Ho Wing-cheung v. Liu Siu-fun

CACV000096/1979

Coram: Roberts, C.J., Cons, J.A. and Yang, J.

Date of Judgment: 30 April 1980

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JUDGMENT

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Introduction

1. The appellant, HO Wing-cheong, who was the defendant in the action, appeals against a judgment which -

Facts

2. The claim arose out of a collision, on the 30th October, 1977 between a Ford Capri motor-car, driven by the third plaintiff, and a Datsun motor-car driven by the defendant.

3. The accident occurred at about 9 p.m. in the evening on Wongneichong Road in Happy Valley. This is a one-way road with three lanes, the middle of which contains tram tracks The weather was fine; the road was dry; and the street lights were switched on.

4. The car driven by the third plaintiff was travelling along Wongneichong Road in the right-hand lane. The defendant drove his car onto the road from a parking area, which is to the right of that lane and opposite to the junction of that road with Broadwood Road.

5. The right-hand front wing of the car driven by the third plaintiff struck the left-side of the defendant's car, more or less where the bonnet joined the front door of the car. The Commissioner found that the defendant's car was well onto the road when the collision occurred.

6. The defendant was convicted of careless driving on the 28th April, 1978 in relation to this collision. Evidence of such conviction is admissible to establish negligence on the part of the defendant. The defendant gave no evidence at the trial and the Commissioner found that he was negligent.

7. The only substantial issues before the Commissioner, therefore, were those of contributory negligence and the quantum of damages.

Contributory negligence of third plaintiff

8. The first of the two main grounds argued on the appeal was that the Commissioner was wrong in coming to the conclusion that the third plaintiff was not guilty of contributory negligence.

9. Counsel for the appellant conceded that, on general principles, an appellate court should not interfere with the findings of fact of a trial judge, unless it can be shown that the judge did not take into account circumstances and evidence to which he should have given weight, or misunderstood some of the evidence, or drew an inference which there was no evidence to support (see Lofthouse v. Leicester Corporation⁽¹⁾. However, he argued that this was a case in which it was proper for an appellate court to interfere, on the ground that the judge had failed to reach findings of fact at all on three important issues -

(a) The Commissioner does not deal with this aspect of the evidence in direct terms. This is not surprising since the case was conducted by counsel for the defendant on the basis that the negligence of the third plaintiff consisted of driving at excessive speed and failing to swerve; not that he failed to keep a proper look-out. Nor was this one of the grounds of the supplementary Notice of Appeal.

10. It was unnecessary, therefore, for us to consider this ground further. Had we been obliged to do so, we would have had no difficulty in deciding that, inherent in his conclusion that the third plaintiff was guilty of no contributory negligence, must have been a finding by the Commissioner that the third plaintiff was not guilty of such a failure to keep a proper look-out as should have attributed to him a share of the fault for the accident.

(b) We do not think that the Commissioner can be fairly criticized for failing to come to a finding as to the speed of the Ford car driven by the third plaintiff. The Ford left a brake mark of 45 feet, which is the distance given in the Highway Code as the braking distance of a car travelling at 30 m.p.h. However, the Ford did not stop at the end of the brake mark but struck the defendant's Datsun with some force. Whilst the Commissioner concluded that the Ford was travelling at more than 30 miles per hour, he was unable to say by how much. On the evidence before him, this seems to us to be a reasonable and sensible finding, particularly as the defendant gave no evidence.

11. The Commissioner rightly observed that travelling in excess of the speed limit is not negligence per se and found that there was no evidence that the speed at which the car was travelling was negligent in the circumstances.

(c) The Commissioner found that the third plaintiff's failure to swerve in the agony of the moment did not amount to negligence. This is a finding of fact with which we are not prepared to disagree.

12. It must be remembered that the car driven by the third plaintiff was on a main road and that any vehicle seeking to enter it from a parking area was obliged to give priority to vehicles already on the road.

13. The defendant's car was driven onto the road in the path of the third plaintiff's oncoming vehicle. It would be for the defendant to displace the heavy burden which must necessarily lie upon him in such circumstances. We see no reason to disagree with the Commissioner's conclusion.

Contributory negligence - wearing of seat belts

14. The first plaintiff, who was sitting in the front seat of the car, which was owned by her but driven by the third plaintiff, suffered substantial facial injuries. It was submitted, both during the trial and before us, that any damages awarded to her should be reduced because she had been guilty of contributory negligence, by reason of her failure to wear a seat belt.

15. The leading English authority is Froom v. Butcher⁽²⁾, in which the plaintiff, who was not wearing a seat belt, suffered head and chest injuries which he would not have sustained had he been wearing one.

16. The Court of Appeal decided that, in determining whether an injured person has been guilty of contributory negligence, the question to be asked is not "what was the cause of the accident" but "what was the cause of the damage". If a person's injuries are due to his failure to wear a seat belt, he is guilty of contributory negligence and there should be a reduction in the damages awarded to him. The court suggested that the reduction should vary between 15% and 25%, according to whether the injuries sustained would have been less severe or avoided altogether had a seat belt been worn.

17. The principles on which this decision was based can be derived from the following passages from the judgment of Lord Denning, M.R. -

18. Froom⁽²⁾ thus establishes that a man of ordinary prudence in England would take the precaution of wearing a seat belt, where this is available. Should the same test be applied to Hong Kong?

