Lai Por v. Tsang Chiu Hon and Another
Read the full judgment text of HCA 7265/1981 on BabelCite. This High Court CFI judgment.
1. [Collision due to latent defect in lorry.]
Cited by 1 case
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HCA007265/1981
BETWEEN:
Coram: Roberts, C.J. Date: December 7th, 8th, 9th and 22nd, 1983 ----------------- JUDGMENT ----------------- 1. [Collision due to latent defect in lorry.] Introductory 2. The plaintiff, in his amended statement of claim, as it stood at the outset of the trial, claimed $100,300 against the first defendant (D.1) the driver of lorry CE 7670, and the second defendant (D.2) as the owner thereof for damage caused to a lorry, CD 9419, owned by the plaintiff, in a collision between the two vehicles. 3. At the outset of the trial, I permitted the plaintiff to amend his statement of claim so as to increase the amount claimed to $125,300. 4. It is not in dispute that the plaintiff's lorry suffered substantial damage, as a result of a collision between it and D.2's lorry, driven by D.1, on the early morning of 9th December, 1980. 5. The main issues which emerged during the course of the trial were as follows - (a) What was the cause of the collision; (b) On whom must lie responsibility for the collision; (c) The cost of the repairs which were carried out on the damaged lorry. The collision 6. The plaintiff's lorry, CD 9419, was driven at about 0645 on 9th December, 1980, by the plaintiff's driver, WONG Yiu Ting, in a southerly direction along Fan Kam Road, to the north of Pat Heung in the New Territories. 7. D.2's lorry, driven by D.1, a driver employed by D.2, was proceeding along the same road on the opposite carriageway in a northerly direction. Not far from the village of Tai Shek Wao, D.2's lorry, having negotiated a fairly shallow left-hand bend, failed to straighten out after emerging from the bend and went across the broken white line, which was marked on the road surface on the middle of the road, into the opposite carriageway, striking the front of CD 9419 and causing extensive damage to it. Basis of plaintiff's claim 8. The plaintiff based his claim on three alternative main grounds -
Negligent driving 9. In evidence, D.1 described how he drove his lorry north on Fan Kam Road and how, as he negotiated the bend in question, the lorry was travelling somewhat below 20 miles an hour. As he did so, the lorry was in fourth gear, out of the six forward gears with which the lorry was equipped, since he had had to change to a lower gear, when climbing a reasonably steep slope shortly before the bend where the collision occurred. 10. He described the surface of the road as rough, the lorry as being empty and the road as being sufficiently wide for two large lorries to pass, so long as each kept well into the verge of its own carriageway. 11. D.1 agreed, in cross-examination, that in a statement which he furnished to the police shortly after the accident, he described his speed as 25 m.p.h. and the gear in which he was driving as being the fifth gear, though he thought that that must have been a mistake. 12. I was invited to infer, from these facts, that D.1 was driving his lorry in a negligent manner, leaving on one side the question of whether or not there had been a failure in the steering mechanism of the truck. 13. I have no hesitation in coming to the conclusion that D.1, on whichever version of his evidence is accepted, was driving with proper care and attention, within the speed limit permitted on that road, and that no collision would have occurred but for the failure of the steering mechanism of the truck. Breach of statutory duty 14. As an alternative to his claim in negligence, the plaintiff alleged that there had been a breach of statutory duty, by reason of the failure of both defendants to comply with rule 101 of the Road Traffic (Construction and Use) Regulations, which is in the following terms -
15. The submission on behalf of the plaintiff is that a form of absolute liability is imposed upon a defendant who is guilty of a breach of a statutory duty, provided that the victim can establish that he is one of the class of persons for whose protection the statutory duty was imposed, and that the damage complained of can be shown to have been caused by the breach of statutory duty. 16. I have been referred to the Privy Council case of Tan Chye Choo v. Chong Kew Moi (1) in which a collision had occurred between two motor cars due to a fracture of the steering mechanism in one of them. No fault was found to lie with the driver of the other car, in which two persons were killed. 17. The Privy Council held that the collision occurred because of a latent defect in the respondent's car, of which she was unaware, without any negligence on her part or on the part of anyone for whom she was responsible and that neither she, nor her servant nor agent, had been guilty of negligence in relation to the maintenance of the car. 18. It was contended in the course of that trial that there had been a breach of the statutory duty prescribed by rule 94 of the Malaysian Motor Vehicles (Construction and Use) Rules 1959 which provided that -
19. Penalties for contravention of the rules were prescribed by the Ordinance. 20. Lord Morris, in delivering the judgment of the Privy Council, quotes the following passage from the judgment of Atkin, L.J. in Phillips v. Britannia Hygienic Laundry Co. Ltd. (2)
