CHAN CHEUNG v. LEUNG KWOK WAI AND OTHERS

HCPI 917/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.917 OF 2001

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J U D G M E N T

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1. The plaintiff brings this claim for damages for personal injuries suffered by him on 4 August 1999 resulting from a collision between two container trucks, one driven by him and the other driven by the 1st defendant.

2. There was an order for split trial as to liability and quantum. This trial deals only with the issue of liability. So too this judgment.

Background

3. The accident happened along a service road ("the Service road") from which container trucks approach the entry gates which give access to Terminals 4 and 6 of the Container Terminal in Kwai Chung. It is necessary to understand the layout of the scene where the accident happened.

4. The Service road is a straight stretch of road some 278 metres long. On one end of the Service road is an entrance where container trucks and other vehicles enter the Service road. The entrance to the Service road is 16 metres in width. That entrance permits only one container truck to enter at a time. Immediately beyond the entrance, the Service road widens to a width of 35 metres and that width is maintained right up to the entry gates at the other end of the Service road which give access to Terminals 4 and 6.

5. There are altogether nine gates, numbered from Gate 1 to Gate 9. From the point of view of a vehicle approaching the gates, Gate 1 would be on the extreme right hand side of the driver and Gate 9 would be on the extreme left. Vehicles will have to pass through one of these nine gates to gain entry into Terminals 4 and 6. Gates 1 to 8 are covered with a canopy while Gate 9 has no canopy cover. The entire length of the Service road is fenced off on both sides of it.

6. There are no lane markings on the Service road itself but that at a distance of about 60 metres before reaching the gates, there are concrete dividers (slightly higher than the road surface) on the ground delineating the approach to each of the 9 gates. Because there are no lane markings on the Service road, all references to a particular numbered lane in this judgment (as in the trial itself) are used to denote that part of the Service road which forms a straight line and giving approach to the gate with the same number (as the lane) at the in-gate to the terminal.

7. Needless to say, traffic on the Service road is normally one way, namely in the direction from the 16-metres entrance into the Service road towards the 9 gates.

8. It is not disputed that on 4 August, shortly before 12:30 p.m., the 1st defendant was driving a container truck FF4855 carrying a 40 feet container on the trailer ("the 1st defendant's truck") which had already passed through the entry gates into the terminal, but had re-emerged via Gate 9 back onto the Service road (in the opposite direction to the normal traffic) and was in the process of making a U-turn across all the 9 lanes in order to get to lane 1 to re-enter via Gate 1.

9. At the same time, the plaintiff was driving another container truck DK9150 also carrying a 40 feet container ("the plaintiff's truck") as the servant or agent of the 2nd defendant along the Service road on lane 5 headed for Gate 5 to enter the terminal.

10. During the U-turn on the Service road by the 1st defendant's truck, a collision took place between the plaintiff's truck and the 1st defendant's truck whereby the front of the plaintiff's truck collided into the middle portion of the container on the offside of the 1st defendant's truck as the 1st defendant's truck was traversing lane 5 of the Service road on which the plaintiff's truck was travelling.

11. I shall now deal with the evidence adduced by the parties.

Plaintiff's evidence

12. The plaintiff gave evidence. He said that on 4 August 1999, the day of the accident, he had collected a container from Mainland China in the morning. He then drove his truck with the container back across the border into Hong Kong and headed straight for the container terminal. Container trucks entered the Service road at its entrance in single file. When he entered, he had noticed several trucks with containers which had entered in front of him.

13. After he entered the Service road, the truck immediately in front of him was slightly to the left of his vehicle with its back almost parallel to the front of his vehicle. There were two other trucks slightly ahead of the truck immediately in front of his vehicle. Those other two trucks were more to the left side. He reckoned that these three trucks in front of him were separately headed for Gates 6, 7 and 8 respectively and as such they were all slightly to the left of one another and not travelling in one straight line.

14. As his truck was travelling at a slower speed than these three trucks ahead of him, the gap between him and the truck immediately ahead of him, became increasingly bigger. That gap between him and the truck immediately in front of him (but slightly to his left) had increased to about 60 feet just before the collision.