19. By virtue of the Application of English Law Ordinance (Cap. 88), the common law is in force in Hong Kong, so far as applicable to the circumstances of Hong Kong or its inhabitants.

20. Tortious liability is a subject which has been developed mainly at common law. The decision in Froom⁽²⁾, that a man of ordinary prudence would wear a seat belt, expounds common law. It therefore becomes also the law of Hong Kong, unless it can be said that it is a rule which ought not to be applied to Hong Kong, because the latter's circumstances are so different to those of England that the rule should be modified.

21. Are we prepared to say that a man of ordinary prudence in Hong Kong would act differently, in relation to the wearing of seat belts, to his counterpart in England?

22. We should make it clear that we are not talking about what the average man actually does. We are prepared to accept the submission of counsel that many drivers and passengers in Hong Kong do not fasten seat belts, even when these are fitted in the vehicles in which they are travelling. We are concerned with what, as a matter of prudence, the average mar ought to do.

23. In general terms, motoring in England and Hong Kong is similar. In both places, we find the same kind of motor vehicles; they operate in not dissimilar road conditions; the laws governing driving are similar; drivers in both countries probably display the same degree of skill.

24. In Froom⁽²⁾, Lord Denning commented on the wearing of seat belts as being a sensible practice in the following terms -

"Seeing that it is compulsory to fit seat belts, Parliament must have thought it sensible to wear them. But it did not make it compulsory for anyone to wear a seat belt. Everyone is free to wear it or not, as he pleases. Free in this sense, that if he does not wear it, he is free from any penalty by the magistrates. Free in the sense that everyone is free to run his head against a brick wall, if he pleases. He can do it if he likes without being punished by the law. But it is not a sensible thing to do. If he does it, it is his own fault: and he has only himself to thank for the consequences."

We think that these comments are equally apposite in Hong Kong. While many people here, as is doubtless the case in England, fail to wear seat belts, this does not make such failure any more sensible. The Highway Code in force in Hong Kong contains the following paragraph -

"15. Seat belts can save your life or prevent serious injury. Use them even on short journeys."

25. Section 7(4) of the Road Traffic Ordinance provides that a failure of any person to observe any provision of the Code may be relied upon as tending to establish or negative liability in any proceedings.

26. If a motorist were warned that, within the next few minutes, he was going to be involved in a collision, surely if he were a prudent man he would immediately fasten his seat belt. The reluctance of many drivers to do so is an indication of their belief in their invulnerability on the road, rather than of disagreement with the proposition that the use of a seat belt is a sensible precaution.

27. It must be obvious to any normal person that some injuries, among them facial damage of the kind involved in this case, could be prevented or reduced by the wearing of a seat belt.

28. Froom⁽²⁾ decides that a man of ordinary prudence in England would wear a belt. We are not prepared to say that a prudent man in Hong Kong is less prudent, or less able to grasp the obvious, than his counterpart in England.

29. Some argument was addressed to us on the comparative amount of publicity given, with regard to the desirability of wearing seat belts, in England before the accident considered in Froom⁽²⁾ and in Hong Kong before this accident.

30. It was argued that there was a difference, and a vital difference, between the two situations because prior to the accident considered in Froom⁽²⁾ the United Kingdom authorities had already commenced a vast publicity campaign to emphasize the desirability of wearing seat belts, whereas in Hong Kong, so it was said, little or nothing has been done at any time.

31. We cannot accept that argument. Publicity cannot change the nature of its subject. An act does not become an act of prudence merely because a Government agency says that it is wise, any more than a particular brandy improves in quality merely because the television constantly extols its virtues.

32. It is for the courts to decide, in negligence actions, whether a particular course of conduct is prudent or imprudent. We have no hesitation in saying that the wearing of a seat belt, in any car in which this is available, is a practice which a man of ordinary prudence should observe. If he does not do so, he is at least partly to blame for the consequences of his failure.

Conclusion

33. We therefore conclude that the first plaintiff was guilty of contributory negligence in relation to her injuries though not in relation to the negligence which caused the collision. The medical evidence is that she might have suffered some injuries from flying glass, if wearing a seat belt, but no more.

34. Taking this into account, we think that her share of responsibility for her injuries should be assessed at 20%, which was the figure submitted by counsel for the appellant.

35. To what damages should this reduction be applied? The general principle, which is derived from Froom⁽²⁾, is that it should be applied only to such injuries, and the consequences therefrom, as could have been prevented by the wearing of a seat belt.

36. Among the items of special damages were sums for the damage to the motor-car owned by the first plaintiff, towing and storage charges and damage to clothing. We assess these sums at $15,000.

37. The reduction in the award to the first plaintiff should be 20% of the figure reached by deducting $15,000 from the total of general and special damages.

38. The appeal is therefore allowed to the extent indicated. The appeal of the defendant against the dismissal of his counterclaim is dismissed as is his appeal against the dismissal of the third party proceedings.

Representation:

Ching,Q.C. & W. Lane (Robert W.H. Wang & Co.) for appellant

Bokhary & W. Yeung (P.H. Sin & Co.) for respondents

(1) (1964) T.L.R. 604.

(2) (1976) Q.B.D. 286