Lui Chong Yue and Others v. Lui Wai and Others

Negligence - road traffic accident - preliminary hearing on liability - drivers of KMB bus and a PLB entered traffic light controlled intersection at right angles in opposing directions - collision occurred within box junction of intersection - both vehicles crossed their respective stop lines against the lights - significance in civil proceedings of failure to comply with former Highway Code and current Road Users Code - both drivers substantially negligent - Held: 1. The negligence of the 3rd defendant being PLB driver contributed 55% towards accident; 2. The negligence of the lot defendant being the KMB bus driver contributed 45% towards accident for which the 2nd defendant as owner of the KMB bus was also vicariously liable - s. 109(5) Road Traffic Ordinance, Cap. 374; Regulation 17 Road Traffic (Traffic Control) Regulations, Cap. 374; paragraphs 67, 69 Highway Code; Road Users Code June 1987

H.C. Action No. 137 of 1987

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

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Coram: Deputy High Court Judge Cruden

Dates of Hearing: 17th and 18th November 1987

Date of Delivery of Judgment: 26th November 1987 (P.I.file)

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JUDGMENT

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1. On 5th January 1985 at about 7.40 p.m. the plaintiffs were passengers in Public Light Bus Registered No. CJ 3304 (hereinafter called the PLB") driven by the 3rd defendant. The PLB was travelling in a northerly direction along Lai Yip Street in Kwun Tong and attempted to cross that street's traffic light controlled intersection with Wai Yip Street. Wai Yip Street is one of the main arterial roads in Kwun Tong while Lai Yip Street is a subsidiary road. At the intersection these streets cross at right angles. At about the same time a motor bus registered No. BM 7739 owned by the 2nd defendant (hereinafter called "the KMB Bus") was being driven by the 1st defendant in an easterly direction along Wai Yip Street towards the same intersection. Both vehicles attempted to cross through the intersection at the sane time. A collision occurred and unfortunately the plaintiffs suffered injuries. They now claim damages founded in negligence against the defendants.

2. On 26th May 1987 a Master ordered, on the application of the 1st and 2nd defendants, that the issue of liability be tried prior to and separate from the issue of quantum. The present hearing, in terms of that order, is limited to the preliminary issue of liability. At the commencement of the hearing Counsel for the plaintiffs further informed the Court that the defendants had now admitted liability, as against the plaintiffs, subject to the determination of liability as between the defendants. In those circumstances the plaintiffs were only interested in the subsequent issue of quantum and asked leave to withdraw from the preliminary hearing on liability. Counsel for the defendants acknowledged that this was the position. Leave was then granted to the plaintiffs to withdraw from this preliminary hearing and they were awarded costs in the action to be taxed in accordance with the Legal Aid Regulations subject to the Court's finding on liability as between the defendants.

3. The sole issue to be determined at this stage, is the liability for the accident as between the defendants. In summary, the 1st and 2nd defendant's maintain that the KMB Bus lawfully drove through the intersection when the traffic lights controlling its approach were coloured green. On the other hand, the 3rd defendant agrees that when the PLB crossed the stop line in Lai Yip Street, before the traffic lights controlling its approach, they had changed from green to amber. However, the 3rd defendant asserts that when the traffic lights changed from green to amber, the PLB was so close to the stop line or traffic lights that it could not safely be stopped and was therefore lawfully entitled to pass through the intersection. Further, that the timing of the particular traffic light cycles, at this intersection, established that the KMB Bus could not have passed through the opposing traffic lights in Wai Yip Street when they were green.

4. Before I proceed to assess the evidence and make findings of fact on these conflicting allegations, it may be helpful to summarise the road traffic law relevant to these allegations. The significance of traffic light signals in Hong Kong, is set out in Regulation 17 of the Road Traffic (Traffic Control) Regulations, Cap. 374. So far as the colour of the lights is' concerned, the normal sequence is:

5. When the red light is showing, Regulation 17(a) prohibits vehicles from proceeding beyond the stop line. Regulation 17(b) provides that when both amber and red lights are showing, they indicate an imminent change from red to green but do not alter the prohibition, conveyed by the prior red light signal. The green light signal under Regulation 17(c) entitles vehicles to pass the light signals. The different position which applies when the traffic lights are showing amber, is set out in Regulation 17(d). When the amber light alone is showing, traffic is prohibited from proceeding beyond the stop line subject to this important exception:

... except in the case of any vehicle which when the light signal first appears is so close to the stop line or light signals that it cannot safely be stopped before passing the stop line or light signals.

