Hui Kai-shun and Others v. Wai Kwok-chuen and Another

HCA004493/1978

Negligence - vicarious liability - sale of car conditional upon it being found satisfactory - intending buyer negligent when car in his possession - whether absent owner jointly liable - Malaysian authority that he is, not followed.

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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Coram: Hon. Fuad, J.

Date of Judgment: 6th May 1981.

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JUDGMENT

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1. On the 22nd July 1977 an accident occurred on Clearwater Bay Road when a Fiat 850 sports car driven by Mr. Wong Yung Kit and owned by Mr. Wai Kwok Chuen collided with metal railings that had been set by the appropriate authority round a sharp bend in the road. Mr. Wai was not in the car at the time but Mr. Hui Kam Fai, Miss Yip Sau Chun and two other passengers were. Mr. Hui died as a result of his injuries soon after his admission to hospital despite every effort to save his life, and Miss Yip was fairly severely injured. Two actions were instituted against the owner Mr. Wai (1st defendant) and the driver Mr. Wong (2nd defendant) and they were consolidated pursuant to an order made by the Registrar.

2. In H.C.A. 1978 No. 4493 the father, mother and three sisters of the deceased, Mr. Hui Kam Fai, sue the defendants under the Fatal Accidents Ordinance (Cap. 22). In H.C.A. 1979 No. 5427 Miss Yip Sau Chun claims damages against the defendants for her personal injuries.

3. Damages in respect of both actions have been agreed and two issues remain. Firstly, whether the 2nd defendant was negligent and secondly, if he was, whether the 1st defendant is vicariously liable. Inevitable accident is pleaded as a defence to each action and Counsel have agreed that the burden of proof is on the defendants on the issue of negligence.

4. The plaintiffs, in the event, called no witnesses to the accident and their only witness was a vehicles inspector, Mr. Cheung Yiu Wing. He told the Court that he had examined the car sometime after the accident and his report is one of the agreed documents. Agreed photographs show that the vehicle was very badly damaged indeed and it really is a miracle that anyone escaped alive. Mr. Cheung's inspection revealed that the nearside front tyre was entirely without treads ("bald" in the terminology of the report) and both rear tyres were "bald at centre tread pattern". The 2nd defendant pleaded guilty on the 22nd February 1978 to a charge in respect of the three defective tyres contrary to reg. 104(1) of the Road Traffic (Construction and Use) Regulations and was fined $400.

5. Relying on his experience, Mr. Cheung gave it as his opinion that if a car had been travelling round the bend in question at about 30 m.p.h., the worn tyres would not have affected the vehicle's manoeuvrability. However if the car had been travelling at about 35 m.p.h. and the brakes had been applied, there would be loss of control, but he did not think that that speed was too fast, in normal conditions, for the particular bend.

6. The accident happened at Mang Kung Uk and there are good photographs of the sharp right hand bend as a driver travelling towards Kowloon would see it. They also show the extensive damage done to the first 4½ metres or so of the metal railings. The rough sketch plan prepared by the police tells us that there were brake marks extending to about 6 metres before the railings begin and that the car ended up on the edge of the opposite side of the road against the hillside, about 20 metres further on. The car's battery had fallen out and was found, again on the opposite side of the road, about midway between the place where the railings begin and the car came to its final halt.

7. The 2nd defendant, who happens to be a police constable, gave the following account of the accident. He was driving the car, with his four passengers, at about 8.20 p.m. that night along Clearway Bay Road towards Tai 0 Mun. He missed the turning he had intended to take and so he did a "U turn" and was heading towards Hiram's highway. Before he reached the bend at Mang Kung Uk where the accident took place, he was driving at a speed of between 33 - 35 m.p.h. As he approached the corner he changed down and reduced his speed to about 28 - 30 m.p.h. The car was then going slightly down hill. He suddenly realised that the car was skidding and was unable to control its direction. He tried to swerve to the right and applied his brakes but the car hit the railings, veered across the road and came to a stop against the side of the hill. There was nothing he could do to prevent the accident. As he was trying to control the car, he said, it seemed to him that there was sand on the road and that the car was skidding on a sandy surface. He did not see the sand, but felt it.

