KU CHIU CHUNG WOODY v. TANG TIN SUNG

CACV 429/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 429 OF 2002

(ON APPEAL FROM HCPI 288 OF 2002)

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REASONS FOR DECISION

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Hon Rogers VP:

1. I agree with the judgment of Ma JA.

Hon Le Pichon JA:

2. I agree with the judgment of Ma JA.

Hon Ma JA:

Introduction

3. At about 17.50 hours on 7 November 1998, a traffic accident occurred on the westbound carriageway of Cornwall Street (in Kowloon Tong) in which the Plaintiff, who was riding a motorcycle, came into contact with a truck owned and driven by the Defendant. The truck was a medium size goods vehicle.

4. Injuries were sustained by the Plaintiff, particularly to his left side. He is now aged 29 years. The left side of his hip and his left leg sustained fractures. A number of operations had to be performed. His occupation at the time of the accident was a cook but owing to his being unable to stand for long periods, he eventually lost this job.

5. On 17 February 2001, a writ was issued against the Defendant claiming damages for personal injuries. The trial of the action took place before Recorder Ronny Wong SC on 10 and 11 July 2002. In a judgment handed down on 20 September 2002, the learned Recorder found the Defendant liable with no contributory negligence on the part of the Plaintiff. Damages were assessed at $2,207,480.89 (general damages) and $33,531.00 (special damages).

6. By a Notice of Appeal dated 20 November 2002, the Defendant appealed the said judgment but only insofar as the issue of contributory negligence was concerned. There was no appeal against the finding of negligence nor on the issue of quantum. The order sought by the Defendant was that there should be a finding of contributory negligence to the extent of 75% or such other percentage as the court thought fit and that damages should accordingly be reduced.

7. After hearing submissions from Mr Paul Lam (for the Defendant) and Mr Patrick Lim (for the Plaintiff), we allowed the appeal but, notwithstanding that this had not been sought in the Notice of Appeal, ordered that there should be a new trial on the issue of liability. We said that the reasons for decision for this order as well as our decision on costs, would be handed down at a later stage.

The judgment below

8. The westbound carriageway of Cornwall Street has two lanes. These lanes were referred to by the learned Recorder as "Lane 1" (the inside lane) and "Lane 2" (the outside, fast lane) and I am content to adopt the same abbreviations. Both the Plaintiff and the Defendant were travelling westwards along Cornwall Street on the day in question. As they approached an incline on the road, the Defendant's truck was ahead of the Plaintiff's motorcycle. The Defendant intended to take a left turn into a construction site. At some stage, the truck moved to Lane 2 and it was from there that the Defendant then made a left turn. As the Defendant did so, the Plaintiff, who was in the course of overtaking on the inside lane, collided with the truck.

9. In finding liability against the Defendant with no contributory negligence on the Plaintiff's part, the learned Recorder made the following findings of fact:-

"11. Having weighed the evidence before me, I make the following findings on a balance of probabilities :

(a) The Defendant's Truck had moved completely from Lane 1 to Lane 2 in order to gain access into the KCR construction site.

(b) The Defendant did not give any indication of his wish to revert to Lane 1 after having crossed over to Lane 2.

(c) The Defendant did not keep a proper lookout when he tried to revert onto Lane 1 and sought to gain access into the KCR construction site. Given the fact that there was a blind spot in his wing mirror, the Defendant should have undertaken an effective shoulder check by asking Mr. Wong Lung [his passenger] to move either forward or backward.

(d) There were at least 3 to 4 feet between the Defendant's Truck and the pavement for the Plaintiff's motorcycle to pass through. That distance was suddenly reduced when the Defendant's Truck 'moved a bit forward'.

(e) I accept the Plaintiff's evidence that his right shoulder and the back of his motorcycle came into contact with the Defendant's Truck.

(f) It was after this contact that the Plaintiff's motorcycle went through the reduced gap between the Defendant's Truck and the pavement and flashed passed the Defendant's windscreen."

10. He also found the Plaintiff's version of the relevant events credible and preferred his testimony to that of the Defendant. The following parts of the Plaintiff's evidence are important:-

(1) The Plaintiff and the Defendant were at first both on Lane 1.