6. Under the Regulations there is therefore an absolute prohibition against proceeding through a red light and also through a combined red and amber light. However, in the case of an amber light, which follows a green light, there is only a qualified prohibition against proceeding. If the amber light, following a green light, first appears when a vehicle is so close to the stop line or traffic lights, that it cannot safely be stopped, it may lawfully continue past the traffic lights.

7. I was also referred to the Highway Code issued under the previous Road Traffic Ordinance, Cap. 220. The new Road Traffic Ordinance, Cap. 374, although enacted in 1982, did not come into force until 25th August 1984 - L.N.294 of 1984. Section 109 of the latter Ordinance provides for the issue of a Road Users Code but such a code was only issued in June 1987. Under the prior Ordinance a similar document, entituled The Highway Code, was issued pursuant to Section 7(4) of that Ordinance.

8. It was common ground between the parties that although at the date of the accident, on 5th January 1985, the new Ordinance applied, the old Highway Code remained in full force and effect. The parties further accepted that at the date of the accident the effect of the old Code was the same as the current effect, of the new Road Users Code. The Codes were primarily issued for guidance. Non-compliance does not render a person liable for criminal prosecution. However, the former Code and the present Code, are relevant to civil proceedings. That relevance is set out in Section 109(5) of the current Ordinance in these terms:

"(5)

A failure on the part of any person to observe any provisions of the road users' code and any code prescribed under subsection (3) or (4) shall not of itself render that person. liable to criminal proceedings of any kind but any such failure may in any proceedings whether civil or criminal and including proceedings for an offence under this Ordinance be relied upon by any party to the proceedings as tending to establish or negative any liability which is in question in those proceedings."

9. I therefore hold that any failure to comply with the then current Highway Code, is relevant to the issue of negligence, in the present proceedings. The current Road Users Code is a more elaborate and detailed form of the old Highway Code. I would also record that while both Codes reflect the statutory provisions which now appear in the Road Traffic (Traffic Control) Regulations, neither is identical to the comparable provisions in the Regulations.

10. For example under the Regulations, a green traffic light entitles vehicular traffic to proceed. But under the Highway Code, paragraph 69 qualified that right by providing:

"69.	GREEN means GO provided your way is clear. If there is not enough room do NOT drive into the intersection."

11. On the other hand the Highway Code's amber traffic light provisions more closely reflected the Regulations:

"67.	AMBER also means STOP unless you have crossed the stop line or are so close to it that to pull up might cause an accident."

12. On the comparable position in negligence which exists in England, in relation to accidents occurring at traffic light controlled intersections, I was referred to the leading case of Joseph Eva Ltd. v. Reeves (1938) 2 KB 393 and also to Godsmark v. Knight Brothers (Brighton) Ltd. The Times' 12th May 1960 which is also referred to in Bingham's Motor Claims Cases (9th Edn.) 127. During the hearing I was referred by Counsel for the 3rd defendant to the latter reference but in the 6th Edition where the case is noted at page 92.

13. If the traffic lights controlling the approach of the KMB bus were green, then under the Regulations the driver was entitled, without committing any traffic light offence, to continue across the intersection. However, the Highway Code adds what the common law implies, namely, that he may proceed on a green light subject to the way being clear. If notwithstanding that a driver has a green light in his favour, the road ahead is blocked, then the common law duty of care requires him to stop or take whatever other action may, in the circumstances, be reasonable.

14. The position, if the light controlling the PLB driver's approach was amber, was that he was required to stop, unless when he first saw the light change to amber, he had crossed or was so close to the stop line, that to have pulled up might have caused an accident.

