YEUNG PAN NAM v. PERSONAL REPRESENTATIVE OF TONG YU TAT ANTHONY, DECEASED AND OTHERS

HCPI 240/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 240 OF 2012

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A. Introduction

1. At about 19:55 on 8 June 2010, the 3^rd defendant, Singh Harbhajan (“Singh”) was driving a motorcycle, JF7677 (“the Motorcycle”).  He entered the 1^st lane (“the Left Lane”) of Electric Road (“the Road”), North Point, Hong Kong from Watson Road.  The Road is an eastbound carriageway consisting of two lanes.  On reaching a point outside a boy scouts’ headquarter (“the Location”), the Motorcycle cut into the 2^nd lane (“the Right Lane”) of the Road.  At that time, Tong Yu Tat Anthony (“Tong”) was driving a public bus, HT9589 (“the Bus”) along the Right Lane behind the Motorcycle.  The 2^nd defendant, Citybus Limited (“Citybus”), was the owner of the Bus and the employer of Tong.  The Bus managed to stop behind the Motorcycle after the Motorcycle had entered the Right Lane completely.  There was no collision.  However, after the Bus had stopped, the plaintiff, Yeung Pan Nam (“Yeung”), was found lying unconsciously in the lower deck compartment of the Bus.  She suffered serious head injuries.  The police did not prosecute anyone after investigations.

2. Yeung claims damages for personal injuries that she suffered in the accident.  Tong died before this trial and is now represented by the 1^st defendant, the personal representative of his estate.  Damages have been agreed at $6,500,000 (inclusive of interest).  This is the trial on liability only.

B. The parties’ case and the issues

3. Yeung’s case is that, at the material time, the Bus was travelling on the Right Lane heading east whereas the Motorcycle was entering the Left Lane from Watson Road to join the eastbound traffic.  Singh swerved the Motorcycle from the Left Lane to the Right Lane ahead of the Bus.  Hence, Tong applied the brake suddenly.  As a result, she was thrown forward and fell onto the floor of the Bus.  She claims that the accident was caused by the negligence of both Tong and Singh.

4. Tong’s case is that the Bus was travelling along the Right Lane of the Road at about 20 to 25 km/hr, and there was no vehicle ahead.  On reaching the Location, he noticed that, at a distance of about a motorcycle’s length behind him on the Left Lane, the Motorcycle was overtaking him at a speed faster than the Bus.  He saw that the Motorcycle was travelling close to the left side, and believed that it was going to turn left into the junction of a building on the left.  The Motorcycle suddenly swerved to the right from the Left Lane to the Right Lane, and blocked his path.  He immediately applied the brake, sounded the horn and swerved to the left hastily but not in emergency.  After the Bus dashed forward for about one to two private cars’ length, it stopped.  The bus was about one private car’s length from the offside of the Motorcycle.  There was no collision.  The Motorcycle entered the Right Lane completely and stopped horizontally in front of the Bus. Singh looked at him once.  At that time, someone in the lower deck compartment, who must be Yeung, fell.  The Motorcycle then drove onto the pavement on the right side.  Tong claimed that the accident was wholly caused by the negligence of Singh.

5. Singh’s case is that he stopped the Motorcycle at the “stop sign” at the intersection between Watson Road and the Road.  At that time, the distance between the Bus and the Motorcycle was about 25 to 30 metres.  After moving off again, the Motorcycle travelled on the Left Lane for a short distance at about 10 km/hr.  He then decided to cut into the Right Lane.  Immediately before doing so, he reduced the speed of the Motorcycle to about 5 km/hr, turned on the right indicator, and checked through the right mirror.  He saw that the Bus was about 30 to 40 feet back on the Right Lane.  It was safe for him to cut into the Right Lane.  Hence, he cut into the Right Lane at the speed of about 5 km/hr.  After he entered the Right Lane and travelled for about 6 metres forward, he heard a very loud braking sound.  He was startled by the noise.  So he stopped the Motorcycle for about 2 to 4 seconds.  The distance between the Bus when it came to a stop and the Motorcycle was about 25 to 30 feet.  He then parked the Motorcycle on the pavement, and went to the side of the driver’s window of the Bus to ask Tong the reason for the sudden braking.  Singh claims that the accident was wholly caused by the negligence of Tong.

6. In short, while Yeung claims that both Tong and Singh were negligent, Tong and Singh put the blame on each other.  The issues are:

(a) Whether Tong, or Singh, or both were negligent?

(b) If both Tong and Singh were negligent, how liability should be apportioned between them?

