WILLIAM J. ORAM v. CHINA MOTOR BUS CO LTD AND OTHERS

HCA001828A/1973

IN THE SUPREME COURT OF HONG KONG

(ORIGINAL JURISDICTION)

 

ACTION NO. 1828 OF 1973

-----------------

 

BETWEEN
	William J. Oram	Plaintiff
	and
	China Motor Bus Company Limited	Defendant
	and
	Lee Shing Lap	1st Third Party
	and
	Lee Wai Lan	2nd Third Party

-----------------

Coram: Morley-John, J.

Date of Judgment: 19 June 1974

 

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JUDGMENT

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1. This judgment only relates to the quantum of damages to be awarded in this case, the question of liability having already been resolved in a judgment delivered by me on 8th March, 1974.

2. As a result of the accident in which the plaintiff was involved on 2nd September, 1972 he suffered, inter alia, a fracture of his right hip, fractured ribs, extensive damage to his teeth, extensive bruising and lacerations. The plaintiff also claims that because of this accident his vision has also been adversely affected, and that he has suffered from bursitis of the right elbow from which it is anticipated he will not fully recover. This last claim proved to be incorrect as the plaintiff stated in evidence that the bursitis has now cleared up completely. The plaintiff also claims that due to the injury to his hip he has suffered loss of earnings and that he will also suffer prospective loss of earning capacity.

3. Turning to the particulars of special damage, the plaintiff particularised the dental treatment that had been undertaken as a result of the accident and produced an account from his dentist which amounted to $8,650.00. Counsel for the defendant has criticised this item, although he did not suggest that this treatment had not been carried out he submits that the details of such treatment have not been strictly proved, nor has it been proved that all of this treatment was necessary as a result of the accident. He has also said that there is no proof that this sum has ever been demanded and that the plaintiff has admitted that he has not yet settled this account. The plaintiff in evidence stated that he told his dentist to send the account to his solicitors and such an account giving an itemised total of the fees for work undertaken has been produced. The dentist could not be called to give evidence as he is at present out of the Colony, but this itemised account has been produced, and the plaintiff, who although not a dental surgeon is a Doctor of Medicine and a Fellow of the Royal College of Surgeons of both London and Edinburgh, has stated that this treatment was carried out, and that such treatment was carried out as a result of the accident in which he was involved. I therefore allow this claim of $8,650.00.

4. The second item of special damage claimed is $18,400.00 being the salary paid to a locum tenens whom the plaintiff had to employ for 3 2/3 months at the salary of $5,000 per month. According to my mathematics $5,000 x 3 2/3 only amounts to $18,333.00. However, it is agreed that the salary of the locum tenens was paid by the partnership of which the plaintiff was a 50% partner, and, therefore, that only half this sum should be allowed, so accordingly under this item I award the sum of $9,166.50.

5. There are two items claiming reimbursement of hospital fees. That of the Queen Mary Hospital amounting to $1,368.75 has not been challenged, and the receipt has been produced showing that that amount has been paid, and that sum is allowed. To support the claim of $2,900.00 as being the hospital expenses of the Canossa Hospital, a receipt for $2,500.00 has been produced. The plaintiff stated that $400.00 was also given to the hospital staff in the form of gratuities. Considering the time that the plaintiff was in the Canossa Hospital this amount would appear to be somewhat on the generous side, and I reduce it accordingly to $200, and under this item I award the sum of $2,700.00.

6. The next item is a claim for taxis to and from hospital, taxis hired by the plaintiff's wife when she visited him in hospital, but which were paid for by the plaintiff. Despite the case of Cook v. Wright⁽¹⁾ where it was held that a claim by parents for the expenses of visiting a child in hospital must show, inter alia, that such visits were necessary in the light of the patient's medical condition at the relevant time. I award the sum of $168.00 claimed under this item. In the case of Cook v. Wright the sum claimed and allowed was $500 and although the court said what I have just quoted, it then went on to say that "every case will depend on its own facts."

7. The next item is a claim for the loss of the motor-car registration No. AN 283 amounting to $4,500.00, i.e. the car that the plaintiff was driving at the time of the accident, and which was treated by the insurance company as a total loss. The plaintiff has stated that he insured the vehicle for $13,000.00 but that the insurance company only paid $10,000.00 on his claim, and that he had looked up the current prices advertised in the newspapers of second-hand cars of a similar age and model to the one which had been destroyed and found that such cars were being advertised at around $14,500.00. hence the claim for $4,500.00. I think that we all know that if you advertise a second-hand car for sale at a certain price that is no guarantee that you will be successful in selling that car for the advertised price. The insurance company considered the car was worth $10,000.00 and that sum was paid to the plaintiff, which sum he put towards the buying of a better and more expensive car. Under the circumstances I do not allow this claim.

