William J. Oram v. China Motor Bus Co Ltd and Others
Read the full judgment text of HCA 1828/1973 on BabelCite. This High Court CFI judgment was delivered on 8 March 1974.
1. This action arose from a collision between a car driven by the plaintiff and a motor omnibus driven by an employee of the defendant company which occurred on the 2nd September 1972 as a result of which the plaintiff suffered injuries and damages.
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HCA001828/1973 IN THE SUPREME COURT OF HONG KONG ORIGINAL JURISDICTION ACTION NO. 1828 OF 1973 -----------------
----------------- Coram: Morley-John, J. Date of Judgment: 8 March 1974 ----------------- JUDGMENT ----------------- 1. This action arose from a collision between a car driven by the plaintiff and a motor omnibus driven by an employee of the defendant company which occurred on the 2nd September 1972 as a result of which the plaintiff suffered injuries and damages. 2. At the commencement of the second day of the trial of this action counsel for the plaintiff informed the Court that he had omitted to include in the Statement of Claim a claim for loss of earnings and loss of earning capacity on the part of the plaintiff and therefore he applied to amend the said Statement of Claim to include such losses. The application was opposed by counsel for the defendants. But I allowed the application granting the defendants such reasonable adjournment as they required to enable them to consider the amended Statement of Claim. Counsel for the plaintiff then informed me that it would take some time to produce certain proof of loss of earnings in the way of audited accounts and after an adjournment counsel for the plaintiff, the defendant and the third parties agreed that instead of asking for an adjournment I should proceed with the hearing of the action, but that such hearing should be limited as to the issue of liability and that when such issue had been resolved, then further evidence should be adduced as to the question of damages to be awarded, if any. 3. Therefore this judgment deals only with the issue of the liability of the parties concerned. 4. The plaintiff is a doctor of medicine practising general surgery obstetrics and gynaecology. At about 3.30 in the afternoon of the 2nd of September 1972, he was driving his private car from Shek 0 in the direction of Shaukiwan. His final destination was to have been the Canossa Hospital where he was due to visit a patient. Upon rounding a bend in Tai Tam Road between culvert T.T. 96 and culvert T.T. 97 and travelling on his correct side of the road he was involved in a collision with a motor omnibus owned by the defendant company driven by one of its servants which omnibus was proceeding in the opposite direction from that of the plaintiff and was in the process of returning from its right hand side of the road, i.e. its wrong side to the left hand side of the road, but at the time of collision it had not completed this manoeuvre and the omnibus struck the plaintiff's car with its off-side mudguard and part of its off-side engine cowling. After the collision, the plaintiff's car ended up diagonally across the road with its off-side front wheel on the left white line of the double white line which ran down the centre of the road and the back of the car rammed into the hillside on the left hand side of the road. The omnibus came to a halt with its front off-side wheel just past the front off-side wheel of the plaintiff's car and fractionally to its left of the double white line but with the rest of its off-side over and to the right of the double white line. This is clear from the sketch plan drawn by police constable 5713 at the scene of the collision. The Court together with the counsel and their instructing solicitors also visited the scene. Evidence was adduced that the omnibus was fully laden with 30 seated passengers and also some standing passengers and that its unladen weight was 6 tons, so at a conservative estimate I would judge that the fully laden omnibus would weigh somewhere in the region of 8 tons. I am also satisfied from the way that the rear of the plaintiff's car was rammed into the hillside and the fact that the off front side of the omnibus ended up just past the front of the plaintiff's car that the force of the collision had slewed the plaintiff's car across the road as I have described. 5. The plaintiff gave evidence that he was driving his private car, a Rover 2000, at a speed of between 25 and 30 m.p.h. at the time of the collision. That the car had four forward gears and that he was in third gear having changed down from top gear for a fairly sharp corner just prior to the bend on which the collision took place and that he was travelling on his left hand side of the road. As he drove round the bend in question the plaintiff stated that he saw a minibus on the opposite side of the road approximately 70 feet in front of him. He said that he believed it to be stationary. He then saw the defendant's omnibus approaching him on his, the plaintiff's, side of the road and that it was just starting to cross back towards the double white line to its correct side of the road and that the bus appeared to be moving slowly. The plaintiff said that he immediately braked hard but as he put it "the bus was almost upon me" and that was all he remembered until he later recovered consciousness still in his car. He estimated that the ombibus was about 50 feet in front of him when he first saw it, but the plaintiff agreed that his seeing the omnibus and the collision all happened in a fleeting second. According to the table contained in the 7th edition of Bingham's Motor Claims Cases, which has not been disputed, at 25 m.p.h. the plaintiff's car would have been travelling at 36.66 feet per second and at 30 m.p.h. at 44 feet per second. 