Yau Fung Lin v. Chan Yat Sun and Others

HCA001536/1980

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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Coram: Silke, J.

Date of Judgment: 24th February, 1981.

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JUDGMENT

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1. On the 30th June 1979 the plaintiff, Yau Fung Lin, a woman aged twenty four, was a passenger in a private car owned by the 1st defendant and driven by the 2nd defendant. There were three other passengers in the car together with the driver.

2. The car was travelling along South Lantau Road in the direction of Mui Wo - or Silvermine Bay - and having crested a small rise was approaching the junction of Tung Chung Road with South Lantau Road, the junction being on the car's left hand side.

3. The time was about 7 p.m. though there was still ample daylight, the sky was overcast and the road wet from previous rain.

4. In the opposite direction was coming a single deck bus owned by the New Lantau Bus Company, the 3rd defendant, and driven by the 4th defendant. This bus was full, carrying thirty-eight passengers.

5. It had come down a slight incline, crossed that which is described as a bridge and was approaching the mouth of the Tung Chung Road junction on its right.

6. There were no other persons, animals or vehicles on the road at the time and the road itself was divided into two carriage ways by means of intermittent white lines painted on it.

7. At a point almost opposite the centre of the mouth of the Tung Chung Road junction and in the middle of South Lantau Road the vehicles came into collision. The bus stopped almost immediately but the car carried on and ran head on into a lamp post on its left hand side of the road end placed at the far side in relation to the car, of the road junction.

8. The plaintiff was injured and lost her left eye. She also had comparatively minor scarring on her nose, cheek, lip and eyelids. There was a claim for loss of earnings and minor amounts of special damage.

9. It has been agreed that the quantum of damages be the sum of $173,800 all in, including interest. The real fight here is between the first and second group of defendants as to who should pay that sum. It is conceded that neither is attacking the plaintiff.

10. After the collision the bus driver made a report to Cheung Sha Police Station and, upon his return to the scene, found all his bus passengers had left.

11. Shortly thereafter Police Constable 11779, then of the Lantau Traffic ...(illegible) reached the scene took measurement, drew a rough sketch from which he later made a scaled drawing on ruled paper (P4) and conducted a cursory examination of the two vehicles. A Police Sergeant who arrived later took photographs which are before me by consent - being contained in Bundle A the record of the trial of the 4th defendant in a Magistrates Court. Of this more later.

12. The Constable recorded a brake mark leading to the rear right wheel of the car and running for a greater part of its length along the intermittent white lines. This was in two parts a short mark. 1.8 m in length and a long mark 25 m in length. This latter mark ran for 18.5 m along the white line and then broke away, curving to the left for approximately 6.5 meters up to the rear of the car where that vehicle rested bonnett first against the lamp post.

13. There were no brake marks on the side of the road occupied by the bus and that vehicles right rear corner was 0.4 m inside the white intermittent lines and it was at a diagonal, its left front corner being close to its left hand side of the road and its right front corner being approximately 0.8 m from the white lines.

14. There was a bus stop on the left hand side of the road going towards Tai 0 about 22 m from where the bus was seen to be.

15. On his look at the vehicles the Constable noted that the right front bumper of the bus was dented and scratched. In photograph 12 in Bundle A this can be seen as the lower part of the front right side of the bus forward of the right front wheel.

16. He saw the middle of the front of the car was dented also that the right hand side mudguard, forward of the right front wheel, was scratched and dented and there were scratch marks down the side. This damage can be seen in photograph 15 of Bundle A, and to a lesser extent in photographs 13 and 14 of the same Bundle.

17. I should interpolate now that there are also before me, and by consent, photographs of the road itself taken on a later date which are of assistance when considering the sketch P4. These are marked B.

18. Mr. Lee Kwok Man the car driver, recently licensed at the time of the accident, says that he was driving back from Cheung Sha beach to Mui Wo for his evening meal. He and his passengers were late for that meal. As he crested the rise he saw the bus coming towards him.

19. When first asked what speed he was travelling at Mr. Lee said "I did not look at the speedometer." Later he estimated his speed at "30 odd m.p.h.". He was keeping inside the middle lines about a foot or so out from his left hand side of the road. The bus, he says, was travelling at ordinary speed but was partly across those dividing lines. He got the impression the bus was going to turn right - that is towards Tung Chung Road. He goes on that he braked but the vehicles were too close and though he "steered as far as I could to the left" the collision occurred.

20. This last statement I do not accept as the brake marks show no such manoeuvre until after the impact - and at this point I think it was involuntary. Further if Mr. Lee had so steered then he must, again from the brake marks, have been well on his wrong side of the road in the first place.

21. In a statement he made to PC 11779 on the 4th July 1979 (P1), and upon which he was cross examined by Mr. Mayne who appeared for the 3rd and 4th defendants, Mr. Lee had said he first saw the bus when it was 300 feet away from him across the white line and that, before the vehicles came into contact, he reduced his speed and the bus; was driven back on its own carriageway. But "when the bus was 50 feet away from my car suddenly the offside front part of the bus had passed my carriageway ..... I then applied my brakes to evade it but at that time I had not turned the wheel" The impact then occurred. I accept that the "300 feet" is an estimate and not necessarily accurate but the road is quite straight and visibility for some distance unobstructed.

