Wong Tai and Another v. Tang Wing Keung

DCCJ004068/2002

DCCJ 4068/2002

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 4068 OF 2002

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Coram: H.H. Judge Muttrie in Chambers

Date of Hearing: 3 April 2003

Date of Judgment: 25 April 2003

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Judgment

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The plaintiff applies for summary judgment under Order 14 of the Rules of the District Court.

2.This case arises out of a road traffic accident which happened on 10 July 1998 at the junction of Tsun Wen Road and Tsing Chung Koon Road, Tuen Mun. The 2nd plaintiff was driving a goods vehicle, registered number GJ 1306, owned by his wife the 1st plaintiff and used by him for his seafood business. He was taking their daughters, who felt ill, to the Tsuen Mun Hospital. At the junction, as the 2nd plaintiff's vehicle was turning right from the northbound carriageway of Tsun Wen Road into Tsing Chung Koon Road, a private car, registered number GS 7741, which was travelling in the southbound carriageway of Tsun Wen Road, collided with it, with disastrous results. A passenger in the plaintiff's car was injured and later died. The goods vehicle was tipped over on to its right side and a load of fish and prawns, which had been left aboard since the previous day for early morning delivery, was thrown out and ruined. The 1st plaintiff now claims towing and repair charges for the vehicle. The 2nd plaintiff claims the cost of the ruined goods. The plaintiffs' total claim amounts to $110,183.00.

3.Following on the accident the defendant was charged with causing death by reckless driving and with a drink-driving offence. He was acquitted of the charges but convicted on his own plea of careless driving.

4.The plaintiffs plead that the defendant was negligent in that he drove through a red traffic light at excessive speed. They rely on the conviction.

5.Originally the defendant filed a defence dated 9 August 2002 in which he admitted that the accident happened but otherwise put the plaintiffs to strict proof and denied negligence. He denied the relevancy of his conviction. He put the plaintiffs to strict proof of their losses.

6.The plaintiffs took out the summons under Order 14 on 8 October 2002. Then on 18 December 2002 the defendant amended his defence. He now specifically denies the allegation of excessive speed and denies having disobeyed a red light signal. He also avers contributory negligence on the part of the 2nd plaintiff in that he failed to heed the presence of the defendant's vehicle and failed to stop, slow down, etc. so as to avoid the accident or diminish the impact. It is also averred that he was in a hurry to get his children to the hospital, and so drove negligently and at excessive speed, and further the goods vehicle was overloaded.

7.The 2nd plaintiff's evidence is that he stopped at the red traffic light on the northbound carriageway, and then, when the light changed to green in his favour, slowly moved the vehicle towards Tsing Chung Koon Road. However the defendant drove his car at excessive speed through the traffic light which showed red in his direction, and so caused the collision. The 2nd plaintiff says that the traffic lights were set to operate so that when the light controlling northbound vehicles is green, that controlling southbound vehicles must be red. The lights were checked by an officer of the Electrical and Mechanical Services Department who confirmed that there was no report of traffic signal failure.

8.The defendant's evidence is that he was driving his passenger home to Tai Hing Estate. He did not know the way there. The passenger was asleep so the defendant looked at him and pushed him with his left hand to wake him up and ask the way. The vehicle was travelling at about 40 km/h. When the car had passed the stop line by about 3-4 metres, he looked ahead and saw the goods vehicle turning right, very fast. He swerved right but failed to avoid the goods vehicle, and before he had time to apply the footbrake, his vehicle collided with it. The last time he had looked at the lights for his direction, they were green. As to the conviction he says he pleaded guilty to careless driving on legal advice and on facts which differed from those averred by the plaintiffs.

9.On any sensible estimate of the defendant's chances, as the evidence stands it seems unlikely that he will be able to escape full liability if this matter goes to trial. I respectfully endorse the view expressed obiter by Cheung J (as he then was) in Lau Ka Po v Man Cheuk Ming & Anor., HCPI 584 of 1996:

The effect of a conviction of careless driving shifts the burden of proof to the 1st Defendant to show that he was not negligent. It appears that this point has been ignored in many of the road traffic cases where despite the criminal conviction of the driver, the issue of liability was contested right up to the moment of trial. Much time and legal costs could be saved if the handling lawyers could face the reasl issue, agree on liability at the early stage of the proceedings and concentrate their efforts on quantum.

