CHIU SHUNG LAM v. TANG CHI SUM TERENCE AND OTHERS

DCCJ2673/2002

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 2673 OF 2002

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J U D G M E N T

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1. This claim originated from the Small Claims Tribunal (SCTC35225/01). On 22nd April 2002, the tribunal on its own motion transferred the claim to the District Court.

2. On 27th September 2000 at about 6:50 pm, there was a road traffic accident involving the following vehicles : a taxi bearing registration mark DN2168 (the "Taxi"), a Mercedes Benz bearing registration mark JC1988 (the "Mercedes"), a Nissan Sunny bearing registration mark HS1884 (the "Nissan") and a BMW bearing registration mark HJ7165 (the "BMW"). These vehicles were being driven in that sequence on the second lane (the "Lane") of the Kowloon-bound Castle Peak Road near Greenknoll Court. There was a chain collision involving all these vehicles and the Taxi also collided with a stationary Toyota Corolla bearing registration mark HX5089 (the "Corolla") on the Lane. The Corolla was stationary on the Lane due to some mechanical fault.

3. There is no dispute that the Plaintiff ("P"), the 4th Defendant ("D4"), the 1st Defendant ("D1") and the 2nd Defendant ("D2") were and are the owners of the Taxi, the Mercedes, the Nissan and the BMW respectively. Chiu Shing Tat ("Chiu"), the 5th Defendant ("D5"), D1 and the 3rd Defendant ("D3") were the respective drivers at the material time.

4. P claimed that D1, D3 and/or D5 were negligent and D2 and D4 were vicariously liable for the negligence of the D3 and D5 respectively. P also relied on the doctrine of res ipsa loquitur as evidence of such negligence and also on the convictions of careless driving against D1 and D3.

5. D1 denied liability and claimed that the accident was caused by the negligence and/or breach of the common law duty of care on the part of P, D3 and/or D5 and also sought to rely on the conviction of D3. A notice claiming indemnity and contribution was issued by D1 against D2 and D3 respectively. D1 also issued a notice claiming indemnity and contribution against P, D2 and D3 in respect of the counterclaim of D4 and D5.

6. Interlocutory judgment was entered against D2 and D3 on 22nd July 2002.

7. D4 and D5 denied liability to P and claimed that the accident was caused by the negligence of Chiu, D1 and D3. D4 and D5 claimed against P, D1, D2 and D3 for loss and damages arising from the accident. A notice claiming indemnity and contribution was issued by D4 and D5 against D1, D2 and D3.

Preliminary matters

8. D2 and D3 were absent at the trial. As there was no order for split assessment of damages, Order 37 rule 3 of the Rules of the District Court provides that damages under the interlocutory judgment against D2 and D3 should be assessed at the trial of the other defendants. However, Mr Tang, counsel for P, informed the court that D2 and D3 had not been involved in any of the interlocutory steps leading to the assessment of damages, including the agreed directions, discovery and witness statements. Upon taking instructions, Mr Tang confirmed to the court that P formally abandoned his claim for assessment of damages against D2 and D3. Ms Cheung, solicitor for D1, and Mr Szeto, counsel for D4 and D5, also confirmed that their respective clients would not make any claim for contribution against D2 and D3. Mr Szeto also confirmed that D4 and D5 abandoned their counterclaim against D2 and D3. In the circumstances, the parties in attendance before the court were agreed that the issues of liability and damages would be resolved amongst them only.

9. Mr Tang, Ms Cheung and Mr Szeto agreed that the statements of the witnesses as to fact do stand as evidence-in-chief. They also agreed that the documents in Part C of the trial bundle were agreed as to admissibility and authenticity. Save for a few photographs which were formally produced, they were also content that I refer to the photocopies in the trial bundle without having sight of the originals.

10. The following witnesses as to fact gave evidence : Chiu and P on behalf of P, D1 himself, D4 on behalf of D5 and himself. Mr Ho Chi Bun and Mr Yau Kwok Kee Sunny, two motor survey experts, gave evidence on behalf of P and D4/D5 respectively. Their status as experts was not disputed.

11. A number of facts appear to be undisputed. First, at the material time the road was dry and traffic was light. It was getting dark but there was street lighting. In any event, there was no suggestion that visibility was other than good. Secondly, the speed limit on that part of the road when the accident occurred was 50 kph. Thirdly, the sequence of events was precipitated by the Corolla having stopped on the Lane and the red public light bus (the "PLB") behind it swerving into the first lane.

12. In the course of making final submissions, despite evidence having been led on the repair costs of the Taxi and the Mercedes, the parties agreed that they would confer to see if agreement could be reached on the quantum of the repair costs of the Taxi and the Mercedes and on the attribution of such repair costs to the front and rear parts of the two vehicles. The repair costs of the Taxi and the Mercedes agreed amongst the solicitors representing P, D1 and D4/D5 respectively as submitted to the court on 16th May 2003 after the trial hearing are as follows :

Taxi
Front part of the vehicle	HK$22,450.10
Rear part of the vehicle	HK$17,611.70
Mercedes
Front part of the vehicle	HK$154,015.00
Rear part of the vehicle	HK$70,445.00

Corolla

13. The driver of the Corolla, To Yu Wai ("To") gave a statement to the police (C76-77) but did not give evidence in these proceedings. He gave evidence as a prosecution witness at the trial against Chiu in TWS1729/2001 on 15th June 2001 ("Chiu's trial") (C175-3 - 175-17). To stated that he travelled along the Lane towards Mongkok at 40 kph. After he went past Greenknoll Court, the Corolla suffered a mechanical fault and came to a standstill on the Lane close to the central divide. To switched on the hazard lights and watched the traffic behind through his rear view mirror.

