YEUNG OI HING v. LEE KWAI YIP

HCPI867/96

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.867 OF 1996

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J U D G M E N T

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1. The Plaintiff claims damages against the Defendant for injuries sustained by her arising out of an accident which occurred on 2nd April 1994 at about 6.10 pm when the Plaintiff, as she was walking along on the pavement of Cheung Sha Wan Road, was knocked down by a motorcycle bearing Registration No.FP1233 which at the time was driven by the Defendant. The motorcycle was at the material time also owned by the Defendant. The Plaintiff alleges that the accident was caused by the negligence of the Defendant in that he was driving too fast in the circumstances, he failed to heed the Plaintiff's presence on the said pavement, he failed to keep a proper lookout for other road users on the road and upon the said pavement, he failed to drive the motorcycle along the carriageway, he caused the motorcycle to mount the said pavement, he lost control of the motorcycle, he failed to stop, to slow down, to steer, to manage or to control the said motorcycle so as to avoid colliding with the Plaintiff on the pavement, and he drove the said motorcycle carelessly.

2. In his Defence, the Defendant admitted that he was driving the said motorcycle at the time that it collided with the Plaintiff. The Defendant alleged that the accident was caused solely by the negligence of a driver of a motor car whose name and identity are unknown to the Defendant and who, whilst the Defendant was driving his motorcycle properly along the road, suddenly and without warning drove his motor car into the Defendant's carriageway. In order to avoid a collision with the motor car, the Defendant, in the emergency thereby created, was forced to brake and swerve, whereby the motorcycle lost its balance and tumbled over. The motorcycle further mounted the pavement and collided with the Plaintiff notwithstanding the exercise of reasonable care and skill on the part of the Defendant.

3. By Order of Master Jones made on 11th November 1997, the action was set down for hearing on liability only and it was on this one issue that the matter came to me for trial.

Plaintiff's Evidence

4. The Plaintiff gave evidence that on 2nd April 1994 at 6.10 pm on Cheung Sha Wan Road near the Lai Chi Kok MTR Station, she was involved in a traffic accident. The weather that day and the road surface was very dry. She had got off duty and had crossed a traffic light controlled crossing. She walked on the pavement along Cheung Sha Wan Road intending to go to a bus stop to catch a bus. She was about 10 odd feet from the bus stop. When she was walking, she paid attention to whether a bus was coming. She was walking in the opposite direction of the oncoming traffic. There were three lanes of traffic coming towards her. In the lane nearest the pavement, she noticed a motorcycle travelling in that first lane. When she first saw it, it had almost reached the bus stop. Its speed was fast, faster than other vehicles. The motorcycle travelled past the bus stop, later the motor-cyclist lost control of the motorcycle. The motorcycle was flying and as the Plaintiff was in its vicinity, it knocked her down.

5. The Plaintiff said that she did not see any vehicle cut into the lane of the motorcycle. The traffic in the other two lanes was moving. She said that the motor-cyclist lost control of the motorcycle which mounted the pavement and knocked her down since she was on the pavement. She fell on the ground. The motorcycle hit her on her left leg. She was taken to hospital and she suffered an injury.

6. She said that she was walking along and on the way, she was seeing if there was a bus coming. She looked towards the carriageway and saw other vehicles were moving on the other lanes.

Cross-examination

7. She said that 6.10 pm was a busy time for vehicular and pedestrian traffic and there were people standing at the bus stops waiting for buses. There were people walking in front of her in the same direction. When she saw the motorcycle, a bus had travelled ahead of it further down the road. She admitted that buses did stop at the bus stops and this happened quite frequently at 6.10 pm.

8. She said that when she first saw the motorcycle, it was 10 odd feet ahead of her. There was not much traffic and she saw the motorcycle. At a subsequent point when the motorcycle lost control, it was 8 to 10 feet away. She saw the motorcycle lose control and saw the motor-cyclist fall from the motorcycle, and saw the motorcycle slide towards the pavement. All this happened in less than one second.

9. When she was referred to paragraph 9 of her witness statement, she said that there were other vehicles travelling on the same lane as the motorcycle. These vehicles were further ahead of the motorcycle. There were private cars a long way back behind the motorcycle. In paragraph 11 of her statement, she had said : -

"I would say that I did see vehicles coming from the middle lane into the lane by the bus stop and I would say that I did not constantly watch the motor bike or the traffic."