6. It was suggested to the plaintiff that he was travelling at a speed in excess of 30 m.p.h. and that he was in a hurry to reach his patient at the Canossa Hospital as she was in labour expecting her first child. He denied this, he said that he was familiar with the journey from Shek 0 to the Canossa Hospital via Shaukiwan which normally took 40 minutes. That he had last examined his patient at 12. 15 p.m. that day and from his examination he could anticipate the progress of her labour, that he had told the hospital at what stage he was to be called and that there was no urgency when he received the message from the hospital. In fact it was agreed that the patient did not give birth until 5. 15 p.m. 7. Counsel for the defendant drew my attention to the sketch plan made at the scene of the accident by P.C. 5713 which indicated that there were tyre marks on the road behind the plaintiff's car, one mark measuring 38 feet 7 inches from the front off-side wheel and one measuring 34 feet 11 inches from the position near to the off-side rear wheel. Counsel has submitted that these marks indicate the plaintiff's car was travelling at a speed of well over 30 m.p.h. when the bus was sighted. I cannot agree with this submission. Again referring to the Bingham's Motor Claims Cases the braking distance of a private car at 30 m.p.h. is 45 feet, and the overall stopping distance at that speed adding what is termed the thinking distance is 75 feet. There is no evidence as to what speed the plaintiff's car was still travelling when it actually collided with the omnibus. However the driver of the omnibus Mr. SIN Kam-wah stated that when he first saw the plaintiff's car it was about 50 yards a way and it was travelling at over 40 m.p.h. and that his vehicle was travelling at about 10 m.p.h. He said that at the moment of impact his vehicle was stationary. I do not believe him. Before he was asked whether his vehicle was still moving at the moment of impact, he had given clear evidence that when he first saw the plaintiff's car according to him about 50 yards away travelling at over 40 m.p.h. he slowed down and pulled back to his own side of the road as much as he could, that he steered his vehicle to his own side of the road as much as he could but that the car ran into the front off-side of his bus. Also in cross-examination he agreed that his vehicle was stopped by the collision. From the sketch plan it can be seen that when the omnibus stopped not only was the whole of its off-side with the exception of its very front off-side corner either on or well over the double white line but that the front of this omnibus was past the front of the plaintiff's car which had been pushed diagonally across the road by collision and from photograph Exh. P1 it can be seen that the rear of the plaintiff's car had been forced into the hillside while the off-side front wheel of the car was resting on that part of the double white line on its side of the road. 8. For the avoidance of doubt, I must stress that it is agreed that when the photograph Exh. P1 was taken although the plaintiff's car had not been moved, the omnibus had, and only the sketch plan shows the position of the latter immediately after the accident. Also P.C. 5713 said that he did not notice any braking marks on the road behind the omnibus. 9. I am satisfied that the omnibus was still travelling forward when it collided with the plaintiff's car. Counsel for the defendant has also drawn my attention to the damage sustained by the two vehicles. He has said that the rear window of the plaintiff's car was shattered and he has asked me to infer that the impact was very severe, while at the same time, he points out to me, that the bus was only lightly damaged: I am satisfied after looking at the photograph Exh. P1 that in all probability the rear window of the plaintiff's car was shattered as a result of the impact of that car with the hillside and I am also satisfied that if the plaintiff's car had been travelling at a speed of over 40 m.p.h. as stated by Mr. Sin when he first saw it, then the impact with a 8-ton omnibus travelling albeit slowly would have caused considerably more damage than is shown in the various photographs. 10. I have no hesitation in believing the plaintiff's evidence. I was most impressed by the way in which he gave his evidence, in fact the way he gave his evidence both in chief and under cross-examination was more in the manner one would expect from a completely impartial witness rather than that of a plaintiff. 