Chak Kin Sun and Another v. Lam Kwok Yuen and Another

HCA007429/1983

BETWEEN

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Coram: Hon. Clough, J.

Date: 11 November 1983

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J U D G M E N T

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1. On the 24th October 1983 I dismissed the appeal of the above-named Defendants against the decision of Master Betts made on the 23rd August 1983 dismissing the application of the Defendants under Order 13 rule 9 to set aside the interlocutory judgment obtained by the Plaintiffs against the Defendants for damages to be assessed and costs. Out of deference to the helpful and able arguments of Mr. Huggins for the Defendants and Mr. Ribeiro for the Plaintiffs I reserved the reasons for my decision and I now give them below.

2. These proceedings are the sequel to an accident which occurred on the 22nd June 1982 in Quarry Bay Street, Hong Kong when a Coca Cola lorry driven by the 1st Defendant who is the servant of the 2nd Defendant the owner of the lorry, knocked down the 1st Plaintiff who was then a minor aged 7 years and 2 months. The 1st Plaintiff sustained severe injuries.

3. As a result of the accident the 1st Defendant was charged with the offence of dangerous driving contrary to section 11(1) of the Road Traffic Ordinance (Cap. 220) and after a trial which began on the 8th January 1983 he was convicted of the lesser charge of careless driving. At the trial the 1st Defendant was represented by the solicitor who now represents him and the 2nd Defendant in these proceedings. He pleaded not guilty to the charge of dangerous driving and gave evidence in his defence after the charge had been reduced by the Magistrate to one of careless driving in respect of which he was eventually convicted.

4. By their writ issued on the 16th June 1983 the 1st Plaintiff (suing by the 2nd Plaintiff who is his father and next friend) and the 2nd Plaintiff sued the 1st and 2nd Defendants as the driver and owner respectively of the Coca Cola lorry in question respectively for substantial special damages and also for general damages arising out of the alleged negligence of the 1st Defendant in causing the accident which led to the injury of the 1st Plaintiff on the 22nd June 1982. The Particulars of Negligence set out under paragraph 2 of the Statement of Claim endorsed on the writ include the allegation that the 1st Defendant parked his lorry on the pavement in Quarry Bay Street and started it off without ensuring that it was safe to do so and collided with the 1st Plaintiff after starting off and driving further onto the pavement and away from the road without keeping any or any sufficient lookout for pedestrians who might be on the pavement and failing to heed the presence of the 1st Plaintiff on the pavement.

5. After service of the writ on the solicitors acting for both the Defendants on the 16th June 1983 the Plaintiffs obtained judgment under Order 13 against both the Defendants, as mentioned above, in default of notice of intention to defend by both the Defendants. On the 23rd August 1983 Master Betts heard and dismissed the application of the Defendants by their summons dated the 5th August 1983 to set aside the interlocutory judgment entered on the 8th July 1983. By their notice of appeal dated the 25th August 1983 the Defendants appealed against that decision of the Master and the appeal came before me on the 24th October 1983.

6. When the Defendants' summons was heard by the Master the evidence before him consisted of the affidavits of the 1st Defendant and of his solicitor, Mr. Geoffrey Miles, filed on behalf of the Defendants and the affidavit of Mr. Benny Yeung, the Plaintiffs' solicitor which had been filed on their behalf.

7. On the hearing of the appeal before me two further affidavits sworn by Mr. Miles on behalf of the Defendants were admitted in evidence without opposition from counsel for the Plaintiffs. In one of those affidavits Mr. Miles exhibited a statement made by the 1st Defendant to the Police on the 22nd June 1982 concerning the circumstances of the accident. Mr. Miles deposed in the same affidavit that the Master had reached his decision when dismissing the Plaintiffs' application on the basis that there was inconsistency between testimony of the 1st Defendant given in the Magistrate's Court on the 8th January and the 18th February 1983 on the one hand and the facts alleged in his affidavit filed on the 15th August 1983 in support of the application to set aside the interlocutory judgment on the other hand.

8. He further deposed that the Master had indicated that if the 1st Defendant had made a statement to the Police consistent with his affidavit filed on the 15th August 1983 his decision might have been different.

9. I emphasise that I of course give due deference to the exercise of his discretion by the Master in this matter. However this being an appeal under Order 58 I have to exercise the discretion of the court afresh and am in no way fettered by the previous exercise of the Master's discretion. I am entitled to exercise the discretion of the court as though the matter had come before me for the first time and I did so: see Evans v Bartlam (1937) A.C. 473 per Lord Atkin at p.478.

