Kwong Ka Yin v. Cheung Hing Worldwide Ltd and Another

HCPI 89/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 89 OF 2013

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J U D G M E N T

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Introduction

1.This action arose out of a traffic accident which happened shortly after 1 am on 20 April 2008, when the plaintiff was a passenger on board of a taxi driven by the 2^nd defendant and owned by the 1^st defendant along the second lane of the Lantau Link on the Kowloon-bound carriageway.

2.This trial only concerned the claim by the plaintiff against the 2^nd defendant.  On the first day of trial, by consent, leave was granted to the plaintiff to discontinue her claim against the 1^st defendant, with costs of the action be paid by the plaintiff to the 1^st defendant.  Further, the plaintiff and the 2^nd defendant agreed quantum at HK$900,000 (inclusive of interest), in the event that the 2^nd defendant is found negligent in causing the accident.  Hence, the only issue at trial is the liability of the 2^nd defendant.

Undisputed Facts

3.The undisputed facts are as follows : -

(1) Shortly after 1 am on 20 April 2008, the plaintiff and her   friend, a Ms Tsang, boarded the taxi at the airport driven by the 2^nd defendant.

(2) The plaintiff was sitting on the right-hand side passenger seat of the taxi behind the driver and Ms Tsang was sitting on the left-hand side.  The plaintiff had her seatbelt fastened upon boarding the taxi.

(3) As the taxi was travelling along the second lane of the Lantau Link on the Kowloon-bound carriageway and approaching the diverging point on the road where the first lane led to (or merged with) the slip road for Tsing Yi/Cheung Tsing Highway at a speed which was not particularly fast, the 2^nd defendant lost control of the taxi.

(4) When the taxi lost control, it spun and had three collisions, described by the plaintiff as: “Bang”, “Bang”, “Bang”. It collided first with the central divider at the diverging point (between the first and the second lane) and then with the concrete embankment or barrier on the right-hand side of the third lane.

(5) The taxi was very seriously damaged (particularly on the offside and the front).

(6) Upon the second collision, the plaintiff suffered a fracture of her right middle finger and distal right femur; and upon the third collision, the plaintiff sustained injuries to her right forehead and right eyebrow.

The Plaintiff’s case

4.It is the plaintiff’s case that the accident happened because the 2^nd defendant had failed to exercise reasonable care in the control of the taxi at the material time.  This failure on the 2^nd defendant’s part, according to the plaintiff’s observation, is/may well be the result of : -

(1) The 2^nd defendant dozing off, albeit only momentarily, after long hours of work; and

(2) The 2^nd defendant wearing flip-flops when driving the taxi.

5.The plaintiff’s alleged reason for supposing that the 2^nd defendant had dozed off was threefold: her observation that he initially started to slow, he bowed his head, and the taxi shook.

6.Regarding the plaintiff’s alleged observation, much criticism has been made by the 2^nd defendant in respect of her evidence about the presence or absence of a headrest at the driver’s seat.  In this regard, I tend to agree with Mr Newman Wong, counsel for the plaintiff, that such criticism does not materially affect the overall credibility of the plaintiff.

7.However, I am much more concerned with the fact that the plaintiff’s alleged observation was only raised by her at a late stage, more than three months after the accident had occurred.

8.In fact, at the scene of the accident, and as recorded by police officer SPC 48207 in attendance, both passengers (ie the plaintiff and Ms Tsang) said that they only knew that the vehicle was being driven slowly and they did not witness the course of the accident.

9.Further, in her first police statement dated 14 May 2008 (taken more than three weeks after the accident), the plaintiff unequivocally and clearly stated that as she was talking to her friend at the time, she did not see the course of the accident and did not know why the driver lost control of the taxi.

10.The plaintiff’s alleged observation was only raised for the first time in her second police statement given on 9 August 2008.

11.I find it inherently improbable that if the plaintiff did observe the 2^nd defendant bowing his head as if he was dozing off immediately before the accident, she would fail to mention that important observation either at the scene to the police officer or in her first police statement.

