Mo Kai Lung v. Tsang Kok Keung

HCA002047/1980

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Coram: Liu, J. in Court

Date of Judgment: 16th June, 1981

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JUDGMENT

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1. This is a running down action which arose from a traffic accident on 23rd August 1978, at or about 8 o'clock in the evening. With full assistance from counsel, I find myself able to deliver judgment extempore.

2. It is agreed by both parties to this action that the Court is to adjudicate upon the question of liability alone. The issue of quantum of damages is to be stood over until the prognosis can be finalized.

3. On the day in question, at and near the scene of the accident, for reasons which were not disclosed in the course of these proceedings, there was no street lighting. It was common ground that it was dark. There seemed to be little dispute about a pedestrian crossing 30/40 metres away from the scene of the accident, and somewhere near the pedestrian crossing was a bus-stop. The plaintiff's allegation was, in substance, one of negligence. It could be readily detected from the tenor of submission advanced on behalf of the plaintiff that full liability was not persisted in. It was ably submitted by counsel for the plaintiff that a greater portion of the blame fairly laid on the shoulders of the defendant.

4. The defendant denied any negligence, and in fact counsel indicated that there was to be no concession given to the question of liability. In the alternative, the defendant raised contributory negligence.

5. It would be perhaps more convenient to start with the situation painted by the defendant. There was no evidence as to the maximum speed limit of this stretch of the road, but it may fairly be accepted that the maximum could not exceed 40 m.p.h. The defendant testified that he was travelling 20-30 m.p.h. It was dark, and he had his head and side lights on. It would appear that his headlights were dipped. There was no explanation from the defendant as to why in the circumstances, which I will come to in a moment or two, he did not raise his headlights. It would seem highly desirable that headlights should be raised in an unwinding long stretch of the road, dark and without streetlights, so that adequate warning given could be of the defendant's approach. The defendant was travelling alongside a double decker bus going up a slope. He noticed that the double decker bus suddenly slowed down. He overtook the double decker bus at the same speed. By the time he was confronted with the plaintiff, according to the defendant, he was in no position to take any evasive action, hence the accident. The defendant further told the Court that he only managed to stop his vehicle in about two lamp-post distance thereafter. The explanation given was that a piece of flying screen glass was interfering with his vision, and in the agony of the situation and in panic, it was quite physically impossible for him to bring his vehicle to an immediate halt. Therefore, it was contended by the defendant and on his behalf that the accident was brought about by the plaintiff making a sudden appearance without any warning and that the defendant could not, in these circumstances, be in any way negligent.

6. The plaintiff also gave evidence. Perhaps before I proceed to evaluate the evidence of the plaintiff, I should say a thing or two about the evidence of the defendant. Admittedly he told the Police Officer at the scene of the accident that he was travelling 40 m.p.h. But he said he was frightened and he only gave the Police Officer a rough estimate. This was the first excuse that I have ever come across, with which a party sought to explain why he further incriminated himself in a moment of alleged panic. It is inconceivable in my view that in a moment of panic, a party to an accident could have unwittingly inflated his vehicular speed. The reverse would have been more likely. The defendant denied that he ever moved his car after the accident. That was in direct contradiction to the evidence given by the Police Officer who was undoubtedly an impartial witness in these proceedings. The defendant told the Court that his car was a 1969 model and that therefore it was perhaps improbable for it to pick up high speed. It was never suggested by counsel nor by the defendant that no car in the condition as that of the defendant's 1969 Ford could have achieved a speed of 40 m.p.h.

7. On the balance of probability, I find that the defendant indeed was travelling 40 m.p.h. He made no error in his statement to the Police Officer after the accident. In my judgment, he unwittingly told the truth in a moment of panic and tried to salvage his position after the accident in his written statement taken by the Police Officer.

8. The defendant further told the Court that his front bumper and part of the left mud guard were dented. He did not dispute that he came upon the plaintiff in the fast i.e. outer lane. It was dark. There was no justification for the defendant to travel at top speed even assuming the maximum speed for that stretch of the road was 40 m.p.h. If indeed there had been no bus as alleged by the defendant, there would have been no excuse whatsoever for the defendant to knock down the plaintiff.

