Ng Man Kit Cecil v. Lam Kong Sang

DCCJ 2243/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 2243 OF 2011

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J U D G M E N T

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1.The plaintiff was driving home along Wong Chuk Street on 4 August 2009 at about 9:36 pm.  At the time, the street was wet because it had been raining and No 3 Typhoon Signal was hoisted.  As he came up to the junction between Wong Chuk Street and Tai Nan Street, he was hit on the nearside of his car by a public light bus driven by the defendant.

2.The plaintiff claims against the defendant in the present action for damages suffered due to the accident.

3.The defendant denies liability to the accident.  He was found not guilty of dangerous driving at a trial at the Sha Tin Magistracy on 28 June 2010.  He maintains he was not liable to the plaintiff for the plaintiff’s loss.

The plaintiff’s case

4.The plaintiff was driving home with his girlfriend in his private vehicle (LX 2510) at around 9:36 pm on the second lane of Wong Chuk Street on 4 August 2009 after turning from Lai Chi Kok Road into Wong Chuk Street. 

5.As he drove past the junction with Tai Nan Street, he heard his girlfriend screamed. He looked to his left and saw a bright light from the nearside of his car before he heard a loud bang.  His car was pushed by the force of the impact and the rear of his vehicle hit the railings on the opposite corner of the junction between Wong Chuk Street and Tai Nan Street.  He admitted that the first time he saw the defendant’s public light bus was after the accident.

6.The plaintiff found the right side of his person and his right hand and right wrist were painful as a result of the accident.  He was taken to Caritas Medical Centre for treatment that evening.

7.He said his Honda vehicle, which was valued between $80,000 to $85,000 before the accident, was reduced to scrap value or salvage value of $8,000 after the accident.  He produced a motorcar survey report that stated that it would cause much more to repair the damage to the car than the value of the car after the accident and he was advised to scrap the car.  As a result, he sold the car for the sum of $8,500 to Hang Fai Auto Services Company Limited on 23 September 2009.

8.The plaintiff claims his loss amounted to $85,750.  Taking into account the value of the car was $92,500 before the accident, the towing fee of $1,000 and the motorcar survey fee of $750, after deduction of the $8,500 he received from Hang Fai Auto Services Limited his loss is $85,750.

The defence case

9.The defendant Mr Lam Kong-sang’s evidence was, he was driving along Tai Nan Street after turning from Shek Kip Mei Street just before the accident.  He drove up to the junction of Tai Nan Street with Wong Chuk Street and stopped at the double-white lines at the “Stop” sign.  He waited for the traffic lights that controlled the traffic at Tai Nan Street in the next block ahead to turn green, which at the time was red.

10.He looked to the traffic on his right on Wong Chuk Street.  He said he saw there was traffic in the east-to-north direction on Wong Chuk Street.  He looked to his left and he saw a pedestrian crossing diagonally on Wong Chuk Street from his left to his right, crossing Tai Nan Street.  When he saw the lights at the next section of Tai Nan Street turned green, he proceeded at 10 kilometres an hour across Wong Chuk Street, at the same time watching out for pedestrians crossing Tai Nan Street in front of him.

11.As he moved out onto Wong Chuk Street, he saw the plaintiff’s car speeding across the junction with Tai Nan Street.  He tried to steer left to avoid colliding with the plaintiff’s car.  Unfortunately, it was too late and his PLB collided with the plaintiff’s car.

12.The point of collision, he said, was the right front bumper hitting the plaintiff’s car on its nearside.  So far as the PLB is concerned, the part of the bumper colliding with the plaintiff’s car was the right offside front.  He claimed that because of the impact, the bumper was loosened as a result.  He disagreed that the nearside, ie the left front, of the PLB, was damaged as a result of the collision.  The reason why the left front lights and frame fell out, he said, was because it was loosened by the impact of the collision to the front of the PLB.  It was because of the trauma to the PLB, not because of the impact of his car hitting the plaintiff’s car. 

13.He counterclaims against the plaintiff for the no-claim-bonus compensation of $20,000 he paid to the registered owner of the PLB and $1,600 loss of earnings for the four days when the PLB was under repair.

Discussion

14.The defendant relied on the plaintiff’s failure to notice the defendant’s PLB when he drove into the cross-junction between Wong Chuk Street and Tai Nan Street. He claimed because the plaintiff admitted to be living in Cheung Sha Wan area, he should be familiar with the area and know the traffic from the side streets of Wong Chuk Street.

15.The defendant relied further on the evidence adduced at the Sha Tin Magistracy trial on 28 June 2010, when the defendant after trial was acquitted of dangerous driving. 

16.On the basis that the defendant was acquitted of the traffic offence related to the accident on 4 August 2009, the burden of proof of the plaintiff’s case rests with the plaintiff to show that the defendant is liable for the accident in order to succeed in his claim against the defendant.

17.The plaintiff was extensively cross-examined by the defence on the accident and on the evidence he gave at the Magistracy hearing at the trial of the defendant for dangerous driving.  The plaintiff maintained he was not aware of the defendant’s public light bus until his girlfriend’s scream, which brought his notice to the bright lights from the defendant’s public light bus seconds before the collision. 

18.The defence, therefore, claimed the plaintiff was negligent because he was driving too fast, failed to keep a proper lookout, failed to have sufficient regard to the traffic condition on Tai Nan Street and Wong Chuk Street, and failed to avoid the accident by slowing down or swerve, etc.