12.I agree with Mr Ashok Sakhrani, counsel for the 2^nd defendant, that the account given by the plaintiff in her first police statement is more likely than not to be the accurate version, namely, that the plaintiff did not actually observe the course of the accident and did not know why the 2^nd defendant lost control of his vehicle.

13.This is particularly so when the plaintiff, under cross-examination, agreed to the following : -

(1) The appointment for the taking of the first police statement had been fixed with a few days’ notice;

(2) She knew that the purpose of the interview was to take a statement in relation to the accident;

(3) She appreciated the importance of this first police statement in the investigation of the accident and also that witnesses at trial may be cross-examined extensively about what they had said in their police statements;

(4) She had a chance to read back this police statement before signing; and

(5) She agreed that her statement to the police would be one piece of evidence the police would rely on in deciding whether to prosecute the 2^nd defendant.

14.Mr Wong submitted that there is nothing unusual about a victim in a traffic accident only being able to recall some details a few months after the event, and the court should be slow in coming to an adverse finding on that ground.  I do not agree.  In my view, the sequence of events set out in paragraph 5 above, in particular, the dipping of the 2^nd defendant’ head as if he was dozing off, cannot be described merely as some minor details regarding the accident.

15.For the reasons stated above, I hold that I cannot safely rely on the plaintiff’s alleged observation evidence regarding the accident.  I find as a fact that the plaintiff did not actually observe the course of the accident and did not know why the 2^nd defendant lost control of his vehicle.

16.Regarding the wearing of flip-flops by the 2^nd defendant, I need to say no more than to note that under cross-examination, the plaintiff agreed that she had no way of knowing whether the fact the 2^nd defendant was wearing flip-flops in any way contributed to him not being able to control the taxi, and that she was speculating in this regard.

The 2^nd Defendant’s case

17.The 2^nd defendant’s case is that the accident was caused wholly and solely by the negligence of the driver of an unknown vehicle.  According to the 2^nd defendant, immediately prior to the accident he was driving along the second lane and an unknown vehicle was travelling at a speed faster than the taxi on the third lane coming from behind.  The unknown vehicle then overtook his taxi and then suddenly cut into his lane (ie the second lane).  The distance between the overtaking vehicle and the taxi was about 1 m when the former cut into the second lane.

18.The 2^nd defendant said that the emergency situation created by the unknown vehicle forced him to brake and to swerve, as a result of which he lost control of the taxi, which then collided in the manner set out in paragraph 3(4) above.

19.Under cross-examination, the 2^nd defendant gave, inter alia, the following important details regarding his account of the accident: -

(1) The 2^nd defendant said that he had approached the slight right bend at about 60 to 70 km/h but because the road was wet, he reduced his speed further.  Traffic was light at the time.

(2) When questioned on what he thought his speed was when he was next to the beginning of the chevron marking in front of the central divider, the 2^nd defendant said it was about 50 to 60 km/h. He said it was his intention to negotiate the slight bend at around 50 km/h.

(3) In response to the situation he perceived himself to be placed in by the unknown vehicle, the 2^nd defendant braked, but the 2^nd defendant said he did not slam hard on the brakes.  He did not apply the brakes abruptly.  In short, it was not emergency braking.  He said he had also swerved to the left a bit but it was not a big swerve.  He then lost control of his taxi which resulted in the accident.

20.I agree with Mr Newman Wong’s submissions that the 2^nd defendant’s account of the accident is inherently improbable and incredible.  In short, if the 2^nd defendant were telling the truth regarding the manner in which he was driving the taxi (ie travelling at a modest speed of around 50 km/h; did not slam hard on the brakes; and only swerved slightly to the left), I simply cannot see how he would have lost control of his taxi in the way which he did, resulting in collisions causing very substantial damage to the vehicle. 

