Yeung Pan Nam v. Personal Representative of Tong Yu Tat Anthony, Deceased and Others

CACV 95/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 95 OF 2015

(ON APPEAL FROM HCPI NO. 240 OF 2012)

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REASONS FOR JUDGMENT

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Hon Kwan JA (giving the reasons for judgment of the Court):

1.This is an appeal against the judgment on liability of a personal injuries action arising out of a traffic accident on 8 June 2010, given by Deputy High Court Judge Paul Lam, SC on 1 April 2015 after a three-day trial in March 2015.

2.The plaintiff, Madam Yeung Pan Nam, was a passenger on a public bus driven by Tong Yu Tat Anthony (“Tong”).  Tong had passed away in December 2014.  His personal representative was the 1^st defendant in this action.  The 2^nd defendant, Citybus Limited, was the employer of Tong and the owner of the bus.  The 3^rd defendant,Singh Harbhajan (“Singh”), was the driver of a motor cycle.

3.Quantum was agreed by the parties at $6.5 million.  The judge held that liability was established against Tong (for whose negligence his employer was vicariously liable) and Singh.  He apportioned liability of 25% to Tong and 75% to Singh.

4.Singh brought this appeal contending that the judge should not have found him liable at all.  Even if he should be found liable, liability should be apportioned on the basis of 90% to Tong and only 10% to him.  This was the stance taken by his trial counsel (not Mr C Y Li, SC) but was firmly rejected by the judge.  On appeal, Mr Li (with Ms Stephanie Yan) also argued for him in the alternative that some other percentage less than 75% should be made in respect of his liability.

5.The plaintiff did not take part in the appeal.  An order was made by consent in which it was agreed that the appeal be dismissed in so far as it concerned the plaintiff, subject to the condition that she shall be bound by the outcome of the appeal and certain terms as to costs.

6.At the conclusion of the hearing, we dismissed the appeal with costs to the 1^st and 2^nd defendants.  These are the reasons for our judgment.

The accident and the judge’s findings

7.At about 19:55 hours on 8 June 2010, Singh’s motor cycle entered the left lane of Electric Road in North Point from Watson Road to the left.  There is a “stop sign” in the intersection between Watson Road and Electric Road.  Electric Road is an eastbound carriageway with two lanes.  After entering Electric Road, Singh needed to turn right at some point to a side street which would lead to King’s Road.  On reaching a point outside a boy scouts’ headquarter, Singh’s motor cycle cut into the right lane.  There is a set of traffic lights not far ahead.  Tong’s bus was travelling behind the motor cycle in the right lane.  Tong managed to stop the bus behind the motor cycle after it had entered the right lane completely by braking hard.  In so doing, the plaintiff was thrown forward and fell onto the floor of the bus.  She sustained serious head injuries.

8.The plaintiff was unable to recall how the accident happened due to her injuries and did not give evidence.

9.Tong gave a statement to the police three hours after the accident in which he made very serious allegations against Singh, and a brief witness statement in 2012 confirming the account in his police statement.  Tong claimed the accident was wholly caused by the negligence of Singh.  Because of his allegations against Singh, the latter was interviewed by the police under caution in July 2010 on suspicion of dangerous driving.  After the police had considered a CCTV record obtained from a nearby building, which was inconsistent with Tong’s statement, they did not bring any prosecution against Singh.  Before he passed away, Tong did not make any supplemental statement to explain the significant discrepancies between his statements and the CCTV record, which clearly called for explanation.

10.Singh was the only witness who gave evidence at the trial.  Unlike Tong, he made a supplemental witness statement to explain the discrepancies between his police statement and the CCTV record.  There were material discrepancies between Tong’s evidence and Singh’s evidence.  Singh claimed the accident was wholly caused by Tong’s negligence.

11.In assessing Singh’s evidence, the judge had borne in mind that the accident took place in a few seconds, and it is impossible and quite unreasonable to expect any witness to speak precisely and reliably in terms of distance, time or speed some years after a traumatic event.  In particular, when the witness knew he was accused of being negligent, he may tend to recall or reconstruct the accident intentionally or subconsciously or doing both in a manner to exonerate himself from responsibility.  The judge endeavoured to look for independent evidence in so far as available and consider the inherent probability in deciding any material factual issue.

12.Singh claimed he had stopped at the “stop sign” in the intersection between Watson Road and Electric Road for two to three seconds and he had checked the mirror and did a shoulder check before he moved off.  The judge did not find it necessary to decide if Singh had done all those things.  What was important was that on Singh’s own evidence, he had seen the bus on the right lane of Electric Road about 25 to 30 metres behind before he entered from Watson Road.

