Choi Sing Tong v. Attorney General and Others

HCA001938/1972

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

ACTION NO. 1938 OF 1972

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Coram: Briggs, J. in Court

Date of Judgment: 12th March, 1973

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JUDGMENT

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1. This case arises out of an accident which occurred between a Fire Engine and a motor bus in King's Road on October 25th 1970. The writ was not issued until July 29th 1972.

2. The Plaintiff was at the time a fireman travelling, as was his duty, as one of the crew of a Fire Engine. As a result of the collision he was knocked from his seat, which was on the rear left hand side of the Engine, to the ground. In consequence he received certain injuries for which he claims damages.

3. The Plaintiff and the driver of the Fire Engine were Government servants, and were on duty at the time of the accident. The Plaintiff's claim is brought against the driver of the Fire Engine, Wong Hau Chuen and the Attorney General, and against the driver of the motor bus, Wong Siu Hung and his employer, the owners of the bus, The China Motor Bus Company Ltd. The Plaintiff's case is that either one or other or both of the two drivers were negligent resulting in his being swept off the Fire Engine and so injured. There is no question of any contributory negligence on the part of the Plaintiff in this case.

4. In his defence the driver of the Fire Engine, blames the driver of the bus for the accident. The driver of the bus contented himself with a denial of negligence in his defence, but in court his case was that it was the driver of the Fire Engine who caused the accident. It is admitted that the Plaintiff and the driver of the Fire Engine were Government servants and that the China Motor Bus Company was the owner of the bus and the employer of its driver.

5. The scene of the accident was the cross roads where King's Road crosses Healthy Street East. King's Road is a major road running east to west and west to east, carrying two lanes of traffic in either direction with a double set of tram tracks in the centre in addition. Healthy Street East is a minor road, running at right angles to King's Road namely north to south and south to north. Two sets of excellent photographs were exhibited which show that King's Road curves to a driver's left a few yards before the cross road as one travels eastwards.

6. The North Point Fire Station is situated some way down the northern part of Healthy Street East. To reach King's Road from the station you must first cross over Java Road which runs roughly parallel to King's Road. After crossing Java Road the next road that you reach is King's Road.

7. At the time of the accident there were traffic lights at the Java Road cross roads and at the King's Road cross road. These were installed for the benefit of the Fire Brigade and were controlled by a switch operated from the Fire Station.

8. As you enter King's Road from the north part of Healthy Street East there were lights on each side of Healthy Street East. On the north east corner was a single green light which faced down Healthy Street East i.e. in the direction of the Fire Station.

9. There was a second light in the other corner of that part of Healthy Street East. This consisted of an iron post at the top of which were two lights and an alarm bell. The lights faced down King's Road in either direction and showed a red light.

10. There was also another light on the south east corner of King's Road controlling traffic going westwards.

11. The court did not pay a visit to the scene of the accident because the lights which were installed at the relevant time have been replaced by other lights of a different design.

12. When a call was received in the Fire Station requesting a Fire Engine, the light switch would be switched on and the lights would be illuminated and the alarm bell would be set off. A Fire Engine proceeding down the northern part of Healthy Street East would first pass the green lights at the Java Road cross roads, then at the junction of King's Road he would see a green light to his left, and a red light to his right. Any traffic proceeding down King's Road towards the East would see the red light at the junction of the road with Healthy Street East and possibly would hear the alarm bell. All this sounds very complicated, but a glance at the photographs which were produced in Court makes the position clear.

13. Two different versions were given of the accident, one by the Plaintiff and the first defendant and his witnesses; the other by the second defendant, the driver of the bus.

14. The Plaintiff's case is as follows. An emergency call was received in the North Point Fire Station at about 10 a.m. on October 25th 1970. The Fire Engine, which was driven by the first defendant, Wong Hau Chuen, and of which the Plaintiff was a crew member, was detailed to answer that call. An ambulance was also so detailed. The call was to the effect that some people had been trapped in a lift in a building nearby in King's Road.

15. A fireman named Lam Cheung Kuen, who was called as a witness by the first defendant, was on duty at the time in the Fire Station. His duty included the control of the switch which controlled the lights in Java Road and King's Road. He told the Court that he switched on the lights before the Fire Engine left the Station. Later, after he had heard of the accident, the switch was still turned on. After the accident he switched it off. Normally he said, a fireman stands on duty outside the Station and informs him when a Fire Engine answering a call has passed the corner of King's Road. This did not occur on the occasion of the accident because of the accident. He was told to switch off the lights after the accident by his superior officer.