21. I find that the Construction and Use Regulations, although they impose obligations upon car owners and provide criminal sanctions for a failure to observe them, do not impose on drivers duties of such a nature as to become enforceable rights in an action at common law at the suit of persons who may suffer damage by reason of a non-observance of any of them. 22. It was argued that the plaintiff is assisted by the fact that section 34 of the Road Traffic Ordinance provides a summary method of awarding compensation for breaches of the Road Traffic Ordinance or regulations made under it. A person convicted of an offence against the Ordinance or regulation may be ordered to pay up to $1,000 for injury, loss or damage. Such an award can be made only with the consent of the injured person. If made, the right of the person receiving such compensation to take other proceedings is barred. 23. I do not read this section as doing more than conferring a simple method of awarding a small sum of compensation in minor cases, if the court considers that it is appropriate. It is a discretionary power, and a conviction gives no enforceable right to the person injured. It does not confer any statutory duty as such upon drivers; it merely provides a simple and limited form of relief for traffic victims. Failure of steering 24. D.1 described how, as he sought to straighten his lorry, by pulling at the steering after the bend in the road, the steering did not respond and he was unable to steer the lorry to the left. He braked as soon as he realized what was happening but was unable to stop the lorry crossing the centre line and striking the oncoming vehicle. 25. The sketch plan which was produced in evidence supports his contention that there was a sudden failure of steering followed by an immediate braking, since the brake marks show that the lorry continued in a straight line ahead, instead of veering to its left as it emerged from the bend, as it should have done. 26. Shortly after the accident, on the 15th December, 1980, a motor vehicle examiner of the Transport Department, examined the damaged vehicle, CE 7670, and expressed the following opinion in his report -
27. With leave D.1 called, as an expert witness, Dr. S. Lingard, who is experienced in the examination of damaged vehicles and in the diagnosis of the reasons for motor vehicle accidents. 28. He submitted a report, which he amplified by oral evidence. In his considered view, everything which he had heard about the accident suggested that the cause of it was a loss of control by the driver due to the detachment of the steering drag link on CE 7670, due to a nut in the ball joint not being fitted with a split pin. 29. The lack of a locking device, i.e. the split pin, on a drag link joint securing nut would lead to the eventual detachment of the drag link, which in turn would cause the driver to lose steering control completely and cause the vehicle to steer itself straight ahead. 30. In Dr. Lingard's view, the circumstances shown in the sketch plan were consistent with a failure of this nature, in that CE 7670 failed to complete the negotiation of a left-hand bend and proceeded on a straight course towards the opposite carriageway. 31. I am satisfied that the sole cause of the collision was a failure of the nature described in the motor vehicle inspector's report and in the evidence of Dr. Lingard. 32. It was not disputed that the burden of showing that they had taken such reasonable precautions as the law requires to prevent a failure of this nature lies upon the two defendants, though clearly their respective responsibilites are very different. Responsibility of first defendant 33. It was not disputed that D.1 was convicted before a magistrate, after having pleaded guilty, to using the vehicle when its steering gear was not maintained in good and efficient working order. 34. It was not suggested that this is conclusive evidence of negligence on his part, since that offence is an absolute one which does not depend upon establishing any knowledge by a defendant of the defective nature of the steering gear concerned. It does, however, place a burden on him to show that, so far as the responsibility lay with him, he had taken reasonable steps to ensure that the steering gear was in proper working condition. 35. What then is the duty of a driver in relation to the maintenance of equipment of this nature in a vehicle which he drives regularly? 36. In evidence, D.1 described the routine checks which he carried out daily before driving the lorry. Each morning, he checked the oil level and the footbrake, and shook the steering wheel to check its play, before he started the engine. He carried out these checks on the morning of the collision. 37. He knew that the lorry was serviced regularly, every Sunday, by a mechanic employed by D.2 to supervise and carry out the maintenance of the truck, and relied upon the mechanic to carry out such examination and repairs as were needed. He regarded it as his duty to report any defects which he noticed in the steering, or any adjustment which he thought was required to it, but this he had not had occasion to do during the six months or so when he had been driving this lorry for D.2. 38. It was suggested by the plaintiff at one stage that a driver should make it his duty to carry out a close regular visual inspection of the steering mechanism, perhaps by crawling under the lorry and seeing whether any defects were visible, but in my opinion that would place a wholly unreasonable burden on the drivers of motor vehicles. 39. Nor do I find that D.1 should have noticed that something was wrong with the steering while he was driving the vehicle before the collision, since I accept the evidence of Dr. Lingard that the detachment of the nut would be undetectable by the driver till it happened. Even if the nut were loose for a while before it fell off, this would not itself cause extra vibration. 