Needham Dean Norman v. Wai Hung Engineering Transportation Co. Ltd.

HCPI000395/2001

HCPI 395/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 395 OF 2001

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Coram: Deputy High Court Judge Longley in Court

Dates of Hearing: 30 July 2002

Date of Judgment: 13 August 2002

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J U D G M E N T

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1.The Plaintiff's claim is for damages for personal injuries arising out of a traffic accident which occurred at around 8.20 a.m. on 1 May 1998 on a roundabout at the site of the new Hong Kong International Airport at Chap Lap Kok when there was a collision between a 7-seater van driven by him and a 24-ton crane lorry driven by an employee of the Defendant which rented the lorry.

2.Pursuant to an order of Master Kwan of 18 December 2001 that the issues of liability and quantum be tried separately, the issue before the Court today is that of liability.

3.The nature of the Plaintiff's allegation is not immediately apparent from the Statement of Claim because of confusion over what is the "inner" and what is the "outer" lane of a roundabout. Contrary to the way it has been pleaded, I understand the inner lane of a roundabout to be the lane closest to its centre and the outer lane that farthest from the centre and I shall use that terminology in the course of my judgment.

4.The roundabout where the accident occurred was the junction of five roads. At the time of the accident, it was substantially but not totally completed. The public did not yet have access. From aerial photographs it appears doubtful whether the surface of the roundabout had yet been covered in tarmac or lane markings had been made on the road surface.

5.The case for the Plaintiff is that he was driving behind the Defendant's lorry on the same approach road to the roundabout. This approach road was or subsequently became known as Airport Road (this junction has been referred in the course of the trial as Junction 2). At the junction of this approach road with the roundabout, there was an island in the centre of the approach road. Although it was intended that traffic entering the roundabout before doing so would pass to the left of this island before entering the roundabout, traffic was unable to enter the roundabout in this way on the day in question because this lane was in the course of being coated with tarmac.

6.This necessitated traffic entering the roundabout by driving to the right of the island on what would normally have been the opposite carriageway intended for traffic leaving the roundabout.

7.The Plaintiff's allegation is that he was driving behind the Defendant's lorry which passed to the right of the island and stopped at the junction with the roundabout. He stopped behind the Defendant's vehicle. The Defendant's lorry then proceeded into the roundabout and into the inside lane nearest the centre of the island. He entered the roundabout and drove into the outside lane. As he went round the roundabout and be just before he started to come alongside, the lorry, without signaling or giving any other warning, turned the left and its front left bumper struck the right side of his van behind the position of the driver seat. The Plaintiff said the impact was strong. It caused his van to spin clockwise at least one revolution. He said that his vehicle came to rest about 25-30 feet beyond the point of impact. The lorry came to rest about 10 feet behind him.

8.The Plaintiff said although he was shaken up by the accident he went to speak to the driver of the lorry but found they were unable to communicate. A colleague, Mr Chui Yiu Ming who was in a following vehicle stopped and talked to the driver. After that the Plaintiff drove his vehicle to his office and made a report to his manager.

9.The driver of the Defendant's vehicle was Mr Chan Chi Ming. His account of the accident was quite different. His evidence was that he collected the lorry from where it had been parked at a vehicle park some distance to the east of the roundabout. He had been instructed to drive it to a site near the Regal Airport Hotel. He said that he had not entered the roundabout by way of Airport Road as the Plaintiff alleges but by the approach road immediately before and to the right of Airport Road on the roundabout (which has been referred to as "Junction 1" in the course of the trial). Having entered the roundabout, he was driving in the outside lane when he noticed the Plaintiff's van approaching the junction of Airport Road with the roundabout and, assuming that the Plaintiff would give way to his vehicle, continued to proceed in the outside lane. The Plaintiff's van had however shot out into the roundabout just before he reached the junction. He reacted by braking. He did not feel any impact with the van. The van however pulled over to one side and the driver indicated that he should stop. He had stopped his lorry at a point where it would not obstruct others and had gone to speak to the driver of the van. He agreed with the Plaintiff's evidence that they were unable to communicate. He said he had spoken to the driver of another vehicle (who must have been Mr Chui) who had said that it was just a minor matter. He denied exchanging details with the driver.

10.There are only two direct witnesses to this accident, the Plaintiff and Mr Chan. They have given conflicting versions. It is incumbent on the Plaintiff if he is to succeed in these proceedings to establish that his version is more probable.

11.After giving the matter very careful consideration, I cannot say that I find the version given by Mr Chan any less probable than that given by the Plaintiff.

12.The reason for coming to this conclusion primarily lies in the evidence of Mr Chui Yiu Ming, the colleague of the Plaintiff who arrived the scene shortly afterwards and the photographs of the Plaintiff's van after the incident.

13.There was conflict between the evidence of Mr Chui and the Plaintiff and that of Mr Chan as to whether there was a passenger in Mr Chan's lorry but there was also a conflict between Mr Chui and the Plaintiff as the age of that passenger. I do not find these conflicts assist me nor do I find the conflicting evidence as to whether Mr Chan gave his particulars to the Plaintiff and/or Mr Chui of much assistance. This was an accident which occurred over 4 years ago and these are peripheral matters upon which the parties may have different recollections.

14.I also did not derive much assistance from the aerial photographs which showed that traffic from where Mr Chan said his vehicle was originally parked could gain access to the roundabout in question via Airport Road. It was Mr Chan's evidence that he had always entered the junction when driving from the vehicle park via the previous junction (Junction 1). Mr Chui who had also parked his vehicle there agreed that that junction (Junction 1) was the nearest to the carpark.

15.What I did find significant was Mr Chui's evidence as to the position of the Plaintiff's van and the lorry at the time he arrived at the scene, namely that the van was in a position just before what has been described in the trial as Junction 3 and the lorry was beyond it somewhere by Junction 4. His recollection was that both vehicles were facing the direction they would have faced if they were proceeding around roundabout. This evidence of the relative position of the vehicles directly conflicts with the evidence of the Plaintiff and militates against the Plaintiff's case that his vehicle had been struck causing it to make at least one complete revolution, coming to rest beyond the Defendant's lorry. When cross-examined about the position of the vehicles, Mr Chui conceded that he could have erred as to the distance between the two vehicles but maintained their relative positions were correct. He also said that the reaction of the lorry driver when he had first spoken to him was to the effect that the Plaintiff had shot out in front of him and he had been unable to brake in time. This reaction is consistent with Mr Chui's version of the accident being correct.

16.A further matter that influenced me was the damage to the Plaintiff's van as revealed in the photographs and the fact that the Plaintiff was able to drive it immediately after the accident. In my view, the relatively minor damage to the Plaintiff's van bearing in mind that it had come into contact with a 24-ton lorry, including the fact that none of the window glass has been broken, is more consistent with Mr Chan's account of how the accident occurred than the Plaintiff's account of an incident which involved his vehicle having spun at least one complete revolution after the accident.

17.I find that the Plaintiff has not proved his case to the necessary standard.

18.I dismiss his claim.

19.Unless either party applies to be heard on the question of costs within 14 days, I order that the Defendant's costs be taxed and paid by the Plaintiff. The Plaintiff's own costs be taxed under the Legal Aid Regulations.

Representation:

Mr John Wright, instructed by Messrs Burke & Co. (assigned by DLA),for the Plaintiff

Mr Eric Kwok, instructed by Messrs Wong & Fok, for the Defendant