10.In this case the quantum is low. Given the relatively small sum claimed, one would think that the defendant's most sensible and cheapest option is early settlement. However, that is not the point for Order 14 proceedings.

11.Order 14 places the threshold onus on the defendant to show that there is a triable issue. The Court will test the credibility of an affidavit asserting a triable issue against the conduct of the defendant and contemporary documents. See Murjani v. Bank of India [1990] 1 HKLR 586. It is not appropriate where there is a real dispute of fact or the factual matrix is unclear; per Litton JA in Sin Hua Bank Ltd. v Sung Foon Kee Ltd. [1993] 1 HKC 65. In deciding whether the defendant has shown a triable issue, the question is not whether the defendant's assertions are to be believed, it is whether those assertions are believable; see Ng Shou Chun v Hung Chun San [1994] 1 HKC 155. Per Bokhary JA in Re Safe Rich Industries Limited, Civil Appeal No.81 of 1994, unreported, 3rd November 1994 :-

"The test at the summary stage is indeed as simple as whether the defendant's assertions are believable. But it must be recognised - because failure to recognise it would create a debt-dodgers' charter - that whether the defendant's assertions are believable is a question to be answered not by taking those assertions in isolation but rather by taking them in the context of so much of the background as either undisputed or beyond reasonable dispute."

12.When an application under Order 14 is made in a road traffic negligence cases, alarm bells ring because in such cases there is usually some factual issue which has to be tried on the evidence. Actions for damages for negligence are suitable for that procedure only if it is clearly established that there is no defence as to liability. See the Hong Kong Civil Procedure 2002, paragraph 14/1/1 and Dummer v Brown & Anor., [1953] 1 QB 710. That case arose from a fatal road traffic accident in which a coach passenger was killed when the coach hit a telegraph pole at the side of the road, but the decision applies equally to all road traffic negligence cases. Both Jenkins LJ and Morris LJ, while finding that procedure under O.14 was applicable said that the cases in which it would be applicable were "exceptional". Singleton LJ said:

"I would keep it" -- that is, Order 14 -- "to the most simple case, and I would not apply those provisions to a case involving any sort of complication or difficulty."

13.In brief, the argument put forward for the plaintiff is this. In the first place, the effect of a conviction for careless driving shifts the burden of proof to the defendant to show that he was not negligent. However, the defendant puts forward no evidence that he was not negligent. Indeed his own statement that he looked at, and tried to wake his sleeping passenger is itself an admission of negligence.

14.So far as contributory negligence is concerned, it argued that in a question with the 1st plaintiff, there can be no question of it. She was not there. So far as the allegations against the 2nd plaintiff are concerned, the onus is on the defendant to prove them, and they are not believable. The defendant's vehicle must have been travelling at over 40 k.p.h., or the goods vehicle would not have been caused to fall on its side by the impact. If the goods vehicle had been turning right at high speed, centrifugal force would have caused it to fall on its left side. The assertion that the 2nd plaintiff must have been driving negligently because he was in a hurry to get to the hospital is speculation. So is the allegation that the goods vehicle was overloaded.

15.So far as mitigation of loss goes, the argument is, again, that while the plaintiffs may have a duty to mitigate, the onus is on the defendant to prove that they did not; and there is no evidence to support this allegation.

16.The defendant argues that the summons should be dismissed as against the 1st plaintiff, because there is no due verification of her claim; the only affirmation comes from the 2nd plaintiff who does not purport to affirm on her behalf. I do not think there is anything in this. Documents in support of the 1st plaintiff's ownership of the vehicle, and of the cost of towing charges and repairs have been produced.

17.The defendant further says that the conviction merely shifts the onus of proof to the defendant, and this is a matter for trial. The weight of the conviction is a matter for the trial judge. In any event there are allegations of contributory negligence and these must be a matter for trial. Only if the defence is "frivolous and practically moonshine" can judgment be granted: Man Earn Limited v Wing Ting Fong [1996] 1 HKC 225.