16. The crew of the Fire Engine consisted of the first defendant, the driver and six other firemen, of whom the Plaintiff was one. There was a siren on his vehicle which was working and there was a red flashing light working also on his vehicle. He switched both of them on as the Fire Engine left the Station. He saw the light at the junction of Java Road and Healthy Street East was showing a green light in his favour and he passed it. When he reached the corner of King's Road his intention was to cross over the first half of the road and to turn to his right, i.e. to proceed down King's Road in a westerly direction. He saw the light on his left side at the junction of Healthy Street East with King's Road was showing green in his favour. He slowed down in order to cross the road and looked to his right. He heard the alarm bell which was ringing to his right and he noticed some traffic in the road which was stopped at or near to the light which supports that alarm bell. In particular he noticed what he called a "P.W.D. vehicle" there. On the opposite side of the road he saw that traffic proceeding westwards had stopped to allow him to pass.

17. The witness said he then accelerated a little as he crossed the road and it was then he saw a bus proceeding down King's Road towards the East in the middle lane. His vehicle was at the point of crossing the tram tracks for westbound traffic - that is the second set of tracks, those laid to the south - when the collision occurred. The fireman's ladder carried aboard the vehicle was dislodged and came crashing to the ground sweeping off the firemen sitting on the left hand side of the Engine, including the Plaintiff, who was rendered unconscious. The front of the bus came in contact with the rear right wheel of the Fire Engine and both vehicles were damaged.

18. The witness said that his flashing light and the siren were both working. He himself received a hit on the head and was also rendered unconscious.

19. It is of importance to note that the driver of the Fire Engine said that he did not stop his vehicle when entering King's Road from Healthy Street East, but he slowed down and only accelerated again to make his turn to his right. He is an experienced driver, and was aware of the traffic conditions which obtain at that spot. He came out into the road at about 7 m.p.h. and accelerated to 10 m.p.h. And he frankly admitted that he expected the traffic to stop, to obey the light signal.

20. The Plaintiff gave evidence corroborating that of the driver of the Fire Engine. He said that the flashing red light and siren were working: that the traffic lights were working also. He saw both the green light on the left hand side and the red light on the right hand side of the junction as the Fire Engine entered King's Road. Both were illuminated, the one in the left green in favour of the Engine the one in the right red to stop traffic proceeding eastwards in King's Road. He also heard the alarm bell. The Plaintiff did not see the bus. He was suddenly flung from his seat in the Fire Engine into the road and rendered unconscious.

21. As I have said, the driver of the Fire Engine said he saw a P.W.D. vehicle as he entered King's Road. Later he described it to be a U.S.D. road-sweeping vehicle. The first defendant called one, Yip Pak Yung, who said he was a driver of such a vehicle, with which he was sweeping the inside lane of King's Road proceeding towards the east at about the time of the accident. His vehicle was proceeding at a very slow speed. When he reached the junction of King's Road and Healthy Street East he stopped because the red light was against him. He heard the alarm bell ringing. At that time he did not see any Fire Engine.

22. This witness, like the two drivers of the vehicles involved in the accident, knew the location of the Fire Station in Healthy Street East. Very shortly after he had stopped, he heard a siren as if from a Fire Engine. A Fire Engine came out into the road in front of him and began to cross King's Road, when a bus, travelling in the middle lane collided with it. He estimated the speed of the bus to be about 20 m.p.h. He said that the Fire Engine's siren and red flashing light were both working. He remained there for some time after, and was then moved on by the Police. He saw some photographs being taken. However the photographs before the court do not show his vehicle.

23. The version of the accident given by the second defendant is very different. He said he was travelling down King's Road in an easterly direction in the middle lane. He was on duty in the normal way and there were passengers in his bus. He said he saw the Fire Engine came out of Healthy Street East very quickly so he applied his brakes, both his hand and his foot brakes. Then he said the ladder of the Fire Engine swung against his windscreen smashing it. It also pushed off the members of the crew of the Fire Engine to the ground. He said his bus had actually come to a halt before the collision occurred, the side of the Fire Engine hitting the radiator of his bus.

24. The second defendant said he did not hear any bell or siren. He was aware of the position of the lights and looked to see if they were on. They were not. Nor did he see an U.S.D. vehicle to his left. He also said that there was no flashing light on the Fire Engine. And that the traffic going westwards was not stopped at the time.