19.The plaintiff, on the other hand, accused the defendant of negligence based on similar particulars, but adding that the defendant had failed to stop at the “Stop” sign on Tai Nan Street at the junction with Wong Chuk Street; failed to give way to traffic on Wong Chuk Street, which was a major road; drove too fast; and failed to keep a proper lookout.

20.I was shown the police photographs; the magistrate court trial transcript; the summary of facts; the survey report of the plaintiff’s car; the police statements of the plaintiff and the defendant.

21.The defendant did not give evidence at the magistrate court hearing.  He chose to not answer the questions from the police after the accident.  His evidence at the present trial and his witness statements and affirmations filed in these proceedings formed the basis of his evidence.

22.After considering all the evidence produced, including the evidence given by the plaintiff and the defendant at the trial, I notice from the photographs taken by the police just after the accident that the point of impact between the plaintiff’s and the defendant’s vehicles was on the nearside of the plaintiff’s vehicle.  The dent in the plaintiff’s car appeared across the whole of the front and rear doors of his car. 

23.I have also observed from both the police photographs and the car surveyor’s photographs of the plaintiff’s car the doors on the nearside of the car still bore the green and yellow paint from the defendant’s public light bus, while at the rear side of the plaintiff’s car there was a large dent caused by the car’s impact with the railings on the pedestrian pavement across the opposite corner of Tai Nan Street and Wong Chuk Street where the plaintiff’s car was pushed by the force of the impact of collision. 

24.The evidence from these photographs and the sketch plans of the vehicles drawn by the police officers after the accident are strong evidence showing the defendant’s public light bus must have been travelling at a much faster speed than the defendant admitted, which he claimed was at 10 kilometres per hour.

25.If he had stopped completely at the double-white lines, he could not have picked up such a speed in such a short space of time, travelling from behind the double-white lines onto the first left lane on Wong Chuk Street.  Had the defendant observed the south-to-north traffic on Wong Chuk Street on his right, he would have seen the plaintiff’s car coming up Wong Chuk Street. 

26.He claimed that his car was controlled by the traffic lights at the Ki Lung Street and Tai Nan Street junction, which was the next section junction from Wong Chuk Street on Tai Nan Street.  He said that was why he was waiting at the Wong Chuk Street junction for the lights to turn green before proceeding on Tai Nan Street.

27.When he was asked why was he controlled by those lights in cross-examination, he said he would be driving straight through Wong Chuk Street as well as Ki Lung Street without stopping.

28.I find that explanation completely incredible that he should regard the traffic lights in the next section of Tai Nan Street to be more important than the traffic on Wong Chuk Street, which he was about to cross, and that to him it was more important to watch the pedestrians on the pavement across on the other side of Wong Chuk Street than to watch out for the major traffic on Wong Chuk Street.  It was probably because he was eager to cross the next set of traffic lights that he drove out onto Wong Chuk Street, ignoring the traffic on Wong Chuk Street.   

29.He was driving from a side street into a major road.  There was a “Stop” sign at the junction of Tai Nan Street with Wong Chuk Street, which was a major road, this sign and the double white lines warned him of the traffic on Wong Chuk Street before he proceeded further.  He was required to stop from a side street entering a major road.  I have no doubt he failed to do so on this wet night during a No 3 Typhoon Signal and I have no doubt he caused the accident because he did not pay attention to the traffic on Wong Chuk Street.  I doubt if he stopped at the double-white lines at all.  Instead, he was looking at the traffic lights which appeared in the next section of Tai Nan Street because he was too eager to move all the way through Tai Nan Street without stopping.

30.I do not find the plaintiff negligent when he was driving 50 kilometres per hour along Wong Chuk Street because he had the right of way.  The collision was not expected because, travelling on a major road, he had the right of way, he is entitled to drive from south to north on Wong Chuk Street. 

31.It is expected of drivers driving from a side road such as Tai Nan Street to wait for the traffic on Wong Chuk Street to clear before proceeding.  That was why there were double-white lines and a “Stop” sign at this junction of Tai Nan Street.

32.I find the defendant was completely to blame for the accident.  He is liable to compensate the plaintiff for the damages he caused to the plaintiff’s car. 

Quantum

33.I accept the motor vehicle survey report from Lau Ming Motor Survey Company produced by the plaintiff, that the extent of the damage to the plaintiff’s car rendered the costs of repair to exceed the value of the car.  The salvage value estimated by the survey company was $8,000.  The plaintiff was able to sell the damaged car for $8,500, which is $500 more than the estimated value by the surveyor.  This showed he had mitigated his loss.  I find the plaintiff’s loss to be:

Car value before the accident	$92,500
Towing fee	$1,000
Survey fee	$750
	$94,250
Less: sale of car after accident
	$8,500
Total	$85,750

34.I dismiss the defendant’s counterclaim and order the defendant to pay damages to the plaintiff in the sum of $85,750, with interest at half judgment rate from the date of writ to the date of judgment, thereafter at judgment rate.

Costs

35.Costs to follow the event, to be borne by the defendant to be taxed if not agreed, with certificate for counsel.

36.And I thank counsel for their assistance.

Mr Gary T K Lam, instructed by Simon C W Yeung & Co, for the plaintiff

Miss Gloriane Y Y Hui, instructed by Pauline Wong & Co, for the defendant