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

____________________

BETWEEN

	WONG KA MAN	Plaintiff
	and
	TANG KA LUN	1st Defendant
	FU KAM WING	2nd Defendant
	NG MAN	3rd Defendant
	WAH KEE SEA LAND TRANSPORTATION LIMITED	4th Defendant
	SIT TIM MAU	5th Defendant
	and
	CHEUNG TAK WAI	1st Third Party
	NG KAM SHEUNG	2ndThird Party

____________________

Before: Deputy District Judge Victor Dawes

Date of hearing: 11 July 2011

Date of handing down judgment: 29 July 2011

__________________________

REASONS FOR DECISION

__________________________

 

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.

(Victor Dawes) Deputy District Judge

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

DCPI 1720/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO. 1720 OF 2009

_________________

BETWEEN
	WONG KA MAN	Plaintiff
and
	TANG KA LUN	1st Defendant
	FU KAM WING	2nd Defendant
	NG MAN	3rd Defendant
	WAH KEE SEA LAND TRANSPORTATION LIMITED	4th Defendant
	SIT TIM MAU	5th Defendant
and
	CHEUNG TAK WAI	1st Third Party
	NG KAM SHEUNG	2nd Third Party
_________________

Before: Deputy District Judge Victor Dawes

Date of hearing: 11-13 August 2010

Date of handing down judgment: 4 May 2011

_________________

JUDGMENT

_________________

 

I.   Background

1.  The plaintiff’s claim against the defendants is for personal injuries sustained by her in a traffic accident on 28 February 2008 at about 9:05am.  At the time, the plaintiff was a passenger in a public bus bearing the registration number CX 7321.  She was 23 years old at the time of the accident and sustained injuries to her neck, back and chin.

2.  The defendants are drivers or registered owners of vehicles involved in the accident.  They all deny liability and dispute quantum claimed.  Further, the 1^st, 2^nd and 5^th defendants have issued Third Party claims against the 1^st and 2^nd Third Parties being the driver and registered owner of CX 7321 for contribution or indemnity.

3.  In addition, contribution notices were served by the: (i) 1^st, 2^nd and 5^th defendants; and (ii) 3^rd and 4^th defendants on the opposite party.

(a)   The Vehicles

4.  The accident in question involved a total of 7 vehicles.  Ignoring the vehicle bearing registration number FX 8584 which was on another lane, the relative position of the 6 other vehicles traveling along the 2nd left lane on the Tuen Mun Road heading towards Kowloon (the “Lane”) at the material time require careful consideration.  It is not in dispute that they were traveling in the following order:

(1) A light goods vehicle bearing registration number LR 6924 (“1^st Vehicle”) was the vehicle in the front of the other 5.

(2) Immediately behind was the 1^st Defendant driving a medium goods vehicle bearing the registration number KE 8236 (“2^nd Vehicle”).  

(3) The 3^rd vehicle in question was a medium goods vehicle bearing registration number KF6576 (“3^rd Vehicle”).

(4) The 3^rd Vehicle was followed by the 3^rd defendant who was driving a medium goods vehicle owned by the 4^th defendant bearing registration number KX 8860 (“4^th Vehicle”).

(5) The 5^th vehicle was CX 7321 (“5^th Vehicle”).  The bus was driven by the 1^st Third Party and the 2rd Third Party was the registered owner.

(6) The last vehicle involved was a medium goods vehicle bearing registration number LS 6808 (“6^th Vehicle”).  The 5^th defendant was the registered owner and driver at the material time.

(b)   The Collisions

5.  The plaintiff alleged that upon reaching near chainage 61.2 (Sham Tseng), the 1^st Vehicle slowed down to cope with the road condition ahead.  There was suggestion that it was because a dog was running across the road.

6.  The 1^st defendant failed to stop in time causing the front part of 2^nd Vehicle to hit the rear of 1^st Vehicle (“1^st Collision”).  The 2 vehicles stopped on the Lane after the 1^st Collision.

7.  The 3^rd Vehicle was immediately behind the 2 vehicles and it had stopped in time to avoid any collision with the 2^nd Vehicle.  However, for reasons that are in dispute, the 3^rd defendant did not manage to avoid the collision between the 3^rd and 4^th Vehicles. (“2^nd Collision”).  