15. Up to that time, the plaintiff says he had not seen the 1st defendant's truck. Suddenly, the 1st defendant's truck appeared in front of him. He did not see but assumed that the 1st defendant's truck passed the rear of the truck which was in front of him and slightly to his left, crossed into his path and by the time he noticed it the collision had already occurred. The front of his truck hit the middle part of the container on the 1st defendant's truck on its offside. The momentum of the 1st defendant's truck and its container dragged the cabin of his tractor to the right side and he was trapped in the cabin with his right leg trapped between the accelerator and the brake and bleeding profusely.

16. The plaintiff also gave evidence that after the accident, when he was trapped in the cabin of his truck, some other drivers had come up to assist him. He denied he had, at that time, said words to the effect that immediately before the collision he had his head down looking for the seal. But he did say to the other drivers asking them to assist him by looking to see if the seal had dropped off onto the floor of the cabin.

17. The plaintiff further denies having made any admission to any police officer in the hospital as to lowering his head to look for the seal before the collision. His evidence was that when PC49778 came to the hospital to take his statement on 16 October, PC49778 insisted that he (the plaintiff) had on an earlier occasion said to his "Ah Sir" that he had lowered his head to look for the seal. The plaintiff denied he had said anything of the sort and an argument ensued between them. The plaintiff told the officer that he would not sign the statement if the officer insisted on including such admission into his statement. Finally a compromise was reached between them and the plaintiff was allowed to explain what he had said about the seal. That explanation by the plaintiff was then recorded in the last two paragraphs of his statement.

The 1st defendant's evidence

18. The 1st defendant gave evidence that some time before the accident happened, he had already driven his truck with a container past the Service road and through Gate 6 to the inside of the terminal. However, due to a problem with the top of his container, he was informed by the staff of the container terminal that he had to re-enter by Gate 1 which is the only gate adequately equipped to inspect the top of the container. Despite his offer to emerge through the out-gate, the 1st defendant was advised by the staff of the container terminal that there was no need for him to go out of the out-gate and to re-enter the Service road again. Instead they would arrange for him to drive his truck out from Gate 9 (against the direction of the traffic entering the gates) and for him to make a U-turn to re-enter from Gate 1.

19. As a result he then drove his truck out from Gate 9 in the opposite direction of the traffic coming in. After he had emerged from Gate 9 and while his truck was stopped and still on lane 9 facing in the opposite direction to the flow of traffic entering the gates, he saw a security guard some distance in front of him on the Service road. He sounded his horn and waved to this security guard to draw his attention. After this security guard came up to his truck he informed the guard that he had to make a U-turn in order to re-enter from Gate 1. The guard then walked off down the Service road and, whilst standing in between lanes 8 and 9, motioned to the oncoming traffic to stop by waving his hands.

20. Thereafter, according to the 1st defendant, the oncoming traffic stopped on lanes 6, 7 and 8. He then proceeded to make his U-turn traversing these lanes with the ultimate aim of traversing all the lanes until he reached lane 1 and then to re-enter from Gate 1.

21. After he had traversed lanes 8 and 7 travelling at about 10 k.p.h. in second gear (the truck has seven gears) and whilst he was crossing lane 6, he had noticed the plaintiff's truck approaching along lane 5 about 60 feet or so from his truck and travelling at about 15 to 20 k.p.h. Since other trucks had stopped to give way to him on lanes 6, 7 and 8, the 1st defendant signalled to the plaintiff's truck on lane 5 by waving his hand. At that time as there was nothing obstructing the view between him and the plaintiff's truck, the 1st defendant assumed that the plaintiff would be able to see his hand signal. He then saw the plaintiff's truck slowing down to about 10 k.p.h. and so he assumed the plaintiff would stop his truck to let his truck pass just as the other trucks on lanes 6, 7 and 8 had done. He agreed that during this whole manoeuvre he did not sound his horn to warn other traffic including the plaintiff. Nor did he stop after seeing the plaintiff's truck approaching on lane 5.

