WONG SHUN AND ANOTEHR v. SZETO PAK CHEUNG AND ANOTHER

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JUDGMENT

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Robarts, C.J. -

Preliminary

1. The plaintiff sued, as administrator of the estate of Wong Chiu Wai, ("the ceased'') for damages under the Fatal Accidents Ordinance and the Law Amendment and Reform Ordinance.

2. The claim arose from an accident which took place on 30th October, 1982, when the deceased was killed after a collision between his motor cycle and a public light bus (''the bus") driven by the first defendant and owned by the second defendant.

3. A High Court Judge found that the deceased and the first defendant ("the driver") were each 50% to blame and awarded to the plaintiff $210,000,being half the agreed amount of damages. The defendants appeal against this judgment.

Facts

4. The accident occurred at about 3.00 a.m. on 30th October, 1982 on the Kwai Chung Road, not far beyond a slip road which leads to the Container Terminal.

5. At the point where the bus and the motorcycle collided, there are four lanes in each direction. The road was dry, the weather was fine, the visibility was good and the road was straight, though there was a gradual curve some distance before the slip road.

6. The only eye witness was the driver, who testified that, as he was travelling in the inner second lane in the direction of Tsuen Wan, he was passed in the fast lane by several vehicles and motor cycles, which were being driven at high speeds and appeared to be racing.

7. The bus had been travelling at about 50 m.p.h. When the racing vehicles passed him the driver slowed down to about 30 m.p.h. and decided to move into the inner lane because he was afraid of the racers.

8. Before changing lanes, he looked into his rear view mirrors and saw nothing. He signalled with his left indicator and moved into the inner lane. After he had travelled about 100 yards in that lane, he heard a sound and saw that a motor cycle had knocked against the bus, on its front near side. He had not seen or heard the motor cycle before the collision and did not know how it came to hit the bus.

9. He concluded his evidence by admitting "Had l not pulled my vehicle to the inner lane there won't be such a traffic accident and had he not driven his motor cycle at such a high speed this accident could have been avoided."

Other evidence

10. There was little supporting evidence of substance.

11. A motor vehicle examiner testified that the motor cycle was in a satisfactory condition before the accident and that its speedometer had stuck at 70 m.p.h. The damage to the motor cycle was consistent with an impact taking place at that speed. He also examined the bus and found that the nearside front corner panel was "scuffed and scored".

12. An expert in mechanical engineering expressed the opinion that the sticking of the needle at 70 m.p.h. gave rise to a presumption that the speed must have been not less than 70 m.p.h. at the time of impact.

Judge's Findings

13. The main basis for the Judge's decision can be found in the following part of his judgment.Having quoted the passage from the driver's evidence which is set out above, he continues -

14. This conclusion follows a number of findings of fact -

Criticisms

15. The judgment is criticized on a number of grounds -

In support of this proposition, counsel for the appellants cited Trentham v. Rowlands⁽¹⁾. It does not seem to me, however, that this case decided more than that, in the circumstances there described it had been dangerous to pass on the inside lane on a motorway, not that it would always be.

16. This is made clear by Dilks v. Bowman-Shaw ⁽²⁾, in which the Court of Appeal refused to interfere with a finding by Justices that passing on an inside lane on a motorway was not necessarily careless driving.

17. The Highway Code provides that a driver shall overtake on the right, save in certain limited circumstances. A failure to observe the Code is evidence which tends to establish negligence, but it is not conclusive; and the degree of negligence which such a failure establishes must vary in the circumstances.

It was argued that there was no evidence before him as to how much noise such an engine makes and that, if he had heard it, it would at that stage have been too late for him to do anything to avoid the collision.

18. I accept that this finding was based on speculation and was not supported by any evidence.Had this been the only reason for the judge's conclusion that the driver knew of the motor cycle's approach before the collision, it would have been difficult to support his finding to that effect.

19. However, it emerges from his judgment, though not as clearly as is desirable, that he rejects the driver's evidence that he saw nothing before the impact and thought that he could have "completed the cutting in" before the motor cycle reached him.

20. I infer from that passage that the judge must have accepted the driver's testimony that he looked into his rear mirror, but not that, when he did so, he saw nothing.

21. I find it difficult to appreciate the reasoning behind this finding. All the cars which had passed the driver at high speed had done so on the outside lanes. Thus a change to the inside lane would have taken him further from the fast overtaking lane, so reducing the risk of collision.

22. However, this is, as the judge says, no more than an alternative finding to his main conclusion, that the driver's effective act of negligence was his decision to cut into the inner lane when he did not have sufficient time to complete the change before the motor cycle caught up with the bus. It is thus only of importance if that latter finding is not supportable.

23. It is well established by a number of cases, for example, Whitehouse v. Jordan ⁽³⁾,that an error of judgment is not of itself conclusive of negligence. Particularly where professional skill is involved, an error of judgment may not amount to negligence.

