Lam Man Kwan v. Chak Yee Man and Another
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DCCJ 4435/2005 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO. 4435 OF 2005 -------------------- BETWEEN
-------------------- Coram : Deputy District Judge E. Yip in Court Date of Hearing : 21st – 22nd December 2006 Date of Handing Down Decision : 4th January 2007
_________________ DECISION ________________
Introduction 1.The 2nd Defendant was the owner of a Toyota saloon car KC517 (“Toyota”). He let the 1st Defendant drive it for the 1st Defendant’s own purpose. There was a crash between the Toyota and a BMW saloon car KM5242 (“BMW”). The Plaintiff was the owner of the BMW. The Plaintiff claimed damages arising out of the alleged negligence of the 1st Defendant and the vicarious liability of the 2nd Defendant. The 1st and the 2nd Defendants in turn claimed damages against the driver of the BMW car, namely the Third Party, arising out of the alleged negligence of the Third Party. 2.If we view the location on a sketch plan, the location will look like a clock. From the way each party puts its case, certain facts are not in dispute:
3.There is also no dispute that the car entering the roundabout has to give way to the cars already in the roundabout. The central issue is therefore: Which car was the first to be in the roundabout? Subject to the issue of contributory negligence, the driver of the second car would be negligent in the present case. There was an agreed quantum of damages. 4.After trial, the Plaintiff’s counsel concedes that there is no evidence of vicarious liability against the 2nd Defendant. As such, that part of the claim should be dismissed with costs to the 2nd Defendant, with certificate for counsel, to be paid by the Plaintiff. The Third Party’s case 5.There is only one witness: the Third Party herself. She adopts her statement dated 24 May 2004 to the police (“ her police statement”) and a statement dated 18 March 2006 for the present case (“her witness statement”). as her evidence at trial. 6.On 15 May 2004, at about 8.49 a.m., she was driving the BMW along the slow lane of Shap Pat Heung Interchange of Yuen Long Highway (“the roundabout”). She was at the 6 o’clock position. Her destination was Yuen Long, at the 3 o’clock position. Before entering the roundabout, she stopped at the Give Way lines to observe the traffic. As far as her direct view, her right side mirror check and her shoulder check permitted, there were no cars either on the fast lane or in the roundabout. She entered the roundabout and engaged a speed of 40 kph. As she was passing by an exit, on her left, at the 12 o’clock position, the front right corner of her car collided with the left side body of the 2nd Defendant’s car. It was the first time she ever noticed the presence of that car. Both cars were damaged at the point of impact. Afterwards, both cars swerved and moved on for some distance until they both stopped at last. During the swerve, the Toyota was further damaged in other parts upon hitting the roadside barrier fence. 7.The BMW belonged to the Plaintiff. The 1st Defendant’s case 8.The 1st Defendant does not give evidence. The 2nd Defendant’s Case 9.There is only one witness: the 2nd Defendant himself. He adopts his statement dated 31 May 2004 to the police (“his police statement”) and a statement dated 8 May 2006 for the present case (“his witness statement”) as his evidence at trial. 10.At the material time, he was driving the Toyota along the fast lane at the 6 o’clock position until he stopped at the Give Way lines of the roundabout. He checked and made sure that there were no cars either on the slow lane or in the roundabout. He entered the roundabout and engaged a speed of 40 kph. As he began to exit at the 12 o’clock position, the left side body of his car collided with the front right corner of the Third Party’s car. It was the first time he ever noticed the presence of that car. My findings 11.I have considered the submissions put forward by both parties. 12.Up to the point of collision, the Third Party had been taking a longer route (being on the outer lane of the roundabout) whereas the 1st Defendant had been taking a shorter route (being on the inner lane of the roundabout). If both were traveling at 40 kph, the only reasonable inference must be that while the 1st Defendant was still at the Give Way lines, the Third Party was already in the roundabout as she had a longer route to take to reach the point of collision. 13.Mr. Leung, counsel for the 1st Defendant, seeks to rely on the 1st Defendant’s evidence on his witness statement [para. 3 of C9] of his having reduced the speed to below 40 kph a moment before purporting to exit the roundabout at the 12 o’clock position. He submits that it thereby allowed the Third Party to catch up to collide with the 1st Defendant. However, I understand that in his police statement [E16 – 19], which was made prior to the said witness statement, this allegation of having reduced the speed was not broached. No doubt this matter was crucial to the 1st Defendant’s case. Unfortunately, there is no evidence to account for such a lack of mention. I cannot conjecture whether it was due to an omission on the part of the police officer or himself or other reasons. Besides, if his evidence is correct in that he could not see any other cars until the collision, I see no reason for him to slow down at that juncture. I cannot conjecture the reason. Further, he had not given an estimate of his reduced speed so that one can work out whether the consequential disparity of speed between the cars could or could not possibly allow the Third Party to catch up at the point of collision. 14.I therefore reject this crucial part of the 1st Defendant’s evidence as being unreliable. 15.Mr. Leung submits [para. 24 of his submission] that the Third Party could not possibly have failed to notice the presence of the other car at each juncture before the collision. He submits, therefore, that her evidence is not credible or reliable. I think, however, that the reciprocal argument can be put forward against the 1st Defendant. This submission does not assist the 1st Defendant. 16.I find the Third Party’s evidence credible and reliable. Based on her evidence, I find it proved that from the time the 1st Defendant reached the Give Way lines up to the point of collision, he had failed to keep any or any proper lookout or to have any sufficient regard for the traffic in the roundabout. He failed to make sure that his entry into and exit from the roundabout would not affect or endanger the cars in the roundabout. As a result of his failure to do so, the collision took place. I find him negligent. 17.On the issue of contributory negligence, Mr. Leung submits that the Third Party had failed to notice the presence of the 1st Defendant at some stage before the collision. When I look at the photos taken at the scene [Nos. 3 & 4 of F2, it is clear that the BMW was following a rather sharp bend to the right in the roundabout. I do not think she can be expected to give priority to guard against any sudden or whimsical oncoming cars on her right hand side (which might cut into her lane) instead of focusing on completing the bend at hand. The latter would be her utmost concern for safety at that juncture. I do not find any contributory negligence on her part. Conclusion 18.I give judgment for the Plaintiff against the 1st Defendant. I dismiss the Plaintiff’s claim against the 2nd Defendant. I dismiss the 1st and the 2nd Defendants’ claim against the Third Party. 19.I make an order nisi for the Plaintiff to pay the 2nd Defendant’s costs (with certificate for counsel), and the 1st Defendant to pay the Plaintiff’s and the Third Party’s costs (with certificate for counsel). This costs order shall become absolute after 14 days from today.
The Plaintiff: represented by Ms Julia Lau instructed by Messrs. Tang & Lee, Solicitors. The Defendant: represented by Mr. Herbert Leung instructed by Messrs. Kenneth C.C. Man & Co., Solicitors. |
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