Madam Ko So Yee v. Miss Chan Sion Chun and Others
Read the full judgment text of HCA 9666/1982 on BabelCite. This High Court CFI judgment.
1. At the hearing on 3rd August 1983 I gave ex tempore oral reasons for Judgement. I now give my reasons in full in writing.
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HCA009666/1982 IN THE SUPREME COURT OF HONG KONG HIGH COURT ACTION NO. 9666/82 _____________ Between
Coram: Mr. Commissioner Keane Q.C. in Court Dates of Trial: 2nd and 3rd August, 1983 Date of Oral reasons for judgement were delivered on: 3rd August 1983. Date of Written Judgement delivered on: 19th August 1983 ------------------------------ J U D G M E N T ------------------------------ Counsel for the Plaintiff: Mr. C. Maxwell Lewis (instructed by Messrs Denton Hall and Burgain). Counsel for the 1st and 2nd Defendants: Miss Betty Kwan (instructed by Alan Lam & Co.) 3rd Defendant (1st Third Party) and 4th Defendant (2nd Third Party) not present and not represented. INDEX TO JUDGEMENT
1. At the hearing on 3rd August 1983 I gave ex tempore oral reasons for Judgement. I now give my reasons in full in writing. 1. PRELIMINARY FACTS 2. On the 23rd of July of 1981, at about 3:30 p.m., there was a road traffic incident in Argyle Street near the junction with Tin Kong Road. No one suffered personal injury but three cars were damaged. A bicycle also played some part in the incident. 3. The vehicles and parties directly or indirectly involved in the incident were as follows: (1) A Mercedes Benz motor car, registered number AH3222, (referred to hereafter as "Vehicle 1." or "the Benz") owned by the Plaintiff, Madam Ko So Yee, and driven by her employee Mr Lee Kan Woo; (2) A Datsun taxi, registered number CG3090, (referred to hereafter as "Vehicle 2." or "the taxi") owned by the 1st Defendant and driven by her agent, the 2nd Defendant; (3) A Toyota motor car, registered number BY4070, (referred to hereafter as "Vehicle 3" or "the private car") owned by the 3rd Defendant (1st Third Party) and driven by his servant or agent, the 4th Defendant (2nd Third Party); (4) A bicycle, left lying on the road, the rider of which was never identified and was last seen running away from the place of the incident. 4. In the course of the incident Vehicle 1 was damaged to its rear nearside, Vehicle 2 was damaged to its front offside and to its rear, and Vehicle 3 was damaged to its front. 5. Before the damage occurred Vehicles 1, 2 and 3 were all being driven eastwards, on the eastbound carriageway of Argyle Street, a short distance to the east of its junction with Tin Kong Road. 6. When the Vehicles finally came to rest in that carriageway at the end of the incident the front offside of Vehicle 2 was in contact with the rear nearside of Vehicle 1., and the front of Vehicle 3 was in contact with the rear of Vehicle 2. 7. These introductory facts which I find were either admitted or were the subject of unchallenged evidence to which reference is made later. 2. PRESENT PROCEEDINGS AND ISSUES 8. The Claims arising in the present proceedings can be summarised as follows: (1) A Claim by the Plaintiff for damages of HK$46,768.70 (comprising HK$46,568.70 in respect of the cost of repairing Vehicle 1 and HK$200 loss adjusters survey fee for inspection thereof ), and interest thereon, against the 1st and 2nd Defendants, and also against the 3rd and 4th Defendants, on the grounds that the damage to vehicle 1 was caused by negligence on the part of the driver of Vehicle 2, or alternatively on the part of the driver Vehicle 3, or alternatively on the part of both of the drivers of Vehicles 2 and 3. 9. On November 11th 1982 the Plaintiff obtained interlocutory judgement against the 3rd and 4th Defendants, for damages to be assessed, in default of Notice from either of them of Intention to Defend. (2) A Counterclaim by the 1st and 2nd Defendants against the Plaintiff for HK$13,911.00 (comprising HK$13,646.00 in respect of the cost of repairs to Vehicle 2 and HK$265.00 survey fee) on the grounds that the accident and resultant damage was not caused by any negligence on the part of the driver of Vehicle 2, but was caused or alternatively contributed to by negligence on the part of the driver of Vehicle 1. (3) Further or alternatively, by way of Third Party proceedings, heard concurrently in accordance with the Order for 3rd Party Directions, the 1st and 2nd Defendants claim the same HK$13,911.00 damages, with interest thereon, from the 3rd Defendant (1st Third Party) and 4th Defendant (2nd Third Party), together with indemnity or contribution in respect of liability to the Plaintiff, if any such were to be found against the 1st and 2nd Defendants, on the ground that the accident and resultant damage was caused or alternatively contributed to by negligence on the part of the driver of Vehicle 3. 10. There was no agreement between the Parties as to quantum of damages recoverable in respect of any of the items claimed or counterclaimed. 11. Accordingly the issues which arise for decision in this Action and 3rd Party Proceedings can be summarised as follows: (1) As between the Plaintiff and the 1st and 2nd Defendants, is any liability in negligence relating to this accident established against either or both of the drivers of Vehicles 1 or 2 ? (2) As between the 1st and 2nd Defendants and the 3rd and 4th Defendants (1st and 2nd Third Parties), is any liability in negligence relating to this accident established against the driver of Vehicle 3? (3) As against any Party against whom any liability in negligence is established, what amount of damages is recoverable by any Party who has sustained loss thereby? 