Yeung Shui Sun v. Cheng Chi Keung and Another

HCA001103/1994

1994, No. A1103

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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Coram: The Hon. Mr. Justice Kaplan in Court

Date of hearing: 4 July 1994

Date of judgment: 4 July 1994

Date of handing down reasons for judgment: 18 July 1994

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J U D G M E N T

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1. The Plaintiff brings the present proceedings against the Defendants in negligence for damages for personal injuries. The quantum of damages were agreed to be HK$462,000 without taking into account E.C.C. payment at HK$62,000. The Defendants dispute liability and further argue that the Plaintiff had contributed to the accident in which he sustained injuries.

2. The accident occurred on 19 February 1992 at a bend on Shek O Road. It was a two-way road with one lane in each direction, divided by double white lines. The relevant section of the Shek O bound lane was cordoned off for the performance of some road works. All traffic therefore had to travel on the Chai Wan bound lane under the control of a manually operated signal system.

3. Sometime prior to the accident, the Plaintiff, who was the foreman, and his co-workers were working at the site area, only to be cut short by a heavy downpour. A motorized mud-roller which weighed about a ton was therefore left, as the Plaintiff and one of his co-workers testified, near to the double white lines but within the work site which was demarcated by traffic cones placed along the edge of the white line next to the Shek O bound lane. Both witnesses said that the engine of the mud-roller had not been ignited and that the roller itself was secured by stones to prevent it from slipping on the slanting road.

4. All the workers, but for the Plaintiff, sought shelter from the rain by staying in their light goods vehicle parked further down the Shek O bound lane within the cordoned off area. The Plaintiff however took cover by standing at the rear of that light goods vehicle the hatch door of which was opened to form some sort of canopy.

5. At about this time a dump truck driven by D1 was travelling along the Chai Wan bound lane but heading towards Shek O. No criticism is raised on this since the dump truck was indeed on the right side of the road under the signal system in operation. While the dump truck was negotiating the bend, its mud guard on the front nearside rear wheels hit the mud roller which was thus set in motion and rolled forward 7 to 10 feet and hit the Plaintiff's thigh.

6. Identity is not in issue as the 1st Defendant gave evidence and admitted that he was the driver of the dump truck at the material time. He appeared to be an honest and responsible person and related the accident to the court with great frankness. He said he was driving slowly at about 5 - 10 kmph when making the turn. Although visibility was somewhat hampered by the heavy rain, he said he was able to notice the mud roller on his left. The only point he raised issue with on the Plaintiff's case was that the mud roller was straddled on the double white lines and partly obstructed his lane. Nevertheless, under cross-examination he admitted that before the collision he had decided that his dump truck could successfully negotiate the pass without touching the mud roller whether or not it protruded into his lane.

7. Despite the care exercised by the 1st Defendant, he did misjudge the situation and his dump truck started the said chain of events resulting in the Plaintiff's injury. I accept the Plaintiffs evidence and that of PW2 to the effect that the roller was not on the 1st Defendant's side of the road.

8. Miss Sze for the Defendants relies on a number of authorities and submits that the Plaintiff contributed to the injury in that the accident could have been avoided one way or another. She suggests that the Plaintiff as a foreman, having previous experience with some careless drivers knocking over traffic cones, should have placed the mud roller closer to the kerb side rather than to the dividing double white lines, or the Plaintiff should have paid attention to the oncoming traffic whilst standing at the rear of the light goods vehicle.

9. The facts of the cases cited were not similar to the present one. I am satisfied, on the balance of probability, that the mud roller was placed within the work site and never protruded into the 1st Defendant's carriageway. Further, and this is unchallenged, the Plaintiff testified that the traffic cones were placed in such a way as to allow sufficient room for double-deckers to pass without hindrance and he recalled that on that day buses did successfully negotiate the turn without touching the mud roller. I find that the Plaintiff was in no way to blame for his injuries which were caused solely by the 1st Defendant's negligence. The Plaintiff is therefore entitled to the total of the agreed damages. There will be judgment against both Defendants for $400,000.

10. The Plaintiff is to have the costs of the action and the Plaintiff's own costs will be taxed in accordance with the Legal Aid Regulations.

Representation:

Mr. John Kerr assigned by D.L.A. for Plaintiff

Miss Sze Kin instructed by Stevenson, Wong & Co. for both Defendants