24. However, I accept that the judge, when he used the phrase, meant that it was an error of judgment amounting, in the circumstances described by him, to negligence.

Conclusion

25. A trial judge faces a difficult task in attempting to ascertain the truth of an accident of this nature, which took place at night and was over in a few seconds. His difficulties are magnified when he only hears evidence from one eye witness, himself an interested party.

26. When a judge does not accept the evidence of the main witness in its entirety, it is very difficult for an appellate court to interfere with such a finding, which is based on an assessment of the witness' credibility. A judge who reaches this conclusion leaves himself in the position of having to produce a version of events which is not supported by direct evidence but is based on inference from other evidence which he does accept.

27. In this instance, the judge has found that the accident was caused by the combined negligence of the driver and the deceased. He based this partly on the evidence which he accepted and partly on inferences from what he accepted and from what he rejected.This he was entitled to do.

28. In my view, he was justified in finding that there was negligence by the deceased, in riding at an excessive speed and in failing to overtake to the right; and by the driver in changing lanes when it was unsafe to do so.

29. The apportionment of blame is an unscientific matter, based on hindsight and incomplete testimony. It must be seriously and obviously wrong before an appellate court should interfere. I am not persuaded that such was the case here and would not interfere with the judge's assessment of blame.

30. I would dismiss the appeal.

Silke, J.A.:

31. At about 3:00 a.m. on the morning of 30th October 1982, a public light bus - "the bus" - driven by Szeto Pak Cheung - "the bus driver" - and owned by the 2nd defendant was driving along Kwai Chung Road in the second inner lane of a four lane highway. There were four lanes also in the opposite direction. The eight lanes were separated by a metal railing.

32. The bus had been travelling along this lane for some distance having rounded a gentle curve in the road and was approaching a slip road to its left which led to the Kwai Chung Container Terminal. The bus driver was familiar with the area and knew that the road was used by other vehicles for road racing every Saturday.

33. On the day of the accident, a number of vehicles, including small vans, private cars and motorcycles, came from behind him on the fast lanes and overtook him. These vehicles were driving "in all directions" and trying to overtake each other. After two such groups of vehicles had passed him he decided that it would be safer for his passengers and himself if he moved to the inner lane. He described himself as coming to this decision because "It was my professional sickness whenever I saw those vehicles I would be afraid of them."

34. He put on his left hand blinking indicator, looked in his centre rear view mirror and his left side rear view mirror, saw nothing behind him and moved into the inner lane. It was his evidence that he had, after that, travelled for about 100 yards before a motorcycle brushed the extreme left hand side front of the bus. The motorcycle then careered on and ran into the back of a lorry parked upon the pavement, dislodging its rider. That rider was killed. Hence, the proceedings under the Fatal Accidents Ordinance and the Law Amendment and Reform Ordinance the result of which has led to this appeal by the defendant.

35. The trial judge accepted that the motorcycle was travelling at about 70 m.p.h.. The deceased's injuries were consistent with a very severe impact. The speedometer of the motorcycle was stuck at 70 m.p.h.. While an examination of the motorcycle emphasised the severity of the impact, the fact that the speedometer was stuck at that speed did not necessarily indicate that that was the actual speed being  travelled either at the time of the impact with the bus or at the time of the subsequent impact with the lorry. There was a suggestion it might have been greater. There were no brake marks of either vehicle. The judge's finding was one which the evidence justified.

36. After impact, the bus came to a halt with its right hand side on the white line dividing the second inner lane from the inner lane and at a slight angle to the pavement. There was a distance of approximately four feet between its left hand side and that pavement.

37. The only eye-witness to the accident was the bus driver. There was very minor damage to the bus at a point very close to the front left pillar and the indications were that whatever portion of the motorcycle came into contact with the bus, it brushed it and no more.

38. The trial judge apportioned blame as between the bus driver and the deceased equally. Quantum was agreed at $420,000 and the award was in the sum of $210,000.

He based that conclusion, and this is the gravamen of the attack upon his findings in this Court, on the following:

39. There was no evidence before the Court at trial as to noise or its effects, whether it went before or followed a motorcycle travelling at that speed or when it might first be heard by a driver. With respect, this finding would appear to be based on speculation.

40. The trial judge then went on, in a somewhat confusing passage, to say this:

From this, he found that the bus driver had committed "an error of judgment". He stated himself to have found support from this view in one passage in cross-examination of the bus driver which ran, in full:

Particular reliance was placed on the last sentence.

41. The bus driver went on to qualify the answer to which I have just referred by saying that he had "completed into the lane." I would accept that, if neither of the vehicles had been in the position they were at the time of the impact, then the accident would not have happened.