8. In my view there is the clearest possible evidence of negligence on the part of the 2nd defendant. The road was clear; visibility was good; there was very little traffic on the road and no other vehicle was nearby. He had only just driven on that part of the road in the opposite direction (before he realised he had missed his turning) and was therefore well aware of the nature of the bend. He was approaching a very sharp bend with double white lines painted down the centre. On the face of it, if he had been driving with ordinary care, he could have negotiated the bend without the slightest difficulty. In these circumstances in my judgment it is simply not enough for the defendant to say that he felt that he was skidding on sand to rebut the onus that is cast upon him. When one looks at the photographs of the damage done to the railings and to the car, and takes into account the fact that the car first hit those solid railings and then travelled a distance of about 20 metres before coming to a stop against the hill, the irresistible inference is that he was driving far too fast in all the circumstances. Even if there had been some sand on the road (and I did not find the defendant at all convincing on this point) I have no doubt that a driver using proper care in approaching a bend of the kind in question would have got round it quite safely. I therefore find negligence established on evidence, I am bound to say, which goes well beyond the balance of probabilities.

9. I now turn to the remaining issue in these actions: whether the 1st defendant, as the registered owner of the vehicle, is to be held jointly responsible for the negligence I have found to be proved. Mr. Wai, the 1st defendant, told the Court that he and the 2nd defendant had been school-mates and had remained close friends after leaving school. About 4 days before the day upon which the accident occurred, he had agreed to sell his car to his friend for $1,000 and the understanding was that he would be paid at the end of the month when Mr. Wong received his salary. Since Mr. Wong was not familiar with the car's controls, he had sat next to him on a short demonstration drive, after which he had parted with possession of it. He had allowed Mr. Wong to take the car over before being paid because of their friendship and because he no longer needed it in view of the fact that by that time he had the use of a company car. Mr. Wong confirmed that these were the circumstances in which he had taken over the vehicle and adamantly denied that the sale was conditional on his being satisfied with the car's performance after driving it for a time.

10. Mr. Wong was also injured in the accident and while he was in hospital, he gave a statement to a police sergeant about the accident. The sergeant asked him some questions and the final question and answer (as translated) was as follows:

11. In cross-examination he admitted that the question and answer had been correctly recorded and that his answer was true (save that he had in fact only had the car for about 3 - 4 days before the accident) but persisted in saying that since the car was so cheap, he had quite made up his mind to buy it whatever faults might later have been revealed. Mr. Wong certainly did not impress me as a good witness but it is possible that since nearly four years have now elapsed his memory is at fault. It does seem to me that what he told the police sergeant so soon after the accident is more likely to have been the truth about his attitude to the transaction. Mr. Wai first told the Court that when he parted possession with his car he did not know whether Mr. Wong had finally decided to buy it or not, but later said that he did realise that his friend had already made up his mind to buy the car. It may very well be that the two friends did not reach a very precise arrangement in this matter but on the evidence I find it more likely than not that it was indeed understood between them that if Mr. Wong did not want to buy the car by the time he had the money to pay for it, he could go back on the deal.

12. Mr. Barretto, for the plaintiffs in both actions, submits that on the authority of Wong It Yong v. Lim Gaw Teong and another 1 M.L.J. 79 (a case which is noted in Charlesworth on Negligence, 6th edition, para. 110) the 1st defendant should be held vicariously liable for the 2nd defendant's negligence. In that 1968 decision of the Federal Court of Appeal of Malaysia, a man wanted to buy a car from a woman at a price which was agreed. Before completing the deal the woman wanted to test-drive the car for one or two days and the woman let him do so. During those days the man had an accident and the trial judge found negligence against him; and also held the woman to be vicariously liable. On appeal, the Federal Court reviewed the authorities (including Hewitt v. Bonvin [1940] 1 K.B. 188 and Ormrod v. Crosville Motor Services Ltd. [1953] 2 All E.R. 753) and upheld the decision of the trial judge. At page 81 Suffian F.J. had this to say -