C. How the accident happened

7. Yeung was unable to recall how the accident happened due to her serious head injuries.  Tong died on 28 December 2014.  Hence, only Singh gave evidence at the trial.  Mr Leung, acting for Yeung, and Mr Wong, acting for the personal representative of Tong and Citybus, submitted that Singh’s evidence is incredible.  On the other hand, Mr Kwok, acting for Singh, submitted that what Tong stated in his previous statements is incredible.

8. Before I turn to the evidence, I shall make the following general observations.  The accident took place in a few seconds.  As aptly observed by Seagroatt J in Chan Hwai Yan, an infant suing by her sister and next friend Chan Hoi Yan v Cheng Yip Chi, HCPI 510/2000 (2 February 2001, unreported), p 3:

“… It is impossible to expect any witness to talk with accuracy in terms of feet, seconds, distance or time some five years after the event. It is difficult enough to estimate time and distance immediately after such a traumatic event let alone years later. There is inevitably a degree of reconstruction. It is quite unreasonable to expect any such witness to speak reliably in terms of distance, time, and speed and equally unreasonable to take them to task on variations or inability to be precise.”

In addition, after the event, in particular when the person in question knows that he or she is being, or may be, accused of being negligent, he or she may tend to recall or reconstruct the accident either intentionally or subconsciously or both in a manner which will exonerate himself or herself from responsibility.

9. There are material discrepancies between Tong’s evidence and Singh’s evidence.  Tong’s evidence as contained in his previous statements has not been tested by cross examination; and, as I shall explain later, what he said in his previous statements is inconsistent with the CCTV record obtained from a nearby building.  In these circumstances, I will look for independent evidence (insofar as available) and consider the inherent probability of the matter in deciding any material factual issue.  I shall now return to the facts of this case.

10. Before reaching the Location where the accident happened, there is an intersection between Watson Road and the Left Lane of the Road where there is a “stop sign”.  And not far after passing the Location, there is a set of traffic lights.

11. Singh said he was familiar with the surroundings of the Location and that he had just made a delivery at Watson Road.  He said he stopped at the “stop sign” completely for about 2 to 3 seconds.  He said he checked the mirror and did a shoulder check.  He saw that the Bus was about 25 to 30 metres behind the Motorcycle on the Right Lane.  He did not mention in his police statement, or his first two witness statements, that he had checked the mirror and did a shoulder check.  It was also put to him that, based on the position of the Motorcycle as described by him, he could not have seen the Bus from the mirror, or by a shoulder check.

12. Singh said, after stopping at the “stop sign” for 2 to 3 seconds, he moved off again.  He said he accelerated from 0 km/hr to about 10 to 12 km/hr, and was travelling on the Left Lane.  It was put to him that he could not have accelerated to about 10 km/hr at the short distance as described by him.  It was further suggested that he had not in fact stopped at all.

13. It is unnecessary for me to decide whether the Motorcycle had actually stopped at the “stop sign”, and whether Singh had checked the mirror or done a shoulder check. What is important is that, on his own evidence, Singh already noticed the Bus before the Motorcycle entered the Road from Watson Road.

14. In his police statement, he said he was going to Chai Wan.  He clarified in court that he meant going towards the direction of Chai Wan.  In fact, he was going to pick up a phone cover from a place in North Point.  For that purpose, after entering the Road, at a certain point, he would need to turn right to a side street which would in turn lead to King’s Road.

15. He decided to change lane after travelling for a short distance on the Left Lane of the Road.  He explained that, from his experience, there was always a line of slow traffic intending to turn left into a petrol station adjacent to the Left Lane immediately after the set of traffic lights ahead.  At that time, he was only about one vehicle length from the car in front on the Left lane, ie about 7 to 8 metres.  He said that from the “stop sign” to the point where he changed lane, there was a distance of about 15 metres ie 4 to 5 private vehicle length.  He denied that he changed lane because he was determined to get ahead of the Bus on the Right Lane.  The exact reason why Singh decided to do so is not important.  Irrespective of why he decided to change lane, the important point is that he could have stayed on the Left Lane.

16. The more important issue is how he carried out his decision to change lane.  He said he slowed down to about 5 to 7 km/hr when changing lane.  The immediate question is why he reduced his speed when cutting lane.  First, he said every driver would reduce speed when changing lane.  And, further, he explained that when he was changing lane, he noticed that two vehicles had stopped on the Right Lane because of the red light ahead.  According to the CCTV record, it is clear that he was mistaken as to both the number and type of vehicles stopping in front of him on the Left and the Right Lane.  But I do not find such discrepancies to be material.

17. Returning to the time before he started to change lane, he said he had checked the mirror, and did a shoulder check.  He saw that the Bus was about 30 to 40 feet behind him (ie about 10 metres). He agreed that the speed of the Bus was about 20 km/hr. It should be noted that in the police statement, he said the Bus was “very fast”. 

