Chan Tim v. Kwok Tai Chee

DCCJ014192/1980

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT KOWLOON

CIVIL JURISDICTION

ACTION NO. 14192 OF 1980

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Coram: A.H. Sakhrani, D.J.

Date of Judgment: 8th August 1981

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JUDGMENT

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1. The claim and counterclaim arises out of an accident that occurred on 19th June 1980 involving the Plaintiff's vehicle, motor-car registration number BU6554 (hereinafter called "the Plaintiff's car") and the Defendant's vehicle, motor-car registration number CD218 (hereinafter called "the Defendant's car"). On that day, the Plaintiff was driving his car along Yim Po Fong Street and he wanted to turn into Kwong Wah Street. The Defendant's car was at that time driven by Kwok Yuk Hei and he was travelling along Kwong Wah Street. There was a collision as a result of which both cars were damaged; the Plaintiff's car was more seriously damaged than the Defendant's car. The Plaintiff's car was damaged on the right body of the car whilst the bumper of the Defendant's car was damaged.

2. Both the Plaintiff and the driver of the Defendant's car, Kwok Yuk Hei gave evidence as to what occurred on that day. Needless to say, there is a dispute of fact as to how and where the collision took place.

3. The Plaintiff says that at the material time, around 1.10 p.m. on 19th June 1980, he was driving his car on Yim Po Fong Street. The side of Yim Po Street he was travelling on had 2 lanes and he was on the outer lane. He was travelling at about 10 m.p.h. He slowed down to about 7 or 8 m.p.h. and turned on his right indicator indicating that he wanted to turn right into Kwong Wah Street. He did not give any hand signal. He wanted to proceed into Kwong Wah Street in a southerly direction. The Plaintiff produced a sketch, Exhibit P6, which he drew in the witness box, showing the junction of Yim Po Fong Street and Kwong Wah Street. He also marked in Exhibit P6 the positions, according to him, of the respective cars at the time of collision. It is significant that at the end of Kwong Wah Street where it meets with Yim Po Fong Street, there are broken double white lines on Kwong Wah Street in the lane for vehicles travelling in a northerly direction. There was also a road sign on the opposite side of the road with an arrow pointing to the left indicating to vehicles coming out of Kwong Wah Street in a northerly direction to turn left at the junction.

4. The Plaintiff further says that when he was about to turn into Kwong Wah Street he looked at the traffic coming along Kwong Wah Street in a northerly direction and he saw the Defendant's car when it was still in Kwong Wah Street. He did not pay attention to whether or not the driver of the Defendant's car had made any hand signals or indicator to indicate where it wanted to go. He turned right at the junction and his car was struck on the offside by the Defendant's car. The Plaintiff says that the collision occurred in Yim Po Fong Street when a small part of the front of his vehicle was into Kwong Wah Street. He stopped immediately after the collision and so did the driver of the Defendant's car. The Plaintiff, as I have said, marked in Exhibit P6 the positions, according to him, of the respective cars at the time of the collision. This shows that the Defendant's car was well into Yim Po Fong Street with part of the rear still in Kwong Wah Street.

5. The driver of the Defendant's car, Kwok Yuk Hei, says that at the material time he was driving the Defendant's car along Kwong Wah Street towards Yim Po Fong Street. He was driving at 20 to 25 m.p.h. and about 50 yards before he arrived at the junction of Kwong Wah Street and Yim Po Fong Street, he started slowing down. He says he stopped at the junction in front of the double white lines in Kwong Wah Street. After he stopped, he looked to his right to check the traffic conditions. When he straightened up his face, he says the Plaintiff's car approached the Defendant's car on the offside and "brushed through" the Defendant's car. He says that once the Plaintiff's car "brushed through" the Defendant's car, the Plaintiff's car drove past him into Kwong Wah Street before stopping there. He says that he did not see the Plaintiff's car approach him. In cross-examination, Kwok Yuk Hei admitted that he first noticed the Plaintiff's car when the Defendant's car was struck by the Plaintiff's car. He also agreed that the damage to the Plaintiff's car was as shown in the photographs Exhibit P5.

6. I accept the evidence of the Plaintiff instead of the evidence of Kwok Yuk Hei where their evidence is at variance with each other on how and where the collision took place. I am satisfied on the balance of probabilities that the accident occurred as described by the Plaintiff and not as described by the witness Kwok Yuk Hei. I find the Plaintiff's account more likely and accept that at the time of the collision the positions of the respective cars was as marked by the Plaintiff in Exhibit P6. I also do not think it is likely that the damage to the Plaintiff's car as shown in the photographs Exhibit P5, was caused whilst the Defendant's car was stationary at Kwong Wah Street. It is more likely, as the Plaintiff says and as I so find, that the damage to the Plaintiff's car was caused when the Defendant's car struck the Plaintiff's car as the Plaintiff was turning into Kwong Wah Street. I find that at the time of the collision, the Defendant's car was not stationary but was proceeding out of Kwong Wah Street and was well into Yim Po Fong Street as marked by the Plaintiff in Exhibit P6.