10. In accordance with the settled practice in relation to an application under Order 13 rule 9 where it is sought to set aside a regular default judgment the Defendants have filed evidence seeking to explain the reason why judgment was allowed to go by default in this case and also to state facts showing a defence on the merits.

11. No issue arises regarding the reasons for the default. It is clear from the evidence of Mr. Miles that there was an administrative mishap in his office which resulted in failure to give notice of intention to defend on behalf of the Defendants although the 2nd Defendant or its insurers had always intended to defend the proceedings and to raise the issue of contributory negligence on the part of the 1st Plaintiff. Indeed on the 9th May 1983 the Plaintiffs' solicitors had been informed by Mr. Miles' firm that liability would not be admitted and that his firm was instructed to accept service of the writ. Counsel for the Plaintiffs took no point regarding the adequacy of the explanation for the default and the effective issue before me on appeal concerned the merit of the defence which the Defendants sought to make if the judgment were set aside.

12. On this issue counsel for the Defendants did not contend that there was a defence to the allegation of negligence against the 1st Defendant but confined himself to the question of contributory negligence on the part of the 1st Plaintiff. If the Defendants' affidavits of merits show a triable issue on contributory negligence it is enough to justify the setting aside of the default interlocutory judgment in this case: Burns v Kondel (1971) 1 Lloyd's Rep. 554 (C.A.). If on the facts deposed to in the affidavits of merits there is a triable issue or an arguable defence the insurers of the 2nd Defendant should not be shut out from trial even if their defence is weak.

13. Mr. Miles exhibited to his affidavit filed on the 15th August 1983 a draft defence which it was proposed to file if the judgment were set aside. By paragraph 3 of the draft defence it was proposed to plead that the accident was caused wholly or in part by the negligence of the 1st Plaintiff. The Particulars of Negligence which it was proposed to plead against the 1st Plaintiff were as follows:-

"a)    running across the said lorry when it was unsafe to do so.

b)    failing to keep a proper lookout.

c)    failing to heed the loud engine noise of the said lorry which was being started.

d)    keeping too close to the said lorry.

e)    failing to take any or sufficient notice of the said lorry or similar lorries often parked on the pavement of Quarry Bay Street."

14. The material facts stated in the affidavit of the 1st Defendant filed on the 15th August 1983 to show the merits of the defence were to the effect that after having parked his lorry on the pavement and half of the carriageway of Quarry Bay Street at the time when the pavement was fully parked with other vehicles the 1st Defendant had gone inside the 2nd Defendant's premises to see if there was space inside for him to park the lorry and load soft drinks and had subsequently returned from the plant when, he deposed, the following events occurred -

"I walked passed the front of my lorry and got into the driver's seat. I started the engine. I looked to the front, the right and the left through the rear view mirror. I saw that there was no one around. Then I engaged gear and released the hand brake. The engine was rather noisy and anyone around must have heard it. I moved about 2-3 feet. I saw an object which was coming from my right which seemed to rush or flash across the front of my lorry. I heard the cry of a child coming from under the lorry. Several passers-by moved towards me and signalled me to stop. They told me there was a child under the front wheel of the lorry and that I should move the lorry slightly forward to release his leg."

15. The Defendants would also rely on the statement made by the 1st Defendant to the Police on the 22nd June 1982 in which he described the manner in which he had parked his vehicle before going into the plant as follows -

"When I reached the side of the stone house which was situated opposite to the entrance of the plant, I stopped the car. I parked the car half on the pedestrian path and half on the road."

16. In the statement he described his departure which resulted in the accident in the following terms -

"So I approached my truck and got in the driver's seat. I switched on the engine, put in the gear from nil to 2-5 gear (2-5 gear meant from the 2nd gear to the 5th gear). This was an automatic transmission car. I put down the hand brake, and moved about 2-3 feet. I saw an object, which was coming from the stone house on my right, rushed the off-side of my vehicle. At the same time, I heard a loud cry "stop". I therefore, stopped the truck instantly."

17. After dealing with events which had occurred immediately after that the 1st Defendant said as follows in his statement -

"Before I got in the car, I noticed that there was no person around. Moreover, I checked with side-mirrors and also ensured that there was no one in front before I started the car. I thought that the object that rushed towards the off-side of my vehicle was the injured. At the material time, I was alone and there was no other persons staying with me."

