CHIU AU TUNG v. TANG CHUNG CHUEN AND OTHERS

HCPI 233/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 233 OF 2000

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J U D G M E N T

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1. On the 26th of November 1998 at about 1:25 am the Plaintiff was a passenger in a taxi bearing registration number FC3843, driven by the 1st Defendant. FC3843 was being driven on Cheong Wan Road, travelling in a westerly direction. The 1st Defendant was intending to turn right into Chatham Road when another taxi, GJ8611, driven by the 2nd Defendant crashed into it. At that time, the 2nd Defendant's taxi was being driven in an easterly direction in Austin Road. The accident happened at the junction of Cheong Wan Road and Austin Road, hereinafter referred to as the "said junction").

2. It is not in issue that at the time of the collision the traffic lights were green in favour of traffic from Austin Road and also green in favour of traffic from Cheong Wan Road going straight into Austin Road. It is also not in issue that the fitter light allowing traffic to turn right into Chatham Road from Cheong Wan Road had not yet come on at the time of the accident. Therefore traffic coming down Austin Road had the right of way and the cars intending to turn into Chatham Road from Cheong Wan Road had to wait in the "turn pockets" until the filter light comes on or until there are no more traffic coming from Austin Road and it is safe to turn into Chatham Road.

3. It is also clear from the "traffic layout plan" Exhibit D2, that Austin Road and Cheong Wan Road were straight roads and drivers on both roads coming into the junction would have no difficulty in seeing the traffic on the opposite side for quite a distance.

The 1st Defendant's Case

4. The 1st Defendant is aged 65 and has been a taxi driver since 1966. He regularly plied his trade on HK Island but ever since the opening of the Cross Harbour Tunnel he also regularly takes passengers to the Tsimshatsui and Jordan areas on average about 8 to 10 days a month and on those occasions he would drive through the said junction.

5. Prior to the accident, he said he was driving the Plaintiff down Cheong Wan Road, intending to turn right into Chatham Road. As the filter light for turning right was not on, he then drove his taxi into the turning pocket to wait for the filter light to come on so he could turn right. But as he was driving into the pocket and before he could come to a complete halt, GJ8611, the 2nd Defendant's taxi hit the right front of his taxi, then GJ8611 hit another taxi which was on its nearside. The force of the collision pushed his taxi in a clockwise direction, making an almost 180°turn.

6. It is not disputed that at the time of the collision the road surface was wet and it was drizzling.

7. Under cross examination, the 1st Defendant agreed that under the law, if there was no traffic coming down Austin Road, even though the filter light was not yet on, one could still turn right into Chatham Road, but it was not his practise to do so. His practise is to wait for the filter light to come on before turning. The 1st Defendant also said that when he arrived at the turning pocket he first noticed that the 2nd Defendant's taxi was 10-car lengths away from him. The 1st Defendant agreed that if he had kept a proper lookout he would have been able to see the 2nd Defendant's taxi coming down Austin Road from a distance of more than 10-car length away, as Austin Road and Cheong Wan Road were both straight roads when approaching the said junction. 1st Defendant also agreed that if the 2nd Defendant's taxi was driven straight down in his own lane the 2nd Defendant would never have hit his taxi in the turning pocket, but he said he thought 2nd Defendant was trying to overtake the taxi on his left and so swerved into the turning pocket.

2nd Defendant's Case

8. The 2nd Defendant gave evidence that he was driving down Austin Road and he was on the right lane and another taxi was to his left. The 2nd Defendant's taxi was half a car's length ahead of the taxi on the left lane. He said he had intended to go to Tsimshatsui East which would mean he'd have to drive his taxi into the left lane. He said he first saw the 1st Defendant's taxi when it was travelling in the right lane of Cheong Wan Road, a little distance away from the traffic lights on Cheong Wan Road. He marked the spot with a red X on Exhibit D2. He agreed that the lane that the 1st Defendant was on was for vehicles turning into Chatham Road South only, but as the light was green in his favour, he expected that traffic turning into Chatham Road South would have to wait in the turning pocket until the filter light came on or until there were no cars coming down Austin Road.

9. He said the 1st Defendant's taxi did not stop in the pocket but continued to turn into the junction and when he realised that the 1st Defendant was not stopping he braked and swerved and hit the taxi on his left but he could not avoid hitting the 1st Defendant's taxi. He alleged the right front of his taxi hit the left front of the 1st Defendant's taxi and that his witness statement to the police and his witness statement filed by his solicitor for these proceedings were wrong when they said the right front of the 1st Defendant's taxi was hit. He said he was driving at a speed of about 40 kilometers per hour and there were no cars in front of him prior to the collision. He said the only reason for the collision was the 1st Defendant did not stop at the turning pocket but continued into the junction without slowing down.

