HARBOUR FRONT INVESTMENTS LTD. v. LOCK KWOK LEUNG AND OTHERS

HCSA 68/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

SMALL CLAIMS TRIBUNAL APPEAL NO. 68 OF 2002

(ON APPEAL FROM SMALL CLAIMS TRIBUNAL
CLAIM NO. 9554 OF 2002)

____________

____________

_______________

J U D G M E N T

_______________

1. This is an application for leave to appeal against an award made by a Deputy Adjudicator on 8 August 2002.

2. The claim in the Small Claims Tribunal concerned a motor vehicle accident involving the Claimant's vehicle, the 1st and 2nd Defendants' vehicle as well as the 3rd Defendant's vehicle.

3. After hearing evidence from the respective drivers, the Adjudicator found as a fact that the collision was caused by the 1st and 2nd Defendants' vehicle suddenly cutting into the lane of the Claimant's vehicle. The action of the 2nd Defendant (driver) was in turn caused by the cutting of the 3rd Defendant's vehicle into the lane of the 2nd Defendant. The Adjudicator found that the two Defendant drivers were respectively negligent. She concluded that all Defendants were liable to the Claimant. She further apportioned the responsibilities of the two vehicle owners and drivers in the proportion of 35% and 65%.

4. The 3rd Defendant now seeks leave to appeal. Three main grounds have been advanced on behalf of the 3rd Defendant. First, it is argued that the Adjudicator failed to consider whether and to what extent the Claimant was contributory negligent. This is a non-starter. According to the evidence of the Claimant which the Adjudicator accepted in full, the 1st and 2nd Defendants' vehicle cut into its lane at a distance of 10 feet from the front of its vehicle whilst the Claimant's vehicle was lawfully travelling in the fast lane at a speed of 80 km/h. The Adjudicator accepted the Claimant's driver's evidence that he applied his brakes but there were simply insufficient time and space for him to avoid the collision. There can be no possibility of contributory negligence based on those findings of fact.

5. The 3rd Defendant also argues that the Adjudicator failed to consider whether the 2nd Defendant was "contributory negligent". This is a total misnomer; but in any event, the Adjudicator found as a fact that the 2nd Defendant, as driver, was negligent in cutting into the Claimant's lane. That was why she found that the 1st and 2nd Defendants were partially responsible for the collision. I fail to see how she failed to consider the negligence, "contributory negligence" or carelessness on the part of the 2nd Defendant as driver.

6. Secondly, it is said that the Adjudicator erred in relying on the evidence of the 2nd Defendant to find that the 3rd Defendant negligently cut into the 2nd Defendant's lane which in turn caused the 2nd Defendant to cut into the Claimant's lane. It is submitted on behalf of the 3rd Defendant that the Claimant cannot rely on the evidence of the 2nd Defendant to discharge its burden of proof in relation to its case against the 3rd Defendant.

7. I am puzzled by this submission. A claimant or a plaintiff is entitled to prove his case by whatever admissible evidence that has been adduced or is before the tribunal or the court; whether it comes from a co-defendant or indeed from the defendant himself (in such a case very often it comprises an admission from that defendant) does not matter at all. There is nothing in this submission. It is clear that there was ample evidence before the Adjudicator to enable her to reach her findings against the 3rd Defendant.

8. It is also said that the Adjudicator failed to appreciate that there was a conflict of interests between the 2nd Defendant and the 3rd Defendant and she should not have relied on the 2nd Defendant's evidence against the 3rd Defendant. I do not accept this criticism. It is clear that from the outset the Adjudicator was aware of the conflict of interests between the 2nd and 3rd Defendants and the real issue at trial was whether the 2nd Defendant or the 3rd Defendant was telling the truth.

9. Finally, it is argued that the Adjudicator failed to adjust the quantum of damages claimed by the Claimant on account of betterment. This is unarguable. McGregor on Damages (16th ed.) paras 17 and 1328 make it very clear that in a claim of the present type, the cost of repair (as opposed to the cost of a total replacement see Fourth Supplement para 17) of a damaged vehicle need not be discounted to take into account the inevitable betterment or improvement to the vehicle's condition after the repair. The principle has been followed in a District Court decision of mine: Wong Ping Mui v Mak Hung On DCCJ 2874/2001 (12 October 2001). The 3rd Defendant has not been able to refer me to any authority to the contrary.

10. So all in all, there is no arguable ground of appeal. I therefore dismiss the present application for leave to appeal. I make no order as to costs.