18. He also said he then put on the right indicator.  He denied the suggestion that he had not done so.  Tong said in his previous statements that Singh had not turned on the right indicator.  In the absence of any other independent evidence, I am prepared to accept Singh’s evidence on this point.

19. It is telling that, Singh said for the first time in court that, before he changed lane, he already observed that the Bus was slowing down.  When he was asked to explain why he did not mention this to the police or in any of his statements, he said he was never asked and this point did not come across his mind.  I reject his evidence on this point.  I find that he did not actually see the Bus slowing down at that point of time.

20. What can be seen from the CCTV record may be summarized as follows:

(a) At about 19:54:26, the Motorcycle appeared on the Left Lane.

(b) At about 19:54:27, the Motorcycle started to cut lane diagonally at a small angle.

(c) At about 19:54:28 to 19:54:29, the Motorcycle was cutting lane and straddling on the broken white line between the two lanes.

(d) At about 19:54:29, while the Motorcycle had not yet completely entered the Right Lane, the Bus appeared on the Right Lane from behind.

(e) At about 19:54:30, the Motorcycle was completely inside the Right Lane; and the Bus was slowing down.

(f) At about 19:54:31, the Bus came to a stop.

(g) The Bus then jerked forward a little bit.  At about 19:54:33, it came to a complete stop.

(h) At about 19:55:43, Singh appeared.  He went to the driver’s window of the Bus, and then at 19:55:54, he got on the Bus.

21. There was indeed no collision.  However, the CCTV record at 19:54:29 shows that, at one point of time, the two vehicles were quite close to each other.  In Singh’s first supplemental statement, he said that when the Bus stopped, it was around 10 feet behind him, but not 10 metres as stated in his police statement.  It was put to him that he said so in order to paint a picture that the Bus was driving too close to him.  He denied.  He was unable to explain what prompted him to make the correction.  His evidence on this point is unreliable.  Different estimates of the distance between the two vehicles have been given by the parties, but no actual and accurate measurement has been done.  Nevertheless, the CCTV record speaks for itself.

22. Singh said the Motorcycle travelled for about 5 to 6 metres on the Right lane before it stopped.  The CCTV record did not capture this.  Singh said he stopped on the Road behind a vehicle on the Right Lane.  He then heard a loud brake sound behind.  He then parked the Motorcycle on the pavement.  He went to the Bus.  He said it did not occur to him that the Bus had to brake hard and suddenly because he changed lane.  He said he thought the Bus might have been hit from behind.  Nevertheless, he went to see whether he could provide any assistance.

23. On the other hand, after the Bus came to a stop, Tong discovered that a passenger, who turned out to be Yeung, was lying unconsciously in a prone position with her head facing the front of the Bus near the exit door.  There was no other passenger in the lower deck compartment.  He did not know where she was before she fell.  He heard Yeung falling at the moment when the Bus stopped.  It is unknown whether Yeung was sitting or standing before she fell.  But the irresistible inference is that Yeung fell because the Bus decelerated and stopped suddenly.  As a matter of common sense, the fact that Yeung suffered serious head injuries indicates that the braking force of the Bus must have been substantial.

D. Whether Singh is liable

24. To establish liability against Singh, Yeung must prove that Singh was negligent; and that such negligence caused her injuries.  The case against Singh boils down to one point: he should not have changed lane in the circumstances; by doing so, he caused the Bus to brake suddenly, which in turn caused Yeung to fall and suffer injuries.

25. Section 109(5) of the Road Traffic Ordinance (Cap 374) provides that:

“A failure on the part of any person to observe any provisions of the road users’ code ... shall not of itself render that person liable to criminal proceedings of any kind but any such failure may in any proceedings whether civil or criminal … be relied upon by any party to the proceedings as tending to establish or negative any liability which is in question in those proceedings.”

26. After referring to the equivalent English counterpart in section 38(7) of the Road Traffic Act 1988, the authors of Charlesworth & Percy on Negligence (13^th edn, 2014) state in § 10 – 198 at p 836 that:

“It follows that, usually, a failure to observe the provisions of the Code is prima facie evidence of negligence but the Code should not be treated as a statute and a breach of the Code does not necessarily indicate negligence:

‘It contains many propositions of goods sense, which may be taken into account in considering whether reasonable care had been taken, but it would be a mistake to elevate them into propositions of Law.’”

27. The Road Users’ Code (May 2000 edition) provides at p 54 that:

“Traffic lanes

…

Do not change lanes unless it is safe to do so.