3. THE RIVAL CONTENTIONS Contentions for the Plaintiff 12. The contentions for the Plaintiff were, in summary, to the following effect: (1) When the driver of Vehicle 1 was travelling eastwards along Argyle Street shortly after having crossed the Tin Kong Road junction he had to slow down to avoid risk of striking a bicycle. (2) While Vehicle 1 was still travelling forwards it was struck in the rear by a vehicle later discovered to be Vehicle 2. (3) After an interval there was a further blow and vibration to the rear of vehicle 1, later discovered to have been caused by Vehicle 3 having driven into the rear of Vehicle 2, thereby causing Vehicle 2 to inflict further damage to the rear of vehicle 1. (4) It was to be concluded that there were two separate impacts to the rear of Vehicle 1, namely first an impact caused by Vehicle 2 striking the rear of Vehicle 1 before Vehicle 2 had been struck by Vehicle 3, and secondly a further impact caused by Vehicle 3 later striking the rear of Vehicle 2. If so, it was submitted, the driver of Vehicle 2 must be found liable in respect of both impacts. (5) Alternatively even if, contrary to these primary contentions on the facts, it were found that Vehicle 2 was struck by vehicle 3 before it struck Vehicle 1, liablity should still be found against the driver of Vehicle 2 for having driven too close to the rear of Vehicle 1 and having thereby caused or contributed to both impacts. It was contended that immediately prior to the incident the driver of Vehicle 2 was not maintaining a sufficient distance between Vehicle 2 and Vehicle 1 ahead of him; it was submitted that if the driver of Vehicle 2 had been driving at a greater distance from the rear of Vechicle 1 he would have been able to slow down and stop less abruptly when the incident occurred. It was contended and that the distance at which he was driving behind Vehicle 1 led to his braking and stopping Vehicle 2 unduly sharply, and that this amounted to negligence which caused or contributed to the collison between Vehicle 3 and Vehicle 2 and, consequently, to the damage sustained by Vehicle 1. Contentions for the 1st and 2nd Defendants 13. The contentions for the 1st and 2nd Defendants were to this effect: (1) There was no negligence by the driver of Vehicle 1. The accident was caused by the negligece, of the drivers of Vehicles 1 and 2 . (2) Mr Lee Kang Woo drove Vehicle 1 negligently in that he swerved from one lane to another and stopped abruptly, and that was one of the causes of the accident. (3) The other cause of the accident was the negligence of the driver of Vehicle 3 in that he negligently caused or permitted Vehicle 3 to drive into the rear of Vehicle 2, and thereby propelled Vehicle 2 into collision with the rear of Vehicle 1. 4. IDENTIFICATION OF ORAL AND DOCUMENTARY EVIDENCE 14. The oral and documentary evidence tendered is identified in the Appendix to this judgement. 5. EVIDENCE SUBMISSIONS AND FINDINGS OF FACT 15. Mr Maxwell Lewis for the Plaintiff called Mr Lee Kang Woo, the driver of Vehicle 1, and Miss Kwan for the 1st and 2nd Defendants called the 2nd Defendant, the driver of Vehicle 2. They gave conflicting accounts of the incident, to which they adhered despite thorough and skilful cross-examination in each case; but it is convenient to deal first with some other matters by way of background before dealing further with that part of the case. 16. Road layout and conditions 17. An agreed police plan of the road layout and markings at the time was tendered (Exhibit D2). From that plan, together with unchallenged evidence given by either or both Mr Lee and Mr pang relating to the scene, I make the following findings relating to the road conditions and layout at the material time. 18. The road surface was wet, and there was rain. 19. The relevant section of Argyle Street ran straight from approximately east to west. Except at road junctions, Argyle Street was divided by a central reservation into two carriageways, eastbound and westbound. 20. On approach eastwards along Argyle Street to the traffic light controlled junction with Tin Kong Road ( a road which ran at an angle of about 90° to the right of Argyle Street), the eastbound carriageway of Argyle Street was divided by lane markings into 4 traffic lanes. Two of these four lanes were for drivers intending to continue eastbound along Argyle Street, and are referred to hereafter as lanes 1 and 2. Lane 1 was closest to the nearside kerb of the eastbound carriage way. Lane 2 ran parallel to and immediately the offside of lane 1. The other two lanes, on the offside of lanes I and 2, were for drivers intending to turn right from Argyle Street into Tin Kong Road. Immediately opposite to the mouth of Tin Kong Road there was a break in the Argyle Street eastern carriageway lane markings. On resumption of the lane markings on the other side of the junction the eastbound carriageway was divided into three parallel lanes; the nearside of those three lanes is referred to hereafter as lane 1, the middle lane as lane 2 and the offside lane as lane 3. 21. There was no express evidence as to the volume of other traffic which the relevant section of Argyle Street was carrying at the time of the incident, but it is reasonable to infer from the description of its layout and its location in the urban area of Kowloon that there would have been a substantial volume of other traffic in the eastbound carriageway at the material time and place. 22. A short distance along the eastbound carriageway of Argyle Street to the east of the junction with Tin Kong Road, there was a further traffic light controlled junction. (This junction was, I believe referred to in the course of translation of the evidence of Mr Pang as the junction with Roman Road; on the assumption that judicial notice may be taken here of the positions and names of roads in Kowloon, this seems likely to have been either a mistranslation or a mishearing by me of an intended reference to a junction with a road presently named Lomond Road, and presently lying a short distance to the east of the Tin Kong Road junction.) Damage and Repair Costs and Survey Fees relating to Vehicles l. and 2. 23. Mr Lee Kai Hong, an expert motor vehicle surveyor employed by Roger Houghton Motor Surveys Limited, gave evidence as to the extent of damage and cost of repairs to Vehicle 1. He confirmed that Vehicle 1 sustained the damage described in his survey report (Exhibit P3) and shown in the photographs (Exhibit P2). He confirmed that the damage appeared to be attributable to the relevant incident and that the repair costs claimed by the Plaintiff were reasonable. 24. There was some challenge in cross-examination by Miss Kwan as to whether the sums claimed for some of the individual items of repair were excessive, but Mr Lee Kai Hong disagreed, and no other evidence was called on that issue. 