14. Two to three minutes later, To saw from his rear view mirror that the PLB swerved from the Lane to the first lane at high speed without hitting the Corolla. He kept watching the rear view mirror and saw the Taxi behind him. Almost immediately, within one to two seconds, he heard a "boom" sound and felt the Corolla being hit with some force from behind once and was pushed forward a little. To said the Taxi was very fast and did not stop before hitting the Corolla. He stated that the collision was not caused by the Taxi being pushed forward as a result of being hit from behind. He did not hear any other sound of collision other than the one "boom" sound, which was the collision between the Taxi and the Corolla. To did not pay attention as to whether there was any other "boom" sound after the collision as he was only concerned with his car.

15. When he alighted, To saw there was a chain collision of four vehicles behind him. The Taxi was about three to four feet behind the Corolla. The rear left part and the rear bumper of the Corolla were dented and the front part of the Taxi was also dented. To said that none of the cars have been moved after the chain collision. When he took the Corolla for repairs, he was informed that the mounting of the left side of the Corolla was pushed in and the rear door could not be opened.

P's case

16. Chiu gave evidence in the present proceedings and also as a prosecution witness in the trial against D5 for careless driving in TWS1728/2001 on 13th June 2001 ("D5's trial") (C159-167) and in Chiu's trial (C175-30 - 175-36). Chiu also gave a statement to the police (C72-75). As at the date of the accident, Chiu had 25 years' driving experience and had been a taxi driver for 10 years. He hired the Taxi from P for the evening shift on the day of the accident.

17. At 6:50 pm, he was carrying a passenger in the Taxi travelling along the Lane towards Yaumatei. Chiu stated variously that he was travelling at 45 kph (B57) or 40 kph (C160, C175-31 - 175-33 and viva voce evidence in the present proceedings) and was following the PLB about one (C72 and viva voce evidence in the present proceedings) or one to two private car lengths behind (C160).

18. When Chiu went past Greenknoll Court, that stretch of the road was straight and going slightly uphill. Chiu saw the PLB (which blocked his front view of the Lane) suddenly braking and slowing down, so he also braked and reduced speed to 30 kph. When the PLB then swerved to the first lane and he saw the stationary Corolla about two and a half (B57, C72 and viva voce evidence in the present proceedings) or about three (C160, C175-32 and C175-34) private car lengths in front of the Taxi. Chiu stopped the Taxi about half (B57, C160-161 and C175-35) or one (C72) car length behind the Corolla.

19. In this trial Chiu gave evidence that he pulled on the hand brake as well because the road was mildly uphill and the Taxi might slide backwards; but in Chiu's trial, he said he only pulled on the hand brake after the collision (C175-33). Then one to two seconds after he stopped, Chiu felt the rear part of the Taxi was hit and the Taxi was pushed forward to hit the Corolla. The Taxi bumped outwards towards the left (C166). Chiu alighted and saw a chain collision of three vehicles behind the Taxi. The Mercedes was two to three feet or half a car length behind the Taxi but the Mercedes, Nissan and BMW were all sandwiched together (C162). Chiu did not move the Taxi after the collision (C167).

20. When Chiu inspected the Taxi, he discovered that the front bonnet was folded up and the front lights were damaged. He said the rear part of the Taxi was also damaged : the rear bumper fell off; the chassis was pushed in; and the fuel tank was damaged (C161). Damage to the front part of the Taxi is shown in photograph no 6 taken by the police (C61) and in the survey report (C201). Damage to the rear part of the Taxi is shown in photographs nos 7-9 and 20 (C62-63 and 69) and also in the survey report (C199) where it was shown that the bumper fell down and Chiu had to tie it with a nylon rope.

21. Ho Chi Bun gave evidence that the damage to the front and rear parts of the Taxi were about the same. The damage to the front part was more superficial and the damage to the rear part was more structural. The rear chassis member or frame was quite seriously damaged (C200) although the Taxi could still be driven.

22. Chiu was convicted of careless driving in Chiu's trial. The trial magistrate found that Chiu did not keep a safe distance even on Chiu's case of travelling at 40 kph three car lengths behind the PLB. He also found that as the Taxi was too close to the Corolla, Chiu could not stop in time after spotting the Corolla and therefore the Taxi hit the Corolla as described by To. The trial magistrate found that had there been three car lengths between the Corolla and the Taxi, Chiu would have been able to swerve into the first lane and leave.

D4 and D5's case

23. D5 gave evidence in the present proceedings and gave two statements to the police (C82-85 and C93-95). He also gave evidence as a prosecution witness in the trial against D1 in TWS1727/2001 on 7th June 2001 (C116-120) ("D1's trial") and in Chiu's trial (C175-17 - C175-30).

