WONG YAU TAI v. CHAN KA WAH

HCPI 1505/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES NO.1505 OF 2000

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R E A S O N S   F O R    J U D G M E N T

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1. This is an appeal by the defendant from an order of Master Kwan given on 27 November 2001 whereby the master ordered interlocutory judgment against the defendant with damages to be assessed. After hearing counsel for the defendant in the appeal, I dismissed the appeal and indicated that I would give my reasons in writing which I now do.

2. The plaintiff, now 55 years, claims against the defendant for damages for personal injuries sustained by her as a result of a traffic accident which happened on 5 November 1998 at the southern junction of Hennessy Road and Percival Street where there is a lights controlled pedestrian crossing.

3. There is no dispute that at the material time the defendant was driving a taxi southbound along Percival Street and had, just before the accident, stopped at traffic lights controlling the northern junction of Percival Street and Hennessy Road before traffic entered into Hennessy Road. When those lights turned green, the defendant's taxi started off, crossed Hennessy Road and into the southern junction of Percival Street and Hennessy Road where the lights controlled pedestrian crossing is. The taxi was travelling on the extreme right side lane of Percival Street. Percival Street only allows for southbound vehicular traffic.

4. At that time, the plaintiff, who was a street cleaner employed by the Hygiene and Environmental Department was carrying out her work. She had with her a handcart. There is no dispute that the offside of the defendant's taxi came into contact with the plaintiff's handcart as it passed the pedestrian crossing resulting in the handcart hitting the plaintiff causing her injuries.

5. As a result of that collision, the matter was investigated by the police and the defendant was subsequently summoned in the Magistrates court for careless driving. He was convicted of that charge after trial. That conviction is admitted by him in this action.

6. In the present action, the plaintiff alleges that the defendant was negligent in that he was driving too fast, not keeping a proper lookout and/or failed to heed the presence of the handcart by the side of the road.

7. The Defence in the present case denies negligence and pleads contributory negligence of the plaintiff in that the lights were red against pedestrians at the crossing and that while the defendant's taxi was passing over the crossing, the plaintiff pushed her handcart forward hitting the offside of the taxi. In the particulars of contributory negligence it is stated that the plaintiff was pushing her cart across the pedestrian crossing when the lights were against her and when it was unsafe to do so.

8. In the witness statement of the defendant, prepared for the present proceedings by solicitors, it is stated by the defendant that when he was one vehicle's length from the crossing he noticed a stationery handcart by the side of the crossing with its offside front facing the defendant's taxi and after the taxi had passed the handcart, the cart moved towards the taxi and the defendant felt that the taxi had hit something.

9. In a later paragraph of that statement of the defendant, it is stated that the plaintiff was negligent in pushing her cart from the offside to the nearside of the defendant's taxi against the red light across the pedestrian crossing when other pedestrians were waiting to cross.

10. However, a very different picture was painted by the same defendant in his statement given to the police shortly after the accident and also in the Magistrate's court proceedings when he was charged with careless driving.

11. In his statement given to the police (which was adduced into evidence at the Magistrate's court proceedings and not objected to by the defendant) he said that about one vehicle's distance from the crossing he saw the cart on the right side of the crossing with its head facing towards him. He therefore manoeuvered his taxi to the left a bit. When he reached the rear of the cart, he steered slightly to the right at the time. When he steered to the right, he felt the right side of his taxi hit something. After he got off the taxi he saw a woman sitting at the rear of the cart.

12. At no time in his statement to the police was there any mention by the defendant that the woman was pushing the cart or that it was the woman who had pushed the cart onto the taxi thus causing the collision. Rather the cause of the collision seems to be put down to the fact that he steered his taxi to the right as he reached the rear of the cart.

13. When it came to the Magistrate's court proceedings, the defendant was not represented but defended himself in person.

14. The plaintiff gave evidence that at the material time she had left the cart by the side of the crossing, gone to the pavement and had tucked a bag of rubbish to the side of the gutter preparing to put the rubbish onto the cart. She was leaning against the cart about to push it when suddenly there was a "boom" sound and the cart had struck her and toppled on top of her. She was in so much pain that she did not see what had hit the cart.

15. When she was cross-examined by the defendant, it was never suggested to her by the defendant that she was pushing the cart or had pushed the cart so as to caused it to hit his taxi. The only suggestion he had made to her in cross-examination was that that part of the road or the pavement was sloping and she was asked whether she had put any stones against the wheels of the cart to stop it from rolling off by itself. The plaintiff was not able to say if that part of the road or pavement was sloping.

16. At the hearing of this appeal, Mr C.K. Wong who appears for the defendant indicated that the defendant does not dispute that he was negligent. This concession was made by counsel despite the fact that negligence is expressly denied in the defence.

17. Mr Wong submits however that the Master, by ordering interlocutory judgment against the defendant in the order appealed from, has effectively prevented the defendant from raising and relying on the issue of contributory negligence of the plaintiff.

18. He further submits that the defendant is entitled to raise the issue of contributory negligence based on what is stated by him in his witness statement filed in these proceedings and submits that it is supported by the photographs of the taxi in question which shows scratch marks (resulting from the collision) to be on the lower part of the offside bodywork between the rear offside wheel and the end of the taxi.

19. The bottom line of Mr Wong's submission is that the issue of contributory negligence should be allowed to go to trial and be decided by the judge after hearing evidence and that in the event that the defendant fails on that issue at trial, the judge may deal with it by ordering a higher scale of costs against the defendant but that it is unfair to the defendant to be deprived of its rights to have that issue tried by a judge by reason of the order of the Master for interlocutory judgment.

Decision

20. I cannot accept any of the submission put forward by the defendant. It cannot be right that merely because contributory negligence has been pleaded and particularised in the pleadings, that the court must allow that issue to go to trial without regard to any of the matters that has preceded such a plea, in particular what has been stated by the defendant in his statement given to the police and the stance taken by him in the Magistrate's court proceedings.

21. At paragraph 26 of "Reform and Reformation - A Personal Critical View of Personal Injury Litigation" Seagroatt J had this to say:

"The Court has both the power and the duty to rein in the wayward and keep the parties on track to ensure that a fair, just, expeditious and economic resolution is achieved.......Where Liability is not, or cannot sensibly be an issue, the court will exercise its power in these appropriate cases to strike out a claim or defence and enter judgment accordingly. It will not allow such cases to proceed headlong, flying in the face of all known tenets of common sense, building up costs on both sides and wasting precious judicial resources."

22. Those words of Seagroatt J, albeit not forming any part of a judgment in a case, reflect my own views as to what proper case management should be. When properly applied to the facts of the present case it was alleged by the defendant from the outset that the plaintiff pushed her cart onto the offside body of the defendant's taxi. To allow that issue of contributory negligence in the manner that it has been formulated by the defendant now tantamounts to nothing less than an abuse of the Court's process.

23. True there was a suggestion made by the defendant in cross-examination at the Magistrate's court that the cart did roll onto the taxi because the road or the pavement where it was left was sloping. However that remains a suggestion in cross-examination and was never agreed to by the plaintiff. Moreover, that has not been pleaded, particularised or relied on in the present defence.

24. In all the circumstances of this case, the Master was, in my view, entitled to and correct to have ordered interlocutory judgment bearing in mind that the onus is on the defendant to establish contributory negligence and what has now been relied on as particulars of contributory negligence was not and has not been the defendant's case from the outset - at least not until the defence and his witness statement in these proceedings came into existence.

25. It was for the above reasons that the defendant's appeal was dismissed.