Cheung Wai Kuen v. Wong Man She

HCPI000845/2001

HCPI 845/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 845 OF 2001

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Coram: Hon. Seagroatt, J. in Court.

Dates of Hearing: 2 - 3 September 2002.

Date of Judgment: 26 September 2002.

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J U D G M E N T

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1.Shortly after 5 pm on 25 July 1999 the Plaintiff was riding his Honda 750 c.c. motorcycle along Sha Tau Kok Road towards Fanling. He was on his way to visit his sister in Sheung Shui. His case is as follows.

2.The road along which he was travelling is an ordinary two-lane, single carriageway, and is subject to a 70 k.p.h. limit. At that time general weather conditions were good. It was a summer Sunday afternoon and traffic was light.

3.As he approached the junction with Luk Keung Road on his nearside he saw a light coloured private car emerge from it onto Sha Tau Kok Road and proceed in the same direction as himself. There was also a public light bus in that junction as he went past it.

4.The Plaintiff continued his journey behind the private car at a distance which he estimated to be about four car lengths for about two kilometres. Oncoming traffic was also light. The private car was estimated by him to be travelling at about 50 k.p.h. and therefore since the distance between them remained constant, the Plaintiff must also have been travelling at about 50 k.p.h.

5.At some stage he decided to overtake the car. He commenced this manoeuvre at a time when there was no other vehicle preceding the private car and no oncoming vehicle. He checked his mirror for traffic behind him, signalled with his indicator, accelerated and crossed the broken central white line to effect the overtaking. He estimated his speed to be about 60 - 70 k.p.h. He was on a long straight stretch of road and this is confirmed by the scale plan but more particularly by the photographs taken at the scene on the day of the accident.

6.Along this straight stretch of road, on the Plaintiff's offside, is a narrow turning to Tai Long Tsuen. It is a concrete road, rather in the form of a wide pathway leading to the settlement. It appears to be just wide enough to carry a single line of traffic.

7.He had reached a point alongside the Defendant's motor car in the overtaking manoeuvre, when there was a gap of about a metre between them and he was near the driver's door. Shortly afterwards, according to the Plaintiff, the car moved to its offside and struck the motorcycle. Although the Plaintiff braked and swerved he lost control and he and his machine fell, and slithered along the road surface.

8.It may be helpful to look at the Plaintiff's description of events as they appeared in his statement to a Police Officer made a little over two months later whilst he was in hospital. He had been unconscious for some time and had undoubtedly been seriously injured. That statement is entirely consistent with his proof of evidence prepared for the purpose of this trial (and with the evidence he has given to me). In the Police statement he had also said that he judged the conditions to be safe so he overtook. In retrospect he believed the Defendant wanted to turn right. There was no right turn signal from the Defendant's vehicle, and he was very familiar with the road in question.

9.The Defendant also made a statement to the Police, on 3rd August 1999 just over one week after the accident. He described his speed as being about 50 k.p.h. There was no vehicle in front of him but he was aware of a private car behind him. When he was about four car lengths from the turning to Tai Long Tsuen he braked slowly down to 20 k.p.h. There was no oncoming vehicle. He put his right turn indicator on slowing further to 10 k.p.h. He then turned toward the entry lane with the front of his car pointing towards the entrance. He continued to turn and then heard the sound of heavy braking. He saw the motorcycle crash into his offside. The additional details of significance are that on turning, he said he looked into his offside mirror and saw no vehicle before he turned. He did not turn his head to look back.

10.The Police Officer recording his statement also drew a plan incorporating the details described by the Defendant. This plan shows the Defendant's vehicle in five positions. Neither of the first two positions shows his vehicle in a position close to the centre of the road as if preparing to turn right. The third position shows his vehicle occupying the offside lane with the front of the vehicle facing, albeit at an angle, into Tai Long Tsuen. The fourth and fifth positions represent what he said was the course followed by him after the collision when he swerved and returned, it appears, to the Fanling bound lane facing Fanling. To the rear of his vehicle's first position he has described a private car followed by a public light bus, another car, and yet another behind that. The course of the motorcyclist is described as being on the offside lane striking the Defendant's car as it was in the position described earlier. That plan was of course prepared when the statement was taken one week later.

11.The Defendant had also given an oral explanation at the scene very shortly after the collision in which he said:

"At the time I was driving ... at the speed of about 25 k.p.h. Because I was intending to turn right into Tai Long Tsuen ... I didn't know that there was a motorcycle behind me going against the flow of traffic overtaking. Therefore it crashed into his motorcycle."

The latter part of that statement has had its English translation improved with the assistance of the interpreter.

12.What is immediately noticeable is that there is no reference to his having given a signal of his intention to turn right nor of his being aware of any traffic following behind him. It is clear that he was saying that he was quite unaware of the Plaintiff's presence on the road.

