ELIZABETH LEK WOON SUK-HUA AND ANOTHER v. LEUNG SHIU-SEE AND ANOTHER

bjbj HCA002012/1977 IN THE HIGH COURT OF JUSTICE 1977 No. 2012 BETWEEN ELIZABETH LEK WOON SUK-HUA 1st Plaintiff AGNES LEK GEK-MUI 2nd Plaintiff LEUNG SHIU-SEE 1st Defendant CHUNG WAH SHIPBUILDING & ENGINEERING COMPANY LIMITED 2nd Defendant Coram: Zimmern, J. Date of Judgment: 17th May, 1979. ----------------- JUDGMENT ----------------- In this case the 1st and 2nd plaintiffs who are mother and daughter respectively sue the 1st and 2nd defendants in damages for injuries and loss sustained as a result of a collision on the Tsing Yi Bridge Road on the night of the 20th of January, 1976, between a car driven by the 2nd plaintiff and a lorry owned by the 2nd defendant. The 1st defendant driver died before hearing of this action. The parties have agreed on quantum subject to liability and the figure agreed between the parties for both the 1st and 2nd plaintiffs is $225,000, a global figure for the two. In the course of the proceedings, Mr. Tang, if I may say so, very properly and with dignity admitted negligence on the part of the 2nd defendant and persevered with his case of contributory negligence by the 2nd plaintiff. The facts are: On the night in question the 1st defendant drove on to Tsing Yi Bridge Road from a site nearby, a lorry loaded with goods protruding from the sides which literally blocked the whole road whereby no car or vehicle could have overtaken that lorry or no car coming from the opposite direction would have passed it. It was creating a dangerous situation to the extreme, and the less I say about it the better because one can be so incensed by a party or parties putting a car on a road without street lighting in that condition it may affect one's judgment on the real issue now between the parties, that is, whether the 1st plaintiff contributed to the negligence which harmed firstly herself and secondly her mother. No matter how negligent a defendant has been, he is free to allege contributory negligence and to my mind the test is this: For the defendant to succeed on contributory negligence the defendant must prove; firstly, that the plaintiff failed to take care of himself as a reasonable person would; secondly, that his failure to take care was a contributory cause of the accident. The amount of care which a defendant may reasonably be expected to take varies with the circumstances and with the condition actually prevailing at the material time. The 2nd plaintiff, driving her mother from their factory in Tsing Yi Island, had crossed the Tsing Yi Bridge and, according to her, soon after she saw a car parked on the side of the road with a person waving a torch up and down. She ignored the signal from this car and, if I may say so, in the country, in the dark, she rightly ignored this so-called signal, and thereafter she drove down a hill. She was travelling about 40 miles an hour and she saw ahead of her a car coming from the opposite direction, or she saw the lights of a vehicle coming from the opposite direction. She dipped her lights and soon thereafter she jammed on her brakes and there was a collision for which she can give no account of at all because she fainted and she was indeed very severely wounded. She had left the factory slightly earlier than her fiance who was driving another car following, and he told the court he also saw a van parked on the side of the road with a man signalling and when he saw them - at one time he said he slowed down, another time he said he stopped and heard the man outside say: "There will be trouble". I make no finding of this matter at all inasmuch as this has been quite a long time ago and he well might, in passing, have heard the man by the side of the car say something in Chinese. His evidence of what followed adds very little to this matter, except to say that on the evidence he excelled himself in the rescue of the 2nd plaintiff. So much really for the plaintiffs' evidence, but the burden of proof is on the defendant on contributory negligence, and as I understand it, the defendant's case is this: The van was sent up the road to stop all cars coming from Tsing Yi Island, and in view of the dangerous situation created by the lorry on the road, it is incredible to me that indeed was the only precaution taken by the defendant to stop traffic coming from Tsing Yi. The man who was in charge of the whole operation was the man who was trying to stop traffic. There were various versions. Firstly, he said the car, or the van, was parked diagonally across the Tsing Yi side, or traffic from the Tsing Yi side, with headlights on flashing to warn traffic. Then secondly, when shown a photograph of how the van was parked, the car was pointing exactly the opposite direction, and if the lights were on it would have been shining on to empty space so to speak. I find, as a matter of fact, that that part of the operation was completely ineffectual to stop any traffic or to warn any traffic from Tsing Yi of impending danger. That was the only precaution taken by the defendants to warn of the danger on the road, and Mr. Tang in his final submission hardly referred to the van at all, and I certainly had the impression that he himself thought that that precaution was ineffectual. What then was left of the precaution to warn of that dangerous situation created on the road? The answer to that is simple; there was none, and it was left entirely to the driver to do the best he could under the circumstances. Mr. Tang's case is this: Be that as it may, the driver did give all the necessary warnings to any reasonable driver coming down, or coming from the opposite direction to warn of a dangerous situation, and