11. The defendant submits that because of the speed of the plaintiff's vehicle the plaintiff was partly to blame for the accident. He alleges contributory negligence on the part of the plaintiff, in other words, that the plaintiff failed to take such care as a reasonable man would take for his own safety and that this failure to take care was a contributory cause of the accident. However, as I have said, I have no hesitation in believing the plaintiff's evidence and the defendant has not satisfied me that there was any negligence on the part of the plaintiff. I am satisfied that he was driving at a perfectly proper speed under the circumstances and that he was driving on his correct side of the road and I find that no blame can be attached to the plaintiff for the unfortunate collision in which he was involved. 12. The defendant also alleges that the accident was caused by the negligence of the first third party as agent or driver of the second third party or as a person having control of a public light bus with the permission of the second third party. In his Statement of Defence, inter alia, the first third party denies that he was acting as the servant or agent of the second third party and the second third party in his Statement of Defence, inter alia, disclaims all legal liability for the acts of the first third party in that he, the second third party, had hired the public light bus to the first third party who was driving merely for his own benefit and concern and was not driving for the second third party. However, counsel for the first and second third parties informed me that he withdraws that part of the defences covering a servant or agent and that the defence of the two third parties is that the accident was caused by or was contributed to by the negligence of the defendant or his servant or agent and that on this defence the two third parties stand or fall together. 13. The negligence alleged by the defendant on the part of the first third party, the driver of a public light bus, hereinafter referred to as it was in evidence as the minibus, is that he stopped the said minibus on this blind bend in Tai Tam Road between culvert T.T. 96 and culvert T.T. 97 and when the defendant's omnibus drew up behind the stationary minibus the first third party negligently signalled the defendant's omnibus to overtake and in response to this signal the driver of the omnibus pulled over to the right hand side of the road to pass the minibus and it was for this reason that the omnibus was on its wrong side of the road when it collided with the plaintiff's car. 14. The driver of the defendant's omnibus, Mr. SIN Kam-wah, gave evidence that on the afternoon in question he was driving the defendant's omnibus from Shaukiwan to Shek 0 and that he was familiar with this particular route. That he had reached this bend in Tai Tam Road when he saw the minibus stationary at the side of the road that he slowed down and then stopped behind the minibus. That he stopped for about 20 seconds. Mr. Sin at first said that he could see over the top of the minibus from his driver's seat and he said that he could see about a hundred yards of the road ahead. From my observations at the scene I was satisfied that this evidence could not be true, Mr. Sin could not see round that corner. He was asked why if he could see for a hundred yards ahead did he stop his omnibus and he said that he could not see clearly. It was not until the final stages of his evidence that the matter was clarified when he explained that what he meant was that he could see ahead only on the left hand side of the road but because of the bend he could not see any vehicle which might be approaching round the bend on its correct side of the road. He said that after he had stopped for about 20 seconds the driver of the minibus signalled to him to pass and that he then sounded his horn and started to pass the minibus by driving on the right hand side of the road. That as he was pulling back to his correct side of the road the collision occurred. 15. Mr. Sin said that after the accident he approached the minibus driver and asked him what was wrong with his vehicle and that the driver said that the radiator was overheating. At one stage in his evidence he also said that he spoke to the minibus driver before he passed him. He said that if the minibus driver had not waved him on he would never have overtaken the minibus. When asked what he would have done he said that he might have alighted and asked the minibus driver to go and stop on-coming traffic so that he could overtake. 16. Under cross-examination Mr. Sin agreed that he was familiar with the stretch of road where the accident occurred and that he was familiar with the bend in question and he knew how long the bend was before the road straightened out. He agreed that because of this bend in passing the minibus he would be unable to get back to his proper side of the road in time to avcid any vehicle which might be coming in the opposite direction on its correct side and he agreed that because of his knowledge of the road he knew that there may be traffic coming in the opposite direction which would not be in his view because of the fact that his view was obscured and therefore that it might be dangerous to overtake the minibus even if the driver of the minibus gave a signal that it was safe to do so. On the other hand throughout his evidence he was quite adamant that he would never have passed the minibus unless the driver had waved him on. He said that as he was passing the minibus the speed of his vehicle was about 10 miles an hour. It was put to him that he never made any mention of the fact