Chan Cheung v. Leung Kwok Wai and Others

cacv 107/2003

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 107 of 2003

(on appeal from HCPI NO. 917 of 2001)

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BETWEEN

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Before: Hon Rogers VP, Le Pichon JA and Stone J in Court

Date of Hearing: 12 April 2005

Date of Judgment: 12 April 2005

Date of Handing Down Reasons for Judgment: 5 May 2005

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REASONS FOR JUDGMENT

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Hon Rogers VP:

1.This was an appeal from a judgment of Suffiad J given on 6 January 2003 whereby he apportioned the responsibility for an accident which had occurred on 4 August 1999 on the basis of 60% on the part of the plaintiff and 20% each on the part of the 1^st defendant and 3^rd defendant.  By the time the appeal came to be heard the defendants had abandoned their appeals but the plaintiff pursued his cross-appeal.  At the conclusion of the hearing of this appeal the cross-appeal was dismissed with costs.

Background

2.The accident with which this case is concerned took place in the service road leading to Container Terminals 4 and 6 in Kwai Chung.  The service road is a straight stretch of road approximately 278 metres long.  Vehicles enter through an entrance which is wide enough to permit only one container truck at a time.  The service road then widens so that there are nine lanes leading to nine gates at the far end.  There are concrete dividers which extend about 60 metres from the gates into the service road. 

3.The accident with which this case is concerned occurred when a lorry owned by the 2^nd defendant and driven by the 1^st defendant was crossing the service road having emerged from Gate 9 against the flow of the traffic with a view to entering through Gate 1.  The manoeuvre which the lorry was undertaking was thus, in itself, a dangerous manoeuvre.  It had been occasioned because it was necessary for the lorry to return from the far side of the gates and re-enter through Gate 1 so it could be inspected at that Gate.  Because there had been an accumulation of traffic, servants of the 3^rd defendant had instructed the 1^st defendant to make that manoeuvre rather than exit from the container terminal and re-enter again.

4.The judge made clear findings of fact.  These were not disputed in this court and it is convenient to set them out:

“	Findings of Fact
	63.	I therefore make the following findings of fact from the evidence adduced :
		(1)	The 1st defendant, having already passed through the in-gate into Terminal 6 of the Container Terminal, was informed by the staff of the 3rd defendant that he needed to drive through Gate 1 again for the purpose of having the top of his truck inspected at Gate 1;
		(2)	Despite the 1st defendant’s offer to go out from the out-gate and to re-enter the Service road again for the purpose of driving through Gate 1, he was informed by the staff of the 3rd defendant that he could emerge from Gate 9 out to the Service road and re-enter Gate 1 by making a U-turn;
		(3)	The 1st defendant was further told that staff of the 3rd defendant in the form of security guard would assist him in making the U-turn;
		(4)	After emerging from Gate 9, the only assistance the 1st defendant obtained was one security guard positioned at between lanes 8 and 9 in front of the 1st defendant’s truck motioning by hand signal to oncoming traffic on the Service road to give way to the 1st defendant’s truck;
		(5)	Traffic did stop on lanes 6, 7 and 8 after which the 1st defendant did begin his U-turn manoeuvre intending to traverse all the lanes in order to re-enter from Gate 1;
		(6)	When the 1st defendant reached lane 6 at a speed of about 10 k.p.h., he noticed the plaintiff’s truck approaching on lane 5 at a speed of about 20 k.p.h. some 60 feet from the 1st defendant’s truck;
		(7)	The 1st defendant motioned to the plaintiff to give way by waving his arm and when he saw the plaintiff slow down to about 10 k.p.h., the 1st defendant assumed that the plaintiff will stop to give way therefore the 1st defendant continued to cross lane 5 at the same speed of about 10 k.p.h.;
		(8)	At no time did the 1st defendant sound his horn nor did the 1st defendant stop to ensure that the plaintiff will give way by stopping before he continued to cross lane 5 in the path of the plaintiff’s truck;
		(9)	The plaintiff, when he was approaching the gates, neither saw the security guard between lanes 8 and 9, nor did he see the other traffic stopped on lanes 6, 7 and 8 giving way to the 1st defendant’s truck;
		(10)	Moreover, the plaintiff did not see the 1st defendant’s truck making the U-turn across the various lanes until they collided;
		(11)	The plaintiff did slow down his truck from 20 k.p.h. to about 10 k.p.h. as he approached Gate 5 partly because he wanted to look for the seal and partly because before he had lowered his head to look for the seal, he had seen other trucks lining up immediately in front of Gate 5;
		(12)	As a result, the head of the plaintiff’s truck collided with a point about the middle of the container carried on the 1st defendant’s truck on its offside as the 1st defendant’s truck was crossing lane 5;
		(13)	After the collision the plaintiff did say to the 1st defendant that he had lowered his head to look for the seal just before the collision and also made a similar admission to PC49778 at the hospital later the same day.”

