Wong Yuet Heung v. Chan Tsang Hung and Others

CACV000026/1988

BETWEEN

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AND BETWEEN

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Coram: Fuad, VP, Power, J.A., Macdougall, J.

Date of Hearing: 27th May, 1988

Date of Delivery of Judgment: 27th May, 1988

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J U D G M E N T

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Macdougall J.,

1. On the 13th November, 1984, a goods vehicle driven by the 1st Appellant and owned by his employer, the 2nd Appellant, came into collision with a motor-cycle on which a young woman was riding as pillion passenger. As a result of the collision, she suffered severe head injuries and died. The administratrix of her estate sued the driver of the motor-cycle and the 1st and 2nd Appellants and claimed damages under the Law Amendment and Reform (Consolidation) Ordinance and the Fatal Accidents Ordinance.

2. Chan King-hung, the fiance of the deceased, testified that on the day of the accident he, another friend and the 1st Defendant had hired three motor-cycles from a motor-cycle company so that Chan King-hung and the friend, both of whom held provisional licences only, could attend an examination for a full licence. As the 1st Defendant already possessed a full licence, the deceased rode as passenger on his machine rather than on that of her fiance.

3. The three young men drove their motor-cycles in a line at about 30 m.p.h. along Castle Peak Road in a westerly direction towards Tsuen Wan with the 1st Defendant and the deceased on the leading motor-cycle and. Chan King-hung and the other friend following in that order. Castle Peak Road is a two-lane highway in that direction and the westbound and eastbound carriageways are separated by a dividing wall. Shortly before Chan King-hung reached the junction of Yip Shing Street with Castle Peak Road, he observed on his left hand side a goods vehicle travelling along Yip Shing Street towards the junction and emerge into the inner lane of Castle Peak Road and into the path of the on-coming motor-cycles. The 1st Defendant then swerved his machine a foot or so into the outer lane in an apparent attempt to avoid colliding with the goods vehicle.

4. Wishing to take the same evasive action, Chan King-hung turned his head and looked behind to ensure that the outer lane was clear of traffic on finding that another goods vehicle, which it is not disputed was driven, by the 1st Appellant, was some 10 feet behind him in that lane and was overtaking him he decided to remain in the inner lane. The goods vehicle then passed him and quickly came up behind the motor-cycle driven by the 1st Defendant. Chan King-hung then heard the horn of the goods vehicle sound and simultaneously he saw a flash from the brake lights. What he described as the corner of the goods vehicle then struck the motor-cycle. The 1st Defendant lost control of his machine and he and the deceased were thrown onto the roadway.

5. The 1st Defendant confirmed a great deal of Chan King-hung's testimony. He gave evidence that he had seen another goods vehicle slowing down in Yip Shing Street as it approached the compulsory stop sign at the Castle Peak Road junction and, although he was unsure as to whether it had come to a complete halt prior to entering Castle Peak Road, he claimed that just before he reached the junction the goods vehicle emerged unexpectedly into the path of the on-coming motor-cycles.

6. The distance between the goods vehicle and his motor cycle was so short that he feared that if he attempted simply to brake he would run into the back of it, and so he took a quick glimpse to his right and moved a foot or so into the outer lane without signalling his intention to do so and without checking thoroughly whether there was any over-taking traffic in that lane. He then heard the sound of a horn behind him but was unable to move back into the inner lane because of the presence of the first goods vehicle. The goods vehicle driven by the 1st Appellant then began to pass him and, as it was doing so, the 1st Defendant felt its tray strike the right hand end of his handle bars. He then lost control of the motor-cycle which crashed onto the road way.

7. The 1st Appellant elected not to give evidence. Accordingly, his version of the accident was not before the deputy judge for his consideration. The deputy judge accepted the testimony of Chan King-hung and that of the 1st Defendant and concluded that as a result of the sudden emergence of the first goods vehicle into the path of the 1st Defendant's motor-cycle, the 1st Defendant had been placed in an emergency situation and was entirely justified in deciding that, if he attempted to brake, he was likely to collide with the rear of the goods vehicle.

8. The deputy judge was of the view that the only clear alternative open to the 1st Defendant was to move into the outer lane and that in adopting this course he had acted reasonably and was not guilty of any negligence. He found that as the 1st Appellant's vehicle was some ten feet behind than King-hung's motor-cycle and approximately twenty feet behind the 1st Defendant's machine when the emergency situation became apparent to Chan King-hung, had the 1st Appellant been maintaining a proper look out, he should have seen the goods vehicle emerging from Yip Shing Street and have been aware of the difficulties in which the 1st Defendant found himself. Moreover, he should have observed, as had Chan King-hung, that the 1st Defendant had swerved into the outer lane.

