Chan Yui Fung v. Ching Kwok Hing and Another
Read the full judgment text of HCA 2451/1975 on BabelCite. This High Court CFI judgment.
1. The plaintiff sues the defendants for damages for negligence arising out of a fatal traffic accident which occurred on the 1st July, 1974, and in which a man was knocked down and killed by a motorcycle. At the time of the accident the second defendant was the driver of motorcycle AY 1747 which was the property of the first defendant. Judgment has been signed against the second defendant in default of appearance and the only point at issue before me is whether the first defendant could be liab
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HCA002451/1975 IN THE SUPREME COURT OF HONG KONG ORIGINAL JURISDICTION ACTION NO. 2451 OF 1975 -----------------
Coram: Briggs, C.J. Date of Judgment: 4th February, 1976. ----------------- JUDGMENT ----------------- 1. The plaintiff sues the defendants for damages for negligence arising out of a fatal traffic accident which occurred on the 1st July, 1974, and in which a man was knocked down and killed by a motorcycle. At the time of the accident the second defendant was the driver of motorcycle AY 1747 which was the property of the first defendant. Judgment has been signed against the second defendant in default of appearance and the only point at issue before me is whether the first defendant could be liable in the circumstances of the case. 2. The first defendant was the owner of the motorcycle and paragraph 2 of the Statement of Claim avers that the second defendant who, as I have said, was the driver of the motorcycle at the time of the accident, was the 'servant or agent of the first defendant'. 3. Evidence was called by both sides but the second defendant was not called as a witness before me. I was told that he has not answered to a subpoena and his whereabouts are unknown. 4. The evidence called by the first defendant showed that a Mr. Ng, who himself also gave evidence, borrowed the motorcycle AY 1747 from the first defendant in order to make a report at Bayview Police Station about the loss of his own driving licence. At the time the second defendant was present and it is not denied that the second defendant actually rode the motorcycle with Mr. Ng as his pullion passenger towards the Bayview Police Station. It was during that ride that the accident occurred. The first defendant and Mr. Ng were both emphatic that it was never suggested to the first defendant, the owner of the motorcycle, that the second defendant should be permitted to drive the motorcycle. This is hardly surprising when it is realized that evidence was also given to the effect that the second defendant was only in possession of a provisional or learner's licence. 5. It was agreed by the parties that a statement made by the second defendant on the day following the date of the accident should be admitted into evidence. The relevant portion of that statement reads as follows:-
6. In the circumstances, the plaintiff has been unable to establish that the second defendant was acting as the agent or servant of the first defendant when the accident occurred. The portion of the statement to which I have referred above does not assist the plaintiff because nowhere does it even suggest that the first defendant permitted the second defendant to drive his motorcycle. And even if Mr. Ng agreed that the second defendant should drive him on the motorcycle - which I do not for one moment believe, there is no evidence that the first defendant permitted this. I accept the evidence of the first defendant and Mr. Ng. In my view they were truthful and unprejudiced witnesses. 7. In the circumstances, there must be judgment for the first defendant with costs. The plaintiff's costs are to be taxed under the Legal Aid Regulations. The case is remitted to the Registrar to assess the damages payable by the second defendant.
Representation: H.Y. Leung (K.B. Chau & Co.) for Plaintiff. A. Hoo (Deacons) for 1st Defendant. |
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