Tam Chiu-kang v. Eddie Tsui and Another

DCCJ005804/1975

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CIVIL JURISDICTION

ACTION NO. 5804 OF 1975

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Coram: Judge Jones, D.J. in Court.

Date of Judgment: 10 October 1975

Mr. Pokorny (DLA) for Plaintiff.

Mr. Lee (Philip K. H. Wong & Co.) for 1st Defendant.

Mr. Jenkins of (Guneton & Chow) for 2nd Defendant & 3rd Party.

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JUDGMENT

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1. This is an action for damages for personal injuries and loss suffered by the plaintiff in a road traffic accident that occurred on the 22nd November, 1971.

2. On that date at about 6.25 p.m. the plaintiff was crossing King's Road near Tong Chong Street from north to south by an uncontrolled studded crossing when he was knocked down by a motor car driven by the second defendant and owned by the first defendant. It is alleged that the second defendant was driving the car in the capacity of servant or agent for the first defendant.

3. In the event that the first defendant is held to be liable in damages to the plaintiff the first defendant claims to be idemnified in third party proceedings instituted against the second defendant.

4. I will first deal with the facts of the accident and the allegations of negligence. The plaintiff gave evidence that in company with a friend Mr. Leung Kan Yeung he had reached the pedestrian refuge by the tram platform shown on the agreed plan where he paused, looked in both directions saw no traffic coming and then proceeded at a quicker pace to cross the second section of King's Road. He said that Mr. Leung proceeded slightly ahead of him on his right hand side. Having walked about four paces the plaintiff was hit by something which he said he did not see. The plaintiff became unconscious and was taken to the Tang Shiu Kin hospital.

5. Prior to the accident the plaintiff said that the street lights were not lit and he neither heard the sound of a horn nor the screeching of tyres.

6. Mr. Leung corroborated the evidence of the plaintiff, but said he heard the sound of braking which I find resulted in the thirty foot brake mark that is indicated on the plan. He did not see the accident as it happened behind him. The plan was signed by the second defendant at 9.40 p.m. on the date of the accident and states that it was made and the measurements taken in his presence and were agreed to be correct.

7. The second defendant said that at the time of the accident he was driving in an easterly direction in the outer lane next to the tram line. As he approached the tram platform he manouvred the car to its offside into the near side tram track upon which trams travel in the same direction. He said that he moved into this position because of traffic congestion and because he wished later to make a right turn. As he came towards the studded crossing at a speed which he estimated to be 25 - 28 m.p.h. he saw four or five persons waiting by the safety island. When he was fifteen to sixteen feet from the crossing he saw the plaintiff step out walking in front of his friend to whom he claims he was talking. I do not accept the second defendant's evidence that the plaintiff was talking. The second defendant immediately applied his brakes, engaged a lower gear and swerved. However, his evidence conflicted with that which he made in his statement to the police on the evening of the accident. In that statement he said that the pedestrians were standing on the studded crossing in front of the platform and that he had driven two feet onto the crossing when the two persons walked out. His explanation for the discrepancy that he was nervous when he made the statement to the police was not convincing.

8. In cross-examination the second defendant did not agree that all the measurements on the plan were correct and disputed the positions of the thirty foot brake mark and of the car after the accident.

9. The memory of the second defendant is much more likely to be accurate soon after the accident than it would be nearly four years after the event. In these circumstances I reject the second defendant's evidence in so far as it differs from the statement that he made to the police and with regard to the agreed plan. I accept the positions and markings on the plan to be correct.

10. Upon the evidence that I have heard I am satisfied that the plaintiff and Mr. Leung were standing in front of the studded crossing and not on the safety island. Further I am satisfied that the plaintiff looked in both directions before he continued to cross the road. I accept that when the plaintiff started to cross he would not have seen the approach of the car for at that time the second defendant had not moved from the outer lane onto the tram track. When he did so at a speed of 25 - 28 m.p.h. the second defendant would have been upon the plaintiff in a matter of three to four seconds giving him no chance to take evasive action. The distance that the second defendant would have travelled when he came onto the tram track and into the view of the crossing would be a matter of approximately ninety feet. Although the second defendant was perfectly entitled to drive onto the tram track nevertheless to do so at a speed of 25 - 28 m.p.h. was in the circumstances given a very hazardous thing to do. Particular care must be exercised for pedestrians in the region of a studded crossing where it is obvious that they are likely to cross the road. The second defendant's excessive speed and his failure to keep a proper look out were the cause of the accident with the result that I find his driving to have been negligent.

11. I find no degree of contributory negligence on the part of the plaintiff.

12. The next matter that I have to determine is whether the first defendant is vicariously liable for the second defendant's negligence. Rambarran v. Gurrucharran (1) which was cited by Mr. Pokorny decided that although ownership of a motor vehicle which at the time of an accident is being driven by another person for his own purposes and without the owner's knowledge is prima facie evidence that the driver was the agent or servant of the owner and that therefore the owner is liable for the driver's negligence, that inference may be displaced by evidence that the driver had the general permission of the owner to use the vehicle for his own purposes.