8.  The last 2 vehicles involved also failed to avoid collisions.  It is common ground that: (i) 4^th Vehicle collided with the 3^rd Vehicle (“3^rd Collision”); and (ii) the 6^th Vehicle collided with the 5^th Vehicle (“4^th Collision”).  

9.  It should be noted that the abbreviations “2^nd Collision”, “3^rd Collision” and “4^th Collision” are used for convenience only as the causes and sequences of the collisions are in dispute.  Both the 3^rd defendant and the 1^st Third Party claimed that they managed to stop their vehicle in time to avoid hitting the vehicle in front.  However, as a result of being hit by the vehicle from the back, their respective vehicle was pushed forward which resulted in a further collision with the vehicle in front.

10.  On the other hand, the 5^th defendant argued that although he had failed to stop the 6^th Vehicle in time to avoid hitting the 5^th Vehicle, the impact of the collision was mild and he had almost managed to stop in time.  In any event, the 5^th Vehicle had already collided with the 4^th Vehicle before it was hit by the 6^th Vehicle from the back.  In other words, the 4^th Collision had nothing to do with the 3^rd Collision.

(c)   Criminal Convictions

11.  It is common ground that the 1^st, 3^rd and 5^th defendants were charged with and convicted of careless driving.  The 1^st and 5^th defendants pleaded guilty to the charge and the 3^rd defendant was convicted after trial. 

II.   Issues

12.  Save where I have indicated disagreement between the parties, I am satisfied that the accident took place as summarized in Section I of this Judgment.

13.  The parties have managed to reach agreement on quantum in the sum of HK$140,000 inclusive of interest but the issue of liability requires determination.

14.  The core issues that need to be decided are:

(1) How did the accident occur?

(2) In the way it occurred, was it caused by the negligence on the part of the defendants or the third parties?

(3) The apportionment of the liability.

III.   Evidence

(a)   The Plaintiff

15.  The plaintiff gave evidence on her recollection of the accident.  One important point emerged from her evidence and it is this:  In the Statement of Claim, the pleaded case of the plaintiff was that the 5^th defendant’s failure to cause the 6^th Vehicle to stop in time had caused the 5^th Vehicle to be pushed forward to hit the 4^th Vehicle.  In other words, her pleaded case is consistent with the position of the Third Parties.  This explains why proceedings were commenced by her against the 5^th defendant but not the Third Parties in the first place. 

16.  In a statement given by her to the Police about 2 hours after the accident, she suggested that the bus she was in had collided with the vehicle in front before it was then hit from the back.  During examination-in-chief, she suggested that she was still unwell when the statement was taken and the sequence of events contained in the statement was something suggested to her by the police officer responsible for taking the statement.  She explained in her evidence that the situation back then was chaotic and she was dosing off when the accident occurred.  She recalled 2 collisions that took place almost simultaneously but cannot remember the proper sequence. 

(b)  The 1^st Defendant

17.  The 1^st defendant did not give evidence and there was no witness statement from him before the court.  My attention was however drawn to the brief facts which he admitted when he was prosecuted for careless driving.  In the document, it was recorded that he had failed to keep a safe distance with the vehicle in front and had failed to stop in time resulting in the collision.

(c)   The 3^rd Defendant

18.  The 3^rd defendant confirmed that he was driving the 4^th Vehicle at the material times and he was traveling at 60 to 70 km per hour.  He claimed that he was about 13 meters behind the 3^rd Vehicle until the vehicle in front stopped abruptly.   He claimed that he managed to stop about 2 meters behind the 3^rd Vehicle until it was hit by the vehicle behind causing his vehicle to move forward resulting in the 2^nd Collision.

(d)  The 5^th Defendant

19.  The 5^th defendant confirmed that he was the driver of the 6^th Vehicle and suggested that he was traveling about 20 meters behind the 5^th Vehicle just before the accident.  He was traveling at about 60km per hour.  He admitted that he had failed to stop in time resulting in the collision with the 5^th Vehicle.  However, he maintained that the impact was minor and that he almost managed to stop in time.  He also referred to the photographs of his vehicle taken after the accident and pointed to the fact that his vehicle was hardly damaged.

