WONG WAI LIM v. TAM KIM KAN

CACV 248/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 248 OF 2002

(ON APPEAL FROM HCPI NO. 1014 OF 2001)

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J U D G M E N T

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Hon Rogers VP:

1. This is an appeal from a judgment of Seagroatt J given on 25 April 2002. The action concerned a claim by the plaintiff for personal injuries suffered in a road traffic accident in the early hours of the morning of 10 March 2000. There was a claim and counterclaim. The judge held the plaintiff to be two-thirds responsible for the accident and the defendant one-third responsible. Against that finding the defendant appealed. The argument on behalf of the defendant on the appeal was confined to liability only; the appeal in respect of apportionment was not argued. At the conclusion of the hearing, this court reserved its judgment.

The facts

2. The accident occurred at a junction between two wide roads. The junction was controlled by traffic lights. The plaintiff was driving a saloon motor car along Tai Chung Kiu Road towards Tai Wai, Shatin. The defendant was driving a public light bus along Shatin Wai Road towards Shatin central. Both roads are dual carriage roads. Tai Chung Kiu Road had five lanes at the junction: one lane was for traffic turning left, two lanes were for traffic turning right. Shatin Wai Road has four lanes: one lane for left turning traffic and another for right turning traffic.

3. There was no dispute that the plaintiff drove across the junction of the two roads against the red light, although there was a left filter on at the time. Why he should have done so will probably never be known. The plaintiff suffered severe injuries such that he is incapable of giving evidence, one of his passengers was killed in the accident and the surviving passengers have no recollection which can assist. The evidence of the plaintiff driving across the junction against the red light at high speed came from a taxi driver who was driving in the same direction.

4. The defendant had driven the minibus from Mongkok towards Shatin. Four passengers who were in the minibus at the time of the accident were called to give evidence. There was a great deal of consistency in their evidence. On the journey from Mongkok the defendant had driven in a manner which the judge said used to be described as "furious". All four passengers had given evidence of holding on to the metal grab rails either in front or at the side of their seats. Two of the witnesses had said that the defendant had driven at speeds of 100 kph. He had swerved from one lane to another, there had been squealing sounds coming from the wheels. One of the witnesses said that the minibus was "fluttering" as it seemed to be trying to lift off or fly. Clearly the witness was describing the vehicle travelling at or beyond the limit of its stability. The judge had no hesitation in holding that the defendant had been driving the minibus in a reckless manner on the journey.

5. The evidence in relation to the period immediately prior to the collision of the two vehicles came entirely from the four witnesses. Not surprisingly, their evidence differed in the precise details but it was in general consistent. It would appear that the defendant might have stopped at a bus stop close to the junction, or at the least swerved in and out of a bus stop bay. The witnesses were consistent that the traffic lights in the direction in which the minibus was travelling changed to amber before the minibus had reached the lights and that the minibus was by that stage travelling at 60 to 70 kph. It would seem therefore that, if the minibus indeed had stopped at the bus stop, there must have been heavy acceleration for it to have reached that speed. It would seem that there was possibly a moment of hesitation when the minibus slowed but it continued across the amber light.

6. There was much discussion in the appeal as to various portions of the evidence in the court below, and the evidence in the Magistrates' Court, when the defendant had been prosecuted for reckless driving. In the main that centred upon how far away from the traffic lights the minibus was when the passengers saw the light turning to amber. Distances such as 10 m, 20 m and one and two large bus lengths were discussed. One witness said the lights had changed to amber as the minibus pulled away from the bus stop. In many respects, such statements could, in the circumstances of the case, only be indicative of broad impressions. A vehicle travelling at 60 to 70 kph will travel a considerable distance in the period of time between traffic lights changing colour and a passenger being conscious of the change. On the assumption that in road traffic terms "thinking time" is perhaps slightly less than a second, it would take about that time for a passenger to be aware of the change. A vehicle moving at 60-70 kph would have travelled approximately 18 m or more in a second. In any event estimates of distances are notoriously difficult and are made far more complicated when those giving them are in a vehicle travelling at speed.

7. In those circumstances it was clearly for the judge to form his own opinion based upon seeing and hearing the witnesses and assessing from all the evidence what he considered must have happened. No doubt the judge found of assistance in forming his view the statement which was recorded in paragraph 18 of the judgment when he said of one witness:

"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.'"