Do not move unnecessarily from lane to lane.  If you need to move into another lane, first look to see that it is safe to do so, remembering to use the mirror.  If it is safe to move over, signal before doing so.  Make sure this will not force another driver to swerve or slow down.”

(“the RUC on changing lanes”)

28. Mr Kwok initially submitted that the statement in Charlesworth & Percy on Negligence is wrong, which is a bold submission that I do not accept.  He then submitted that changing lanes without causing vehicles behind to slow down is the perfect scenario usually applicable to the highway, but in heavily built up and congested areas the circumstances are very different.  He made another bold submission the RUC on changing lanes is inapplicable to built up areas such as the Location.  The distinction that Mr Kwok sought to draw is unclear, unworkable and illogical in practice.  The rationale behind the RUC on changing lanes is clear and simple.  If by changing lanes, the driver of another vehicle behind is forced to swerve or slow down, it will result in a risk of injury to the other driver and the passengers on his car, or even the driver or passengers on other vehicles nearby.  The message is clear: do not create an unnecessary risk of injury to other road users.  This is also what the law of negligence is concerned about.

29. Ultimately, Mr Kwok focused on the submission that Tong was not “forced” to slow down and brake because Singh cut the lane; and, hence, Singh had not breached the RUC on changing lanes.  Further, he had done all precautionary steps prior to cutting the lane to ensure that it was safe to do so in the circumstances; he cut lane at a speed and distance which created no hazard to Tong; and the sole cause of the accident was that Tong braked too hard and too suddenly.

30. In the present context, the issue of negligence and causation are interrelated because whether it was safe for Singh to cut lane would depend on whether it had caused Tong to slow down and brake.

31. In principle, whether it is safe to cut lane will depend on the relative speeds of the two vehicles and the distance between them.  As mentioned, on Singh’s own evidence, when he changed lane, he had already reduced the Motorcycle’s speed to around 5 to 7 km/hr.  He accepted that the Bus, travelling at around 20 km/hr on his own estimate, was much faster than the Motorcycle.  He also estimated that when he was about to change lane, the Bus was about 30 to 40 feet behind.  It must be clear and obvious to him that the Bus was getting closer and closer to him, and was catching up quickly.  Counsel for all parties agreed with my rough calculation that, on Singh’s own evidence, if both vehicles maintained the same speed, there would be a collision in about 2 seconds.  I appreciate that this is a very rough estimate only.  But this rough estimate supports that it was unsafe and risky to cut lane in those circumstances.

32. It is telling that Singh admitted that, because he changed lane, the Bus would need to slow down.  He stressed that he had put on the right indicator.  He believed that, having done so, any driver in the position of Tong should slow down to allow him to cut into the lane.  Further, he explained why he thought it was safe to cut lane in those circumstances.  He believed that Tong could control the Bus and there was a sufficient distance between them to enable the Bus to slow down or stop behind the Motorcycle without a collision.  He was right in fact, but he had missed the point.  Indeed, what he said reflects a misconception on his part as to what constituted safe circumstances to change lane.  As what happened to Yeung shows clearly, serious injuries could be caused if the vehicle behind was forced to slow down and stop abruptly.

33. Singh also claimed that, in any event, the Bus driver could and should have seen the red light ahead, and would have to stop in any event.  It may well be correct that the Bus would have to slow down and stop in any event because of the red traffic light ahead.  However, by cutting into the path of the Bus, the distance that the Bus could have used to come to a stop must have been reduced substantially. In other words, the Bus had to stop within a much shorter distance.

34. I agree with Mr Kwok that, even if the vehicle behind is forced to slow down or even stop, it does not necessarily follow that the driver of the car cutting lane must be negligent.  If, in fact, the car behind manages to slow down and stop smoothly without causing injury to anyone, there will not be any legal liability on the part of the driver.  It is a matter of degree depending on the circumstances of each case.

35. Mr Kwok’s main point is that there was a safe distance between the two vehicles.  First, relying on my rough estimate that there would be a collision in about 2 seconds, he invoked the 2‑second rule in the RUC.  I am afraid that this is a misuse of the 2‑second rule.  The 2‑second rule is merely a general guidance given to a driver following another vehicle to ensure that he will be able to stop safely in time in case the vehicle in front suddenly slows down or stops.  Whether 2 seconds would indeed be safe and sufficient would depend on a number of factors, including the weight of the vehicle, the condition of the tyres and brake of the vehicle, and the condition of the road, etc.