20.  In the brief facts which he admitted to when he was prosecuted for careless driving, he admitted that: (i) he had failed to keep a safe distance with the vehicle in front and to avoid the collision; (ii) as a result the 5^th Vehicle was pushed forward and further collided with the 4^th Vehicle.

(e)   The 1^st Third Party

21.  The 1^st Third Party claimed that he was driving the 5^th Vehicle at about 70 km per hour in the Lane and the vehicle was about 30 meters behind the 4^th Vehicle immediately before the accident.  He maintained that he managed to stop the bus he was driving in time to avoid the collision with the 4^th Vehicle (they were 2-3 feet apart) and the collision with it was caused by the vehicle behind pushing the bus forward to hit the 4^th Vehicle.

IV.   Discussion

22.  I cannot see any basis to disbelief or reject the evidence of the plaintiff.  Although the version of events given in her statement to the police is inconsistent with her pleaded case, she frankly acknowledged that it is not possible for her to recall the correct sequence in respect of the 2 collisions in question. Although she did mention when cross-examined by Mr. Szeto (for the Third Parties) that her pleaded case is probably closer to the truth, she subsequently reiterated that she was really unsure about this issue.  All in all, her evidence is of no assistance on the correct sequence of the 3^rd and 4^th Collisions.

(a)  Liability of the 1^st and 2^nd Defendants

23.  The fact that the 1^st defendant was convicted of careless driving is not conclusive. There remains the issue of causation.  There is no dispute that the 1^st defendant attempted to stop his vehicle and he failed to do so in time and had thereby caused the 1^st Collision.  This is the reason why he was charged and convicted.

24.  It is well established that if a driver negligently obstructed a highway and created a danger to other road users, then his negligence contributed to the causation of an accident and he may be responsible for the accident together with any other driver who was subsequently negligent: See Rouse v. Squires [1973] QB 889 at 898C-E and 899H.

25.  It is common ground that the 2^nd Vehicle was not the vehicle which started the multiple collisions.  It can be argued that even if the 1^st defendant managed to stop his vehicle in time, it would still be stationary in the middle of the Lane and the other vehicles following it had to come to an abrupt stop anyway.  Whether it collided with the vehicle in front is neither here nor there.

26.  However, what is unclear is whether the dangerous situation caused by the stopping of the first two vehicles was avoidance.  Although it was pleaded in the Defence of the 1^st, 2^nd and 5^th defendants that the 1^st Vehicle “pulled up abruptly, thereby causing a dangerous situation”, it is not entirely clear as to whether the 1^st Vehicle had come to a complete stop necessitating the other vehicles behind to stop.  I say this because in the brief facts that the 1^st defendant had admitted to when he was charged with careless driving, it was said that the 1^st Vehicle had merely slowed down to avoid hitting a dog running across the road.  That would mean that had the 1^st defendant been keeping a safe braking distance, the 1^st Collision could have been avoided as it does not follow that the 1^st and 2^nd Vehicles had to come to a complete stop if the 1^st defendant had managed to slow down in time and to avoid the 1^st Collision.

27.  As the 1^st defendant did not give evidence, there is no reason to reject what is contained in the brief facts admitted by him.  In other words, there is admission on his part that the vehicle in front (i.e. the 1^st Vehicle) merely slowed down and did not come to a complete stop and the problem was caused by the 1^st Collision. In the circumstances, I find 1^st defendant negligent in failing to keep a safe breaking distance with the preceding vehicle which result in the 1^st Collision.  It is not disputed that the 2^nd defendant is also liable by reason of my finding on the 1^st defendant’s liability and I so find.

(b)  Liability of the 3^rd and 4^th Defendants

28.  In contrast, the 3^rd defendant was in a very different situation.  As a result of the 1^st Collision, the vehicles behind had to come to a complete stop. There is a dispute as to whether the 2^nd Collision was caused by the failure of the 4^th Vehicle to stop in time or whether it was the result of the 4^th Vehicle being hit by the 5^th Vehicle from the back driven by the 1^st Third Party.  However, this is of little significance to the issue before the Court.  No matter what happened between the 4^th and 5^th Vehicles, the 3^rd defendant had no alternative but to bring the 4^th Vehicle to a complete stop because the vehicles in front had come to a complete stop. 

