WONG TAK WAI v. TANG KWAI WING AND ANOTHER

HCPI289/96

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES LIST

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J U D G M E N T

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1. On 3 April 1993 at about 1.30 in the morning, over five years ago, the plaintiff was driving his motor car with his wife as passenger along the Castle Peak Road and came to a stop at an intersection in the central reservation between the two carriageways. He intended to make a U-turn and go down the opposite carriageway. Part of the rear of his vehicle no doubt still projected into the outer lane of the carriageway along which he had so recently travelled.

2. Whilst stationary he was struck by the second defendant's vehicle, which was driven by the first defendant. As a consequence of that collision the plaintiff and his wife suffered personal injuries. They claim damages in separate actions. Furthermore, a wheel of the plaintiff's car, which was detached by the force of the collision, went loose and struck a taxi travelling along the opposite carriageway and caused damage to that vehicle.

3. The taxi driver made a claim for the cost of repairs to his vehicle in the Small Claims Court. He sued this plaintiff and the first defendant, but recovered against this first defendant only, the Learned Adjudicator having found that this plaintiff was not to any degree negligent. I shall consider this decision and another made in consequence of it later in this judgment.

4. It has taken five years to have the responsibility for this collision determined in such a straightforward traffic accident. The pleadings seem to have been drafted in such a way as to render the events more uncertain and convoluted than was actually the case.

5. The plaintiff's case is very simple. With his wife as passenger, he was travelling along Castle Peak Road to return to his home in Yick Yuen. His journey, on the Tuen Mun bound carriageway, of necessity took him past the area of his home before there was an intersection in the central reservation to enable him to do a U-turn. This intersection starts virtually opposite a road which leads to Shun Fung Wai. It is on the near side of the carriageway along which the plaintiff and, as will subsequently be seen, the defendant was driving.

6. At the time of this accident there was no prohibition against making a U-turn in that intersection, which is quite a long break in the central reservation. There is now. The intersection was also used by traffic coming from the opposite direction towards Yuen Long which wanted to turn right into Shun Fung Wai Road. There is shown, on a series of photographs, white markings on the outer lane of the Yuen Long bound carriageway and on the intersection, forming a box for such turning traffic, with an indicator arrow also on the road surface. Each carriageway has two lanes for traffic, with a service access lane on the Tuen Mun bound carriageway for traffic turning left or seeking access to the developments on the near side.

7. The plaintiff moved from the slow lane to the outer lane as he approached the intersection on his right-hand or off-side. His speed was about 50 kilometres an hour then, and he slowed down further. He estimated that he moved to this outside lane about one and a half minutes before he reached the intersection. It is notoriously difficult to give estimates in time after the event. He also measured it in terms of seven lamp posts.

8. Whatever the margin of variation, it was not a last second manoeuvre, but one which was carried out in good time and he gave a right-turn signal in preparation. He stopped his vehicle at an angle of about 45 degrees to the intersection in it, with about one-third of his vehicle's length still in the outer lane of the carriageway along which he had travelled. His wheels were turned towards the opposite carriageway with the steering wheel at its extreme right turn.

9. He thought he had been stationary for about one minute when he heard a big bang and lost consciousness. "Big bang" is probably something of an under-statement in view of the nature of the impact, the extent of the damage and the subsequent movement of his vehicle and that of the defendant which had struck him.

10. He thought the sound was to the rear right. I do not see how he could have pin-pointed it; it must have been behind him, but he is likely to have become immediately unconscious. Even his estimate of the period of time for which he was stationary may be mistaken.

11. These are difficult areas for precision, and precision should not be expected of someone who has been in such a collision. They are not matters of importance and do not affect his credibility, even if a degree of inconsistency is apparent, which I do not find.

12. That the force of the impact was substantial is beyond dispute. The plaintiff's vehicle was forced off the intersection, onto the central reservation, demolishing steel barriers en route. The damage was extensive all round the vehicle. The defendant's vehicle, with heavy frontal damage, finally came to rest in the inside lane against a container lorry or, rather, its trailer.

13. The defendant's vehicle had also been travelling along Castle Peak Road and was on its way to Tuen Mun. The defendant driver, Mr TANG Kwai-wing, was taking his passengers home before he returned to his own. His version in this trial was that he had been travelling along the inside lane and pulled out to overtake a taxi. He was then in the outside lane. When he was about 10 metres from the intersection the plaintiff's vehicle emerged from the road to Shun Fung Wai on his near side, cut straight across the two lanes broadside to him, and just reached the beginning of the intersection when he struck it. He had no chance, he said, of avoiding such a collision.

