WONG WAI LIM v. TAM KIM KAN

HCPI 1014/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1014 OF 2001

____________

____________

_______________

J U D G M E N T

_______________

1. This is a claim for damages for personal injuries by a Plaintiff under a disability having suffered injuries of the utmost gravity including a severe brain injury and tetraplegia as a result of a road traffic accident on the 10 March 2000 in the early hours of the morning. This trial is concerned only with the issue of liability since his claim cannot yet be fully formulated. A number of other claims are contingent upon the decision.

2. He was driving a saloon motor car along the Tai Chung Kiu Road in the direction of Tai Wai, Shatin and towards the junction with Shatin Wai Road which is controlled by traffic lights.

3. Travelling along the Shatin Wai Road was a Public Light bus which was being driven by the Defendant in the direction of the Wo Che Estate. It is necessary to describe the layout of the two roads to appreciate the nature of the junction and the direction from which each vehicle had travelled.

4. Tai Chung Kiu Road is a dual carriageway with five lanes marked out for the traffic proceeding towards the junction with the Shatin Wai Road. The nearside lane is for traffic turning left into the east-bound carriageway of the Shatin Wai Road. Two lanes are marked for traffic proceeding directly access the junction towards Tai Wai. A further two lanes are marked for traffic turning light into Shatin Rural Committee Road.

5. Shatin Wai Road is also a dual carriageway with the west-bound carriageway travelling towards the Shatin Rural Committee Road, divided into four lanes. The nearside lane was marked for traffic turning left towards Tai Wai, the middle two lanes were marked for traffic continuing ahead across the junction and the right hand lane for traffic intending to turn into Tai Chung Kiu Road towards City One. The police plan and photographs set out this junction clearly and it is from those that I have taken the description above.

6. The two vehicles met in the junction on the Tai Wai side of it and collided at speed with both going out of control afterwards. Neither appears to have left any tyre marks on the road prior to impact. As the Plaintiff entered the junction the Defendant's bus emerged from his left. Conversely as the Defendant entered the junction the Plaintiff emerged from his right.

7. The only evidence of the Plaintiff's driving at the junction comes from another motorist, a taxi driver, Mr Kwok Kam Shui, who made a statement to the police but was not called to give evidence at the Magistrates Court when the Defendant was prosecuted for reckless driving and convicted of careless driving. The Plaintiff is incapable of giving evidence and his surviving passengers have no recollection which can assist in any way.

8. The taxi driver ( who could not be traced in order to secure his attendance at this trial) was travelling in the third lane of Tai Chung Kiu Road, that is the second of the lanes for traffic intending to proceed straight ahead. He was therefore on the Plaintiff's offside. He had started off from Bel Air Gardens with the Plaintiff's vehicle ahead of him in its inner lane. He noticed the traffic lights at the junction were showing red against him, as they were of course for the Plaintiff. He stopped at the junction but the Plaintiff's vehicle continued into the junction. He had some impression of the Plaintiff's vehicle accelerating into the junction with a speed of at least 70 kph. He saw the Defendant's minibus emerge from Shatin Wai Road and the collision take place.

9. The Police Officer who took the statement from Mr Kwok a few hours later that same morning, prepared a sketch plan on the basis of Mr Kwok's description of events, and approved by him. This, to all intents and purposes, corresponds to the scale plan prepared by the same officer.

10. This evidence has not been tested but there are clear reasons why it should be regarded as reliable and authoritative. The fact that the taxi had stopped to comply with the lights and thereby had a good view of events which took place in the junction is a powerful one. The evidence can also properly be regarded as independent. The consequence is that, at Mr Michael Ozorio S.C., realistically concedes on behalf of the Plaintiff, that he was clearly negligent and substantially responsible for the collision.

11. The evidence in relation to the sequence and duration of the traffic light phases indicates that as the Plaintiff went through the red light whilst the sequence showing to control traffic in Shatin Wai Road, was amber changing to red. What it was more precisely, if that can be established, calls for an examination of the Defendant's progress.

12. The public light bus journey for the passengers who have given evidence in this case was nothing short of frightening to judge from what they said and from their physical reactions. I have to bear in mind that journeys on such vehicles are rarely comfortable and that they seem to travel faster and with less stability than conventional buses. Accordingly impressions can be magnified or exaggerated unconsciously. However the three passengers concerned seemed very level headed and not prone to overstatements. The journey had started in Mongkok and was to finish at the Wo Che Estate. It did not of course reach its destination.

