Chan Shui Ying v. Hyfco Travel Agency Ltd

CACV 41/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 41 OF 2008

(ON APPEAL FROM HCPI 1060 OF 2005)

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Before : Hon Cheung, Yuen JJA and A Cheung J in Court

Date of Hearing : 16 October 2008

Date of Judgment : 16 October 2008

Date of Reasons for Judgment : 23 October 2008 

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REASONS FOR JUDGMENT

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Hon Cheung JA :

1.We dismissed the defendant’s appeal at the conclusion of the hearing.  I now give my reasons.

Facts

2.On 23 April 2005 the plaintiff and her husband were amongst a group of Hong Kong tourists travelling on a package tour in Hunan (湖南) organized by the defendant which was a Hong Kong tour operator.   After visiting the residence of Chairman Mao Zedong in Shaoshan (韶山), the plaintiff and her group travelled by coach to Changde (常德).  When the coach was approaching a bend on a road near Ningxiang (寧鄉) it suddenly veered towards the right, crashed onto a slope and overturned.  As a result the plaintiff was thrown from her seat and hit the luggage rack on the top part of the coach.  She sustained serious injuries including an almost complete loss of vision of her left eye; numbness and hyperaesthesia (over sensitiveness) of the left cheek due to the damage of nerve system and a depressed nasal radix fracture and anosmia (loss of smell).  She suffered from post traumatic stress disorder and co-morbid depressive symptoms.

3.The plaintiff sued the defendant for negligence seeking damages for personal injuries.

4.Mr. Recorder Jat S.C. gave judgment for the plaintiff in the sum of $1,540,110.  The defendant appealed on liability.

Was the driver negligent?

5.The only issue in this appeal is whether Mr. Jiang, the driver of the coach, was negligent.

6.The accident happened on a dual carriageway with traffic travelling in opposite directions.  The controversy in this case is whether, according to the defendant’s case on the one hand, the accident happened because Mr. Jiang was trying to avoid a head-on collision with a lorry that was travelling in the opposite direction but which got into the lane of his coach or whether, as according to the plaintiff’s case on the other hand, there was no such lorry at all and that Mr. Jiang crashed the coach onto a slope and overturned when it was travelling at high speed. 

7.In support of the defendant’s case was the evidence of Mr. Jiang himself, one Mr. Seah who was a member of the tour group and Mr. Ip, the tour guide.  Mr. Seah was sitting behind Mr. Jiang at the time of the accident.  Mr. Ip was also sitting at the front of the coach.  In support of the plaintiff’s case was the evidence of the plaintiff’s husband Mr. Leung.

The finding by the Recorder

8.The Recorder made the following finding :

‘ 23.    Taking into account all available materials, I am satisfied and I find that:

(1)  The coach being driven by Mr Jiang was travelling at a speed close to Mr Leung(’s) estimate, ie, at least 80 km an hour, just before entering the right bend.

(2)  Upon or immediately after reaching the apex of the bend, Mr Jiang did see the Lorry.  I also find that the Lorry did encroach partly onto the coach’s (right) lane, but not entirely.  I think it was much more likely that the Lorry was 30 metres or more away from the coach when it attempted that manoeuvre, rather than 10 metres (which was just under 1 coach length) as claimed by Mr Jiang.

(3)  Mr Jiang tried to avoid the Lorry by making a sharp turn to the right, but did not apply the brakes.  As the coach was in the middle of the bend, its body listed to the left and the left side crashed onto the surface.  The coach then slided on the road surface for almost 10 metres before coming to a stop.’

The basis of the finding

9.The finding was, according to the Recorder, based mainly on the following pieces of evidence :

‘24(1)     The accident occurred at around 1 pm.  According to a roadmap of the area, the distance between Changsha and Changde was 152 km.  Ningxiang was closer to Changsha and about 120 to 130 km from Changde.  The coach had not yet reached Ningxiang at the time of the accident.  It is reasonable to think that Mr Jiang would drive as fast as he could along a relatively straight stretch of the road right before the bend.

(2)   The stretch of the road just before the bend was rather straight.  It seems to me unlikely that the coach was only doing 60 km per hour or below, particularly when Mr. Jiang was trying to catch up lost time.

