Yuen Man Wai and Another v. Choi Man Lung and Another

HCA006751/1989

1989, No. A6751

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HEADNOTE

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COLLISION BETWEEN ONCOMING VEHICLES IN ONE OF WHICH PLAINTIFF WAS A BACKSEAT PASSENGER - QUESTION AS TO WHERE ACROSS WIDTH OF ROAD COLLISION OCCURRED - ILLUSTRATION OF NATURE AND QUALITY OF TECHNICAL DATE REQUIRED BY AN ACCIDENT INVESTIGATION EXPERT RELIABLY TO FORM A VIEW AS TO HOW A MOTOR ACCIDENT HAPPENED - SUFFICIENT OTHER EVIDENCE TO CONCLUDE THAT EACH VEHICLE PROBABLY ENCROACHED UPON THE OTHER'S LANE - BOTH DRIVERS HELD EQUALLY TO BLAME ACCORDINGLY - EVEN IN ABSENCE OF SUCH EVIDENCE SAME RESULT WOULD HAVE BEEN REACHED UPON APPLICATION OF PRINCIPLE ENUNCIATED IN BAKER V. MARKET HARBOROUGH INDUSTRIAL CO-OPERATIVE SOCIETY LTD [1953] 1 WLR 1472 AND SEEN IN OPERATION IN CASES LIKE HOWARD V. BEMROSE [1973] RTR 32.

1989, No. A6751

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

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Coram: Bokhary, J. in Court

Dates of hearing:  11-12 15-19 and 22 April 1991

Date of delivery of judgment: 22 April 1991

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JUDGMENT

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1. This is a claim for damages for personal injuries and consequential loss.  It arises out of a collision between a Toyota Celica motor car in which the plaintiff - then a minor and now an adult - was a backseat passenger and an oncoming Mazda van. The Celica driver is sued as the 1st defendant; and the van driver is sued as the 2nd defendant.

2. The collision took place at about 20 minutes past 3 in the morning on Saturday, August 15, 1987, in Sai Sha Road in Sai Kung.  Where the collision took place that road bends and consists of one lane in each direction separated by a broken white line. No party has sought to rely on the gradient of the road.

3. At the time the Celica was headed south. Its occupants had been at a barbecue party south of the accident spot. But they had left the party to visit a country park north of it. They were returning from the park to the party when the collision took place. The van was headed north at the time. Its occupants were on a pleasure drive.

4. A car driven by a Mr Lo Hing-yuen had been following the van. The collision between the van and the Celica left the van stretched at an angle across the north-bound lane with its rear by the kerb angled a little to north and its front by the broken white line angled a little to the south. The Celica was left with its offside front corner on the north-bound lane and the rest of it on the south-bound lane. The front of Mr Lo's car ran into the offside front of the van; and that brought his car to a halt. The positions of the vehicles as I have described them are shown in photographs taken by the police sergeant who attended the scene and on the sketch drawn by the police constable who so attended.

5. Quantum is agreed at $879,522. That sum is made up of damages of $837,000 and interest thereon of $42,522.

6. The defendants blame each other. In evidence each said that he was on his correct side of the road throughout and that the other had caused the collision by straying over to that other's incorrect side of the road.

Mr Lo - who was called by the van driver - said that immediately before the collision he observed the van within its own lane and the Celica straddling the two lanes.

7. Each defendant called an expert in the investigation of accidents. The Celica driver called Dr K.K. Chandran; and the van driver Dr E.A. Bruges. Both experts are highly-qualified consultant engineers. Both have considerable experience in the investigation of accidents. Dr Chandran has given evidence as an expert in that field on one previous occasion. Dr Bruges has done so on a number of previous occasions. No doubt both of them have reported more often than they have given evidence.

8. Dr Chandran's expert opinion as to why the Celica and the van collided may be summarised thus. Most probably part of the van encroached upon the Celica's lane while the Celica remained wholly within its own lane. That it 'was the other way round - in other words that part of the Celica encroached upon the van's lane while the van remained wholly within its own lane - is highly unlikely. It is impossible that each vehicle encroached in part upon the other's lane.

9. Turning to Dr Bruges, his expert opinion as to that may be summarised thus. The available technical data does not exclude the possibiity of such encroachment by the van, by the Celica or by both.   Nor does such data point to any one of those possibilities being more probable than any other of them.

10. Having visited the scene of the accident with both sides, listened to the viva voce evidence, read the documentary evidence, examined the drawings and photographs and listened to counsel's addresses, I have come to the conclusion that Dr Bruges's opinion is the more reliable one.

11. The offside front tyre of the van had less tread than the minimum required by law. But what effect that would have had on the van's performance depends on all the circumstances. What do we know of the circumstances?

12. Well, we do know that the road was wet. But we do not know how wet it was. That makes the coefficient of the friction between the vehicles' tyres and the road surface difficult to determine. And in turn that difficulty makes it difficult to determine their limiting speeds for the negotiation of the bend.