When she was asked about this, she said that what she saw were vehicles in the outer two lanes remaining in those lanes and going forward and that she did not see vehicles move from the middle to the slow lane.

10. She was asked about why she said in paragraph 11 that she did not constantly watch the motorcycle whereas in Court she had said that from the time she saw the motorcycle, she observed it until it lost control. She said that the motorcycle was 10 odd feet away. She took a glance to see if there were buses coming, during that time she saw the motorcycle travel in the first lane, and the next thing she knew she was hit.

11. She was asked why she said in paragraph 12 of her statement that she did not actually see the Defendant fall off his motorcycle but the time gap between her seeing him on the motorcycle and seeing the motorcycle on the pavement was very short. She said in reply that the motorcycle knocked her down and as soon as the motor-cyclist fell off, the motorcycle slid. She said it was a very short moment that the motor-cyclist fell off, lost control and slid towards her.

In paragraph 14 of her statement, she said : -

"I could not say that when I was walking down the road I was specifically watching the motor bike but several times he was in my field of vision."

She was asked how she was able to see him several times in her field of vision, and she said it was just a very short moment.

In paragraph 15, she said : -

"I did not actually see the Defendant fall off his motorcycle but I can say I did not see any other vehicle veering into the lane that Defendant was driving in."

It was suggested to her that that sentence was inconsistent with her evidence, and she disagreed and maintained that although it was a very short moment, she saw it. It was further suggested to her that paragraph 15 was inconsistent with paragraph 11, she said that before the motorcycle hit her, other cars in the first lane had driven past. She said that she did not see any private cars come from the middle lane, before the motorcycle hit her.

In paragraph 21, she said : -

"I remember it was very busy at the time of my accident but I did not notice any individual vehicles."

She was referred to this and agreed that there was no reason for her to pay particular attention to traffic except to see if a bus was coming. She said she did not pay much attention to traffic in the other lanes, primarily she paid attention to the first lane where the buses would be coming.

She was referred to the statement she gave to the Police where she had said : -

"While I was walking on the pavement ... suddenly I saw an object dashing towards me from the road ahead. Failing to avoid an impact, I was struck on the feet by that object and I fell down on the pavement. Then I stood up. I found that I was hit by a motorcycle. Meanwhile I saw the driver of the motorcycle who had fallen down on the roadside in front of me."

It was suggested that that was all she could say about the accident, and she disagreed.

12. In re-examination, she confirmed that when she first saw the motorcycle in the first lane, she did not see any car immediately in front of it.

Defendant's Evidence

13. The Defendant gave evidence that on the day in question, he had finished work and was riding his motorcycle along Cheung Sha Wan Road to go home. He was travelling in the middle lane. He said at the time there were lots of traffic but traffic was smooth. There were no cars ahead of him in the middle lane. There were cars on the third lane. There were buses but most of the time they were in the nearside lane. He said that for him to get to his home in Kwai Chung, there was no need for him to travel in the first lane because the flyover to Kwai Chung was a distance away. He was travelling at 40 odd km per hour. A white private car on the third lane cut into his lane without giving any indication to him. He noticed the private car was very close to him. When he first saw it, it was on the right hand lane a little ahead in his front. When it moved into his lane, the distance between it and him was about 3 to 4 feet. He then braked and swerved to the left in order to avoid it. He lost balance and fell on the ground. He slid on the surface of the road and hit the concrete on the side of the road. He did not know what happened to the motorcycle until he got up, approached his motorcycle and saw the Plaintiff.

14. He said he was not prosecuted for any offence. He was not in any rush to get to Kwai Chung. Up to the time of the accident, he had held a driving licence for about three to four years. He had never been charged in respect of driving a vehicle on a road, including careless driving.

Cross-Examination

15. He said he had been driving a motorcycle for one to two years up to the time of the accident. He was asked to describe the private car, its model and make and he said "No idea". He was asked what he could say about it and he said "Nothing". He said that the time gap between his first seeing the private car and its cutting into his lane was about a second . He said that the private car was driven faster than his motorcycle but he could not estimate its speed. When pressed, he said around 70 to 80 km per hour.