5.The only matter which may merit amplification is that referred to in paragraph 11.  The plaintiff had admitted both to the 1^st defendant and the police officer investigating the accident that he had lowered his head to look for a seal immediately prior to the accident.  However, when giving evidence he denied that.  The judge considered the evidence carefully and came to the conclusion that he could not accept the plaintiff’s evidence given in court and thus made the finding set out. 

6.The judge then considered the liability of the defendants.  He held that the manoeuvre which the 1^st defendant had undertaken was dangerous and that in undertaking it the 1^st defendant was under a duty to take sufficient care to warn the other trucks in the service road and to ensure that the other drivers accorded him right of way before proceeding.  As regards the 3^rd defendant he held that they owed a duty of care to ensure the safety of those using the service road and by advising the 1^st defendant to emerge from Gate 9 and make a U-turn instead of recirculating from the outside and re-entering the container terminal in the normal way they were endangering the other road users and that they failed to take sufficient care having created that danger.

7.The findings in respect of the plaintiff were short and concise and they were as follows:

“	75.	From the findings above, there can be no doubt that the immediate and major cause of the accident was due to the failure of the plaintiff to keep a proper lookout.  To that extent, the plaintiff must be contributorily negligent to a large extent.
	76.	From his own evidence, the plaintiff did not see the security guard on lanes 8 and 9.  That in itself may still be explained by the fact that the plaintiff was travelling on lane 5 and therefore the spot where the security guard was standing may not have been within range of his view of vision.
	77.	However, his failure to see the other vehicles stopped on lanes 6, 7 and 8 before the collision is a very telling indication that his failure to keep a proper lookout was not simply a momentary one.  Likewise also his failure to see the 1st defendant’s truck which must have passed in front of him some 30 to 40 feet of it before the impact is a further indication that this was a bad case of a failure to keep a proper lookout.
	78.	From the above, I will assess his contributory negligence at 60%.”

8.As regards the apportionment between the defendants, the judge held them to be equally responsible and therefore apportioned their liability for the accident at 20% in respect of the 1^st and 2^nd defendants and 20% in respect of the 3^rd defendant.

9.In approaching the matter in this way the judge treated the matter as a case where the defendants on the one hand had created a situation of danger by putting a moving obstacle in the service road and the plaintiff on the other hand had acted negligently in lowering his head and simply not looking where he was going.  In apportioning the liability it is quite clear that the judge considered that the plaintiff was significantly more to blame than both the other defendants put together since he used the expression in paragraph 75 that the plaintiff “must be contributory negligent to a large extent” and in paragraph 77 he referred to the plaintiff’s conduct is being “a bad case of a failure to keep a proper lookout.”