25. I entirely accept the evidence of Mr Lee Kai Hong. It emerged in the course of his evidence that before making his survey report (Exhibit P3) he studied a previous estimate (Exhibit P4) from lung Fu Limited, approved Mercedes Benz agents, and in the course of his survey he secured a reduction of that estimate from HK$52,787.70 to the sum now claimed. I find that the sum now claimed is reasonable, and is recoverable by the Plaintiff from any Defendant against whom liability for the incident is established. 26. Mr Edwin Chiu, an expert motor vehicle surveyor from the Motor Adjusting Company, also gave evidence. He confirmed that on his examination of Vehicle 2 it had sustained the damage described in his survey report (Exhibit DS). Before making his report he had considered a previous estimate (Exhibit D9) from Wing On Auto Service for HK$19,961.50 for repairing Vehicle 2, but as a result of his survey the repair costs were reduced to the sum now claimed. It is clear that he gave careful consideration to the matter, and I entirely accept his evidence. I find that the sum claimed by the 1st and 2nd Defendants for the cost of repairs to Vehicle 2 is reasonable, and is recoverable from any Party liable to them. 27. There is a slight difference in the fees claimed for the surveys of Vehicles 1 and 2 by these experts (HK$200.00 by the Plaintiff and HK$265.00 by the 1st and 2nd Defendants) but I find that both sums are within an acceptable bracket and are reasonable and recoverable. The need for expert motor surveyors advice was a well forseeable consequence of the incident, and if the advice of surveyors had not been taken, it is likely that the repair costs would have been much higher in each case. Findings relatinq to Vehicle 3. 28. The 3rd Defendant (1st Third Party) and the 4th Defendant (2nd Third Party) have taken no part and have made no admissions in the present proceedings. Accordingly it was necessary for Miss Kwan to tender documentary evidence as to responsibility for the driving of vehicle 3, namely (Exhibit D6) certified particulars of Vehicle 3 provided on behalf of the Commissioner for Transport stating that the name of the owner was that of the 3rd Defendant (1st Third Party) and (Exhibit D5) a certified copy certificate of the conviction of a person of the same name as the 4th Defendant (2nd Third Party) for carelessly having driven a car bearing the registration number of Vehicle 3 on July 23rd 1981 at Argyle Street near Tin Kwong Road. 29. On the basis of those documents, and in the absence of any contrary evidence or contention, I find following facts: (1) At all material times the 4th Defendant (2nd Third Party) was the driver of Vehicle 3. (2) At all material times the 3rd Defendant (1st Third Party) was the owner of vehicle 3. (3) At all material times the 4th Defendant (2nd Third Party) was driving Vehicle 3 as servant or agent of the 3rd Defendant (1st Third Party). (4) The 4th Defendant is the person referred to in the certificate of conviction, and that conviction relates to the time and place of the incident referred to in the present proceedings. 30. Although mention was made (in the course of the evidence of Mr Lee Kang Woo) to Vehicle 3 having been seen at the end of the incident to be damaged, and by necessary inference from other findings it must have sustained frontal damage from collision with Vehicle 2, there was no evidence of the extent of damage to Vehicle 3. The evidence of Mr Lee Kang Woo 31. The evidence of Mr Lee Kang Woo ("Mr Lee"), so far as appears material, was to the following effect. 32. He had more than 10 years driving experience, and had been employed by the Plaintiff as chauffeur for the previous 3 years. At the time in question he was driving Vehicle 1, owned by the Plaintiff, eastwards in Argyle Street. 33. Mr Lee stated that on approach to the junction he was driving in lane 2 , but that thereafter the route which he took was as shown on the sketch plan which he made in the witness box (Exhibit D3). According to that sketch plan, as he crossed the junction he moved gradually and steadily towards his offside, and having crossed the junction he entered and travelled for some distance straight along lane 3 on the far side of the junction. 34. He said that while he was so travelling, at a speed of about 23 m.p.h., he saw a bicycle which was 7 or 8 yards ahead of him cutting from lane 1 towards lane 3. Therefore he slowed down Vehicle 1 and sounded the horn. He said that he slowed down by lifting his foot from the accelerator pedal and stepping on the foot brake pedal, and that when he did that the bicycle was still in lane 2, falling forward. At that stage he noticed that. his car was bumped against at the rear and pushed forward suddenly for about 2 yards, the force being rather big. He immediately applied his foot brake and handbrake and thereby brought his car to a halt. He then prepared to alight from his car to see what was happening, but before he did so his car was bumped again with a bang and he felt the vibration. 35. He said that until he got out of his car after the second bump he had not seen what has caused either of the two bumps, but after the second bump he got out and saw what had happened. First he looked at the rear of his car and discovered that it rear near side had been hit by a taxi (Vehicle 2.) and he then noticed that the taxi had been hit by another car (Vehicle 3.). He said that the position of the Vehicles when he saw them at rest after the collisions was as follows. (1) Vehicle 1 was in lane 3. (2) Vehicle 2 was on the dividing line between lanes 2 and 3, facing diagonally towards lane 3. (3) Vehicle 3 was on the dividing line between lanes 1 and 2, also facing diagonally. (4) Vehicle 2 was in contact with Vehicle l and vehicle 3 was in contact with Vehicle 1. (5) The bicycle was in lane 2, about 4 yards in front of Vehicle 1. 36. He stated that he did not see how the cyclist alighted. from the bicycle, but he saw the cyclist running away. He said that vehicle 1 never collided with the bicycle, and that the front of Vehicle 1 was not involved in any collision. 