8. There are also claims for small items such as damage to clothing, clothing for hospital and the cost of an electric shaver. The defence asked me to apply the de minimis rule. However, so far as these items are concerned I award the sum of $200.00.

9. The next item is a claim for $4,785.00 being the cost of a car for the use of the locum tenens. The plaintiff said that he bought a second-hand car for this purpose, and that the purchase price was $4,500.00, registration fee $125.00. and insurance $150.00, which again according to any arithmetic amounts to $4,775.00. The plaintiff stated that he had a lot of trouble with this car, that he kept it after his locus tenens had departed but that it was unserviceable. Under this item I award the sum of $2,000.00.

10. The next item consists of the medical fees charged by Professor Arthur Yau who treated the plaintiff after the accident. The statement of account amounting to $825.00 has been produced and has not been challenged. It is interesting to note that although the plaintiff stated that he has not settled this account counsel for the defendant has made no criticism as to this as he did concerning the dentist's account.

11. The last item of damages claimed under the heading of special damages, and by far the most complicated, is a claim for loss of earnings from the date of the accident, 2nd September, 1972, to 31st December, 1973 amounting to $142,354.00. The plaintiff stated that this loss was sustained only in relation to the clinic he operated at Repulse Bay, but the income of which went into the partnership account while he was a member of that partnership which ceased on the 31st March, 1973. Thereafter until 31st December, 1973 the income from this clinic went wholly to the plaintiff. The loss was sustained for the reason that when the plaintiff was incapacitated no one could operate the gynaecological side of the clinic, and when he started work again his capacity for work was impaired, and also during his absence the plaintiff stated that he had lost a lot of his patients. According to the figures produced by the plaintiff's accountants during the period from 1st April, 1972 to 31st October, 1972 the average monthly income from that clinic was $25,446.00 not $26,483.00 as stated by the plaintiff in evidence, whereas the average monthly income for the clinic from 1st November, 1973 to 31st March, 1973 was $16,196.00, a drop in monthly average income amounting to $9,250.00. Thus from November to March, 1973 that loss would amount to $46,250.00. However, that was a loss to the partnership of which the plaintiff had only a 50% share. Therefore, the loss to the plaintiff during these months could only amount to $23,125.00. After the dissolution of the partnership from the figures produced by the plaintiff's accountant from 1st April, 1973 to 31st December, 1973 the income from the Repulse Bay clinic was $176,929.00, an average monthly income of $19,658.00. Taking again the monthly average income of the clinic from 1st April, 1972 to 31st October, 1972 as $25,446.00, the monthly average loss after 1st April, 1973 to 31st December, 1973 would amount to $5,788.00 which for the nine months constituting that period would amount to $52,092.00. Thus from the figures produced to me I calculate the loss of earnings from 2nd September, 1972 to 31st December, 1973 amounts to $75,217.00. I do not agree with the plaintiff's calculations which appear, although not strictly accurate in themselves, to have been made by taking an average monthly loss of a sum in the region of $10,287.00 and multiplying it by the figure 14, and also not taking into account that for part of this time the plaintiff was in partnership.

12. Counsel for the defendant has submitted that under this item the plaintiff is not entitled to one cent in damages because according to the figures supplied by the plaintiff's accountant during the period covered by this claim the plaintiff earned more money than he had earned in any previous period. I cannot agree with this argument, the claim is in effect for loss of earning capacity and on the evidence I am satisfied that if this accident had not occurred the plaintiff would have earned more than he actually did during the period, so in fact he still suffered a loss on what he would have earned if his earning capacity had not been impaired. If one accepts the argument put forward by counsel for the defendant it would mean, for example, that if a person left a job in which he had been earning $50,000.00 a year and secured a new job at $150,000.00 a year, and that shortly after taking up that job he suffered an accident which stopped him working for six months, then he would obtain nothing for the loss of earnings during that six months because in the year as a whole he would have earned $75,000.00, more than he earned in the year preceding the accident. Accordingly under this item I award the sum of $75,217.00.