13.Singh explained why he wanted to cut into the right lane before reaching the traffic lights, and that was because there was always a line of slow traffic intending to turn left into a petrol station adjacent to the left lane immediately after the traffic lights.

14.The judge accepted Singh’s evidence that before he started to change lane, he had put on the right indicator (§18).  He rejected Singh’s evidence that before he changed lane, he observed that the bus was slowing down (§19).

15.The judge summarised what could be seen from the CCTV record in §20:

“(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.”

16.The judge noted the CCTV record at 19:54:29 showed that at one point of time, the two vehicles were quite close to each other.  Singh mentioned in a supplemental statement that the bus was 10 feet behind him when it stopped, not 10 metres as stated in his police statement.  The judge found Singh’s evidence on this point unreliable.  He noted that different estimates of the distance between the two vehicles have been given by the parties but no actual measurement has been done.  He declined to make a finding, noting that the CCTV record speaks for itself (§21).

17.Singh gave evidence that his motor cycle travelled for about five to six metres on the right lane before it stopped, but the CCTV record did not capture this (§22).

18.It is not in dispute that Tong applied the brakes hard and suddenly to slow down and then stop the bus.  The judge drew the irresistible inference the braking force was substantial, and that the plaintiff fell because the bus decelerated and stopped suddenly (§23).

19.The judge found Singh liable in negligence in that he should not have changed lane in the circumstances.  He reasoned in this way:

“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.

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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.”

20.The judge also found Tong liable in negligence. The CCTV record showed clearly it was incorrect for Tong to say that the motor cycle was turning left first and then it cut into the right lane horizontally.  As Tong had failed to explain these significant discrepancies, the judge drew an adverse inference against him that he made up those allegations to exonerate himself and he had not kept a proper lookout.  Tong did not mention in his statements he had seen the motor cycle at the “stop sign”.  It would appear he only noticed the motor cycle when it was about to cut lane and he had not anticipated the motor cycle was going to cut into his path (§56).

21.The judge reached this conclusion in §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.”

22.On the apportionment of liability, the judge took the firm view that Singh must shoulder a higher degree of responsibility than Tong, for the reasons he gave in §65:

“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.”

23.The judge rejected the submission on behalf of Singh that the sole cause of the plaintiff’s injuries was Tong’s negligence as “unrealistic and flies in the face of common sense” (§45), and took the view that the fallback position that Singh should bear only 10% of the liability was “unrealistic” (§66).

24.Having regard to all the evidence and the submissions before him, the judge concluded that Tong should bear 25% liability whereas Singh should bear 75% liability.

The approach of the appeal court

25.Mr Li sought to challenge the finding of negligence of Singh and the apportionment of liability between Singh and Tong.

26.On the finding of negligence, he accepted that Singh is appealing against the findings of fact of the judge, despite the mention in various places in grounds 1 to 4 in the amended notice of appeal that the judge had “erred in law” in making various findings of fact.  Mr Li submitted nonetheless the appeal court should interfere with the judge’s findings because the judge is “plainly wrong”.  He acknowledged that for this purpose, the appeal court “is required to identify a mistake in the judge’s evaluation of the evidence that is sufficiently material to undermine his conclusions”, citing Beacon Insurance Co Ltd v Maharaj Bookstore Ltd [2014] 4 All ER 418 at §§11 to 18.

27.We would be guided by the above approach.  It is pertinent also to note that the decision of negligence arrived at by the judge is a judgmental conclusion he reached on the basis of the factual findings he made after taking them into account and weighing them up.  These words of Hoffmann LJ (as he then was) in In re Grayan Building Services Ltd [1995] Ch 241 at 254 are particularly relevant:

“ “The judge is deciding a question of mixed fact and law in that he is applying the standard laid down by the courts” – in that case conduct appropriate to a person fit to be a director – “to the facts of the case. It is in principle no different from the decision as to whether someone has been negligent or whether a patented invention was obvious: see Benmax v Austin Motor Co Ltd [1955] AC 370. On the other hand, the standards applied by the law in different contexts vary a great deal in precision and generally speaking, the vaguer the standard and the greater the number of factors which the court has to weigh up in deciding whether or not the standards have been met, the more reluctant an appellate court will be to interfere with the trial judge’s decision.” ”

28.Hoffman LJ also referred to the statements of Lord Bridge of Harwich in George Mitchell Ltd v Finney Lock Seeds Ltd [1983] 2 AC 803 at 815H to 816 B, which was concerned with whether a contractual term was “fair and reasonable” under the Unfair Contract Terms Act 1977, and Lord Bridge gave this guidance for an appellate court in reviewing the original decision:

“It would not be accurate to describe such a decision as an exercise of discretion. But a decision under any of the provisions referred to will have this in common with the exercise of a discretion, that, in having regard to the various matters to which the modified section 55(5) of the Act of 1979, or section 11 of the Act of 1977 direct attention, the court must entertain a whole range of considerations, put them in the scales on one side or the other, and decide at the end of the day on which side the balance comes down. There will sometimes be room for a legitimate difference of judicial opinion as to what the answer should be, where it will be impossible to say that one view is demonstrably wrong and the other demonstrably right. It must follow, in my view, that, when asked to review such a decision on appeal, the appellate court should treat the original decision with the utmost respect and refrain from interference with it unless satisfied that it proceeded upon some erroneous principle or was plainly and obviously wrong.”

29.We will be guided by the above approach in reviewing the judge’s decision on finding negligence.  We should treat his decision with the utmost respect and not disturb his conclusions unless they proceeded from some error in principle or are plainly and obviously wrong.

30.As to reviewing the judge’s apportionment of liability, Mr Li referred us to the majority judgment of the Supreme Court in Jackson v Murray [2015] RTR 20 given by Lord Reed JSC.  The minority did not disagree with the approach of the majority, the disagreement was in the application of the test in the circumstances of that case (at §46).  Lord Reed explained the correct approach in some detail as follows:

“27. It is not possible for a court to arrive at an apportionment which is demonstrably correct. The problem is not merely that the factors which the court is required to consider are incapable of precise measurement. More fundamentally, the blameworthiness of the pursuer and the defender are incommensurable. The defender has acted in breach of a duty (not necessarily a duty of care) which was owed to the pursuer; the pursuer, on the other hand, has acted with a want of regard for her own interests. The word “fault” in s. 1(1) [of the Law Reform (Contributory) Negligence Act 1945][1], as applied to “the person suffering the damage” on the one hand, and the “other person or persons” on the other hand, is therefore being used in two different senses. The court is not comparing like with like.

28. It follows that the apportionment of responsibility is inevitably a somewhat rough and ready exercise (a feature reflected in the judicial preference for round figures), and that a variety of possible answers can legitimately be given. That is consistent with the requirement under s. 1(1) to arrive at a result which the court considers “just and equitable”[2]. Since different judges may legitimately take different views of what would be just and equitable in particular circumstances, it follows that those differing views should be respected, within the limits of reasonable disagreement.

29. In Kerry v Carter [1969] 1 WLR 1372, the Court of Appeal reviewed some earlier authorities concerned with appellate review of apportionments under the 1945 Act. Lord Denning said at 1376, with the agreement of the other members of the court:

“…This court adopts in regard to apportionment the same attitude as it does to damages. We will interfere if the judge has gone wrong in principle or is shown to have misapprehended the facts: but, even if neither of these is shown, we will interfere if we are of opinion that the judge was clearly wrong. …”

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31. Given the broad nature of the judgment which has to be made, and the consequent impossibility of determining a right answer to the question of apportionment, one can say in this context, as Lord Fraser of Tullybelton said in relation to an exercise of judgment of a different kind in G v G (Minors: Custody Appeal) [1985] 1 WLR 647 at 651:

“It is comparatively seldom that the Court of Appeal, even if it would itself have preferred a different answer, can say that the judge’s decision was wrong, and unless it can say so, it will leave his decision undisturbed.”

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34. It should be noted that words such as “manifestly and to a substantial degree” merely add emphasis, and do not modify the substance of the test. As Lord Fraser said in G v G [1985] 1 WLR 647 at 652:

“Certainly it would not be useful to inquire whether different shades of meaning are intended to be conveyed by words such as ‘blatant error’ used by the President in the present case, and words such as ‘clearly wrong’, ‘plainly wrong’, or simply ‘wrong’ used by other judges in other cases. All these various expressions were used in order to emphasise the point that the appellate court should only interfere when they consider that the judge of first instance has not merely preferred an imperfect solution which is different from an alternative imperfect solution which the Court of Appeal might or would have adopted, but has exceeded the generous ambit within which a reasonable disagreement is possible.”

35. The question, therefore, is whether the court below went wrong. In the absence of an identifiable error, such as an error of law, or the taking into account of an irrelevant matter, or the failure to take account of a relevant matter, it is only a difference of view as to the apportionment of responsibility which exceeds the ambit of reasonable disagreement that warrants the conclusion that the court below has gone wrong. In other words, in the absence of an identifiable error, the appellate court must be satisfied that the apportionment by the court below was not one which was reasonably open to it.”

