Lam Chun Lan and Another v. Lo King Shing and Another
Read the full judgment text of DCCJ 5483/1980 on BabelCite. This District Court judgment.
1. The 1st plaintiff was the registered owner of private car bearing registration mark No. BU 4561 and her husband the 2nd plaintiff was driving this car along Castle Peak Road on the 30th of April 1979 when the 2nd defendant driving public light bus registration mark AY 7421 drove this vehicle into the rear of the plaintiff's car. This occurred when the 2nd plaintiff had stopped to avoid running down a pedestrian who was crossing the road.
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DCCJ005483/1980 IN THE DISTRICT COURT OF HONG KONG HOLDEN AT VICTORIA CIVIL JURISDICTION ACTION NO. 5483 OF 1980 -----------------
----------------- Coram: H.H. Judge Caird in Court. Date of Judgment: 26 Feb1981 ----------------- JUDGMENT ----------------- 1. The 1st plaintiff was the registered owner of private car bearing registration mark No. BU 4561 and her husband the 2nd plaintiff was driving this car along Castle Peak Road on the 30th of April 1979 when the 2nd defendant driving public light bus registration mark AY 7421 drove this vehicle into the rear of the plaintiff's car. This occurred when the 2nd plaintiff had stopped to avoid running down a pedestrian who was crossing the road. 2. The 1st defendant was the owner of the public light bus. 3. The plaintiffs alleged negligence on the part of the 2nd defendant and I was informed from the Bar Table there were no issues of negligence between the plaintiffs and the 1st defendant. However, the 2nd defendant contested negligence. Although the issue of his negligence had not really been raised in his pleadings I allowed the 2nd defendant to contest this, as he was unrepresented. I am grateful to Mr. Neo and Mr. Iu for not availing themselves of technical pleading points against the unrepresented party. 4. I now wish to deal with both negligence and damages aspects before considering the main issue as between the parties. 5. NEGLIGENCE 6. It has been proved that the 2nd Defendant had pleaded guilty to a charge of careless driving arising out of this accident. He gave evidence stating that he pleaded guilty to "avoid trouble" and "to save "court attendances". I accepted this as being his reason, in part, but did not accept them as exhaustive reasons for his plea of guilty. I felt there had to be some degree of acceptance of responsibility for him to act in this way. Indeed when I asked him who was at fault his reply was "not sure". 7. I have assessed the evidence of the 2nd Plaintiff (PW1) and the 2nd Defendant and consider that the plaintiffs' joint case as to the accident being caused by the 2nd Defendant's negligence has been amply proved upon the balance of probabilities. 8. DAMAGES 9. The plaintiff has proved to my satisfaction to the degree required, that the cost of repairs amounted to $3,514.30 and also that the survey fee of $165 is properly recoverable. 10. However, in addition, the 1st plaintiff claims for the loss of use of the private car the sum of $10 per day for 45 days as does the 2nd Plaintiff. 11. The 1st Plaintiff takes a child to school and pays public light bus fares. The 2nd Plaintiff was obliged to travel by public light bus to his place of work. 12. The car was undergoing repair for approximately 45 days. I propose to allow for the 1st Plaintiff 33 days at $6 per day, a total of $198 taking into account that she has a child and accordingly there are two passengers for each journey. For the 2nd Plaintiff I propose to allow $3 per day, 33 days at total $99. I appreciate these figures are somewhat arbitrary but believe them to be a reasonable approximation of damages sustained by both plaintiffs under this head. Mr. Neo considered some adjustment would have to be made and this general principle was not made an issue by Mr. IU. 13. AGENCY 14. I now turn to the real issue, that of the relationship between the 1st and 2nd Defendants. 15. It was pleaded by the 1st Defendant and adduced in evidence by him, that the 2nd Defendant hired the public light bus and was "acting as an independent contractor and was driving the said public light bus on a journey for his own purpose and benefit." 16. The relationship between the defendant to is, as I understand it, a common contractual relationship within Hong Kong and has important consequences as to when owners of public light buses and taxis may be liable for the activities of persons driving pursuant to a properly devised, or purported contract of hire. 17. The 1st Defendant is registered owner of public light bus AY7421. He told us "he left the management" with Leung Lee Co. including driver. The Leung Lee Co. found a driver who hired the vehicle. No wages were paid and the return to the owner was $80 per shift. 18. The owner paid Transport Department licence fees and also the insurance premium for the vehicle and was responsible for maintaining the vehicle. 19. As owner his name and address must be publicly displayed. This was conceded by the owner in evidence and of course was an obligation imposed by regulation 137C(b) of The Road Traffic (Construction and Use) Regulations Cap. 220(A47). 20. Although the owner obtained the insurance policy personally he left the policy with the Leung Lee Co. I infer from this in order to handle claims. In fact it was stated in evidence all the owner's correspondence with the insurance company was handled by Leung Lee Co. 21. The owner was not aware who would drive his public light bus as there were many people about at the time of changing shifts. 22. The 2nd witness Mr. LIU Hung was manager of the Leung Lee Co. explained that the received $200 per month management fee. 23. It was clear that the driver was entitled to choose his own route and time of driving within the perimeters set out by Leung Lee, namely morning to 2 p.m. The driver could take his rest stops at his own option and he paid for fuel. He collected moneys and after paying hire and fuel costs retained the balance of the takings. 