13. So far as the claim for special damages is concerned I award total sum of $100,395.25.

14. The plaintiff also claims general damages. As a result of the accident the plaintiff was in hospital from 2nd September, 1972 until the end of October, 1972 when he sufferer a considerable amount of pain from his injuries, principally from the injury to his hip and teeth. Also, since the accident the plaintiff has suffered from recurrence heal aches which were so severe at times that he had to stop working. he has also suffered from disay spells, the last of which occurred in December, 1973. He had stated that both conditions are improving as the time goes by. The plaintiff also gave evidence that his eye sight has deteriorated as a result of the accident, that before the accident he had excellent eye sight, but that since the accident he has had to wear glasses for close work. Dr. Lor Kai Hung gave evidence that he examined the plaintiff's eyes at the Canossa Hospital and he prescribed reading glasses for the plaintiff. He said that the accident to the plaintiff might have precipitated the need for the plaintiff to wear glasses because an accident such as this causes deterioration of a person's physical condition generally, and this includes some deterioration of the sight. However, Dr. Lor stated that irrespective of the accident he would have suggested that the plaintiff should wear glasses for reading, and that the glasses he prescribed for the plaintiff are much weaker than one would expect for a man of the plaintiff's age even taking the accident into account.

15. However, one condition that has not improved is the persistent pain from the plaintiff's hip which he says occurs at some time every day up to the present, and is likely to continue and get worse in the future. He says that this usually occurs at the end of the day if he has been standing for any length of time which his profession as a surgeon often necessitates. In fact the plaintiff sat during most of the time he gave his evidence. He also stated that as the years go on he expects this pain slowly to increase. This pain is caused by the onset of osteoarthritis in the hip joint, and the plaintiff stated that this onset of osteoarthritis will necessitate an operation to his hip which is a certainty within the next three to five years. He has stated that after such an operation he will be unable to continue his work as a surgeon resulting in a very large decrease in his earning capacity. Professor Arthur Yau of the Department of Orthopaedic Surgery of the University of Hong Kong gave evidence as to the treatment he gave to the plaintiff in hospital and afterwards. Professor Yau stated that he examined the plaintiff on 13th November, 1972 when there was a 90⁰ flexion of the hip joint, and all other hip movements were full, and that as a result of X-rays taken on 10th January, 1973 it was shown that the head of the femur was healing well and that the healing was almost complete. However, Professor Yau stated that he next examined the plaintiff on 29th June, 1973 when the plaintiff complained of stiffness in his hip and X-rays showed arthritic changes in the joint. He next examined the plaintiff on 10th January, 1974 and he described how he found definite limitation of movement in the joint, and further X-rays showed further degeneration of arthritic changes in the joint, and Professor Yau stated that such degeneration is progressive and will definitely continue to progress in the next few years, and that this condition will definitely necessitate an operation for the replacement of the hip joint within three to five years. He said that this is a certainty although his estimate of three to five years is a rough estimate, such an operation might become necessary within a year, but it would definitely have to be performed within the next three to five years. According to Professor Yau such an operation would completely incapacitate the plaintiff for three months and that for the following three months his working capacity would be out by 50 to 60%. Professor Yau stated that after the operation all pain from the joint would disappear and that six months after the operation the plaintiff should be able to carry on as before except that he would not be able to play golf and he would not be able to run as there would be a 50% limitation of the movement of the hip joint. At present the plaintiff is aged 51 and was an active man in good health. Professor Yau disagreed with the plaintiff's opinion that he would have to curtail his original practice and it is the professor's opinion that the plaintiff will be able to carry the same work load as before. Professor Yau is a specialist in this field of surgery whereas the plaintiff is a specialist in gynaecology and obstetrics and I accept Professor Yau': opinion.

16. The plaintiff includes in his claim for general damages the loss of earning capacity that will result from the operation, the cost of this operation and hospitalisation and the employment of a locum tenons during the time he will be unable to work.

17. It has also been submitted to me that in considering the quantum to be awarded as general damages I should consider the question of inflation. However, I adopt the words of Widgery, L.J., as he then was, in the case of Mitchell v. Mulholland⁽²⁾ when he said:

"	Once the award is made, the plaintiff must protect himself against a subsequent fall in the value of money by prudent investment, as must a legatee under a will or the winner of a football pool. This principle applies equally to an award of damages for loss of ability to earn as it does to an award for loss of amenity and pain and suffering. Each is a capital sum to compensate for present loss.
	In my view, therefore, an award of damages for personal injury should not reflect the possibility of continuing inflation. This is not to shut one's eyes to the obvious, but to recognise the antidote to cost-inflation which prudent investment supplies."