22. In those circumstances, the 1st defendant continued to cross lane 5. After half of his container truck had crossed lane 5 he heard the sound of collision when the front of the plaintiff's truck collided with about the middle part of the container carried on the 1st defendant's truck on its offside. He then immediately applied his brakes to stop his truck.

23. He got off his truck and went up to the cabin of the plaintiff's truck. There he saw that the cabin of the plaintiff's truck was badly damaged by the impact and the plaintiff was in the driver's seat with his right foot trapped between the brake and accelerator due to the damaged steel of the cabin. The right leg of the plaintiff was bleeding profusely.

24. The 1st defendant then asked the plaintiff what he could do to assist and was told by the plaintiff to fetch a piece of rope from under the seat behind the driver's seat of the plaintiff's truck for the plaintiff to use to stop the bleeding in his right leg and also to try to switch off the engine of the plaintiff's truck. He carried out both requests of the plaintiff.

25. After that he then said to the plaintiff why was it that the plaintiff collided into his truck when it was going so slowly. In reply the plaintiff said that he had his head down looking for the seal and so collided with the 1st defendant's truck.

26. Apart from the 1st defendant himself, two police officers were called as witnesses on behalf of the 1st and 2nd defendants.

27. Chan Hon Lun, PC 51189 gave evidence that he was one of two officers who attended the scene of the accident after a report was made. He arrived at the scene at about 12:30 p.m. and remained at the scene until the afternoon of that day. He had no dealings with the plaintiff either at the scene or in the hospital.

28. He did however carry out a breathalyzer test on the 1st defendant. As a result of what he was told by the 1st defendant as to how the accident happened, in particular that a security guard had stopped the traffic for the 1st defendant to make the U-turn, he had located a security guard at the container terminal by the name of Chik Wing Pun who told him that he (Chik) had only stopped traffic approaching Gate 9 in order to let the 1st defendant drive his container out from that gate and that the rest was left to the 1st defendant to make the U-turn by himself.

29. The other police officer, PC 49778, Chiu Hon Fai said in evidence that he had made a sketch and took photographs relating to the accident.

30. He then went to Princess Margaret Hospital where the plaintiff had been taken. He arrived at the hospital at 1:35 p.m. and carried out a breathalyzer test on the plaintiff. After the test, he made enquiries of the plaintiff as to the accident. The plaintiff said to him that immediately before the collision he (the plaintiff) had his head down looking for a seal. When cross-examined on this, he said that it was only when the plaintiff said this to him at the hospital that he had heard about a seal in relation to this accident and that nobody had said anything to him about a seal before that. He made a written record of what the plaintiff said to him in the Investigation Report after he returned to the police station that same day.

31. He also gave evidence that he again visited the plaintiff in hospital on 16 October 1999 when he took a written statement from the plaintiff as to how the accident occurred. At the end of the statement, and having refreshed his memory from the Investigation Report, he reminded the plaintiff of what the plaintiff had said to him on the earlier occasion about having his head down to look for the seal. He then asked the plaintiff for an explanation and as a result the plaintiff's explanation was also recorded down in that statement.

The 3rd defendant's evidence

32. At the end of the case for the 1st and 2nd defendants, when it came to the 3rd defendant's case to begin, counsel for the 3rd defendant indicated to the court that he will not be calling any witness. This was despite the fact that witness statements from two security guards and from a person who had prepared an Incident Investigation Report relating to this accident for the 3rd defendant had not only been served on the other parties but also included in the trial bundle.

33. Undoubtedly counsel for the other parties were somewhat taken by surprise at this decision of the 3rd defendant not to call witnesses. However, they were given time to consider their position overnight. Moreover, counsel for the 3rd defendant quite properly offered to make available on the following morning all the witnesses the 3rd defendant had originally intended to call in the event that either the plaintiff or the 1st and 2nd defendants would wish to call these witnesses as their witness.

34. As it turned out, after considering their position overnight, neither the plaintiff nor the 1st and 2nd defendants desired to call any of the two security guards or the author of the Incident Investigation Report. Instead the Incident Investigation Report was agreed into evidence by all the parties.

