LAI WAI FUN v. WONG SHUN HUNG

HCPI 1115/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.1115 OF 1999

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R U L I N G

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1. This is a fatal accident claim arising out of a traffic accident which happened on 13 March 1998 and in which, one Lai Wai Fun ("the Deceased") received severe injuries and from which she died the same day. The action is brought by the plaintiff, being the husband of the Deceased, on behalf of the estate of the Deceased as well as for the dependants of the Deceased. The claim is brought against the 1st defendant, being the driver of a light goods vehicle with registration mark GF7873 ("the LGV" ) which was involved in this accident. There is also a 2nd defendant to this claim, being the employers of the 1st defendant at the time of the accident. There is no question but that the 1st defendant was driving the LGV in the course of his employment at the material time.

2. Interlocutory judgment was ordered against the 2nd defendant in favour of the plaintiff on 20 December 2000 with damages to be assessed. The plaintiff's claim against the 1st defendant was settled between them on the first day of the trial set for this matter. The only matter left outstanding is the Contribution Notice issued by the 1st defendant against the 2nd defendant. This judgment therefore deals only with that Contribution Notice.

Background Facts

3. On 13 March 1998, the 1st defendant was driving the LGV coming down Garden Road. When he got to the light control crossing at the junction of the bottom part of Garden Road with Queen's Road Central, the traffic lights turned green in favour of pedestrians. However, the LGV was unable to stop and overshot the stopping line by some 12 metres knocking down a number of pedestrians crossing at that part of the road, as well as pinning the Deceased against a concrete hoarding which had been erected for the purpose of the demolition of the former Hilton Hotel.

4. Subsequent investigation by the police into this accident revealed that the LGV was seriously overloaded. It had a loading capacity of 5,500 kgs but was in fact carrying a total weight of 9,540 kgs. The motor vehicle examiner's report revealed that because of the overloading, the efficiently of the service brakes was reduced to 34% and that of the parking brakes to only 5%. But when the load was reduced to within the permitted loading capacity, the braking efficiency was 70% for the service brakes and 20% for the parking brakes. The legal requirement for the brakes efficiency of the service brakes is 50% and that of the parking brakes 16%.

5. As a result of this accident, the 1st defendant had pleaded guilty in the Magistrates Court to driving a vehicle which exceeded its permitted gross vehicle weight. Although the 1st defendant was also summoned for the offence of causing death by reckless driving and also failing to comply with traffic light signals, he was acquitted of both these charges after trial before the magistrate.

6. All the matters stated in the background above are not in dispute.

The 1st defendant's claim for contribution

7. At the trial of this action, the 2nd defendant did not see fit to appear either in person or through legal representatives. It was therefore left to the 1st defendant to prove its contribution claim against the 2nd defendant after settling with the plaintiff in this matter.

8. The basis for the 1st defendant's claim for contribution against the 2nd defendant was, firstly, the LGV in question had been used for several years by the 2nd defendant, a construction and engineering company. Unknown to the 1st defendant at the time of the accident (the 1st defendant, having been only employed by the 2nd defendant for one or two weeks prior to the accident), the LGV in question had been installed with a hydraulic crane on its body. There is some suggestion that the installation of this hydraulic crane was not authorized and thus unlawful. There is no doubt that it had significantly increased the gross weight of the vehicle itself. When he drove the LGV down Garden Road, it was only half loaded with wet sand and mud. According to the 1st defendant, this half load of wet sand and mud did not put him on notice that there was any problem with the gross weight of the vehicle and, therefore, no steps were taken by the 1st defendant to ascertain the gross weight of the LGV before driving it down Garden Road.

9. On the other hand, the 1st defendant alleges that the 2nd defendant knew or ought to have known of the mounting of the hydraulic crane on the body of the LGV which substantially added to the gross weight of the vehicle and, therefore, the 2nd defendant was under a duty either to have ascertained the gross weight of the LGV before allowing the 1st defendant to drive off with it, or else to have alerted the 1st defendant to that fact and for him to take the appropriate steps before he was permitted to drive the LGV on the road, especially downhill.

The evidence

10. Evidence was given by the 1st defendant to the fact that this occasion on 13 March 1998 was the first time he had ever driven the LGV with a load down Garden Road. That for the one or two weeks when he was employed by the 2nd defendant, he drove in a vicinity of Western, Sheung Shui and Central. Throughout the journey coming down Garden Road, the 1st defendant had his foot on the brake pedal maintaining the LGV at around 40 km/h. About three to four car spaces before he came to the traffic lights in question, the lights turned red for vehicular traffic and it was then that he found that he could not slow down the LGV. He tried to change the gears from third to second and then to first. But before that could be done, the LGV had already overshot the stop line, knocking down some of the pedestrians crossing the road. The 1st defendant then steered the LGV to the left against the concrete barrier in an attempt to stop it.