24. D5 was and is a director of D4 (C238-243). He had 16 years' driving experience. At the material time, he was driving the Mercedes along the Lane returning home from his office in Tsuen Wan. D5 said variously that he was travelling at about 50 kph about two and a half car lengths (B44 and C82) or two private car lengths (C93, C116 and C175-18) or two odd car lengths (ie not exceeding 12 metres) (under cross-examination in the present proceedings) behind the Taxi. D5 was unable to see whether there was any vehicle in front of the PLB.

25. When D5 went past Greenknoll Court, there was a wide left bend going uphill. He said it was moderately steep. The Taxi followed the PLB closely. D5 said he paid attention to the traffic and he maintained the distance separating the Taxi and the Mercedes. Before D5 entered the bend, he saw the PLB in front suddenly swerve from the Lane to the first lane (C117). The brake lights of the Taxi came on showing it was braking immediately. D5 followed suit and stepped hard on his foot brake. Both vehicles still moved forward.

26. In D1's trial, D5 said that after he stepped on the foot brake, in a split second the Taxi stopped and then the Mercedes hit the rear part of the Taxi (C117). On the other hand, in his two statements to the police, Chiu's trial and his witness statement, D5 said that when he stepped hard on the foot brake, the front of the Mercedes dipped but it still moved forward. Then D5 heard a loud "boom" (collision) sound in front although the windows of the Mercedes were closed and the air-conditioning and the radio were on. At that time the Taxi had slowed. Then the Taxi stopped although D5 did not know why (C175-20). D5 said variously that the Mercedes was half a car length (or two metres) (C175-19 - 175-20) or three metres (C83) or two to three metres (B44) or three-quarters car length or four metres (C93 and under cross-examination in the present proceedings) behind and was still moving forward.

27. When the Mercedes neared the rear part of the Taxi, D5 knew it would collide with the Taxi (C93-94). When the Mercedes collided with the Taxi, D5's mind went blank and he did not hear other sounds. As everything happened quickly, D5 did not know whether the Mercedes hit the Taxi at the same time as the Mercedes was hit from behind or whether the Mercedes was hit and pushed forward to collide with the Taxi. Under cross-examination D5 agreed that even if the Mercedes had not been hit by the Nissan, there was a possibility that he would still collide with the Taxi.

28. After he stopped the Mercedes for about one second (C83 and C94) or less (C118 and C175-21), D5 felt the Mercedes was hit from behind again although he was not sure he heard any sound. D5 thought and was sure it was the BMW colliding with the Nissan which caused this further collision with his car (C175-21 - 175-22). D5 felt the impact (which was not strong - C94) because the last three cars were sandwiched together (C175-22).

29. The whole accident took not more than five seconds. D5 considered that the involved drivers were innocent and the PLB was the true culprit (C119). Although he was travelling at 50 kph and was about/less than 12 metres behind the Taxi, D5 in giving evidence in the present proceedings disagreed that he could not stop in time. In his witness statement, D5 said that at the time of the accident, but for the fact that the Mercedes was hit by the Nissan, he would have sufficient time and distance to stop the Mercedes in time (B44). D5 said that the only avoidance action that could be taken was to brake. The drivers could not swerve because there was traffic on the first lane.

30. D5 alighted and discovered the stationary Corolla in front of the Taxi. The front part of the Taxi did not touch the Corolla and the Mercedes was about one metre away from the rear part of the Taxi (C175-23). Later D5 found out that apart from the Corolla, four vehicles were involved in the chain collision. The vehicles had not been moved (C175-23).

31. Both the front and rear of the Mercedes were damaged. The front bonnet of the Mercedes was folded up and the front and rear bumpers were dented. Damage to the front of the Mercedes is shown in photographs nos 9, 10, 22 and 23 taken by the police (C63 and 70) and the damage to the rear part is shown in photographs nos 11, 12 and 21 (C64 and 69). The car repairer told D5 that the rear damage was more severe than the front, contrary to what D5 first thought (C175-27).

32. Sunny Yau said that the force of the collision was greater at the front than at the rear. When D5 braked, the front of the Mercedes dipped. Sunny Yau said that the collision spot was at the middle of the front part of the Mercedes, which hit the rear bumper of the Taxi and caused the chassis and the fender of the Taxi to fold up. Mr Yau opined that had the Mercedes went underneath the Taxi, the damage would have been different. Also, if it was a mere push forward, the damage would not be the same.

D1's case

33. D1 gave evidence in the present proceedings and in D1's trial (C129-134). He also gave a statement to the police (C78-81). At the time of the accident, he had 18 years' driving experience. At the material time he was driving the Nissan on the Lane near Greenknoll Court. He said that the road was going uphill and it was quite steep. He said that the place of collision was a left bend and not a straight road. He also produced some photographs he subsequently took of the scene (exhibit D1).