13.I turn now to his evidence before me. He was travelling with his wife and two children in the car along the main road at about 50 k.p.h. intending to turn into Tai Long Tsuen. He slowed down to 10 k.p.h. and confirmed, as was entirely logical, that any vehicles following close behind him would have had to slow down as a consequence of his significant reduction of speed. Those vehicles he said included a red motor car and a public light bus. As he started to slow down he was using his indicator and checking his internal and external mirrors for rear vision. When questioned about the speed recorded by the Police Officer at the scene he denied saying that it was 25 k.p.h. and stated that he had told the officer that there was a red car and a minibus behind him.

14.Although he appeared to suggest that the diagram of the positions of his vehicle as drawn by the Police Officer were inaccurate, he in fact drew an almost identical diagram on another plan, to represent the position of his vehicle at the time of the collision (Exh. P5).

15.When he put his indicator on he said he was approximately at the position of the bus stop (just visible in photograph p. 123A with the aid of a magnifying glass). At that time he saw only the private car and the minibus behind him. It was apparent that he was saying that he did not see the Plaintiff's motorcycle until a second, or less, before impact.

16.I had some difficulty in understanding his explanation for the final position of his vehicle in the light of the position of the vehicle drawn by him, on impact. In view of his evidence that he was facing into Tai Long Tsuen, though at an angle, his explanation that he swerved to his left on or shortly before impact and then straightened up, to face Fanling was unconvincing. Having regard to the positions of the Defendant's car as represented on the plan drawn by the Police Officer on the Plaintiff's description, I find that the final position of the Defendant's vehicle is more consistent with the course described by the Plaintiff.

17.The scale plan prepared by one of the Police Officers from measurements recorded on a sketch plan made at the scene records a number of important features (Exh. P2). The final position of the Defendant's vehicle is more or less how the Defendant himself depicted it, in the middle of the Fanling bound lane about 5 metres on the Fanling side of the Tai Long Tsuen lane with the motorcycle a further 30 - 32 metres nearer Fanling in the opposite lane. The tyre mark from the motorcycle is 10.1 metres long, commencing almost in the middle of the offside lane and curving gently towards the offside. It starts about 13 metres before the mouth of the Tai Long Tsuen lane. The likely course of that vehicle is wholly inconsistent, I find, with the Defendant's version of events. The motorcyclist was put in difficulties some time before the timing suggested by the Defendant and this is consistent with the Defendant veering towards his offside without warning.

18.Counsel for the parties have put before me an extract agreed by them from a report from an automobile engineer, a Mr S. Lingard. None of the contents is surprising. They are in the main statements of opinion following a consideration of paper evidence and do not constitute expert evidence. I have had the advantage of seeing and hearing the witnesses. An estimate is given of the speed of the motorcycle as a range with a number of uncertainties to allow for that range. The estimate is 67 - 78 k.p.h. Mr Kwok's estimate of the speed of the motorcycle was that it was in excess of 50 k.p.h. Suffice it to say that I do not consider that the speed was excessive or that it played any part in this collision. On the reliable available evidence the speed of the motorcycle was about 40 - 45 m.p.h.

19.How then did this accident happen? I have found the Defendant's explanation unconvincing in a number of respects. In short I do not accept his evidence. The details of following traffic supplied by him to the Police Officer who drew a sketch plan attached to his statement, are in fact a contrived, retrospective explanation to fit in with other evidence of which he must have heard and which he was able to put into an equation one week after the accident. If he had really been aware of such traffic, and it been following him at the distance he suggested, he would have made some mention of it at the scene to the Police Officer. If he had given a signal when he was at or near the position described by him and slowed down appreciably, traffic directly following him - as described in the sketch plan - would have had to slow down accordingly. This slowing down process and the consequent inevitable narrowing of the gaps between following vehicles would have been apparent to the drivers of all such vehicles.

20.It is against this picture that the evidence of Mr Kwok, the off-duty Police Superintendent, must be seen. He had come onto the Sha Tau Kok Road from Ka Leung Road, a junction illustrated by some of the photographs. In front of him was a public light bus. He continued to follow that vehicle without any attempt to overtake it as they proceeded in the direction of Fanling. Their speed was about 50 k.p.h.

21.He was aware of a motorcyclist overtaking his vehicle and continuing to overtake the light bus. Its speed did not appear remarkable and the position it occupied was to the right of the central road marking and therefore on the offside of the carriageway. Later, - he was able to say that it was a matter of seconds - he came across the scene of the accident. Although he could not be sure that the motorcyclist involved was the one he had seen overtaking him and the light bus, it is in my view virtually unarguable. They were one and the same. What is particularly and significantly clear from his statement and evidence is that he was not aware of any braking of the preceding vehicle in turn causing him to brake before he came upon the accident. Nor does he make any mention of a reduction of speed to 25 k.p.h. or less. This clearly supports the view that his vehicle and the public light bus preceding him were sufficiently distant from the Defendant's vehicle as to be entirely unaffected by whatever slowing down or other manoeuvre it made, preparatory to its right turn. I think he is also mistaken about the time estimate.

