Cheung Suet-ying v. Chon Chu-kam and Another

HCA002697/1979

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Coram: Roberts, C.J.

Date of Judgment: 8th December, 1980.

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JUDGMENT

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1. The plaintiff sues as the mother and administratrix of the estate of her son, WONG Kwok-leung, aged 21, who died on 6th April, 1977 as a result of injuries sustained by him when he was riding his motor-bicycle on the Tai Po Road in the direction of Kowloon.

2. The accident took place at about 8.15 a.m., when the traffic was said to be light and the road was dry. The 1st defendant was the owner, and the 2nd defendant the driver, of a goods vehicle, registration number AZ 5174.

3. The Statement of Claim alleged that AZ 5174, driven by the 2nd defendant, was travelling along the New Territories bound carriageway of the Tai Po Road and that it turned to its right across the road intending to enter a construction site, which was being used at that time by a firm called Gammon in connection with construction work for the Sha Tin Race Course.

4. The second witness for the plaintiff, Mr. WONG Chi-keung, was the driver of lorry BL 6808, which was travelling in the direction of the New Territories along the Tai Po Road on the morning of the accident. At first his evidence suggested that vehicle AZ 5174 was not travelling in the same direction as his vehicle, but was coming towards him from the direction of the New Territories towards Kowloon. However, later in his evidence, he explained that he did not himself see AZ 5174 coming towards him, but had assumed that it was because the flow of traffic towards the New Territories had not been interrupted in any way. He thought that it would have been had AZ 5174 crossed the road to the right in front of him.

5. A statement was given by the 2nd defendant to the police on 7th April, 1977, the day after the accident. This statement cannot be used in favour of the person who made it, but it is admissible in so far as it consists of admissions by the 2nd defendant. Passages in that statement make it clear that, at that time, the 2nd defendant was asserting that he had turned his lorry to the right across the Kowloon bound carriageway. I, therefore, find that the defendant's lorry was driving, just before the accident, towards the New Territories.

6. The driver of BL 6808, Mr. Wong, said that he intended to turn into the construction site himself. As he approached it he saw another vehicle, which he identified as AZ 5174, already about half way into the entrance to the construction site. He described how he saw a motor-cycle approaching from behind AZ 5174 and failing to brake in time. The motor-cycle started to wobble and eventually fell.

7. When asked if he was able to estimate the speed of the motor-cycle, he replied that it was speeding, but he could not estimate how fast and added:

"I didn't see if the motor-cyclist was slowing but I did see him try to avoid the impact and failing."

8. I was, unfortunately not much assisted by the motor vehicle inspector's accident reports, which were put in evidence. The report on AZ 5174 refers to damage to the off-side rear mud-wing of that vehicle. If there was a collision between the motor-cycle and that lorry, it could not have been at the point at which the damage had been done to the off-side rear mud-wing of AZ 5174. The point of collision between the motor-cycle and AZ 5174 must have been on the near-side of AZ 5174, as it turned across the carriageway.

9. I have said "if there was any collision" because the evidence as to this by Mr. Wong is not certain. He does at one point say that he saw an impact between them, but later in his evidence, he adds:

"I do not exclude the possibility of a glancing blow and that the cycle may have touched the goods vehicle slightly."

10. However, if the motor-cyclist were placed in a position of peril by reason of the negligence of the lorry driver, it matters not whether he struck the vehicle which had put him in that danger and, as a result of that blow, the cycle was thrown to the ground, or whether, in taking violent evasive action to avoid hitting the lorry, the cyclist so lost his balance and control of his bicylce that he was thrown to the ground.

11. The evidence, as is all too common in these cases, is sparse and I am obliged to have to reach my conclusions as to the liabilities of the parties on the basis of a series of assumptions. I have already accepted that AZ 5174 had crossed the other carriageway of the road so that part, at least, of that vehicle was in its wrong carriageway at the moment when the plaintiff's cycle either struck it a glancing blow or had to swerve violently to avoid doing so. As a general rule, an obligation lies upon the driver of a vehicle, who intends to cross the on-coming stream of traffic, to take all reasonable steps to ensure that he can do so safely.

12. Since, as I have indicated, I cannot take into account the statement given by the 2nd defendant to the police save in so far as it tells against him, I am effectively left with little more than the mere fact that the lorry was its wrong lane at the moment of the collision or near-collision.

13. I decide that this does establish that there was a degree of negligence on the part of the defendant, in the absence of any explanation from him as to how the accident occurred. I am fortified in this finding by the fact that at this point in the road there is an uninterrupted view ahead for two to three hundred yards, as estimated by the police officer who gave evidence. With such a long view the defendant should have been able to satisfy himself that he could cross without danger before he did so.

14. It was submitted, on behalf of the plaintiff, that the admission of the defendant in his statement that he crossed the road without stopping was itself evidence of negligence. I do not think that this is necessarily so. Assuming that a driver has looked carefully ahead of him before turning and has satisfied himself that it is safe to do so, it is surely wise to cross as quickly as possible. Indeed, it could well be argued that the defendant is open to some criticism for not having crossed quickly enough.

15. Having come to the conclusion that a degree of liability must attach, on this very limited evidence, to the defendant, I next have to consider whether any contributory negligence should be attached to the plaintiff.

16. The only evidence as to the speed or manner in which the cycle was ridden is that of the second witness for the plaintiff and I have already quoted the relevant passage from his evidence. As I have already said, from the point where the lorry turned into the construction site, there was an uninterrupted view of two to three hundred yards. Just as this view was available to the driver, so it was to the motor-cyclist. In the absence of any real evidence on the matter, I consider that the motor-cyclist should have been riding at a speed which would have enabled him to pull up if a vehicle crossed his front with a reasonable degree of warning.

17. In his statement to the police, the 2nd defendant admitted, and this was a passage on which the plaintiff placed a degree of reliance, that the motor-cycle was two hundred feet away from the lorry when the 2nd defendant first noticed it. That was at the point when the lorry had already begun to cross the road. The motor-cyclist must surely have seen the lorry considerably earlier than that. I think that if he had been travelling at a reasonable speed in the circumstances, he would have been able to avoid a collision with the rear of this lorry and I must, therefore, attribute a degree of responsibility for the collision to the motor-cyclist.

18. I regard the major cause of the accident as being the act of the defendant in crossing into the other lane without taking sufficient precautions. Recognizing that, in the circumstances, I am largely guessing, I apportion the liability as 75 per cent that of the defendant and 25 per cent contributory negligence by the plaintiff.

19. [The parties, in the light of this assessment of liability, agreed that there should be judgment for the plaintiff for $38,000 with costs, to be apportioned, after deduction of general expenses, as to 80% to CHEUNG Suet-ying, 5% to WONG Yuet-ngo and 15% to WONG Kwok-ching]

Representation:

M. Bharwaney (D.L.A.) for Plaintiff

F. Leung (Kenneth K.C. Wong & Co.) for Defendants