Pateco Ltd v. Chan Cheuk Lam
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DCCJ 4434/2005 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO. 4434 OF 2005 ____________ BETWEEN
____________ Coram : Her Honour Judge H.C. Wong in Court Date of Hearing : 14th November 2006 Date of Handing Down Judgment : 22nd December 2006 __________________ JUDGMENT __________________
1.The Plaintiff claims against the Defendant for loss and damage caused to its car registration no. DG 312 in the sum of $617,832.90 at a collision on 29 August 2003. The Plaintiff claims that the collision was caused by the negligence of the Defendant who was the driver and owner of taxi registration no. JR 208. 2.The Defendant denies he is liable to the Plaintiff. He counterclaims against the Plaintiff under vicarious liability for the negligence of the driver of the Plaintiff’s car, Ng Wai Fong, for the damage and loss done to his taxi and for the loss of rental for the period it was put out of service in the sum of $61,157.00. The Plaintiff’s Case 3.The Plaintiff’s witness Mr. Ng Wai Fong gave evidence on behalf of the Plaintiff. Mr. Ng was employed as a driver by the Plaintiff. His duty was to drive the company’s vehicle registration no. DG 312 used by his boss Mr. and Mrs. Au Yeung. 4.On the day of the accident, 29 August 2003, shortly before 3 p.m., he received a call from Mrs. Au Yeung instructing him to pick her up at Pacific Place. He took the vehicle from the Leighton Centre car park and drove into Canal Road East at around 3 p.m. He found the traffic to be light on Canal Road East. He took the middle lane with the intention of turning into Queen’s Road East at the Leighton Road junction (“the junction”). He claimed the traffic lights at Canal Road East was green when he was approaching the junction about two car spaces from the traffic lights. He claimed he had looked at the pedestrian crossing watching out for pedestrians on the crossing in front of Canal Road East before he crossed the junction. He admitted he did not look at the traffic on his right from Leighton Road before crossing the junction. Soon after he drove onto the yellow box at the junction, he claimed the front right corner of his car was hit by a car from the right. 5.Mr. Ng admitted before he crossed the traffic lights on Canal Road East, his view of the Leighton Road East traffic was blocked by the large flyover support beam on the right. The Defence Case 6.According to the evidence of the Defendant, taxi driver Chan Cheuk Lam, his taxi had stopped at the traffic lights in front of the Leighton Road and Canal Road East junction. There was a green public light bus on the left hand lane which had also stopped at the lights. When the lights turned green, he crossed into the yellow box, on having noticed the PLB on his left had suddenly braked and stopped, he too stopped his taxi. Unfortunately, his taxi was hit on the left front by the Plaintiff’s vehicle. 7.He claimed he swerved to the right trying to avoid the Plaintiff’s vehicle but the force of the Plaintiff’s car was so strong that his taxi was pushed by the Plaintiff’s car into the west bound traffic lanes on Leighton Road with its front facing the Craigengower Cricket Club adjacent to the Sports Road before it stopped. 8.Mr. Chan claimed the driver of the Plaintiff’s vehicle was travelling at over 70 m.p.h. He admitted that the flyover support beam had block his view of the traffic from Canal Road East, he did not see the Plaintiff’s vehicle approaching the junction before he crossed into the yellow box when the traffic lights turned green in his favour. 9.Mr. Chan agreed that he had to call the police after the collision for he was trapped in the taxi. He was released from the wreckage and taken to hospital afterwards. He further claimed Mr. Ng called him up on the telephone offering $50,000 as compensation to settle the costs of the repair to his taxi which he had accepted, but Mr. Ng had failed to pay up. 10.The Defendant counterclaims against the Plaintiff for:
Findings 11.There were two persons involved in this accident, both gave evidence on the cause of the collision. They are the Plaintiff’s witness Mr. Ng who was the driver of the Plaintiff’s car DG 312 and the Defendant Mr. Chan who was driving his taxi JR 208 on the day of the accident. Neither admitted to have been driving against the traffic lights at the junction. 12.In addition to hearing evidence from the witnesses, I have been greatly assisted by the photographs taken at the scene by the police after the accident and by the Defendant’s solicitor Miss Koon on 11 November 2006. 13.I agree with Defence Counsel, Mr. Herbert Leung, that one of the drivers must be driving his vehicle against the traffic lights when he crossed the road junction. The question is whether it was the Plaintiff’s driver Mr. Ng or the Defendant. 14.After careful consideration of the sketches on the locus in quo, the position of the traffic lights on the Canal Road East and Leighton Road, it is clear Mr. Ng’s vehicle had a longer distance to travel to reach the collision location at the junction. Mr. Ng admitted he did not stop at the traffic lights because they were in his favour. This means that he would in normal circumstances not have to slow down his car when he crossed the junction, he said he was travelling at 40 – 45 m.p.h. 15.On the other hand, Mr. Chan claimed he had stopped at the traffic lights in front of the junction because the traffic lights were against him. He had just started to move his taxi when the lights turned green but had to stop his car when he saw the PLB on his left had braked suddenly. From picture 6 on P.6 of Miss Koon’s photographs, one can see the car on the left lane had virtually blocked the left side view of the car on the right lane and the flyover beam effectively blocked the two driver’s view of the traffic from Canal Road East. The left lane driver may have a slightly better view of the traffic from Canal Road East, it being closer and in front of the vehicle on the right lane. 16.If Mr. Chan had stopped in front of the traffic lights, he could not have travelled at a high speed having just started to move forward when the lights turned green. 17.The photographs on the damages to both cars showed the force of the impact and indicated the speed the Plaintiff’s car must have been more than Mr. Ng claimed at 40 – 45 m.p.h.. 18.I find Mr. Chan’s evidence carried a ring of truth to it, particularly because he was able to give such details as the green PLB on the left hand and his braking his taxi when he saw the PLB had suddenly stopped. The damage to his car is also consistent with his swerving the taxi to his right trying to avoid the collision. The police photographs showed coloured debris on the ground in front of the Plaintiff’s vehicle at the junction after the collision, this indicates the debris were left by the Defendant’s taxi in front of the Plaintiff’s dark colour vehicle. 19.Based on the aforesaid, I am satisfied that the driver who had driven against the traffic signal was Mr. Ng. He probably found the traffic in front of him at the junction to be light as there were no pedestrians crossing Canal Road East, he drove through the junction even though the lights had turned red by the time he reached the junction. As his view of the traffic on Leighton Road on his right was blocked by the flyover beam, he failed to see the two vehicles at Leighton Road. Hence, the collision took place. 20.I also accept that soon after the accident Mr. Ng had called up Mr. Chan offering to pay him $50,000 because he knew he was in the wrong. 21.I find the Plaintiff had failed to show that Mr. Chan was negligent and had caused the accident. I also find Mr. Chan had successfully proved his case against the Plaintiff. On this basis, I dismiss the Plaintiff’s claim against the Defendant. I allow the Defendant’s counterclaim. Quantum 22.I am satisfied the Defendant had suffered a loss of $61,157 which included $48,007 repair cost to the taxi, surveyor’s fee of $750, and loss of 20 days rental at $12,400. The Defendant’s loss is assessed at $61,157. Interests 23.Interest at ½ judgment rate from the date of counterclaim to the date of judgment, thereafter at full judgment rate. Costs 24.Costs to the Defendant to be taxed if not agreed with certificate for counsel. Should the parties failed to make representations on costs within 14 days, the order will be made absolute.
Mr. Richard Leung instructed by Messrs. Tang & Lee for the Plaintiff. Mr. Herbert Leung instructed by Messrs. Kenneth C.C. Man & Co. for the Defendant |