Chan Yuet Mui v. Wong Poon Yuk and Another
Read the full judgment text of HCA 871/1979 on BabelCite. This High Court CFI judgment.
1. In this action the Plaintiff CHAN Yuet-Mui claims damages for personal injuries sustained by her in the accident which occurred shortly before 7 o'clock in the morning on the 9th February, 1978. She brings this action against the 1st Defendant as the owner of the car in which she was travelling as a passenger in the front seat and against the 2nd Defendant who was admittedly driving the car at the material time. The parties sensibly agreed and applied to me and I granted their application tha
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HCA000871/1979
Coram: Barker, J. Date of Judgment: 8th February, 1980. ----------------- JUDGMENT ----------------- 1. In this action the Plaintiff CHAN Yuet-Mui claims damages for personal injuries sustained by her in the accident which occurred shortly before 7 o'clock in the morning on the 9th February, 1978. She brings this action against the 1st Defendant as the owner of the car in which she was travelling as a passenger in the front seat and against the 2nd Defendant who was admittedly driving the car at the material time. The parties sensibly agreed and applied to me and I granted their application that to-day only the issue of liability should be tried. It is apparent from a reading of the particulars of personal injuries alleged to have been sustained by the Plaintiff that it may well be that neither the medical position nor the future employment position have yet become stabilised and therefore it is sensible to deal with the issue of liability now and postpone the issue of quantum to a later date since memories of witnesses as to fact become dimmed as time goes by whereas it is essential for a court in assessing damages to have as much concrete evidence on which to form its assessment rather than to be pushed further into the realms of speculation. So I deal today only with the issue of liability. 2. The car, a Mitsubishi Galant, was being driven on Castle Peak Road in the direction of Kowloon. There was in the car the 1st Defendant, the Plaintiff in the front passenger seat and in one of the rear seats a Mr. WONG San-wah who in fact was the son of the 1st Defendant and what happened was that when the car approached a left hand bend which is depicted on photograph 4 of the photographs which were included in the agreed Plaintiff's bundle P2, the car went into a skid and the driver lost control. The driver tried to regain control but the car went to its offside, hit what had been described as the parapet but I think must be the pavement on the offside of the road came back to its near side and overturned finishing up on its side in the position shown in the sketch which was included in the Plaintiff's bundle P2. Whether the car in fact rolled right over before finishing up on its side is not entirely clear though the Motor Vehicle Investigation Accident Report which is item No. 5 on P2 speaks of damage to the roof panel. In all events it must quite clearly have been a violent motion. There were no other cars involved; no other traffic in the vicinity. 3. I will deal first with the question as to whether the 1st Defendant can be made liable. He was admittedly the owner of the car. He was at the material time away on a holiday in Taiwan. The evidence was that he permitted his son to drive the car whenever and for whatever purpose the son wanted to. He did not mind if his son allowed someone else to drive the car, and although he did not know whether or not the 2nd Defendant had ever driven the car before, he would not have objected to his driving it on the occasion when the accident occurred. In these circumstances I find that although the 1st Defendant had not expressly permitted the 2nd Defendant to drive his car he had impliedly done so. But in my judgment one has to look further than that before one can saddle the 1st Defendant with any liability for what occurred on the early morning of the 9th February. His liability if there be any can only be a vicarious liability. This matter was discussed at length in the case of Morgans v. Launchbury(1). I need not go into the facts of that case in any detail. Suffice it to say that a car was owned by a lady whose husband had taken the car out and had drunk far more than was good for him and he, the husband, realising at some stage that he was unable to drive safely through drink, asked a friend of his to drive. This the friend did. They visited various other public houses. They went then in the car with the friend driving in fact away from the husband's house and the friend drove negligently and the husband and the friend were killed. In that case the husband had at some time much earlier than this told the wife that if ever he was unfit to drive through drink he would get a sober friend to drive him or else telephone her to come and fetch him, and it was pursuant to that arrangement that he got the friend to drive him in the first place. The House of Lords in that case held that there was no question of the owner of the car being vicariously liable for the driving of her husband's friend. Lord Wilberforce at page 135 said this at B:
In the present case there is no question that what was being done was being done for any purpose of the 1st Defendant or any benefit if I may use a wider expression to the 1st Defendant. As I have held what was being done was being done with the 1st Defendant's permission but the purposes were the purposes of the 2nd Defendant, of the Plaintiff and of WONG San-wah, purposes with which the 1st Defendant had no concern and of which he had no knowledge. In these circumstances I am wholly unable to find that there was any vicarious liability on the 1st Defendant and it follows therefore that the Plaintiff's claim against the 1st Defendant must fail. 4. I turn then to deal with the liability if any of the 2nd Defendant, the driver. The Plaintiff can give little evidence as to what occurred. She herself was very tired. At the time of the accident she was leaning back in her seat with her head to the left on her shoulder. She cannot remember whether or not she was actually asleep but she must have been very near to it, and she said that "All I could remember is I heard a braking and my head dashed forward; my head knocked against the windscreen, I can't remember if my head went through it." and she said at a later stage that not only her head but her body also was thrown forward. 5. WONG San-wah at the back can tell us nothing about the accident because he said "I think I was asleep". So one looks first at the photographs to see the configuration of the road along which this car was being driven. In photograph No. 4 it was being driven away from the camera on what is clearly a left hand bend and in photographs 5 and 6 it was being driven towards the camera. One looks next at the police sketch, part of the bundle P2 an agreed document which shows the car BN 3423 on its side mainly on its correct part of the road with just a little of the rear of the car protruding over the double white line, and as a matter of comment, the very fact that this part of the road was governed by double white lines indicates that great care was necessary in negotiating it. So one takes up the story from the evidence of the 2nd Defendant himself. What he said in chief was this:
He said it was slightly misty.
In cross-examination he said "I am not clear if I did slow down". He said "I told the police I negotiated the bend at 30 miles an hour and it is correct I told them also I knew it was a left hand bend but had no idea it was so sharp." And he said "I do not have any other explanation for the accident", and then when pressed he said "In fact I have no explanation for the accident." That was the evidence with regard to negligence. On that evidence Mr. Hoosen for the 2nd Defendant has submitted to me that I ought not to be satisfied that the 2nd Defendant was negligent. He quoted to me the case of Richley v. Faull(2) a decision of MacKenna, J. where a defendant was unable to give any explanation for a skid save the fact that the road was wet. The head note reads:
and MacKenna, J. held that
and at page 110 at F MacKenna, J. said this
Then he quoted from Lord Greene's judgment, and said
Then MacKenna, J. goes on in his judgment:
and then he goes on to say "Whether I am right in this or wrong, the conclusion is the same" when he held that the defendant was negligent. 6. What are the facts in this case? Here was the defendant driving along on a road that he believed was a little bit wetter and more slippery than normal, driving along a road which in conditions like that hundreds and hundreds of vehicles must have negotiated in safety, and for reasons which the defendant is wholly unable to explain he loses control and goes into a skid. In my judgment (and I ignore for the present moment the doctrine of res ipsa loquitur) that must connote negligence. I take the view that the Plaintiff, were the burden on her, would by showing those facts have satisfied me on the balance of probabilities that the defendant was negligent but I respectfully adopt the reasoning also of MacKenna J. in Richley v. Faull(2) in saying that "a skid of this nature in these conditions on a road with that configuration" on a bend which the 2nd Defendant himself said was not sharp, and of such violence that the car goes right across the road and comes back and overturns is in itself evidence of negligence. Like MacKenna, J. whether I am right or wrong as to the application of res ipsa loquitur my conclusion is the same. I take the view and I so find that the Defendant has not proved that he was not negligent therefore the doctrine of res ipsa loquitur applies but in any event if it does not I hold on the facts that the Plaintiff has proved that he was negligent. It follows therefore that the Plaintiff succeeds against the 2nd Defendant. 