(3) I also accept Mr. Leung’s estimate of the speed of the coach before the accident.  Mr. Leung has held a PRC ‘A’ licence, which qualified him to drive a tourist coach such as the coach in question.  He was also a taxi driver by profession.  His estimate is likely to be reliable.

(4) The injuries sustained by Mdm Chan indicate that the impact causing her to be thrown to the left side of the coach was forceful.  Coupled with the long scratch marks caused by the coach after it had fallen on its side, common sense suggests that the coach must have been travelling at quite a high speed when the accident occurred.

(5) I attach considerable weight to the sketch prepared by the local authorities.  It was prepared shortly after the accident, and confirmed by Mr. Jiang.  The sketch shows that the scratch marks on the road surface started at or near the apex of the bend, and that the coach had stopped at a spot opposite to the 9.9 km roadside marker.  Hence Mr. Jiang must have attempted to avoid the Lorry in the middle of the bend, at around the apex point.

(6) It is stated clearly on the sketch that the coach caused the scratch marks after it had fallen on its side.  I have no hesitation in rejecting the evidence that the scratch marks on the road were caused by the rear bumper of the coach.

(7) Mr Jiang himself said repeatedly in his oral evidence that he had not applied the brakes.

(8) As I said above, I accept that the Lorry did encroach upon the coach’s lane, but I am unable to accept that it had pulled entirely into the right lane.  I am quite unable to accept that such a large heap of sand as claimed by Mr. Jiang and Mr. Seah was allowed to occupy a large portion of the left side lane, so as to require the Lorry to pull entirely into the right lane to avoid it.  And if the heap of sand was so big, it is puzzling why Mr Jiang did not see it before the accident.  Hence the likelihood is that the Lorry was attempting to overtake some slow traffic on the cycle lane, or some small obstruction on the road, which would not require it to go entirely onto the right lane.’

The conclusion of the Recorder

10.The conclusion that the Recorder reached was that :

‘ 25. ….. the accident was at least contributed to by the negligent driving of Mr Jiang.  In my judgment he drove too fast in the circumstances, and failed to apply the brakes when he ought to have done.  These two factors combined to cause the coach to fall on its left side: the speed of the coach caused the coach to lean to the left and tip over when Mr Jiang veered right suddenly, and the failure to brake meant that the momentum on impact was not reduced.  Indeed, it seems to me that had Mr Jiang been driving more slowly, and if he had applied the brakes in time, it is quite possible that he would have had sufficient time to avoid the Lorry without losing control of the coach and thereby avoided the accident.’

The core of the appeal

11.Ms Christina Lee who appeared together with Mr. Geoffrey P Chang as counsel for the defendant challenged the finding of fact by the Recorder.  She recognized the difficulty of overturning a finding of fact but she argued with force that the finding was without proper foundation.  The core of her argument is that while the parties had given two completely different versions of how the accident occurred, the Recorder made his decision based on a third version of events which was not advanced by either party in that the Recorder found that, instead of the opposite lorry encroaching entirely on the coach’s lane, it only partly encroached on that lane.  Ms Lee submitted that the evidence did not support this finding.

The response

12.The response of Mr. Cheung Yiu Leung, counsel for the plaintiff, was that even if the lorry encroached entirely on the lane of the coach, the Recorder could still be entitled to find against the defendant.

My view

13.In my view whether the lorry was wholly in the lane of the coach or whether it only partly encroached on that lane makes no difference to the conclusion reached by the Recorder.  He found Mr. Jiang to be negligent by reason of his speed and his failure to brake the coach.  But even proceeding on the basis that the lorry encroached entirely on the lane of the coach, my view is that the Recorder could still find Mr. Jiang to be negligent for the following reasons :

1.   The actual speed of the coach was clearly something that the Recorder was entitled to decide after hearing the evidence on this issue.  The defendant’s case was that the speed was 50 to 60 km per hour while that of the plaintiff was 80 km per hour.  Even according to Mr. Seah’s evidence, Mr. Jiang was driving impatiently and in great haste because he was trying to make up for delay that had occurred earlier in the day because of mechanical failure of the coach.  Mr. Jiang had also been overtaking vehicles that were in front of him.  He was clearly not a patient driver. 