Status of the Police statement of Chik Wing Pun

35. Chik Wing Pun, one of the security guard originally intended to be called by the 3rd defendant, but ultimately not called as a witness at the trial, had given a signed written statement to the police shortly after the accident.

36. A disagreement arose between the parties during final submission relating to the police statement of Chik.

37. The plaintiff, wishing to rely on the contents of that statement of Chik, says that since the officer who took that statement from Chik had given evidence of the taking of such statement that statement is admissible in evidence.

38. Alternatively, the plaintiff says that I should exercise my discretion under the Evidence Ordinance allowing hearsay evidence to be admissible. In this respect it is submitted that I should admit that statement of Chik since that statement had been included in the trial bundle and all along, the plaintiff had expected Chik to be called as a witness by the 3rd defendant.

39. The plaintiff further submits that in particular, Section 54 of the Evidence Ordinance permits record of a public body to be received in evidence. The plaintiff submits that the statement of Chik, taken by PC 49778, forms part of the record of the Police Force which is a public body and should be received in evidence under the section.

40. The defendants however, object to the police statement of Chik being admitted in evidence on the grounds that Chik was not called as a witness and the contents of his police statement must therefore be hearsay. They further submit that if the plaintiff had wanted his statement or any part of its contents to be evidence, the plaintiff had every opportunity of calling Chik as a witness of the plaintiff since he was made available by the 3rd defendant to be called by any other party after the 3rd defendant had indicated that the 3rd defendant will not be calling him as a witness. (Nor was there any objection from any party for the plaintiff to reopen its case by calling any further witness made available by the 3rd defendant.) The failure of the plaintiff to call Chik as a witness precludes the plaintiff from relying on the contents of his police statement now.

41. After hearing their submission on the matter, since that argument only arose during final submissions, I indicated that I would not give a ruling on the matter in dispute but deal with it de bene esse in my judgment.

42. I do not accept the submission of the plaintiff in so far as their reliance on Section 54 of the Evidence Ordinance is concerned. Wide though the definition of "records" may be under that section, I am of the view that it cannot include a witness statement taken from a witness. The simple reason for that is that no one in the Police Force including the statement taker can attest to the truthfulness of the content of such witness statement. The only person who can do so must be the witness himself, in this case Chik. The fact that it was recorded down in writing by a police officer for Chik makes not the slightest difference that it remains the statement of the witness.

43. In so far as the Evidence Ordinance allows for hearsay evidence to be admissible, that is governed by Section 47. However that section states that in civil proceedings evidence shall not be excluded on the grounds that it is hearsay unless a party against whom that evidence is to be adduced objects to the admission of the evidence.

44. In the present case, all defendants have objected to the plaintiff relying on the police statement of Chik.

45. However, the determinative factor in my view must be the fact that the plaintiff had been afforded every opportunity of calling Chik as a witness if the plaintiff had wanted the evidence of Chik to be before the court. The plaintiff made a conscious decision not to call Chik as a witness and that must be the end of the matter. They cannot have their cake and eat it.

46. I therefore rule that the police statement of Chik to be inadmissible in evidence.

Assessment of the evidence

47. In so far as the occurrence of the accident is concerned, I have no hesitation in accepting the evidence of the 1st defendant as to how it happened. He struck me as being an honest witness doing his best to recount what he saw and heard. There were times when he could have exaggerated matters in his favour as, for instance, saying that he had sounded his horn to warn the plaintiff but instead he quite honestly told the court that because he had expected the plaintiff to give way as did other traffic, therefore he did not sound his horn.

48. I also accept the evidence of the police officers, particularly PC 49778 saying that the plaintiff had told him in the hospital in the afternoon of 8 August 1999 that just before the collision, the plaintiff had lowered his head looking for the seal.

49. He was not shaken the least when cross-examined on that aspect and also in relation to the explanation given by the plaintiff on 16 October 1999 when the written statement was taken.

50. He also frankly admitted that he had brought up the matter of the seal on this second occasion in the hospital after refreshing his memory from the Investigation Report and it was then that he asked the plaintiff for an explanation.