(2) At some stage, the Defendant then moved completely into Lane 2 and remained there for some 10 to 20 odd seconds.

(3) Seeing this, the Plaintiff then accelerated uphill on Lane 1, but as he did so, the Defendant's truck without any indication then suddenly cut back into Lane 1. As a result, the Plaintiff's right shoulder and the case at the back of the motorcycle came into contact with the truck.

11. The learned Recorder recognised the conflict in the testimonies of the Plaintiff and the Defendant. He said this:

"6. There is therefore a direct conflict between the Plaintiff and the Defendant as to how the accident occurred. The Plaintiff's case is that he had a clear lane in front of him when the Defendant suddenly switched back to Lane 1 from Lane 2. The Defendant's case is that the Plaintiff was trying to squeeze his way through a 1 foot gap between the front of the Defendant's Truck and the pavement."

12. In preferring the Plaintiff's testimony to that of the Defendant, the learned Recorder said he derived assistance from a statement made by one Mr Yam Wing Lun ("Mr Yam") to the police. Mr Yam was an independent witness who at the time of the accident had been driving along Cornwall Street behind the Defendant's truck on Lane 2.

13. As identified by the learned Recorder, Mr Yam's statement was to the following effect:-

(1) He had stopped behind the truck in Lane 2 just before the accident. There was another car in front of him which had also stopped.

(2) The truck was at that time straddled diagonally across Lanes 1 and 2 with its front to the left.

(3) When he first saw the truck, it was stopped in Lane 2 but it "slowly" steered left into Lane 1.

14. The importance of these points just set out is that they appear to be somewhat inconsistent with the Plaintiff's case in that Mr Yam's recollection was not that the truck, while travelling wholly within Lane 2, "suddenly" cut into Lane 1 causing the accident.

15. However, in considering the impact of Mr Yam's evidence, the learned Recorder merely picked out certain aspects of Mr Yam's statement to support the Plaintiff's case, rather than consider his evidence as a whole. He said this:

"10. I am of the view that this statement of Mr. Yam lends general support to the testimony of the Plaintiff. First, he confirmed that the Defendant's Truck was in Lane 2 when he first saw it. It was blocking the traffic in that lane. Secondly, his estimate of the distance between the front part of the Defendant's Truck and the pavement is more in line with the Plaintiff's evidence than that of the Defendant. Thirdly, he corroborated the Plaintiff's evidence that there was no traffic in Lane 1. Finally, he made no reference to any hazard lights or other indicator lights of the Defendant's Truck whilst it was negotiating its turn."

The parties' respective positions on appeal

16. Mr Lam submitted that the learned Recorder had not fully taken into account the significance of Mr Yam's statement. Not only that, the learned Recorder did not even state that he had taken into account at all the testimony given by Mr Yam in some earlier proceedings in the Magistrates Court. Although Mr Yam was not called as a witness in the trial before the learned Recorder, he had given evidence in the trial of the Defendant in the Magistrates Court on a charge of careless driving in relation to the present incident (for which the Defendant was acquitted).

17. Both Mr Yam's statement and the transcript of his testimony in the Magistrates Court proceedings were part of the hearsay evidence adduced by the Defendant for the purpose of the trial. No counter-notice was served by the Plaintiff.

18. The evidence given by Mr Yam in the Magistrates Court proceedings is important in the following respects:-

(1) He confirmed that when the truck was straddling Lanes 1 and 2, it was moving "in a very slow motion".

(2) Not only that, as the truck was moving, it was doing so in a stop-start way.

19. The significance of Mr Yam's version of events is that it contradicts the Plaintiff's case and indeed, if true, might show a certain degree of contributory negligence on the Plaintiff's part. For example, if the truck was straddled over two lanes and was moving (in a stop-start fashion) slowly, the Plaintiff ought to have seen this and acted accordingly. In addition, the Plaintiff ought to have noticed that Mr Yam's car and another car was stationary behind the truck.