14. It was on the strength of this version, repeated save in one material respect in his police statement, that the police mounted a prosecution. That prosecution collapsed after the defendant gave evidence as the material witness against the plaintiff. He had stated in his police statement that he was travelling in the fast lane. He made no mention of having been in the slow lane and overtaking a taxi. The only mention of a taxi had been to refer to it being in the slow lane far behind him.

15. In his evidence before the magistrate he stated he had been in the inner or slow lane before reaching Shung Fung Wai and switched lanes, i.e., to the outer lane to overtake slower moving vehicles. The taxi was far behind him, about 20 to 30 feet. In his evidence to me he said that the taxi was some 100 metres behind when he was close to the intersection and the road on his near side.

16. Before the magistrate he said that he overtook the taxi when he or it was about one vehicle's length short of the mouth of the side road, i.e., about three metres. The collision occurred, he continued, soon after he moved into the fast lane. Finally, as far as the material matters are concerned, he said that the collision with the plaintiff's vehicle took place when the latter was stationary waiting to go into the other carriageway but blocking his lane.

17. It was not surprising that a submission of no case to answer was made on behalf of the plaintiff, as defendant in those proceedings, and equally unsurprisingly the magistrate agreed. The prosecution had in fact selected the wrong driver to prosecute.

18. On the basis of the oral evidence before me, I have no difficulty in accepting the plaintiff's version of events. He was reasonable, moderate, sensible and impressive in his own way. By contrast, I found the defendant unconvincing and his version unacceptable. The proceedings before the magistrate and the adjudicator serve only to confirm my conclusions.

19. The defendant had ample time and opportunity to see the plaintiff's vehicle stationary, with the rear part of his vehicle still in the outside lane. The street lighting he described as sufficient. His own headlights should have given him ample visibility. There was nothing wrong in that. In any event, the markings on the road in the opposite carriageway envisage part of a turning vehicle remaining in its outside lane. The defendant was wholly to blame for this collision. He was travelling too fast and was not keeping a proper lookout.

20. I need to consider the proceedings brought by the taxi driver in the Small Claims Court, to which I referred earlier. The Learned Adjudicator, as she then was, now Registrar of the High Court, found that the defendant in this action was solely to blame for the collision, as have I.

21. The issue in determining who was to meet the taxi driver's claim for the costs of repair to the damage to his vehicle caused by the wheel, which in the collision between this plaintiff's car and this defendant's vehicle was detached, was who was responsible for the collision between the two vehicles which directly brought about this loss. I agree entirely, with respect, with the findings of the Learned Adjudicator. Before her this defendant had maintained, as he had before me, that he was at all material times in the fast lane when the plaintiff suddenly drove in front of him from a side road.

22. The plaintiff originally pleaded in his statement of claim that the issue of negligence was res judicata by reason of the Learned Adjudicator's finding. However, this contention was, by amendment, abandoned in the following circumstances. The plaintiff's wife commenced a High Court action. The question of whether the issue of negligence, which was of course the same issue in this action, was res judicata in the Small Claims Tribunal proceedings was argued before YEUNG J.

23. He found that it was not res judicata, for reasons that I will deal with in due course. Res judicata is a fundamental doctrine of all courts that there must be an end to litigation. It is essential to show that the cause of action was the same. It clearly was. The issue was negligence and responsibility for the collision between this plaintiff's vehicle and this defendant's vehicle.

24. The plaintiff could not have recovered in the Small Claims Tribunal, as is apparent from the very title of that court. It involved the same parties; this plaintiff and this defendant were both parties to the action; they were defendants sued jointly and severally in the taxi driver's action. The finding on the issue of negligence, and therefore of responsibility, for loss and damage consequent upon the collision was by a competent court of record. It heard all evidence from the parties. It considered submissions on behalf of all parties.

25. The fact that the court of record was a Small Claims Tribunal and that the parties' representatives were not, or may not have been, trained lawyers is of no consequence or relevance. To hold otherwise would be to denigrate such a court and suggest to the public that because the amount of the claim is small they are unlikely to obtain the same quality of justice. I reject such a concept.

26. The public ought to be so reassured, and I do so. Besides, very many road traffic collisions are so straightforward in the issues involved that they readily lend themselves, where the amount of damage is so limited, to the jurisdiction of the Small Claims Tribunals. Litigious lawyers are apt to forget that the resolutions of most such issues are essentially matters of common sense and everyday experience. There is no doubt, in my view, that the adjudicator's decision made a conclusive and unappealable finding in relation to liability in negligence for this collision.

