Cheung Kin Kwok Alen v. Lau Kam Chee and Another

CACV 267/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 267 OF 2003

(ON APPEAL FROM HCPI NO. 374 OF 2001)

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Coram: Hon Rogers VP, Le Pichon JA and Sakhrani J in Court

Date of Hearing: 4 June 2004

Date of Judgment: 4 June 2004

Date of Handing Down Reasons for Judgment: 11 June 2004

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REASONS FOR JUDGMENT

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Hon Rogers VP:

1.This was an appeal from a judgment of Suffiad J given on 13 June 2003 for damages for personal injuries. The plaintiff had suffered severe injuries when driving a lorry on the Tai Po Road in April 1998. He is now confined permanently to a wheelchair. He brought this action against his former employer. The judge dismissed the plaintiff's claim. At the conclusion of the hearing of this appeal this court dismissed the appeal with reasons to be handed down in writing, which we now do.

Background

2.The plaintiff was employed by the 1st defendant in December 1997 as a driver cum delivery worker in the 1st defendant's business. That business was concerned in the supply of frozen meat to shops, restaurants and various food outlets. As recorded in the judgment, the plaintiff undertook daily rounds. He set out from the Leader Industrial Centre at around 10 am each day to deliver frozen meat to the 1st defendant's customers in the Shatin and Tai Wai areas and then in Kowloon and finally in the Tsuen Wan area. The meat would have to be collected from various godowns in Tsuen Wan, Kwai Chung and Fo Tan.

3.When going from Shatin or Tai Wai to Kowloon the plaintiff's route would take him via the Tai Po Road. The only other route which he could have taken on the way out was via the Lion Rock Tunnel. The plaintiff was instructed to take the Tai Po Road, as the judge found, because it was the most direct route: if he went via the Lion Rock Tunnel it would take an extra 10 to 15 minutes travelling time as well as incurring the tunnel charges. The return journey was made via the Tuen Mun Tunnel and the plaintiff had no need to use the Tai Po Road when returning to the Shatin area.

4.The accident occurred as the plaintiff was driving down a stretch of the Tai Po Road which was a single lane at the place where it joined the eastbound carriageway of Lung Cheung Road. The judge accepted the plaintiff's evidence that several monkeys suddenly appeared from the hill slope to the right side of his lorry. The monkey in the front came out onto the road and into the path of his lorry on the left side some two or three metres in front of the plaintiff's vehicle. On seeing the monkey, the plaintiff jammed on the brakes and swerved to his left. The lorry then crashed into the barrier on the left side of the downslope. It went through the barrier, down a small sand slope and ended up in the eastbound lane of Lung Cheung Road where it overturned on its side.

5.The plaintiff's claim against the 1st defendant was based on the fact that the 1st defendant did not heed the plaintiff's warning as to the monkeys that were on the Tai Po Road. The plaintiff relies upon the fact that it was well known that there are wild monkeys on this road, to such an extent that the stretch of Tai Po Road before reaching the area of the accident is often referred to as "monkey hill". The plaintiff goes further and says that he warned the 1st defendant both personally and through another employee of the 1st defendant, Mr Yeung Chi, that the monkeys posed not only a danger to ordinary motorists but a specific danger to the plaintiff because he was of a timid disposition and was particularly fearful of hitting and injuring monkeys.

6.The judge accepted the plaintiff's evidence that he had requested the 1st defendant to allow him to use the Lion Rock Tunnel and that the 1st defendant had refused that request for the reasons which have already been mentioned. The judge found the plaintiff to be an honest and truthful witness. Indeed, the judge rejected much of the 1st defendant's evidence and the evidence of Mr Yeung Chi, particularly insofar as they denied that the plaintiff had requested a change of route.

7.The judge approached the plaintiff's claim on the basis that the 1st defendant owed the plaintiff a duty to take reasonable care for the safety of the plaintiff as his employee. In turning to the question of the standard of care to be expected from an employer the judge referred to the judgment of Swanwick J in the case of Stokes v Guest, Keen and Nettlefold (Bolts and Nuts) Limited [1968] 1 WLR 1776 at 1783 where he said:

"From these authorities I deduce the principles, that the overall test is still the conduct of the reasonable and prudent employer, taking positive thought for the safety of his workers in the light of what he knows or ought to know; .... He must weigh up the risk in terms of the likelihood of injury occurring and the potential consequences if it does; and he must balance against this the probable effectiveness of the precautions that can be taken to meet it and the expense and inconvenience they involve. If he is found to have fallen below the standard to be properly expected of a reasonable and prudent employer in these respects, he is negligent."

