual dispute between the parties is but a very narrow compass. Whilst the defence alleges that all the warning lights and hazard lights of the defendants' truck were on at the material time, the plaintiff's case is on the footing that none of the warning lights were on and that the defendants had not taken sufficient precautions to warn drivers, including the deceased, driving along the fast lane behind the defendants' truck which was stationary at that spot. The plaintiff further says that immediately before the collision, there was a white van travelling on the middle lane at the same speed as the LGV but slightly behind it, which therefore prevented the LGV from changing lanes.

7. Evidence was called by the plaintiff from one Shek Fook Ming ("PW1"). He was a front passenger in the LGV. He gave evidence that the deceased was driving the LGV at about 80 kph. He saw the defendants' truck when they were about 150 m away from it. A while later he heard the deceased exclaimed "Oh dear" and said that the deceased had tried to switch to the middle lane but could not do so because of the presence of a white van in the middle lane. He also gave evidence that initially he could see no warning lights on the defendants' truck but when they were 50 m from the defendants' truck, he did see that the car lights were on but not the arrow lights. He then felt the LGV braked with great force. He again reiterated that the LGV tried to switch to the middle lane but could not do so because of the presence of the white van in the middle lane. He then saw the LGV swerved back to the fast lane. Despite the braking, he said, the LGV could not stop in time and the right front part of the LGV crashed into the left rear of the defendants' truck.

8. Under cross-examination, PW1 initially was adamant that the arrow lights on the defendants' truck were not on. However, when he was referred to his police statement given by him at 8:30 am on 16 July 1994, in which he had said that it is possible that because of the sunlight, he could not see the arrow lights on, he then changed his evidence to say that he did not see the arrow lights. Also under cross-examination, he said that it was about 50 m from the defendants' truck that the deceased exclaimed the words "Oh dear". It was also made apparent under cross-examination that, when PW1 said in chief that the LGV tried to change lanes to the middle lane, this evidence was given by him not as a result of anything he had observed but what he thought the deceased ought to have done in the circumstances. He also agreed that that stretch was a straight road going slightly downhill and that the traffic was light. At the time of the accident, it was already daylight. PW1 was the only witness called by the plaintiff.

9. The defence called two witnesses, one Lok Ka Fai ("DW1") and the 1st defendant. DW1, an independent witness unrelated to any of the parties in this case, gave evidence that he was driving a private car at a distance of 6 to 7 private cars' spaces behind the LGV on the fast lane of the Tolo Highway at the material time. He had seen the defendants' truck on the fast lane with a moving yellow light in the form of an arrow pointing to the left in the direction of the middle lane about 60 m in front of the LGV. Upon seeing this, he switched on his hazard warning lights to warn cars behind him and slowed down himself. However, he did not see the hazard lights or the brake lights of the LGV come on. He also stated that he did not see the LGV moved into the middle lane of the highway although there should have been enough time for it to do so. Then he said the LGV appeared to try to swerve to the left, but the offside front of the LGV collided with the near side of the rear of the defendants' truck. When the collision occurred, he said he was about 25 to 30 feet behind the LGV. DW1 was able to stop his car at a distance of about 20 feet behind the LGV. He then checked for traffic on the middle lane and when it was clear, as he was in a hurry to get to the airport, he then continued into the middle lane and drove off despite witnessing this collision. Before driving off, he saw a man alighting from the left side of the LGV and who did not seem to be injured. After driving off, he then used his mobile phone to report this accident to the police. Several days later, he gave a statement to the police about this accident.

10. Under cross-examination, DW1 said he was driving between 70 kph to 80 kph and when he first saw the defendants' truck, he was 80 m to 100 m away from it. He also agreed with counsel for the plaintiff that after the collision he had to stop behind the LGV in order to make sure that the middle lane was clear of traffic before he could switch over to the middle lane. However, he could not remember now as to whether there were or were not traffic on the middle lane. DW1 also agreed in cross-examination that after the collision had taken place, when he was passing the LGV and the defendants' truck, there were two workmen, one on the ground and one on the back of the defendants' truck.

11. The 1st defendant gave evidence as to how he and his co-workers set up the four road signs on the central divider of Tolo Highway the night before in relation to the road works that were taking place on the north bound carriageway. The road works finished by about 6:00 am on the morning of 16 July 1994. He was then given instructions to remove the four road signs on the central divider. As a result, he drove the defendants' truck to the roundabout at Lam Kam Main Road, there making a u-turn onto the south bound carriageway of Tolo Highway. He then proceeded on the fast lane until he came to the first road sign which is the 100 m sign. He stopped the defendants' truck by the side of the fast lane while one of the two co-workers alighted to dismantle the road sign from the central divider and thereafter to hand up the dismantled road sign to the other co-worker on the back of the truck. Having done that, the defendants' truck proceeded along the fast lane to the 200 m sign at the central divider. It was while the defendants' truck was stopped at this 200 m road sign and while one of the co-workers had alighted from the truck to dismantle the sign that this collision occurred. The force of the impact had pushed the defendants' truck forward about one truck space. The 1st defendant also gave evidence that before driving off for the purpose of collecting these road signs, he had already switched on the multiple sequence warning signal on the defendants' truck (i.e. the moving arrow lights). He also gave evidence that each time the defendants' truck was stopped by the central divider for the purpose of collecting a sign, he would also switch on the hazard lights of which there was a pair at the rear of the defendants' truck and a pair on the top of the signboard. His evidence was that at the time of the collision the multiple sequence warning signal, as well as the hazard lights, were all on.