13. Mr Ho Lai Man is an experienced motorist himself. He was sitting behind the Defendant. He described the bus as being driven very fast, cutting lanes all the time. The speed reached 80 to 90 kph and down the Lion Rock tunnel it travelled at at least 100 kph. On one occasion the Defendant could not wait for a slower moving taxi, travelling at a normal speed, to pass a pick-up or put-down point, so he swerved into the fast lane, overtook the taxi, and swerved or cut back to set down some passengers at the point.

14. He described a 'squealing' sound from the wheels which may have been the rims or brake drum noise, rather than the 'squealing' of tyres as it took bends on a down hill slope at speed. He also used the term 'fluttering' as, at high speed, it seemed to be trying to lift off or fly.

15. It approached the junction in question at about 70-80 kph. The traffic light changed to amber when this witness was about 20 metres from it. The bus appeared to brake slightly as it went through continuing into the junction at about 60 to 70 kph. This witness saw the Plaintiff's car when it was about 10 metres away.

16. Madam Yim Yuk Lin appears to have been seated behind the previous witness. She too described the speed of the bus as very fast. She was scared and feared something would happen. There may of course be an element of hindsight in this remark. At times she had the impression that the public light bus would hit the central reservation as it swayed from side to side on what was to her I am sure, its frantic course. After Lion Rock Tunnel its speed was much faster than other traffic. It cut into other lanes and then quickly cut back.

17. At some stage after its last stop before the accident - probably at the Sha Kok Estate - when it was back on the Shatin Wai Road she was aware of an amber light showing. It is clearly difficult for her to be precise about this and it would be unreasonable to expect her to be so. In the circumstances of that early morning many matters which seem so important to advocates trying unreasonably to extract estimates of distance, time and speed are, and can only be, ones of impression. At one stage she said she saw this light a little while after the bus started off. At the Magistrates Court she referred to seeing the amber light when the bus came away from its last stop, at an angle. She was asked to draw a sketch to illustrate this aspect of her evidence but we do not have that. Unfortunately this aspect of her evidence was confused by a series of questions but it is clear that she was saying that she was able to see the amber light because the bus was angled. Her final estimate was that there was about a bus length in distance between the Public Light bus and the traffic lights when she saw the amber light showing.

18. Her evidence before me was in general terms to the same effect although with the benefit of photographs she put her position as a little further back from the traffic light when she noticed it was showing amber. It is now two years since the accident and it must have been a traumatic experience for her as it was for all those on the bus. The safest course for me to adopt is that she saw an amber light showing, as opposed to the change from green to amber, when the Defendant's vehicle was some distance, about the length of a conventional bus, short of the white stop line. Her last comments in the evidence in chief were quite telling in my view - "I expected the public light bus to rush through the junction because he did not slow down. I just wish he could get through." I added a gloss in colloquial terms to indicate my understanding of what she was saying - "I hope he makes it safely."

19. Finally, in relation to this witness' evidence I think it is safer not to place too much reliance upon the position in which she puts the Plaintiff's vehicle when she first saw it. I think however she can be relied upon when she says she saw the vehicle before it entered the junction.

20. I propose to deal with the evidence of the remaining two witnesses shortly. It is entirely consistent with that of the two whose evidence I have summarised in more detail. Mr Ng confirmed the fast speed and the cutting into lanes. He used the expression "in my experience he was not doing all right" to explain the fact that he was paying particular attention to the driving which included sharp braking, speed in excess of 80 k.p.h. with 100 k.p.h. being reached after the Lion Rock Tunnel. When it approached the junction in which the collision occurred its speed was 70-80 k.p.h. as it moved up through the gears.

21. Madam Man Sai-Yuen, though unable to suggest particular speeds, she was not herself a motorist, spoke of speed in general, a feeling that it was unsafe, and that it jumped the light.

22. All four passengers spoke of holding on to the metal grab rails either in front or at the side of their seats, with Mr Ng graphically demonstrating his grip on two separate such rails.

23. The overwhelming picture is that of the Defendant driving this light bus without regard for other road users, and scant if any regard for the safety of his passengers. He was driving in a manner that used to be described as 'furious'. He was taking a sustained risk during the time that these passengers were on board. I am satisfied that he drove throughout at high speed and inappropriately. In my view it was a clear course of reckless driving. He was in fact convicted of careless driving. I need not be concerned with this as a fact in the circumstances of this case.

24. He approached the junction with no heed for the fact that the amber light might well come on and, although there might have been a moment's hesitation, with a temporary marginal reduction of speed, he drove across that junction without any regard for traffic which might, for a variety of reasons, be crossing that junction.