25. Later he agreed that the bus was NOT at a standstill when the collision occurred. Why he ever said it was is a mystery, for the most eloquent evidence that it was the bus which hit the Fire Engine, rather than the Fire Engine that hit the bus is provided by the photographs of the two vehicles which were taken immediately after the accident. Nor could the damage to the windscreen of the bus have been caused by the ladder being swept off the Fire Engine. The photographs show that it fell off the Fire Engine away from the bus, not towards it.

26. As to the speed of the bus, the driver says he was travelling at about 22 m.p.h. when he braked. In the not very helpful sketch map some marks are drawn which the police officer who made the sketch took to be skid or brake marks. There was conflicting evidence about this but I do not think that it is very material.

27. I accept without reservation the evidence given by the Plaintiff, the first defendant and his witnesses. In particular the evidence of the driver of the U.S.D. vehicle. He gave his evidence carefully. He knew there was a bus station in Healthy Street East, saw the red light, heard the alarm bell and the siren and saw the collision. I regard him as an independant witness and I can see no reason why he should lie to the court.

28. It is true that his vehicle is not shown in the photographs produced. This is not surprising. The photographer, an employee of the third defendant, gave evidence that he took photographs at two different periods. He took some upon his arrival at the scene and some later. But the former photographs do not show the corner where the U.S.D. vehicle had halted, if indeed it was still there when he arrived. The U.S.D. vehicle did not stay there long after the accident, as he was blocking the traffic.

29. Witnesses called by the second defendant and he himself said they saw a U.S.D. van in a different part of King's Road. Ng Man Kai said he saw one after the accident. The second defendant saw one before the accident but further to the west. This may well be so. However I accept Yip Pak Yung's evidence that he was where he said he was at the time.

30. I also accept the evidence that the siren was working and the red light flashing. And I find as a fact that the street lights were working.

31. I reject the evidence of the second defendant. I do not think he was paying proper attention. And I do not think he looked to see if the red light was illuminated. Also he must have heard the siren and seen the Fire Engine.

32. Near to the scene of the accident are the offices and some staff quarters of the third defendant, the China Motor Bus Company. The accident occurred in a Sunday morning. Very soon after the accident various members of the company staff arrived at the scene and examined the situation. It was noticed that at that time the light at the corner of Healthy Street East was not working though the alarm bell was, according to Mr. Reece, in a somewhat subdued manner. This may be so but this was after the accident. It is the state of the lights at the time of the accident which matters. At 11.40, later that morning, a police inspector, Tan Kwok Wing tested the lights and found them working. I do not think that this carries the matter any further.

33. In my view it has clearly been established that the cause of the accident was that the driver of the bus failed to see the red warning light and to hear the siren. He did not stop his vehicle and this was the cause of the accident. I accept the evidence of the driver of the Fire Engine as to the manner in which he manoeuvred his vehicle and I do not think that his conduct contributed to the accident in any way.

34. But the matter does not end there. Mr. Mills-Owens, Counsel for the second and third defendants, the driver of the bus and the Bus Company, put forward a most ingenious defence. This was not pleaded.

35. The defence is this: that the traffic lights with which we are here concerned were traffic lights which were placed in position without statutory authority. Therefore the driver of the Fire Engine cannot rely upon the fact that they were there, and were illuminated in his favour. Their existence must be ignored. The result is that the driver of the Fire Engine should have stopped when he came out of a minor road into a main road, and should only have proceeded when it was safe to do so, not paying attention to any of the actual traffic lights which were there.

36. In addition, the driver of the bus cannot be faulted for proceeding down King's Road at a proper pace despite the fact that there was a red light against him, that being a light placed there without statutory authority. Of course the driver said there was no such light showing red, but I have rejected that part of his evidence.

37. So far as it went, the evidence was that the lights in question were installed for the Fire Brigade. Their sole usefulness was to enable Fire Engine from the North Point Fire Station to be given priority over traffic in King's Road.

38. The subject of traffic lights is governed by the Road Traffic (Roads and Signs) Regulations. These regulations permit the Commissioner for Transport to erect traffic signs, which include light-signals. And they must be "prescribed traffic signs". The regulations prescribe such signs with diagrams and illustrations.

39. Regulation 11 prescribes the type of traffic signals - i.e. traffic lights, with great particularity. It provides for traffic signals of three or of two lights. If there are three lights they must face the same way vertically: there are the ordinary traffic lights: red, amber and green. If there are two lights they must also face the same way: they must be flashing red lights and be horizontal.