34. D1 stated in his statement to the police and in his witness statement that he was travelling at 45 kph about four private car lengths (ie 20 metres) behind the Mercedes (B48 and C78). In D1's trial, he accepted that the distance was 12 metres (C131). When the Mercedes turned into the left bend, he lost sight of the Mercedes for a second due to the bend and the uphill gradient. He did not see any accident at the bend. When he turned into the left bend, the Mercedes stopped suddenly and abruptly. At that time, his distance from the Mercedes was less than four car lengths (C132). D1 immediately braked and stopped the Nissan at a distance of about two feet behind the Mercedes (C131). Two seconds later, he heard a bang and felt that the Nissan was hit in the rear. The impact pushed the Nissan forward to collide with the rear part of the Mercedes. He said that if he did not have to brake so abruptly, he could have stopped slowly as he was going uphill and the Nissan's horsepower was only 1500 cc (C132).

35. D1 alighted and saw that the rear of the Nissan was dented with a hole at the back of about four inches in diameter. The left and right rear doors could not open. The vehicle behind was the BMW driven by D3. D1 noticed that the front part of the Nissan was damaged with the front bonnet folded up and the front bumper dented. This is shown in photographs nos 12-14 and 24 taken by the police (C64-65 and 71). Damage to the rear is shown in photographs nos 15-17 (C66-67). D1 stated that the damage to the Mercedes and the BMW was not as severe because they were European cars and his was a Japanese one (C131).

36. Repairs to the Nissan cost HK$37,600.00 and the motor survey fee was HK$650.00, totalling HK$38,250.00. D1 paid HK$4,000.00 of the repair costs and the balance of the aforesaid sums was paid by his insurer. There was no claim by D1 for such loss and damages in the present proceedings.

37. D1 was convicted of careless driving in D1's trial. The trial magistrate found that D1's visibility could not have been blocked and if he had lost sight of the Mercedes for a moment, it meant that he failed to keep a proper lookout. The trial magistrate also found that even on D1's case of travelling at 45 kph about four car lengths (ie 16 metres) behind the Mercedes it was less than the two-second rule under the Road Users' Code (the "RUC").

D2 and D3's case

38. D3 gave a statement to the police (C86-88) and gave evidence as a prosecution witness in D1's trial (C120-126). D3 stated variously that at the material time, he was driving the BMW at 45 kph (C86) or 30 odd to 40 kph (C121) along the Lane from Yuen Long about three and a half to four (C86 and C122-123) car lengths behind the Nissan. When he went past Greenknoll Court, D3 saw the brake lights of the Nissan come on suddenly and heard a "boom" sound in front (C86 and C122). D3 then saw the Nissan collide with the car in front but he could not see the Mercedes. D3 then immediately braked but could not stop in time. One to two seconds later, the BMW collided with the Nissan (C123). At that point the road was straight and D3 could see the Nissan clearly. He did not see any curve in the road (C124). D3 thought the speed limit was 40 kph but was not sure (C124). D3 then alighted and saw that the front bonnet of the BMW was folded up and there was slight damage to the rear part of the Nissan.

Liability

(1) Res ipsa loquitur

39. P and D1 in their pleadings relied on the doctrine of res ipsa loquitur. It is trite that if the circumstances of the incident are known and evidence in respect of the same is to be adduced, the court must examine all the evidence at the end of the case and decide whether on the facts and inferences the court finds that negligence has been established. The burden remains throughout on the party alleging negligence or contributory negligence to prove that damage was caused by the negligence of the alleged parties (see Ng Chun-pui v Lee Chuen-tai & anor [1988] 2 HKLR 425). I draw no assistance from this principle in the present case as the factual matrix of the chain collision was covered in detail by evidence from the parties.

(2) Vicarious liability

40. Mr Tang and Mr Szeto did not dispute that if Chiu and/or D5 were found to be negligent in causing or contributing to the accident, P and/or D4 as owners of the Taxi and the Mercedes respectively would be vicariously liable. There was also no dispute that Chiu and D5 were authorised drivers at the material time.

(3) Convictions

41. P pleaded and relied on D1 and D3's convictions of careless driving. D1 pleaded and relied on D3's conviction of careless driving. D4 and D5 did not include the convictions of D1 and D3 in their pleadings. Although Chiu was convicted of careless driving, D1, D4 and D5 did not refer to such conviction in their pleadings.

42. Normally, the effect of a conviction of careless driving shifts the burden of proof to the person convicted to show that he was not negligent. In Stupple v Royal Insurance Co Ltd [1971] 1 QB 50, in considering section 11 of the Civil Evidence Act (the equivalent of section 62 of the Evidence Ordinance Cap.8), Lord Denning at pp.72-73 said (as approved in Lau Ka Po v Man Cheuk Ming and ors HCPI584/1996 Cheung J (unreported, 10th March 1997)) :

"... The Act does not merely shift the evidential burden, as it is called. It shifts the legal burden of proof ... Take a running-down case where a plaintiff claims for negligent driving by the defendant. If the defendant has not been convicted, the legal burden is on the plaintiff throughout. But if the defendant has been convicted of careless driving, the legal burden is shifted. It is on the defendant himself. At the end of the day, if the judge is left in doubt the defendant fails because the defendant has not discharged the legal burden which is upon him. The burden is, no doubt, the civil burden. He must show, on the balance of probabilities, that he was not negligent : ... But he must show it nevertheless. Otherwise he loses by the very force of the conviction. ...