9. The defendant has proved himself to be an unimpressive witness. I have had the opportunity of observing the demeanour of both as well the plaintiff as the defendant in these proceedings. I have no hesitation whatsoever in accepting the evidence of the plaintiff and not that of the defendant.

10. The plaintiff is a young man, slow in mentality as he appeared to me, but one of the most honest witnesses this Court has had for some time the privilege to meet. He was unevasive on matters not to his advantage, and he was pains-takingly determined to tell the whole truth. He told the Court that there was no bus in sight. He explained the precautionary measures taken before he attempted to cross the road. When he saw lights from a distance, the car seemed to be travelling very fast, but he was unable to assess its speed. It was impossible for him to take evasive action resulting in the accident in which he sustained injuries.

11. Let me go back to the bus, alongside which the defendant was travelling, but at a level slightly behind. He gave a written statement, which is included in the agreed bundle, to the Police that the bus suddenly braked; yet he denied in evidence that the double decker never braked suddenly. He claimed that the bus only slowed down suddenly. That was another aspect of the evidence which reflected prevarication. He said that he continued on at the same speed overtaking the bus, which he should not in the circumstances. He explained, however, that he was under the impression that the bus was switching gear for gaining more impetus for the slope.

12. Be that as it may, the main controversy lied in the presence or the absence of the bus. The defendant told the Court that it was quite possible for the bus driver to observe the accident, but he was unable to offer any explanation why the bus did not stop. The evidence of the defendant in relation to the bus was open to grave suspicion. As against that, we had the calm, unexaggerated and unalterated evidence of the plaintiff who categorically testified that there was no bus at the time of the accident. I accept his evidence that there was no bus at all. A possible motive for the defendant's invention of the bus was to account for his collision with the plaintiff, a considerable distance away from the kerb in the outer fast lane. It is speculation, and I do not attach any importance to it. In the circumstances, I have come to the conclusion that in the environment that the defendant found himself, he was travelling indeed much too fast and failed to give an adequate warning of his approach with undipped headlights. There was no justification for the defendant not to be able to notice and take heed of the plaintiff's presence from a safe distance away. He obviously did not keep any proper lookout; nor did he take any or any proper evasive action by reason of his lack of exercise of proper care in the circumstances. The plaintiff had travelled over one lane of the road for two-lane traffic, and the defendant should have been able to see his presence in that long stretch of the road and to take the necessary precautions, such as slowing down, stopping or taking evasive action so as to avoid the collision with the plaintiff. I do not place too much reliance on the distance at which the defendant finally managed to stop after the accident. There was no dispute as to the shuttering of the wind-screen, and it was not beyond the realm of possibilities that the defendant's vision could have been interferred with causing difficulty to stop immediately after the accident.

13. The plaintiff was himself obviously negligent in part. He did not cross the road along the zebra-crossing, although he gave the excuse that it was too far away and obstructed by vehicles and under-growth. It was dark, and he should have at least seen the lights of the defendant's car from a distance and should have allowed it to pass in order to be absolutely, 100% safe. The plaintiff suffered slight hearing defect, and he ought to have given allowance to his disability in a dark night and made sure that circumstances were perfectly safe before his attempt to cross. Some blame must attach to the plaintiff for crossing the road not along a zebra-crossing and for his failure to see the coming of the defendant's vehicle in time or, in the alternative, for his misjudging the safe distance. But the main blame, in my judgment, laid squarely on the shoulders of the defendant. Bearing in mind the minor faults on the part of the plaintiff and a much major portion of blame on the part of the defendant, and doing the best I could in the circumstances, I find the defendant 70% negligent and the plaintiff 30%. Since the defendant contested liability wholly from beginning to end, it would only be fair for me to order costs against the defendant in favour of the plaintiff. I give judgment accordingly.

Representation:

Ms Mary Ho instructed by Munro & Co. assigned by D.L.A. for Plaintiff

Mr. Y.W. Yeung instructed by Foo & Li assigned by D.L.A. for Defendant