20. Mr Lam points out that at trial, both sides emphasised the importance of Mr Yam's version of events, presumably as both sides saw points in his version of events that favoured their respective cases. The Plaintiff's counsel said in his opening at trial that Mr Yam's statement would "throw the most light on how this accident happened" and in his closing, described Mr Yam's evidence as being "crucial". For his part, the Defendant's counsel said in his closing that Mr Yam's evidence was "very, very important evidence" and that Mr Yam had given a version that "gave a very balanced view of what actually happened". The judgment of the learned Recorder shows that he regarded Mr Yam's version of events as being important. In these circumstances, we are bound to agree.

21. Mr Lim submitted that the learned Recorder had considered all the evidence before him, including Mr Yam's statement and his testimony in the Magistrates Court (there is express mention of these proceedings and the Defendant's acquittal in the judgment). Unfortunate though it may have been, Mr Yam was not called as a witness at trial whereas the Plaintiff and Defendant were. The learned Recorder was therefore entitled, so Mr Lim continued, to form a view as to how the accident actually happened on the basis of all the evidence before him, in particular the testimony of the Plaintiff and the Defendant, and it was open to the learned Recorder to use Mr Yam's statement or testimony in whatever fashion he saw fit. In short, the learned Recorder had made findings of fact based on his view of the evidence and the Court of Appeal ought not disturb those findings save for very compelling reasons.

Reasons for order for a new trial on liability

22. As I have said, the Defendant did not seek an order for a retrial in his Notice of Appeal. However, RHC Order 59 rule 10(3) and (4) state as follows:-

"(3) The Court of Appeal shall have power to draw inferences of fact and to give any judgment and make any order which ought to have been given or made, and to make such further or other order as the case may require.

(4) The powers of the Court of Appeal under the foregoing provisions of this rule may be exercised notwithstanding that no notice of appeal or respondent's notice has been given in respect of any particular part of the decision of the court below or by any particular party to the proceedings in that court, or that any ground for allowing the appeal or for affirming or varying the decision of that court is not specified in such a notice; and the Court of Appeal may make any order, on such terms as the Court thinks just, to ensure the determination on the merits of the real question in controversy between the parties." (emphasis added)

23. RHC Order 59 rule 11(1)-(3) govern the making of orders for new trials:-

"11. (1) On the hearing of any appeal the Court of Appeal may, if it thinks fit, make any such order as could be made in pursuance of an application for a new trial or to set aside a verdict, finding or judgment of the court below.

(2) The Court of Appeal shall not be bound to order a new trial on the ground of misdirection, or of the improper admission or rejection of evidence, or because the verdict of the jury was not taken upon a question which the judge at the trial was not asked to leave to them, unless in the opinion of the Court of Appeal some substantial wrong or miscarriage has been thereby occasioned.

(3) A new trial may be ordered on any question without interfering with the finding or decision on any other question; and if it appears to the Court of Appeal that any such wrong or miscarriage as is mentioned in paragraph (2) affects part only of the matter in controversy, or one or some only of the parties, the Court may order a new trial as to that part only, or as to that party or those parties only, and give final judgment as to the remainder."

24. Sub-rule (2) is critical. The Court of Appeal will not order a retrial (which inevitably involves further costs) unless some substantial wrong or miscarriage of justice has taken place. This usually involves two facets:- identifying some error that has taken place (for example the wrongful rejection of evidence) and next, determining whether the error so identified has deprived the party complaining of a substantial and realistic chance of success in the case. In other words, however serious the error, if the Court of Appeal takes the view that ultimately it would have made no difference to the outcome of the case, a new trial will not be ordered. There is a third facet to the exercise:- the Court of Appeal's discretion. A retrial will be ordered not only where it is just to do so (see above), but where it is right to do so. If the Court of Appeal is in as good a position as the Court of First Instance to take a fresh view of the facts, a new trial will not be ordered. One sees the Court of Appeal operate in this way on a regular basis. It is only where the Court of Appeal is somehow disadvantaged in looking at and determining questions of fact that an order for a new trial will be seriously countenanced. In reaching my views here, I have derived much assistance from the commentary in Hong Kong Civil Procedure 2002 Vol. 1 at paragraphs 59/11/1 to 59/11/25.