51. Nor is there any reason why PC 49778 should have made up that evidence against the plaintiff (as suggested by the plaintiff) if it was not true.

52. This admission by the plaintiff of having lowered his head looking for the seal is corroborated by evidence from the 1st defendant of a similar admission by the plaintiff when he saw the plaintiff trapped in the cabin of the plaintiff's truck just after the collision. It is also contained in a written statement given by the 1st defendant to the staff of the 3rd defendant. That statement was made by the 1st defendant at about 2:30 p.m. on the very day of the accident and was taken at the office of the 3rd defendant which is within the precincts of the Container Terminal but some distance from the accident scene.

53. When he was asked about this, the 1st defendant said that between the time of the collision and the making of that statement at 2:30 p.m. he had stayed within the precincts of the Container Terminal throughout.

54. What it means is that while the 1st defendant was alleging at 2:30 p.m. that the plaintiff had made such an admission to him shortly after the collision when the plaintiff was still in the cabin of the plaintiff's truck, PC 49778 was hearing the plaintiff making a similar admission to him in the Princess Margaret Hospital about an hour earlier.

55. In my view that is an admission by the plaintiff which, on the evidence from these two witnesses, I can accept as having been said by the plaintiff on both those occasions as told by them in evidence.

56. Turning now to deal with the plaintiff as a witness. There is no dispute that both the plaintiff's truck and the 1st defendant's truck were each carrying a 40 feet container. It is also common ground that the length of the truck together with a 40 feet container will come to about 60 feet or so.

57. The version given by the plaintiff as to how the accident occurred, is most improbable. The plaintiff's version can only have happened if the 1st defendant was travelling at a very high speed since the evidence (even from the plaintiff) was that the point of impact was the front of the plaintiff's truck hitting the middle part of the container of the 1st defendant's truck.

58. That suggests that some 30 to 40 feet of the entire length of the 1st defendant's truck with container had passed the front of the plaintiff's truck before they collided. According to the plaintiff, the 1st defendant's truck had come out from behind the vehicle which was about 60 feet ahead of the plaintiff's truck and slightly to its left. Even if the 1st defendant's truck was travelling at a high speed, that still does not explain how it was that the plaintiff did not see the 1st defendant's truck before the impact.

59. On the other hand, if the plaintiff was not keeping a proper lookout, but had his head down looking for the seal, as admitted by him to both the 1st defendant at the scene and to the police officer in the hospital, that would explain why the plaintiff did not see the 1st defendant's truck until the actual collision.

60. On balance, and for the reason given, I have no hesitation in accepting the version of events as given by the 1st defendant. I also accept the 1st defendant's evidence that at the time when he was making the U-turn, he was travelling at a slow speed about 10 k.p.h. I cannot imagine that the 1st defendant was driving at a very high speed (as the plaintiff seems to suggest) because he had started from a resting position on lane 9 to make the U-turn across to lane 1. That would not have given him the time or the distance required to be travelling at a very high speed.

61. I also accept the evidence of the 1st defendant that he had secured the assistance of a security guard who had stood at a spot between lane 8 and lane 9 in front of the 1st defendant's truck and waved the 1st defendant to move off to start his U-turn after motioning with his hands to traffic behind him to give way to the 1st defendant. Whether or not the security guard intended to assist by only stopping traffic on lane 9 to assist the 1st defendant is neither here nor there. The fact is other traffic on the lanes 6, 7 and 8 did stop to give way to the 1st defendant's truck. Whether the other traffic stopped because they saw the security guard or because they saw the 1st defendant's truck about to U-turn is immaterial.

62. Finally, I also take into account the contents of the Incident Investigation Report agreed into evidence by the parties. I am prepared to give weight to the contents of the report for although it was prepared for the 3rd defendant by its own staff, it has, by way of contents, mainly admissions which are against the interests of the 3rd defendant. It is these admissions which I see fit to give weight to. I shall deal with them in detail when I deal with the liability of the 3rd defendant later.