15. Against that summary of the law I now proceed to the evidence. The evidence may be divided into three categories. There was the evidence of the passengers in the PLB; there was the evidence of the two drivers; there was the evidence of a motor traffic expert, Dr. Mak. In addition to oral evidence, there was also a considerable amount of agreed documentary evidence. The documentary evidence included the record of the Magistrates Court proceedings when the 3rd defendant was acquitted of a charge on careless driving contrary to Section 38(1)of the Road Traffic Ordinance, Cap. 374. There was also a plan of the intersection with a diagram of the traffic light cycles, as well as the written report of Dr. Mak.

16. Both the 1st and 3rd defendants were experienced drivers who, for more than 5 years had, several days each week, followed the same route as they followed on the evening of the accident. The 1st defendant, the KMB Bus driver, was at the time of the accident driving his empty bus back to the KMB Depot before going off duty. He stated that he was travelling along Wai Yip Street in the inner lane, when about 10 cars lengths from the intersection, he noticed the traffic lights were red.

17. At the traffic lights the 3 lanes at Wai Yip Street widen into 4 lanes. The bus driver stated that he noticed cars stopped in the 3 outer lanes and while slowing down entered the 4th inner lane. When about 5 car lengths from the lights, he stated they changed to green. Thereupon he increased speed to about 27 to 28 miles per hour and commenced to enter the intersection. Because the lights changed, his evidence was that he did not have to stop and that the lights had already changed to green before he crossed the stop line. Until he was about one-half car's length from the PLB he was unaware of its presence in the intersection. He stated that it loomed up as a dark shadow. This was consistent with the PLB's later driver's evidence that his main headlights were not on and he was driving only with his side lights on.

18. In cross-examination it was put to the KMB driver that when he crossed the stop line the traffic lights were not yet green but he denied that allegation. He was referred to his evidence-in-chief in the Magistrates Court where he said that before the stop line, the lights were red amber and when he had gone beyond the stop line they had "changed completely to green." Before me he replied that before he passed the white line the traffic lights were green. I also observe that in the Magistrates Court at a later stage, during cross-examination, he stated that when he arrived at the stop line the lights were green.

19. In evidence-in-chief the KMB bus driver said that as he crossed the intersection and saw the PLB one-half's car's distance away he braked. The police plan indicated brake marks commencing at the stud crossing, past the stop line, but before the yellow painted box junction. It was, in my view, erroneously put to him in cross-examination that the police plan showed he braked before the white line to which he agreed. In the Magistrates Court he stated that he had braked after passing the stop line but before the box junction. I note that in his Report, Dr. Mak stated that the thinking distance of an average alert driver at 27-28 m.p.h. would have 8.5 metres and he implied that the brakes were put on 2 metres over the stop line.

20. The 3rd defendant, the PLB driver, stated that when he turned from Hoi Bun Road into Lai Yip Street, the traffic lights controlling his approach were green. He stated that his speed along Lai Yip Street was about 25 m.p.h. and he anticipated that he would be able to drive through the intersection on the green light. In evidence-in-chief he stated that after crossing the white line but before reaching the box junction, the light changed to amber. At that stage he was still travelling at about 25 m.p.h. and in his view he could not have stopped. The sole reason he gave for not being able to stop, was that if he had braked at that stage, it might have caused injuries to his 7 passengers. As he entered the intersection , he said he looked to his left and saw cars parked in the outer lanes in Wai Yip Street but never saw the KMB Bus approaching.

21. In cross-examination it was put to him that before the Magistrate he had given a much more favourable explanation of his driving when he was acquitted of careless driving. In the Magistrates Court he had stated that his speed was 23 m.p.h.; that he was further on in the yellow box junction when the lights turned from green to amber; that when the collision occurred the light controlling his approach was still amber. During cross-examination before me, he stated that along Lai Yip Street his speed was 23 to 25 m.p.h. and 24 to 25 m.p.h. when he approached the junction. He agreed that an amber light means stop. However, when he saw the amber light he considered that he still had time to go through the intersection and so did not brake but maintained his speed.

22. If he had braked when the lights turned to amber, he considered that he would have entered the box junction before he stopped. He agreed that there was a gap between the stop line and the box junction and part of that area was occupied by a stud crossing. It was put to him that the gap was about 7½ metres wide, within which he could have safely stopped. He replied that is was only about 5 to 6 feet wide.  In his opinion if he had tied to stop in that area, before the box junction, he would have had to brake so sharply that his passengers might have been injured. Under cross-examination he agreed that there was a risk in proceeding against the amber light, rather than stopping.