27. I turn now to YEUNG J's finding that the issue was not res judicata, with which I respectfully disagree. The Learned Judge, after considering a number of authorities in the context of the submissions made to him, concluded, as I said earlier, that the Learned Adjudicator's decision was not res judicata of the responsibility in negligence for the collision, which was the identical issue in the plaintiff's wife's claim, this claim and the Small Claims Tribunal claim.

28. In particular, he considered Bell v Holmes [1956] 3AER 449, a decision of McNair J, who enjoyed a reputation as a good practical judge as well as a good lawyer, and Wood v Luscombe [1966] 1QB 169, a decision of Streatfield J, who enjoyed no less a good reputation. He also considered Randolph v. Tuck [1962] 1QB 175, but I am bound to indicate that the circumstances of the accident in that case posed different considerations. The Learned Judge was, in my respectful view, misled essentially by arguments as to the limited jurisdiction and informality of the Small Claims Tribunal. I do not agree that it is less adversarial than, as the Learned Judge found, the common law system. It is part of the common law system and is no less adversarial, as appears from the record of its proceedings, than the High Court.

29. I have elsewhere indicated that the common law system, though adversarial essentially, should, in striving for a fair and just result, not be inhibited from an inquisitorial approach. The absence of legal representation and the relaxation of the rules of evidence, itself adopted to facilitate representation by non-lawyers, in no way affects the standing of the court in its determinations.

30. Similarly, the absence of formal pleadings is no bar to the court's enjoying a proper status. Most road traffic accidents do not need formal pleadings. Indeed, experience of the content and quality of most pleadings suggest that it will not be long before a simple, informal statement of the case and answer would be preferable and, unarguably, more economical. Present pleadings, by and large, pander to lawyers' flights of fancy and a tendency to make some very simple incident appear rather complicated.

31. More importantly, the Learned Judge was persuaded by counsel arguing against res judicata that an opinion by an engineer described as an expert was not before the Small Claims Tribunal, and that opinion, to the effect that the plaintiff in this action was mainly to blame for the collision in question, was sufficient to allow the issue to be reopened.

32. I am not sure from the judgment whether the Learned Judge was asked to consider the said opinion. In my view, he ought to have been, but it is more likely from the text of the finding that he did not. It is patently clear from the consideration of the engineer's report or opinion that it was not an expert opinion. It had no such status. It was simply an extended, somewhat verbose and well-padded review of all the evidence with an opinion as to whom the engineer thought was responsible for the collision. It consisted of about 25 pages, over twice the length of this judgment. It contains much superfluous material and two and a half pages of regurgitated extracts from the Road User's Guide. I have said many times that such reports are valueless. They do not contain expert opinion. They purport to make findings that are the sole preserve or province of the judge who is to try the case.

33. He tries it on the basis of all the evidence adduced and tested before him. The so-called "expert reports", which purport to do that job for him, are at best a partial assessment of documents and possibly, though not always, discuss a visit to the scene and examination of the vehicles concerned. They are irrelevant to a trial.

34. It is important that solicitors and counsel apply their common sense and professional judgment to the circumstances of the accident under consideration before they embark upon expensive, and in most cases that have come before me, unhelpful volumes, the cost of which they are unlikely to recover upon taxation if they succeed at trial. There is considerable authority on this aspect which practitioners seem to have ignored.

35. In this case the report was inadmissible, and I anticipate that the Learned Adjudicator would have rejected it as such. In my judgment, therefore, the issue was res judicata in respect of the plaintiff's wife's claim, as it was in the plaintiff's own claim. The reason I proceeded to hear it on liability, as it were de novo, was that the hearing of the preliminary issue, which the court had decided of its own initiative should be decided in the light of the disclosure of the Small Claims Tribunal decision, was truncated by a late contention that the plaintiff in his amended or reamended statement of claim had abandoned reliance upon it. Accordingly, though raised late and after the defendants had made all relevant submissions, I decided it would not be fair to make my finding in that circumstance.

36. The preliminary issue hearing was therefore adjourned. Shortly thereafter, because of the settlement of a case which had a fixed date for trial before me, it seemed more practical to list this case for a trial on liability. Evidence and submissions were unlikely to occupy more than a day, it would obviate the need for a separate hearing on the res judicata issue, but any finding could be incorporated in the judgment on liability. Accordingly, this is what I have done.

37. There will be judgment on liability for the plaintiff against the defendants for damages with costs. In relation to the hearing of the preliminary issue on 7 June 1999, where the defendants contested the applicability of res judicata, the costs will be to the plaintiffs in any event. They are, in fact, costs in the cause. There will be an order also for a Legal Aid taxation for the Plaintiff.