36. Mr Kwok relied on the Car Stopping Distance Calculator and submitted that the overall braking distance at 20 km/hr would only be 6 metres or 20 feet (or 8 metres or 27 feet if at 25 km/hr).  He also submitted that the distance between the two vehicles should be about 57 feet when Singh was about to change lane.  He used such calculations to demonstrate there was sufficient distance for Tong to slow down and stop comfortably.  I cannot accept his analysis.  Mr Kwok’s submission that there was a distance of 57 feet between the two vehicles is based on, first, Singh’s estimate that the Bus’s speed was 20 km/hr; and second, there was a time lapse of 3 seconds between the time the Motorcycle first appeared on the CCTV record and the time the Bus first so appeared.  I have serious reservations whether 57 feet is an accurate assessment because it appears to be longer than the distance estimated by Singh (ie 30 to 40 feet), and 20 km/hr is also Singh’s estimate only.  Further and more importantly, I take a firm view that it is wrong to use the Car Stopping Distance Calculator.  It is downloaded from a website.  The first paragraph gives the following warning:

“The calculator below estimates the stopping distance for a well maintained car with an alert driver on a dry road. Obviously actual stopping distance will vary considerably depending on condition of the road and car as well as the alertness of the driver.”

Plainly, the stopping distance must depend on a number of variables, including the weight of the vehicle, the condition of the tyres, etc.  In Lau Shun Hing v Ng Ching Hung [1991] 1 HKC 179 at 180I – 181B, Power JA warned against the use of a braking table in relation to a loaded goods vehicle without expert evidence to indicate the proper use of such a table.  In this case, there is insufficient raw data to enable one to calculate the Bus’s stopping distance accurately and reliably.

37. What is clear is that, as I mentioned earlier, according to the CCTV record, at one point of time, the two vehicles were quite close to each other.  The manner in which the Bus came to a stop as shown in the CCTV record (stopped, jerked forward a little bit, and then stopped) supports that the Bus did not stop smoothly and naturally.  It indicates that Tong applied the brake and stopped the Bus abruptly.  Tong was apparently caught by surprise.  The loud braking sound that Singh heard and the serious injuries suffered by Yeung as a result of the fall further support that the Bus must have stopped suddenly by braking hard.

38. Common sense suggests that Tong would not have braked and stopped the Bus abruptly for no reason.  I take the view that he braked and stopped the Bus abruptly because he saw suddenly that the Motorcycle cut into his path and he feared that there may be a collision.  I have no difficulties in holding that Singh was negligent because he changed lane in a manner which had caused Tong to stop the Bus abruptly.

39. On causation, the ultimate question is whether Yeung’s injuries were caused by Singh’s negligence.  It is correct that the immediate cause of her injuries was the sudden stop of the Bus.  However, there could be more than one cause.  Causation can be established so long as Singh’s negligence was one of the material contributing factors; and it does not need to be the sole, or dominant, cause.

40. In considering causation in fact, one may start with the “but for” test.  For reasons stated above, I am satisfied that, but for the fact that Singh changed lane, Tong would not have stopped the Bus abruptly and Yeung would not have suffered the injuries.

41. Even if a cause satisfies the “but for” test in fact, it may not be regarded as an effective cause in law.  In some cases, such a cause will be regarded as being too remote.  And in some cases, the chain of causation is broken because another subsequent cause constitutes a novus actus interveniens. There is no suggestion that Tong’s act constituted a novus actus interveniens in this case.

42. In principle, the mere fact that there is another cause coming into the picture contributing to the injuries suffered by the plaintiff does not mean that the previous cause will automatically cease to be an effective cause in law.  Mr Leung drew my attention to Smith v Harris [1939] All ER 960 where Scott LJ held at 962F – H:

“The argument, as it seemed to me, was based essentially on the view that the inquiry into legal responsibility is identical with a mere inquiry into the chain of causation on an analysis of the sequence of events of a kind which, if you can say that as a mere matter of causation a new cause comes in, you must in law then say that the person who set the chain of causation moving is thereby freed from all legal responsibility. In my view, that is to take too narrow a view of legal responsibility for either land or sea collisions, and it is too narrow, because it is not only the result of taking too narrow a view of the facts – that is to say, not having all the facts sufficiently in mind at the same time – but it is misleading, because it tends when it is stated in those terms to draw away the attention of the judge or jury dealing with the issues of fact from what you might call the broad view of the circumstances of the case.”