7. It is also significant that, as he himself admitted in evidence, Kwok Yuk Hei first noticed the Plaintiff's car when he was struck. He simply failed to notice the Plaintiff's car before the collision. I find that the Plaintiff did turn on his right indicator whilst still in Yim Po Fong Street indicating that he wanted to turn right into Kwong Wah Street. If Kwok Yuk Hei had been keeping a proper lookout he would have seen the Plaintiff's car and he would have known that the Plaintiff wanted to turn into Kwong Wah Street. But he failed to do so and, continued to drive the Defendant's car out of Kwong Wah Street well into Yim Po Fong Street thereby causing the collision. I am satisfied on the balance of probabilities that the collision was caused by the negligence of the driver Kwok Yuk Hei.

8. However, I am also satisfied that the Plaintiff is partly to blame for the collision, but to a lesser degree than the driver Kwok Yuk Hei. The Defendant's car was well into Yim Po Fong street at the time of the collision with a small portion of the car still in Kwong Wah Street. Yet, the Plaintiff failed to see the Defendant's car coming out of the junction into Yim Po Fong Street. When the Plaintiff first saw the Defendant's car, it was still in Kwong Wah Street. The Plaintiff did not pay attention to whether or not the driver of the Defendant's car gave any hand signals or turned on the indicator to show where it wanted to go. I find that the Plaintiff failed to keep a proper lookout and thus failed to take reasonable care for his own safety thereby contributing to the cause of the collision. On the facts, I find contributing negligence on the part of the Plaintiff to the extent of 30%. I apportion liability at 70% on the part of the driver of the Defendant's car Kwok Yuk Hei and 30% on the part of the Plaintiff.

9. As a result of the collision, the Plaintiff suffered loss and damage. This is pleaded in paragraph 5 of the Particulars of Claim and the Plaintiff has adduced oral and documentary evidence to substantiate the same. That evidence has not been challenged and is uncontradicted. I find the damages proved in the sum of $4,178.10 being $3,928.10 as to the costs of repairs to the Plaintiff's car and $250 for the surveyor's fees. I find these sums to have been reasonably incurred. However, in view of my finding of contributory negligence to the extent of 30% on the part of the Plaintiff, the Plaintiff is only entitled to recover 70% of the sums proved.

10. The driver of the Defendant's car having been found by me to be negligent to the extent of 70%, is the Defendant vicariously liable to the Plaintiff for the loss and damage suffered? Paragraph 2 of the Defence and Counterclaim signed by the Defendant in person and dated 30th January 1981 admits paragraph 2 of the Particulars of Claim save for the allegation that the driver of the Defendant's car was his servant or agent or licensee. Further, paragraph 3 of the same Defence and Counterclaim makes no admissions to paragraph 3 of the Particulars of Claim, save that it admits that on the date pleaded a collision took place between the two cars. By the non-admission, the Defendant puts in issue the allegation in paragraph 3 of the Particulars of Claim that the Defendant's car was at the material time, driven "either by himself or by his servant and/or agent and/or licensee". That being so, the Plaintiff must establish vicarious liability on the part of the Defendant before he can be found liable.

11. The evidence of the driver Kwok Yuk Hei is that he is the son of the Defendant. At the material time, he was on his way to the Kowloon Tong Club for lunch. At the time of the collision he was driving the Defendant's car for his own purposes and not for the Defendant's purposes. He also said that in fact, the Defendant bought the car for him to drive for his own purposes. This evidence is uncontradicted and I accept it.

12. In Hewitt -v- Bonvin and another (1940 1 K.B. 188), a son had permission to drive his father's car. The son wanted the car for his own purposes in order to drive two girl friends home. It was not for the father's purposes. On the way back, through the negligent driving of the son, the car was upset and a passenger was killed. It was held by the Court of Appeal that the son was not driving the car as his father's servant or agent or for his father's purposes, and that therefore the father was not liable for the son's tortious act.

13. In the absence of other evidence, an inference can be drawn from the fact of ownership that the driver was the servant or agent of the owner at the material time (Baroard -v- Scully (1931) 47 T.L.R. 557). In the Privy Couneil case of Rambarran -v- Gurrucharran (1970 1 W.L.R. 556) it was held that where there was evidence that the car was not being used at the material time for the owner's purposes, this was sufficient to rebut the inference. And, as Lord Donovan said in his judgment at page 559 of the report:

"Where no more is known of the facts, therefore, than that at the time of an accident the car was owned but not driven by A, it can be said that A's ownership affords some evidence that it was being driven by his servant or agent. But when the facts bearing on the question of service or agency are known, or sufficiently known, then clearly the problem must be decided on the totality of the evidence."

14. I find that at the material time the Defendant's car was being driven by the Defendant's son Kwok Yuk Hei for his own purposes and not for the Defendant's purposes.

15. I find that, on the facts, the Plaintiff has failed to establish vicarious liability on the part of the Defendant. The Defendant is therefore not liable and I give judgment for the Defendant on the claim. The claim is dismissed with costs to the Defendant.

16. As there is no evidence to support the loss and damage particularised in the Counterclaim, I give judgment for the Plaintiff on the counterclaim. The counterclaim is dismissed with costs to the Plaintiff.

Representation:

Mr. P. Ho of Gallant Y.T. Ho & Co. for Plaintiff.

Defendant in person.