if you did not heed those warnings, then you had certainly contributed to the cause of the accident by failure to take care. As I understand it, the law is this: A person driving a car on a road is entitled to assume that a lorry will not be on the road in the manner that it was. For Mr. Tang to succeed on this case of contributory negligence, he would have to prove that sufficient warning was given to the on-coming traffic so that in the words of his own pleading, the person driving ought to have stopped, to have slowed down, to have steered or controlled or manoeuvred in order to avoid a collision. These warnings really entail two matters. First, is the matter of the quality of the warnings, and second, equally important, is the time factor. Some of the more important things in this matter are: What was the distance this vehicle had to go up the road in order to turn into the site it was going to? How far was the van up the road? How long or how far had the lorry travelled when the accident happened? When did the driver sound his warning, flash his lights, if he did at all? Let me deal first with the horn and the lights of the lorry. The 1st and 2nd plaintiffs and Mr. Chu, the driver of the following car, all said they did not hear any sounding of horn. The foreman who was up the road by the side of the van, despite very skilful examination-in-chief by Mr. Tang, did not say anything about hearing sound of horn. The driver who has died gave two statements in which he said he sounded the horn, and two witnesses who were aboard the lorry and gave evidence said the driver sounded his horn. On this evidence, I am prepared to hold that the driver at some time or the other did sound his horn. Now I come to the flashing of the headlights of the lorry. Again the three witnesses for the plaintiffs said he did not. Again the foreman by the van said he saw lights but did not see any flashing of lights, or on and off lights. One of the workmen said he saw flashing of lights, the other was hiding and did not see anything. Again I am prepared to hold that the driver did flash his lights some time or the other. Now I come to the time factor. When did the driver sound his horn and flash his lights? It could have only been after stopping his vehicle. When would he flash his lights and sound his horn? It would only be after the 2nd plaintiff's car had gone past the van because the purpose of the van was to stop traffic, and it would only be after passing the van that the driver would get into his head that a dangerous situation had arisen. I have no idea whether the driver is an alert driver, whether he would have the presence of mind to do these things quickly, whether he would panic, but I find it remarkable that the two workmen both said the driver started sounding his horn when the approaching car was two to three hundred yards away, which rather tallies to a certain extent with the statement made by the deceased driver to the second defendant's insurers and I find it interesting that this passage appears: " When my vehicle was about three hundred yards away from the construction site I saw that one of our company's vans has stopped on the opposite lane so as to stop the opposite vehicles. I then could drive safely on the site. At that time there was no street light on the road and I switched on the headlights. I was travelling at about a speed of about 10 miles per hour. I suddenly saw there were two private cars approaching out of Tsing Yi and overtook our company van. One was moving very fast, about 60 to 70 miles per hour, towards my vehicle lane. Therefore I immediately stopped my vehicle and pressed the horn and also switch the light on and off to warn the driver." It appears to me from this bit of evidence that the van parked by the side of the road was, according to the driver, only three hundred yards away from where he was. The other two who were at the back of the lorry, said two or three hundred yards. That is not evidence I can accept. Let me just mention this. As far as the second of them was concerned, before learned counsel for the defendant started to ask him a question in chief he had already muttered something about sounding of a horn. On the evidence though I am prepared to accept that a horn had sounded and lights were flashed, I am completely unable to hold that these measures constituted warning to the 2nd plaintiff, whereby ignoring them constituted a breach of duty on her part. Even if they had been given, as I said they have, there is no evidence before me that it was given in sufficient time for her to react. She was travelling along the road at 40 miles an hour, she had every right to go at that speed, and unless there was sufficient warning to her to reduce speed in sufficient time to avert any danger, there is no contributory negligence on her part and so I hold. Therefore there'll be judgment for the plaintiffs in the sum of $225,000, with costs. Seeing it is an agreed sum, no question of interest arises. Representation: Martin Lee & R. Liu (C.Y. Kwan & Co.) for Plaintiffs Robert Tang (H.H. Lau & Co.) for 2nd Defendant PAGE PAGE PAGE - &`#$ &`#$ HCA002012/1977 ELIZABETH LEK WOON SUK-HUA AND ANOTHER v. LEUNG SHIU-SEE AND ANOTHER Normal xucm Microsoft Word 9.0 Judiciary Hong Kong SAR Judiciary Hong Kong SAR HCA002012/1977 ELIZABETH LEK WOON SUK-HUA AND ANOTHER v. LEUNG SHIU-SEE AND ANOTHER Title Microsoft Word Document MSWordDoc Word.Document.8 HCA002012/1977 ELIZABETH LEK WOON SUK-HUA AND ANOTHER v. LEUNG SHIU-SEE AND ANOTHER Normal xucm Microsoft Word 9.0 Judiciary Hong Kong SAR Judiciary Hong Kong SAR HCA002012/1977 ELIZABETH LEK WOON SUK-HUA AND ANOTHER v. LEUNG SHIU-SEE AND ANOTHER Title