37. In cross-examination he agreed that on 29th July 1981, that is to say 6 days after the accident, he dictated to a police officer and signed a statement in Chinese characters (Exhibit Dl) of which an agreed but uncertified translation was tendered (Exhibit DlA). It was agreed during the hearing that one sentence appeared to have been mistranslated and with the agreement of Counsel the Court Interpreter provided alternative translations of that sentence (noted in manuscript on Exhibit DlA). The material parts of that statement, incorporating with the agreement of Counsel the alternative translation which appears the more appropriate in context, reads: "In the afternoon at about 3:50 p.m. on 23rd July 1981, I was driving a private vehicle AJ322 with good hand and foot brakes along Argyle Street heading for east from west on the 2nd lane, the speed was about 25 m.p.h. and I was engaging in the D Gear. At that time, the weather was cloudy, road surface was wet (there was rain), and the traffic was light. At that time, I was driving from Tsimshatsui intending to go to San Po Kong and back to my house, but when I reached the junction of Tin Kwong Road, I turned right from the 2nd lane and heading towards the third lane after passing Tin Kwong Road junction. When I passed Tin Kwong Road junction and reached the third lane, I saw a bicycle (name and address of the driver was unknown) driving on the first lane at my left. The bicycle cut into my lane from the first lane and my distance with the bicycle was about 60 to 70 feet. I therefore sounded my horn and slow down the car but suddenly I heard a "Bang" and felt that the car had been bumped against by something, and pushed forward. I therefore stopped my car and when my vehicle came to a halt L felt that my car was hit again. When I intended to get off my vehicle and see what had happened, I again heard the sound "Bang". I therefore got off from my car and I saw that the rear left portion of my vehicle was hit by the front right portion of a taxi registration No. CG3090. The left rear portion of the taxi was also hit by the right front portion of another vehicle. In this accident no one was injured but all three vehicles sustained damages. 38. Question: Do you know why CG3090 (i.e. Vehicle 2) hit your vehicle? Answer : I don't know. 39. Question: Do you know whether CG3090 has hit your car first and then being hit or whether CG3090 has been hit and then bumped into your vehicle? Answer : I also don't know. " 40. Mr Lee did not agree that there was any inconsistency between his evidence to the effect that he first saw the bicycle 7 to 8 yards away and his July 1981 statement to the effect that he first saw it at a distance of 60 to 70 feet. He did not agree that the questions and answers in that statement quoted above indicated that close to the date of the accident he did not realy know whether there was one impact or two to the rear of Vehicle 1. He denied that he had swerved from one lane to another at any stage. The evidence of Mr Pang Kam Hung (2nd Defendant) 41. Mr Pang's evidence, so far as appears material, was the following effect. 42. He was by occupation a taxi driver and had been so for 18 years. He was driving the taxi (Vehicle 2.) in Argyle Street eastbound, and before reaching the junction with Tin Kong Road he had to stop because there were traffic lights showing red at the junction. 43. After the lights changed he crossed the junction and was travelling in lane 2 at a speed between about 18 and 22 m.p.h. He was following behind Vehicle 1., which was also in lane 2. He was keeping at a distance of about 2 car lengths behind a Mercedes Benz (Vehicle 2). 44. Then Vehicle 1 suddenly swerved to lane 3 without prior warning and came to a halt. When Vehicle 1 swerved Mr Pang saw a bicycle falling down on the road ahead of him. He immediately applied his brakes and stopped Vehicle 2 and came to a halt at a distance of about ½ a car length from the bicycle and about 1½ car lengths behind Vehicle 1, and without coming into contact with Vehicle 1. Then, suddenly, and he did not know why, a car (Vehicle 3.) bumped into the rear of Vehicle 2 and thereby pushed Vehicle 2 into collision with the rear of Vehicle 1. Mr Pang said that when Vehicle 3 hit Vehicle 2, Vehicle 2 was stationary and his foot was on its footbrake. 45. At different stages during the course of giving his evidence he made two sketch plans (Exhibits D7 and D12) to illustrate his answers to questions about the positions in which the vehicles came to rest. The final state of his evidence on that matter, as I understood it, was as follows: (1) After vehicle 1 swerved, but before Vehicle 3 struck Vehicle 2, Vehicles 1, 2, and the bicycle came to rest in the positions shown on plan Exhibit D12, that is to say (i) Vehicle 1 was in lane 3, with its wheels on or obout the lane markings dividing lane 3 from lane 2; (ii) The bicycle was in lane 2, close to the near side of Vehicle 1; (iii) Vehicle 2 was in lane 2, a short distance behind both Vehicle 1 and the bicycle; 46. As to the position of the Vehicles at that stage of the incident, Mr Pang also stated in the course of cross-examination that after he stopped Vehicle 2 in lane 2, and before Vehicle 2 was hit by vehicle 3, he looked in his rear view mirror but saw no vehicle behind his car, and that at that moment the car (i.e. Vehicle 3) which subsequently hit the rear of Vehicle 2 was in a different lane, that is to say not in lane 2. (2) The position in which the Vehicles finally came to rest was as shown on plan Exhibit D7, that is to say (i) Vehicle 1 and the bicycle were in about the same positions as on plan Exhibit D12; (ii) Vehicle 2 was in lane 2 facing forwards with its offside wheels on or about the lane markings which divided lane 3 from lane 2, and with its front offside in contact with the rear nearside of Vehicle 1; he added that although Vehicle 2 was facing fowards, its wheels were facing diagonally, and that when struck by Vehicle 3, Vehicle 2 had been pushed forward diagonally, and hence had not struck the bicycle; (iii) Vehicle 3 was facing diagonally; its front was in lane 2 and in contact with the rear of Vehicle 2; its rear was in lane 1. 47. Mr Pang described the whole incident as having occurred "in a short moment". 48. When asked further questions in cross-examination about the distance he had been keeping between Vehicles 2 and 1, he gave first a distance of 1½ car lengths and then later about 2 car lengths. He said that he had read the highway code which he said recommended that a miminum distance of 2½ car lengths be kept between vehicles. When asked why he was not keeping such distance behind Vehicle 1 he said that he was travelling at a speed such that he could stop his vehicle in time, or even if he failed to do so nothing serious would happen. He said that there was a further traffic light controlled junction a short distance ahead, (namely the junction referred to earlier in this judgement) and that it was not possible to maintain a 2½ lengths distance on the short stretch of road between the two junctions if traffic were to be able to get through the traffic lights. 