In my opinion, therefore, the weight to be given to a previous conviction is essentially for the judge at the civil trial. Just as he has to evaluate the oral evidence of a witness, so he should evaluate the probative force of a conviction.

If the defendant should succeed in throwing doubt on the conviction, the plaintiff can rely, in answer, on the conviction itself, and he can supplement it, if he thinks it desirable, by producing (under the hearsay sections) the evidence given by the prosecution witnesses in the criminal trial, or if he wishes, he can call them again. At the end of the civil case, the judge must ask himself whether the defendant has succeeded in overthrowing the conviction. If not, the conviction stands and proves the case."

43. However, Order 18 rule 7A(1) of the Rules of the District Court provides, inter alia, that a party intending to adduce evidence that a person was convicted of an offence by a court in Hong Kong must include in his pleadings a statement of his intention with particulars of the conviction. D4 and D5 referred to the convictions of Chiu, D1 and D3 in their Defence and Counterclaim in the Small Claims Tribunal proceedings. However, after the proceedings were transferred to the District Court, the Defence and Counterclaim of D4/D5 was filed afresh on 26th June 2002. Indeed, at the trial, Mr Szeto only relied on this pleading and made no reference at all to the pleadings in the Small Claims Tribunal, which were not included in the agreed trial bundle. In the present Defence and Counterclaim of D4/D5, not only did they not plead an intention to rely on D1's and D3's convictions, they specifically did not admit such convictions. In the circumstances, D4/D5 are not entitled to rely on such convictions and the principles in the Stupple case in respect of their claim of contributory negligence against Chiu and D1 and their counterclaim against P and D1. Equally, as D1 did not plead an intention to rely on Chiu's conviction in respect of his claim of contributory negligence against P, the aforesaid comment also applies.

(4) Factual scenario

44. The parties were agreed that liability is to be apportioned amongst (a) Chiu/P, (b) D1 and (c) D4/D5 only. There is no doubt that Chiu, D1 and D5 were all experienced drivers. There is no dispute that the Corolla was stationary on the Lane and that the PLB took abrupt but successful evasive action by swerving into the first lane. There was no evidence that other evasive action (eg swerving into the first lane) on the part of Chiu, D1 and D5 was possible or reasonable. Indeed D5's case was that there was traffic on the first lane preventing this option.

45. Having considered the above evidence and bearing in mind the burden of proof discussed above, I am satisfied on the balance of probabilities that Chiu was unable to stop in time and the Taxi ran into the rear part of the Corolla (the "1st Collision"). Then the Mercedes ran into the rear part of the Taxi because it too was unable to stop in time (the "2nd Collision"). At about the same time, the Nissan, which was also unable to stop in time, ran into the rear part of the Mercedes (the "3rd Collision"). The BMW then hit the rear part of the Nissan a second or so later (the "4th Collision") and caused the Nissan to mildly bump into the Mercedes again.

46. The driver of a following vehicle should allow sufficient space to deal with the ordinary exigencies of traffic which are reasonably anticipated. The fact that he was unable to cope with an exceptionally abrupt stop did not necessarily amount to negligence on his part. The distance which should separate the leading and following vehicles depends on many variable factors, including the road condition, the locality, the traffic present, the speed limit, the speed of the vehicles, the opportunity to have a clear view ahead, the stopping distance and other variable factors. It is a question of fact whether a driver acted with proper awareness, skill, judgment and alertness in all the circumstances when a road emergency occurred.

(5) Liability of Chiu/P

47. On Chiu's evidence in the present proceedings, he was travelling at 40 kph and was one private car length behind the PLB. I agree with Ms Cheung's observation that such distance was less than the reasonable gap recommended in the RUC. Chiu said he decelerated to 30 kph when the PLB braked. He was two and a half car lengths behind when he first saw the Corolla. Chiu said he was able to stop half a car length behind the Corolla. Taking D5's evidence that each private car length was about four odd metres, it meant that on Chiu's case he stopped under 10 metres. Mr Tang in his closing submissions was even more conservative and accepted that the distance was less than 8 metres and that Chiu breached the safe stopping distance guidelines in the RUC.

48. I find that in all the circumstances Chiu did not keep a safe distance from the PLB/Corolla and hence could not stop in time, causing the Taxi to run into the rear of the Corolla. This conclusion is supported by (a) To's version of the events (which was given under affirmation in Chiu's trial and tested by cross-examination), and (b) D5's evidence that he heard a "boom" sound (ie a collision) in front before the Mercedes hit the Taxi.

49. Chiu gave evidence that the Taxi bumped outwards towards the left after the collision, and hence was no longer in contact with the Corolla. In such circumstances, the subsequent collision to the rear of the Taxi could not have caused further damage to the front of the Taxi. I find that the 1st Collision and damage to the front part of the Taxi were wholly caused by the negligence of Chiu/P.