23. In addition to the two drivers, there was also the oral evidence of two PLB passengers and the written evidence of a third PLB passenger, who gave evidence only before the Magistrate. Mr. Chan Fai, one of the passengers who gave evidence, was also a goods vehicle driver. Mr. Chan sat in the front near side seat. He was familiar with the intersection and considered that the PLB was travelling at between 25 m.p.h. to 28 m.p.h. He observed the traffic lights change from amber to red, about 1 car's length from the stop line. He stated that the PLB had driven through the red light. In the Magistrates Court, after stating that the light was red when the PLB passed the stop line, he finally agreed that l car's length from stop line, the lights changed to amber and only changed to red when the PLB entered the yellow box junction. In cross-examination in this Court, he was also referred to his statement to the Police on the day of the accident, when he stated that l car's length before the stop line, the light changed to amber and that it only turned to red after it had passed the white line. He agreed his recollection would have been better on the day of the accident.

24. Mr. Hung Kee Sang was another PLB passenger who gave evidence. He was not the holder of a driver's licence and sat behind the driver when he first saw the traffic lights they were changing from green to amber and he stated that the PLB continued on through the lights without altering speed. I was also referred to the evidence in the Magistrates Court, of another PLB passenger, Mr. Yu Sik-chu. His evidence was that on approaching the traffic lights they changed from green to amber. At first he said that the lights were already red, when the PLB crossed the stop line but under cross-examination agreed, that they when he first saw the red light, the PLB was already in the box junction.

25. The remaining oral evidence was that of Dr. Mak Kwok-tim, a forensic scientist employed by the Hong Kong Government, who I accept is an expert in traffic investigation. Dr. Mak in giving evidence also produced a detailed and helpful report he had earlier complied. In his opinion the KMB driver's estimate of the speed of his bus, when approaching the traffic lights of 27 to 28 m.p.h., was correct as that speed was consistent with the skid marks.

26. There were no skid marks left by the PLB and he tendered his conclusions on the assumption that the PLB driver's evidence in the Magistrates Court, that he was travelling at 23 m.p.h., was correct. In his opinion the PLB driver should have been able to have observed the position of the KMB bus after he had entered the intersection and the collision could possibly have been avoided if the PLB driver had applied emergency braking.

27. From the traffic cycle diagram of the traffic lights at this intersection, Dr. Mak attempted to reconstruct what had occurred. This reconstruction was necessarily based on a number of assumptions. These included speeds of 28 m.p.h. and 23 m.p.h. respectively for the KMB bus and the PLB and the assumption that the PLB passed the stop line, when the traffic light was still amber and had not changed to red. On those assumptions, when the KMB bus passed the stop line, the Wai Ip Street traffic lights controlling its approach, would have been changing from red to amber red. According to the KMB driver the lights at that stage were green.

28. Dr. Mak agreed that if the two vehicles speeds were correct and the KMB driver had passed the stop line when the lights were green, then the PLB should have passed through the intersection ahead of the KMB Bus and there would have been no accident. In cross-examination Dr. Mak agreed that while he was able independently to confirm the speed of the KMB Bus, he was unable to check the PLB speed and had relied on the lower speed given in evidence by the PLB driver in the Magistrates Court of 23 m.p.h. Dr. Mak agreed that the greater the PLB's speed the shorter time it would have taken, to reach the point of impact. At 23 m.p.h. it would have taken 3 seconds; at 25 m.p.h. 2.77 seconds; and at 30 m.p.h. it would have taken 2.3 seconds.

29. Dr. Mak pointed out that the longer red Lai Yip Street light phase, together with the overlapping amber and amber red light phases, should have prevented an accident, if the KMB bus had gone through on the green light. However, if the PLB had crossed the stop line later, when the traffic light was red, then a collision with a vehicle from Wai Ip Street, obeying a green light, was possible. Finally, he agreed that his conclusions depended on the assumed speeds being accurate and on the PLB driver passing the stop line on the amber and not on the red light.