that the driver of the minibus waved him on in his statement made to the police after the accident Mr. Sin said that he did. The statement was produced and he agreed that no mention of his having been waved on appeared in that statement however he said that he was quite certain that he had told the police about that. 17. Mr. NG Cheuk-kin, an assistant station regulator employed by the defendant, also gave evidence that at the time in question he was a passenger in the omnibus travelling towards Shek 0 to take up his duties there. He said that he was sitting in the second row from the rear of the omnibus next to the near side window. He said that while travelling along Tai Tam Road just before the accident the omnibus stopped for 20 to 30 seconds and that the place where it stopped was not a scheduled stop. He said that the omnibus then moved towards the right hand side of the road, that he could not see through the front window of the omnibus because of the standing passengers. He said that as the omnibus was moving obliquely across the road towards the right hand side he saw a stationary minibus in front of them and he saw the minibus driver wave the omnibus on and that after passing the minibus as the omnibus began to swerve back to its correct side of the road he heard a skidding noise from ahead of them and he then heard a bang whereupon the omnibus stopped. Mr. Ng said that he got out of the omnibus and walked up to see what had happened and found that the omnibus had been in collision with a private car. He asked the European driver of the car if he could help him but merely received a hand gesture in reply, whereupon he went in search of a telephone in order to report the accident. As he passed the minibus he asked the minibus driver why had he stopped there and received as the reply, "because the water is boiling" He said that when the minibus driver said this to him the omnibus driver was right behind him but he did not notice whether the latter spoke to the minibus driver or not. That he then went to a nearby telephone and dialled 999 after which he returned to the scene to find that the minibus was no longer there. Mr. Ng said that directly after the accident the minibus was about 10 feet behind the omnibus. I have no reason to doubt this witness's evidence. He appeared to me to be a thoroughly honest witness and from my observation at the scene if the minibus was in this position then the driver could not have seen the whole of the road clear ahead of him round the bend. The plaintiff in his evidence also said in effect that he saw the minibus and the omnibus only a split second before the collision as he came round that bend. 18. The first third party, LEE Shing-lap, the driver of the minibus, gave evidence. I must say I was not impressed by the way that he gave his evidence. So far as the collision is concerned his evidence can be summarised in one sentence. He saw nothing, said nothing, and did nothing. In giving evidence-in-chief he said that on the afternoon in question he was driving the minibus which was fully loaded along Tai Tam Road towards Shek 0. That when he got to the bend in question the engine of his vehicle stalled because it had overheated and was boiling. He said that the did not notice the defendant's omnibus draw up behind him and remain standing behind him for about 20 seconds. He said that nobody from the omnibus spoke to him at any time but he did say that he saw the omnibus overtake him. However he denied that he signalled the omnibus in any that to proceed past him. He said that the omnibus never sounded its horn. He said that there was a collision about 20 to 30 feet ahead of him and when he was asked if it was between the omnibus and the private car he said that he did not see this collision. He said that he did not speak to either Mr. Sin or Mr. Ng. In fact he said that he did not speak to anybody and that nobody spoke to him. He said that he realised that there had been an accident because he heard the passengers talking about it. He said that as soon as it had cooled he restarted his engine and drove back towards Shaukiwan. 19. In cross-examination Mr. Lee was asked if he said anything to the people he heard talking about the accident. At first he said that he could not remember and then he said that he definitely did not speak to anyone. He said that he believed that there was a collision ahead of him but that he saw no sign of this collision. He said that perhaps the omnibus had run into the hillside. He said that he made no effort to find out what had happened. He was asked how far ahead could he see when the minibus had stalled and he said about 40 feet. If this is correct then it would cast some doubt on his evidence-in-chief when he stated that the distance between him and the bus at the time of the collision was between 20 to 30 feet and that he heard a bang 20 to 30 feet from the front of his vehicle. He was on the left hand side of the road, the omnibus was across the road and the bend curved to the right. His vision of the car may have been blocked by the omnibus but he did not say so. He said he saw no signs of the collision. Mr. Lee agreed that he had stopped at a place where it was dangerous for anybody to overtake him but even so he did not keep a lookout to see if anything was behind him. He said that his minibus had been stationary for about 1 minute before the omnibus passed him. He said that during that time he had only tried to restart his engine once and he said that when the omnibus passed him it was travelling at about 20 miles an hour making a noise as though it was revving its engine, which to me would indicate that the omnibus was just starting up from having been stationary and would therefore not be travelling at 20 miles an hour. He said that he paid no attention whatsoever to the accident and as soon as he could he started his engine and drove off. He said that he did not want to be involved in any trouble. 