Smith, Jamie Robert v. Quan Kwok Hing

DCCJ 1578/2009 

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 1578 OF 2009

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BETWEEN

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Coram :  Deputy Judge Geoffrey Chan

Date of Hearing : 19 May 2010

Date of Handing Down Judgment : 31  May  2010

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JUDGMENT

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1.The Plaintiff's claim against the Defendant is for the loss of his vehicle as a result of an accident taking place at the junction of Wui Cheung Road and Canton Road in the early hours of 2 April 2008.  It is comonground that the Plaintiff was at all material times the registered owner and the driver of a motor vehicle bearing registration no. MV8190 and the Defendant was the driver of a taxi bearing registration no. GN8513.  At the material time, the Plaintiff was driving in an eastly direction along Wui Cheung Road with the view to turning right into Canton Road and the Defendant was driving his taxi in a northly direction along Canton Road.

2.Prior to this hearing, the Plaintiff and the Defendant have agreed on the issue of quantum.  They agreed that the amount of loss and damage suffered by the Plaintiff is HK$76,340.  The only issue left to be decided is that of liability.  It is the Plaintiff's case that the Defendant "jumped the red light" governing traffic proceeding in a northly direction along  Canton Road at  the junction(“the Junction ”) with Wui Cheung Road and it is the Defendant's case that the Plaintiff "jumped the red light" governing traffic proceeding in an eastly direction along Wui Cheung Road at the Junction.  The Trial Bundle has been agreed and contains the witness statements as well as supplemental witness statements of the Plaintiff and the Defendant as well as the Police statement of the two passengers travelling in the Defendant's Taxi at the time, the Police Officer (PC 1973) who attended  the scene of the accident and the Police statement of a taxi driver who was driving along Wui Cheung Road in the same direction as the Plaintiff behind him at about the same time.  Both Counsel for the Plaintiff and the Defendant agreed that I may have regard to these statements and attach whatever weight I consider to be appropriate.

3.Both the Plaintiff and the Defendant adopted their witness and supplemental witness statements as their evidence.

4.It is also commonground that both the Plaintiff and the Defendant passed the breathalyzer tests conducted by the attending police officers.

5.The Plaintiff's recollection of the events was quite clear and specific.  He was travelling in an eastly direction along with Wui Cheung Road intending to make a right hand turn into Canton Road.  He noted that in his approach to the Junction there was a very high fence on the right which blocked his view of the traffic travelling in a northly direction along Canton Road.  As he drove nearer to the Junction, his view was hindered by red and white barricades placed on the road.  He then slowed down his car and turned on his indicator signals to turn right.  The purpose of his slowing down, as he explained, was to check if there was any traffic travelling along Canton Road.  He was a cautious man.  As he was doing this, he noted that the traffic lights governing traffic travelling along Wui Cheung Road in an eastly direction was green and he entered the yellow box at the Junction.  This was when he immediately noticed the Defendant's taxi driving at him at speed and in one second the collision occurred.  After collision, he checked himself for injuries and got out of his car.  He walked over to the Defendant's taxi and noted that the Defendant was stuck in his car with the steering wheel firmly pressed into his abdomen and his head was sandwiched between the windscreen and the headrest of his seat.  He then asked the Defendant whether he was all right but he could not understand what the Defendant was saying as the Defendant was speaking in Chinese.  It is noteworthy that after he walked out of his car he noticed that the Wui Cheung Road traffic light turned amber and then red. 

6.The Defendant adopted his witness and supplemental witness statements and he too confirmed that the lights governing traffic travelling along Canton Road in a northly direction were green at the time of collision and that the Plaintiff was driving at some 60km/h turning right into Canton Road.  On cross examination he stated that the time between he saw the Plaintiff's car and the collision was about 3 seconds and that his taxi was 2 to 3 car lengths away from the Plaintiff's car.  He agreed that it was approximately 15 metres.  The Defendant had travelled along this road many times and knew that the speed limit was 50 km/h; that there were no speed nor traffic light cameras at the Junction. 

7.The Defendant was cross-examined on his witness statement where he stated that the left side of his taxi collided with the Plaintiff's car.  When told that the right front side of his taxi was damaged  more, his answer, albeit in my view unconvincing, was that in order to evade the Plaintiff's car he had to brake and swerve to his right.  On this issue I agree with Mr. Leung for the Plaintiff that if the Defendant did swerve to the right the left hand side of his vehicle would be more damaged.  He therefore could not have swerved to the right as the evidence of more damaged right side of the front of the car speaks for itself.

8.Mr. Leung has helpfully considered the timing and speed of events with reference to the Defendant's evidence.  If it took 3 seconds between the time of collision took place and the Defendant’s first sighting of the Plaintiff's vehicle and at the time the Plaintiff's car was approximately 15 metres away, the maximum speed the Defendant could have been travelling was 18 km/h.  Having regard to the way the Plaintiff's car was pushed sideways and to the tyre marks of the Plaintiff's vehicle on the road as evidenced from he photograph at page 91 of the Trial Bundle, it is clear that the car must has been travelling at speed and not just at 18 km/h.  Further, it was late at night and there were hardly any cars on the streets.   Coupled with the speed of 50 km/h it is inconceivable that if one were driving along Canton Road facing a green light one would be driving at this extraordinarily slow speed.

9.Having further regard to the witness statement of the taxi driver, Mr Lee Chau Cheung, his  version of the events does to a certain extent corroborate the version of events of the   Plaintiff. He observed that the Plaintiff did slow down to a halt before moving off again.   Whilst it may not have been a halt it goes some way to corroborate the Plaintiff’s evidence that he did slow down to a slower speed.

10.On the basis of the foregoing, I preferand accept the evidence of the Plaintiff and find that at the material time at approximately 1:35 am on 2 April 2008 the Defendant driving his taxi in a northly direction along Canton Road did "jump" the traffic lights governing traffic proceeding along Canton Road which were red and collided with the Plaintiff's vehicle.

11.The accident was solely caused by the negligence of the Defendant in failing to stop at the road traffic lights on his side.  He was clearly driving too fast without any due care of attention to other vehicles or other road users and in this case the Plaintiff.  I therefore hold the Defendant liable for this accident and for the Plaintiff's damage which is now agreed at HK$76,340 together with interest thereon from the date of the accident to the date of this Judgment at 1% above the prime lending rate of the Hongkong and Shanghai Banking Corporation Limited and thereafter at the Judgment Rate.  I also make an order nisi that the Defendant does pay the Plaintiff's costs to be taxed, if not agreed with certificate for Counsel.

Representations:

Mr. Paul LEUNG instructed by Messrs. Li, Kwok & Law, for the Plaintiff

Mr. Jonathan KWAN instructed by Messrs. Tsang, Chan & Woo, for the Defendant