10.Miss Lau, who appeared on behalf of the plaintiff on this appeal, raised the single point that the judge had only considered the question of liability but when he came to apportioning the liability he did not consider the blameworthiness of the parties.  She argued that the plaintiff should not have been found liable for more than 10-20%, at the most, of the liability for the accident.  In arguing that the judge did not consider the blameworthiness of the plaintiff, in particular, counsel referred this court to the cases of Poon Hau Kei v Hsin Chong Construction Co. Ltd. and another (2004) 7 HKCFAR 148 and Brown and another v Thompson [1968] 2 All.E.R. 708.  With regard to the latter case, counsel referred this court to the judgment of Winn LJ at page 709G-710B.  In that passage Winn LJ referred to what Lord Pearce had said in The Miraflores and The Abadesa [1967] 1 AC 826 at 845G-I when he said:

“	When it is necessary for a court to ascribe liability in proportions to more than one person, it is well established that regard must be had not only to the causative potency of the acts or omissions of each of the parties, but to their relative blameworthiness.  In The Miraflores and The Abadesa (1), LORD PEARCE said at [1967] 1 All E.R. 672 at pp. 677, 638; [1967] 1 A.C. 826 at p. 845:
	‘	... the investigation is concerned with “fault” which includes blameworthiness as well as causation; and no true apportionment can be reached unless both those factors are borne in mind.’
	He then gave a very interesting and helpful illustration from the Factories Act type of claim.  I do not propose to read it again; I read it during the course of the argument in this appeal.  I say no more than that it is worthy of close study by all practitioners concerned in matters of this kind.  It is worthy of note, I think, that that being a case where three ships had been involved in a collision, LORD PEARCE said that what was essential was to compare the fault of each with the fault of the other two; the emphasis is on fault, not solely on causation of damage.”

11.Unfortunately the exhortation to read that passage from Lord Pearce’s speech did not carry through to a citation of the speech in this court.  Having considered the passage referred to by Winn LJ, I consider that I can do no better than to cite the full passage in Lord Pearce’s judgment since it is, indeed, highly illustrative:

“If the problem were merely a question of causation, I would not criticise the last two sentences; but the investigation is concerned with ‘fault’ which includes blameworthiness as well as causation; and no true apportionment can be reached unless both those factors are borne in mind.

This is most easily illustrated by taking an extreme case from a type of litigation which is tried daily in the courts.  A dangerous machine is unfenced and a workman gets his hand caught in it.  So far as causation alone is concerned it may be fair to say that at least half the cause of the accident is the fact that the workman put his hand into the danger; but so far as ‘fault’ (and therefore liability) is concerned the answer may be very different.  Suppose that the workman was a normally careful person who, by a pardonable but foolish reaction, wanted to save an obstruction from blocking the machine and so put his hand within the danger area.  Suppose further that the factory owner had known that the machine was dangerous and ought to be fenced, that he had been previously warned on several occasions but through dilatoriness or on grounds of economy failed to rectify the fault and preferred to take a chance.  In such a case the judge, weighing the fault of one party against the other, the deliberate negligence against the foolish reaction, would not assess the workman’s fault at anything approaching the proportion which mere causation alone would indicate.  Suppose, further, that part of the blame was that of a maintenance contractor who had been guilty of a small error of negligence contributing to the dangerous nature of the machine.  It would be erroneous to put together the great negligence of the factory owner and the slight negligence of the contractor as together making up the dangerous situation and, therefore, constituting one unit of the disaster; and then to measure that unit against the negligence of the workman whose act turned a dangerous situation into an accident.  For what degree of blameworthiness does one attach to such a unit?  To get a fair apportionment it is necessary to weigh the fault of each negligent party against that of the others.  It is or may be quite misleading to substitute for a measurement of the individual fault of each contributor to the accident a measurement of the fault of one against the joint fault of the rest.

Even had the positions of the Miraflores and the Abadesa constituted a static obstruction which had been in that position for some hours, I think that the unit approach would be wrong; ….”