16. He was asked whether, in view of the lapse of one second between his seeing the private car and its cutting into his lane and the fact the car was travelling at a faster speed, the car would have been further away from him than three to four feet when it cut in, he said he had no idea. He denied he was accelerating and when asked to explain why the car was only three to four feet away, he said it was just a brief moment so he just got the feeling of the distance, he really did not know. He felt he was in danger so he reacted in a way to avoid the accident. He was then asked if he was now saying that he could not tell how far away the car was when it cut in and he agreed.

17. He said that the motorcycle was not a big vehicle. He was asked why he lost control of the motorcycle and he said perhaps he decelerated and swerved too quickly, together with the braking. The motorcycle had been bought from a motor company a month before the accident. He was asked if he thought of decelerating to avoid the accident, and he said in those circumstances he had no time to think, it was just his natural response to avoid a collision.

18. He was asked about distances, and he said it was just what he felt. He did not take measurements and it was not a definite three to four feet. He was asked if he was not sure of the distance between him and the car when it cut in and he agreed. He was asked if the car would have travelled a further distance if they both maintained the speed they were travelling at and he said : -

"Yes if we were travelling abreast, but he was cutting diagonally in front of me."

He said a motorcycle rested on two wheels and if the rider swerved, it would be difficult to maintain a balance.

19. In answer to Court questions, he said that the motorcycle had red and black strips over the gas tank and there were no bars protruding from either side of the motorcycle. There was a fibre fender covering the front but the windscreen was tiny. In re-examination, he said that the white car came from behind him from the right hand side lane.

Assessment of the Evidence

20. Having reviewed carefully the evidence of both the Plaintiff and the Defendant, I find that the Plaintiff, because she was only concerned at the time with whether a bus was coming and whether she should then hurry up to catch it, would not have paid and did not pay any attention to the traffic on the road. What she said in her Police statement shortly after the accident, to my mind, reflects correctly what she was able to see of the accident. The discrepancies between what she said in Court and what she said in her witness statement, which I have mentioned in the narration of her evidence, on important matters drove me to the conclusion that she could not have seen what the Defendant was doing just before the accident. On her account, there was no reason why the motorcycle all of a sudden lost control and mounted the pavement. The only reason she suggested was that the speed of the motorcycle was high which was why it lost control. The Plaintiff herself said in her witness statement that she was not a driver and did not really know the speed of vehicles. She is, with due respect, an unsophisticated woman who, at the time of the accident, quite naturally and very understandably, had no reason to pay close attention to the traffic, particularly the traffic travelling in the two outer lanes. Her refutation of the Defendant's claim that he was travelling in the middle lane when a private car cut across his path, thereby necessitating him to brake and swerve, thus causing him to lose control of the motorcycle and fall, can only have a minimal effect on my assessment of the evidence.

21. The Defendant, on the other hand, struck me as an honest and frank witness who was not afraid to say that he had no idea about things that he was asked about. An example is when he was asked to give details of the private car and he said he had no idea and could say nothing about the car. If he was dishonest and lying, he could have made up some details about the model and make of the car and the Plaintiff's Counsel could have done little to show their falsity. The Defendant's account of how the accident occurred is, to my mind, a reasonable and logical explanation of the accident. The Defendant had a good driving record, on the day in question, he was not in any hurry and he had no reason to be travelling in the first lane, as the Plaintiff said he was. The motorcycle was not a big vehicle and did not have conspicuous features like bright colours or wide fenders on its side which would have made it more noticeable on the road. Most drivers know how easy it is to fail to see on the left side mirror, a small vehicle on one's nearside. In my judgement, that was probably what happened which led to the private car changing lanes so abruptly without giving the Defendant any indication. The Defendant, in order to avoid a collision, could do no more than apply his brakes and swerve to the left. In my judgment, he has shown what the cause of the accident was and that the result of that cause was inevitable. He has discharged the burden of proving the defence of inevitable accident. I also find that in doing what he did to avoid a collision, the Defendant had exercised reasonable care and skill.

22. Sympathetic as I am for the Plaintiff, in the light of my findings above, I dismiss the Plaintiff's claim. I award the costs of the action to the Defendant, to be taxed if not agreed.