YUEN HING MAY, MAY LILLIAN v. KAN CHIU MING & ANOTHER

DCCJ 9137/2000

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 9137 OF 2000

__________

__________

________________________

J U D G M E N T

________________________

The Claim

The Plaintiff was the registered owner of a private car bearing registration number HC7784. On 4 July 1997 at about 11.40 p.m., the Plaintiff was driving along Waterloo Road. The 1st Defendant was then driving a taxi EJ3906. The 1st Defendant collided with the Plaintiff from the back. The Plaintiff claimed that the 1st Defendant was negligent and therefore brought this action.

The Plaintiff's Case

2. The Plaintiff gave evidence. It is not disputed that she is and was at the material time the registered owner of the said car HC7784. According to her evidence, on 4 July 1997, she drove her friend home in the said car. At about 11.40 p.m. they were travelling north along Waterloo Road. On that night, the weather was fine and the road surface was dry and the traffic flow was light.

3. When the Plaintiff approached St. George's Mansion, she was then travelling on the second lane. She noticed a bus on the first lane to her left. The bus was further down the road and was about to pull out from the first lane into the second lane. The Plaintiff then decelerated and finally stopped her vehicle just outside St. George's Mansion to let the bus move into the second lane. At the very moment when she stopped, she heard a loud noise and found later that the 1st Defendant's taxi hit her vehicle from the behind.

4. As a result, the police were called for investigation. Before the policemen arrived, as there were no injuries, both the Plaintiff and the 1st Defendant moved their vehicles to one side of the road. According to the statement of the Plaintiff to the police, when she stopped, the front portion of the bus had entered the second lane. The sketch approved by her and prepared by the police appeared at page 12 of the bundle.

5. After the accident, she drove her friend home. When she arrived at the place of her friend, she found that the car was over-heated and she decided not to drive. She got her brother to escort her home and got a garage to pick up the car for repair later.

6. Subsequently, the 1st Defendant was charged for careless driving and was later convicted. This was not disputed by the 1st Defendant.

7. At the garage and before any work was carried out, the Plaintiff requested a surveyor's report be repaired by PW2. His report appeared at page 38 of the agreed bundle. PW2 gave evidence and confirmed the opinion he expressed in his report. There was no material challenge to his experience and qualification. According to his opinion, he was of the view that the initial repair cost claimed by the garage was on the high side. After adjustment, he gave an opinion that the labour and parts should be HK$52,863.60. But according to the Plaintiff, when the work was finally done, the garage charged her a total of $55,000, which she paid.

Defence

8. The 1st Defendant denied that the accident or damage to the car was a result of his negligence and put the Plaintiff to straight proof. Further, it is claimed that the Plaintiff had been negligent and if, which is not admitted, the Plaintiff suffered damage or loss, such was caused or contributed to by her own negligence. Further, all the damages were disputed and the Plaintiff was put to straight proof.

The Defendant's Case

9. The 1st Defendant gave evidence and did not call any other witness. He did not dispute the fact that at the material time, he was also travelling along Waterloo Road and was behind the Plaintiff's vehicle. He said that as he was travelling along Waterloo Road and when coming close to St. George's Mansion, he also noticed the bus that was stopped at the bus stop. He noticed that the bus was giving a signal to pull out and was coming close to the second lane. But from his view, the bus had not come into the second lane. He said the Plaintiff braked her car suddenly, giving him no time to stop his vehicle. As a result he collided into the back of the Plaintiff's car.

10. After the accident, he had also given a statement to the police. He gave a slightly different drawing on the final position of the bus before the two vehicles collided, which appeared at page 15 of the bundle.

11. The 1st Defendant admitted that he was convicted of careless driving. In fact, he had pleaded guilty to the charge. He also admitted that the brief facts at page 34 of the bundle had been read out to him in the Magistrate Court and he agreed with the facts. But the 1st Defendant did not offer any explanation why he pleaded guilty to the charge. He only said that the insurance company allowed him to make his own decision.