Findings of Fact

63. I therefore make the following findings of fact from the evidence adduced :

(1) The 1st defendant, having already passed through the in-gate into Terminal 6 of the Container Terminal, was informed by the staff of the 3rd defendant that he needed to drive through Gate 1 again for the purpose of having the top of his truck inspected at Gate 1;

(2) Despite the 1st defendant's offer to go out from the out-gate and to re-enter the Service road again for the purpose of driving through Gate 1, he was informed by the staff of the 3rd defendant that he could emerge from Gate 9 out to the Service road and re-enter Gate 1 by making a U-turn;

(3) The 1st defendant was further told that staff of the 3rd defendant in the form of security guard would assist him in making the U-turn;

(4) After emerging from Gate 9, the only assistance the 1st defendant obtained was one security guard positioned at between lanes 8 and 9 in front of the 1st defendant's truck motioning by hand signal to oncoming traffic on the Service road to give way to the 1st defendant's truck;

(5) Traffic did stop on lanes 6, 7 and 8 after which the 1st defendant did begin his U-turn manoeuvre intending to traverse all the lanes in order to re-enter from Gate 1;

(6) When the 1st defendant reached lane 6 at a speed of about 10 k.p.h., he noticed the plaintiff's truck approaching on lane 5 at a speed of about 20 k.p.h. some 60 feet from the 1st defendant's truck;

(7) The 1st defendant motioned to the plaintiff to give way by waving his arm and when he saw the plaintiff slow down to about 10 k.p.h., the 1st defendant assumed that the plaintiff will stop to give way therefore the 1st defendant continued to cross lane 5 at the same speed of about 10 k.p.h.;

(8) At no time did the 1st defendant sound his horn nor did the 1st defendant stop to ensure that the plaintiff will give way by stopping before he continued to cross lane 5 in the path of the plaintiff's truck;

(9) The plaintiff, when he was approaching the gates, neither saw the security guard between lanes 8 and 9, nor did he see the other traffic stopped on lanes 6, 7 and 8 giving way to the 1st defendant's truck;

(10) Moreover, the plaintiff did not see the 1st defendant's truck making the U-turn across the various lanes until they collided;

(11) The plaintiff did slow down his truck from 20 k.p.h. to about 10 k.p.h. as he approached Gate 5 partly because he wanted to look for the seal and partly because before he had lowered his head to look for the seal, he had seen other trucks lining up immediately in front of Gate 5;

(12) As a result, the head of the plaintiff's truck collided with a point about the middle of the container carried on the 1st defendant's truck on its offside as the 1st defendant's truck was crossing lane 5;

(13) After the collision the plaintiff did say to the 1st defendant that he had lowered his head to look for the seal just before the collision and also made a similar admission to PC49778 at the hospital later the same day.

Liability of the defendants

64. In the case of the 2nd defendant, he stands or falls with the 1st defendant since it is a case of vicarious liability on his part.

65. As for the 1st defendant, on his own admission, he knew from the outset that making a U-turn on the Service road was a dangerous manoeuvre. No doubt it was because of such knowledge that he offered to exit by the out-gate and to re-enter in the normal way. However, once he acceded to the suggestion of the staff of the 3rd defendant to make the U-turn after emerging from Gate 9, he agreed to undertake a manoeuvre which he knew to be a dangerous manoeuvre.

66. That it was a dangerous manoeuvre there can be no doubt. In making such a U-turn, he had to traverse 9 lanes of continuous traffic on the Service road which, in the normal course of things, would be regarded by drivers to be a one-way road.

67. Secondly, the 1st defendant, from his own evidence, he knew that apart from the one security guard who had stood at between lanes 8 and 9 to wave him on, there was no other person assisting him by directing or stopping the traffic for him further out in the middle part of the Service road.

68. In undertaking that U-turn therefore, the 1st defendant was under a duty to take sufficient care either in warning other trucks on the Service road or ensuring that other drivers were according him the right of way before proceeding.

69. It was reasonable in all the circumstances of the case to expect the 1st defendant to sound his horn when making the U-turn, if necessary continuously at regular interval, to warn other drivers that he was undertaking a manoeuvre outside what they would normally expect. This he did not do.

