CHEUNG SHUI MING v. JEFORD INDUSTRIES LTD. and Another

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No. 90
(Civil)

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J U D G M E N T

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Leong, J.A. (giving the judgment of the Court):

1. On 9.4.1994 at about 8:30 p.m. a traffic accident occurred at the junction of Rutland Quadrant and Waterloo Road, Kowloon. The junction was controlled by traffic lights operated in such sequence that when the lights were green in favour of the traffic along the north bound carriageway of Waterloo Road, the lights were red against the traffic emerging from Rutland Quadrant into Waterloo Road and vice versa. There was no dispute that these lights were working properly on that night. The accident involved the respondent's (plaintiff's) private car at the time being driven by a Mr. Wan and a van owned by the 1st appellant (lst defendant) and driven at the time by the 2nd appellant (2nd defendant).

2. The private car was going north along the fast lane of Waterloo Road while the van was going east out of Rutland Quadrant to turn right into the south bound carriageway of Waterloo Road. The two vehicles collided at the junction near the fast lane of the north bound carriageway of Waterloo Road. The respondent's car was damaged on the left front and side while the appellants' van was damaged on the right front. No one was injured in the accident.

3. The respondent subsequently issued a writ in the District Court against the appellants alleging negligence on the part of the appellants and claimed damages. The appellants on the other hand counterclaimed for damages, also alleging negligence on the part of the respondent's driver.

4. The trial before Judge Chu in the District Court was on liability only. The parties did not dispute the quantum both of the claim and counterclaim.

5. On 4.2.1997, the District Judge gave judgment for the respondent and awarded damages in the sum of HK$90,375 against the appellants. It is against this judgment that the appellants now appeal. There are a number of grounds in the perfected grounds of appeal and these can be put shortly as follows:

1. The judge had failed to consider all the evidence and the defence and counterclaim.

2. The judge had failed to give weight to the unchallenged evidence that the van was coming into the junction at 10 - 15 kph and the car driver's view to the left was not blocked so that there was no reason why the car could not have been stopped in time to avoid the collision. Also the judge had failed to consider the evidence that the van had stopped and was turned anti-clockwise as a result of the collision, which shows that the car was being driven at high speed.

3. The judge was wrong to assess the credibility of the 2nd appellant based on the inconsistencies between his cautioned statement and witness statement, which was an elaboration of the former.

4. The judge's finding on the manner in which the white vehicle had travelled was pure speculation.

5. The judge's finding that the 2nd appellant was driving against the traffic lights was wrong.

6. In addition Mr. Mui for the appellants this morning complained that the appellants had pleaded that the van was driving on a green light and the car was driving against the red light and the judge did not deal with that.

7. The evidence of Mr. Wan the driver of the respondent's car was that he was doing 40 - 50 kph when he drove across the junction. After he passed the traffic lights which were in his favour, he noticed the appellants' van on his left at close distance. He applied his brakes but that did not prevent a collision with the van. Expert evidence was called and this indicated the respondent's car could have a failure in the brakes as a result of the collision. There was no evidence that the brakes of the car were defective before the accident.

8. The evidence of the 2nd appellant who drove the van was that he waited at the junction until the traffic in Waterloo Road had stopped. Thereafter he waited for another 50 seconds until the lights turned green in his favour before he moved into Waterloo Road. When he was well into the junction at 10 - 15 kph, he noticed the respondent's car coming at high speed from his right in the fast lane of Waterloo Road. He braked but could not prevent his van from being hit by the car. There was a white private car on his left which turned into Waterloo Road at the same time as he did. His van went into a spin after being hit and when it came to a stop, he found the white vehicle was beside him. However, his evidence that he had stopped to wait for the lights to turn green was found by the judge to be inconsistent with what he told the police in his witness statement after the accident.

9. The trial judge was thus faced with two opposite versions of how the collision occurred, each claiming the other's car had jumped the lights and driven fast into the junction. In addition the appellants claimed that the respondent's car had driven at a speed higher than 40 - 50 kph because the respondent's car did not stop immediately after the collision. In this regard, the judge said this in his judgment:

"In essence, both drivers claimed that they entered the junction in compliance with the governing traffic light and that the other driver acted in defiance of the governing traffic light. If either of these was true and being accepted, the other driver must be negligent and at fault. Credibility and reliability of their evidence therefore form the core issue in this case. It is to be pointed out that no prosecution had been instituted against either driver over this accident."

10. The trial judge in resolving these conflicting versions, had recourse to the agreed plan of the location of the junction. She found the junction was so constructed that drivers travelling north along Waterloo Road could not see vehicles emerging from the third lane of Rutland Quadrant and drivers in the third lane of Rutland Quadrant could not see the traffic on the northbound carriageway of Waterloo Road until they have gone into the junction and therefore it was paramount that the traffic lights at the junction were strictly observed. She found that because of this layout, Mr. Wan could not see the van until he had driven past the traffic lights. The judge also found the failure of the car stopping immediately and the final positions of the vehicles after the collision were no indication that Mr. Wan was driving at a speed higher than 40 - 50 kph.

11. The judge considered the 2nd appellant's evidence as to the white car inherently improbable and she demonstrated its implausibility by reference to the way the white vehicle would have travelled in the normal course of things but not likely in the way as the 2nd appellant described. The judge was not entering into speculation in so doing. The judge also found the 2nd appellant's evidence inconsistent with what he told the police in his witness statement. In assessing his credibility, the judge as she was entitled to, took this into account.

12. After she considered all the evidence, her finding as regards the evidence of the 2nd appellant is this:

"In short, the account related by the 2nd defendant is inherently implausible and contains features which are rather inexplicable and I reject it."

13. As regards the evidence of the car driver Mr. Wan, she said this:

"I find, on a balance of probabilities that the course of the accident is as described by Mr. Wan for the Plaintiff."

14. The judge accepted the evidence of Mr. Wan and based on his evidence and the report from the Transport Department, she concluded in these terms:

"I find as a fact that the 2nd defendant had driven into the junction when the traffic light governing was not in his favour. Accordingly, it was his negligence and fault which brought about the collision. There was no contributory negligence on the part of the plaintiff's driver, Mr. Wan as the traffic light was in his favour and he had every right to enter and drive past the junction."

15. By this the judge had also implicitly rejected the allegation that Mr. Wan was driving at too fast a speed or otherwise negligent at the time.

16. The matters raised in the grounds of appeal and those raised by Mr. Mui today are matters which were fully canvassed before the judge and carefully considered by her before she reached a conclusion. These are questions of fact. In accepting the plaintiff's version of events and rejecting that of the 2nd appellant, the judge must have considered the defence and logically found that the counterclaim was not proved. The judge having found as a fact that the traffic lights were in Mr. Wan's favour and Mr. Wan was not driving at an excessive speed, she must have found that the 2nd appellant was driving against the lights and the appellants were wholly to blame for the collision. That being the case, the judge's finding of no contributory negligence on the part of the respondent cannot be faulted. The appellants here seeks to challenge these findings of fact. They have a difficult task. As my Lord Nazareth V-P in Lau Lap Che Richard v Wong Sut Fan Villette (1996) HKC 165 said: an appellant "... has to discharge a heavy onus in challenging findings of fact, particularly as those have been made by the judge on the basis of the evidence given by the parties, and in the light of seeing the parties ...". The appellants have not been able to show that these findings are against the evidence or Mr. Wan's version of events which was accepted by the judge, is inherently implausible. We do not interfere with the judge's findings.

17. The appeal must be dismissed.