2.   The Recorder’s finding that Mr. Jiang was travelling at 80 km per hour was supported by the evidence including that of Mr. Leung.  Mr. Leung had a Mainland driving licence which entitled him to drive a tourist coach and he was also a taxi driver by profession.  The fact that the Recorder had rejected Mr. Leung’s evidence of the absence of the lorry does not mean that he was bound to reject his evidence on speed as well.  A judge is entitled to accept part of the evidence of a witness and reject some other parts, unless such a finding is clearly contradicted by some other relevant evidence.  The Recorder also took into account the fact that the road leading to the bend was straight which enabled Mr. Jiang to drive at high speed, he was trying to catch up lost time and there was a long scratch mark of 9.85 metres caused by the contact of the body of the coach with the road surface after it had overturned.  The last piece of evidence was capable of pointing to a high speed of the coach.

3.   The Recorder was also entitled to find that the opposite lorry was 30 metres or more away from the coach when it cut into the lane of the coach rather than 10 metres as claimed by Mr. Jiang.  This was well supported by the evidence of Mr. Jiang who under cross examination admitted that the distance between the two vehicles was about 20 to 30 metres.  The Recorder was entitled not to accept the evidence of Mr. Seah that the distance was less than 20 metres.  Mr. Seah had in fact given different lengths of the distance between the two vehicles ranging from less than 40 feet, 40 to 50 metres and less than 20 metres.  As a matter of common sense, if the distance was only 10 metres when the two vehicles first faced each other, a head-on collision would be almost inevitable given the speed they were travelling.

4.   Even if Mr. Jiang was driving at 50 to 60 km per hour, he still could have taken reasonable steps to avoid a head-on collision without causing his coach to hit the slope and overturn.  The reason that the lorry entered the lane of Mr. Jiang’s coach was for the purpose of overtaking the vehicles that were in front of it or some small obstruction on the road.  Had Mr. Jiang reduced his speed or applied the brake upon seeing the lorry on his lane, he would have easily allowed a longer distance for the lorry to move out and return to its own lane.  A head-on collision could still have been avoided without Mr. Jiang simply swerving the coach to the right.  Mr. Jiang admitted that he had not taken such steps.

5.   In my view the failure by Mr. Jiang to slow down or brake constituted a clear act of negligence.  In emergency situations one should, of course, not be a counsel of perfection and demand steps to be taken which with the benefit of hindsight could have been taken.  But this is not the case here.  According to Ms Lee’s calculation the stopping time of vehicles travelling at the speed of 50 to 60 km per hour would be 1 to 2 seconds.  Even if Mr. Jiang was correct to swerve the coach to the right, a reduction of speed at the same time could have lessened the impact of the coach hitting the slope.  I do not regard a reduction of speed or applying the brake is something that Mr. Jiang could not have been expected to do during an emergency.

6.   In the present case the accident happened because in the first place the lorry had wrongly cut into the opposite lane upon which the coach was travelling.  The driver of the lorry was, of course, mainly responsible for the accident but it does not mean that Mr. Jiang himself was not also negligent.  The speed limit at that stretch of road was 50 km as admitted by him.  He was travelling at a speed which either, according to the Recorder’s finding, far exceeded that limit, or, according to his own case, was also close to or exceeded that limit.  The coach was a long and heavy vehicle carrying 42 passengers inside.  A vehicle travelling at a high speed would be less easy to control in case of emergency.  This is precisely what had happened in the present case.  When confronted with a likely accident, no attempt was made by Mr. Jiang to slow down the coach.  Negligence was clearly established.

Conclusion

14.Accordingly the appeal was dismissed with costs to the plaintiff.

Hon Yuen JA :

15.I agree.

Hon Andrew Cheung J :

16.I agree.

Mr. Cheung Yiu Leung, instructed by Messrs Ho, Tse, Wai & Partners, for the Plaintiff

Ms Christina Lee and Mr. Geoffrey P Chang, instructed by Messrs Gallant Y. T. Ho & Co., for the Defendant