12. Apart from the oral evidence called by the parties from these three witnesses, photographs taken by the police of the accident scene showing the LGV and the defendants' truck before it was removed from the accident spot was also produced. There was also in evidence a sketch plan showing details of the skid marks in relation to this accident drawn by a police constable from the Accident Enquiries Unit. There was also the statements given to the police by the two co-workers, Mr Wong and Mr Lam, which was admitted into evidence by way of hearsay notice.

Finding of facts

13. Having heard and seen all three witnesses give evidence from the witness box, I am of the view that all three witnesses were trying their best to tell the court what actually happened as they saw it. However, the reliability of certain parts of the evidence of PW1, and of DW1, seem questionable. In the case of PW1, his evidence that the deceased tried to swerve left the LGV (which in cross-examination he admitted to be what he thought the deceased ought to have done), is further not borne out by the skid marks shown on the sketch plan produced in evidence. The sketch plan shows a straight and uniform skid marks on the middle of the fast lane immediately behind the LGV. In the case of DW1, he himself acknowledged in cross-examination that he is not good at recounting time, speed and distances.

14. As for the warning lights on the defendants' truck, I accept the evidence of the 1st defendant that at the material time all three sets of warning lights were on, namely the multiple sequence warning signal, the hazard lights on top of the signboard as well as the hazard lights at the back of the defendants' truck. This evidence of the 1st defendant is supported by what is stated in the statements of the two co-workers, Mr Wong and Mr Lam. I decline Mr Sakhrani's suggestion that I should infer from the fact that DW1 made no mention of the hazard lights that, therefore, they were not on. It is true that DW1 did not make any mention of the hazard lights either in his statement or in his evidence, but that was only because he had not been asked about them by either counsel. Furthermore, he had shown himself to be a witness who is not particularly observant, as for instance when asked, he could not even remember seeing the brake lights of the LGV come on when there is clear evidence from both PW1 and from the sketch plan that the LGV must have braked heavily, leaving behind some 30.5 m of skid marks.

15. I therefore make the following finding of facts in relation to this accident :-

1. At the material time, the defendants' truck was stationary on the fast lane (in the course of retrieving the 200 m road sign from the central divider) with its multiple sequence warning signal light forming an arrow progressively moving from right to left as well as both sets of hazard lights on.

2. The deceased was driving the LGV on the fast lane of Tolo Highway in the direction of Kowloon, travelling at about 80 kph.

3. The deceased only came to realize that the defendants' truck was on the fast lane when the LGV was about 50 m from it. Despite the deceased applying emergency brakes on the LGV, thus leaving skid marks of some 30.5 m, the offside front of the LGV collided into the near side rear of the defendants' truck. The impact pushed the defendants' truck about one truck space forward.

4. The deceased died as a result of this collision.

Negligence of the defendants

16. Great reliance is placed by the plaintiff on the Code of Practice for the Signing and Guarding of Roadworks issued by the Highways Department, and in particular the appendix thereto describing the Requirements for Works on Expressway. In my view, it cannot be overemphasized the fact that slow moving and/or stationary vehicles on expressway will always constitute a potential danger and hazard to other road users. It follows that the greater the potential danger, the greater the corresponding duty befalls those who undertake such potential danger to warn other road users of the danger.

17. Relying on this Code of Practice, Mr Sakhrani takes three points in an attempt to show negligence on the part of the defendants. Firstly, he says that the road works took place on the north bound carriageway and therefore it was wrong or negligent of the defendants to remove the road signs by coming onto the south bound carriageway with the defendants' truck. Secondly, he says that if the removal of the road signs has to be done by the defendants' truck being on the fast lane of the south bound carriageway, that fast lane ought to have been closed to traffic by using traffic cones for the purpose of retrieving the road signs. Thirdly, he relies on the evidence from the photographs showing that the multiple sequence warning signal on the defendants' truck being partially blocked by the cones stacked on the back of truck, as well as by the evidence that a worker was standing on the back of the defendants' truck at the time of the collision to say that therefore the 1st defendant was negligent in failing to ensure that such warning lights were not obstructed.