50. Mr Tang submitted that D5's version of the events in (b) above should be rejected in favour of D5's evidence in D1's trial which did not refer to the "boom" sound and which was said to be consistent with Chiu's case. I note, however, D5 referred to the "boom" sound in his statement to the police two days after the accident. I do not accept that the reference to the "boom" sound was a subsequent creation on the part of D5. In all the circumstances, I find that there was a "boom" sound in front of the Mercedes before it hit the rear part of the Taxi.

(6) Liability of D4/D5

51. D5's evidence in this trial was that he was travelling at 50 kph (ie at the speed limit) and about two odd car lengths (ie not exceeding 12 metres) behind the Taxi. D5 was a frequent user of this road and he was at the material time going home. Under the RUC, the stopping distance at vehicle speed of 40 kph is 20 metres and that of 60 kph is 35 metres. In my view, the distance maintained by D5 was unsafe and well under the shortest stopping distance for a vehicle travelling at 50 kph. D5 frankly admitted in evidence that the 2nd and 3rd Collisions happened at the same time and he could not exclude the possibility that he would have hit the Taxi irrespective of whether the Nissan ran into the rear part of the Mercedes. I find that the 2nd Collision and the damage to the rear part of the Taxi were substantially caused by the negligence of D5.

52. I do not accept Mr Szeto's submission that the dominant cause of the 2nd Collision was Chiu's failure to keep a safe distance from the PLB/Corolla and therefore D5 did not have a gentler environment to take evasive action. I find that the 2nd Collision was primarily caused by D5's own negligence. D5 was travelling at a higher speed than Chiu. I find that even if Chiu had been able to avoid an abrupt stop, D5 would still have rammed into the rear of the Taxi. D5 should have allowed himself enough room to recognise a developing situation and to react. Not only did D5 fall far short of the shortest safe stopping distance in the RUC, he also failed to meet the two-second rule. I find that the hazard was largely of D5's own making.

53. Although Mr Szeto agreed that the provisions in section 109 of the Road Traffic Ordinance Cap.374 are applicable, he further submitted that the shortest stopping distance in the RUC was not applicable to D5 as D5 reacted immediately by braking when he saw the Taxi's brake lights come on. Hence, it was argued that the "thinking distance" should be discounted. In my view, this cannot be right. No matter how fast a driver reacts, there must of human necessity be a "thinking distance" before observation of the emergency can be translated into evasive action. At 50 kph, a split second can be translated into a travelling distance of several metres. It is incumbent on the driver to include the "thinking distance" in maintaining a safe gap with the car in front.

54. I also reject Mr Szeto's submission that as P failed to prove that Chiu stopped in time before the Taxi was pushed from behind to hit the Corolla, the whole of P's claim must fail. I find that there is sufficient evidence to support the plea and I have found that D5 negligently drove the Mercedes to cause it to collide with the rear part of the Taxi. This is an element of the claim by P which has been proved on the balance of probabilities.

55. Was the damage to the rear part of the Taxi and the front of the Mercedes caused solely by the 2nd Collision or by the 3rd and/or 4th Collision pushing the Mercedes into the Taxi as well? There was no evidence from Chiu that the Taxi was hit twice. In any event the Taxi was bumped outwards upon the 1st Collision. In its final position, the Taxi was not in contact with the Mercedes, so it was probable that it was bumped outwards by the 2nd Collision as well. There was no evidence that the Mercedes was pushed forward by the 3rd or 4th Collision. D5 said that the 4th Collision was mild. Ho Chi Bun gave evidence that the damage to the front and rear parts of the Taxi were about the same although the nature of the damage was different. He also said that he could not tell from the condition of the Taxi whether it had been hit more than once. I also bear in mind that D1 was travelling at a lower speed than D5 and that the horsepower of the Nissan was only 1500 cc as compared with the 2400 cc horsepower of the Mercedes. D1 said the Mercedes was a much stronger vehicle than the Nissan and the road was going uphill. I therefore find that Chiu was negligent and liable for 20% of the damage to the rear part of the Taxi as a result of the 2nd Collision and D5 was liable for 80% of such damage due to the 2nd Collision. The same apportionment of liability applies to the damage to the front part of the Mercedes. The 3rd and/or 4th Collisions did not contribute to such damage.

(7) Liability of D1

56. D1's case was that he was travelling at 45 kph and was four car lengths (ie 20 metres) behind the Mercedes. I do not accept that the collision spot was at a left bend. I accept the independent evidence of PC34062 (tested under cross-examination in D1's trial) that the relevant stretch of the road was straight. In any event, upon looking at the photographs of the scene taken by D1, I find that D1's visibility could not have been blocked at four car lengths behind the Mercedes. Therefore, I find that the failure of D1 to observe the Mercedes for a second delayed his reaction in braking. So when he observed the Mercedes stopping, it was less than 20 metres away. In such circumstances, in light of the gap between the Mercedes and the Nissan, and the stopping distances and the two-second rule recommended in the RUC and even bearing in mind that the road was going uphill, I cannot accept D5's assertion that he was able to stop the Nissan in time and that it was pushed into the Mercedes by the BMW. D5 was adamant that the Mercedes was hit twice in the rear. I find that the Nissan ran into the rear part of the Mercedes and this was the 3rd Collision. I further find that D1 failed to keep a proper lookout and a safe gap from the Mercedes and was liable for 80% of the damage to the rear part of the Mercedes arising from the 3rd Collision, and that D4/D5 contributed to remaining 20% as a result of D5's driving.