22. From this point on in the cross-examination Mr. Lee's memory deteriorated, he however did agree that he moved closer to the white lines after cresting the incline and having seen the bus.

23. He denied joining in the conversation being carried on between his passengers and said he did not know if he were paying attention to that conversation. It was his evidence that two of his passengers were in the front seat with him, including, the plaintiff. This piece of evidence differs from that given by one of his passengers, Miss Yau Ying, a relative of the plaintiff, who said there were three persons in the back, she in the middle, and who was talking to the plaintiff in the front prior to the collision.

24. In addition to Miss Yau there was also called another passenger Mr. Wong Siu Keung who had been seated in the left rear seat next to the window. He is a non-driver and Miss Yau is now learning to drive.

25. Mr. Wong said he did not remember very clearly what happened but that before the impact he saw what he described as a shadow - the bus apparently.- about 30 to 40 feet away and it "appeared to have gone over a little the white line" and was still over the white line at the moment of impact. The car he says was not going very fast.

26. However he was in my view a confused witness and he was correct in saying that his remembrance of that which happened was not very clear.

27. Miss Yau says she looked up from her conversation with the plaintiff and saw, about ten feet away, the bus coming towards the car and "very very little" over the white lines. It was turning she thought but it all happened very quickly. At first she said she was rushing to the pier at Mui Wo - "rushing home" - later she denied that this was so or that she said it.

28. Neither of these witnesses impressed me as having any real recollection of events immediately preceding the collision.

29. The bus driver Mr. Cheung Ah Kwei who had been employed by the company for about a year prior to the accident and who is Lantau born and bred, said he was on the Mui Wo to Cheung Sha route and had been working, with a short break for lunch and short breaks at each end of his journey, from about 9.30 a.m. that morning. His route took him straight along South Lantau Road and having come down the incline and crossed the bridge he saw the car about 100 feet away from him coming towards him "wobbling" from left to right, close to the while lines and going very fast.

30. He slowed down partly because of that which he saw and partly because he had a passenger who wished to alight at the bus stop a little further on. He placed the wheels of the bus about two feet inside the white lines. He heard noisound of brakes and the impact then occurred. He did not have time to sound his born and he estimated the speed of the car as 60 m.p.h. He marked on my photostat of P4 the point of impact as being on the white lines where the "M" of the word "mark" appears on that photostate.

31. The road is 7.4 m wide overall, each carriageway being 3.7 m width. The width of the bus is 2.4 m and of the car 1.5 m. It will be seen from this that the bus takes up the major part of its own carriageway and it is the evidence that there is a valley at the road edge on the left hand side of the bus.

32. Mr. Cheung also made statements to the police. One (P2) on the day of the accident and one (P3) on the 19th July 1979 and he was cross examined upon them. These statements are generally in line with the evidence he gave in the trial and place his speed at 15 m.p.h. at the time of impact. He did not move his vehicle once it came to a halt after the accident.

33. He agreed with Mr. Ramanathan, who appeared for the 1st and 2nd defendants, when it was put to him that he was very close to the white lines at the time of impact but disagreed that he was over those white lines.

34. There is however another element in this matter, apart from the oral evidence given, and that is the bus dirver's guilty plea to a careless driving summons. This plea was made in Western Magistracy on the 29th February 1980 at a time when Mr. Cheung was represented by solicitor and counsel.

35. The prosecution facts alleged, briefly, that the car driver saw the bus coming towards him "straddled" across the white centre line. The car driver braked and went into a skid. The bus driver saw this and moved to the left side of his road to avoid a collision but did not move sufficiently over.

36. The Brief Facts go on: "Investigation by PW1 (who I take it was Constable 11779) at the scene showed that at no time did V1 (the car) cross the white line into the opposing carriageway". While this is factually accurate it rather begs the question of the brake mark along the top of the white lines.

37. Be that as it may, the magistrate's record notes: "Facts agreed per summary 'A'" and "Facts admitted".

38. In his evidence before me Mr. Cheung states that he never said anything at all - uttered no words - before the trial magistrate. I find that particular assertion hard to accept. He goes on to say that he was never told at all about the Brief Facts of the case - summary 'A' in the record - and that they were not read out to him. He does however say that the lawyer who represented him read out "all things necessary asked me if plead guilty or not - that is all".

39. He pleaded guilty, he says, because he had a previous conviction for careless driving and he was very concerned that if there were a full trial and if he were convicted he might find a sentence of disqualification imposed upon him. His elder brother had told him this was a possibility.

40. In direct examination he was ambivalent in his answers as to whether or not his "lawyer", as he put it, read out the facts to him though he did say that he told that person that he agreed with the facts. I might add that counsel before me was not the counsel in the Magistrates Court.

41. The statement of claim, and the defence of the 1st and 2nd defendants, both recite this conviction and rely upon it as evidence of the 3rd and 4th defendants' negligence.

