Case Detail

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)

BETWEEN

	CHAN CHEUNG	Plaintiff
	AND
	LEUNG KWOK WAI	1^st Defendant
	WIDE TECH SHIPPING LIMITED	2^nd Defendant
	HONGKONG INTERNATIONAL TERMINALS LIMITED	3^rd Defendant

Before: Hon Rogers VP, Stone and Chu JJ in Court

Date of Hearing: 8 December 2005

Date of Judgment: 8 December 2005

Date of Handing Down Reasons for Judgment: 14 December 2005

__________________________

REASONS FOR JUDGMENT

__________________________

Hon Rogers VP:

1. This was an application for leave to appeal to the Court of Final Appeal under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484. At the conclusion of the hearing of this application leave was refused with costs with reasons to be given in writing. An order was made for the taxation of the plaintiff’s costs in accordance with the Legal Aid Regulations.

2. The background to the case can be found in the reasons for judgment of this court handed down on 5 May 2005. The grounds upon which leave was sought were threefold. In the first place it was said that there was an issue of great general or public importance as to whether section 47(1)(a) and section 47(1)(b) of the Evidence Ordinance, Cap. 8 had to be considered conjunctively or separately when considering the exclusion of and the admissibility of hearsay evidence in civil proceedings.

3. The matter arose because the judge had not admitted in evidence a statement of a security guard, Mr Chik Wing Pun, which had been given to the police. The judge had refused to do so because although the 3rd defendant had initially intended to call Mr Chik as a witness, however when the 3rd defendant indicated that it would not be calling him as a witness it gave the plaintiff and the other parties every opportunity of themselves calling Mr Chik as a witness. Indeed, as the judge recorded in paragraph 40 of his judgment, there was no objection from any party to the plaintiff, had he so wished, calling Mr Chik. The judge went on to say in paragraph 45 of his judgment that it was determinative that the plaintiff had been afforded every opportunity of calling Mr Chik as a witness if the plaintiff had wanted his evidence before the court. In view of the fact that the plaintiff made a conscious decision not to call Mr Chik as a witness the judge considered that that was an end of the matter.

4. In my view the judge was clearly correct. Indeed the matter is rather the other way. Had the judge admitted the statement, albeit that it was one made to the police, on an important issue in the case, when there was likely to be a direct conflict in the evidence, it would have put him in an invidious position of having to decide the correctness of oral testimony on the basis of a written statement made by a person who could easily have been called as a witness but deliberately was not. In those circumstances there can be no ground for complaint.

5. The second matter said to be a matter of great or general public importance which should be submitted is whether section 21(1) of the Law Amendment and Reform (Consolidation) Ordinance, Cap. 23 mandates that it is just and proper for this court to have found that the blameworthiness of the plaintiff should be considered against the blameworthiness of each of the parties. The matter arises in this way. The judge found as a fact that the major cause of the accident had been the plaintiff’s own negligence. He said at paragraph 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 contributory negligence to a large extent.”

6. The judge went on to say that he assessed the contributory negligence of the plaintiff at 60%. In doing so the judge considered the blameworthiness of the plaintiff in respect of the accident as against the combined actions of the other defendants and not on an individual basis against each of the defendants separately. As recorded in the judgment of this court, during the course of argument on the appeal this court queried counsel for the plaintiff as to whether the blameworthiness of the plaintiff should be considered against each of the parties, but counsel was emphatic in arguing the case on the basis that the blameworthiness of the plaintiff should be judged as against the combined blameworthiness of the 1st and 3rd defendants. This court gave its decision on the appeal immediately at the conclusion of the hearing with reasons to be given in writing.

7. At the hearing of the appeal this court’s attention had not been drawn to the case of Fitzgerald v Lane [1988] 3 WLR 356. The focus of the argument had been somewhat different, and this court had been addressed on the basis that the judge had not considered blameworthiness but had only considered the question of liability. In doing so one of the cases cited was Brown and another v Thompson [1968] 2 All.ER 708. In considering that case after the hearing it became appropriate to refer to what Lord Pearce had said in The Miraflores and The Abadesa [1967] 1 AC 826 at 845G-I, because in the passage in Brown cited to this court Winn LJ had referred to that passage in Lord Pearce’s speech as being “worthy of close study by all practitioners concerned in matters of this kind”.

8. It was at that stage that concern arose that if the blameworthiness of the plaintiff should have been judged as against the blameworthiness of the defendants individually, the level of contributory negligence found against the plaintiff was possibly too high. It thus became a matter of concern to this court that the plaintiff might have been accorded a measure of disservice by the case having been argued on the basis that it had been. It was in those circumstances that this court first considered the matter on the basis on which the judge had approached the case, namely that the culpability, or blameworthiness, of the plaintiff was very high. This court then also considered the blameworthiness of the defendants individually. Since the judge had found that the major cause of the accident was due to the failure of the plaintiff to keep a proper lookout, and this court looking at the plaintiff’s culpability concurred with that view, the finding of contributory negligence at the level of 60% was about the lowest level open. Then, having gone on to consider the matter as against the defendants individually, this court still did not consider that such level could be lowered in favour of the plaintiff.