20. From the evidence as a whole I am satisfied that this minibus driven by the first third party did break down on this blind bend. I am satisfied that the defendant's omnibus did come up behind the minibus and stop for a short period of time and that in response to a signal to proceed given by the minibus driver the omnibus proceeded to overtake the minibus. Whether or not the driver of the omnibus sounded his horn is perhaps a matter of doubt. The driver said he did, the omnibus driver said he did not, and the regulator, Mr. Ng, whom I consider an honest witness, said that he did not hear anybody being sounded. In the circumstances of this case except so for as it goes to the credibility of the witness I consider that it is of little importance whether or not the driver sounded his horn or not. I am satisfied that after the accident at least Mr. Ng spoke to the minibus driver and was told that the minibus was stopped because it had overheated. I do not believe Mr. Lee when he said that he never spoke to anybody after the accident. If his evidence on this point was true it would appear to impart some clairvoyance on the part of Mr. Sin and Mr. Ng in that they said that the driver told them that the minibus had overheated, which the driver said was correct, if the driver himself had not told them. 21. I am satisfied that neither Mr. Lee not Mr. Sin could see safely round that corner when Mr. Lee signalled the omnibus to proceed and I am satisfied that they both participated in this dangerous venture which was the sole cause of the accident. 22. The question that remains to be decided is what portion of the blame for this accident should be attributed to the defendant and what to the third parties. In a case somewhat similar to the present case Grange Motors, Ltd. v. Spencer(1) the defendant was in his car approaching a bend in the road, a post office van was parked at the bend partly on the road way, that the defendant saw the postman looking in the opposite direction and then make a gesture or signal to him which he took to mean that it was safe for him to pass, in passing the defendant had to go over the centre line of the road. The plaintiff's vehicle came round the bend in the opposite direction and the defendant was unable to avoid colliding with it. The County Court Judge held that the postman was wholly to blame for the accident. On appeal the Court of Appeal although it would appear not wholly to have approved of certain aspects of the learned trial judge's judgment, on the facts of that case dismissed the appeal. The Court in its judgment referring to the case of White v. Broadbent & British Road Services, Ltd.(2) found that a person cannot with impunity and with complete recklessness give a signal to other drivers who may not be as able as he is to see what the true traffic position is and it was felt that the learned trial judge was absolutely right in holding that a duty existed in that case and that there was no doubt that the postman was negligent in the manner in which he discharged that duty. However, in his judgment, Edmund Davies, L.J., made the following observation. He said:
Again in his judgment in the same case Sachs, L.J., observed
23. In the case of White v. Broadbent & British Road Services, Ltd. referred to above, in the circumstances of that case again a case where a driver of a van had been given a signal to pass by the driver of a stationary lorry with resulting damage to the plaintiff, the Court of Appeal upheld the trial judge's finding that the lorry driver was 80% to blame and the van driver 20% to blame. 24. In this present case I am satisfied that the driver of the minibus acted completely irresponsibly and negligently, when he signalled the omnibus to overtake he could not see sufficiently far ahead to insure that there was no traffic approaching from the opposite direction. On the other hand the driver of the omnibus admitted that because of his knowledge of the road, under the circumstances he knew that there might be traffic coming in the opposite direction which would not be in his view and that it might be dangerous to overtake the minibus even with a signal that it was safe to do so. I do not consider that the driver of the omnibus acted with reasonable care, knowing the road as he did. 25. I therefore find both parties negligent and as to the degree of negligence I find that the third parties were 60% liable and the defendant 40% liable for the damage suffered by the plaintiff.
Representation: J.D.M. Donnelly (Gordon Hampton & Winter) for plaintiff. F. Eddis (Ngan & Wong) for defendant. M. Asome (Johnson, Stokes & Master) for 1st and 2nd third parties. (1) [1969] 1 All E.R. 340 (2) The Times, Nov. 29, 1957 (C.A.) |