30. Counsel for the 3rd defendant, the PLB driver, in his closing submissions, reminded the Court that the KMB driver was returning his empty bus to the Depot before going off duty. Counsel asserted that the KMB driver drove into the empty fourth lane maintaining his earlier speed and took a chance that by the time he reached the intersection, the red light would have changed to green. In the event, it was submitted, the lights had not by that time changed to green and as a result the collision occurred. On the basis of the Traffic Light Cycle Diagram, it was submitted that, if the Lai Yip traffic lights were amber, when the PLB passed the stop line, the Wai Ip lights would still have been red. I was invited to support an adverse finding on the KMB Bus driver's credibility, by his contradictory evidence as to when he applied the brakes.

31. Counsel for the lst and 2nd defendants submitted that the  only direct evidence was that when the KMB Bus driver passed the Wai Ip Street traffic lights they were green. Further, when the PLB driver passed the Lai Yip Street stop line those lights were either amber or red. Counsel attacked the PLB driver's credibility on a number of grounds including the more favourable evidence he gave to the Magistrate when he was prosecuted for careless driving, compared with his statement to the Police and his evidence in this Court. Counsel emphasised that Dr. Mak's calculations were based on assumptions of speed which in the case of the PLB driver, were not corroborated.

32. Counsel for the 1st and 2nd defendants also submitted that the failure of the PLB driver to put on his headlights was itself evidence of negligence. Finally, it was pointed out that the width of the box junction separating the southern and northern sections of Lai Yip Street was greater than the width of the box junction separating the eastern and western sections of Wai Ip Street. Accordingly, it was submitted, the PLB driver should have been aware when he entered the intersection after the green light phase had ended, that he had a longer and more dangerous journey to complete across the intersection, than cross traffic in Wai Yip Street.

33. After reviewing the evidence in the light of the submissions by Counsel there are some facts which are, on the balance of probabilities, clearly established. First, if the KMB driver crossed the stop line after the lights turned green, even on his own evidence, they had just turned green. In those circumstances he was clearly under a duty to ensure that vehicles which may have lawfully entered the intersection from Lai Yip Street on an amber light, had cleared the intersection. That principle was applied in Godsmark v. Knight Bros. (Brighton) supra.

34. In the present case the KMB bus was being driven at a relatively high speed of 27 to 28 m.p.h. While that speed by itself, might not necessarily be excessive, in approaching traffic lights showing green in the present case, it has to be considered in the light of three relevant circumstances. First, the lights had, at best, just changed from red/amber to green. Secondly, the cars in the outer lanes having reached the stop line earlier, had been obliged to stop and would only commence from a standing position. On the other hand, the KMB bus in the inner and customarily slower lane, would be entering the intersection at close to the maximum urban speed limit of 30 m.p.h. Thirdly, between the stop line and the box junction, there was a stud crossing over which pedestrians could still be walking. While the KMB driver would have had good visibility of pedestrians to his left, any pedestrians who had entered the crossing lane from his right would, at least in part, have been obscured by the stationary cars in the outer lanes. I, therefore, find that even if the lights were green, the KMB driver drove at a speed which, in the circumstances, was excessive.

35. The PLB driver on his own admission passed the stop line in Lai Yip Street when the lights had changed to amber. The general rule is that amber means stop. I find that he went through the traffic lights at a speed of at least 25 m.p.h. I am satisfied that as the KMB driver was anxious to go through his traffic lights at the earliest possible moment, so conversely, the PLB driver was anxious to hurry through his traffic lights, at the last possible moment, before they turned red.

36. Assuming that the Lai Yip Street traffic lights were only amber and not red, do the facts give rise to the statutory exception, entitling him to proceed against the amber light? After examining the evidence, including the police plan, I find that the distance between the stop line and the box junction was approximately 7 metres. A stud crossing occupies part of that intervening space. I am satisfied that the PLB driver, approaching the box junction knowing the traffic lights had changed to amber, should have been able to stop his bus safely, both in regard to his own passengers and any other vehicles in the vicinity. On the facts I hold, that the exception contained in Regulation 17(e) and reflected in paragraph 67 of the former Highway Code and at page 89 of the current Road Users Code, does not arise. In these circumstances, the obligation to stop when the amber light shows, is not materially different to the red light still showing.