24. Mr. Liu agreed during cross-examination that he reported accidents to the insurance company concerned. 25. I have been referred to Ormerod v. Crosville Motor Services(1) followed in Vandyke v. Fender(2) with regard to the "interest principle". However it was made clear in Morgans v. Launchbury(3) words such as no "interest or concern therefore no agency" in the earlier judgment referred to supra is no warrant for transferring a negative into a positive test (Lord Wilberforce at page 609 (A.E.R.)). 26. It was held that in order to fix liability on the owner of a car for the negligence of its driver, it was necessary to show either that the driver was the owner's servant or that at the material time the driver was acting on the owner's behalf as his agent. It was necessary to show that the driver was using the car at the owner's request, express or implied or on his instructions and was doing so in performance of the task or duty thereby delegated to him by the owner. The fact that the driver was using the car with the owners permission and the purpose for which the car was being used was one in which the owner had an interest or concern was not sufficient to establish vicarious liability. 27. I think it necessary to consider the facts in Morgans v. Launch-bury. Mrs. Morgans had a Jaguar soloon registered in her name. However this was regarded as being the family car belonging to both she and her husband. The husband regularly used the car to drive to and from work and occasionally after work he would stay late to have a drink before returning home. The wife expressed concern about this but her husband assured her that if he was unfit to drive he would get a friend to drive him home. On the evening giving rise to litigation, the husband went out drinking. He telephoned his wife to say he would not be returning home and visited a number of public houses and consumed alcohol. At some stage realizing it would be unsafe for him to drive he asked one Cawfield to drive and gave Cawfield the ignition key. At the last public house which they visited three persons were offered a lift in the car by Cawfield and soon after that Mr. Morgans got into the back of the car and fell asleep. Cawfield drove off not in the direction of Morgans' home but in the oppoeite direstion and shortly after as a result of his negligent driving the car collided with a bus, both Morgans and Cawfield receiving fatal injuries and the other three persons sustaining personal injury. There was no question on the facts, of the wife knowing that Cawfield would or might drive the car that evening and to her he was merely an acquaintance. The action was brought against Mrs. Morgans claiming that she as owner of the car was vicariously liable for Cawfield's negligence. 28. In my opinion it is important to consider the facts of any case in relation to the law because as stated by Viscount Dilhorne in Morgans Case, page 613:
His Lordship considered there was no evidence to show when Mr. Morgans drove the car from his home to where he worked and when he drove home that evening that he was acting as his wife's agent.
29. In the instant case the following points are germane. 1. The 2nd Defendant was driving the car at the 1st Defendant's request. Such request being communicated to the 2nd Defendant by Leung Lee Motor Co. to whom management had been delegated by the owner. This is in sharp contrast to Cawfield driving Mrs. Morgans' motor car, clearly not at her request. 2. The relationship between the 1st and 2nd Defendant was a business relationship whereby pursuant to contract the 2nd Defendant drove for the 1st Defendant. Moneys changed hands at the rate of $80 per shift with various responsibilities for repair costs, licence fees and insurance premiums being the owner's responsibility and fuel costs the driver's responsibility. The choice of routes of course being the driver's responsibility. 3. The 1st Defendant's relationship to the 2nd Defendant is evidenced publicly by his name and address appearing on the door of the vehicle, as stated in evidence, and of course the 1st Defendant was obliged to publicly display his name. The 1st Defendant embarked upon his relations with the 2nd Defendant knowing this to be the position. I have no doubt this relationship could be terminated at will by the 1st Defendant whereas in the Morgans v. Launchbury situation the relationship subsisting between Mr. Morgans and Cawfield could not be terminated by the wife, as at the time she had no knowledge of that particular relation-ship. 4. On the facts of the instant case there is no question of the driver being on a "frolic of his own" whereas in Morgans v. Launchbury it was quite clear that Cawfield was on a "frolic of his own" and in the strict legal sense it is highly probable that Mr. Morgans could have been construed as being in the same position. 30. My approach in assessing the situation in the instant case, upon its facts is reinforced by the decision Jor Sau Tong Medicine Co. v. Lo Yiu & Karn Sun,(4) a decision of Judge Huggins, as he then was, where after careful analysis of the facts it was held that the 1st Defendant was the agent of the 2nd Defendant. 31. Accordingly I have no doubt that in the instant case the 2nd Defendant was driving as the 1st Defendant's agent and that this has been proved by the plaintiffs upon the balance of probabilities. Accordingly both plaintiffs are entitled to judgment as against the 1st and 2nd Defendants jointly and severally as follows:-
Representation: (1) [1953] 2 A.E.R. 753 (2) [1970] 2 Q.B.; 1972 A.E.R. 335 (3) [1972] 2 ALL E.R. 606 (4) 1960 D.C.L.R. p.141 |