57. I also find that 4th Collision occurred one to two seconds later. This was asserted by D1 and confirmed by D5 who felt the impact of a softer second collision at the rear part of the Mercedes which he believed was caused by the BMW hitting the Nissan. D3 also accepted that the BMW ran into the rear part of the Nissan. I do not find that the 4th Collision contributed to damage to the Mercedes or the Taxi.

Quantum of damages

58. P gave evidence. He is the registered owner of the Taxi (C189). On 27th September 2000, he let the Taxi on hire to his brother Chiu. After the accident, P sent the Taxi to Ming Chi Car Consultant Company to prepare a report. The repairs were completed by 12th October 2000. P claimed the following loss and damages :

(a)	Repair costs of the Taxi	HK$40,061.80
(b)	Hire charges for 14 days at HK$650.00 x 14 days(day shift at HK$320.00 and night shift at HK$330.00)	HK$9,100.00
(c)	Vehicle registration search fees (HK$45.00 x 3)	HK$135.00
(d)	Motor survey fee	HK$750.00
		HK$50,046.80

59. The parties have agreed that the repair costs of the Taxi were HK$22,450.10 + HK$17,611.70 = HK$40,061.80. The repairer Wing Shing Motor Service issued a receipt for the sum of HK$40,061.80 on 12th October 2000 (C225). Given the aforesaid analysis on liability, D4/D5 are liable for 80% of the repair costs in respect of the rear part of the Taxi in the sum of HK$17,611.70 x 80% = HK$14,089.36.

60. The vehicle registration search fees of HK$135.00 were intended for collation of evidence for the present proceedings. This sum cannot be claimed as damages but should be treated as part of the costs of the present proceedings which I shall come to presently.

61. The motor survey fee of HK$750.00 was supported by a receipt dated 28th September 2000 (C195).

62. By a car rental agreement made between P and Chiu on 9th August 2000, Chiu hired the Taxi for night shift work at HK$330.00 per shift (C191). P gave evidence under cross-examination that this agreement continued to be effective until such time as Chiu may decide not to work the night shift any more and want to cancel the agreement. P accepted that a driver on night shift was paid according to shifts worked. But if the driver went on leave, he might arrange for a substitute driver. P said that he would have rented out the Taxi within the 14-day period when the Taxi was being repaired. Ms Cheung and Mr Szeto submitted that there was no sufficient evidence to show that the Taxi would have been rented out during the repair period.

63. No supporting documents were adduced in support of the claim for loss in respect of the day shift although P said that he should have a rental agreement for the same. Then P said that he himself worked the day shift. He accepted that as owner-worker for the day shift, relevant expenditure had to be deducted from the earnings. However, there was no need to deduct fuel cost from the earnings as it was the responsibility of the driver to fill up the fuel tank. P said that substitute driver(s) might take up the day shift on his days off. P admitted that he had not disclosed any documentary support (including his tax return) to show that he was able to make a profit for the period of repair of the Taxi. But he made sufficient earnings to support his family.

64. I find that the P has proved on the balance of probabilities that he would have rented the Taxi to Chiu/substitute drivers for the night shift at HK$330.00 per shift for the repair period. P was clear in his evidence that the relevant rental agreement would continue to be effective until Chiu decided to stop work. Whilst I accept that P would have worked the day shift, there was no evidence before me of his earnings and expenditure although P said that he did have such documentation. The claimed rental of HK$320.00 per day shift is not an appropriate basis for calculating P's income, which should be assessed on the basis of profit and loss. As there is no evidence of any profit made by P, I decline to make any award of damages for the day shift.

65. The further loss incurred by P was HK$750.00 + (HK$330.00 x 14 days) = HK$5,370.00. Such loss was caused by the collision damage to both the front and rear parts of the Taxi. Chiu/P was liable for the whole (ie 100%) of the damage to the front part of the Taxi and for 20% of the rear damage. D4/D5 were liable for 80% of the rear damage. Relying on this apportionment of liability in relation to the whole vehicle, D4/D5 should be liable for 40% of the further loss of HK$5,370.00, ie HK$2,148.00.

66. D4 claimed the following loss :

(a) Repair costs of the Mercedes	HK$225,445.00
(b) Motor survey fee	HK$810.00
(c) Extra travelling costs during repair	HK$6,000.00
	HK$232,255.00

67. Despite the pleaded claim for repair costs of HK$225,445.00, the parties agreed that the repair costs of the Mercedes were HK$154,015.00 + HK$70,445.00 = HK$224,460.00. As a result of such agreement, there is no need to consider further D5's claim for the sum of HK$985.00 being the cost of one piece of "Tail Lamp, RH" (C227). By reason of the above analysis on liability, P was liable for 20% of the repair costs of the front part of the Mercedes, that is HK$154,015.00 x 20% = HK$30,803.00 and D1 was liable for 80% of the repair costs of the rear part of the Mercedes, ie HK$70,445.00 x 80% = HK$56,356.00.