25. I am also satisfied that he did not see the Plaintiff's vehicle. He should have done. Most of the passengers who gave evidence saw it. There were no brake marks left by the Defendant. This was a large junction with good visibility. It was illuminated. Its very layout with its dual carriageways and lane formation indicates that it carries substantial traffic. It calls for a proper lookout and care whatever signals are showing.

26. It is clear from the sketch plan of the taxi driver Mr Kwok and the police plan that the two vehicles met when the Defendant had just emerged onto the junction, the Plaintiff's front striking the Defendant at or near the driver's door. Both vehicles went out of control, their paths and final positions being illustrated on the police officer's scale plan and the photographs respectively. The Plaintiff had clearly advanced much further into the junction than the Defendant. There was no good reason for the Defendant not to see the Plaintiff in good time. The momentary hesitation referred to by Mr Ho Lai Man may have been the Defendant's reaction to seeing the Plaintiff's vehicle at the last moment and then an attempt to get across the junction.

27. Mr Sarony for the Defendant argues that the Defendant would be entitled to rely upon the red light operating against traffic in Tai Chung Kiu Road, affording him safe passage through the junction. However he is not entitled to enter that junction on the basis of an amber light, willy - nilly. It is clear that that change of light operates as a warning or prohibition against traffic entering such a junction. Firstly the junction must be approached at such a speed as will enable a vehicle to adjust to a change of light. I am satisfied that the amber light changed at a stage when, if he had been travelling at a reasonable speed and approach, he would have been able to pull up short of the junction. The whole course of his driving from Mongkok up to this stage showed a reckless disregard for traffic restraints and discipline and this continued throughout.

28. Even as he approached that junction, his duty of care required him to take account of traffic which might be in that junction or about to enter it. His driving that night showed a complete disregard of that duty. Had he been driving in anything like a reasonable manner he would not have entered the junction. The accident would not have happened but for his driving.

29. I have been referred with commendable diffidence on the part of both leading counsel to a number of decisions going back over 65 years, with facts that are varying as one would expect. In 1936 when the collision which was the subject of Joseph Eva Ltd -v- Reeves 1938-2 KB. 393 occurred, traffic was of minimal volume relatively, moved at a more sedate pace and was more compliant with directions and signals. Some indication of the contrasts can be seen in the description by Greene, M. R., of the driving of the Defendant's vehicle (a police car travelling at 25-30 m.p.h.) as "at a smart pace." This decision, as was Knight v Wiper Supply [1965] 109. Sol. Journal 358 was concerned with one party having entered a junction after the lights had changed to green. The other cases are not really in point.

30. Davis-v-Hassan 1967 [117] NLJ 72 is interesting in underlining that Eva v Reeves did not establish an immutable principle, "every case of negligence had to be decided on its own particular facts." Godsmarth v Knight [1960] The Times 12 May 1960 and Radburn-v-Kemp 1971.1. WLR 1502 both illustrate the duty upon drivers entering a traffic light controlled junction in varying circumstances.

31. If there is a general principle to be deduced from this series of cases, it is that there remains an obligation upon drivers entering a traffic-light controlled junction, albeit with a light in their favour, to take account of any traffic which might be in or entering the junction. Not to do so is simply negligent. This is implicit in any Highway Code. Traffic entering without a green light in its favour has, a fortiori, a greater duty of care.

32. The Defendant approached this traffic light controlled junction in the same driving frame of mind as he had demonstrated hitherto. He knew, despite what he told the police officer, that the light was amber and called for caution and a proper lookout. That is why he dishonestly asserted that the light was green. He knew it was wrong to enter that junction in all the then prevailing circumstances. He did not give evidence to the Magistrate, nor did he give evidence in these proceedings. Accordingly he has provided nothing to rebut the overwhelming inferences to be drawn from all the circumstances that night.

33. The degree of his negligence is not to be equated with that of the Plaintiff although there is nothing to suggest that the Plaintiff's driving, other than when he drove across the junction against the light, had been anything like the appalling course pursued by this Defendant. In my judgment the Defendant bears one-third liability for this accident.

34. There will therefore be judgment for the Plaintiff for one-third of his damages, to be assessed, with costs. There will be judgment for the Defendant on the counterclaim for two-thirds of his damages to be assessed with costs of the counterclaim. The other actions for damages by injured passengers in one or other of the vehicles involved will no doubt fall to be determined on liability on the basis of "res judicata".