12. During cross-examination, the 1st Defendant was questioned about the travelling speed and the distance between his taxi and the Plaintiff's car. The 1st Defendant maintained that he was travelling at around 40 km p.h. When he first saw the Plaintiff's car, they were 4 - 5 cars' length apart. And when he also saw the bus, there were still 2 - 2½ cars' length apart. Counsel for the Plaintiff put to him that he had a different version in his statement to the police. The 1st Defendant said it was his estimation and it could not be accurate.

Liability

13. I should first deal with the issue on liability. The question here turns on whether the accident was caused by the negligence of the 1st Defendant. Having a close observation of the Plaintiff, I found she was a truthful and reliable witness. She has been subject to able cross-examination by the 1st Defendant that her evidence remained intact.

14. On the contrary, the 1st Defendant was evasive and was not willing to answer during cross-examination. He was a bad witness and was not reliable. More to say, his evidence in court differed from his previous statement given to police. And all that he explained these were all his estimation, showing no sincerity in relating the incident in court. I found that he was totally unreliable.

15. I found as a fact that at the material time, the Plaintiff was driving along the second lane. When she came close to the position of St. George's Mansion and when the bus started to move, she slowed down when the bus was moving into the second lane. And when the bus was entering into the second lane, she stopped her vehicle in order to give way for the bus and to be safe. She cannot be faulted for what she was doing. I believed any prudent driver would react similarly.

16. It is always a duty on a driver to maintain a safe distance from the vehicle in front. Given the explanation of the Plaintiff, she would have provided sufficient time for a vehicle behind to stop in time. In particular the mode of her stopping was at two stages, namely, slowing down first and then stop. This normally would give further time and distance for the vehicle behind to brake in time. The 1st Defendant bumped into the Plaintiff's vehicle speak for itself, he either had not been maintaining a safe distance or had not taken the necessary precaution to stop in time. Either way, he was negligent.

17. There is some argument on contributory negligence. It was the 1st Defendant's case that when a vehicle stopped abruptly without giving signal to the vehicle behind, the court should find certain degree of contributory negligence. However, according to my above finding, the Plaintiff slowed down before she stopped. It is not a case when a driver stopped abruptly. Further, in the current situation, the 1st Defendant knew and observed the movement of the bus. Surely he would also be under a duty to react. The degree of care called from the vehicle in front was very low. I cannot see anything more than the braking signal of the car would be sufficient. And I had no evidence from the 1st Defendant that he got no signal of braking from the vehicle in front. I found there was no contributory negligence on the part of the Plaintiff.

Quantum

Plaintiff's case

18. The Plaintiff in this case claimed a total sum of $73,315.90. At the final submission, claim under paragraph 5 (g) of the Statement of Claim was withdrawn by the Plaintiff. The claim of the Plaintiff is basically for:-

(a) Repair costs for the car;

(b) loss of the use;

(c) medical fee; and

(d) surveyor's fee.

19. I have no doubt that the Plaintiff did pay $55,000 to her garage. The main complaint and objection from the 1st Defendant is that it is the evidence of PW2 that the agreed repair costs is only $52,863.60. The additional $2,000 odd cannot be proved to be related to the damage to the car at the said accident.

20. In this aspect, the only evidence from the Plaintiff is that this was the final amount she paid the garage. No explanation from PW2 was requested nor was any person from the garage being called to explain the difference. Given that PW2 is the witness of the Plaintiff, she is bound by his evidence. Without further support, I found that the Plaintiff could only prove her repair cost at $52,863.60.

21. On the travelling expenses, the Plaintiff had produced a list at page 36 of the bundle. She admitted that this is not the contemporaneous note. She made estimation as to the place she travelled on those days. It is noted that different figures were claimed for different days. On many days, modest figures of $13 or $15 are being claimed. I found this a reasonable estimation by the Plaintiff and she has been very honest and accurate in the preparation of the schedule.

22. There are two major items which were subject to cross-examination by the Defence Counsel. They include medical expenses and travelling expenses to the Chinese doctor on 5 July and 9 July 1997. In her evidence, the Plaintiff admitted that the charges of the doctor was in the region of $100 odd. The Defence Counsel submits that, including travelling expenses, the amount claimed should not be as much as $500 a day.