13. The first defendant entered into a hire purchase agreement to purchase the car on the 7th September, 1971 with the Chartered Finance (Hong Kong) Limited. He paid a deposit towards the hire purchase price and agreed to pay the balance by eighteen monthly instalments. On the 18th November, 1971 he entered into an agreement with the second defendant whereby the second defendant purported to purchase the car. The second defendant paid the sum of $2,300 to the first defendant and agreed to pay the remaining sixteen hire purchase instalments of $249 then outstanding under the hire purchase agreement. The agreement also stipulated that the ownership of the car would vest in the second defendant after all the instalments had been paid. From the date of the agreement the second defendant was to be liable for all traffic regulations in respect of the vehicle. The agreement was signed by both parties the first defendant being described as the original car owner and the second defendant as the new car owner.

14. It is not in dispute that the hire purchase company did not give their consent to the first defendant to sell or part with possession of the vehicle as required by Clause 3(c) of the hire purchase agreement. Accordingly at the date of the accident it is clear that the ownership of the vehicle was vested in the hire purchase company whilst the first defendant remained liable for his obligations as the hirer. In fact Mr. Lee for the first defendant concedes that his client was the registered owner of the car when the accident occurred. Whether the second defendant was driving the car as servant or agent of the first defendant is a question of fact. There is no doubt that the second defendant was not the servant of the first defendant so that the onus is upon the plaintiff to prove agency. The law was expressed by du Parcq L.J. in Hewitt v. Bonvin (2):-

15. It has been submitted by Mr. Pokorny for the plaintiff that when the purported sale of the car took place the second defendant became the agent of the first defendant as it was implied that by so doing he was to look after the car for the first defendant which included the right to drive the car. He argued that this would be the position until all the payments due under the hire purchase agreement had been made at which time the second defendant would become the owner. The second defendant was therefore responsible on the first defendant's behalf to perform all the terms and conditions under the agreement. However, although he remained the registered owner the first defendant had in effect by this agreement with the second defendant divested himself completely of possession of the vehicle. He retained no authority or control over the second defendant as to how the car was to be used. If there had been no hire purchase agreement in existence the transaction would have been a valid sale and purchase of the vehicle. The only interest that the first defendant retained was the fulfilment by the second defendant of the terms and conditions in the hire purchase agreement particularly those concerning payment. I accept that the second defendant had the first defendant's express or implied authority to drive the car. However permission by itself is not sufficient to create vicarious liability for negligence.

16. In Morgans v. Launchbury (3) Lord Cross of Chelsea said:-

Later in considering the argument of 'interest and concern' Lord Cross said:-

Upon the facts in the instant case the first defendant was unaware that the second defendant was driving the car at the time of the accident and it is abundantly clear that it was neither ...(illegible) driven for his purposes nor on his behalf. The first defendant ...(illegible) no interest in the purpose for which the second defendant was driving the car at the date of the accident.

17. In the circumstances I find that the second defendant at the time of the accident was not driving the car as the ...(illegible) or agent of the first defendant. Accordingly the plaintiff's claims against the first defendant must be dismissed.

18. I will now deal with the quantum of damages. The special damages were agreed at the sum of $165. The medical evidence which was agreed reveals that the plaintiff who is now aged 47 suffered a fracture of the radius over the right wrist and a fracture of the lateral condyle of the right tibia which extended into the knee joint. The plaintiff was in hospital from the date of the accident until his discharge on the 21st December, 1971. He returned to work in his job as a carpenter with the Hong Kong Government on the 1st March, 1972. There is no claim for loss of earnings and the plaintiff's future earning capacity has not been affected. During the period that he was in hospital the plaintiff's right arm and right leg were in a plaster cast for three weeks. After his discharge he used two crutches for one month and he received physiotherapy treatment three times a week for five weeks.

19. In his report of the 12th October, 1973 Dr. Wedderburn said that the plaintiff had some limitation of movement of the right wrist and had some arthritis in the wrist joint. Dr. Wedderburn assessed the plaintiff's percentage disability to be not more than 2%.

20. The plaintiff said that after he returned to work he had some difficulty at first in his work due to pain in his right leg and right hand. At the present time he complains of pain in these parts of the body when there is a change of weather.

21. Undoubtedly the plaintiff underwent considerable pain and suffering whilst he was in hospital and for some time afterwards. Apart from intermittent pain during a change of weather the plaintiff appears to have made a good recovery from the effects of the accident. Taking all these factors into consideration I assess general damages for pain and suffering at $8,000. To this sum will be added the agreed special damages of $165 making a total award of $8,165. There will be judgment for this amount against the second defendant with interest upon the general damages at 8% from the date of service of the writ which was the 30th May, 1974. If I had come to the conclusion that the first defendant was vicariously liable for the negligence of the second defendant I would have held that he was entitled to an indemnity in the third party proceedings for all damages and costs awarded against him.

22. There will be an order for the second defendant to pay the plaintiff's costs to be taxed on the upper scale. No order as to costs between the parties in the third party proceedings.

Representation:

Mr. Polkorny (DLA) for Plaintiff.

Mr. Lee (Philip K. H. Wong & Co.) for 1st Defendant.

Mr. Jenkins of (Guneton & Chow) for 2nd Defendant & 3rd Pacty.

(1) 1970 1 All E.R. 749

(2) 1940 1 K.B. at P. 194 and 195

(3) 1972 2 All E.R. at P. 616 and 617