Chiu Kong Frozen Meat Co Ltd and Another v. Ng Kwei Ying

HCPI000882/2002

HCPI 882/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 882 OF 2002

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Coram: The Hon Mrs Justice V. Bokhary in Court

Dates of Hearing: 22 - 24 July 2003

Date of Judgment: 5 August 2003

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J U D G M E N T

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1.Nam Fung Road, or at least the stretch of it which this case concerns, is a major road with two lanes going uphill separated by a double white line from one lane going downhill. Nam Fung Path is a minor road opening at a right angle onto the downhill lane of Nam Fung Road. At about 11:45 a.m. on 27 December 1999 a light goods vehicle, Reg. No. HN 1419 owned and driven by Mr Tam Chi Keung was travelling along the downhill lane of Nam Fung Road while a light goods vehicle, Reg. No. HS 5022 owned by the 1st Plaintiff and driven by the 2nd Plaintiff emerged from Nam Fung Path onto Nam Fung Road in order to travel uphill along that road. The two vehicles came into collision when the front of the vehicle travelling downhill along Nam Fung Road struck the offside of the vehicle which had emerged from Nam Fung Path. As a result of this collision: both vehicles were damaged; the 2nd Plaintiff was injured; and, tragically, Mr Tam Chi Keung (hereinafter called "the Deceased") was killed.

2.Now the 1st Plaintiff claims in respect of damage to its vehicle; the 2nd Plaintiff claims damages in respect of personal injuries and loss of personal property; and the Defendant, who is the Deceased's widow and the administratrix of his estate, counterclaims for the benefit of his dependants and his estate.

3.An order has been made splitting the trial of liability from the trial of damages. The trial now before me is as to liability only.

4.On the first day of the trial I visited the scene of the accident in the company of the parties' legal advisers. When cross-examining the 2nd Plaintiff, counsel for the Defendant asked him if he agreed generally that the scene has not changed since the accident, and the 2nd Plaintiff answered "Yes". I found this visit useful.

5.The bundle of documents produced by agreement includes a police sketch and a number of photographs. The sketch and the photographs show the position of the vehicles after the accident and the skid marks left by the Deceased's vehicle. Two witnesses testified before me. They were the 2nd Plaintiff and his front seat passenger ("the Passenger").

6.Looking at the police sketch, one sees skid marks left by the Deceased's vehicle starting within its correct lane i.e. the downhill lane of Nam Fung Road and ending in the off-side lane going uphill i.e. the uphill lane next to the downhill lane of that road. In relation to Nam Fung Path, those skid marks start uphill of the mouth of Nam Fung Path and end along Nam Fung Road where the mouth of Nam Fung Path open onto it. The skid marks are 27 metres long.

7.Mr Ashok Sakhrani for the Plaintiffs has, in addition to making oral submissions, provided me with written submissions by way of opening speech and by way of final speech. Mr Andrew Li for the Defendant has, in addition to making oral submissions, provided me with written submissions by way of final speech. I thank counsel for their oral and written submissions, all of which I have considered with care but do not propose to rehearse. Mr Sakhrani asks me to find the Deceased wholly to blame for the accident. Mr Li asks me to find that both drivers were to blame for the accident and to apportion more blame to the 2nd Plaintiff than to the Deceased. He suggests that a proper apportionment of blame would be to hold the 2nd Plantiff 70% to blame and the Deceased 30% to blame.

8.In the witness-box, the 2nd Plaintiff adopted his witness statement, which includes this passage describing how the accident happened:

"When the front of my vehicle HS 5022 has entered the rightmost line of the uphill route of Nam Fung Road, and the rear end of the vehicle has not completely entered the rightmost line yet, I saw a passenger truck (later known to be HN1419) emerge from the downhill route, at a distance of approximately 3 bus-lengths from my vehicle. I noticed smoke being emitted from the right rear wheel of the truck and heard a loud screech of brakes. The passenger truck then crossed the double white lines of the downhill route and crashed head-first into the right front car-door of my vehicle. The truck appeared to be entirely out of control. It surpassed its own driving lane, ran onto my uphill lane and came to a halt only after crashing into my vehicle (on my lane). Due to the great speed and impact at which the truck crashed into my vehicle, my vehicle fell sideways on its left immediately. After the vehicle toppled, a fellow passenger and I climbed out from the front of the vehicle and asked others to call the police for us."

9.He augmented this in his oral evidence in the course of which he added that he had looked up and down the road from his stationary position before turning out of Nam Fung Path into Nam Fung Road. In assessing the 2nd Plaintiff's evidence and in judging this case, I bear in mind his cross-examination by Mr Li and everything that Mr Li has submitted orally and in writing.