13. The bend is rather gentle. Dr Chandrdan - who could not be more precise because he was unable to obtain a survey map showing the bend - put its radius of curvature at about 260 metres. Dr Bruges did not quarrel with that approximate figure.

14. There is a police sketch showing the resting positions of the three vehicles. But it is not drawn to scale. Nor does it represent even an attempt accurately to represent the curvature of the bend.

15. We know that there was debris on the road.  The police sketch shows debris on both lanes. Some of it was between the Celica, the van and Mr Lo's car. Most of it was north of the three vehicles. According to the sketching officer, there was about 1.5 times as much debris on the van's lane as on the Celica's lane. That is about as much as we know of the debris. The photographs support the sketch in regard to the resting positions of the 3 vehicles. But neither depicts the debris with any degree of clarity.

16. We know something about the damage to the Celica and the van - but not very much. There are the motor vehicle examiner's reports. But they are rather sketchy. There are also the photographs of the vehicles: the black and white ones taken by the police at the scene and the colour ones taken by the motor vehicle examiner at the pound.  They are of some use but such use has its limits. Neither Dr Chandran nor Dr Bruges had a chance to see - let alone examine any of the vehicles.

17. There is no reliable evidence that any particular tyre mark left on the road was left by any particular vehicle.

18. As I have indicated, I visited the scene in the company of the legal advisers and experts on both sides. In the course of the visit I viewed the road from the various vantage points requested by the parties and rode in a motor car negotiating the bend twice in each direction. That experience heightened my impression of the difficulty of arriving at a view of how the collision occurred on such technical data as is available to the two experts.

19. So I go back to the evidence of the two defendants and Mr Lo.

20. My impression of them is, that none of them were telling me anything which he did not believe to be true when he gave evidence as to which vehicle encroached upon its incorrect side of the road and which vehicle did not. An honest mistake on the part of a driver as to whether an oncoming vehicle was encroaching upon his i.e. the witness's lane seems in the circumstances unlikely. But in the circumstances an honest mistake by a driver as to whether his own vehicle, or one travelling in his own lane ahead of him, had strayed over to the opposite lane so as to encroach upon it seems a somewhat easier mistake to make. After all, an oncoming vehicle encroaching upon his lane is an immediate hazard which would have a powerful way of arresting his attention. The hazard to a driver like Mr Lo - who was separated from the oncoming vehicle by one travelling in his own lane ahead of him - would be less immediate than the hazard to the vehicle ahead of him. Nevertheless there would be some hazard to him. And it is natural in the circumstances that the vehicle coming at him would make a greater demand on his attention than the vehicle moving away from him. Mr Lo spoke of everything happening very quickly.

21. I accept the evidence of the Celica driver when he says that the van encroached upon the Celica's lane. But I reject his evidence when he says that the Celica did not encroach upon the van's lane. I accept the evidence of the van driver and Mr Lo when they say that the Celica encroached upon the van's lane. But I reject their evidence when they say that the van did not encroach upon the Celica's lane.

22. The probability on the whole of the material before me - including the impression which I formed upon my visit to the scene - seems to me to be this. Both the Celica driver and the van driver encroached upon the opposite lane by reason of insufficient attention paid by them - both young men, one on his way back to a barbecue party and the other on a pleasure drive a few days after getting his driver's licence- to the manner of their driving in the small hours of the morning. I hold them both to blame and equally to blame for the collision between their vehicles as a result of which the plaintiff was injured. I hold them equally liable to him in negligence; and I give him judgment for damages and interest as agreed against both of them.

23. The result would have been the same even if I had not felt able on the evidence to come to any view as to how the collision between the Celica and the van probably occurred. Had that been the position, I would in the circumstances still have held the Celica driver and the van driver to blame and equally to blame. I would have done so on the principle enunciated in Baker v. Market Harborough Industrial Co-operative Society Ltd [1953] 1 WLR 1472 and seen in operation in cases like Howard v. Bemrose [1973] RTR 32 - both decisions of the Court of Appeal in England.

24. Subject to hearing counsel on the question of costs and any other ancillary matters, it only remains for me to thank them all for their assistance.

[Submissions on costs and contribution]

25. I award the plaintiff costs against both defendants; and I leave the defendants to bear their own costs. Contribution notices have been taken out by both.defendants. What I say on them is this. If and in so far as any defendant pays the plaintiff more than half of the agreed quantum or the costs involved, then that defendant will be entitled to recover the excess over half from the other defendant.

Representation:

Miss Pamela Cheng (inst'd by Tai, Ho & Chan) for the plaintiff, the Celica backseat passenger

Mr Ambrose Ho (inst'd by Denton, Hall, Burgin & Warrens) for the 1st defendant, the Celica driver

Mr Denis Yu (inst'd by Ng, Lie, Lai & Chan) for the 2nd defendant, the van driver