8. In coming to his conclusion that the defendant had been negligent and partially responsible for the accident the judge said that he did not need to take into account the fact that the defendant had been convicted of careless driving. The judge also did not specifically mention the salient fact that the defendant neither gave evidence in the Magistrates' Court when he was convicted of careless driving nor did he give evidence in the court below. The judge was therefore not assisted by the witness who could have given him the best assistance as to how the defendant himself was driving and what actually happened. The only statement by the defendant which the judge had before him was one made to the police where the defendant said that the traffic light was green in his favour. Whatever else may have occurred, that was clearly not the case. In my view, it was a bold step for the defendant to consider that he could persuade a court that he had not been negligent when he chose not to give evidence in civil proceedings after he has been convicted of careless driving.

9. The argument on behalf of the defendant was put primarily upon the basis that the plaintiff had been so negligent in driving across the red light that the defendant could not have been expected to have taken into account the possibility of a car being driven quite so recklessly. In my view such an argument is fallacious. Albeit the plaintiff was clearly negligent, the court must still go on to consider whether the defendant was also negligent and that such negligence was a contributory cause of the accident.

10. As to this element of the case, the judge summarised his conclusion in paragraph 27 of the judgment where he said:

"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."

11. In my view the judge was amply justified in reaching this conclusion. That conclusion was reached on an analysis of all four witnesses' evidence. Mr Sarony's attempt to suggest that the minibus could not have pulled up was based upon mathematical calculations on the hypothesis that the minibus was too close to the traffic lights to pull up. I, for my part, am by no means satisfied that Mr Sarony's starting point for those calculations, namely the estimated distance from the traffic lights, was the correct distance on the evidence, nor, for that matter, that the quality of the impressions garnered by the witnesses during their clearly frightening journey provide a sufficiently accurate underpinning on which to base such post-facto analysis. Importantly, also, the argument fails to take into account the manner of the defendant's driving which, as the judge pointed out, was reckless.

12. The judge fully considered the evidence before him, and in my view evaluated it appropriately. In my view, this appeal should be dismissed with costs.

Hon Yuen JA:

13. I agree that this appeal should be dismissed with costs. At first sight, the manner in which the Plaintiff drove his vehicle into the junction (as described by the taxi driver) appeared to be near-suicidal, but on reflection, I agree that the Defendant had also, by his negligence, contributed to the accident. As the degree of contribution found by the judge was not challenged at the hearing of the appeal, this court should not deal with that aspect.

14. The Defendant had a duty to other road-users to take care when driving his vehicle into the junction. It cannot be said that the class of road-users to whom a duty was owed did not include the Plaintiff.

15. The manner in which the Defendant drove his vehicle into the junction was in breach of that duty of care. The Defendant was approaching a large junction, which by its very nature, might be entered by other vehicles from different directions. Although there were traffic lights, the location still called for caution by keeping a proper look-out for vehicles from other approaches.

16. By all accounts, the Defendant was driving at a speed greater than that at which his passengers felt safe. The faster the speed at which one drives, the less time one would have to notice traffic conditions and to react to them.

17. The Defendant's passengers saw that the traffic light was amber before their vehicle entered the junction. The Vice-President has dealt with the issue as to where the Defendant's vehicle was when the light changed, and I respectfully agree with his judgment. The Defendant, in his statement to the police, alleged that the light was green when his vehicle entered the junction. Either he was lying, or if he was not, he was driving so carelessly that he failed to notice the light.

18. The passengers noticed the Plaintiff's vehicle before the collision, but did not describe any urgent braking or avoiding action from the Defendant. Nor did the Defendant as, in his statement to the police, he only said he saw a black shadow dashing from the right. He did not explain why he did not see the vehicle earlier (it having travelled a substantial distance into the junction, albeit at speed) or take avoiding action.

19. For Mr Sarony SC to submit that, even if the Defendant had been driving slower, the collision would still have occurred, is to ignore the fact that driving at speed, the Defendant did not notice the light and did not take avoiding action. Driving at 60-70 km/h into a large junction when the light had turned amber, the Defendant gave himself very little thinking time to avoid another careless driver.

20. The conclusion must therefore be that whilst the Plaintiff was substantially to blame for the accident, the Defendant did contribute to its cause, resulting in serious injury to the Plaintiff.

Hon Stone J:

21. I agree.