Cheng Kan Wai v. Ko Leung

HCPI 553/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 553 OF 2007

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BETWEEN

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Before : Hon Burrell J in Court

Dates of Hearing : 20 April 2009

Date of Judgment : 20 April 2009

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J U D G M E N T

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1.This is a trial on liability only arising out of a traffic accident which occurred at about 8 a.m. on 25 August 2004.  The plaintiff was the driver of a double decker City Bus which was travelling along Argyle Street in a westerly direction towards the junction with Nathan Road in Kowloon.  It is a major junction governed by traffic lights.  This section of Argyle Street is divided into four lanes and is a one-way street.  The left hand lane is for traffic turning left into Nathan Road, the next two lanes are for traffic going straight on and the extreme right hand lane is for traffic turning right into Nathan Road to go north.

2.The central part of the junction is governed by yellow criss-cross markings, i.e. what is known as a yellow box junction.  The bus was in the second lane.  Ahead of the bus was the defendant’s private car.  The bus drove into the rear of the defendant’s car.  Somewhat surprisingly the bus driver is the plaintiff in this action.  The onus is on him to prove on the balance of probabilities that the driver of the car was negligent and that his negligence was the cause, either wholly or in part, of the accident. 

3.There are some differences in the two versions of how the accident occurred.  The plaintiff says that when he halted at the junction (because the lights were red) he was fourth in line waiting at the red light, the defendant was third immediately ahead of him.  When the light turned to green the line of vehicles moved forward but when the defendant’s car got to near the white line of the junction he stopped suddenly and the plaintiff was unable to stop in time so as to avoid hitting the rear of the defendant’s car.  The plaintiff does not know why the car braked suddenly. 

4.The defendant, on the other hand, says that he was approaching the junction and the light turned red just before he got there so he slowed down and stopped his vehicle.  After being stationary at the junction for a very short time the bus collided with the rear of his vehicle.  Both the plaintiff and the defendant agreed that as a result of the impact, the car was shunted forward into the yellow box junction.  They agreed also that the point of impact was therefore somewhere near to the white line of the traffic light road markings, either just in front of or just behind the line but in either event close to it.  After the impact therefore it is agreed that the defendant’s vehicle was in the junction.  He very sensibly and carefully then drove his car slowly across the junction and parked safely on the other side, whereupon he called the police.  

5.In my judgment whichever version is factually correct the plaintiff in this case cannot establish negligence on the part of the defendant.  Whether the defendant stopped because the lights had turned red (which is his version) or for some other reason after the lights had turned to green and the traffic had started to move forward (the plaintiff’s version), it seems to me to make little or no difference.  Even if the plaintiff’s version was correct, I accept the defendant did not stop for no reason at all.  It is a major junction, it was 8 o’clock in the morning, there could be a variety of reasons for a vehicle, in such circumstances, to slow down or stop before entering the yellow box part of the junction and the plaintiff should had been aware of this.

6.The plaintiff on his own admission, both to the police and to this court, “braked too late”.  On either version of events he either failed to notice the defendant’s car had braked and/or was travelling too close behind it to avoid the collision.  For the sake of completeness, having heard both drivers, I am satisfied that the defendant did not drive negligently in any way.  I am satisfied that he was stationary when hit from behind.  He had not braked suddenly for no reason.  Both vehicles were intending to go straight on and were in the correct lane to do so.  The bus simply was too close and failed to stop in time.  For these reasons, in my judgment, this claim must fail. 

Mr Simon Lam, instructed by Messrs Henry Lam & Associates, for the Plaintiff

Mr Paul H.M. Leung, instructed by Messrs Li, Kwok & Law, for the Defendant