70. It was also wrong of the 1st defendant to assume that the plaintiff would accord him the right of way simply by waving to the plaintiff with his arm, even though other trucks on the lanes 6, 7 and 8 had granted him that courtesy. Seeing that the plaintiff was slowing down was not, in the circumstance, a reasonably sufficient indication that the plaintiff would stop and accord him the right of way. He ought to have made sure that the plaintiff, like the other traffic on lanes 6, 7 and 8, did stop before he proceeded to traverse lane 5 on which the plaintiff's truck was travelling.

71. For these reasons, I find that the 1st defendant was in breach of his duty of care and therefore negligent. For that negligence therefore both the 1st and 2nd defendants are liable.

72. As for the 3rd defendant, it is the operator of the container terminal on which the Service road is located, and is therefore the occupier. The Incident Investigation report painted a very true picture of their role in the accident. It stated that normally re-circulation (of traffic) should be arranged to be done at the out-gate. But because of the congestion of traffic at the out-gate on the day in question, staff of the 3rd defendant advised the 1st defendant to emerge from Gate 9 to make the U-turn instead of re-circulating from the out-gate. Moreover, there are no security guard posted there to control the traffic re-circulating in such a manner. In short the 3rd defendant through its staff advised a course of action which is not normal and which they knew or ought to have known to be dangerous and risky but at the same time did not have sufficient staff or facilities to ensure that it could be safely carried out.

73. They owed a duty to the drivers using the Service road including the plaintiff as the occupiers and were in breach of that duty. There can be little doubt that they were negligent in the present case.

74. The Incident Investigation Report further states that since this accident, the 3rd defendant has now taken steps to ensure that such practice of re-circulating traffic at the in-gate for inspection has been stopped with immediate effect.

Contributory Negligence

75. From the findings above, there can be no doubt that the immediate and major cause of the accident was due to the failure of the plaintiff to keep a proper lookout. To that extent, the plaintiff must be contributorily negligent to a large extent.

76. From his own evidence, the plaintiff did not see the security guard on lanes 8 and 9. That in itself may still be explained by the fact that the plaintiff was travelling on lane 5 and therefore the spot where the security guard was standing may not have been within range of his view of vision.

77. However, his failure to see the other vehicles stopped on lanes 6, 7 and 8 before the collision is a very telling indication that his failure to keep a proper lookout was not simply a momentary one. Likewise also his failure to see the 1st defendant's truck which must have passed in front of him some 30 to 40 feet of it before the impact is a further indication that this was a bad case of a failure to keep a proper lookout.

78. From the above, I will assess his contributory negligence at 60%.

Apportionment between defendants

79. The 1st and 2nd defendants on the one hand and the 3rd defendant on the other hand have served each other with Contribution Notices. It is therefore incumbent upon me to apportion their respective portion of blame in so far as their negligence is concerned.

80. I have some sympathy for the 1st defendant. He found himself put in this position at the suggestion of the staff of the 3rd defendant. Moreover the promise by such staff that he would be given assistance to make the U-turn was not fully kept.

81. On the other hand, I appreciate that in so far as the 3rd defendant is concerned, although they created this dangerous situation by suggesting to the 1st defendant to re-circulate at the in-gate, they were not the immediate parties to the collision itself.

82. In all the circumstances of the case, it is not possible to differentiate the blameworthiness as between the 1st and 3rd defendants. Accordingly, I take the view that they should both be equally to blame for their negligence in the matter.

83. Having ruled that the plaintiff was 60% contributorily negligent, it follows that the defendants are together 40% liable to the plaintiff.

84. Therefore as between the defendants, the 1st and 2nd defendants will be apportioned 20% liability and the 3rd defendant also 20% liability. This apportionment is, needless to say, only as between the defendants themselves and does not bind the plaintiff.

Costs

85. There will be a costs order nisi that the defendants jointly will be responsible to pay 40% of the plaintiff's costs of this action on liability, such costs to be taxed if not agreed.