18. On the evidence as a whole, I assess general damages to be awarded to the plaintiff at $216,000.00.

19. The plaintiff also claims interest on any special damages awarded with effect from 2nd September, 1972 and interest on general damages with effect from the date of service of the writ in this action, i.e. 29th June, 1973. This being so in relation to the quantum of damages awarded as special damages I award interest at the rate of 8% per annum from the date of the accident to the date of this trial. As to the quantum of special damages this includes, inter alia, damages for loss of future earnings and there is ample legal authority which states that interest on such damages should not be allowed, and also applying the same principle I do not allow interest on the sums I have allowed for pain and suffering and loss amenities that I am satisfied will occur to the plaintiff in the future, neither do I allow interest on damages arising from the future operation and hospitalisation of the plaintiff. Therefore, although when assessing the quantum of special damages the courts frown upon the practice of particularising each item of general damages, in this case so that the amount of interest can be calculated I must separate from the question of general damages that amount I have decided should be awarded for pain and suffering and loss of amenities suffered by the plaintiff from the date of the accident to the date of the trial, and I assess that amount to be $40,000.00. Accordingly I award interest upon this sum at the rate of 8% from the date of service of the writ in this action to the date of trial.

20. I therefore give judgment for the plaintiff in the sum of $316,395.25 together with interest at such rate and on such sums as I have already indicated together with costs. As a result of my judgment dated 8th March, 1973 as to liability of the parties, 40% of the damages, interest and costs are to be paid by the defendant, and 60% by the third parties.

 

 

	(M. Morley-John, J.)
	19 JUNE 1974

 

Representation:

Donnelly (Gordan Hampton & Winter) for plaintiff.

F. Eddis (Ngan & Wong) for defendant.

M. Asome (Johnson, Stokes & Master) for the 1st and 2nd third parties.

(1) [1967] N.Z.L.R. 1034

(2) [1971] 2 W.L.R. 1271, 1285

HCA001828/1973

 

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

 

ACTION NO. 1828 OF 1973

-----------------

 

BETWEEN
	WILLIAM J. ORAM	Plaintiff
	and
	CHINA MOTOR BUS COMPANY LIMITED	Defendant
	and
	LEE SHING LAP	1st Third Party
	and
	LEE WAI LAN	2nd Third Party

-----------------

Coram: Morley-John, J.

Date of Judgment: 8 March 1974

 

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JUDGMENT

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1. This action arose from a collision between a car driven by the plaintiff and a motor omnibus driven by an employee of the defendant company which occurred on the 2nd September 1972 as a result of which the plaintiff suffered injuries and damages.

2. At the commencement of the second day of the trial of this action counsel for the plaintiff informed the Court that he had omitted to include in the Statement of Claim a claim for loss of earnings and loss of earning capacity on the part of the plaintiff and therefore he applied to amend the said Statement of Claim to include such losses. The application was opposed by counsel for the defendants. But I allowed the application granting the defendants such reasonable adjournment as they required to enable them to consider the amended Statement of Claim. Counsel for the plaintiff then informed me that it would take some time to produce certain proof of loss of earnings in the way of audited accounts and after an adjournment counsel for the plaintiff, the defendant and the third parties agreed that instead of asking for an adjournment I should proceed with the hearing of the action, but that such hearing should be limited as to the issue of liability and that when such issue had been resolved, then further evidence should be adduced as to the question of damages to be awarded, if any.

3. Therefore this judgment deals only with the issue of the liability of the parties concerned.

4. The plaintiff is a doctor of medicine practising general surgery obstetrics and gynaecology. At about 3.30 in the afternoon of the 2nd of September 1972, he was driving his private car from Shek 0 in the direction of Shaukiwan. His final destination was to have been the Canossa Hospital where he was due to visit a patient. Upon rounding a bend in Tai Tam Road between culvert T.T. 96 and culvert T.T. 97 and travelling on his correct side of the road he was involved in a collision with a motor omnibus owned by the defendant company driven by one of its servants which omnibus was proceeding in the opposite direction from that of the plaintiff and was in the process of returning from its right hand side of the road, i.e. its wrong side to the left hand side of the road, but at the time of collision it had not completed this manoeuvre and the omnibus struck the plaintiff's car with its off-side mudguard and part of its off-side engine cowling. After the collision, the plaintiff's car ended up diagonally across the road with its off-side front wheel on the left white line of the double white line which ran down the centre of the road and the back of the car rammed into the hillside on the left hand side of the road. The omnibus came to a halt with its front off-side wheel just past the front off-side wheel of the plaintiff's car and fractionally to its left of the double white line but with the rest of its off-side over and to the right of the double white line. This is clear from the sketch plan drawn by police constable 5713 at the scene of the collision. The Court together with the counsel and their instructing solicitors also visited the scene. Evidence was adduced that the omnibus was fully laden with 30 seated passengers and also some standing passengers and that its unladen weight was 6 tons, so at a conservative estimate I would judge that the fully laden omnibus would weigh somewhere in the region of 8 tons. I am also satisfied from the way that the rear of the plaintiff's car was rammed into the hillside and the fact that the off front side of the omnibus ended up just past the front of the plaintiff's car that the force of the collision had slewed the plaintiff's car across the road as I have described.

