CHENG KAN WAI v. KO LEUNG

CACV 121/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 121 OF 2009

(ON APPEAL FROM HCPI NO. 553 OF 2007)

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REASONS FOR JUDGMENT

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Hon Rogers VP:

1.  This was an appeal from a judgment of Burrell J given ex tempore on 20 April 2009.  The judge dismissed the plaintiff’s claim.  At the conclusion of the hearing of this appeal, this court dismissed the appeal with reasons to be given in writing, which we now do.

Background

2.  At 8 a.m. on 25 August 2004 the plaintiff was driving a double decker City Bus from Chek Lap Kok Airport and was nearing the end of his journey.  He travelled down Argyll Street in a westerly direction.  At the junction of Nathan Road the front of his bus was in collision with the rear of a Mercedes car travelling in the same direction.

3.  There were only two witnesses who gave evidence.  The plaintiff said that he had brought his bus to a halt behind the defendant’s vehicle, which was the third vehicle in line stopped at the traffic lights at the junction.  Both vehicles were in one of the middle lanes, that is they were to proceed straight across the junction.  It was the plaintiff’s case that when the lights turned green all the vehicles moved forward but that after the defendant’s vehicle had driven past the white line of the traffic lights, it suddenly came to an abrupt halt.  The plaintiff said in his witness statement that that had been without reason and, when asked by the court when giving evidence as to whether the plaintiff knew why the Mercedes had stopped, the plaintiff said “I do not know.”

4.  The defendant’s evidence was quite different.  The defendant said that when he approached the traffic lights at the junction of Nathan Road and was about 2 cars’ lengths from the white line, he saw the traffic lights were red.  He slowed his vehicle and stopped the car in front of the white line.  About 2 seconds after he had stopped he felt a strong bump on the car and the car was pushed forward into the first lane of Nathan Road.

5.  The photographs of the two vehicles show some damage both to the rear of the car and to the front of the bus.  The plaintiff suffered injuries in the process.

The judgment below

6.  As already noted, the judge came to an immediate decision in the case and gave an ex tempore judgment.  On a fair reading of the judgment it is quite clear that the judge accepted the defendant’s version of the events.  He said:

“For the sake of completeness, having heard both drivers, I am satisfied that the defendant did not drive negligently in any way.  I am satisfied that he was stationary when hit from behind.  He had not braked suddenly for no reason.  Both vehicles were intending to go straight on and were in the correct lane to do so.  The bus simply was too close and failed to stop in time.”

7.  In so saying, the judge clearly was accepting the defendant’s evidence.  However, the judge also analysed what the plaintiff had said.  He pointed out that the plaintiff’s version of events did not indicate negligence on the part of the defendant.  In fact the reverse.  He referred specifically to the fact that the plaintiff had admitted both to the police and in his evidence to the court that he had “braked too late”.  The judge held that the plaintiff must have been driving the bus in a manner where “he either failed to notice that the defendant’s car had braked and/or was travelling too close behind it to avoid the collision.”

8.  In my view this was a clear case.  There was no basis for disturbing the judge’s conclusion, nor for ordering a retrial, as was sought by Mr Lam on behalf of the plaintiff.  Mr Lam sought to rely on the case of Elizabeth v Motor Insurers Bureau 1981 WL 187823 for the proposition that the burden of proof lay upon the defendant to show why he had braked suddenly.  In my view that case is of no assistance in the present case.  In the Elizabeth case the defendant was absent and there was evidence from an independent source that the defendant had braked sharply.  In the present case the defendant was present; he gave evidence; the judge accepted that he had not been driving negligently but rather that he had come to a halt for good reason.  I regret I saw no merit in this appeal whatever.

Hon Le Pichon JA:

9.  I agree.

Hon Stone J:

10.  I entirely agree with the judgment of the Vice-President.

11.  Not only was there no merit in this appeal, but for my part I am unable to understand why it was thought fit even to bring this action on behalf of the plaintiff bus-driver.

12.  Rare it must be when the party alleging negligence is the driver of the vehicle which has rear-ended another stationary vehicle, which was the position in the present instance, and it would only be when it could be established that the driver of the front vehicle had stopped suddenly for no good reason that there could be any hope of even partial success in a negligence action.

13.  Not only does a fair reading of thisextempore judgment make it clear that the judge indeed had accepted the defendant’s version of events – which placed him stationary at the junction before being struck from behind – but in any event it is plain that on the plaintiff’s case – which had the defendant pulling away and then stopping – the plaintiff clearly failed to discharge the burden of establishing causative negligence; as Rogers VP has pointed out, the plaintiff admitted having braked too late, thereby striking the defendant’s car, and into the bargain he was entirely unable at trial to shed any light on why it was that the defendant allegedly had stopped suddenly.

14.  On these facts, it strikes me that this case always was hopeless, and I am surprised that it was thought an appropriate vehicle for what must now surely amount to a significant outlay in costs.