29.  In other words, whether the 4^th Vehicle hit the 3^rd Vehicle is neither here nor there.  I find that there was no causal link between the 2^nd Collision (and the conviction of the 3^rd defendant) with the so-called 3^rd Collision.  The causation issue should be resolved in favour of the 3^rd and 4^th defendants.  There was nothing that the 3^rd defendant could reasonably have done to avoid the 3^rd Collision in light of the situation caused by the vehicles in front.  I therefore reject the plaintiff’s claim against the 3^rd and 4^th defendants.

(c)  Liability of the 5^th Defendant

30.  The issue between the plaintiff and the 5^th defendant is also relatively straightforward.  There is no dispute that the 4^th Collision was caused by the 5^th defendant’s failure to stop the 6^th Vehicle in time.  Whether the 3^rd Collision was caused by the 4^th Collision is irrelevant for this purpose.  There is no dispute that the 5^th Vehicle was involved in two collisions.  The 5^th defendant’s negligence in failing to keep a safe breaking distance and to stop his vehicle in time had clearly contributed to the injuries suffered by the plaintiff.  In the circumstances, I find the 5^th defendant liable for the plaintiff’s claim. 

(d)  Liabilities of the Third Parties

31.  Although it was emphasized by the 5^th defendant that the damage sustained by his vehicle was not significant, no satisfactory explanation was given as to why he admitted to the brief facts which contained the suggestion that by reason of the 4^th Collision, the vehicle in front was pushed forward thereby causing the 3^rd Collision.  He also admitted during cross-examination by Ms. To (for the plaintiff) that he was not sure if the 5^th Vehicle had collided with the 4^th Vehicle before the 4^th Collision and the suggestion made by him was based on what he heard from some of the passengers on the 5^th Vehicle.

32.  In addition, I also find his evidence unsatisfactory in a number of respects.  A clear example is contained in the transcript of evidence recording the conversation with the magistrate that he appeared before on 19 August 2008 when he pleaded guilty to careless driving.  When asked if the brief facts were admitted, he claimed that his vehicle collided with the vehicle in front of him because he was in turn hit from the back by another vehicle.  There is no evidence in support of this assertion in this trial and he frankly admitted in cross-examination that this was not the case.

33.  All in all, I find him to be an unreliable witness.  His suggestion that the 3^rd Collision had already occurred before the 4^th Collision is rejected.  I also find that the 1^st Third Party had managed to stop the 5^th Vehicle in time and the 3^rd Collision was the result of it being hit from the back by the 6^th Vehicle because the 5^th defendant had failed to stop in time.

(e)   Apportionment of Liability

34.  As between the 1^st and 2^nd defendants on one part and the 5^th defendant on the other, I find the 5^th defendant slightly more culpable.  Although the dangerous situation originated from the 1^st defendant’s negligence, the failure of the 5^th defendant to stop resulted in a direct collision with the bus that the plaintiff was in. 

35.  Further, in light of my finding above, the 1^st Third Party could have avoided the 3^rd Collision if it was not hit by the 6^th Vehicle from the back.  I therefore apportion liability between the: (i) 1^st and 2^nd defendants and (ii) 5^th defendant as 30% and 70%.

V.  Conclusion

36.  For the above reasons, I find the 1^st, 2^nd and 5^th defendants liable to the plaintiff in the total sum of HK$140,000 (in the proportion set out above) inclusive of all pre-trial interest from the date of the accident to today.  Interest thereafter is to accrue at judgment rate until full payment.

37.  I see no reason why costs should not follow the event.  Given my findings and rulings above, I make an order nisi that:      

(1) The 1^st, 2^nd and 5^th defendants shall pay the costs of the plaintiff’s claim.

(2) The plaintiff shall pay the costs of the 3^rd and 4^th defendants.

(3) The 1^st, 2^nd and 5^th defendants shall also pay for costs of the 1^st and 2^nd Third Parties.

38.  The aforesaid orders shall include all costs reserved (if any) and are to be taxed if not agreed with certificate for counsel.  In the absence of any application to vary within 14 days, this costs order nisi shall become absolute.

(Victor Dawes) Deputy District Judge

Ms. Doris To instructed by 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 apepal by 1st, 2nd and 5th Defendants refused by the District Court Judge. Please refer to DCPI1720/2009 dated 29 July 2011