25. In the present case, I am firmly of the view that a new trial should be ordered on the issue of liability:-

(1) The evidence of Mr Yam was crucial to an understanding of how the accident happened. I give but one instance of this. If the truck was straddling both lanes and was moving slowly, the Plaintiff was perhaps taking a great risk in overtaking the truck on the inside in these circumstances. On the other hand, if the Plaintiff is right and the truck, being wholly within Lane 2, made a sudden left turn, then there probably was not much the Plaintiff could have done to avoid the accident.

(2) As we have seen, counsel for both sides and the learned Recorder obviously recognised the importance of Mr Yam's version of events. Yet when it came to analysing the important aspects of his evidence in relation to how the accident occurred, the learned Recorder did not articulate on why Mr Yam's version was rejected (or more accurately, ignored) when he came to make his findings of fact. I am of the view that for such a crucial part of the evidence to be dealt with in this way (or not dealt with), so uncharacteristic of the learned Recorder, amounted to an error which ought to be rectified. In this way, the Defendant was deprived of the chance of success, at least on its claim of contributory negligence. This amounted to a substantial wrong or miscarriage being occasioned to him.

(3) It is also right that a new trial be ordered rather than, as Mr Lam invited the court, for us to make our own findings as to how the accident occurred. The evaluation of the evidence of the Plaintiff and the Defendant, seen against that of Mr Yam (whom it is hoped will be called at the new trial), is best left to a single judge.

26. The retrial shall also be on the whole issue of liability. Even though in the Notice of Appeal the Defendant had sought to overturn the judgment below only on the issue of contributory negligence, given the nature of the issues likely to arise in the retrial (mainly the question of how the accident happened), it is right that the new trial should be on the issue of liability as a whole. In supplemental written submissions provided to the court after the hearing, the Plaintiff has sought to argue that at the retrial, given that the finding on negligence was not contested in the Notice of Appeal, it would not be open to the Defendant to contest the issue of his own negligence. In my view, Mr Lam is right (in his supplemental written submissions) when he submits that at the retrial, all issues will be open since the "second trial is wholly independent of the first":- see Hong Kong Civil Procedure 2002 Vol. 1 at paragraph 59/11/20. As a matter of principle, in a new trial, there is no question of any estoppel arising from issues decided in the first trial.

27. What I think Mr Lim was really asking for (although dressed up as an argument on costs) was that the retrial should only be on the issue of contributory negligence and not negligence as a whole. However, in my view, it would simply not be right to order a new trial only on the issue of contributory negligence. Indeed, it would be quite impossible to consider the question of contributory negligence in isolation without also considering the facts relating to the negligence or otherwise of the respective drivers. It is to be borne in mind that the consideration by the court of the question of contributory negligence involves a discretionary exercise taking into account all the relevant circumstances: see Wishing Long Hong v Wong Kit Chun (2001) 4 HKCFAR 289, at 297-8 per Sir Thomas Eichelbaum, referring to The Macgregor [1943] AC 197.

28. No doubt in many cases, the court may order a new trial only as to certain issues pursuant to Order 59 rule 11(3) (and the present case is one in that the new trial is directed only to liability and not quantum), but it would be wrong to do so where the issue of contributory negligence is bound up with the question of the Plaintiff's liability as a whole.

Costs

29. I am of the view that although the Defendant has succeeded in overturning the learned Recorder's judgment so that the appeal must be allowed, there should be no order as to costs in the appeal. Two reasons have influenced me here:- first, the order for a new trial has arisen largely without the fault of either party; secondly, although the Defendant has been successful, an order for a retrial was not sought by him in his Notice of Appeal.

30. As for the costs below, the costs should be reserved to the trial judge hearing the new trial. Although Mr Lam is correct to say that the retrial on liability will be independent of the first trial, this is so only as regards the issues that will arise for determination. The first trial may still be relevant when the question of costs is looked at as a whole. As regards the costs of the quantum aspect of the first trial, this should rightly await the outcome of the second trial.

Order

31. The order shall therefore be as follows:-

(1) The appeal be allowed.

(2) There be a new trial on the issue of liability alone before another judge in the Court of First Instance.

(3) There be no order as to costs in the appeal.

(4) The costs below be reserved to the trial judge in the new trial.

(5) The Plaintiff's costs to be taxed in accordance with the Legal Aid Regulations.