Choi Chi Ming v. Pau Kwong Hon
Read the full judgment text of CACV 132/1983 on BabelCite. This Court of Appeal judgment.
1. Like so many traffic accident cases this was a difficult action to decide by reason of the paucity of the evidence. Our task has, however, been unusually difficult by reason of a failure at the trial to ensure that reference to the several lanes in the carriageway were unambiguous, that all the exhibits and copies thereof were clearly marked and that a comprehensible note was kept of the evidence.
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CACV000132/1983
BETWEEN
------------ Coram: Sir Alan Huggins, V.-P., Yang & Barker, JJ.A. Date of Judgment: 28th February 1984 ___________ JUDGMENT ___________ Sir Alan Huggins, V.-P. : 1. Like so many traffic accident cases this was a difficult action to decide by reason of the paucity of the evidence. Our task has, however, been unusually difficult by reason of a failure at the trial to ensure that reference to the several lanes in the carriageway were unambiguous, that all the exhibits and copies thereof were clearly marked and that a comprehensible note was kept of the evidence. 2. A collision occurred between two motorcycles which had passed through the harbour tunnel from Hong Kong to Kowloon. Both drivers were injured, one of them seriously. They brought cross actions for damages. To avoid confusion I shall refer to the parties as Mr. Pau and Mr. Choi. 3. On the Kowloon side of the tunnel there is a large number of toll booths. Beyond them the unmarked carriageway gradually narrows into a section of road which is marked in lanes. There was no evidence as to the precise layout of the lanes until a spot was reached which was approximately opposite the north-east corner of the main area of the Polytechnic Buildings as shown on the survey plan. There were then four lanes, which I shall number from the left, 1 to 4. Shortly, thereafter the carriageway divides, part going down to the left (taking traffic to Tsim Sha Tsui and Mong Kok) and part continuing at roughly the same level as before (taking traffic to Ho Man Tin, Lion Rock Tunnel, Hung Hom and Kwun Tong). Lane 1 goes into the left fork and lanes 3 and 4 go into the right fork. Lane 2 first widens and then divides, half (2a) going into the left fork and half (2b) going into the right fork. Before the point of division there was in the centre of the lane a road marking to indicate the approach to a slip road. It is described by the judge as "white 'V's between white lines" and is so indicated on the photographs and most of the sketches. Such a sign does not correspond with the diagram No. 5 of section B of the Third Schedule to the Road Traffic (Roads and Signs) Regulations, which prescribes chevrons over a distance of 120 ft. This sign was first added to the Regulations by Legal Notice 102/1978 which was published on the 26th of May, 1978, three months before the accident. It did not replace a previous authorised marking. The police constable who drew Exhibit 2 testified that he "did not draw the Vs long enough to be on the right hand side of the scratch marks", and that "the situation must be that the Vs were on; the right side and scratch marks to the left hand side'". However, a continuation of the road marking on his sketch would still not place the scratch marks on the left of it and his assertion that they must have been on the left hand side is suspect. The judge made no finding as to this. 4. It appears to have been common ground that Mr. Pau drove through the tunnel in the left hand lane, that Mr. Choi drove through in the right hand lane and that the collision took place in lane 2b. The courses of the two machines between the tunnel and the point of impact was the subject of much dispute and the judge made no clear finding in relation thereto. Mr. Pau, who was carrying a pillion passenger (Mr. Leung), said that he passed through the toll booth on the far left and that from there he proceeded in a line which naturally took him into lane 2. He was heading for Man Fook Road on Waterloo Road Hill and would eventually have to take either lane 2b or lane 3. He said that in fact he remained in lane 2 until it divided and was just entering lane 2b when he was struck on the off side by the other machine. This was substantially corroborated by Mr. Leung and was not contradicted by Mr. Choi, although Mr. Choi alleged that Mr. Pau moved rather late across lane 2 in order to enter lane 2b and that Mr. Pau drove into the near side of his motor cycle. It thus follows that Mr. Choi admits being in lane 2b, although he had passed through a toll booth to the right of Mr. Pau and, on leaving the tunnel area, had been in the lane to the right of Mr. Pau. (He described the lanes in which he and Mr. Pau were driving as the "second" and "first" lanes, which may well have been correct if he was referring to the section of road before the junction of the road from the Tsim Sha Tsui waterfront. Those two lanes became our lane 2 and lane 3.) Mr. Choi said that he "overtook" Mr. Pau at a point which he indicated as being just behind the red and green lorry shown in lane 2 on the photograph Exhibit 3b - a short distance beyond the first destination-sign gantry. "Passed" would have been a more accurate word to describe the manceuvre, because according to him the vehicles were throughout it indifferent lanes. Mr. Choi never explained where or why he changed into lane 2 or 2b, but it appears to have been before lane 2 divided, for he said he was in the same lane as Mr. Pau "where the road divided": at least that is how everyone has interpreted the relevant question and answer, although the notes (being recorded in an extremely abbreviated form) are here, as at many points, ambiguous. 5. The judge makes no finding as to where Mr. Choi entered lane 2. He merely states that Mr. Choi's story is "that he was proceeding along in what has been described as the third lane, that is the land up which a green lorry is proceeding to the right of the double white lines on page 46, that I have just mentioned". The judge has now confirmed that this was a typographical error for "page 45", so that he is referring to our lane 2b. Mr. Pau's version is that he was entering lane 2b in the middle of that lane when Mr. Choi cut in from lane 3 and collided with him. As we shall see in moment, the judge appears to have accepted that Mr. Choi was in lane 2 before it divided and his decision is based largely on that finding. 6. The conclusion which the judge reached was that the accident occurred for two reasons :
He went on to find that Mr. Choi was in front and that Mr. Pau was principally to blame for not having kept clear. If both drivers had been in lane 2 for any appreciable distance; the judge's conclusion that both were negligent is unassailable, but the judge did not so find and there was no evidence upon which he could so find. He himself said he was "still none the wiser as to whereabouts in their respective lanes these young men thought they were" (emphasis supplied). This is a clear indication that the judge found that Mr. Choi was not in lane 2 all the time. Then his finding that Mr. Pau "left his selection of his path in the lane rather late in the day" can only have been based upon his view that a motor cycle ought to ride on the left of a lane:
With respect to the judge I do not accept his view. A motor cycle, no less than any other motor vehicle, is entitled to be in the centre of its lane so as to maintain the greatest possible distance between it and vehicles in other lanes, and there is no direct evidence that Mr. Pau was on the left of lane 2. When the judge refers to Mr. Pau's having entered lane 2b "at the last possible moment" he explains that he means "'last possible moment' in the context of the 'X' in the circle shown on Exhibit 3, in that sort of area". If that was intended to mean that Mr. Pau crossed from lane 2 into lane 2b over the "V" marking, I would have expected the judge to find expressly that Mr. Pau was "lane jumping". That interpretation is not consistent with the tenor of the rest of the judgment and is not supported by a single piece of evidence. 7. Unfortunately there was another indication that the judge was reading into the situation more than the evidence warranted. He said:
In the first place there was no evidence what was the speed limit, if any, beyond the fact that the beginning of a 30 m.p.h. speed limit was indicated by a sign on lane 2a shown in the second photograph on p.161 of the record. Such a sign should not have been there if a 30 m.p.h. speed limit was already in operation on the preceding section of road. The highest' speed mentioned in the evidence for either of the motor cycle was
It is not surprising that the possibility that these two young men was racing was considered. However, the only witness questioned on this subject was Mr. Leung, who, when asked whether they were racing, answered after a pause: "This is a very difficult question for me to give an answer". There was evidence from Mr. Leung that Mr. Pau was driving "fast" (a relative and unhelpful epithet) and that in the tunnel he (Mr. Leung) was "quite afraid of riding motor cycle" and that he twice told Mr. Pau not to ride so fast. That last-piece of evidence must, I think, be assumed not to be in conflict with his subsequent assertion that he was "very confident of the driving of driver". Nevertheless, the matter was not pursued and the suspicion of racing could not justify a finding that they were exceeding a speed limit. 8. Much time was spent both in the court below and before us in trying to analyse the injuries to the parties and the damage to their motor cycles with view to establishing what caused them. The judge did not draw any conclusions from the injuries and I think he was right not to do so : they were entirely equivocal. From his analysis of the damage he concluded :