43. The correct approach is to take a broad view of the circumstances of the case by common sense.  In Stapley v Gypsum Mines Ltd [1953] AC 663 at 681 – 682, Lord Reid held that:

“To determine what caused an accident from the point of view of legal liability is a most difficult task. If there is any valid logical or scientific theory of causation it is quite irrelevant in this connection. In a court of law this question must be decided as a properly and reasonably directed jury would decide it … The question must be determined by applying common sense to the facts of each particular case. One may find that as a matter of history several people have been at fault and that if any of them had acted properly the accident would not have happened, but that does not mean that the accident must be regarded as having been caused by the faults of all of them. One must discriminate between those faults which must be discarded as being too remote and those which must not. Sometimes it is proper to discard all but one and to regard the one as the sole cause, but in other cases it is proper to regard two or more as having jointly caused the accident. I doubt whether any test can be applied generally. It may often be dangerous to apply this kind of case tests which have been used in traffic accidents by land or sea, but in this case I think it is useful to adopt phrases from Lord Birkenhead’s speech in Admiralty Commissioners v Volute (Owners) [1922] 1 AC 129, 144, 145, and to ask was Dale’s fault ‘so much mixed up with the state of things’ brought about by Stapley that ‘in the ordinary plain common sense of this business’ it must be regarded as having contributed to the accident.”

44. Rouse v Squires [1973] 1 QB 889 is the leading authority concerning liability for creating an obstruction on a road.  Although the present case did not involve any obstruction on the road, the following judgments provide useful guidance on how one should approach the issue of causation when multiple causes are involved.  Cairns LJ held at p 898C – E:

“If a driver so negligently manages his vehicles as to cause it to obstruct the highway and constitute a danger to other road users, including those who are driving too fast or not keeping a proper lookout, but not those who deliberately or recklessly drive into the obstruction, then the first driver’s negligence may be held to have contributed to the causation of an accident of which the immediate cause was the negligent driving of the vehicle which because of the presence of the obstruction collides with it or with some other vehicles or some other person.”

MacKenna J held at pp 899H – 900A:

“We have been referred to a number of cases where two parties were guilty of negligence and it was argued that the negligence which was subsequent was the sole cause of the accident. I would deduce this rule from the cases. Where the party guilty of the prior negligence has created a dangerous situation, and the danger is still continuing to a substantial degree at the time of the accident, and the accident would not have happened but for this continuing danger, he is responsible for the accident as well as the party who was subsequently negligent.”

Buckley LJ held at p 901B – D:

“Anyone who by a negligent act creates a danger on a highway to other users of the highway can be liable to another user if damage results from the danger so caused. The question whether there is a danger is to be determined by the ordinary test of foreseeability. But for that purpose, when considering how other road users can reasonably be expected to use the road, you are not entitled to assume that they will all exercise the proper degree of care. For instance, one should not proceed upon the assumption that every driver will be able to stop within the limits of his own vision, because common experience shows that people do not always drive in that way. But when there is ample visibility and ample opportunity for the driver of an on‑coming vehicle to see and appreciate the nature and extent of an obstruction and to take evasive action, then the obstruction does not constitute a danger, and in such a case there is a break in the chain of causation between the prior negligent act which caused the obstruction and the immediate consequences of the latter negligent act of a driver on the highway who causes an accident. In such a case there is what Viscount Binkenhead in Admiralty Commissioners v S.S. Volute (Owners) [1922] 1 A.C. 129, 144 described as a ‘clear Line.’”

45. Accordingly, even if, as Mr Kwok submitted, Tong was also negligent (which is an issue that I shall consider below), it does not follow that Singh’s negligence would cease to be an effective cause in law.  Applying common sense and taking a broad view of the circumstances, I have no doubt that Singh’s negligence constituted an effective cause in law leading to the injuries suffered by Yeung.  Mr Kwok’s submission that the sole cause of Yeung’s injuries was Tong’s act is, with respect, unrealistic and flies in the face of common sense.

46. For these reasons, I hold Singh liable.

E. Whether Tong is liable

47. To establish liability against Tong, Yeung must prove that Tong was negligent; and that such negligence caused her injuries.  The case against Tong boils down to two points: failure to keep a proper lookout, and overacting by braking too hard and too sudden.

48. I shall deal with the second point first.  Mr Wong submitted that, insofar that Tong may have braked too hard and too sudden, he had committed an error of judgment only.  Depending on the circumstances, if a driver was forced to react in an emergency, the fact that it turns out that his reaction was unwise or even wrong may not constitute negligence.  However, an important consideration is whether the emergency was indeed unexpected from an objective, not subjective, point of view.  If the driver overreacted because he reacted too late due to the fact that he had failed to keep a proper lookout, there would be a reason to hold him negligent.  This takes me to the duty of a driver to keep a proper lookout.

49. As Macdougall J held in Wong Yuet Heung v Chan Tsang Hung and others [1988] HKC 371 at 376A – D:

“ … It is the responsibility of every driver to maintain a proper lookout. This includes maintaining a careful watch on the traffic conditions on the whole of the road in front and to be vigilant for circumstances that might reasonably require him to brake or to take evasive action. A driver is not entitled to drive as if blinkered and thus concerned only to devote his attention to traffic in the lane in which he is travelling.