40. A photograph was shown to the court of the light in question in this case: i.e. that which was in the south east corner of Healthy Street East and King's Road. It has only one light: not three or two: it was not an intermittent light either: though I understand that the newly installed lights are of a prescribed pattern.

41. Despite the provisions of Regulation 11 of the Roads and Signs Regulations, Regulation 5(4) provides as follows:-

"A traffic sign placed on or near a road shall be deemed to be a prescribed traffic sign and to have been lawfully so placed unless the contrary is proved, and the fact that a traffic sign differs slightly in size, colour or type from a prescribed traffic sign shall not prevent such traffic sign from being a prescribed traffic sign so long as the general appearance of the sign is not thereby materially impaired."

The defence in this case did not prove that the light had not been lawfully installed. All that was said was that the light was there for the better working of the Fire Brigade. The second half of the sub-regulation is more important. There is no question here of the light in question being just a little different from the lights prescribed by the regulation, it is a totally different type of light from those so prescribed. It is obvious that the light was not a prescribed light.

42. This is not a criminal case. If a driver was charged with jumping a red light and could prove that that light was not a light prescribed under the regulations he would have a good defence. But we are here faced with a civil case.

43. I find all this rather unprofitable. I do not think that a driver can ignore a red warning signal whether that signal was placed in position by the proper authority or not. On many occasions red lamps are placed in the road way, when, for example, it is intended to warn persons that repairs are in progress or are going to be in progress. Such red lamps are warnings and a driver must pay regard to them no matter who put them there.

44. Similarly if an ordinary member of the public signals to a driver to slow down the driver must pay heed to such warning. He ignores it at his peril. He cannot murmur to himself 'that fellow has no authority he is not a policeman', and charge ahead. It is the actual circumstances which obtain at the particular time which matter.

45. There is also the point that both the drivers involved in the accident - who regularly used that road - knew of the existence for the lights and the reason for their existence.

46. I have found as a fact that the red light in this case was illuminated at the time of the accident and that the driver of the bus did not stop.

47. In my view he was negligent not to do so, whether or not the red light itself was a prescribed light under the regulations or not.

48. I will now deal with the question of damages. The Plaintiff is a man of 25. He was 22 at the time of the accident. He was a fireman, a position which requires 100% physical fitness. He was rendered unconscious by the accident and hospitalised. It is unnecessary to detail his injuries which are not in dispute and will appear from the papers before us. The most serious injury was to his right which thigh necessitated a serious operation.

49. As a result of this he is no longer 100% physically fit and has had to relinquish his position as a fireman.

50. He complains of a slight disability to his neck - described by a surgeon as "negligible". His right leg is 1/4 of an inch shorter than the other and there is some wasting of his right thigh. There is a limitation of the external rotation of the right thigh and a real danger of ostedarthritis in the future.

51. The Plaintiff did not attempt to exaggerate his claim. He suffered considerable pain just after the accident and now complain of feeling pain on his right thigh and leg when he exerts himself, lifts heavy objects or when the weather changes.

52. At the time of the accident his salary was $720 per month with certain side benefit. The Fire Brigade is a disciplined service, and provides certain amenities in the way of future pension, quarters, holidays and clothing etc. So he has lost the benefit of these. Also the pay of the service has increased since the accident.

53. He was given such leave on full pay for a whole year after the accident. He is now earning about $600 per month as a gardener.

54. He has been awarded or will be awarded an impairment allowance in lieu of compensation under the Workman Compensation Ordinance of $414 per year.

55. The real injury is that his ambit of employment has been reduced. He is only 25 years old but he will never be able to take a job which requires 100% physical fitness again.

56. I will allow $12,000 for loss of earnings. And in addition $30,000 for the pain and suffering and loss of amenities.

57. There is a claim for $1,100 for special damages. This includes a fee of $500 for a Chinese bone setter and a further like sum for Chinese medicine. These sums were incurred after the Plaintiff had been discharged from hospital. I think he is entitled to these.

58. There will be judgment therefor for the Plaintiff against the second and third defendants for $43,100 with costs.

59. There will be order as to the costs of the first defendant.

60. Plaintiff's costs to be taxed under Legal Aid Regulations.

Representation:

Miss E. Chua (Gunston & Chow) for Plaintiff.

Mr. Evans (Legal Dept.) for 1st Defendant.

Mr. Mills-Owens (J.S. & Master) for 2nd & 3rd Defendants.