By "what I saw" I take it the judge meant what he saw in the photographs, so that we are in as good a position as he to draw inferences. However, he immediately imposed upon his analysis of the damage his assumption that Mr. Pau "came along on the correct side of his lane", a statement which I have already criticized. In my view no inferences at all can properly be drawn from the photographs alone. In conjunction with-the motor vehicle examiner's report they establish only that both machines fell on their near side. The report on Mr. Pau's machine made no mention. of any damage at all on the off-side, although the second photograph on page 179 of the record clearly shows damage to the exhaust and silencer. Why this was not mentioned in the report we do not know and we must not conjecture. 9. Were it not for the judge's finding that at the moment of impact Mr. Choi was in front and Mr. Pau was "following", I would have had no hesitation in holding that the finding that Mr. Pau was negligent in any degree was wholly unjustified. It seems to me that what the judge has found is that there was what in nautical language would be called an overtaking situation, with Mr. Pau under an obligation to keep clear and Mr. Choi under an obligation to maintair his course and speed. I confess to grave doubt whether that was a correct assessment, but I am not prepared to say that the judge must have been wrong. My doubt is based upon the lack of evidence that Mr. Pau had increased his speed after Mr. Choi had "overtaken" him just after the first destination-sign gantry and the uncertainty as to where Mr. Choi first entered lane 2 or lane 2b, The finding that Mr. Choi was in front is strongly challenged by Mr. Bokhary - not without reason, for it was founded upon two somewhat vague answers by Mr. Leung :
10. I am surprised that the judge did not seek clarification of these answers if he was intending to base his whole judgment upon them. However, in the event I am not prepared to say that he was not entitled to find that Mr. Choi was in front and that an overtaking situation existed, even though it was never suggested to Mr. Pau that he was trying to overtake on the wrong side. 11. That said, the question arises whether the judge's apportionment of blame can stand. He appears to have taken it to be axiomatic that, in any accident of that kind, the behavioural burden on the follower is greater than that on the leader, and he held that "It follows, therefore, that the greater proportion of blame is attributable to Mr. Paul". With respect to him I do net accept his premiss. Where there is a road with no junction in the material vicinity, I would accept that anyone who attempts to overtake on the wrong side is likely to be wholly or largely responsible for any accident which occurs as a result. Here there was a material junction and the judge was of opinion that Mr. Choi was in part to blame because he was "cutting corners". Even disregarding the judge's own suggestion that Mr. Choi, like any other motor-cyclist, should have been on the left of the lane (i.e. lane 2b) and assuming that he was not at that moment changing lanes from lane 3, Mr. Choi should not have moved across lane 2b at the junction without making sure that it was safe to do so. That is not to say that I agree with the judge when he said :
If he was already in lane 2 and was in front and clear of Mr. Pau, Mr. Choi should have entered lane 2b either in the centre of it or in the near side of it. That he did not do so is, on the continued assumption that he was not changing lanes, indicative of his knowing that the inner part of the lane was not clear. (If, of course, he had been changing lanes he would manifestly have been at fault.) 12. In the result I feel bound by the trial judge's decision that both parties were negligent, but I cannot accept that either was shown to have been more negligent than the other. The case is, therefore, governed by Baker v Market Harborough Industrial Co-operative Society Limited 1 Weekly Law Reports 1472 and they should have been held equally to blame. I would allow the appeal to the extent of entering judgment in both actions for 50% of the damage proved. Yang, J.A. : 13. I have had the advantage of reading my lord the Vice-President's judgment in draft, with which I respectfully agree. Barker, J.A. : 14. I agree. Sir Alan Huggins, V.-P. : 15. Under 0.42 r.5A(6) we make an order nisi that the Respondent pay the Appellant's costs of the appeal. Representation: |