18.Counsel for the defendant relies in particular, on the contributory negligence point, on the case of Yam Kwok Kit v Lai Sze Fai [2002] 1156 HKCU 1. In that case the Master had given judgment against the defendant in a personal injury case arising out of a road accident in similar circumstances to those in the instant case, in which the defendant had turned his vehicle to the right at a junction across the path of the who was coming the other way on a motor cycle. There were allegations of contributory negligence and in particular speeding. On appeal Suffiad J. set aside the judgment. He held that the issue of contributory negligence was a matter for trial and that the judgment wrongly deprived the defendant from having that issue determined at trial.

19.It is not the case that wherever there is an allegation of contributory negligence, there is a triable issue. As in all cases the allegation must be believable. In Bhowmick v Ward (C.A.) 1981 B No 25 (unreported) summary judgment was upheld on appeal in spite of such an allegation. That was a case of a rear-end collision. The defendant's car ran into the back of the plaintiff's and the plaintiff suffered whiplash injuries. The defendant pleaded guilty to careless driving and admitted that he had looked round at someone on the roadside. The defendant pleaded contributory negligence in that the plaintiff failed to wear a seat belt. This was apparently based on an equivocal entry in a police report form. The plaintiff deposed that he was wearing a seat belt. On appeal from the judge (who had upheld the district judge) after referring to Dummer v Brown Stephenson LJ said this:

The question, as Mr. Russell Vick concedes, is whether this case is one of that small proportion of cases. He says that it is not, and I think that his argument comes down to this, that there is one triable issue here which should be the subject of a hearing before a judge and which should not be dealt with summarily, and that is the issue of whether the plaintiff was wearing a properly adjusted seat-belt at the time when he suffered his whiplash injury through the negligence of the defendant. He would not abandon, I think, the contention that there was another issue, whether the defendant was negligent or that his negligence caused the collision.

It seems to me that there is nothing whatever in any point except the seat-belt point, and in that there is so little that I feel quite unable to say that the judge was wrong in disregarding it. It is a straw at which the defendant might clutch; he would have to prove contributory negligence by the plaintiff, and contributory negligence causing the whiplash injury. In that, he would have a task so nearly insurmountable as, in my opinion, to be one which the judge was entitled to leave out of account.

20.Here also the question must be asked, whether this is one of the rare or exceptional cases in which Order 14 is appropriate for a road traffic negligence case.

21.Is there a triable issue on the liability of the defendant? Here we have the evidence of the plaintiff that he had a green light and that this meant that the defendant had a red light. This is something to which the plaintiff could speak from his own knowledge. The defendant however says that he had a green light.

22.The plaintiff says that the lights had been inspected and were working normally; the defendant denies that they had been inspected and says that no conclusion could be drawn. Unfortunately no one has produced any inspection report, so we do not know the true position. As so often happens, it is one witness against the other, on the question of the traffic lights.

23.The defendant admits in his affirmation that he looked at and touched his passenger. This would normally be negligent in a driver approaching traffic lights. It might not be if he was approaching a green light at low speed. Given that there was an impact which knocked the goods vehicle on its right side, against its own centrifugal force, the defendant's statement that he was driving at 40 k.p.h. is most unlikely to be true. Whether or not it is true is, however, a matter for trial.

24.There is nothing in the point on mitigation of loss. The defendant has to prove failure and has produced no evidence of it.

25.Is there a triable issue on contributory negligence? Again the onus is on the defendant. The allegations of overloading and driving negligently because of a wish to get to the hospital are bare allegations, unsupported by any evidence, as well as being speculation. They are grasping at straws and are to be disregarded. However, the defendant says that the goods vehicle, when he first saw it, was travelling very fast. I do not see that this can be disregarded. It may simply be a matter of perception at the end of the day. But the only way to decide that is at trial.

26.As I have indicated, I doubt that the defendant can escape full liability. However, I do not think that this is one of those exceptional road traffic accident negligence cases where summary judgment can be given. While some of the defendant's points are clearly clutching at straws, not all of them are. The defendant will have unconditional leave to defend. Under Order 14 Rule 6 of the Rules of the District Court, directions must be given. I direct that the automatic directions in Order 23A rule 5 shall apply. Costs (nisi) in the cause.

Representation:

Mr. K. Leung instructed by M/s Francis Kong & Co. for 1st and 2nd Plaintiff.

Mr. L. Hui instructed by M/s David Y.W. Man & Co. for Defendant.