5. The plaintiff gave evidence that he was driving his private car, a Rover 2000, at a speed of between 25 and 30 m.p.h. at the time of the collision. That the car had four forward gears and that he was in third gear having changed down from top gear for a fairly sharp corner just prior to the bend on which the collision took place and that he was travelling on his left hand side of the road. As he drove round the bend in question the plaintiff stated that he saw a minibus on the opposite side of the road approximately 70 feet in front of him. He said that he believed it to be stationary. He then saw the defendant's omnibus approaching him on his, the plaintiff's, side of the road and that it was just starting to cross back towards the double white line to its correct side of the road and that the bus appeared to be moving slowly. The plaintiff said that he immediately braked hard but as he put it "the bus was almost upon me" and that was all he remembered until he later recovered consciousness still in his car. He estimated that the ombibus was about 50 feet in front of him when he first saw it, but the plaintiff agreed that his seeing the omnibus and the collision all happened in a fleeting second. According to the table contained in the 7th edition of Bingham's Motor Claims Cases, which has not been disputed, at 25 m.p.h. the plaintiff's car would have been travelling at 36.66 feet per second and at 30 m.p.h. at 44 feet per second.

6. It was suggested to the plaintiff that he was travelling at a speed in excess of 30 m.p.h. and that he was in a hurry to reach his patient at the Canossa Hospital as she was in labour expecting her first child. He denied this, he said that he was familiar with the journey from Shek 0 to the Canossa Hospital via Shaukiwan which normally took 40 minutes. That he had last examined his patient at 12. 15 p.m. that day and from his examination he could anticipate the progress of her labour, that he had told the hospital at what stage he was to be called and that there was no urgency when he received the message from the hospital. In fact it was agreed that the patient did not give birth until 5. 15 p.m.

7. Counsel for the defendant drew my attention to the sketch plan made at the scene of the accident by P.C. 5713 which indicated that there were tyre marks on the road behind the plaintiff's car, one mark measuring 38 feet 7 inches from the front off-side wheel and one measuring 34 feet 11 inches from the position near to the off-side rear wheel. Counsel has submitted that these marks indicate the plaintiff's car was travelling at a speed of well over 30 m.p.h. when the bus was sighted. I cannot agree with this submission. Again referring to the Bingham's Motor Claims Cases the braking distance of a private car at 30 m.p.h. is 45 feet, and the overall stopping distance at that speed adding what is termed the thinking distance is 75 feet. There is no evidence as to what speed the plaintiff's car was still travelling when it actually collided with the omnibus. However the driver of the omnibus Mr. SIN Kam-wah stated that when he first saw the plaintiff's car it was about 50 yards a way and it was travelling at over 40 m.p.h. and that his vehicle was travelling at about 10 m.p.h. He said that at the moment of impact his vehicle was stationary. I do not believe him. Before he was asked whether his vehicle was still moving at the moment of impact, he had given clear evidence that when he first saw the plaintiff's car according to him about 50 yards away travelling at over 40 m.p.h. he slowed down and pulled back to his own side of the road as much as he could, that he steered his vehicle to his own side of the road as much as he could but that the car ran into the front off-side of his bus. Also in cross-examination he agreed that his vehicle was stopped by the collision. From the sketch plan it can be seen that when the omnibus stopped not only was the whole of its off-side with the exception of its very front off-side corner either on or well over the double white line but that the front of this omnibus was past the front of the plaintiff's car which had been pushed diagonally across the road by collision and from photograph Exh. P1 it can be seen that the rear of the plaintiff's car had been forced into the hillside while the off-side front wheel of the car was resting on that part of the double white line on its side of the road.

8. For the avoidance of doubt, I must stress that it is agreed that when the photograph Exh. P1 was taken although the plaintiff's car had not been moved, the omnibus had, and only the sketch plan shows the position of the latter immediately after the accident. Also P.C. 5713 said that he did not notice any braking marks on the road behind the omnibus.

9. I am satisfied that the omnibus was still travelling forward when it collided with the plaintiff's car. Counsel for the defendant has also drawn my attention to the damage sustained by the two vehicles. He has said that the rear window of the plaintiff's car was shattered and he has asked me to infer that the impact was very severe, while at the same time, he points out to me, that the bus was only lightly damaged: I am satisfied after looking at the photograph Exh. P1 that in all probability the rear window of the plaintiff's car was shattered as a result of the impact of that car with the hillside and I am also satisfied that if the plaintiff's car had been travelling at a speed of over 40 m.p.h. as stated by Mr. Sin when he first saw it, then the impact with a 8-ton omnibus travelling albeit slowly would have caused considerably more damage than is shown in the various photographs.