18. Considering the statements of fact contained in the affidavit of the 1st Defendant filed on the 15th August 1983 and in his statement to the Police made on the 22nd June 1982 on their face value and asking myself, as I was invited to do by counsel for the Plaintiffs, what clear averments of fact have been made to give rise to a triable issue of contributory negligence against the 1st Plaintiff I am constrained to conclude that I find the statements of fact made on both occasions by the 1st Defendant to be insufficient to give rise to such a triable issue in a situation where contributory negligence is sought to be alleged against a child who was at the time 7 years and 2 months old returning from school on the pavement in Quarry Bay Street.

19. It is settled law that there is no age below which a child cannot be guilty of contributory negligence. As the editor of Charlesworth on Negligence, 6th edition, states at paragraph 1211, the test of what is contributory negligence is the same in the case of a child as of an adult, modified only to the extent that the degree of care to be expected must be proportioned to the age of the child. Again as the editors of Clerk & Lindsell on Tort, 15th edition, state at paragraph 11-83, when considering whether a child has taken reasonable care for his own safety regard must be had to the age of the child, the circumstances of the case and the knowledge by the particular child of the peril to which the defendant's negligence has exposed him.

20. In the statement made by him to the Police on the 22nd June 1982 the 1st Defendant said that he stopped his vehicle when he reached the side of the stone house which was situate opposite to the entrance of the plant. He evidently then parked his vehicle on the pedestrian path and half on the road. The plan which was produced by a police officer in the proceedings before the Magistrate shows the vehicle stationary on the pavement close to the stone house. In the Magistrate's Court the evidence of PW2, Mr. Yung Yung, included testimony to the effect that when he first saw what was happening "... the little boy was being dragged along. The vehicle had not moved far. It was beside the stone house. It was moving on the pavement alongside the stone hut. I look at the sketch. It was almost touching the Stone House."

21. In his statement to the Police and in his affidavit filed on the 15th August 1983 the 1st Defendant deposed that he saw "an object" coming from his right across the front of his lorry. In the statement to the Police he described the object as "coming from the stone house on my right, rushed the off-side of my vehicle". In his affidavit he said that the object was "coming from my right which seemed to rush or flash across the front of my lorry".

22. Assuming that if the 1st Defendant were allowed to defend this action he would give similar evidence at the trial, and accepting Mr. Huggins' submission that it should then be inferred that the "object" which the 1st Defendant saw was the 1st Plaintiff, can any reasonable tribunal conclude in the circumstances of this case that a triable issue would have been raised as to the contributory negligence of the 1st Plaintiff?

23. Mr. Huggins admitted that the defence might be weak but stressed that this did not prevent the Defendants from raising a triable issue. He relied on the record of the proceedings in the Magistrate's Court as providing evidence of the knowledge of the 1st Plaintiff of the risk which he faced. The record showed that the child took this particular route on his way back from school and that he would have seen vehicles parked on the pavement regularly and starting and moving. He pointed out that the 1st Plaintiff had said in the Magistrate's Court when giving evidence that he saw the vehicle before it hit him. In such circumstances, Mr. Huggins contended the 1st Plaintiff should have been aware of the risk which he faced.

24. In my judgment the facts deposed to by the 1st Defendant and the matters referred to in the record regarding the 1st Plaintiff's knowledge are not sufficient to raise a triable issue of any degree of contributory negligence on the part of the 1st Plaintiff, whether the test adopted is one of causation or of blamworthiness. The 1st Plaintiff had every right to be where he was, on the public footway. The 1st Defendant had no right to drive a large vehicle onto the pavement and to carry out a manoeuvre on it.

25. Moreover the 1st Defendant drove his vehicle towards the stone house and both the plan produced in the Magistrate's Court and the evidence of Mr. Yung Yung showed that when the vehicle stopped it was very close to the stone house. On the Defendant's own evidence in his affidavit and statement to the Police the "object" (i.e. the 1st Plaintiff) rushed across from his right to his left across the front of the vehicle. Assuming that that evidence were accepted at the trial it means that the boy ran from the vicinity of the stone hut towards the road. If the 1st Plaintiff had previously seen the vehicle, as he asserted in evidence before the Magistrate, I can see no degree of contributory negligence on the part of a seven year old child, placed in the dilemma of seeing a heavy vehicle bearing down upon him on the pavement when he must have been in the vicinity of the stone house, running for his life away from the stone house.