11. The evidence of a co-worker who was also on board the LGV (given by way of Witness Statement) was also relied upon by the 1st defendant. The co-worker's evidence was to the effect that he was the person responsible for loading the wet sand and mud onto the LGV. He had been employed by the 2nd defendant for about four years, and that this LGV had been used by the 2nd defendant during the time that he was employed there, and that the hydraulic crane had been mounted onto this LGV for several years before the date of the accident. According to the co-worker, there was no weighing machine at the site on the peak for him to weigh the total weight of the LGV after loading. Nor had the 2nd defendant ever given him any instructions concerning the weight of the LGV. Since he had only loaded half the LGV with wet sand and mud, he did not think that there was any problem that the LGV was in excess of the permitted gross weight. He also gave evidence that as they approached the traffic lights in question, he heard the 1st defendant shouting words to the effect that he could not slow down the LGV.

12. The 1st defendant also relied upon the evidence adduced in the Magistrates Court proceedings, a full transcript of which was put into evidence. The material part of the evidence contained in the transcript was, firstly, that the Government Motor Vehicle Examiner, Mr Yuen Kam Lun, agreed in cross-examination that because of the crane which was mounted on the LGV that had vastly reduced the legal load-carrying capacity of the LGV, and that may not have been immediately apparent to a driver who came along to drive the LGV. The second piece of evidence relied upon in that transcript was the evidence given by a motor vehicle expert, Mr Seymour-Hart, whose evidence was that because the 1st defendant had to apply the brakes on numerous occasions while coming down Garden Road, that would cause the brake temperature to increase significantly, and there would come a time when suddenly because of "brake fade" due to the increased brake temperature, the driver could find that the vehicle is not slowing down despite the foot brakes being applied.

Findings

13. I have no hesitation in coming to the finding that the accident was caused because of the overloaded condition of the LGV which led to what the experts called "brake fade", the effect of which is that the foot brakes temporarily, because of the heat in the brakes, loses its efficiency altogether. The primary cause was therefore the overloaded condition of the LGV. Secondly, whether or not the hydraulic crane mounted on the back of the LGV was authorized or not, it greatly reduced the load-carrying capacity of the LGV. Even if that was authorized, the 2nd defendant was under a duty to take such steps as to see that the load put on the LGV would not exceed the permitted gross weight of the vehicle. Not only that the 2nd defendant failed to do this, the 2nd defendant furthermore failed to alert the driver or even its other employees of this fact. Nor did the 2nd defendant provide proper facilities such as a weigh bridge at the site to ascertain the gross weight of vehicles before it drove off. In that respect, the 2nd defendant was very much to blame for the overloaded condition of the LGV.

14. On the other hand, in so far as the 1st defendant, being the driver of the LGV was concerned, he is under a duty to other all road users when driving the LGV to be reasonably sure that the LGV was not in excess of its permitted gross weight. That duty is not discharged simply by looking at the amount of wet sand and mud which is loaded onto the LGV. The fact that this is a light goods vehicle and it had mounted on it a hydraulic crane which is visible to everyone ought by itself to have alerted the 1st defendant to take some steps to be reasonably sure that the LGV was not overloaded even with a half-full load. This, the 1st defendant failed to do. He merely relied on the judgment of others. In this sense, therefore, the 1st defendant was also negligent.

15. I do however accept the submission that the majority of blame-worthiness fell upon the 2nd defendant as he was in a better position to know of the installation of the hydraulic crane which greatly reduced the load-carrying capacity of the LGV rather than the 1st defendant.

16. In all the circumstances of this case, I would apportion liability between the defendants as 20% on the 1st defendant and 80% on the 2nd defendant.

17. In so far as quantum goes, the amount of damages by which the 1st defendant settled with the plaintiff was approved by me since infant interests was involved. The 2nd defendant not having appeared at the trial and therefore not having disputed the amount of quantum agreed between the plaintiff and the 1st defendant, that agreed quantum can be taken to be as good an assessment as any.

18. The above apportionment of liability would apply, as between the defendants themselves, to the amount of damages recovered by the plaintiff as well as the costs of the action recovered by the plaintiff.

Costs of the Contribution Proceedings

19. In so far as the costs of the contribution proceedings are concerned, there will be a costs order nisi that the 2nd defendant do pay the 1st defendant one half of the costs of the contribution proceedings on the basis that both defendants were to blame for this accident.