Slade J, in Berill v Road Haulage Executive [1952] 2 Lloyd’s Rep 490, 492, in paraphrasing the words of Lord Uthwatt in London Passenger Transport Board v Upson [1949] AC 155, expressed the matter in this way:

You are not bound to foresee every extremity of folly which occurs on the road.  Equally, you are certainly not entitled to drive upon the footing that other users of the road; either drivers or pedestrians; will exercise reasonable care.  You are bound to anticipate any act which is reasonably foreseeable that is to say, anything which the experience of road users teaches them that people do, albeit negligently.”

50. In the present context, in considering the standard of care that Tong, as a bus driver, should exercise, it is pertinent to bear in mind the following points:

(a) A bus is heavier than a private car.  It will take longer to stop the bus in an emergency.  Put it in another way, to bring the bus to a complete halt in the same distance, the bus will have to brake harder.

(b) If a bus brakes hard and suddenly, there is a reasonably foreseeable risk that passengers may be thrown out of their seats, lose their balance and fall.

51. Tong made a police statement very shortly after the accident at 22:50 on 8 June 2010.  He made very serious allegations against Singh.  Probably because of what Tong said to the police, Singh was asked by the police to make a statement on 18 July 2010 under caution.  He was suspected of committing the offence of dangerous driving.  However, after the police considered the CCTV record, no prosecution was brought against Singh.

52. It is vital to note what serious allegations Tong had made against Singh.  He said he saw the Motorcycle on his left, which was overtaking him at a higher speed.  But as the Motorcycle was leaning towards to the left, he thought it was going to turn left into one of the buildings; hence, he continued to move forward.  But suddenly, Singh swerved to the right and cut into the Right Lane horizontally. As it was only about one motorcycle length away, he braked, sounded the horn and swerved to the left.  The Motorcycle stopped in front of him and Sigh looked at him.

53. Mr Wong submitted that the word “horizontally” in Tong’s statement might have been misused or misunderstood.  However, if one looks at the sketch attached to his police statement which depicted the path of the Motorcycle, there is no doubt that he was representing that the Motorcycle turned slightly to the left first; but it then turned to the right, and cut horizontally almost at a right angle right in front of the Bus.

54. The problem is that the CCTV record shows clearly that it is incorrect for Tong to say that the Motorcycle was turning left first and then it cut into the Right Lane horizontally.  Mr Kwok submitted that the CCTV record shows that Tong was also incorrect on some other points.  For the present purpose, it is sufficient to focus on the above significant discrepancies.

55. It is obvious that these significant discrepancies called for explanations.  It is most unfortunate that Tong has passed away.  But the CCTV record was available before Tong died.  Tong could have made a supplemental witness statement to explain the CCTV record (as what Singh has done).  The fact is that he has not done so without any  explanation.

56. These significant and unexplained discrepancies tend to suggest that Tong made up these allegations in order to exonerate himself from potential liability.  Put it at the lowest, these inaccuracies show that he was unable to recollect how the accident happened in a reasonably accurate manner even though he was interviewed by the police only about three hours after the accident.  His inability to do so supports an inference that he had not kept a proper lookout.  In his statements, he did not mention seeing the Motorcycle at the “stop sign”, or whether it had stopped at the “stop sign” at all.  It seems that Tong only noticed the Motorcycle when it was about to cut lane.  And, as mentioned, the manner in which the Bus braked and stopped suggests that Tong was caught by surprise.  It appears that he had not anticipated that the Motorcycle was going to cut into his path.

57. Tong ought to have noticed the Motorcycle earlier.  He should have been able to see the Motorcyle when it was at the “stop sign” and before it entered the Left Lane.

58. Tong was driving a regular scheduled airport bus.  It appears that he was familiar with the route and the surroundings of the Location.  He should have known that there was a set of traffic lights in a short distance ahead, and immediately after that there was a petrol station on the left.  He should have known that drivers going towards the direction of Chai Wan may prefer to travel on the Right Lane to avoid being slowed down by any cars intending to turn left into the petrol station.  In view of these peculiar features near the Location, it was reasonably foreseeable that a vehicle in front of him may cut into his lane, and need to stop in front of him before the traffic lights at a short distance.

59. In the circumstances, once Tong should have seen the Motorcycle before it even entered the Left Lane of the Road, he should have paid close attention to the movement of the Motorcycle.  According to the CCTV record, it appears that, after entering the left Lane, the Motorcycle was travelling diagonally towards the right at a fairly low speed.  Had Tong paid attention, he should have realized that there was a real, not fanciful, possibility that the Motorcycle may cut lane at any time.  He should have known that many drivers cut lane even if it was unsafe to do so.  In the circumstances, he ought to have taken reasonable precaution by reducing the speed of the Bus earlier.  Had he done so, he would not have needed to brake so hard and so sudden and, more likely than not, Yeung would not have suffered such serious injuries.