26. If, on the other hand, the 1st Plaintiff did not see the 1st Defendant's vehicle and rushed across the pedestrian pavement from the direction of the stone house towards the road I am quite unable to conclude that such conduct on a public footway upon which there should be no vehicle manoeuvring amounted to a failure to take reasonable care of himself in the case of a seven year old boy. There being no evidence whatsoever from any other source before me of any other fact relied upon by the 1st Defendant to show contributory negligence on the part of the 1st Plaintiff I conclude that, as Mr. Ribeiro for the Plaintiffs contended, the facts relied upon by both Defendants to raise a triable issue on the contributory negligence of the 1st Plaintiff are wholly inadequate. To arrive at any other conclusion would, in my judgment, be to place an unrealistic duty of care upon a seven year old boy lawfully upon the pavement in an urban area where vehicles are not permitted to park or drive, let alone take up most of the pavement.

27. Having concluded that the affidavits of merit did not disclose a triable issue in this case I dismissed the appeal on that ground. I was fortified in arriving at my decision by the second distinct argument advanced by Mr. Ribeiro on behalf of the Plaintiffs in opposing the appeal.

28. He contended that there were glaring inconsistencies in the evidence of the 1st Defendant which were unexplained. He took me through the record of the proceedings before the Magistrate from which it appeared that when the 1st Defendant gave evidence in his own defence he said in chief that he had not seen the 1st Plaintiff at any stage. Under cross-examination he said that he could not say how the 1st Plaintiff was actually run over. He was asked if he had seen anyone approached from the right and his answer was as follows:-

"A. I checked no one coming.

I was off to plant - I had to do a left hand turn. Would have been a sharp one."

29. Mr. Miles who appeared for the 1st Defendant at his trial submitted after the evidence for the prosecution was closed inter alia that "No one saw what happened". Furthermore, the 1st Plaintiff was permitted by the Magistrate to give evidence and when Mr. Miles cross-examined him he asked him if he collected metal caps after reference to Coca Cola bottles and put it to him that there were lots of little caps on the pavement. It was at no time put to the 1st Plaintiff that he had rushed across the pavement. Whatever the reason for that line of cross-examination might have been it is clear from the record of the proceedings in the Magistrate's Court that at no time did the 1st Defendant say in evidence or instruct his solicitor to put it to the 1st Plaintiff that the 1st Plaintiff had rushed across the front of the 1st Defendant's vehicle immediately before the accident.

30. I bear in mind that contributory negligence was in no way in issue in the trial before the Magistrate but I accept the contention of Mr. Ribeiro that the facts deposed to by the 1st Defendant and the whole conduct of his defence before the Magistrate was inconsistent with the evidence which he now seeks to rely upon in his affidavit filed on the 15th August 1983 and his statement made on the 22nd June 1983. In the latter evidence he contends that the 1st Plaintiff ran across the front of his vehicle. There is a manifest inconsistency here and I reject Mr. Huggins' submission that the inconsistency is more apparent than real.

31. I also accept Mr. Ribeiro's submission that this being a situation in which the Defendants are asking for the indulgence of the court there should be some explanation advanced for the 1st Defendant's conduct in first of all saying on oath before the Magistrate that he did not see the child at any stage and that he checked and saw no one coming and then saying, in his affidavit made on the 15th August 1983, that the child ran across the front of his vehicle. No explanation has been offered. Mr. Ribeiro has stressed the gravity of this conflict of evidence on oath by reference to sections 29(1) and 39 of the Crimes Ordinance (Cap. 200). He also draws the analogy of the requirement of an explanation before the court will permit a party to withdraw an admission made in a pleading, citing Rickmers Rhederai A-G, (Owners of the S.S. "Claus Rickmers") v The Bank of Taiwan Ltd. & Another (1934) H.K.L.R. (Vol. XXVII) 27.

32. I accepted Mr. Ribeiro's argument that in the absence of any explanation from the Defendants of the inconsistency, on a highly material matter, between the evidence of the 1st Defendant before the Magistrate and in these proceedings, there is a separate and additional ground for the court refusing to allow the Defendants its indulgence by setting aside the default interlocutory judgment. In my judgment if a court were to do otherwise in the circumstances of this case it would be showing a cynical disregard for the overriding duty of every witness to tell the truth or at least explain why he is asking a court of law to accept one or other of two inconsistent statements of fact made on oath by him.

33. The insurers who will have to pay the damages in this case have the sympathy of the court as do the firm of solicitors who unhappily failed to give notice of intention to defend. However in the circumstances of this case, for the two separate and distinct reasons given above, I do not consider that it would be right to grant the Defendants the indulgence of the court under Order 13 rule 9 and I accordingly dismissed their appeal.

Representation:

Mr. Ribeiro instructed by Messrs Susan Liang & Co. for the Plaintiffs

Mr. Huggins instructed by Messrs Denton, Hall & Burgin for the Defendants