LAI WOON LEUNG v. CHAN KAI WING AND OTHERS

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J U D G M E N T

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Kempster, J.A. delivered the judgment of the Court:

1. On 29 June 1988 at the Tsuen Wan District Court Judge Chan found that the 2nd defendant in these proceeding had been negligent in and about the driving of a lorry, the property of the 1st Defendant, at the intersection between Po Shek Wu Road and Choi Yuen Road in the New Territories on the morning of 18 June 1986. He further found that the plaintiff's lorry had been damaged as a result of such negligence and awarded him HKS60,000 damages together with interest. Judgment was given in favour of the remaining 3 defendants. By leave of the trial judge the plaintiff now appeals against the finding that the 1st Defendant, allegedly the 2nd Defendant's employer when he was driving that morning and indisputably his general employer at the time, was not vicariously liable for the 2nd Defendant's negligence. The 3rd and 4th Defendants have given notice that they will seek a variation of the order made as to costs should the appeal be successful.

2. At the commencement of the hearing, pursuant to section 47(1) of the Evidence Ordinance (Cap 8) and without objection, the Plaintiff was given leave to put in evidence statements about the occurrence made by the 2nd Defendant and by his assistant to the police on 20 and 21 June 1986 respectively. Both said that at the material time they were in the course of delivering goods on behalf of the 1st Defendant. However, the 2nd Defendant's evidence in the witness box was to the effect that at such time he was on "a frolic of his own" being on his way, driving the 1st Defendant's lorry, to take tea with his assistant, Chan Kit Yue, who could not be traced to give evidence at the hearing. The 2nd Defendant explained what he claimed to be the untruth of that part of his written statement by saying that he did not want to reveal to his employer that he had used the lorry for an unauthorised purpose. The judge found that this explained the material parts of both written statements. The 1st Defendant gave evidence to the effect that he had not ordered the 2nd Defendant to effect any delivery on his behalf on the morning of 18 June 1986. Accepting the viva voce evidence of both defendants in this regard the judge found that the 2nd Defendant was not driving the vehicle in the course of his employment.

3. The judge's conclusion is assailed on the basis not that he misdirected himself in law but that he should not have accepted the viva voce evidence of the 1st and 2nd Defendants in the face of the contemporaneous and contradictory statements made by the 2nd Defendant and Chan Kit Yue nor have concluded that the 2nd Defendant had no interest in testifying in a manner Prejudicial to his own interests or favourable to those of the 1st Defendant. In that context it is significant that at the date of trial the 2nd Defendant was no longer in the employment of the 1st Defendant, so as to have a motive for furthering his interests, and that by giving evidence which precluded any liability by the 1st Defendant he was accepting the possibility of full and sole liability for himself. This approach was strongly attacked by Miss Eu on behalf of the plaintiff but we can find no reason to hold that, having observed and heard him, the judge was wrong in taking this consideration into account in relation to the 2nd Defendant's motivation and veracity.

4. Alternatively it is submitted that the judge was not entitled to accept this particular part of the 2nd Defendant's evidence in circumstances where he had disbelieved him in relation to negligent driving; particularly having regard to the presumption explained in Laycock v Grayson [1939] 5.5 TLR 698. It is also pointed out that the 2nd Defendant cross-examined the 1st Defendant to the effect the latter knew that he and his assistant were driving the lorry away on their own account whereas his own evidence was to the effect that he told no one of such intention. Indeed, a whole series of discrepancies in the2nd defendant's own relevant testimony has been pointed out to us. The 2nd Defendant did say that on previous occasions he had driven off on Jaunts of his own but could not tell whether the 1st Defendant, who had said nothing about it was aware of what he was doing.

5. There are no grounds, in our view, for concluding that any of the factors canvassed before us were absent from the judge's mind In fact his "Reasons for Decision" strongly suggest the contrary. As Lord Simmons Pointed out in Watt v Thomas [1947] AC. 484 at p 492 we:

"are entitled and bound unless there is compelling reason to the contrary, to assume that he ( the trial judge) has taken the whole of the evidence into his consideration".

6. We are not persuaded that the judge failed to avail himself of his relative advantage. This is, as we think Miss Eu appreciates, a very difficult appeal which in the event must be dismissed. In the premises no question as to the order for cost made below arises.

7. Before parting with this matter we would formally put on record the distaste which we feel, already expressed by the Vice-President, for applications for further and better particulars of Notices of Appeal.