Ng Chun Pui and Others v. Lee Chuen Tat and Another

CACV000064/1987

BETWEEN

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Coram: Hon. Cons, V.-P., Kempster & Clough, JJ.A.

Date of hearing: 22 and 23 September 1987

Date of delivery of judgment: 23 September 1987

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JUDGMENT

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Cons, V-P. delivered the judgment of the Court:

1. On a wet Sunday afternoon in February some 5 years ago, a party of children were returning from a day out in Lok Ma Chau. The coach in which they were being carried was travelling along the Castle Peak Road, after passing through Yuen Long, when suddenly it veered across the central reservation to collide with a public light bus travelling on the far lane of the opposing carriageway. One passenger in the bus was killed and the driver and three other passengers were injured.

2. In due course an action for damages and other relief was brought by or on behalf of those injured and by the administrator of the estate of the deceased. The Defendants were the driver of the coach and the owner of the coach who employed him. The hearing came on before Nazareth J. on the 27th April this year when he was asked to deal solely with the question of liability.

3. Counsel for the Plaintiff at the hearing adduced no evidence other than documents submitted by way of hearsay, the most important being the sketch drawn after the accident and the motor vehicle report, the latter showing that prior to the accident the coach was in roadworthy condition. Counsel relied instead upon the circumstances of the accident themselves to establish negligence, that is res ipsa loquitur.

4. Defence counsel called the driver and a social worker who had been sitting in the front seat of the coach. Their evidence, which was accepted by the judge, was that the coach was travelling at about 40 m.p.h. along a straight stretch of road, in the outer lane of the two lane carriageway, when the coach was suddenly overtaken on the nearside by a blue car which cut in front of the coach from the inner lane. The reaction of the driver - he described it as "a matter of reflex action" - was to break and steer a little to the right, but on the wet road the coach skidded and careered into the other carriageway.

5. The judge found for the Plaintiffs. He was not satisfied that the Defendants had "by affirmative proof discharged the burden that shifted to them" by reason of the doctrine of res ipsa loquitur. He observed in the course of his judgment that it -

He put the Defendants' position a little differently a few lines further -

6. We have heard argument and we nave been referred to many interesting authorities with regard to the precise nature of the burden cast upon a defendant when the suggestion of res ipsa loquitur is made good. We do not intend to go into them now. In our view this case no longer turns upon that suggestion. It ceased to do so once the judge accepted the evidence of the 1st Defendant and his witness. The position became then identical with that found by Lord Porter in Bolton v. Stone ^(l) when he said -

In Barkway v. South Wales Transport Co. Ltd ⁽²⁾ he spoke in similar vein but required only that the facts be "sufficiently known". It is suggested for the Plaintiff that in this instance the facts are not sufficiently known. Counsel instanced as an ekample the state of the traffic, in particular the relationship between the blue car and the vehicle to its front. The judge referred to that aspect in these words -

7. The angle of approach, if we may so term it, was not canvassed in the evidence other than by the manual demonstration of the lst defendant. However both he and his passenger described the cutting in front as being "sudden", which gives some idea of how that took place. We are not persuaded that there is any material omission in this respect. None other has been suggested and we are satisfied that the facts were sufficiently known below and that the judge was wrong to found his conclusion upon the principle of res ipsa loquitur.

8. The only question then is "do the facts and admissions which are known and which led up to the injury amount to negligence?" In coming to our decision we must not lose sight of the fact that at the time the Defendant was put in a difficult position by what the judge described as a "very dangerous manoeuyre". In Tocci v. Hankard ⁽³⁾ Lord Denning is reported to have remarked that -

Nevertheless that will not necessarily absolve the defendant from all liability. In Parkinson v. Liverpool Corporation⁽⁴⁾ the English Court of Appeal approved as a proper approach -

Again, in Parnell v. Metropolitan Police District Receiver (5), the court quoted with approval from a Scottish judgment which included these words -

9. As the papers in this appeal originally stood the question would not have been open to us, albeit We heard argument thereon for the whole of yesterday afternoon. However this morning we have given leave for the Plaintiffs to file a Respondent's Notice out of time.. That sets out many particulars by which negligence is alleged, most of them taken from the original Statement of Claim. We think the more important may be fairly summarised as allegations that the driver failed to keep a proper lookout vis-a-vis the blue car, as a result of which he over reacted to the situation when it did occur.

10. In the end we have come to the conclusion that none of the allegations are made out. We have been taken by counsel with care through the evidence. We find nothing to support the suggestion that the driver failed to keep a proper lookout in the circumstances. At first glance it may be thought that the second allegation is made good by the Defendant's answer under cross-examination when he said -

11. On reflection however we are inclined to think that his answer may equally, or even more properly, be interpreted as an example of wisdom with the benefit of five years hindsight. At the time he was attempting to extricate himself, his coach and his passengers from a situation which appeared to him - and we would interpose that the judge obviously accepted him as a truthful man - as a situation of extreme danger. The consequences of his action were in fact unfortunate, but that should not be laid at his door. He did what any careful driver would instinctively have done in the circumstances, and we are satisfied that he acted with the alertness, skill and judgment which could reasonably have been expected. Even if he did react slightly more than he should have done, slightly more than was strictly necessary, we are not satisfied that a lesser reaction would not have produced much the same result.

12. For these reasons we would allow the appeal and set aside the order made below.

(1)    [1951] A.C. 850 at 859

(2)    [1950] 1 All E.R. 392

(3)    (1966) 110 Sol. J.O. 835

(4)    [1950] 1 All E.R. 367 at 368E

(5)    (1976) R.T.R. 201 at 204

Representation:

Richard Mills-Owens, Q.C. & M. Bharweney (M/s Deacons) for Defendants/Appellants

Rodney Pritchard & Miss Susan Kwan (D.L.A.) assigned for Plaintiffs/Respondents