42. What is the effect of this? Mr. Mayne has referred me to the judgment of Denning L.J., (as he then was) in J.W. Stupple v. Royal Insurance Co. Ltd.⁽¹⁾ in relation to a conviction as evidence.

43. The Lord Justice at p236 had this to say:

"In addition counsel for Mr. Stupple sought, as far as he could, to minimise the effect of shifting the burden. In this, too, he did not succeed. The act does not merely shift the evidential burden, as it is called. It shifts the legal burden of proof. I explained the difference long ago, in 1945, in an article in the Law Quarterly Review. Take a running down case where a plaintiff claims damages for negligent driving by the defendant. If the defendant had not been convicted the legal burden is on the plaintiff throughout. But if the defendant had been convicted of careless driving the legal burden is shifted. It is on the defendant himself. At the end of the day if the judge is left in doubt the defendant fails because the defendant has not discharged the legal burden which is on him. The burden is no doubt the civil burden. He must show on the balance of probabilities, that he was not negligent: see Public Prosecutor v. YUVARAJ in the Privy Council quite recently. But he must show it never the less. Otherwise he loses by the very force of the conviction."

44. Later on that page the Lord Denning goes on:

45. While Lord Denning had for consideration there a conviction for robbery and the provisions of the Civil Evidence Act 1968, he did enunciate principles which, with the greatest respect, I have no hesitation in adopting. I do note that Buckly L.J. differed from Lord Denning and Winn L.J. expressed no opinion on the issue.

46. Buckly L.J. at p239 said:

"In my judgment no weight is in this respect to be given to the mere fact of a conviction." He then went on to give his reasons and continued: "Many examples could be suggested of ways in which what had occurred or did not occur in the criminal proceeding may have a bearing on the judge's decision in the civil proceedings: but the judge's duty in civil proceedings is still to decide the case on the evidence adduced to him. ..... He is not concerned with the propriety of the conviction except so far as his view of the evidence before him may lead him incidentally to the conclusion that the conviction was justified or is open to criticism, but even if it does so, this must be a consequence of his decision and cannot be a reason for it. The propriety or otherwise of the conviction is irrelevant to the steps leading to his decision."

47. Here I have, and by agreement, as part of the evidence the evidence of that which took place in the magistrates court. It is in my view something which I must consider in arriving at my decision just as I must consider all of the evidence adduced. What, if any, weight I give to that conviction is a matter for me on the whole of the evidence in this trial. If it stands unsullied it would be sound evidence of the negligence of the convicted 4th defendant.

48. In my judgment that which took place here was that when first seen by the car the oncoming bus was partially over the white lines. The car was then travelling at a speed greatly in excess of the "30 odd m.p.h." given in evidence by the driver and closer to the 60 m.p.h. mentioned by the bus driver - though the latter is not a figure I would adopt. I would find the speed of the car to have been excessive in all the circumstances and in particular in the light of the nature of the South Lantau Road and its condition that evening.

49. I think the bus driver, upon seeing the oncoming car and the pace at which it was travelling, to have slowed down and to have moved inside the white lines so that at the moment of impact he was very close to them and inside them but not as close as he could have been to his own left hand side.

50. The car driver panicked, possibly through inexperience, and instead of keeping well to his own side - and he had space and time to do so had he been driving carefully - braked heavily and, given his excessive speed, lost control of his vehicle. He did not, as he said, swerve closer to his side of the road. He continued on after impact to come into violent contact with the lamp post onnhis left hand side of the road. The bus came to rest immediately upon impact.

51. In Stupple I do not think Lord Denning to be saying that if the conviction is not avoided then that is the end of the matter as regards negligence. I do not think him to have intended to remove any consideration of contributory negligence, should it exist, by a plaintiff and I do not read the judgment in that light.

52. I do not think the 4th defendant here to have overthrown the conviction on the balance of probabilities. He should, and could, have been closer to his ownsleft hand side of the road.

53. That having been said this is not a Baker v. Market Harborough Industrial Co-operative Society Ltd.⁽²⁾ type of case. There is a means of clearly distinguishing as between the two vehicles.

54. It is clear on the evidence that the accident in the main was caused by the negligence of the 2nd defendant.

55. In my judgment on the evidence the car driver was to the extent of 80% to blame and that of the bus driver as to 20% to blame for this accident.

56. There will be judgment for the plaintiff to be paid as to 80% by the 1st and 2nd defendants and as to 20% to be paid by the 3rd and 4th defendants.

57. Judgment entered against the 1st, 2nd, 3rd and 4th defendants in the sum of $173,800.

58. Costs to the plaintiff: Plaintiff costs to be taxed and taxed under Legal Aid Regulations.

59. The costs awarded to the plaintiff to be paid by the 1st and 2nd defendants as to 80% and by the 3rd and 4th defendants as to 20%.

Representation:

Mumford Esq. (Rowdget W. Young & Co.) for plaintiff.

K. Ramanathan Esq. (H.A. Hoosenally & Co.) for 1st and 2nd defendants.

R. Mayne Esq. (Stevenson Low & Co.) for 3rd and 4th defendants.

(1) [1970] 3 ALL. E.R. 230,236

(2) [1953] 1 W.L.R. 1472