10.In the witness-box, the Passenger adopted the statement which he made to the police on 13 January 2000 i.e. a little over two weeks after the accident. This statement is in the bundle of documents produced by agreement. It includes this account of the accident:

"At 11:48 am on 27th December 1999, I was sitting at the passenger seat on the left side of the truck HS5022. The driver was Leung Ka Yan. At that time, our truck was driven out of Wong Chuk Hang Hospital to the direction of Westbound lane at Nam Fung Lane, with an intention to turn right onto Nam Fung Road heading Wanchai for the purpose of delivering good. And our truck while travelling on Nam Fung Lane westbound was not very fast. When the front part of HS5022 arrived at the stop junction with Nam Fung Road, the front of the truck stopped behind the double white line, and the truck was on the left side of the road. I saw that after the truck stopped, the driver looked at Nam Fung Road up and down lane, and I also looked at the up and down lanes where there was no oncoming vehicle. Then, I looked back into the goods invoices and put my head down. And the truck has stopped for about 5 seconds, I then felt that our truck went forward and turned right onto the uphill lane of Nam Fung Road. When our truck front had already entered the 1st left uphill lane of Nam Fung Road (and front part of our truck was pointing slantingly to the right and the rear of the truck was pointing slantingly towards Nam Fung Lane, I suddenly heard brake noise coming from the downhill lane in front of us. Then, I looked right to the downhill lane and saw a light van (later know to be HN 1419) on the downhill lane of Nam Fung Road dashing towards the right side of the front part of our truck. At that time, our truck was still slowly turning right. Then, my vision was blocked by the driver and then, I heard "bang" and a collision. Then, our truck fell to the left on the ground. At that time, the left side body of our truck stuck to the ground and the right side was facing up the sky. The front part was pointing to the slope and the rear was to Nam Fung Lane. Our truck was horizontally placed on Nam Fung Road uphill lanes, in between 1st and 2nd lanes. Then, I climbed out of the driver seat and stood for a while to compose myself. Then, I and my driver went up to the van to rescue the driver of HN1419 and I saw that the front part of HN1419 was dented inward into the vehicle compartment, and at the same time, squeezing the upper body of HN1419. Therefore, I could not pull the driver of HN 1419 out. At that time, HN1419 stopped at the 2nd lane left side of uphill lane of Nam Fung road, opposite to our truck. At the same time, there were other people coming and they said that they had already reported the matter to the police. After a while, ambulance and police cars came and arranged. In this accident, my left hand was injured and I was then sent to hospital by ambulance."

11.Assessing his evidence in the same way as I assessed the 2nd Plaintiff's evidence, I find the Passenger's evidence reliable. As far as it goes, it provides support for the 2nd Plaintiff's account of how the accident happened.

12.Mr Li concedes that the Deceased was driving in excess of the speed limit of 50 kph. The question remains to what extent the Deceased exceeded that speed limit. The skid marks left by the Deceased's vehicle are indicative of a high speed, especially when one bears in mind that the Deceased's vehicle did not simply come to a stop but only stopped upon colliding with another vehicle of some considerable weight. Also indicative of high speed on the Deceased's part is the fact that the other vehicle was knocked over onto its side.

13.Why did the Deceased's vehicle go over to its incorrect side of the road? Had it gone out of control or did the Deceased steer to his incorrect side of the road to avoid colliding with the Plaintiff's vehicle? Mr Li submits that it was probably the latter. I am not persuaded of that. But let us see what the position would be assuming that that was indeed the case. I accept the 2nd Plaintiff's evidence, going by my favourable impression of him formed by seeing and hearing him and considering his testimony in the context of the whole of the evidence in the case. I find that he exercised the particular care required of a motorist emerging from a minor road and turning right into a major road. On that basis, I think that even if the Deceased had steered to his incorrect side of the road to avoid colliding with the Plaintiff's vehicle, the probability would be that he so steered because he had been travelling so fast that by the time the two drivers were in a position to see each other, the only thing that the Deceased could attempt in order to avoid the collision was the desperate manoeuvre of going onto his incorrect side of the road.

14.One of Mr Li's submissions is that the 2nd Plaintiff could and should have avoided the accident by remaining in the downhill lane of Nam Fung Road, in other words, in the lane along which the Deceased had been approaching. As it turns out, that would have avoided the accident since the Deceased's vehicle went onto its incorrect side of the road. But without the benefit of hindsight and in the actual situation in which he found himself, I do not see how the 2nd Plaintiff can be faulted for not remaining in the downhill lane of Nam Fung Road.

15.Each counsel has cited a number of cases. I have considered them all, but propose to mention only two. In Laurie v Raglan Building Co. Ltd [1942] 1 KB 152 a lorry skidded onto the pavement and killed a man standing there. Lord Greene MR said at p. 154: "The skid by itself is neutral". But in Richley (Henderson) v Faull [1965] 1 WLR 1454 at p. 1457 F-G MacKenna J respectfully disagreed with Lord Greene's statement, and took the view instead that an "unexplained and violent skid is in itself evidence of negligence". I share MacKenna J's view. He said (ibid.) that the result in the case before him would have been the same whether that view were right or wrong. That is also the position in the present case because (i) Mr Li concedes there was some blame on the Deceased's part; (ii) I find that there was none on the 2nd Plaintiff's part and (iii) I conclude accordingly that the Deceased was solely to blame.

16.I have great sympathy for the Deceased's dependants, but I am driven to the conclusion that the Deceased was solely to blame for the accident. Accordingly I enter judgment for the Plaintiffs on the claim for damages to be assessed by a Master and I dismiss the counterclaim. I make an order nisi awarding the costs of the claim and the counterclaim to the Plaintiffs against the Defendant.

Representation:

Mr Ashok K Sakhrani, instructed by Messrs Ip Kwan & Co., for the 1st and 2nd Plaintiffs.

Mr Andrew S Y Li, instructed by Messrs Kenneth C C Man & Co., for the Defendant.