Findings

10. I found that the Plaintiff's evidence reflected more accurately the true position. I find that he was telling the truth to the police that the right front of the 1st Defendant's taxi was hit by the 2nd Defendant's taxi. He was unable to say if the 1st Defendant slowed down when going into the junction but when he was asked by Mr Lim for the 2nd Defendant:

Q: What you felt was the car was turning when the collision occured?

A: About to turn but not turned yet.

11. He said he was not sure if his taxi was still inside the turning pocket at the time of the collision.

12. I find as a fact that at the time of the collision the 1st Defendant's taxi was hit on the right front by the 2nd Defendant's taxi. This is the only irresistible inference to draw from what the Plaintiff and both defendants had told the police in their witness statements. I do not believe the 2nd Defendant when he said he did not notice that mistake in his statement to the police and therein the statement filed by his solicitor in court.

13. Based on this fact, and the fact that the Plaintiff said his taxi had not turned yet, I find that the 1st Defendant's taxi did slow down and almost came to a halt but unfortunately the front part of his taxi had jutted out of the turning pocket. I bear in mind that the road was wet and it was still drizzling at the time.

14. I also find that the 2nd Defendant's attention was focused on overtaking the taxi to his left so he could get into the Tsimshatsui East Lane and that is why he did not notice the 1st Defendant's taxi until it was too late. I find also that the 1st Defendant's taxi did slow to a near halt but the 1st Defendant's taxi stopped a little beyond the turning pocket and that is why the 2nd Defendant's taxi hit him on the right front. I do not believe the 2nd Defendant's allegation that the 1st Defendant did not slow down or stop but had turned into his path, if that was the case, the point of impact would not have been on the right front side of the 1st Defendant's taxi. The 1st Defendant's taxi was turned round almost by 180°and the only irresistible inference is that the 2nd Defendant was travelling at a speed far greater than 40 km per hour.

15. I find that the 1st Defendant was driving in the manner he described and did not intend to turn into Chatham Road South until the filter light came on. But he failed to keep a proper lookout, because had he done so, he would have seen the 2nd Defendant speeding down Austin Road and taken more care, in view of the slippery conditions, to stop his taxi well within the turning pocket, thus giving the 2nd Defendant's taxi a wide berth. I do not accept the 1st Defendant's theory that the 2nd Defendant had swerved to his right prior to the accident. I therefore find the 1st Defendant negligent in placing himself in the path of the 2nd Defendant, by not keeping a proper lookout and failing to stop within the turning pocket.

16. I do not accept the 2nd Defendant's evidence that the 1st Defendant was turning at the time of the collision, because if that was the case the point of impact on the 1st Defendant's taxi would be in a different position.

17. I find that the 2nd Defendant was driving to overtake the taxi on his left at a speed in excess of 40 kilometers per hour. That is why the force of the collision had pushed the 1st Defendant's taxi right round to an almost 180 degree turn. Although he had the right of way, nevertheless in approaching this road junction where he knew cars may be waiting to turn into Chatham Road South, he should have kept a proper lookout and prepared for that eventuality.

Law

18. The 2nd Defendant admitted that he was convicted of careless driving as a result of this collision. So there is a presumption that the 2nd Defendant is guilty of a degree of negligence and he has the burden of proving on a balance of probabilities that he is not guilty of any degree of negligence. (see Stupple v The Royal Insurance Co. [1970] 1 AER 390.)

19. Whilst the law recognises there is the "agony of the moment" defence (see Brandon v Osborne, Garrett & Co. [1924] 1 JCB 548) I do not consider that it applies to the 2nd Defendant as he had failed to exercise such care as may be reasonably expected of him when coming up to the junction knowing that the 1st Defendant's taxi was coming into the junction and the road being wet and slippery he should have thought about the danger of the 1st Defendant's taxi not being able to stop completely within the turning pocket.

20. The 2nd Defendant therefore failed to keep a proper lookout as he was driving too fast in the circumstances and therefore failed to take appropriate action to avoid the collision.

21. I find the 2nd Defendant has failed to prove on a balance of probabilities he was not negligent.

22. In all the circumstances of this case, I would apportion liability between the defendants as 60% on the 1st Defendant and 40% on the 2nd Defendant.

23. The above apportionment of liability would apply, as between the defendants themselves, to the amount of damages recovered by the Plaintiff as well as the costs of the action recovered by the Plaintiff.

24. Costs order nisi.