31.This has been the approach adopted by our courts in reviewing an apportionment of liability, whether as between a plaintiff and a defendant, or as between defendants, see Wishing Long Hong v Wong Kit Chun (2001) 4 HKCFAR 289 at §30; Christopher Gordon Young v Lee Chu, CACV 131/2003, 19 May 2004, §20.

The finding of negligence against Singh

32.Mr Li sought to argue on appeal that Singh should not be found liable for negligence at all, a position the judge regarded as unrealistic and flies in the face of common sense.

33.He took a number of points.

34.First, he contended that it would be a counsel for perfection to suggest that a driver can only cut lane, which is a common phenomenon in road traffic, if he does not cause the car on the changed lane to slow down.  This submission was made by the trial counsel for Singh, as referred to in §28 of the judgment.  The judge did not agree with it, stating that the rationale behind the Road Users Code 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.”  There is nothing in this submission.

35.Mr Li then pointed to §34 in which the judge expressed agreement with Singh’s trial counsel 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.”  But the judge had also said at the end of that paragraph that “it is a matter of degree depending on the circumstances of each case.”

36.Mr Li sought to challenge the judge’s finding of fact that Tong was forced to cope with an emergency created by Singh in cutting lanes.  He said the judge should have found there was no emergency so as to cause Tong “to brake at all”, let alone to brake in a hard and abrupt manner.  He criticised the judge for not making an “essential finding” how close the motor cycle was to the bus.  He submitted the judge could have found by viewing the CCTV footage that there was “quite some distance between the two vehicles” and that looking at the whole conduct of Tong and Singh, there was “sufficient time and space” for the motor cycle to change lane and that Singh did so “at a safe distance”.  He submitted that the speed of both vehicles was slow, that there is a set of traffic lights not far ahead and the bus would have to slow down and stop in any event because of the red light ahead, that the distance between the two cars should be 30 to 40 feet when the lane cutting took place and more than one car length after the cutting was completed, and that the distance should be around 20 to 30 feet after the bus stopped.

37.Mr Li gave his own observations on the CCTV recording, contending that the motor cycle “had not obstructed the path of the bus in the course of switching lane” (at 19:54:27), that “there was more than one car length” between the two cars before the motor cycle had completely entered the right lane (at 19:54:29).  He also asked the court to note from the recording there was a time lapse of three seconds between the time the motor first appeared on the screen on the left lane and the time the bus first appeared on the screen on the right lane from behind.  He said the judge had failed to take into consideration the motor cycle had moved forward after cutting into the right lane so putting greater distance between the two vehicles and there should be sufficient space for the bus to slow down without braking abruptly.

38.The above matters have been considered by the judge, by and large.  There is no reason to think he did not take them into account, and weigh them as appropriate before he made the crucial findings on liability.  We have also viewed the CCTV recordings.  The judge had given an accurate description of the footage second by second and frame by frame in §20.  We see no basis to find fault with his finding that at 19:54:29, the two vehicles were “quite close to each other” (§21).  Nor do we think the judge could fairly be criticised in declining to find how close the motor cycle was to the bus, as the CCTV record speaks for itself.  He was entitled not to accept the estimates as to various distances at particular points in time put forward by Singh or on his behalf, whether it be 30 to 40 feet at the time when Singh was about to change lane as according to his estimate, or 57 feet as suggested by his trial counsel.

39.The judge had fully considered the speeds and distance of the two vehicles when the motor cycle was cutting lane in §§31 to 33.  In §31, he found Singh liable even if he were to accept Singh’s own evidence as to the speeds of the two vehicles (5 to 7 km/hr for the motor cycle, 20 km/hr for the bus) and their distance (the bus was 30 to 40 feet behind) when he was about to change lane.  We see nothing to criticise the judge’s rough calculation in §31 that on Singh’s own evidence, there would be a collision in about two seconds if both vehicles maintained the same speed.  The judge did not find liability on the assumption that both vehicles had maintained the same speed.  He put forward the two-second theory to demonstrate the point that it was unsafe and risky for the motor cycle to cut lane in those circumstances.  In any event, he had rejected Singh’s evidence that the bus was slowing down before he changed lane (§19).

40.Mr Li invoked the two-second time gap rule in the Road Users Code and argued that the judge should have found there was sufficient time for Tong to stop, taking into account the distance and speed of the bus.  He also submitted that the two-second time gap is aimed at providing guidance as to what can be regarded as keeping a safe distance on highways and should be more than sufficient in urban roads.  The judge dealt with the two-second rule in §35:

“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.”