68. The motor survey fee of HK$810.00 was supported by an invoice by Sunny Yau Motor Survey Co Ltd (C224).

69. D5 said he used the Mercedes to travel to and from work (ie between his home in Kowloon Tong and workplace in Tsuen Wan) and to visit clients. He also used the Mercedes for going out on Sundays and public holidays. The repairs to the Mercedes took over two months, during which period D5 travelled by taxi. At taxi fares of HK$200.00 per day, the total taxi fares would be HK$12,000.00. D5 estimated that his monthly fuel expenditure for the Mercedes was about HK$3,000.00, so his net travelling expenses for the car repair period were HK$12,000.00 - (HK$3,000.00 x 2) = HK$6,000.00.

70. D5 did not adduce any taxi fare receipts but said that at the time of the accident such mechanism had not been implemented yet. D5 agreed that D4/D5 had not submitted any document showing that the repairs of the Mercedes took 2 months nor the fuel expenditure each month. Mr Szeto submitted that the letter dated 13th November 2000 from D4's motor surveyor to D4 and D5's insurer (C226) and the invoice from the repairer of the Mercedes dated 29 November 2000 (C229-236) showed that the Mercedes was still under repair then.

71. Ms Cheung submitted that D5 did not refer to the claim for travelling costs of HK$6,000.00 at all in his witness statement. She submitted that there was no evidence of the period of repair for the Mercedes nor any explanation as to why the repair period took two months. The invoice and the letter from the motor survey expert were not sufficient evidence. Further, there was no evidence of the amount of fuel charges incurred by D5 each month.

72. In all, I find it reasonable for D5 to travel by taxi whilst the Mercedes was under repair. However, I am not satisfied on the balance of probabilities that two months would be a reasonable period for the repair of the Mercedes. No evidence was produced of D5's fuel expenditure and no evidence is given of the savings in parking fees when, say, D5 took a taxi instead of driving the Mercedes when he visited clients or going out on rest days and public holidays. In the circumstances, I am prepared to accept HK$4,000.00 as a reasonable amount under this head.

73. The aforesaid further loss was caused by the collision damage to both the front and rear parts of the Mercedes. P/Chiu were liable for 20% of the front damage, D1 was liable for 80% of the rear damage and D4/D5 were responsible for 80% of the front damage and 20% of the rear damage. Relying on this apportionment of liability in relation to the whole vehicle, Chiu/P, D1 and D4/D5 should bear 10%, 40% and 50% of the sum of HK$4,000.00 + HK$810.00 = HK$4,810.00 in their respective shares of HK$481.00, HK$1,924.00 and HK$2,405.00.

Conclusion

74. In the circumstances, there will be judgment in favour of P against D4 and D5 for the sum of HK$16,237.36 (ie HK$14,089.36 + HK$2,148.00) with interest thereon at 8% pa from the date of the filing of the claim in the Small Claims Tribunal (ie 1st August 2001) to the date of judgment and thereafter at judgment rate until the date of payment. P's claim against D1 is dismissed.

75. There will be judgment in favour of D4 and D5 against P on the counterclaim for the sum of HK$31,284.00 (ie HK$30,803.00 + HK$481.00) with interest thereon at 8% pa from the date of the filing of the claim in the Small Claims Tribunal (ie 1st August 2001) to the date of judgment and thereafter at judgment rate until the date of payment.

76. There will be judgment in favour of D4 and D5 against D1 on the counterclaim for the sum of HK$58,280.00 (ie HK$56,356.00 + HK$1,924.00) with interest thereon at 8% pa from the date of the filing of the claim in the Small Claims Tribunal (ie 1st August 2001) to the date of judgment and thereafter at judgment rate until the date of payment.

77. D4 and D5's claim for contribution against D1 in respect of P's claim is dismissed. D1's claim for contribution against P in respect of D4 and D5's counterclaim is successful to the extent that I have found that P is 20% liable for the damage to the front of the Mercedes and 10% of the further loss claimed.

78. There is no reason why costs should not follow event. The parties submitted that the costs of the proceedings in the Small Claims Tribunal (which have been reserved for my decision) should also follow the order for costs to be made in the present proceedings. Ms Cheung objected to the granting of certificate for counsel.

79. I therefore make an order nisi that P should be awarded costs of his claims in the present proceedings and in the Small Claims Tribunal proceedings (the "Actions") against D4 and D5, and P shall pay D1's costs of the Actions. One cannot criticise P for joining D1 as party to the proceedings and in light of the fact that D4 and D5 expressly claimed contributory negligence against D1. Although there is some justification for P to continue to prosecute his claim against D1 , this itself is not per se a sufficient reason for saying P should not be subject to the usual consequence of having had to pay D1's costs for not being able to prove his case against D1.

80. I further make an order nisi that (a) D4 and D5 should be awarded costs of their counterclaim in the present proceedings and in the Small Claims Tribunal proceedings against D1 and P, (b) D1 should be awarded costs of D4/D5's contribution proceedings against him, and (c) D1 should be awarded costs of his contribution proceedings against P in respect of D4 and D5's counterclaim.

81. The aforesaid costs should be taxed if not agreed with certificate for counsel.