12.The result in The Miraflores and The Abadesa case was to a certain extent illustrative.  There had been a collision between two vessels: The Miraflores and The Abadesa.  The judge had found that The Abadesa was primarily responsible and had held it two-thirds responsible for the collision.  A third vessel, The George Livanos, had become involved because it had been approaching these two vessels and as a result of taking delayed action, and it itself was held responsible for that delay, it ran aground.  The judge held that The George Livanos was 50% to blame for the grounding and it was entitled to recover the remaining 50% from The Abadesa and The Miraflores in the proportions of two-thirds and one-third respectively.  The Court of Appeal varied that apportionment attributing 45% to The Abadesa, 30% to The Miraflores and 25% to The George Livanos.  When the matter came before the House of Lords, it was held that the proportion of responsibility between The Abadesa and The Miraflores should be retained as had been found by the judge but that it could not be said that The George Livanos was any more at fault than The Abadesa.  On that basis the liability was apportioned as two-fifths to The Abadesa, two-fifths to the George Livanos and one-fifth to The Miraflores.

13.It will be seen that the requirement that the court should consider blameworthiness means that the court must consider the relevant blameworthiness of each party that is in part responsible for the damage which has occurred.  Despite, on a number of occasions during the course of argument, this court suggesting to counsel on behalf of the plaintiff that the blameworthiness of the plaintiff should be considered against each of the other parties, counsel was emphatic in arguing the case on the basis of the blameworthiness of the plaintiff as against the combined blameworthiness of the 1^st and 3^rd defendants.

14.Doing the best one can in this case, the judge has held that the 1^st (together with the 2^nd) defendant and the 3^rd defendant were equally responsible and he could not distinguish between either of them.  As regards the plaintiff the judge used the expressions which have been quoted in paragraph 9 above.  In my view, in doing so he was clearly considering the blameworthiness of the plaintiff.  Although the judge’s assessment of 60% liability on the part of the plaintiff was made in comparison to the defendants taken as a whole, that was on the basis that the judge had well in mind that the defendants would be held equally responsible.  The culpability, or blameworthiness, of the plaintiff seems to me to have been very high.  On the evidence both of the plaintiff and the 1^st defendant, the plaintiff’s lorry had slowed down to 10 k.p.h.  That is a speed which is about as slow as a lorry can go and even a lorry laden with a fully loaded container could be expected to stop in a very short distance when travelling at that speed.  There is no doubt that the plaintiff must have had his head down whilst looking for the seal for a considerable period of time, and certainly long enough not to notice the 1^st defendant’s lorry coming across his path.  Indeed almost two-thirds of the 1^st defendant’s lorry had seemingly passed across the path of the plaintiff’s lorry before the collision took place. 

15.The 1^st defendant was put in a difficult position.  He had been told to undertake the manoeuvre crossing the path of oncoming traffic despite the fact that he offered to exit and re-enter.  He had been told that he would be assisted by a security guard when he made the U-turn.  His fault was misinterpreting the reduction of speed of the plaintiff’s lorry as being an indication that the plaintiff was stopping to let him pass.  It was an error of judgment by somebody who had been put in a difficult position who was otherwise being very cautious.  The 3^rd defendant’s fault was in being the instigator of the dangerous manoeuvre, but in failing to follow up with promised assistance.  In comparison to the plaintiff’s driving which was highly careless, if not reckless, in not looking where he was going, albeit the lorry was travelling at a very slow speed, the degree of culpability or blameworthiness of the 3^rd defendant was very much lower.

16.In those circumstances, it seemed to me that this court should not disturb the assessment by the trial judge of the plaintiff’s liability.

Hon Le Pichon JA:

17.I agree.

Hon Stone J:

18.I agree.

Ms Selina Lau, instructed by Messrs Hobson & Ma, for the Plaintiff/Appellant in cross-appeal

Mr Samuel Chan, instructed by Messrs Deacons, for the 1^st & 2^nd Defendants/1^st & 2^nd Respondents in cross-appeal

Mr Patrick D Lim, instructed by Messrs Kennedys, for the 3^rd Defendant/3^rd Respondent in cross-appeal