49. He also stated in cross-examination that the rear lights of the Benz did not light up at the time it was swerving and stopping, but also added that from the time when the Benz swerved and he first saw the bicycle he was concentrating on brining Vehicle 2 to a halt. Absence of other evidence 50. There was no independent evidence from any Police Officer as to findings at the scene of the accident. Neither of the motor vehicle surveyors called was asked to give any opinion as to whether the damage to the vehicles was more consistent with one of the conflicting accounts rather than the other. Assessment of the evidence of Mr. Lee and Mr. Pang 51. On that evidence, which, if either, of those two conflicting accounts given by Mr Lee and Mr Pang is to be preferred? On the balance of probabilities I conclude that Mr Pang's account is generally to be preferred to that of Mr Lee. Both generally, and also where on material matters there is conflict, I find that the facts are as described by Mr Pang; I reject the account given by Mr Lee in so far as his evidence conflicts on material matters with that of Mr Pang. 52. In reaching that conclusion I have found no single factor in the case which I would regard in isolation as decisive, but I have reached that conclusion for several reasons cumulatively, as set out under the following headings. (1) Demeanour of witnesses 53. The first reason is the demeanour of the two witnesses. Having seen each of them giving evidence and being cross-examined, my assessment is that neither of them has an entirely accurate recollection of all of the events in question, which is not surprising two years after the accident. 54. However Mr Pang appeared to me to be an honest witness. If the front of the vehicle which he was driving had collided with the rear of Vehicle 1 before his own vehicle was struck from behind, that in my judgement is something of which it is likely that he would have been aware at the time, and would have remembered since, and is not a matter over which there is likelihood of mistake by him. 55. There were times in the course of cross-examination when Mr Pang was slow to answer questions, but in my assessment that was due to failure to understand them, and not to any desire not to assist the Court. Where matters of precise measurement of distances between vehicles or of detail such as the angles at which vehicles came to rest were concerned he had a tendency to become confused. On some matters of detail his evidence was in my view incorrect; for example his evidence that the rear brake lights of Vehicle 1 did not come on must be incorrect on either version of events. Further, although generally I accept his account as correct in relation to the approximate positions in which the vehicles came to rest at the two stages of the incident described by him, at the final stage I regard it as more likely that Vehicle 2 was facing diagonally rather than forwards as stated by Mr pang. Nevertheless, and in particular on the central issues, Mr Pang appeared to me an honest and reliable witness. 56. There were times when I found the demeanour of Mr Lee to be less impressive then that of Mr Pang, in particular when Mr Lee was answering questions in cross-examination about differences between his evidence and his previous statement in relation to the bicycle. 57. In assessing the demeanour of the witnesses difficulty arises because their evidence was given in Cantonese which I could only understand when interpreted; I would not wish to determine the issue on demeanour alone, although it is a factor to which I give some weight. (2) Probabilities 58. Secondly, and in my view importantly, Mr Pang's evidence provides a much more probable explanation of how this accident occurred then that of Mr Lee. If matters happened as described by Mr Lee, given the evidence, which I accept, as to the driving experience both of Mr Lee and Mr Pang, it is difficult to see why there was an accident of the degree and extent which in fact occurred. 59. According to Mr Lee there was no swerving or emergency braking by him before his vehicle was hit; it was still moving when hit; there was time for him both to slow down and to blow his horn. Both in his evidence and in his earlier statement (Exhibit Dl and DlA) he described a more deliberate and measured series of actions and events than seems to me probable. It is in my view more likely that the whole event occurred very quickly as described by Mr Pang and that there was a sudden emergency of the nature described by him. 60. Further, having regard to the evidence both of Mr Lee and Mr Pang as to the position in which the vehicles came to rest it seems to me more likely that at the start of the incident both Vehicles 1 and 2 were in lane 2. (3) Opportunities for mistake on material matters 61. Many of the material events in issue occurred to the rear of the vehicle driven by Mr Lee. Until the stag when Mr Lee got out of Vehicle 1 Mr Lee had less opportunity than Mr Pang to observe the sequence of events. Further, Mr Lee's earlier statement (Exhibit Dl and DlA) does in my view give a picture that at the time he made it he did not really know whether Vehicle 1 was hit by Vehicle 2 before the second impact which he described. 62. There is in my view less room for mistake in the evidence of Mr pang. I have already referred on this aspect to the matter of the collision between the front of Vehicle 2 and rear of Vehicle 1. Further, if Vehicle 1 swerved as Mr Pang stated that is something that Mr Pang would have seen happening ahead of him, and is not in my view a matter which he would have invented, or on which it is likely that he would be mistaken. 