23. Plaintiff explained that the $500 included medical expenses and travelling on that day. While it was not explained in the details, I also note that in the expenses claimed, sometimes the Plaintiff would claim $200 or $300. The record is the best evidence. I accept her evidence and found that the travelling expenses and medical expenses are at $4,400.

24. The Plaintiff also claims the expenses for leasing a carpark and for paying the car washing fee. It is not disputed that since the car was in the garage, the Plaintiff did not need the carpark at the time when the car was under-repaired. Surely she did not need somebody to wash the car. The 1st Defendant objects to these two heads of items.

25. The Plaintiff submitted that I should follow the decision in Edmund Handcock v. "Ernesto" (owners) [1952] 1 Lloyds RP 467. It is submitted by counsel that when an item of expenses was proved to be reasonably made during the period when the Plaintiff was deprived of the use, in that case of a vessel, the Plaintiff is still entitled to recover such expenses. Counsel submitted that while Edmund Handcock's case is about contractual claim, the same rule shall apply to a tortious claim.

26. I do not think that the concept is relevant. In the case of Edmund Handcock, the starting point in assessing damages is the loss of profit. The loss of profit is the net profit awardable to the Plaintiff. And with that as the starting point, the court would consider what other expenses that the Plaintiff had to incur notwithstanding that the ship cannot be used. In that case, the court found that it is reasonable to retain the crew and also to keep the fire in the funnel.

27. But in the present situation, the starting point of assessing the damages is not the loss of profit. It is the loss of the use of the car. This is compensated when I award the travelling expenses to the Plaintiff. If I ask myself have I fully compensated the Plaintiff for the loss of the use of a car, I must consider if she has suffered from any other inconvenience. Surely she has not. As far as the parking fee and the car washing fee are concerned, these are the general expenses that she have to pay in order for her to get the service of her own vehicle. Had she been able to stop renting a carpark or dispense with the car washing person, these two items should be deducted from the damages awardable under the heading of travelling expenses.

28. The Plaintiff submitted that she had to keep the carpark because if she did not retain it, she might not be able to get the same carpark in the following month. Surely I see no reason that the Plaintiff has to be put to the trouble of terminating her contractual obligation and looking for another carpark when the car comes back. It becomes unreasonable. I do not write off the carparking fees. Similarly, I see no reason why the car washer should not be paid just because the car has not been there for him to wash, which is entirely not of his own fault. In the circumstances, the act of keeping these two contracts alive should not be criticized. I therefore refuse to deduct these two items from the travelling expenses of the Plaintiff. But I would not allow these two in addition to the travelling expenses, otherwise I would be double-compensating the Plaintiff.

29. There is no dispute that the 1st Defendant should pay the surveyor's fees. I therefore allow a sum of $650.

30. I see no reason why the Plaintiff should not be entitled to interests on the said damages. There is no submission to the contrary from the Defence Counsel. I therefore award interest on the judgment sums from the date of writ until the date hereof at 8.72% p.a. and thereafter at judgment rate until payment. Costs follow the event and I therefore grant an order nisi that the 1st Defendant do paid the Plaintiff's costs herein to be taxed if not agreed, such order to be made absolute if no party apply to the contrary within 14 days of today.

31. I should make a remark here about counsel fee. I note that both parties are represented by counsel. This case started of as a claim for something over $70,000. In fact, it turns out to be a claim for something slightly higher than $50,000. I am sure that the legal costs incurred would be well exceeding the original claim of $70,000. If I am taking the costs of both parties, the legal expenses may well exceed $150,000. This is one of those cases in which parties should consider a settlement at a very early stage or alternatively, to abandon part of the claim and continue on the claim at the Small Claim Tribunal to save costs and expenses. I believe the legal profession should advise their client well ahead. And I am certain that not all the costs would be allowed. Any costs taxed off by the taxing master would take up part of the judgment sum. At the end, the winning Plaintiff would be losing her case.