7. That however is not the end of the matter. Because it is alleged in the 2nd Defendant's defence that the Plaintiff herself was in part to blame for her injuries because she failed to use the seat belt provided for the use of a front seat passenger. There was indeed a seat belt fitted to the vehicle and the Plaintiff admits that she was not wearing that seat belt at the time. She said in evidence that she did not really know the purpose of a seat belt although every car has a seat belt and when asked why she was not wearing a seat belt she said "I didn't expect such an accident would happen therefore I did not think of putting on the safety belt." No medical evidence has been called before me to assist me as to what would have happened on the balance of probabilities had the Plaintiff been wearing a safety belt but I cannot shut my eyes to the fact that the injuries alleged were in the main to the face and to the head. There were also injuries to the left knee which are alleged to have caused her left foot-drop but the most serious injuries were undoubtedly to the head and the Plaintiff herself said that all she could remember was her head striking the windscreen and her head and body being thrown forward and I have come to the conclusion as a matter of fact that I am driven to find that had she been wearing her seat belt, although she would undoubtedly have sustained injuries, those injuries would probably have been less severe. Mr. Hoosen anticipating such a finding relied on the case of Froom v. Butcher(3) a decision of the Court of Appeal. There in a judgment delivered by Lord Denning, M.R. with which the other two judges merely concurred, the court held that in the climate of opinion prevailing in England at the time of the accident it was only reasonable care that a passenger should take for his own safety that a safety belt should be worn. In that case it was held that where injuries would have been prevented altogether by the wearing of a safety belt there must be reduction of one-quarter in the damages whereas where the injuries would have been materially less severe the reduction should be only 15 per cent, and in the end what both Mr. Ho for the 1st Defendant in the event of his client having been found liable and Mr. Hoosen were submitting is that at least a 15 per cent reduction should be made though Mr. Hoosen pointed out in argument those figures of 25 per cent and 15 per cent were purely arbitrary figures plucked out of the air by the English court of appeal. 8. However, Miss Yuen on behalf of the Plaintiff has provided me with a copy of a decision in the High Court in Hong Kong of Mr. Commissioner Swaine, Q.C. in the case of LIU Siu-fun, HO Lai-chuen and PAK Chuen-shun, plaintiffs and HO Wing-cheong defendant and PAK Chuen-shun(4). In that case Mr. Commissioner Swaine said as follows at page 4:
9. This accident occurred shortly after the accident in the case decided by Mr. Commissioner Swaine. No evidence has been put before me either as to what, if any, publicity the Hong Kong Government had by February 1978 given to the advisability of wearing the seat-belts other than the same Highway Code to which Mr. Commissioner Swaine refers, paragraph 15 of which reads:
and then there is depicted underneath a photograph, of a driver be it noticed, fastening up his safety belt. In my judgment the climate of opinion in Hong Kong at the time this accident occurred was in all probability very different from that which obtained in England at the time of the Froom accident. 10. In these circumstances I respectfully adopt and agree with the reasoning of Mr. Commissioner Swaine. I do not find the Defendant's arguments compel me to say that he has on the balance of probabilities satisfied me that the failure to wear a seat belt was contributory negligence on the part of the Plaintiff. In the result therefore the Plaintiff succeeds in full against the 2nd Defendant. 11. On the issue of liability there will be judgment for the Plaintiff against the 2nd Defendant with costs. There will be judgment for the 1st Defendant against the Plaintiff with no order as to costs. The Plaintiff's own costs and the 2nd Defendant's own costs to be taxed for the purposes of the Legal Aid Regulations. There is one more order that will be required and that is the issue of damages be referred to another High Court Judge or a Registrar. 12. In all the circumstances I think the proper course is for this case to stay in the running list and to be restored before me when the parties are ready. It will not be warned until the parties are ready. Representation: Miss M. Yuen (Fairbain, Kwok & Wang) for Plaintiff B.K. Ho (Johnny T.K. Cheng & Co.) for 1st Defendant A. Hoosan (Hastings & Co.) for 2nd Defendant (1) [1973] A.C. @ 127 (2) [1965] 3 A.E.R. @ 109 (3) [1976] 1 Q.B. @ 286 (4) [1978] No. 4713 |