10. I have no hesitation in believing the plaintiff's evidence. I was most impressed by the way in which he gave his evidence, in fact the way he gave his evidence both in chief and under cross-examination was more in the manner one would expect from a completely impartial witness rather than that of a plaintiff.

11. The defendant submits that because of the speed of the plaintiff's vehicle the plaintiff was partly to blame for the accident. He alleges contributory negligence on the part of the plaintiff, in other words, that the plaintiff failed to take such care as a reasonable man would take for his own safety and that this failure to take care was a contributory cause of the accident. However, as I have said, I have no hesitation in believing the plaintiff's evidence and the defendant has not satisfied me that there was any negligence on the part of the plaintiff. I am satisfied that he was driving at a perfectly proper speed under the circumstances and that he was driving on his correct side of the road and I find that no blame can be attached to the plaintiff for the unfortunate collision in which he was involved.

12. The defendant also alleges that the accident was caused by the negligence of the first third party as agent or driver of the second third party or as a person having control of a public light bus with the permission of the second third party. In his Statement of Defence, inter alia, the first third party denies that he was acting as the servant or agent of the second third party and the second third party in his Statement of Defence, inter alia, disclaims all legal liability for the acts of the first third party in that he, the second third party, had hired the public light bus to the first third party who was driving merely for his own benefit and concern and was not driving for the second third party. However, counsel for the first and second third parties informed me that he withdraws that part of the defences covering a servant or agent and that the defence of the two third parties is that the accident was caused by or was contributed to by the negligence of the defendant or his servant or agent and that on this defence the two third parties stand or fall together.

13. The negligence alleged by the defendant on the part of the first third party, the driver of a public light bus, hereinafter referred to as it was in evidence as the minibus, is that he stopped the said minibus on this blind bend in Tai Tam Road between culvert T.T. 96 and culvert T.T. 97 and when the defendant's omnibus drew up behind the stationary minibus the first third party negligently signalled the defendant's omnibus to overtake and in response to this signal the driver of the omnibus pulled over to the right hand side of the road to pass the minibus and it was for this reason that the omnibus was on its wrong side of the road when it collided with the plaintiff's car.

14. The driver of the defendant's omnibus, Mr. SIN Kam-wah, gave evidence that on the afternoon in question he was driving the defendant's omnibus from Shaukiwan to Shek 0 and that he was familiar with this particular route. That he had reached this bend in Tai Tam Road when he saw the minibus stationary at the side of the road that he slowed down and then stopped behind the minibus. That he stopped for about 20 seconds. Mr. Sin at first said that he could see over the top of the minibus from his driver's seat and he said that he could see about a hundred yards of the road ahead. From my observations at the scene I was satisfied that this evidence could not be true, Mr. Sin could not see round that corner. He was asked why if he could see for a hundred yards ahead did he stop his omnibus and he said that he could not see clearly. It was not until the final stages of his evidence that the matter was clarified when he explained that what he meant was that he could see ahead only on the left hand side of the road but because of the bend he could not see any vehicle which might be approaching round the bend on its correct side of the road. He said that after he had stopped for about 20 seconds the driver of the minibus signalled to him to pass and that he then sounded his horn and started to pass the minibus by driving on the right hand side of the road. That as he was pulling back to his correct side of the road the collision occurred.

15. Mr. Sin said that after the accident he approached the minibus driver and asked him what was wrong with his vehicle and that the driver said that the radiator was overheating. At one stage in his evidence he also said that he spoke to the minibus driver before he passed him. He said that if the minibus driver had not waved him on he would never have overtaken the minibus. When asked what he would have done he said that he might have alighted and asked the minibus driver to go and stop on-coming traffic so that he could overtake.

16. Under cross-examination Mr. Sin agreed that he was familiar with the stretch of road where the accident occurred and that he was familiar with the bend in question and he knew how long the bend was before the road straightened out. He agreed that because of this bend in passing the minibus he would be unable to get back to his proper side of the road in time to avcid any vehicle which might be coming in the opposite direction on its correct side and he agreed that because of his knowledge of the road he knew that there may be traffic coming in the opposite direction which would not be in his view because of the fact that his view was obscured and therefore that it might be dangerous to overtake the minibus even if the driver of the minibus gave a signal that it was safe to do so. On the other hand throughout his evidence he was quite adamant that he would never have passed the minibus unless the driver had waved him on. He said that as he was passing the minibus the speed of his vehicle was about 10 miles an hour. It was put to him that he never made any mention of the fact that the driver of the minibus waved him on in his statement made to the police after the accident Mr. Sin said that he did. The statement was produced and he agreed that no mention of his having been waved on appeared in that statement however he said that he was quite certain that he had told the police about that.