40. I am therefore satisfied that D.1 took such reasonable precautions, in relation to the steering gear, as could properly be expected of someone whose responsibility was that of driving the vehicle and not of maintaining it. Liability of the second defendant 41. The defence of D.2 is that the accident was caused by a latent defect which was not discoverable by reasonable care on his part. 42. In Henderson v. Henry Jenkins (3) it was held that this defence would succeed only if the defendant could show that he had taken all reasonable care in the circumstances, in order to discharge the inference that he had been negligent. 43. I accept the evidence of Dr. Lingard that the absence of the split pin would be detectable only on close visual inspection and that it would be unlikely that its absence would be noticed even when the ball joint, to which the castellated nut secured by the split pin was attached, was being greased, as it was each Sunday. 44. It is a matter of guess-work as to whether the pin was still in place when the last weekly service and greasing occurred, two days' before the accident or whether it only became detached, though it seems more likely, from Dr. Lingard's evidence, that this took place shortly before the accident occurred. 45. As he indicated, it was difficult to assess in the absence of the pin what was responsible for its failure. He thought that the failure might be due to a wrong pin being used or an old pin being used, or a pin being wrongly fitted, though he had never heard of a failure of this kind in the steering gear before. He added that these errors would be likely to occur only if the ball joint assembly were taken down, which is necessary only in case of major repairs or adjustments to the steering box. 46. The vehicle concerned was a reconditioned one, originally manufactured in 1974, but imported from Japan a few weeks' before it was purchased by D.2. 47. The lorry would have had to pass a stringent inspection after reconditioning before it was exported from Japan and was subject to a further inspection in April 1980 by the Transport Department which certified it as being roadworthy. 48. There was evidence that the ball joint had not been removed while the vehicle was owned by D.2. All these factors make it unlikely that the split pin had been removed since the vehicle was reconditioned. If there was, therefore, a fault of one of the kinds postulated by Dr. Lingard, it seems to me most likely that it would have occurred during the reconditioning process in Japan. 49. D.2 was unable to call the chief mechanic as a witness, since he had been unable to trace him since he left D.2's employment two years' ago. This mechanic, referred to in evidence as "Uncle Chan" ,was employed by D.2 for about a year from May 1980 onwards to service and supervise the maintenance of his Nissan trucks. According to D.2, Uncle Chan came to him with good references from a factory in Kwangtung, where he worked as a mechanical engineer, and he knew that Uncle Chan had worked for several years in garages in Hong Kong. He therefore relied upon him to do whatever was necessary by way of maintenance and repair of the trucks. 50. D.2, however, was able to call as a witness KONG Yuk-keung, who was an apprentice to Uncle Chan for about a year, and worked with him on lorry CE 7670, servicing it under the supervision of Uncle Chan. He checked the steering system every week and never found anything wrong with it. He described how the ball joints on the vehicle were cleaned and greased each week and said that he had never seen anything wrong with the split pins which secured the castellated nuts, which hold the ball joints of the steering column in place. 51. D.2 will not have discharged his duty to take all reasonable precautions if those employed by him are shown to have been negligent in the performance of their duty. So it is for him to show that, on the balance of probabilities, those employed by him to maintain the lorry were not guilty of any carelessness in their work. 52. I am satisfied that D.2, either personally, or through his servants or agents who were given charge of the maintenance of the truck on his behalf, did not fail in his duty to take proper steps to service and maintain the vehicle. 53. I conclude that this unfortunate collision occurred because of a latent defect, in the steering mechanism of D.2' s lorry, which could not have been discovered by the exercise of reasonable care and that such care was shown by D.2 and his servants. Damages 54. It is thus not strictly necessary for me to consider the amount of damages which I would have awarded to the plaintiff had I found that any liability attached in law to either defendant. However, I do so in case it should be thought necessary to take this matter any further. 55. After the accident, the damaged lorry was inspected at the Dah Chong Hong Service Centre ("Dah Chong") which furnished an estimate of $166,000 odd to the plaintiff and to the Far East Insurance Company, the insurers of the plaintiff's lorry. 