Kwan Yun-wah v. Choi Yun-tim
Read the full judgment text of HCA 3938/1978 on BabelCite. This High Court CFI judgment was delivered on 13 November 1979.
1. On 14th August 1977 at about 5.00 p.m., under good weather conditions and on a dry road, a collision occurred on the Fanling/Sha Tau Kok Road between a motor cycle driven by the Plaintiff and a private motor car driven by the Defendant. Both parties were proceeding in the direction of Sha Tau Kok.
|
HCA003938/1978
----------------- Coram: Mr. Commissioner Gittins, Q.C. Date of Judgment: 13 November 1979 ----------------- JUDGMENT ----------------- 1. On 14th August 1977 at about 5.00 p.m., under good weather conditions and on a dry road, a collision occurred on the Fanling/Sha Tau Kok Road between a motor cycle driven by the Plaintiff and a private motor car driven by the Defendant. Both parties were proceeding in the direction of Sha Tau Kok. 2. The Plaintiff's evidence is that he is a minibus driver by occupation, that on that day he was riding his motor cycle and was following the Defendant behind a line of four or five other motor cycles and that shortly before the collision, the road being straight and clear of on-coming traffic, the motor cycles in front of him swung out to the right and overtook the Defendant's car on its right. The Plaintiff followed suit and when he was very close to the Defendant's car, it suddenly swung out to the right. The Plaintiff was unable to stop and collided with the car. 3. The Plaintiff estimated that the procession of motor vehicles was travelling at 30 to 40 miles per hour before the accident; that the Defendant did not slow down let alone stop, and that he did not see any hand or indicator signal from the Defendant. 4. The Plaintiff denied that there was another car immediately behind the Defendant's. 5. The Plaintiff carried a passenger LEE Tak-fu who also gave evidence. He generally corroborated the Plaintiff's testimony, particularly that before the Defendant turned right there was no indication given of that intention. However, he said that he was not sure if the Defendant had slowed down nor whether there was another private car immediately behind the Defendant's. 6. The Defendant's evidence was that he was familiar with the road junction into which he was intending to turn, and before turning he had slowed down and gave hand and trafficator signals; that the side road he was turning into was unsurfaced and uneven and the turn had to be slowly executed; that there was another private car immediately behind him which slowed down and stopped to enable the Defendant to make the right hand turn; that he noticed motor cycles behind the following motor car and he stopped at the road junction to let the motor cycles overtake him; that after seven or eight motor cycles had passed he ascertained that there were no other motor vehicles behind him and then started to make the turn. The Defendant then came up from behind unobserved and collided with him. 7. The police sketch plan of the accident area (Exhibit A4) shows that in order to get on to the side road the Defendant would first have to execute an angle of 90 degrees and then a further 45 degrees. 8. I find therefore that in the circumstances the Defendant must have slowed down very considerably, if not stopped, before executing the right hand turn. But this need not have been apparent to the Plaintiff in the circumstances. 9. Clauses 59 and 60 of the Highway Code issued under Section 7 of the Road Traffic Ordinance, Cap. 220, on "Turning Right", states:
10. The English Highway Code is more explicit, see 5th Charlesworth on Negligence 830 -
11. In my judgment it is implicit that not only must the driver be certain that there is a sufficient break in the on-coming traffic, but that he must be certain that there is no following vehicle which might attempt to overtake him. Even if the Defendant had made the signals which he said he had made, this would not have given him the right to make his intended turn in disregard of both on-coming and following traffic. That this accident occurred establishes that in the circumstances of this case he was in breach of his duty to take care in respect of following traffic and therefore negligent. If he had made the signals he claimed to have made, this would only be relevant in determining whether the Plaintiff was guilty of contributory negligence. 12. The driver of the car which the Defendant said had stopped immediately behind him could have supported the Defendant's evidence that he gave hand and trafficator signals of his intention to turn right. The presence of this car is denied by the Plaintiff and neither the driver of the car nor any other evidence has been adduced to prove its existence or that the Defendant gave the said signals. 13. In the absence of such evidence I hold that the Defendant has not discharged the onus on him to prove the existence of the second car or that he gave the signals he claimed. 14. As to whether the Plaintiff was also negligent, the Highway Code on "Overtaking" states:
15. The road junction in this case is that of the main road with a minor unmetalled road and there is no evidence that the Plaintiff knew or should have known of its existence. 16. Clause 50 of the Highway Code enjoins the Plaintiff not to overtake unless he has made sure that it would be safe for himself and other road users. This he has not done. 17. I have already found that the Defendant had not proved to my satisfaction that he gave any signals. In addition several motor cycles ahead of the Plaintiff had overtaken the Defendant safely. 18. I hold that the Plaintiff was partly to blame and on the facts as found, his share of the blame is 25%. 19. The sum agreed by the parties inclusive of all damages and interest thereon to 1st November, 1979 is $150,000. 20. I give judgment for the Plaintiff for 75% of this sum, that is, $112,500, and costs.
Representation: Miss Audrey Eu (D.L.A.) for Plaintiff. K. Bokhary (H.A. Hoosenally & Co.) for Defendant. |