18. I am not persuaded by the plaintiff on the first and second point taken by them. If the defendants had not undertaken this exercise on the fast lane of the south bound carriageway where this accident happened, what it means is that it would have had to undertake the same exercise on the fast lane of the north bound carriageway. If this had been done on the north bound carriageway, according to the Code of Practice, it ought to have been done after the cones blocking off the north bound carriageway where the road works took place had been removed. In other words, by that time, the north bound carriageway would have been reopened to traffic after completion of the road works. In that sense, it would not have made any difference whether this exercise was carried out on the fast lane of the south bound carriageway or the fast lane of the north bound carriageway. In my view, the question is not on which carriageway this exercise was undertaken, but that when it was undertaken, was there sufficient precautions taken to give reasonable warning in the circumstances to other road users.

19. As for the second point, Mr Sakhrani attempted to canvass this point with the 1st defendant under cross-examination. The common sense answer given by the 1st defendant to Mr Sakhrani's question was that if he had to set up cones to block off the fast lane of the south bound carriageway in order to retrieve these road signs along the central divider, his work would never end because in turn it would mean that he would have to close off yet a further part of that carriageway in order to retrieve the cones. In my view, that answer is irrefutable. The retrieving of the road signs on the central divider is not of such a character as would warrant the closing of the fast lane of the south bound carriageway provided all reasonable and necessary precautions are taken for that exercise to be carried out.

20. Accordingly, I find that the defendants were not in breach of the Code of Practice.

21. As for the third point, I accept that from the photographs produced into evidence, there is shown traffic cones stacked up to such a height on the back of the defendants' truck that these traffic cones are bound to partially obstruct the multiple sequence warning signal which is mounted on the back of the defendants' truck. The evidence of the 1st defendant that these cones were left behind from the road works the night before shows clearly that the cones had been there at the back of the defendants' truck at all material times. Moreover, the evidence shows that immediately before the collision, one of the two co-workers of the 1st defendant was standing on the back of the defendants' truck for the purpose of receiving the traffic sign that was being collected by the other co-worker who had alighted. This co-worker standing on the back of the defendants' truck would further obstruct this multiple sequence warning signal. In this respect it is negligent of the 1st defendant, being the driver of the defendants' truck, in failing to ensure that the multiple sequence warning signal was free from all kinds of obstruction, albeit partial, to motorists coming up behind the defendants' truck. However it should also be noted that these obstructions did not affect the two sets of hazard lights of the defendants' truck.

22. That however, is not the end of the matter. It would be necessary for me to further consider whether this negligence of the 1st defendant caused or contributed to the accident.

Cause of the accident

23. I have found as a fact that the LGV was travelling at about 80 kph before the collision. This evidence comes from both PW1 as well as DW1 who was following behind. Furthermore, the sketch plan showing the skid marks of some 30.5 m, coupled with the 1st defendant's evidence that the collision impact which had a force sufficient to push the defendants' truck one truck space forward together indicated that at the time the deceased applied his emergency brakes to the LGV, the speed of the LGV could not have been less than 80 kph. (The highway code gives, for the speed of 80 kph, a thinking distance of 20 m and a braking distance of 40 m on a flat dry road.) What this means therefore is that up to the time the deceased applied his emergency brakes, he had not slowed down from his initial speed of some 80 kph. From this, I can and do draw the inference that the deceased had completely failed to appreciate not only the fact that the defendants' truck was stationary but also the presence of the defendants' truck on the fast lane until the LGV was about 50 m from it (by adding 20 m thinking distance to the 30 m of skid marks shown on the sketch plan). This is in fact corroborated by PW1's evidence that it was about 50 m from the defendants' truck that the deceased exclaimed "Oh dear". If the deceased had noticed the presence of the defendants' truck on the fast lane, even though mistakenly thinking that it was moving slowly, one would have expected the deceased to have slowed down the LGV considerably, well before the time he had to apply his emergency brakes. This was not done. I therefore conclude that this was a very bad case of failing to keep a proper lookout on the part of the deceased.

24. Having already found that the 1st defendant was negligent in allowing partial obstruction of the multiple sequence warning signal, on the other hand, there is evidence from DW1, that he had seen the defendants' truck with the multiple sequence warning signal flashing a yellow arrow light to the left side from 80 to 100 m away. This evidence of DW1 which I accept, shows that although it may have been partially obstructed by the cones and by the worker on the back of the defendants' truck, nevertheless, it could still be seen by motorists at a long way off.

25. In order for the plaintiff to succeed, even to the limited extent on which it brings this claim, the onus is on the plaintiff to show not only negligence on the part of the defendants but also that it caused or contributed to this accident occurring. This the plaintiff has failed to show. In other words, I am not persuaded that had there been no partial obstruction of the multiple sequence warning signal, that this accident would not have occurred. On the basis as I have found, if the deceased had failed even to appreciate or notice the presence (as opposed to the fact that it was stationary) on the fast lane of the defendants' truck which was painted bright yellow in daytime with hazard lights flashing, until it was much too late, I cannot see how it would be any different, had the cones and the worker not obstructed the multiple sequence warning signal.

26. For the reasons given, I find that this accident came about solely due to the fact that the deceased had failed to keep a proper lookout. Accordingly, the plaintiff's claim is dismissed with costs (costs order nisi).