NG CHUN PUI AND NG WANG KING AND OTHERS v. LEE CHUEN TAT AND ANOTHER

IN THE SUPREME COURT OF HONG KONG

HIGH COURT (Not for Circulation)

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BETWEEN

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JUDGMENT

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1. On the 28th of February 1982 the lst Defendant was driving a coach back to Tuen Mun from Lok Ma Chau with a party of children who had been out on a day's excursion. They were travelling on the Castle Peak Road towards Tuen Mun from Yuen Long. The coach was owned by the 2nd Defendant who was also the lst Defendant's employer. It was in the afternoon of that Sunday. It had been drizzling and the road was wet and slippery, when it got near the 21½ milestone, the coach veered across the road and collided head-on with a public light bus travelling in the opposite direction. One passenger was killed and several were injured. But I am not concerned with the injuries or the quantum of damages; only the issue of liability is to be determined at this stage, the issue of quantum having been deferred.  The sole issue that I am concerned with is whether the lst Defendant was negligent or in other words whether that accident resulted from the lst Defendant's negligence.  I accept Mr. Pritchard's submission on behalf of the Plaintiffs, which was not disputed, that on the doctrine of res ipsa loquitur the coach having gone across the central reservation onto the wrong side of the road, the onus shifts to the Defendants to show that the 1st Defendant was not negligent. (Woods v. Duncan, Bingham's Motor Claims Cases, 9th Ed, p.49, Dunnan v. S.M.T. Co. 1950 SC 136; 141)

2. The evidence led by the Defendants shows clearly that the coach was proceeding along a straight stretch of the road possibly a little in excess of the speed limit of 40 miles per hour. But the speed of the coach is not alleged to be one of the elements of negligence and I am not particularly concerned with that. The coach was travelling in the fast or outer lane and in that lane there was other traffic about 2 coach lengths ahead of it. In the inner lane there was a vehicle about 10 to 20 feet ahead and between that vehicle and the coach there was a blue car travelling a little fastar than the coach. Suddenly that blue car, which did not subsequently stop and has not been traced, cut into the fast lane some 6 to 8 feet ahead of the coach. That was clearly a very dangerous manoeuvre and the 1st Defendant reacted to it by braking and swerving a little to his right. The coach then skidded across the central reservation, as I have said, colliding with the public light bus. The question that I have to resolve is whether that evidence together with certain other details shows that the lst Defendant was not negligent in any way. Clearly the driver of the blue car was negligent. Even more, his manoeuvre was dangerous, but that does not answer the question for if the 1st Defendant was negligent even in a minor degree and even if his negligence contributed to the accident in a very minor degree the Defendants would still be liable .  Mr. Bharwaney referred me to Brandon v. Osborne, Bingham's p.34; Tocci v. Hankard, Bingham's p.85, and Banfield v. Scott (1984) 134 NLJ 550, to illustrate the generous approach adopted by the court where the Defendant is put into a difficult situation. But in those cases the onus did not shift as is accepted it did in this case. Indeed I have considerable sympathy for the 1st Defendant who was put into a difficult situation by the driver of the blue car but as I have said it is not disputed that the onus shifts to him and the 2nd Defendant to rebut the prima facie evidence or presumption that he was negligent. Looking at the evidence it is not clear and has not been established whether the gap between the blue car and the vehicle ahead of it in the inner lane was being closed; that is a material matter because it would mane the action of the driver of the blue car much moke dangerous if the gap was being closed. More to the point, the blue car would have had to cut in even more sharply if the gap was closing and the danger might have been such as would justify a higher degree of braking and swerving. Furthermore the various distances that had been testified to i.e. 6 to 8 feet between the coach and the blue car and 10 to 20 feet between the coach and the vehicle ahead of the blue car and 2 coach lengths between the coach and the vehicle ahead of it in the outer lane all must be regarded as very approximate. Those circumstances must be taken in conjunction with the relatively high speed of the coach regardless of whether or not in excess of the speed limit, regard being had to the wet and slippery conditions, the frequent cutting of lanes by inconsiderate drivers to which both the 1st Defendant and his witness testified, and the stopping of public light buses on the inner lane to pick up and drop passengers. Having regard to the foregoing circumstances and considerations I am not satisfied that the Defendants have by affirmative proof discharged the burden that shifted to them. Upon that basis I find the Defendants liable. In my judgment they have not discharged the burden upon them and I find them liable in damages.

3. Accordingly I give judgment to the Plaintiffs on the issue of liability with costs, the Plaintiffs' own costs to be taxed in accordance with the legal Aid Regulations.