Cheng Kin Ping and Another v. Woo Cho Wing John

FACV000005/2000

FACV No. 5 of 2000

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 5 OF 2000 (CIVIL)

(ON APPEAL FROM CACV No. 252 OF 1999)

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Date of Hearing: 3 November 2000

Date of Judgment: 10 November 2000

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J U D G M E N T

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Chief Justice Li:

1. I agree with the judgment of Sir Denys Roberts NPJ.

Mr Justice Bokhary PJ:

2. I agree with the judgment of Sir Denys Roberts NPJ.

Mr Justice Chan PJ:

3. I agree with the judgment of Sir Denys Roberts NPJ.

Mr Justice Ribeiro PJ:

4. I agree with the judgment of Sir Denys Roberts NPJ.

Sir Denys Roberts NPJ:

5. This is an appeal by leave, given by the Court of Appeal on 6th March, 2000, from a judgment of the Court of Appeal in CACV No. 252 of 1999, delivered on 26th January, 2000.

6. The Court of Appeal allowed an appeal by Cheung Ming Wo ("the respondent" or "the third party") against an order made by the trial judge on 15th July, 1999.

7. The action between the plaintiffs and the defendant, Woo Cho Wing John ("the appellant" or "the defendant"), having been settled, the trial judge was concerned only with the proceedings between the defendant and the third party. He apportioned liability as between them at 80% for the defendant, and 20% for the third party.

8. The Court of Appeal, in allowing the appeal of the third party, and dismissing the cross appeal of the defendant decided, by a majority, that the defendant was 100% to blame for the accident.

Background

9. At about 1 a.m. on 21st August, 1987, the 1st plaintiff drove his car (DE8499) onto the flyover leading from Gloucester Road to the Cross Harbour Tunnel.

10. There was drizzling rain and a wet road. There was a speed limit of 50 kmph on this flyover.

11. As the 1st plaintiff drove past the right hand bend of the flyover and had started to descend, the traffic ahead of his car became stationary. As he slowed down, DS5409, driven by the third party, struck the rear of DE8499, causing minor damage to DE8499, but no injury to its passengers. This is best described as the first collision.

12. Shortly after the first collision, both cars involved in it were driven a short distance to the extreme left side of the flyover.

13. The driver and passengers of both cars stood close to the offside door of the 1st plaintiff's car (DE8499) to inspect the damage and discuss compensation.

14. Several vehicles, estimated as up to ten, passed the two parked vehicles, when the traffic ahead of DE8499 had cleared.

15. Meanwhile, the third party had switched on the hazard lights and headlights on DS5409.

16. The defendant drove his car (DP1632) round the right hand bend of the flyover, onto the downward slope, applied his brakes, skidded, lost control of his car, which veered to the left, missed the third party's car but struck the 1st plaintiff's car (DE8499) and injured the group of people, including the 1st and 2nd plaintiffs, as they were standing beside DE8499. This can be called the second collision.

Trial Judge

17. The main issue at trial was whether or not the act of the third party in leaving his car on the flyover was a contributory cause of the second collision.

18. It is clear, from the facts found by the trial judge, that the predominant cause of the second collision was, in his opinion, the negligence of the defendant. Thus, he found that :-

(a) the defendant was driving too fast in the circumstances;

(b) the defendant failed to keep a proper lookout; and,

(c) the impaired braking efficiency of the defendant's car (DP1632) reduced his ability to stop and caused his car to veer to the left and hit the 1st plaintiff's car DE8499 and the plaintiffs standing nearby (the second collision).

As to the third party's liability, the trial judge found that (i) since the vehicles of the 1st plaintiff and the third party had been moved, the first collision was not an effective cause of the second collision; and (ii) that the third party had moved his vehicle an insufficient distance from the exit to the bend on the flyover, having regard to the conditions at the scene, so that his positioning of the vehicle in that location was an effective cause of the second collision.

19. In particular, he found that the accident occurred as a result of the following chain of events, namely:-

"I am satisfied that his (the third party's) vehicle was parked too close to the exit of the flyover bend even given that its lights were on and that this caused the defendant to brake suddenly and, in the conditions, his car to slide into the plaintiffs."