17. Mr. NG Cheuk-kin, an assistant station regulator employed by the defendant, also gave evidence that at the time in question he was a passenger in the omnibus travelling towards Shek 0 to take up his duties there. He said that he was sitting in the second row from the rear of the omnibus next to the near side window. He said that while travelling along Tai Tam Road just before the accident the omnibus stopped for 20 to 30 seconds and that the place where it stopped was not a scheduled stop. He said that the omnibus then moved towards the right hand side of the road, that he could not see through the front window of the omnibus because of the standing passengers. He said that as the omnibus was moving obliquely across the road towards the right hand side he saw a stationary minibus in front of them and he saw the minibus driver wave the omnibus on and that after passing the minibus as the omnibus began to swerve back to its correct side of the road he heard a skidding noise from ahead of them and he then heard a bang whereupon the omnibus stopped. Mr. Ng said that he got out of the omnibus and walked up to see what had happened and found that the omnibus had been in collision with a private car. He asked the European driver of the car if he could help him but merely received a hand gesture in reply, whereupon he went in search of a telephone in order to report the accident. As he passed the minibus he asked the minibus driver why had he stopped there and received as the reply, "because the water is boiling" He said that when the minibus driver said this to him the omnibus driver was right behind him but he did not notice whether the latter spoke to the minibus driver or not. That he then went to a nearby telephone and dialled 999 after which he returned to the scene to find that the minibus was no longer there. Mr. Ng said that directly after the accident the minibus was about 10 feet behind the omnibus. I have no reason to doubt this witness's evidence. He appeared to me to be a thoroughly honest witness and from my observation at the scene if the minibus was in this position then the driver could not have seen the whole of the road clear ahead of him round the bend. The plaintiff in his evidence also said in effect that he saw the minibus and the omnibus only a split second before the collision as he came round that bend.

18. The first third party, LEE Shing-lap, the driver of the minibus, gave evidence. I must say I was not impressed by the way that he gave his evidence. So far as the collision is concerned his evidence can be summarised in one sentence. He saw nothing, said nothing, and did nothing. In giving evidence-in-chief he said that on the afternoon in question he was driving the minibus which was fully loaded along Tai Tam Road towards Shek 0. That when he got to the bend in question the engine of his vehicle stalled because it had overheated and was boiling. He said that the did not notice the defendant's omnibus draw up behind him and remain standing behind him for about 20 seconds. He said that nobody from the omnibus spoke to him at any time but he did say that he saw the omnibus overtake him. However he denied that he signalled the omnibus in any that to proceed past him. He said that the omnibus never sounded its horn. He said that there was a collision about 20 to 30 feet ahead of him and when he was asked if it was between the omnibus and the private car he said that he did not see this collision. He said that he did not speak to either Mr. Sin or Mr. Ng. In fact he said that he did not speak to anybody and that nobody spoke to him. He said that he realised that there had been an accident because he heard the passengers talking about it. He said that as soon as it had cooled he restarted his engine and drove back towards Shaukiwan.

19. In cross-examination Mr. Lee was asked if he said anything to the people he heard talking about the accident. At first he said that he could not remember and then he said that he definitely did not speak to anyone. He said that he believed that there was a collision ahead of him but that he saw no sign of this collision. He said that perhaps the omnibus had run into the hillside. He said that he made no effort to find out what had happened. He was asked how far ahead could he see when the minibus had stalled and he said about 40 feet. If this is correct then it would cast some doubt on his evidence-in-chief when he stated that the distance between him and the bus at the time of the collision was between 20 to 30 feet and that he heard a bang 20 to 30 feet from the front of his vehicle. He was on the left hand side of the road, the omnibus was across the road and the bend curved to the right. His vision of the car may have been blocked by the omnibus but he did not say so. He said he saw no signs of the collision. Mr. Lee agreed that he had stopped at a place where it was dangerous for anybody to overtake him but even so he did not keep a lookout to see if anything was behind him. He said that his minibus had been stationary for about 1 minute before the omnibus passed him. He said that during that time he had only tried to restart his engine once and he said that when the omnibus passed him it was travelling at about 20 miles an hour making a noise as though it was revving its engine, which to me would indicate that the omnibus was just starting up from having been stationary and would therefore not be travelling at 20 miles an hour. He said that he paid no attention whatsoever to the accident and as soon as he could he started his engine and drove off. He said that he did not want to be involved in any trouble.