8.The Judge's decision was encapsulated in paragraph 33 of his judgment where he said:

"33. Applying the facts as found by me to the legal principles stated above, I have come to the conclusion in respect of the following matters :

1. Tai Po Road is a normal ordinary road linking Kowloon with the New Territories constructed and maintained as any other road in the territory;

2. there is no evidence to suggest that a motorist driving along Tai Po Road meets up with or faces any additional hazards or risks over and above the usual and ordinary risks which all motorists would face driving along any other roads in Hong Kong, Kowloon or the New Territories;

3. this is so notwithstanding that it is widely known of the presence of monkeys in the hills over which some part of Tai Po Road runs and there is no evidence before me of any warning signs along Tai Po Road (or any stretch of it) to warn motorists to beware of monkeys;

4. nor are there any statistics before me as to how many accidents involving vehicles were caused or brought about by monkeys;

5. the plaintiff's fear of monkeys running out onto the Tai Po Road does not make Tai Po Road any more different from other roads in the territory;

6. nor can that fear of the plaintiff be any different from the general apprehension which any reasonable motorist should have when driving on any public roads and it is that which puts them under a duty to drive at a safe speed and to keep a proper lookout; and

7. in all the circumstances of the case, it was not unreasonable for the defendant to either insist upon the plaintiff using Tai Po Road to make his delivery or to disagree with the plaintiff's suggestion of using the Lion Rock Tunnel. Accordingly there was no breach of duty by the defendant towards the plaintiff."

9.Whilst not challenging the judge's statement of the legal principles involved, Mr Yau, who appeared on behalf of the plaintiff, criticised the judgment on the basis that the judge had not taken various factors into account. In the alternative it was said that if the judge had taken them into account his decision fell outside the ambit which could be considered reasonable. It was said that the judge had not considered the minimal expense which would have been incurred in allowing the plaintiff to use the Lion Rock Tunnel instead of the Tai Po Road. It was also said that the judge had not taken into account the presence of monkeys that were found on sections of the Tai Po Road. Emphasis was laid on the particular circumstances of this plaintiff in that he was of a timid disposition and that was a matter which would have caused a reasonable employer to permit the plaintiff to incur the extra expense and spend the extra time going through the Lion Rock Tunnel. It was said that the risk of driving along the Tai Po Road was higher than other roads, but particularly so for this plaintiff. In coming to his decision, it was said that the judge did not refer to the statistics of bodies of monkeys which had been found.

10.In my view the judge's decision cannot be faulted. It is clear that the judge did take into account all the circumstances of the case. Indeed, it is clear from sub-paragraph 7 of paragraph 33 of his judgment that the judge did have in mind of the 1st defendant's reason for not allowing the plaintiff to use the Lion Rock Tunnel instead of the Tai Po Road. Furthermore, the judge was well aware of the presence of monkeys on the Tai Po Road but, apart from the fact that their presence was prevalent on stretches of the road other than that at which the accident occurred, there were no statistics showing how many accidents had been caused by the presence of monkeys.

11.Unfortunately, it is one of the hazards of driving in suburban and country districts that animals might stray onto the road. That happens even in urban areas. Those who drive vehicles have to be aware of that and have to be able to cope with situations where that might happen. In many cases the safest course has to be to continue. If the safest course is for the vehicle to continue in its original path the wild animal that has strayed onto the road and into the path of an oncoming vehicle may be killed. It seems to me that the danger posed on the Tai Po Road by the existence of monkey colonies in the vicinity is no worse than the possibility of wild dogs or other animals straying or running on to roadways in other parts of Hong Kong.

12.Hence, not only did the judge take into account the various factors put forward by Mr Yau on behalf of the plaintiff and, in particular, the timidity of the plaintiff, but I do not consider that his weighing exercise of the various factors can be faulted. In the circumstances this court had no alternative but to dismiss the appeal. In doing so the court expressed its undoubted sympathy for the plaintiff for the injuries which he suffered.

Hon Le Pichon JA:

13.I agree.

Hon Sakhrani J:

14.I also agree.

Representation:

Mr Albert K C Yau, instructed by Messrs Lam, Lee & Lai, for the Plaintiff/Appellant

Ms Christina Lee, instructed by Messrs Hastings & Co., for the 1st Defendant/Respondent