13. In Hewitt v. Bonvin [1940] 1 K.B. 188 a father had on previous occasions allowed his sons to drive his car. As the result of a certain incident he forbade them ever to drive it again without his own or their mother's permission. When his father was away from home, one of the sons sought and received permission from his mother to use the car, and drove two girl friends to their homes. On the way back he drove negligently and a friend who had gone along for the trip was killed. Neither parent knew the girls and it was no concern of either that they should be driven to their homes. The Court of Appeal reversed the trial judge's decision and held that since the son was not driving the car as his father's servant or agent or for his father's purposes, the father was not vicariously responsible. At page 191 MacKinnon L.J. put the test in this way -

"If A suffers damage by the wrongful act of B, and seeks to say that C is liable for that damage he must establish that in doing the act B acted as the agent or servant of C. If he says that he was C's agent he must further show that C authorized the act. If he can establish that B was the servant of C the question of authority need not arise. A master is jointly and severally liable with his servant for any tort committed by the servant in the course of his employment. If in this case the plaintiff is to make Bonvin the father liable for the damages he claims he must establish that the son was driving the car as the servant of his father, and in the course of his employment."

After dealing with concept of temporary employment as a servant without remuneration, he said, at page 192 -

"As I see it, the plaintiff, to make the father Bonvin liable must establish (1.) that the son was employed to drive the car as his father's servant, and (2.) that he was, when the accident happened, driving the car for the father, and not merely for his own benefit and for his own concerns."

14. In the same case, du Parcq L.J. pointed out that it was plain that ownership of a car could not of itself impose any liability on the owner, although if it were proved that a vehicle was negligently driven, in the absence of any further information the Court could infer that the negligent driver was either the owner himself, his servant or agent. However, where the facts were known no such inference could be drawn. Even when the driver of a car was not the owner's servant, the owner would nevertheless be liable for his negligence if it were proved that at the material time he had authority, express or implied, to drive on the owner's behalf. Such liability depended not on ownership but on the delegation of a task or duty.

15. In Ormrod v. Crosville Motor Services Ltd [1953] 2 All E.R. 753, the facts were as follows. The owner of a motor car who was attending the Monte Carlo Rally arranged that a friend should join him there driving the car from England. The friend was to convey some of the owner's luggage but was free to choose his route and timing, and to visit his own friends in France on the way. While on the direct route to the coast to cross to the Continent there was an accident for which the friend was partially responsible. The Court of Appeal affirmed the decision of the trial judge in finding the owner vicariously liable for the friend's negligence. After reviewing the facts, at p.754 Singleton L.J. said -

"It has been said more than once that a driver of a motor car must be doing something for the owner of the car in order to become an agent of the owner. The mere fact of consent by the owner to the use of a chattel is not proof of agency, but the purpose for which this car was being taken down the road on the morning of the accident was either that it should be used by the owner, the third party, or that it should be used for the joint purposes of the male plaintiff and the third party when it reached Monte Carlo. In those circumstances it appears to me that the judgment of Devlin, J., that at the time of the accident the male plaintiff was the agent of the third party was right, and the third party's appeal on that head should be dismissed."

And upon the same page begins the judgment of Denning L.J. (as he then was) which I read out in full -

"It has often been supposed that the owner of a vehicle is only liable for the negligence of the driver if that driver is his servant acting in the course of his employment. That is not correct. The owner is also liable if the driver is his agent, that is to say, if the driver is, with the owner's consent, driving the car on the owner's business or for the owner's purposes. In the present case the driver was, by mutual arrangement, driving the car partly for his own purposes and partly for the owner's purposes. The owner wanted the car driven to Monte Carlo; the driver wanted to go with his wife to Monte Carlo, and he intended to visit friends in Normandy on the way. On this account he started two or three days earlier than he would have done if he had been going solely for the owner's purposes. Counsel for the third party says that this should exempt the owner from liability for the driver's negligence, because the accident might never have happened if he had started later. He says that the owner would not have been liable for any negligence of the driver on the trip from Calais to Normandy, and he should not be liable for negligence due to the early start. I do not think that this argument is correct. The law puts an especial responsibility on the owner of a vehicle who allows it to go on the road in charge of someone else, no matter whether it is his servant, his friend, or anyone else. If it is being used wholly or partly on the owner's business or for the owner's purposes, the owner is liable for any negligence on the part of the driver. The owner only escapes liability when he lends it or hires it to a third person to be used for purposes in which the owner has no interest or concern: see Hewitt v. Bonvin. That is not this case. The trip to Monte Carlo must be considered as a whole, including the proposed excursion to Normandy, and as such it was under taken with the owner's consent for the purposes of both of them, and the owner is liable for any negligence of the driver in the course of it. I agree that the appeal should be dismissed."