21.In my view, the 2^nd defendant’s evidence regarding the accident is no more than an embellished account painted by him so as to minimise his responsibility for the accident.  I reject the 2^nd defendant’s evidence as being unreliable.  I hold that I can put no weight on the same.

Res Ipsa Loquitur

22.My rejection of both the evidence of the plaintiff and of the 2^nd defendant is by no means the end of the matter.

23.First of all, both parties agree that the doctrine of res ipsa loquitur need not be expressly pleaded.

24.In the present case, it is undisputed that the taxi departed from the lane that it was travelling in by swerving left, thereby colliding into the central divider resulting in the accident.  I agree with Mr Wong that a sudden swerve, assuming nothing else is proved, is sufficient to infer or give rise to the prima facie presumption of negligence on the part of the driver of a motor vehicle [see: O’Hara v Central Scottish Motor Traction Co Ltd [1941] SLT 202 and Doonan v Scottish Motor Traction Co [1950] SLT 100].

25.In answer to the point, Mr Ashok Sakhrani submits that the burden on the 2^nd defendant is simply to produce evidence that is “capable of rebutting” the prima facie case, not evidence that as a fact does rebut it.  The burden at all times remains on the plaintiff, and only if the 2^nd defendant does not produce such evidence then the plaintiff will have proved his case. Here, the 2^nd defendant has produced such evidence.

26.I do not agree that the 2^nd defendant is home by merely producing evidence that is “capable of rebutting” the prima facie case.

27.In the Privy Council decision of Ng Chun-pui v Lee Chuen-tat [1988] 2 HKLR 425, at 427G-I, Lord Griffiths held as follows: -

“ So in an appropriate case the plaintiff establishes a prima facie case by relying upon the facts of the accident. If the defendant adduces no evidence there is nothing to rebut the inference of negligence and the plaintiff will have proved his case. But if the defendant does adduce evidence that evidence must be evaluated to see if it is still reasonable to draw the inference of negligence from the mere fact of the accident. Loosely speaking this may be referred to as a burden on the defendant to show he was not negligent, but that only means that faced with a prima facie case of negligence the defendant will be found negligent unless he produces evidence that is capable of rebutting the prima facie case. Resort to the burden of proof is a poor way to decide a case; it is the duty of the judge to examine all the evidence at the end of the case and decide whether on the facts he finds to have been proved and on the inferences he is prepared to draw he is satisfied that negligence has been established. In so far as resort is had to the burden of proof the burden remains at the end of the case as it was at the beginning upon the plaintiff to prove that his injury was caused by the negligence of the defendants.” [emphasis supplied]

28.Thus, in a case where the plaintiff establishes a prima facie case of negligence by relying upon the facts of the accident, if the defendant adduces no evidence the plaintiff will have proved his case.  However, if the defendant does adduce evidence that is “capable of rebutting” the prima facie case, the court is tasked to evaluate such evidence to see if it is still reasonable to draw the inference of negligence from the mere fact of the accident.

29.In the present case, I have indeed evaluated the evidence of the 2^nd defendant and came to the conclusion that his evidence is unreliable (see: paragraphs 17 to 21 above). Accordingly, I hold that it is still reasonable to draw the inference of negligence on the part of the 2^nd defendant from the mere fact of the accident.

Conclusion and Disposition

30.For the reasons set out above, I hold that the plaintiff has proved that her injury sustained in the accident was caused by the negligence of the 2^nd defendant.

31.Accordingly, I give judgment in favour of the plaintiff against the 2^nd defendant for the sum of HK$900,000.

32.I further order that the 2^nd defendant do pay the plaintiff her costs of this action, including all costs reserved (if any).  Such costs are to be taxed if not agreed.

33.The above order as to costs is nisi and shall become absolute in the absence of any application within 14 days to vary the same.

34.Lastly, I express my gratitude to counsel on both sides for their helpful assistance in this matter.

Mr Newman Wong, instructed by H M Tsang & Co, for the plaintiff

Mr Ashok Sakhrani, instructed by Mayer Brown JSM, for the 1^st and 2^nd defendants