63. The case is not to be decided on technicalities of pleading but I note also that paragraph 4 in the Statement of Claim refers to " a collision" and pleads the matter of how it occurred in a number of alternative ways some of which are consistent with the evidence of Mr Pang. 64. In making that assessment as between Mr Lee and Mr Pang I have taken into account all of the matters urged by Mr Maxwell Lewis in support of his submission that the evidence of Mr Lee should be preferred to that of Mr Pang; the principal matters so urged may also be summarised under three headings: (1) Inferences to be drawn from the damage to Vehicles 1 and 2 65. It was submitted that if Vehicle 2 was, as stated by Mr pang, stationary with his foot on its footbrake when it was struck and pushed forward into Vehicle 1, the resu rant damage to Vehicle 2 would have been greater or the damage to Vehicle 1 would have been less than in fact was found to have occurred. However there is no detailed evidence as to the damage to Vehicle 3, and there was no expert evidence as to any inferences as to the circumstances of the incident which were properly to be drawn from the damage found. I find that the damage found to Vehicles 1 and 2 appears to be consistent with each of the conflicting accounts. (2) Matters arising from the evidence of Mr Lee 66. Mr Lee said that he heard two bangs and felt two separate bumps. It was submitted that, if such evidence was correct it was to be concluded that Vehicle 2 must have collided with Vehicle 1 before Vehicle 2 was hit by Vehicle 3. However, as to the two bangs, I find that there must have been at least two bangs whatever the sequence of collisions, and there might well have been three bangs if the sequence was as contended on behalf of the Plaintiff. As to the two bumps I do not find it necessary to make any specific finding of fact as to whether that part of Mr Lee's evidence is correct, because with three vehicles involved in collisions there could well have been more than one bump felt at the rear by the driver of Vehicle 2 whatever the sequence of collisions; for example the three vehicles may not have remained in contact with each other throuhout the period from first impact until they finally came to rest in contact. (3) Discrepancies in the evidence of Mr pang 67. It was submitted that there were several matters in the evidence of Mr pang which were not credible from which it was to be concluded that his evidence generally should not be accepted. This submission was in my view well founded to, but only to, the extent that the evidence of Mr pang was not acceptable in every respect; I find that the defects related to matters not of central importance in the case, and that on the balance of probabilities Mr Pang was an honest witness whose evidence was correct on the material issues. Findings of fact relating to the incident 68. On the balance of probabilities I make the following findings of fact relating to the incident: (1) Before Vehicles 1 and 2 crossed the junction of Argyle Street with Tin Kong Road they had to stop before I crossing the traffic lights because they were showing red. At that stage Vehicle 1 was in lane 2, and Vehicle 2 was the next vehicle in lane 2 behind Vehicle 1. (1) After Vehicle 1 had crossed the junction with Tin Kong Road and immediately prior to the incident it was travelling in lane 2. (2) Mr Lee was suddenly confronted by a bicycle a short distance ahead of Vehicle 1. At that moment the bicycle was cutting across the carriageway from lane 1 into lane 2 and towards lane 3. Perhaps the cyclist had wished to turn right into Tin Kong Road and had missed the turning, or perhaps for some reason had lost control of the bicycle; but, whatever may have been the reason, that path which L find that the cyclist took created an imminent danger of collision between Vehicle 1 and the bicycle. (3) In an attempt to avoid such collision, Mr Lee swerved from lane 2 into lane 3 and also applied his brakes and stopped Vehicle 2 in an emergency manner. (I do not find it possible on the evidence or necessary to reach any specific finding as to whether or not there was at any stage some impact between Vehicle 1 and the bicycle.) (4) Mr Pang, who was driving Vehicle 2 in lane 2 at a distance of about 1½ to 2 car lengths behind Vehicle 1, saw Vehicle 1 swerving, and when it did so he was able to see the bicycle ahead of him in lane 2; he therefore immediately braked and brought Vehicle 2 to a halt about ½ a car length away from Vehicle l. (5) The positions on the carriageway in which Vehicles 1 and 2 and the bicycle came to rest at that stage were approximately as described by Mr Pang. (6) I accept the evidence of Mr Pang during that stage of the incident he looked in the rear view mirror of Vehicle 2 and did not see Vehicle 3 in lane 2. From that evidence, coupled with the evidence of Mr Lee and Mr Pang as the positions in which the Vehicles finally came to rest, and the evidence concerning the conviction of the driver of Vehicle 3, I infer that when Vehicles 1 and 2 first came to a halt Vehicle 3 was either in lane 1 or lane 2, and if in lane 2 was at a distance behind Vehicle 2 sufficient to have enabled the driver of Vehicle 3 to have stopped without colliding with Vehicle 2 if the driver of Vehicle 3 had been driving at a proper speed and keeping a proper look out. (7) Then, after a very short interval of time, there was a violent impact to the rear of Vehicle 2, which propelled Vehicle 2 diagonally into collision with the rear of Vehicle 1. The impact to the rear of Vehicle 2 resulted from Vehicle 3 colliding with Vehicle 2. (8) Vehicles 1, 2 and 3 and the bicycle finally came to rest in approximately the positions on the carriageway described by Mr Pang, save that Vehicle 2 was facing diagonally towards lane 3. 6. LEGAL PRINCIPLES 69. There are some statutory provisions and cases which, although not referred to at the oral hearing, require mention. Departure from the guidance provided by the Highway Code 70. The Road Traffic Ordinance (Cap. 220) section 7 empowers the adoption of a highway code for the guidance of road users in Hong Kong, and subsection (4) of section 7 makes provision that "A failure on the part of any person to observe any provisions of the highway code shall not of itself render that person liable to criminal proceedings of any kind but any such failure may in any proceedings whether civil or criminal and including proceedings for an offence under this Ordinance be relied upon by any party to the proceedings as tending to establish or to negative any liability which is in question in those proceedings." 