16. Another case cited to me was Klein v. Caluori [1971] 2 All E.R. 701. There the defendant's car was taken and driven without his consent by a friend. The friend later telephoned the defendant and told him what he had done, whereupon he was ordered to return it in no uncertain terms. While returning the car he met with an accident. Lyell J. held that the defendant was not vicariously liable for his friend's negligence. He stated the general principle in this way (at p.702) -

"What is said by counsel for the plaintiff, putting the case quite shortly, is this. Mr. Freshwater, having been told in firm terms to bring the car back, was driving the car for the purposes, or at any rate partly for the purposes, of the defendant so as to make him the defendant's agent. In my judgment, that submission is bad in law. In order to become liable for the driving of a car, the owner or bailee of the car who has the general control of it, and who allows somebody else to drive it, must either have authorised that other person to drive wholly or partly for the purposes of the owner or bailee, as the case may be, of the car. A mere permission to drive a car will not of itself constitute the driver the agent of the person who grants permission and who has the right either by way of ownership or as a bailee to control a car. It is not enough that such a person gives such permission to another to make that other the agent of the grant or permission liable for his acts."

He held that the fact that the return of the car was in the owner's interest did not make the journey into one which was any the less solely for the purposes of the borrower.

17. My understanding of the authorities is that they do not warrant a proposition that there is a special rule applicable to the lending and borrowing of motor vehicles. I must not permit the spectre of possible insurance-cover problems, which I sense, to cloud my vision. It seems to me that what the authorities say is that to make an owner who is not in the vehicle at the time it is negligently driven vicariously responsible for that negligence, it must be established either that at the material time the driver was the owner's servant acting in the course of his employment (pro tempore service is sufficient) or that the driver was using it wholly or partly for the owner's purposes within the broad ambit of the law of agency. There appears to be no justification for extending these principles to embrace a situation in which neither the master and servant, nor the principal and agent, relation ship exists (however widely such relationships are defined) by importing notions of "interest or concern" divorced from either of the limbs upon which vicarious liability depends. It is true that Lord Denning used that expression in the course of his judgment in Ormrod v. Crosville Motor Services Ltd. but he did so in a negative sense. The true test, in my view, was stated by him earlier in the following positive proposition: "The owner is also liable if the driver is his agent, that is to say, if the driver is, with the owner's consent, driving the car on the owner's business or for the owner's purposes."

18. I accept that when the accident happened the 2nd defendant was driving his friends out to have a meal. The 1st defendant knew nothing about the journey which had such an unhappy ending. There is no evidence that he even knew any of the 2nd defendant's passengers. He had parted with possession of his motor car some days earlier. He might never have taken it back. In such circumstances, in my judgment, to hold the 1st defendant vicariously responsible for the 2nd defendant's negligence would be to do violence to the concept of implied agency. He might well have had an "interest or concern" in selling his car but in my view this is insufficient to fix him with liability. Even in an attenuated sense it cannot be said that he had delegated a task or duty to his friend which was being performed when the accident occurred. It will be seen that in reaching this conclusion I have not followed the decision of the Malaysian court in Wong It Yong v. Lim Gaw Teong and another. I declined to do so because I felt, with the utmost respect to the distinguished judges who made up that court, that it had been wrongly decided.

19. The plaintiffs' claims in both actions against the 1st defendant are therefore dismissed. It will be recalled that damages have been agreed and there will therefore be judgment in favour of the respective plaintiffs in each action, against the 2nd defendant, as follows -

Representation:

Mr. Ruy Barretto (D.L.A.) for Plaintiffs.

Mr. Lester Kwok (Johnny T.K. Cheng & Co.) for Defendants.