Wong Ka Man v. Tang Ka Lun and Others

DCPI 1720/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISYTRATIVE REGION

PERSONAL INJURIES ACTION NO. 1720 OF 2009

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BETWEEN

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Before: Deputy District Judge Victor Dawes

Date of hearing: 11 July 2011

Date of handing down judgment: 29 July 2011

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REASONS FOR DECISION

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I. Background

1.On 4 May 2011, I gave judgment (“Judgment”) in this matter and found the 1^st, 2^nd and 5^th defendants liable for the plaintiff’s claim. The claims against the 3^rd and 4^th defendants and the 1^st and 2^nd third parties were dismissed.  In terms of costs, I made a costs order nisi that (i) the 1^st, 2^nd and 5^th defendants shall pay costs of the plaintiff’s claim; (ii) the plaintiff shall pay the costs of the 3^rd and 4^th defendants; and (iii) the 1^st, 2^nd and 5^th defendants shall pay for costs of the 1^st and 2^nd third parties.

2.This is an application for leave to appeal by the 1^st, 2^nd and 5^th defendants (“Applicants”).

3.There is no dispute that leave to appeal should not be granted unless it is demonstrated that the appeal has a reasonable prospect of success.  See Wynn Resorts (Macau) SA v. Mong Henry [2009] 5 HKC 515.  The issue before me is therefore the merits of the intended appeal. The grounds are set out in the draft Notice of Appeal attached to the summons.

4.I shall adopt the abbreviations used in the Judgment.

II. Grounds of Appeal

5.The position taken by the Applicants at trial was that they were not liable.  In the present application, they no longer dispute their liability but contended that: (i) the 3^rd and 4^th defendants; and (ii) the 1^st and 2^nd third parties should also be found liable and that the damages payable be apportioned between them “in a manner as deemed just by the Court of Appeal”.

3^rd and 4^th defendants

6.Mr. Vaughan for the Applicants submitted that in dismissing the claims against the 3^rd and 4^th defendants, I attached no or insufficient weight to the following matters: (i) the 3^rd defendant’s conviction of careless driving; and (ii) the damage to the front of the 4^th Vehicle was more significant compared to the rear of its trailer.

7.It is submitted that in light of the aforesaid matters and the duty of care of a high standard imposed on drivers following other vehicles in a line of traffic to prepare for foreseeable emergency, to avoid colliding with the vehicles in front and to avoid creating a situation of danger for other vehicles, I erred in finding that there was no causal link between the 2^nd Collision (between the 3^rd and 4^th Vehicles) and the 3^rd Collision (between the 4^th and 5^th Vehicles).

8.In making my findings in favour of the 3^rd and 4^th defendants, I have already considered and taken into account the fact that the 3^rd defendant was charged with and convicted of careless driving.  This is apparent from paragraph 11 of the Judgment.  There is no dispute that the 2^nd Collision had taken place and the 3^rd defendant had failed to avoid hitting the vehicle in front (i.e. the 3^rd Vehicle).  

9.However, in the Judgment, I have found as a matter of fact that the 4^th Collision was caused by the failure of the 5^th defendant to stop the 6^th Vehicle in time and the 5^th Vehicle was in turn pushed from the back which resulted in the 3^rd Collision.  I also found that because of the 1^st Collision, the 1^st, 2^nd and 3^rd Vehicles had to come to a complete stop.  No matter whether the 3^rd defendant was able to avoid the 2^nd Collision, he had to bring the 4^th Vehicle to a complete stop as well. 

10.As a result of the aforesaid findings of fact, I also formed the view that there was no causal link between the 2^nd Collision and the injuries of the plaintiff.  I see no basis in disturbing the finding of facts and I reject the Applicants’ argument in this regard.

11.Likewise, I also cannot see how the extent of damage to the front and the rear of the trailer have any effect on the aforesaid findings. 

12.To sum up, the Applicants have been unable to advance any basis to challenge the findings of fact made by me and the weight I attach to the 2 matters highlighted is a matter for me as the trial judge.  The grounds advanced by the Applicants in this regard are simply unarguable. 

1^st and 2^nd Third Parties

13.In respect of the dismissal of the claim by the Applicants against the 1^st and 2^nd third parties, the Applicants are making a direct challenge on my finding that the 4^th Collision had already occurred before the 3^rd Collision.  It is argued that I have failed to give any or sufficient weight to the following matters:

(1) The evidence of the other passengers on the 5^th Vehicle as contained in the statements given to the Police.

(2) The damage to the rear of the 5^th Vehicle was minimal whilst the damage to the front was comparatively serious.

14.In addition, it was also suggested that I have somehow misunderstood the contents of the brief facts which contained the suggestion that by reason of the 4^th Collision, the 5^th Vehicle was pushed forward, thereby causing the 3^rd Collision.

15.I am not persuaded by the aforesaid grounds.  None of the other passengers on the 5^th Vehicle were called to give evidence.  I can only attach very little weight to what is said in their statements given to the Police.  Further, the severity of the damage to the front and rear of the 5^th Vehicle is also something that I have taken into account.  I have re-considered the transcript of the proceedings in the Magistrate’s Court and the relevant brief facts concerning the 5^th defendant.  Given my findings as contained in paragraphs 31 to 33 of the Judgment including my adverse finding on the credibility of the 5^th defendant, I see no basis to disturb the finding of facts made by me.

16.By reason of the aforesaid, the application for leave to appeal is dismissed with costs and certificates for Counsel.

Representations:

Mr. Desmond Lee of Messrs. Au-Yeung, Cheng, Ho & Tin for the Plaintiff

Mr. Joseph Vaughan instructed by Messrs. T. S. Tong & Co. for the 1^st, 2^nd and 5^th Defendants

Mr. Victor Gidwani instructed by Messrs. Massie & Clement for the 3^rd and 4^th Defendants

Mr. Patrick Szeto instructed by Messrs. Tsang, Chan & Wong for the 1^st and 2^nd Third Parties

Application for leave to appeal by the 1st, 2nd and 5th Defendants to Court of Appeal refused. Please refer to HCMP1532/2011 dated 11 October 2011