71. The parts of the Highway Code (which, I take notice, were approved in 1978 by the Governor in Council and laid before the Legislative Council pursuant to the requirements of Cap. 220 section 7 above) which appear relevant to the present case are as follows: 72. Paragraph 38. "Remember a speed limit is the maximum - drive only at a speed at which you can stop well within the stopping distances shown on the diagram on page 96." 73. Paragraph 39. "Leave enough space between you and the vehicle in front, so that you can pull up safely if it stops suddenly." 74. The diagram on page 96 contains a direction to refer to paragraph 38 and sets out various distances, described as "overall stopping distances", incorporating thinking distances and stopping distances related to different speeds; for a car travelling at 20 m.p.h. the diagram shows a stopping distance of 40 feet, comprising 20 feet thinking distance and 20 feet braking distance. The words which appear below the diagram include "Remember ..... on wet roads, for all vehicles, allow twice the normal margin of safety." 75. Therefore to achieve full compliance with that guidance as to stopping distances, given the speed of approximately 20 m.p.h. at which Mr Pang was travelling Mr Pang would have needed to maintain a distance of 40 feet (say 2½ car lengths) between Vehicles 2 and 1 if the road were dry, and 80 feet (say 5 car lengths) as the road was wet. It follows from his evidence that by travelling at a distance of 1½ to 2 car lengths Mr Pang was failing to comply with that guidance 76. I have not found any judgements of the Hong Kong Courts on the consequences in terms of liability in civil proceedings of failure to comply with the Highway Code, having regard to Cap. 220 section 7 (4) above. There have however for many years been corresponding provisions, to the same effect as Cap. 220 section 7 (4), in the United Kingdom Road Traffic Acts, including the Road Traffic Acts 1960 section 74 (5) and 1972 section 37 (5) which, insofar as material, were in the same terms as Cap.220 section 7 (4) above. 77. There is a wealth of United Kingdom case law on those corresponding statutory provisions from which the following principles appear well established in the United Kingdom. 78. A failure to comply with Highway Code provisions does not ipso facto give rise to a cause of action or a finding of negligence; nor does such failure even create any presumption as to negligence or liability; see for example the judgement of Stephenson L.J. in Powell v Phillips (1973 R.T.R. 19.C.A.) which includes these passages (at p.22H to 23A)
79. These same principles appear to me to apply with equal force in relation to section 7 (4) of Cap. 220 and to questions of liability in Hong Kong in cases of failure to comply with Hong Kong Highway Code guidance. Duties of drivers relating to minimum distances between vehicles, braking and stopping 80. In relation to the particular issues of the leaving of distances between vehicles and duties in relation to braking and stopping of vehicles, the principal objective of Highway Code guidance as to stopping distances, and also the principal duty of drivers, appears to be to ensure that vehicles can be stopped without collision with vehicles ahead. In congested urban traffic conditions it may at times be positively undesirable to maintain the distances between vehicles recommended in the Highway Code; account must be taken of. the increased congestion likely to result, in particular at traffic light controlled junctions, and the dangers arising from the temptation to impatient drivers to overtake and cut in on seeing a gap ahead. In such conditions the proposition that drivers should keep such distances from the vehicle ahead that even in an emergency they only have to brake gently is not merely an unattainable counsel of perfection but often positively dangerous. 81. On these issues I have found assistance from the judgements of the English Court of Appeal in the cases of Wooller v London Transport Board (1976 R.T.R. 206 at p.207 to 208 per Edmund Davies L.J.) and Parnell v Metropolitan Police District Receiver (1976 R.T.R. 201); the general principles adopted in those cases appears to me equally applicable to Hong Kong cases such as the present. The conviction of the 4th Defendant 82. By reason of the Evidence Ordinance (Cap. 8) section 62 subsections (1) and (2), as explained in Lee Hau- Man v Hon Ping- Man (1980 HKLR 209 at p.p. 213-214), the fact that the 4th Defendant was, as I have found, convicted of an offence of careless driving at the material time and place to which these proceedings relate is admissible in these proceedings; and, in the absence of proof to the contrary it is to be presumed by the Court that he did commit the offence of careless driving of which he was convicted. In evidence in the present case there is no proof to the contrary. 7. FINDINGS ON LIABILITY 83. Having regard to the findings of fact made in this judgement, and to the legal principles referred to above, my findings on liability are as follows: (1) The actions which I have found to have been taken by Mr Lee were in my judgement taken in reaction to an emergency created by the cyclist and were not negligent. Accordingly the Counterclaim by the 1st and 2nd Defendants against the Plaintiff fails. (2) The actions which I have found to have been taken by Mr Pang in braking and bringing Vehicle 2 to a halt was also taken in reaction to the same emergency, and were not negligent. In driving, immediately prior to the incident, at a distance of between 1½ to 2½ lengths behind Vehicle 1 Mr Pang was driving closer to the rear of Vehicle 1 than was ideal and at less than the minimum distance recommended in the highway code. Having regard to the road and traffic conditions as found earlier in this judgement , and in particular to the fact that he had recently crossed one traffic light controlled junction and was approaching another one a short distance ahead, and to the speed at which he was driving, and to the fact that he was able to stop Vehicle 2 in the emergency which occurred within the distance he had been keeping from Vehicle 1, in my judgement no fault amounting to any negligence is established against Mr Pang, either in respect of the distance which he was maintaining between Vehicle 2 and Vehicle 1 or in any other respect. Additionally, there is no evidence to establish that the distance which Mr Pang