56. Mr. Kwong, an insurance surveyor, examined the lorry and decided, as the vehicle was insured only for $140,000, that the plaintiff should be offered this on the basis of the vehicle being a write-off. Mr. Kwong's fee of $300, which was included in the claim, was not contested by the defendants, assuming of course that the issue of liability went against them. 57. The plaintiff was reluctant to accept this and pressed for the lorry to be repaired. The insurance company therefore informed him and Dah Chong that it would not pay more than $100,000 towards the repairs, $2,000 of which, under the terms of the policy, the plaintiff was obliged to pay. 58. The plaintiff then entered negotiations with Mr. Poon Kung-fai, the supervisor of Dah Chong, and Mr. Chain Kam-sun, the service manager. As a result of their discussion, it was agreed that the total bill should be reduced to $135,000, of which the insurance company would meet $98,000 and the plaintiff the balance of $37,000. The reduced figure was marked on an invoice which was initialled by the plaintiff. 59. In June 1981, when the repairs had been carried out on the lorry, further discussion took place between the plaintiff and Dah Chong, as a result of which a deduction of $10,000 was made in the amount due from the plaintiff to Dah Chong, leaving a balance of $27,000, which sum was set out in an invoice dated 20th June, 1981. 60. The defendants did not dispute that the amount of $98,000 was paid to Dah Chong by the Far East Insurance Company, but submitted that the evidence of payment of the $27,000 by the plaintiff was insufficient. 61. The plaintiff was unable to produce any receipt for the sum which he had paid. According to him, this debt was discharged by a cheque drawn on his father's bank account, because the business had been short of money at the time and he had borrowed it from his father, although he had been obliged to pay it back. He explained that he had received a receipted invoice from Dah Chong but that this had been lost. 62. Mr. Cham, the service manager, said that the receipted copy of the invoice kept by the company was in a godown and would take a couple of days to retrieve, as would the daily journal which would have contained a similar entry. 63. The plaintiff himself asserted that he had paid this debt. Mr. Cham and Mr. Poon identified the invoice, which showed $27,000 as owing from the plaintiff, as having been issued by them and asserted that this amount must have been paid by the plaintiff since he was a cash customer, not a credit customer like an insurance company, and that unless he had paid he would not have been permitted to remove the repaired vehicle from Dah Chong. 64. Thus if I do not accept the evidence given as to this payment, unsatisfactory though the documentation to support it may be, this necessarily involves a finding that the plaintiff and the two employees of Dah Chong conspired together to produce firstly, a false invoice, showing a reduced overall price of $135,000, and secondly, a false invoice showing $27,000 to be due from the plaintiff, and that all three of them lied in the evidence which they gave. I make no such finding. On these matters, I believe that the plaintiff and the two Dah Chong employees were telling the truth. 65. So I find that an amount of $27,000 was paid by the plaintiff to Dah Chong and that it would have been recoverable by the plaintiff from the two defendants, had liability been established, as well as the amounts of $98,000 and $300, i.e. a total of $125,300. 66. Much of the time of the trial was given up in an attempt by the defendants to show that the plaintiff had been overcharged for various replacement parts which appeared in the original estimate and which, it was said, had not been supplied. 67. It certainly emerged in evidence that some of the practices of this garage were of an unsatisfactory nature. The Dah Chong witnesses, for example, admitted that if additional new parts had to be fitted to a vehicle, the customer would be charged for them, but that if it was found possible to repair and replace old parts, thus reducing the cost, the benefit of this would not be passed on to an insurance company, though it would be to a private customer if the value of the item exceeded $500. 68. Neither of the Dah Chong witnesses, however, was able to say whether or not in fact any of the items in the original estimate, other than those for which an allowance was given to the defendant on the invoice which reduced his total liability from $37,000 to $27,000, were fitted onto the lorry during its repair. 69. So I am not persuaded that there is sufficient evidence of overcharging to justify me in concluding that the plaintiff should only be entitled to recover from the defendants less than he paid to Dah Chong. 70. A customer must rely to a substantial degree upon the honesty and efficiency of the garage which undertakes repairs to his car. He cannot be expected to check whether or not a new part has been fitted to his damaged vehicle, or whether an old part has been repaired and replaced upon it, at what ought to be a lesser cost to himself. 71. I think it is reasonable for a customer, particularly where very extensive repairs have taken place, to accept the honesty of his garage and to pay the bill which is presented to him, particularly when this accords with a figure which has been reduced as a result of negotiation between him and the garage. I thus would have found that it was reasonable for the plaintiff to pay the full amount of $27,000 and for this sum to have been recoverable by him from the defendants. 72. In the result, therefore, I find that the plaintiff has not established liability on the part of either defendant and that his claim must therefore be dismissed. 73. There will therefore be judgment for the defendants with costs to be taxed in accordance with Legal Aid Regulations. (1) [1970] 1 W.L.R. 147. (2) [1923] 2 K.B. 832. (3) [1970] A.C. 282, HL. Representation: Thomas Lai (S.T. Poon & Co.) for plaintiff. N. Pirie (D.L.A.) for 1st defendant. LO Kam Choong, 2nd Defendant, in person. |
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