42. We have been referred, on the aspect of passing on the inside of a vehicle in a multi-lane highway, to Trentham v. Rowlands^(1a) and to the explanation of that decision given in Dilks v. Bowman-Shaw. ⁽²⁾ I accept that Trentham v. Rowlands has particular application to its own facts. Nevertheless, to pass out or attempt to pass out a vehicle on its near side when travelling at 70 m.p.h., when the driver of the slower moving vehicle could well be taken by surprise, is negligent. Here the bus had been travelling some time earlier at about 50 m.p.h. but, upon seeing the road race, its speed had been reduced to approximately 30 m.p.h.. The lack of any brake marks supports this.

43. By reason of his disbelief in that which the bus driver said, the trial judge came to the conclusion that at the time of the impact between the motorcycle and the bus the bus driver was still in the course of executing his menoeuvre. He placed great reliance upon his finding that the motorcycle must have produced a very loud noise and that the bus driver must have heard it. Stemming from this, he reached the further conclusion that the, bus driver was untruthful when he said that he neither saw nor heard anything before contact.

44. In my view, on the evidence before him, this conclusion is not sustainable.

45. It would be unreasonable to expect the bus to remain in its own lane indefinitely. The bus driver was entitled, given he took precautions to see that inner lane was clear, to commence, and then to complete his manoeuvre.

46. The passing of the racing vehicles, the move to the inner lane and the contact between the motorcycle and the bus covered a very short space of time.

47. To the extent that the bus driver, knowing that this road was used for road racing and having been passed by two groups of road racers, should have delayed his move to the inner lane for some distance on the road in anticipation of further very fast vehicles coming from behind him I hold him to have been negligent. To do that which he did was not the act of a prudent and reasonable professional driver.

48. The issue is: Was there equality of negligence as between the bus driver and the motor-cyclist? I do not think there was. There is clearly an onus upon any vehicle passing on the inside of another moving vehicle to ensure that it is safe to do so. The motor-cyclist, by travelling at a very great speed prevented himself from taking such precautions. He should not have attempted to pass in the manner and at the speed in which he did. His was by far the greater negligence.

49. I accept the difficulties a trial judge has in a case like this where the only eye-witness is one of the parties but I think the trial judge apportioned the blame incorrectly. I would find the motor-cyclist to be 70% to blame for the accident. I would allow this appeal and reduce the award from $210,000 to $126,000.

(1)    [1974] R.T.R. 164.
(1a)    [1973] Q.B. 164
(2)    [1981] R.T.R. 4
(3)    [1980] 1 All E.R. 650.

Power, J. :

50. I will not recite the circumstances of the collision which have already been detailed. I am in agreement with My Brother Silke, and for the same reasons, that the final assumptions of fact arrived at by' the trial Judge are not sustained by the basic facts which were established by the evidence.

51. I am also in agreement with his finding that the 2nd Defendant was culpable in that he failed to act as a prudent and reasonable driver should have acted but not with respect with the reasoning by which he supports that finding.

52. I set out below the approach which I consider correct.

53. The bus driver knew that the road was being used for road racing. A reasonably careful driver in his position clearly should not have made any move from the centre to the inner lane without having ascertained that it was safe to do so He says that he put on his left indicator, looked in his rear vision mirrors, saw nothing and then made his move. The trial judge disbelieved this evidence. His disbelief was, however, as already indicated founded, in part at least; upon assumptions of fact which he was not entitled to make.

54. The only physical evidence that gives an indication as to the position of the vehicles at the time of the accident was the uncontested evidence that the bus suffered minor damage close to its left front pillar.

55. If the driver is to be believed the motor cyclist must have elected to undertake a suicidal manoeuvre i.e. to drive at high speed between the side of the bus and the kerb. The evidence as to the point of impact on the bus can only be made consistent with this version if it is assumed that, at the moment when the manoeuvre was almost complete, the motorcycle swayed in a way which caused it to brush against the left front pillar of the bus forcing it out of control.

56. The other possibility, which, commonsense suggests is much more in accord with the evidence of damage to the bus, is that the motorcycle and the bus came into collision at a time when the bus was still in the process of making its turn into the inner lane.

57. Given that the standard to be applied is the balance of probabilities I hold that the latter possibility is much the more likely one and find that the accident occurred while the bus was in the process of turning. That being so I am satisfied that the bus driver made his move at a time when it was unsafe to do so and was negligent either because he failed to see the oncoming vehicle or because, having seen it, he misjudged its speed.

58. I am satisfied also, as was My Brother Silke, that there was negligence on the part of the motor cyclist who was, clearly, travelling at a speed that was unsafe in the circumstances. I am satisfied that this was the major cause of the accident. I, also, am satisfied that the motor cyclist must be held to have been 70% to blame for the accident. I allow the appeal and reduce the award from $210,000 to $126,000.