was previously keeping between Vehicles 1 and 2 played any part in causing the driver of Vehicle 3 to collide with Vehicle 2 and thereby to cause the resultant damage. I conclude that no negligence is established against Mr Pang. Accordingly the Plaintiff's Claim against the 1st and 2nd Defendants also fails. (3) Having regard to the interlocutory judgement obtained by the Plaintiff, and also in relation to the 3rd Party proceedings to my findings of fact relating to the incident and to the conviction of the 4th Defendant, and in the absence of any evidence by way of explanation from the 3rd or 4th Defendants (1st and 2nd Third parties) as to why Vehicle 3 collided with Vehicle 2 as found, I conclude that both the Plaintiff and the 1st and 2nd Defendants have established that the incident and resultant damage was caused by negligence of the 4th Defendant, for which both the 3rd and 4th Defendants (1st and 2nd Third Parties) are liable, both to the Plaintiff for the damages claimed in the Action, with appropriate interest thereon, and to the 1st and 2nd Defendants for the sum claimed, and appropriate interest thereon, in the 3rd Party proceedings. 8. INTEREST ON DAMAGES AND ORDERS FOR COSTS 84. Immediately following the oral reasons for judgement as to liability and damages submissions were made by Mr Maxwell Lewis and Miss Kwan as to interest on damages and costs. Interest on damages Interest as between the Plaintiff and the 3rd and 4th Defendants 85. I was asked to order a greater rate of interest than 8% on the ground that the prevailing bank interest rates have been much higher than that, but in view of the terms of the Interlocutory Judgement which specifically provided for an 8% interest rate from 15th October 1982 to 11th November 1982 on damages to be assessed, it is in my view appropriate for the Plaintiff's judgement against the 3rd and 4th Defendants to be for Hk$46,768.17 with interest thereon at the same 8% rate of interest from 15th October 1982 until Judgement, and thereafter until payment at the current prescribed rate of interest on Judgement Debts. Interest as between the 1st and 2nd Defendants and the 3rd and 4th Defendants (1st and 2nd Third Parties) 86. I also consider that the 1st and 2nd Defendants Judgement against the 3rd and 4th Defendants (1st and 2nd Third parties) in the 3rd Party Proceedings should be for HK$13,911.00 with interest thereon also at the rate of 8% from 9th June 1983 (the date of the Statement of Claim in the 3rd Party Proceedings) until Judgement, and thereafter until payment at the current prescribed rate of interest on Judgement Debts. Orders for Costs Costs as between Plaintiff and 1st and 2nd Defendants 87. Miss Kwan stated that as she represented the 2nd Defendant in the Action under a Legal Aid Assignment it was necessary for her to ask for an order for costs against the Plaintiff on the Claim. However, both Claim and Counterclaim having failed I consider the most appropriate exercise of discretion as to costs between the Plaintiff and the 1st and 2nd Defendants is to make no order for costs. Costs as between plaintiff and 3rd and 4th Defendants 88. As all or almost all of the Plaintiff's costs arising since 11th November 1982 (the date of the Interlocutory Judgement) were attributable to the issues between the Plaintiff and the 1st and 2nd Defendants I consider, with the agreement of Mr Maxwell Lewis, that the 3rd and 4th Defendants should be ordered to pay to the Plaintiff the plaintiff's costs of the proceedings against the 3rd and 4th Defendants incurred prior to and until 11th November 1982. Costs as between 1st and 2nd Defendants and 3rd and 4th Defendants (1st and 2nd Third Parties) 89. A large part of the costs incurred by the 1st and 2nd Defendants were attributable to the issues between them and the Plaintiff. I consider that the most appropriate order as between the 1st and 2nd Defendants and the 3rd and 4th Defendants is that the 3rd and 4th Defendants be ordered to pay the 1st and 2nd Defendants costs limited to any additional costs attributable to the 3rd Party proceedings. Taxation of costs 90. Since delivery of the oral reasons for Judgement, when it was ordered that costs be taxed if not agreed, I further ordered, as later asked, that the costs of the 2nd Defendant of any proceedings for which he is legally aided be taxed in accordance with the Legal Aid Regulations. 9. JUDGEMENT 91. In the light of the conclusions reached above L have made orders in relation to these proceedings to the following effect: (1) That Judgement be entered for the Plaintiff against the 3rd and 4th Defendants for HK$46,768.17, with interest thereon at the rate of 8% from 15th October 1982 until 3rd August 1983 and thereafter at the rate of 11% until payment thereof. (2) That Judgment be entered for the 1st and 2nd Defendants against the Plaintiff on the plaintiff's Claim against the 1st and 2nd Defendants and that such Claim be dismissed. (3) That Judgement be entered for the Plaintiff against the 1st and 2nd Defendants on their Counterclaim against the Plaintiff and that such Counterclaim be dismissed. (4) That Judgement be entered for the 1st and 2nd Defendants against the 3rd and 4th Defendants (1st and 2nd Third parties) for Hk$13,911.00, with interest thereon at the rate of 8% from 9th June 1983 until 3rd August 1983, and thereafter at the rate of 11% until payment thereof. (5) (i) That the 3rd and 4th Defendants pay to the Plaintiff the Plaintiff's costs of proceedings against them incurred prior to and until 11th November 1982. (ii) That the 3rd and 4th Defendants (1st and 2nd Third Parties) pay to the 1st and 2nd Defendants the 1st and 2nd Defendants' costs limited to additional costs attributable to the 3rd Party proceedings. (iii) That such costs be taxed if not agreed. (iv) That the 2nd Defendant's costs of any proceedings for which the 2nd Defendant is legally aided be taxed in accordance with the Legal Aid Regulations. (v) That, save as aforesaid, there be no order for costs.
APPENDIX TO JUDGEMENT IN HIGH COURT ACTION 9666/82
Representation: Counsel for the Plaintiff: Mr. C. Maxwell Lewis (instructed by Messrs Denton Hall and Burgain). Counsel for the 1st and 2nd Defendants : Miss Betty Kwan (instructed by Alan Lam & Co.) 3rd Defendant (1st Third Party) and 4th Defendant (2nd Third Party) not present and not represented. |