Ho Shek Pang v. Lee Kwan Chuen and Another

CACV000033/1973

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CIVIL APPEAL NO.33 OF 1973

(On appeal from O.J. 1153/71)

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Coram: Huggins & Pickering, JJ.

Date of Judgment: 4th January 1974.

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JUDGMENT

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Huggins, J.:

1. This appeal arises out of a motor accident which took place on 14th May 1969 at about 5.30 p.m. at the junction of Castle Peak Road and Tung Chau Street. At the material time both these streets were one-way streets. The learned judge found, and this has not been challenged, that Castle Peak Road was manifestly the major road. It was a three-lane road. It appears from the plan which is before the court that of those three lanes one only was for traffic going straight ahead and two were marked for right turning traffic, but there is no evidence that the first Defendant in the action, who was the driver of a van coming from Tung Chau Street, knew that there were these signs. Similarly there is evidence that there was, at the exit of the eastern section of Tung Chau Street, a sign requiring traffic entering Castle Peak Road to turn left but there is no evidence that the second Defendant in the action, the driver of a bus in Tung Chau Street, knew that that sign existed, and the learned judge in his judgment expressly said that he was not satisfied that the sign in Tung Chau Street was known and therefore he attached no weight to it. What happened was that the first Defendant drove his van out of Tung Chau Street intending to cross right over Castle Peak Road into the western section of Tung Chau Street and that as he reached the middle of the junction his van was struck by the second Defendant's bus. The collision was a violent one, as appears from the fact that the van was carried some sixty feet or more broadside on on the front of the bus before the two vehicles came to a halt.

2. The Plaintiff was a passenger in the first Defendant's van and he suffered injuries to an extent which led to an agreement of damages at $47,000 subject to liability. The first Defendant in the action was in fact prosecuted for careless driving and pleaded Guilty, and in the action he admitted that he was guilty of negligence and was liable to pay damages but he contended that he was not solely to blame for the accident and said that the driver of the bus was a contributor to the damage suffered by the Plaintiff.

3. The learned judge appears to have found that the bus was travelling at about 30 m.p.h. at the time of the accident - this was in the urban area where there is a general speed limit of 30 m.p.h. and there is nothing in the evidence to show that the speed limit at this particular point was anything else. The bus was, at the time that the van emerged from Tung Chau Street, in the act of overtaking another bus. This other bus was a double-decker bus which had stopped at a bus-stop some 50 or 60 feet from the road junction. The bus which struck the van was a single decker bus and it was passing in the centre of Castle Peak Road. It was admitted by the first Defendant that he did not see this second bus until it was 40 to 50 feet away.

4. It is, I think, not material that the first Defendant had been warned of the danger of this crossing, because he admits his liability: the only question is whether the bus driver was in any way to blame for what happened. It is suggested that he was travelling too fast on this road. The learned judge took the view that 30 m.p.h. was not an unreasonable speed in all the circumstances. Counsel for the Plaintiff submits that it was unreasonable and he says that as the bus was approaching a side-road or a road junction it was wrong at all for him to be overtaking the bus because the Highway Code says that he should not overtake at all near a corner or road junction (Para. 28) and, secondly, he says that he should not have overtaken when his view was not clear unless at a speed which would have enabled the bus to stop before reaching the junction. It must be remembered that the double-decker bus had stopped and it was just starting again. It may be that in strict truth the second bus was "overtaking", but the double-decker bus must have been moving very slowly at the time that the manoeuvre began - if it was not in fact stationary at that moment.

5. It was suggested that because, as was apparently believed by the learned judge as it was given in evidence both by the Plaintiff and by the first Defendant, there was a second vehicle which came from Tung Chau Street and successfully completed the crossing which the first Defendant sought to carry out, coming right across Castle Peak Road into the western section of Tung Chau Street, and further because the bus driver ought at least to have seen that vehicle, that should have put him on enquiry as to whether there was another vehicle immediately following. With respect I cannot accept that as a sound argument: it may well be that there can be circumstances where a driver is put upon enquiry where a series of other drivers has done something which is either unlawful or unwise, but simply because one driver does something which is obviously unwise (and in this case the manoeuvre of the first vehicle may not have been unwise, because there is no evidence that the first crossing car caused any alarm at all in the mind of those travelling in Castle Peak Road) - but even assuming that he had, in my view it did not put the bus driver upon enquiry as to whether somebody else was following and going to do exactly the same thing. There were only the two cars coming out of Tung Chau Street.

6. That really, I think, is the substance of the appeal. In my view the learned judge was entitled to come to the conclusion, which he did, that the bus driver was under no obligation to slow down simply because he was approaching Tung Chau Street and he was not obliged in all the circumstances to stop until he had a clear view of the exit from that street.

7. That being so I would dismiss the appeal in so far as it affects the liability of the second and third Defendants, the third Defendant being the bus company who owned the bus driven by the second Defendant.

8. It was then also sought to attack the order for costs which was made in the action. The order appears to have been that the second and third Defendants, who were successful, should get their costs against the Plaintiff and that the Plaintiff should get the cost of his action against the first Defendant. We have been referred to the well-known case of Bullock v. London General Omnibus Co. 1907 1 K.B. 264 and it is suggested that the error which was made in the order for costs was that the first Defendant was not called upon to pay the costs which the Plaintiff was being obliged to pay to the second and third Defendants. Clearly application could have been made in the lower court for a "Bullock Order" but no such application, apparently, was made and in my view it is far too late for this Court to do anything about it, quite apart from the fact that the first Defendant is not before the Court.

9. That being so I would dismiss the appeal in so far as it relates to the order for costs.

4th January 1974.

Representation: