Lam Hang Yee v. Chi Ming Freeze Meat Co Ltd and Others
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HCPI 711/2008 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PERSONAL INJURIES ACTION NO. 711 OF 2008 ____________ BETWEEN
__________ Before: Deputy High Court Judge Carlson in Court Date of Hearing: 12, 13 and 14 October 2009 Date of Judgment Handed Down: 29 October 2009 _______________ J U D G M E N T _______________ Introduction 1.This is a running down case in which a motorcycle ridden by the 3rd Defendant collided with a medium-sized lorry driven by the 2nd Defendant an employee of the 1st Defendant which owned the lorry. As a result the Plaintiff, who was riding pillion on the motorcycle, fell off it and was injured. She has sued both the 2nd and 3rd Defendants as well as the 1st Defendant based on the fact that it is vicariously liable for its employee’s driving, who at the time of the accident was driving in the course of his employment with it. 2.The Plaintiff has pleaded that both the motorcyclist and the lorry driver had been negligent. For their part they say that the other was solely to blame for the collision, alternatively that in the event that I find both negligent the other should bear the greater share of the blame. There has been an order for a split trial and so I am only concerned with the issue of liability. The layout of the roads and the events leading up to the collision 3.The location of the collision was at the junction of Chun Wah Road, in the Jordan Valley area of Kowloon, and an unnamed access road, [or slip-road as it was referred to in the course of the trial] into the Lok Wah South Estate. This appears in Exhibit P3 which is the road map for this area. The junction is marked in pink on the plan and the access road is clearly shown, it being a “no through road” ending in a small roundabout which allows vehicles to turn around at the end of it to get back out onto Chun Wah Road. A hand drawn close-up is Exhibit P1 which gives relevant measurements. The width of the access road at its junction with Chun Wah Road is 24 feet in total being a two-way road comprising two single vehicle lanes going each way. What is very significant for these purposes is that the exit lane out of the access road at its junction with Chun Wah Road had been blocked off by one of the relevant government authorities for some distance into the access road. This meant that the entrance and the exit of the access road became a one-way street. The consequence of this blocking off of the exit lane was that vehicles on Chun Wah Road wishing to turn into the access road had to stop and wait until vehicles exiting onto Chun Wah Road from the access road had done so. 4.On this occasion, which was at about 10 minutes to 3 in the afternoon on 5 October 2005, the single exit lane out of the access road was occupied by a medium-lorry registration number GR452 driven by the 2nd Defendant and it was being followed by another vehicle which, in the event, played no part in what I am about to describe. At this time there was a school bus on Chun Wah Road driven by Madam Lee Wai Fong. She only had one passenger, a bus mother. Madam Lee wished to turn left into the access road in order to collect children from a government school there who were about to finish their school day and were to be driven to their homes’ and by Madam Lee. Before she could enter the access road Madam Lee had to stop at just before the junction to allow the 2nd Defendant’s lorry and the vehicle following it out and onto Chun Wah Road. 5.Exhibit P1 has marked on it the approximate position of Madam Lee’s stationary bus. Chun Wah Road is a two-way carriageway, each carriageway measuring some 20 feet 6 inches in width. Madam Lee has explained that she stopped towards the outer part of the carriageway because parked next to her was a white van which occupied the nearside part of the road. The front of this van was more or less level with the front of her bus. 6.What the 2nd Defendant wished to do was to come out of the access road and make a turn right and across Chun Wah Road so as to drive into and along the carriageway on the far side of Chun Wah Road. Under any circumstances this was a manoeuvre that called for careful driving. He was emerging from a minor road onto a major road. In the ordinary course of events he would have needed to give way to traffic on Chun Wah Road firstly on the carriageway for traffic travelling across the front of him from right to left and next, once he had got to the central reservation marked by hatched road markings, to traffic travelling across him from left to right which he would ultimately join. 7.On this occasion traffic on the first carriageway, Madam Lee’s stopped school bus and the parked white van, was at a standstill and so he could safely move out into the road, safely that is until he got beyond the offside of the school bus after which he could not see until he had moved forward past it sufficiently for him to look to his right and up the road to see whether there was oncoming traffic. Once it was safe he would be able to move further forward into the hatched area in the centre of the two carriageways and complete his right turn once traffic on that carriageway was far enough away for him to safely enter that carriageway and drive off. 8.Faced with this by no means easy task, because great care had to be exercised by him, the 2nd Defendant who had a lorry attendant seated next to him, moved out into Chun Wah Road and across the front of the parked white van, which he says he does not recollect seeing there, and the front of Madam Lee’s stationary and waiting school bus. The accident 9.Having set out the nature of the junction and what it was that the 2nd Defendant was attempting to do I now propose to describe, at this stage as neutrally as I can, the course of events which resulted in the collision between the 2nd Defendant’s lorry and the 3rd Defendant’s motorcycle. 10.As the 3rd Defendant moved forward there came a time when the front of his lorry went beyond the front offside of Madam Lee’s school bus. At that very moment the 3rd Defendant, who was travelling on Chun Wah Road, was in the process of passing the school bus on its offside as a result of which the lorry and the motorcycle collided. The force of the collision, which was in the nature of a glancing blow for the motorcycle, caused the 3rd Defendant to become unbalanced and he and the Plaintiff came off the motorcycle causing the Plaintiff to sustain a number of injuries. 11.The police were called and, as they do following such incidents, drew plans and took measurements and photographs. Subsequently, they also took witness statements all of which are now in evidence. Such was the police’s thoroughness that some days later they carried out a re-construction of the accident which was photographed and these photographs are also in evidence. The police plans and photographs 12.The principal plan is a page 180 which purports to show the final positions of the 2nd Defendant’s lorry [V2] and the 3rd Defendant’s motorcycle [V1]. It shows the final positions of both vehicles after the collision. As to the lorry it is shown to have come to a halt with its front wheels well into the hatched central reservation between the two carriageways of Chun Wah Road. The motorcycle has come to rest just into the opposite carriageway with the impact having caused it to swivel round so that it now faced in the opposite direction. Page 214, 214A and 215 are photographs which show the aftermath of the collision. Notably the lorry’s final position is well illustrated with the motorcycle further along the road. The photograph of the subsequent re-construction, perhaps less helpful than the photographs taken at the time which I have just referred to, are at pages 220, 220A and 221. The ones at page 220 show where Madam Lee’s school bus was waiting for the lorry to pull out and turn right into the opposite carriageway. The white van is shown parked on the nearside but Madam Lee has explained, and I accept this from her, that the van was more forward of the position shown in the photographs at page 220 being parked effectively alongside her bus. Being a re-construction these photographs do not and cannot show precise positions but they do provide a fair impression of the situation. What is helpful is the bottom right photograph on 220 which is a head-on shot of the school bus and this shows the narrow gap that the motorcycle had to travel through between the school bus’s offside and the central hatchings dividing the two carriageways of Chun Wah Road. The various accounts of the accident 13.The 2nd Defendant says that he moved across the front of the school bus slowly before coming to a stop just beyond the school bus’s offside. He did so in order to look for any oncoming traffic that may have been travelling on the school bus’s offside. As he came to a halt he was collided into by the 3rd Defendant’s motorcycle. A suggestion has been made on the 2nd Defendant’s behalf that the nearside handle-bar of the motorcycle scratched into the nearside front of his lorry just above the headlights. These scratch marks appear in all three photographs, taken at the time by the police, on page 216. All I can safely say about this is that this may have been so. That is as far as one can really go on the evidence. I am not able to make any finding, based on the state of the evidence, that this is what actually happened. This all took place much too quickly for anybody to be able to attest to this on the required balance of probabilities. In any event no precise finding of this sort is necessary. What I am satisfied about, and there is no dispute about this, is that there was a coming together of the lorry and the motorcycle which caused the motorcycle to topple over and injure the Plaintiff. 14.In his police statement (see page 121), the 2nd Defendant gave the same account of having stopped about one foot beyond the school bus after which the 3rd Defendant’s speeding motorcycle collided with his lorry. He also told the police that Madam Lee had made a hand signal to him indicating that he could move out. I am not persuaded that this was so and, in any event, if she had there is clear authority that such a signal could only mean that he was clear to move out only so far as she was concerned. Such a signal would not have absolved him from taking every care in executing the manoeuvre that he was undertaking to ensure that no other traffic was approaching. 15.The 3rd Defendant’s evidence, as Mr Charles Wong who appears for him has very correctly accepted, cannot be relied on. His evidence before me was that he rode up to the rear of the stationary school bus and came to a complete halt and both his feet were placed on the ground in order to keep his balance. Then, after checking that nothing was behind him, he very carefully rode up alongside the offside of the bus and effectively ‘walked’ his motorcycle with him sitting astride it up to the front of the bus, this in order to make sure that there was nothing coming out in front of the school bus. As he was doing so, he says that he was struck by the 2nd Defendant’s lorry that was moving at the time. 16.What he described in evidence was a counsel of profession. Nevertheless, this is not the account that he gave to the police. It is instructive to set out the relevant passage of his statement to the police. This is what he told them:
17.This account is completely at odds with his evidence before me. There is no mention of stopping behind the bus and then moving out slowly alongside it and ‘walking’ it forward past its front when he was hit by the moving lorry. His explanation was that he had told the policeman that this is what had happened but apparently the policeman did not put this down. He did not raise it with the officer at the time because he trusted the officer and he considered that the officer would have recorded only what was important. Notably, his witness statement taken by his solicitors gives the same account that he provided to the police and again has no mention of stopping behind the bus and then going forward slowly to the front of the bus when he was hit by the moving lorry. Both to his solicitors and to the police he has provided a version of travelling alongside the outside of the bus in 3rd gear at 40 to 45 km/hr when the moving lorry hit him as he moved past the front of the school bus. His version at the trial is completely inconsistent with what he told his solicitors and the police. 18.I reject his evidence before me as untrue. He has obviously had second thoughts about the wisdom of having said what he told the police and subsequently to his solicitors and has decided to makeup this account of him being extremely careful in approaching the stationary bus and using exemplary care in riding past its front. I am satisfied that the version that he gave to the police was the correct account of his riding on this occasion which he then repeated to his solicitors. 19.The question to be resolved is whether in all the circumstances it was negligent of him to have driven past the stationary bus in 3rd gear at 40 to 45 km/hr. 20.It seems to me that it behoves a motorcyclist in such circumstances, where it is not possible to see beyond the front of a stationary vehicle ahead, to approach the situation with very great care. It is eminently foreseeable that another vehicle or a pedestrian might suddenly emerge from beyond the front of a stationary school bus. These circumstances required the 3rd Defendant to approach much more slowly than 40 to 45 km/hr. It required him to come level with the front of the bus and, if necessary, stop to look beyond the bus and only then move on if it was safe to do so. No such care was taken by him. Although he travelled within the speed limit and was on the major road, he was negligent in not taking the precautions which I have just described. Driving up and overtaking the school bus at 40 to 45 km/hr in these circumstances was negligent and I so find. 21.This having been said the 3rd Defendant’s undoubted negligence does not of itself absolve the 2nd Defendant of liability and it is this which I must now examine. As I have already observed he was coming out of a minor road onto the major road. Fortunately, the school bus and the parked van were giving way to him. He now needed to move forward and stop and see that it was safe to move forward. Various ways have been suggested how he might have safely executed this difficult manoeuvre, such as putting his headlights on and/or hooting. In the event nothing could be safer than moving forward slowly and protruding a very short distance beyond the front offside of the school bus and then stopping to see that nothing was coming. 22.I find as a fact that this is what the 2nd Defendant did. I find he moved out slowly in front of the school bus and stopped just beyond it. I find as a fact that he was stationary when he was collided into by the 3rd Defendant’s motorcycle who by unhappy chance was then in the process of overtaking the school bus at between 40 to 45 km/hr as the 3rd Defendant had truthfully told the police. In what were difficult circumstances the 2nd Defendant had driven his lorry with all necessary care. He was not negligent in the circumstances. This collision was caused entirely by the 3rd Defendant’s negligence in riding in the way that he described to the police which was a truthful version and not the one that he gave to me in the course of his evidence and which I have rejected as fabrication. 23.Madam Lee, as neutral in this matter, has also provided truthful evidence as best as she could. Where her evidence differs from that of the 2nd Defendant I am confident that the 2nd Defendant has provided the correct account. Significantly, as to whether the 2nd Defendant was moving or stationary at the time of the collision, Madam Lee has very fairly said, and this is what she also told the police, that she could not tell whether the lorry was stationary or moving. Conclusion 24.Accordingly, I find the 3rd Defendant entirely to blame for the Plaintiff’s injuries by virtue of his negligence in the circumstances that I have described. The 2nd Defendant was not negligent. There must therefore be judgment against the 3rd Defendant in favour of the Plaintiff and judgment for the 2nd Defendant against the Plaintiff whose action against the 2nd Defendant must now stand dismissed. Costs 25.I would have thought that the 3rd Defendant must pay the Plaintiff’s costs of the action against him and that the 2nd Defendant must have his costs against the Plaintiff but that these costs will also be paid by the 3rd Defendant to the Plaintiff. It was perfectly reasonable of the Plaintiff to have sued both Defendants in the way that she has but where I have found the 3rd Defendant entirely to blame he must ultimately be responsible for all of the costs of the action. (See Sanderson v Blythe Theatre Co. [1903] 2KB533) This will be an order nisi. If it is suggested that some other form of order should be made then let that be done in writing within 14 days with responses 14 days thereafter. 26.Finally, I wish to express my gratitude to all counsel for the very helpful way in which they have conducted their respective cases.
Timmy C H Yip, instructed by Messrs Alvin Cheng & Rosaline Choy for the Plaintiff Michael Ozorio SC, instructed by Messrs John Lam, Law & Co. for the 1st and 2nd Defendant Charles Wong, instructed by Messrs Chu & Lau for the 3rd Defendant |