60. For these reasons, I hold Tong liable.  There is no dispute that Citybus is vicariously liable for Tong’s negligence.

F. Apportionment

61. Tong (with Citybus) and Singh are concurrent tortfeasors: they are independent tortfeasors causing the same damage.  Each of them is liable for the whole of the damage vis‑à‑vis the plaintiff.  (Charlesworth & Percy on Negligence (13^th edn, 2014), § 3 – 87 at pp 185 – 186, § 3 – 95 at p 188; Clerk & Lindsell on Torts (21^st edn, 2014), § 4 – 01 at p 295).

62. Apportionment of liability between the defendants does not concern Yeung, but it is a crucial issue as between the defendants.  In principle, I am concerned with apportionment between Tong and Singh.  Citybus will be vicariously liable for Tong’s share of liability.

63. Section 4(1) of the Civil Liability (Contribution) Ordinance (Cap 377) provides that:

“ … in any proceedings for contribution under section 3 the amount of the contribution recoverable from any person shall be such as may be found by the court to be just and equitable having regard to the extent of that person’s responsibility for the damage in question.”

It is trite that apportionment depends on both blameworthiness and causative potency.

64. Mr Wong referred to Chan Wai Ming v Leung Shing Wah [2014] 1 HKLRD 376. But each case depends on own facts.

65. I take the firm view Singh must shoulder a higher degree of responsibility than Tong. Singh was the person who created an emergency in the first place whereas Tong was forced to cope with such an emergency.  While I have found Tong to be negligent, I will not ignore the fact that he was compelled to react within a very short time.

66. Mr Kwok submitted that Singh, if held liable, should only bear 5% liability.  This must be wrong as a matter of principle.  In Charlesworth & Percy on Negligence (13^th edn, 2014), § 4 – 30 at p 252, in the context of contributory negligence, the authors state that, according to the observation made by the English Court, very small percentages of apportionment ought not to be made, and the Act should not operate unless the degree of responsibility falling on one of the parties in the action was at least 10%.  I take the view that the same general principle should apply to apportionment of liability between defendants.  Mr Kwok at the end increased his suggestion to 10%.  I am afraid that this is still unrealistic. I doubt whether this can be regarded as a genuine fall‑back position.

67. In contrast, the stance taken by Mr Wong is far more realistic.  He submitted that Tong, if held liable, should bear 25% liability.  Mr Leung submitted that Tong should bear 1/3 liability whereas Singh should bear 2/3 liability.

68. There is no right answer to an apportionment exercise.  At the end, it is a matter of impression having regard to all the evidence.  I conclude that Tong should bear 25% liability whereas Singh should bear 75% liability.

69. For the sake of completeness, I should mention that, had I found that only either Tong or Singh should be liable, I would have made a Sanderson order.  It was clearly reasonable in the circumstances for Yeung to join all the defendants (Chong Ngan Seng v China Harbour Engineering Co Ltd and others, CACV 54/2012 (22 September 2013, unreported), § 7, p 3).

G. Conclusion and order

70. In these circumstances, only one judgment for a single sum should be given against all defendants (Clerk & Lindsell on Torts (21^st edn, 2014), § 4 – 07 at p 299).

71. Hence, I order that:

(a) Judgment be entered against the defendants for the sum of $6,500,000.00.

(b) Liability be apportioned between the 1^st and 2^nd defendants on the one hand, and the 3^rd defendant on the other hand, in the ratio of 25% to 75%.

(c) The defendants do pay the costs of this action (including all costs reserved) to the plaintiff, to be taxed if not agreed.

(d) As between the defendants, their liability to pay costs to the plaintiff be apportioned in the same ratio as that stated in paragraph (b) above.

(e) The plaintiff’s own costs be taxed in accordance with the Legal Aid Regulations.

72. The costs orders made above are orders nisi.  Any party who wishes to vary the costs orders nisi shall file a written submission not exceeding 5 pages on A4 paper in no smaller than 14 points (with supporting documents, if any) within 7 days after this judgment is handed down; and the other party/parties who oppose(s) the application shall file a written submission not exceeding 5 pages on A4 paper in no smaller than 14 points (with supporting documents, if any) within 7 days thereafter.  I shall then determine the application on paper.  If there is no application to vary the costs orders nisi within 7 days after this judgment is handed down, they shall become orders absolute.