9. The deputy judge drew the inference that as the 1st Appellant had sounded his horn and had momentarily applied his foot brake, he must have become aware of the presence of the 1st Defendant's motor-cycle in the path of his vehicle but had decided to adopt the risky course of overtaking it rather than continue applying his foot brake. He found that in all the circumstances the 1st Appellant had driven without due care and attention and had thus contributed to the accident. Unfortunately, the driver of the other goods vehicle could not be found and was therefore not a party to the action. Judgment was therefore given for the Plaintiff against both Appellants for damages to be assessed.

10. The Appellants now appeal against the judgment. They claim that having found that the Defendant had been put into an emergency situation as a result of the emergence of the first goods vehicle, the deputy judge ought also to have found that the 1st Appellant had been placed in similar if not an even greater emergency situation by the 1st Defendant suddenly swerving his motor-cycle into his path without giving a signal. The Appellants complain that, having found it reasonable in the circumstances that the 1st Defendant had elected not to brake, the deputy judge ought not to have faulted the 1st Appellant for not having fully applied his foot brake as there was no evidence to show that he could have taken effective avoiding action in the circumstances that prevailed at that time.

11. Although it is true that both the 1st Defendant and the 1st Appellant were placed in a similar situation in that each found himself in danger of colliding, with a vehicle which had appeared in his path, it is clear there were other factors that differentiated their respective situations. The 1st Defendant, being closer to the goods vehicle that had suddenly emerged in front of him, had less time to react and less distance within which to apply his brakes than had the 1st Appellant. Yet, having looked over his shoulder to see if the outer lane was clear his rear, and having seen the 1st Appellant's vehicle approaching from some 10 feet behind him, he was still able to apply his brakes and avoid colliding with the rear of the goods vehicle in front, Secondly, the 1st Appellant did not sound his horn or apply his foot brake until after he had passed Chan's motor cycle, and even then he only applied the brake momentarily. Instead of applying his brake vigorously and continuously, the 1st Appellant elected to pursue the dangerous course of attempting to squeeze between the 1st Defendant's motor-cycle and the central divider. Had he been maintaining a proper look out, he should have seen the dangerous situation developing in front of him and have commenced braking before he passed Chan King-hung's motor cycle.

12. The Appellants also complain that the deputy judge ought not to have found that the 1st Defendant had moved into the outer lane when it was clear to his immediate right. It is contended that this finding is somehow inconsistent with the testimony of Chan King-hung who, having checked to see whether there was traffic in the outer lane, decided not to move into it.

13. Plainly the outer lane must have been clear to the immediate right of the 1st Defendant otherwise he would have collided with a vehicle as he moved into it. Perhaps what is really meant by this complaint is that because Chan King-hung had found that he himself had insufficient clearance to venture safely into the outer lane, the 1st Defendant likewise had insufficient clearance to do so. If so, the argument not only overlooks the fact that the 1st Defendant was further in front of vehicles in the outer lane than was Chan King-hung, but it fails to take into account that the 1st Defendant had no safe alternative than to adopt the course which he did. I am unable to find any merit in this ground of appeal.

14. Finally, the Appellants contend that in finding the 1st Appellant to be at fault for not keeping a proper look out and for not having seen the goods vehicle emerge from Yip Shing Street, the deputy judge failed to take into account properly or at all that the first goods vehicle did not drive into the outer lane and that the sole cause of the accident was the action of the 1st Defendant in crossing into that lane. It is implicit in this contention that the 1st Appellant was merely under a duty to maintain a lookout for vehicles travelling in his own lane and that, as the 1st Defendant swerved in front of him unexpectedly, he had no means of avoiding him. I do not agree. It is the responsibility of every driver to maintain a proper look out. This includes maintaining, a careful watch on the traffic conditions on the whole of the road in front and to be vigilant for circumstances that might reasonably require him to brake or to take evasive action. A driver is not entitled to drive as if blinkered and thus concerned only to devote his attention to traffic in the lane in which he is travelling.

15. Slade J. in Berrill v road Haulage Executive⁽¹⁾ in paraphrasing the words of Lord Uthwatt in London Passenger Transport Board v Upson⁽²⁾ expressed the matter in this way: "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."

16. The 1st Appellant's view of the junction was not in the least obscured and he was under a duty to be alert to the possibility that vehicles might unexpectedly emerge from adjoining roads and thereby create a dangerous situation ahead.

17. I am satisfied that the evidence fully entitled the deputy judge to come to the conclusions to which he did. For these reasons therefore, I would dismiss this appeal.

18. Fuad, VP: I agree that for the reasons given by my Lord Macdougall J. that the appeal should be dismissed.

19. Power, JA: I also agree.

(1) [1952] 2 Lloyd's List Law Reports 490 at 492

(2) [1949] AC 155

Representation:

Francis Eddis Q.C. and Mohan Bharwaney instructed by M/s Tong & Tsoi for 1st and 2nd Appellants

Mr. Malcolm Merry assigned by D.L.A. for the Respondent