37. Further, I am satisfied that the PLB driver was negligent in travelling merely on his side lights and not having put on the main headlights. This particular PLB had 4 main headlights. During hours of darkness, none of those 4 headlights were on. I appreciate that the PLB was being driven in an urban well lit area. However, I am satisfied that the driver's duty of care was not discharged by merely having his side lights on, particularly when he elected, with that limited lighting, to cross a relatively long box junction against at least an amber light.

38. On the basis of the evidence, I am satisfied that both drivers were negligent. The more difficult task is to quantify the extent to which, their respective negligence, contributed towards the accident. This issue essentially gives rise to two decisive questions. First, when the KMB driver passed the Wai Yip stop line, were the traffic lights green? Secondly, when the PLB driver passed the Lai Yip stop line, were the traffic lights amber?

39. As to the Wai Yip traffic lights, the only direct evidence is that of the KMB driver himself who before me stated that the lights were green. However, even on his own evidence, the lights had just changed to green as he passed the stop line. He was travelling at a relatively high speed when he crossed the stop line. So even adopting the most favourable view of his evidence, the KMB bus would have entered the intersection at high speed and at the very beginning of the green phase. I also take into account that in the Magistrates Court he gave contradictory evidence on the colour of the Wai Yip Street lights. At one stage he stated that they had only changed to green, after he had crossed the stop line, although later in re-examination he corrected that answer.

40. The evidence of the PLB driver and, subject to at least one adverse qualification, of his passengers, was that the PLB passed the Lai Yip traffic lights when they were amber. The qualification comes from the evidence of the passenger, Mr. Chan Fai, who stated in this Court that the traffic lights were red. In the Magistrates Court he had given varying evidence that the lights were red and also amber. In cross-examination before me, he agreed that in his Police Statement on the night of the accident, he had stated that the light was amber as the PLB passed the stop line, after which it turned red.

41. Counsel for the 3rd defendant relied heavily on Dr. Mak's reconstruction of what occurred, to support the submission that the KMB driver must have gone through the Wai Yip traffic lights, before they had turned to green. If the assumptions Dr. Mak was obliged to make, are factually correct, then I would be well satisfied that the Wai Yip Street traffic lights were not green, when the KMB bus crossed that stop line. Dr. Mak's reconstruction would then entitle the Court to find that the Wai Yip traffic lights must have been either red or, at best, red and amber.

42. Dr. Mak assumed that the speed of the KMB bus was 27 to 28 m.p.h. That was the same speed given by the driver and was consistent with the length of the skid marks. I find that was the speed of the KMB bus. However, difficulties arise in relation to Dr. Mak's other assumptions. The assumed speed of 23 m.p.h. for the PLB was shown during the evidence to be incorrect. I find that the PLB's speed was at least 25 m.p.h. While that greater speed may provide separate evidence of negligence on the part of the 3rd defendant, it is not necessarily a factor adverse to Dr. Mak's reconstruction. For the greater the PLB's speed, assuming it passed the stop light on the amber light, the less likely it was that the KMB bus passed the Wai Yip Street traffic lights, when they were green. This follows from the fact that as the PLB vas travelling faster that 23 m.p.h. it would have reached the point of impact earlier than Dr. Mak had calculated. This higher speed would tend to strengthen the 3rd defendant's submission, that the KMB bus must have entered the intersection earlier than the KMB bus driver stated.

43. On the other hand, I accept the warnings of Counsel for the 1st and 2nd defendants on the hypothetical nature of Dr. Mak's calculations. They are bared on the 4 variables of the two vehicles respective speeds and the colours of the Wai Yip and Lai Yip traffic lights, when those vehicles passed the stop lines. The evidence on the latter times, depends on the recollection of the witnesses who gave evidence. That evidence is not precise. The best evidence of speed of both vehicles is also only approximate. In other circumstances this lack of precision might not be important. However, the present case is concerned with the opposing movements of both vehicles within the short confines of the intersection. Any error in any of the variables, is liable materially to affect Dr. Mak's conclusions.