9. Now that the case of Fitzgerald v Lane has been brought to the attention of this court it can be seen, particularly from the passage in the judgment of Lord Ackner at pages 364-8, that the approach advocated by the plaintiff on this appeal was indeed the correct approach. The plaintiff’s conduct on the one hand has to be contrasted with the totality of the tortious conduct of the defendants on the other. As far as the present case is concerned, the judge below decided the case on that basis and this court upheld the judge on that basis; the fact that this court also considered that if the blameworthiness of the plaintiff were judged against that of the defendants individually the result would be the same does not alter the situation. In so far as it is now argued that this court should not have even considered the approach as in The Miraflores and The Abadesa, the position simply is that the plaintiff could only have been better off on the basis of the application of the principles enunciated in that case than is the case on the basis of the principles in Fitzgerald v Lane, which the plaintiff has established is the correct approach.

10. In so far as Ms Lee, who appeared on behalf of the plaintiff on this application, but not on the appeal, sought to reopen the finding of the level of 60% contributory negligence, that is a matter on which this court agreed with the judge below, and it did not seem appropriate to this court to give leave to appeal on what was essentially a question of fact.

11. The remaining matter argued was under the “or otherwise” provision of section 22(1)(b). It was said that in view of the plaintiff’s serious injuries it was unfair that he should be deprived of so much of the damages to which he would otherwise be entitled. This court, of course, has considerable sympathy with any injured party but sympathy cannot determine this matter. Part of the argument advanced involved a comparison of the culpability of the individual defendants in comparison to that of the plaintiff. In this respect the argument came dangerously close to the reasoning in The Miraflores and The Abadesa, thus undermining the point that the plaintiff had successfully established that the correct approach was that in Fitzgerald v Lane.

Hon Stone J:

12. I agree.

Hon Chu J:

13. I agree.

(Anthony Rogers)
Vice-President

(William Stone)
Judge of the Court of First Instance

(Carlye Chu)
Judge of the Court of First Instance

Ms Christina Lee, instructed by Messrs Hobson & Ma, for the Plaintiff/ Applicant

Mr Samuel K Y Chan, instructed by Messrs Deacons, for the 1^st & 2^nd Defendants/1^st & 2^nd Respondents

Mr Patrick D Lim, instructed by Messrs Dibb Lupton Alsop, for the 3^rd Defendant/3^rd Respondent

Appeal by the Plaintiff to Court of Final Appeal. Appeal dismissed. Please refer to the appeal judgment of FAMV1/2006

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)

_________________________

BETWEEN

	CHAN CHEUNG	Plaintiff
	and
	LEUNG KWOK WAI	1^st Defendant
	WIDE TECH SHIPPING LIMITED	2^nd Defendant
	HONGKONG INTERNATIONAL TERMINALS LIMITED	3^rd Defendant

_________________________

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

_________________________

REASONS FOR JUDGMENT

_________________________

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 1^st defendant, having already passed through the in-gate into Terminal 6 of the Container Terminal, was informed by the staff of the 3^rd 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 1^st 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 3^rd 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 1^st defendant was further told that staff of the 3^rd 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 1^st defendant obtained was one security guard positioned at between lanes 8 and 9 in front of the 1^st defendant’s truck motioning by hand signal to oncoming traffic on the Service road to give way to the 1^st defendant’s truck;

(5) Traffic did stop on lanes 6, 7 and 8 after which the 1^st defendant did begin his U-turn manoeuvre intending to traverse all the lanes in order to re-enter from Gate 1;

(6) When the 1^st 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 1^st defendant’s truck;

(7) The 1^st 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 1^st defendant assumed that the plaintiff will stop to give way therefore the 1^st defendant continued to cross lane 5 at the same speed of about 10 k.p.h.;

(8) At no time did the 1^st defendant sound his horn nor did the 1^st 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 1^st defendant’s truck;

(10) Moreover, the plaintiff did not see the 1^st 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 1^st defendant’s truck on its offside as the 1^st defendant’s truck was crossing lane 5;

(13) After the collision the plaintiff did say to the 1^st 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 1^st 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.

(Anthony Rogers)
Vice-President

(Doreen Le Pichon)
Justice of Appeal

(William Stone)
Judge of the Court of First Instance

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

CHAN CHEUNG v. LEUNG KWOK WAI AND OTHERS

Related cases with same parties

Files (2)

“	Findings of Fact

	63.	I therefore make the following findings of fact from the evidence adduced :

		(1)	The 1^st defendant, having already passed through the in-gate into Terminal 6 of the Container Terminal, was informed by the staff of the 3^rd 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 1^st 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 3^rd 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 1^st defendant was further told that staff of the 3^rd 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 1^st defendant obtained was one security guard positioned at between lanes 8 and 9 in front of the 1^st defendant’s truck motioning by hand signal to oncoming traffic on the Service road to give way to the 1^st defendant’s truck;

		(5)	Traffic did stop on lanes 6, 7 and 8 after which the 1^st defendant did begin his U-turn manoeuvre intending to traverse all the lanes in order to re-enter from Gate 1;

		(6)	When the 1^st 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 1^st defendant’s truck;

		(7)	The 1^st 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 1^st defendant assumed that the plaintiff will stop to give way therefore the 1^st defendant continued to cross lane 5 at the same speed of about 10 k.p.h.;

		(8)	At no time did the 1^st defendant sound his horn nor did the 1^st 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 1^st defendant’s truck;

		(10)	Moreover, the plaintiff did not see the 1^st 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 1^st defendant’s truck on its offside as the 1^st defendant’s truck was crossing lane 5;

		(13)	After the collision the plaintiff did say to the 1^st 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.”

“	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 1^st 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%.”

“	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.”