41.Mr Li submitted the burden is on the other defendants to adduce evidence to prove there were such variables mentioned by the judge so as to affect the application of the two-second rule to the present situation.  We fail to see why there should be such a burden on the other defendants.  We do not think the judge was in error in not applying the two-second rule mechanically to find there was a safe distance when Singh was cutting into the right lane.

42.Mr Li submitted further that the judge should have not found Tong was caught by surprise by the appearance of the motor cycle.  The judge found Tong had not kept a proper lookout and only noticed the motor cycle when it was about to cut lane.  The manner in which the bus braked and stopped suggested that Tong was caught by surprise.  We are unable to see how we could interfere with such findings of fact.

43.Mr Li contended the judge did not take into account Tong should have already slowed down the bus if he had kept a proper lookout and seeing the motor cycle and the red light ahead.  This would seem to be an argument to exonerate Singh from all liability by placing all the blame on Tong.  We agree with the judge this flies in the face of common sense.  The judge had cited the words of Slade J in Berill v Road Haulage Executive [1952] 2 Lloyd’s Rep 490 at 492 in considering whether Tong was liable for negligence.  We think those words would apply equally in considering whether Singh was negligent in changing lanes in the way he did:

“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.”

44.As Tong had not slowed down the bus before Singh changed lane as the judge had found, had Singh exercised reasonable care, he should have anticipated that the bus might have continued at the same speed and should not have cut into the right lane on the footing that the bus would slow down for him.

45.Mr Li contended that the position should be that there could be other reasons for Tong to stop the bus abruptly, and suggested that notwithstanding Tong should have sufficient time and distance to slow down and stop the bus, Tong had simply overreacted, panicked and braked sharply.  There is no evidential basis for this suggestion to absolve Singh from all liability.

46.There is nothing to suggest that the judge had proceeded on any erroneous principle or that he was plainly wrong in deciding that Singh was negligent in changing lanes when it was not safe to do so.  Mr Li has not persuaded us that the judge’s decision was demonstrably wrong or that the judge’s conclusion was outside the ambit for a legitimate difference of judicial opinion as to what the conclusion should be.

The apportionment of liability between Singh and Tong

47.Mr Li’s contention is that the judge was wrong to apportion the major part of the liability to Singh.  He submitted it should be the other way round.

48.He repeated his submissions that changing lane is an everyday occurrence on the road and a reasonable driver should contemplate the possibility of other drivers cutting in.  Tong should have kept an alert and proper lookout and proceeded at a speed which was reasonable relative to the speed of other vehicles.  As Singh had turned on the right indicator, Tong should have reduced speed if he had paid attention to the motor cycle.  He contended again Tong could have stopped the bus smoothly and naturally and the fault should lie with Tong substantially for overreaction and poor decision in braking abruptly.

49.Mr Li distinguished one Hong Kong decision on the apportionment of liability (which the judge did not take into account any way, stating in §64 that each case depends on its own facts) and cited three cases (a decision of the English Court of Appeal, a first instance decision of a sheriff court in Scotland, a first instance decision in Northern Ireland) in which greater liability was apportioned to the vehicle that was behind or both drivers were held equally liable.

50.We do not think this citation of cases is helpful.  As Yuen JA had stated in Christopher Gordon Young v Lee Chu at §25, on appeal there is little value in citing cases for the apportionment of liability on the individual facts of those cases.  Those cases could have been cited to the trial judge as they might be of assistance to him when deciding on apportionment on the evidence he had seen and heard.  The appeal court would not find it helpful to compare how apportionment was made in other fact situations when it reviews the decision of the trial judge.  The proper approach of the appeal court is as stated in the earlier part of this judgment.

51.The judge came to the firm view in §65 that Singh must shoulder a higher degree of responsibility than Tong, having regard to their respective blameworthiness and causative potency of their acts and omissions.  He did so upon the premise of the facts found, and we see no basis to disturb his factual findings.  It has not been shown he had misapprehended the facts or had gone wrong in principle.  Nor do we think his apportionment has exceeded the ambit of reasonable disagreement that warrants the conclusion he was clearly wrong.  To the contrary, we are satisfied that his apportionment of liability is a conclusion reasonably open to the court.  There is no basis to interfere with the apportionment of liability.

52.For all the above reasons, we dismissed the appeal of the 3^rd defendant with costs.

Mr C Y Li SC and Ms Stephanie Y Y Yan, instructed by Alvan Liu & Partners, for the 3^rd Defendant (Appellant)

Mr Wong Chi-kwong, instructed by Waller Ma Huang & Yeung, for the 1^st & 2^nd Defendants (2^nd & 3^rd Respondents)