22.Of course the Plaintiff's version does not square entirely with Mr Kwok's evidence. Although I found the Plaintiff's evidence, given as it was in a moderate and candid manner, convincing, I think the Plaintiff was mistaken as to the position of the public light bus when he passed it. I find, as Mr Kwok said, that it was already on the main road when he passed it, and that he must already have passed Mr Kwok, also on the main road but very soon after both had emerged onto that road from the junction. It is highly likely that the trauma of the accident has distorted his recollection. Because of the gap that separated the Defendant's vehicle from the following vehicles, whatever they were if additional to the public light bus, and Mr Kwok's car, such traffic was relatively unimportant to him.

23.Although Mr Kwok referred to the public light bus as having stopped in front of him when he came across the accident, he paid no further attention to it despite the fact that if the collision had occurred only a few seconds after the motorcyclist overtook Mr Kwok's car and the public light bus, the driver of that bus must have had a grandstand view of what took place. It is nonetheless an odd feature of this accident that the Police took no steps to try and trace that bus and its driver. Given the route, the scene and the time it would have been surprising if the driver could not be traced. Mr Kwok was also vague about the public light bus when he said that he could not recall whether it had emerged from Luk Keung Road in front of him or whether it had been on Sha Tau Kok Road all the time. He appeared to be somewhat unversed in Road Traffic Accident requirements.

24.I have concluded that the Plaintiff had passed those two vehicles, as Mr Kwok described, but some time before he came up behind the Plaintiff's vehicle. This is consistent with the evidence of Mr Kwok and the proper inferences as to time to be drawn from it.

25.The Plaintiff, I find, began his overtaking of the Defendant's car as he himself described, by going to the offside of the road. He was giving the Defendant's car a reasonable clearance but suddenly that car began to veer to the centre of the road and gave no signal of his intention. The reason for this may have been there was no oncoming traffic for the Defendant to warn and, more importantly, no following traffic within his immediate sphere of vision to alert to his intention with the exception of the Plaintiff. He never saw the Plaintiff until probably fractionally before impact.

26.That impact was a glancing impact consistent with the minor damage to the offside lower wing, just short of the offside front wheel. The effect of that impact was to cause the Plaintiff to lose control of his motorcycle. It left a tyre mark recorded by the Police Officer on the plan, as the Plaintiff braked and struggled to control it. Eventually he and his motorcycle parted company. The motorcycle itself sustained only minor damage. That again was entirely inconsistent with a positional impact described by the Defendant.

27.When the Defendant realised what had happened he was nowhere near the position described by him to the Police Officer and recorded on the plan i.e. facing almost directly into Tai Long Tsuen. Had his vehicle been in that position at impact, it is inevitable that the motorcycle would have caused considerably more damage to the car than in fact resulted. Instead the Defendant continued to drive his car along the Fanling bound lane moving back to the centre of the lane, away from the centre of the road. Hence, the position in which the Defendant's vehicle was seen by the Police Officer who attended the scene and spoke to the Defendant. The final position of the motorcycle is also consistent with the Plaintiff's account but not consistent with the Defendant's version.

28.The responsibility for this accident lies largely with the Defendant. He was negligent in failing, as I find, to give a signal indicating his intention to turn right. He failed to see the Plaintiff's motorcycle. He ought to have seen him. He was there clearly to be seen. In any event, the colour of his machine was unmistakable. I have some suspicion that when the Defendant referred to a red car immediately following him, he has consciously or unconsciously transposed the colour of the Plaintiff's motorcycle to an imagined closely following car. The Defendant knew this road well enough. I do not think that the fact that his family was in the car is a factor giving rise to the likelihood of extra care on his part. Regrettably motorists often fall short of the standards of care which could reasonably be imputed to them in theory, and based of the need to have regard for one's passenger. In his familiarity with this junction, he was approaching it without a proper adjustment of speed and position, relying on last minute braking and a sharp swing into the mouth of the side road. This too is not an unknown shortcoming of motorists.

29.The Plaintiff himself should not have attempted to overtake on this stretch of the road. He knew this road equally well. Whilst there was no oncoming traffic to inhibit him, the presence of the junction was itself the inhibiting factor. He should have been prepared for the chance or risk that stupidly careless motorists would attempt to turn into such a road without a signal or proper positioning and adjustment of speed. The use of the horn is often sensible in such circumstances if only to make the driver of the vehicle aware of his position and intention to overtake. I bear in mind that a motorcycle is much narrower than a car, and the position on the offside lane when overtaking calls for proper care on the part of the driver of the overtaking vehicle. The overtaking vehicle must thus be prepared for a predictable lack of care on the part of vehicles being overtaken, particularly on the roads of Hong Kong.

30.I have concluded that the Defendant must bear 60% and the Plaintiff 40% of responsibility for this collision.

31.There will therefore be judgment for the Plaintiff with costs for 60% of damages to be assessed.

Representation:

Mr N. Pirie, instructed by Messrs. Joseph Li & Co., Solicitors for the Plaintiff.

Mr John Bleach, S.C., and Mr A. Sakhrani, instructed by Messrs. Fok & Johnson, Solicitors for the Defendant.

Remarks:

Appeal by the Plaintiff and Cross-appeal by the Defendant to Court of Appeal. Both appeal and cross appeal dismissed. Please refer to the appeal judgment of CACV000415/2002.