20. From the evidence as a whole I am satisfied that this minibus driven by the first third party did break down on this blind bend. I am satisfied that the defendant's omnibus did come up behind the minibus and stop for a short period of time and that in response to a signal to proceed given by the minibus driver the omnibus proceeded to overtake the minibus. Whether or not the driver of the omnibus sounded his horn is perhaps a matter of doubt. The driver said he did, the omnibus driver said he did not, and the regulator, Mr. Ng, whom I consider an honest witness, said that he did not hear anybody being sounded. In the circumstances of this case except so for as it goes to the credibility of the witness I consider that it is of little importance whether or not the driver sounded his horn or not. I am satisfied that after the accident at least Mr. Ng spoke to the minibus driver and was told that the minibus was stopped because it had overheated. I do not believe Mr. Lee when he said that he never spoke to anybody after the accident. If his evidence on this point was true it would appear to impart some clairvoyance on the part of Mr. Sin and Mr. Ng in that they said that the driver told them that the minibus had overheated, which the driver said was correct, if the driver himself had not told them.

21. I am satisfied that neither Mr. Lee not Mr. Sin could see safely round that corner when Mr. Lee signalled the omnibus to proceed and I am satisfied that they both participated in this dangerous venture which was the sole cause of the accident.

22. The question that remains to be decided is what portion of the blame for this accident should be attributed to the defendant and what to the third parties. In a case somewhat similar to the present case Grange Motors, Ltd. v. Spencer⁽¹⁾ the defendant was in his car approaching a bend in the road, a post office van was parked at the bend partly on the road way, that the defendant saw the postman looking in the opposite direction and then make a gesture or signal to him which he took to mean that it was safe for him to pass, in passing the defendant had to go over the centre line of the road. The plaintiff's vehicle came round the bend in the opposite direction and the defendant was unable to avoid colliding with it. The County Court Judge held that the postman was wholly to blame for the accident. On appeal the Court of Appeal although it would appear not wholly to have approved of certain aspects of the learned trial judge's judgment, on the facts of that case dismissed the appeal. The Court in its judgment referring to the case of White v. Broadbent & British Road Services, Ltd.⁽²⁾ found that a person cannot with impunity and with complete recklessness give a signal to other drivers who may not be as able as he is to see what the true traffic position is and it was felt that the learned trial judge was absolutely right in holding that a duty existed in that case and that there was no doubt that the postman was negligent in the manner in which he discharged that duty. However, in his judgment, Edmund Davies, L.J., made the following observation. He said:

"I would not like it to go forth from this Court that a driver who has been given a signal by a third party to overtake can blindly act on that signal. The duty of the overtaking driver remains constant throughout; he still owes a duty of reasonable care."

Again in his judgment in the same case Sachs, L.J., observed

"To what extent if at all the driver to whom the signal is addressed is entitled to rely on it must of course be a question of fact and degree according to the case. .... The question must always be did the driver act with reasonable care?"

23. In the case of White v. Broadbent & British Road Services, Ltd. referred to above, in the circumstances of that case again a case where a driver of a van had been given a signal to pass by the driver of a stationary lorry with resulting damage to the plaintiff, the Court of Appeal upheld the trial judge's finding that the lorry driver was 80% to blame and the van driver 20% to blame.

24. In this present case I am satisfied that the driver of the minibus acted completely irresponsibly and negligently, when he signalled the omnibus to overtake he could not see sufficiently far ahead to insure that there was no traffic approaching from the opposite direction. On the other hand the driver of the omnibus admitted that because of his knowledge of the road, under the circumstances he knew that there might be traffic coming in the opposite direction which would not be in his view and that it might be dangerous to overtake the minibus even with a signal that it was safe to do so. I do not consider that the driver of the omnibus acted with reasonable care, knowing the road as he did.

25. I therefore find both parties negligent and as to the degree of negligence I find that the third parties were 60% liable and the defendant 40% liable for the damage suffered by the plaintiff.

 

 

	(M. Morley-John)
	Puisne Judge.
	8 Mar 1974

 

Representation:

J.D.M. Donnelly (Gordon Hampton & Winter) for plaintiff.

F. Eddis (Ngan & Wong) for defendant.

M. Asome (Johnson, Stokes & Master) for 1st and 2nd third parties.

(1) [1969] 1 All E.R. 340

(2) The Times, Nov. 29, 1957 (C.A.)