44. For these reasons, Counsel for the 1st and 2nd defendants submitted that because of the different evidence on speed alone,. no weight could be given to Dr. Mak's reconstruction. I fully appreciate the importance of any factual change to Dr. Mak's assumptions in relation to the reconstructed movements of the vehicles within the confined space of the intersection. False assumptions or errors, even in seconds, may be critical. I ,have already referred to Dr. Mak's evidence that while it would have taken the PLB at 23 m.p.h.,3 seconds to cross the intersection to reach the point of impact, if it had travelled at 30 m.p.h., it would have taken only 2.3 seconds. The Traffic Lights Cycle Diagram showed that the amber and red phase lasted for only 2 seconds and the amber phase for 3 seconds.

45. However, while Dr. Mak's evidence could not be decisive it was helpful. The Traffic Light Cycle Diagram showed that the red phase of the Lai Yip traffic lights was relatively long. In fact, the red phase started 1 second before the amber and red phase of the Wai Yip traffic lights. The red phase was preceded by a 3 second amber phase. This means that even before the traffic lights turned amber and red for the KMB bus, informing the driver that a change to green was imminent, the PLB driver had already faced a 4 second period, comprising 3 seconds of amber followed by 1 second of red. From the commencement of the Lai Yip amber light, until the commencement of the Wai Yip green phase, a period of 6 seconds would have expired. If the PLB driver had passed the stop line as the lights turned to red, 3 seconds would still have elapsed before the Wai Yip Street lights turned to green. This 3 second period would have been made up of the 1 second red phase overlap of the Lai Yip Street lights and the 2 second amber and red phase of the Wai Yip Street lights.

46. If the KMB driver had passed the Wai Yip Street stop line when the lights were green, then the now higher established speed of the PLB would have made the collision less, rather than more likely. Notwithstanding the evidential factors which affect Dr. Mak's calculations the traffic lights inbuilt safety factor, as demonstrated by the Traffic Lights Cycle Diagram, makes it more probable than not, that the KMB bus passed the Wai Yip Street stop line shortly before those traffic lights changed to green. That conclusion also corresponds with the KMB driver's evidence to that effect in the Magistrates Court, which I prefer to the evidence he gave in this Court.

47. I find that the KMB driver passed the Wai Yip Street stop line when the traffic lights were either red or had just changed from red to amber and red. In any event he crossed the stop line before the traffic lights changed to green. I further find that the PLB driver crossed the stop line of the Lai Yip Street traffic lights when they were either about to change from red to amber or had, at best, just changed to amber.

48. On the findings of fact already made, the negligence of both drivers was clearly substantial. It remains to determine the extent to which the negligence of each of them contributed to the accident. This issue depends on the particular facts of the instant action. The decisions in other cases are not of any direct relevance. The facts in Joseph Eva Ltd. v. Reeves, (supra) to which I was referred, were quite different as in that case one of the vehicles had lawfully entered the intersection when the light was green while the other vehicle had entered the intersection when the light was red.

49. In Godsmark v. Knight Brother (Brighton) Ltd. (supra) the facts were also different. Both drivers technically complied with the traffic lights. One driver entered the intersection when the traffic lights changed from green to amber and continued to cross in terms of the amber light exception. The other motorist entered the intersection as the lights changed to green. It was held that even though the lights were green, as they had only just turned to that colour, he was under an obligation to see whether any other vehicles were still leaving the intersection. The driver who went through on the amber light, was held to be two-thirds responsible for the accident while the driver who entered the intersection on the green light, was held to be one-third responsible.

50. When I review the whole of the evidence in the present action I am satisfied, on the balance of probabilities, that the negligence of the PLB driver was slightly greater than the negligence of the KMB driver. I hold that the negligence of the 3rd defendant, the PLB driver, contributed 55% towards the accident. I further hold that negligence of the lst defendant, the KMB bus driver, contributed 45% towards the accident, for which negligence the 2nd defendant, as owner of the KMB bus, is also vicariously liable.

51. In view of my finding on liability, I will not make an order nisi in relation to costs but will hear the defendants further on that and any other consequential matters, if required, for which liberty to apply is reserved.

Representation:

Mr. J. Elkinson instructed by the Director of Legal Aid for the plaintiffs.

Mr. N. Aiken instructed by Deacons for the 1st and 2nd defendants.

Mr. N. Pirie instructed by Johnson Stokes & Master for the 3rd defendant.