20. The only basis relied on to fix liability on the third party was therefore the parking of his car where it was. The first collision was not pleaded as an effective cause and its causal influence was not canvassed at the trial. Nor was it a point raised in the Court of Appeal. For these reasons, we were not prepared to entertain an argument based on the contention that the first collision was an effective cause which the appellant sought to raise in this Court.

Court of Appeal

21. The majority of the Court of Appeal reversed the trial judge. Rogers JA, supported by Godfrey JA, held that the third party did not contribute to the second collision. At the outset of his judgment Rogers JA commented -

"I have come to the conclusion that this appeal should be allowed. The defendant was driving an eight-year-old vehicle, the condition of which was clearly far from satisfactory. It had virtually no handbrake power at all but, importantly, as regards this case, it had a defective offside rear brake. The defendant drove this vehicle round a sharp right-angle bend leading to a downward slope at a speed which the judge held was too fast for the circumstances. In my view, the speed, 50 kmph, which is the maximum speed on ordinary roads in urban areas, was too fast for this stretch of road in any weather or lighting conditions. What is worse is that not only was this at night but the road was wet. As the judge held, the defendant clearly added to all this by not keeping a proper lookout. The defendant is fortunate that the judge did not find him reckless."

Later in his judgment, Rogers JA says -

"I cannot see on the facts found by the judge or from the defendant's evidence that it was the presence of the third party's vehicle that was a cause of the accident."

He adds later -

"In my view, the evidence does not lead to the conclusion that the presence of the third party's vehicle, with its flashing hazard lights, was a cause of the accident."

Godfrey JA expressed himself as -

"satisfied that there was simply no evidence here to justify the conclusion that the third party's negligence was an effective cause of the accident."

Conclusion

22. I agree with the conclusion of the majority. The third party certainly owed a duty of care to the plaintiffs as users of the road and clearly should not have parked his car where it was. This was accepted by the trial judge and the Court of Appeal. The fact that he had been negligent in parking his car where it was does not mean that he must be held liable for the second collision (together with the defendant). The question is whether the presence of his car, in the place where it was, was also an effective causation of what happened to the plaintiffs, i.e. that but for the presence of the third party's car at the place where it was, the defendant would not have hit the plaintiffs. It was for the defendant to prove on the balance of probabilities that this was the case.

23. The effect of the defendant's evidence (from his statement to the police, his evidence before the magistrate, his witness statement and his evidence at the trial) was that as soon as he went round the bend, he saw the third party's car and the plaintiffs. He braked sharply and tried to avoid "them"; his car skidded; and he hit the plaintiffs.

24. In view of the trial judge's above finding, two questions arise.

(1) Putting aside the sharp braking and the skidding for the time being, had the defendant proved, on the balance of probabilities based on the evidence before the court, that but for the presence of the third party's car, he would not have braked?

25. The answer must be in the negative. The defendant saw the third party's car and the plaintiffs almost at the same time. He braked and tried to avoid them but failed. On the evidence, it could not be said that the presence of the third party's car would have made any difference. With or without the third party's car, he would have braked in any event. The plaintiffs chose to stand at the place where they were having previously chosen to park their own car at that location. This was not dictated by the third party or by the location of his car. So on the evidence, the defendant failed to established that, if the third party's car had not been where it was, he would not have braked.

(2) Had the defendant proved on the evidence, that if the third party's car had not been there, he would not have braked so sharply and that in consequence his car would not have skidded so that he would have avoided injuring the plaintiffs?

26. The answer must again be in the negative. There was no evidence that if the third party's car were not at the place where it was, the defendant would not have braked as sharply as he did. There was equally no evidence that, if the defendant had not braked so sharply, he would not have skidded. There was simply no evidence linking the degree of braking to the skidding and the injury to the plaintiffs.

27. I would therefore dismiss the appeal and order that costs should be paid by the appellant, such costs to be taxed if not agreed.

Chief Justice Li:

28. The Court unanimously dismisses the appeal with costs.

Representation:

Mr Neville Sarony SC and Mr Y L Cheung (instructed by Messrs Gallant Y T Ho & Co) for the Appellant

Mr Denis Chang SC and Mr Kumar Ramanathan (instructed by Messrs Hoosenally & Neo) for the Respondent