WONG KA MAN v. TANG KA LUN AND OTHERS

HCMP 1532/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 1532 OF 2011

(ON AN INTENDED APPEAL FROM DCPI NO. 1720 OF 2009)

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BETWEEN

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JUDGMENT

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1.  In a collision which involved 7 vehicles, 6 of which were travelling along the 2nd left lane of Kowloon-bound Tuen Mun Highway, the Plaintiff, who was a passenger in the 5^th Vehicle in the chain, a public light bus ("PLB"), suffered minor. As a result, she sued a total of 5 defendants. In turn the Defendants took out third party proceedings against the 1^st and 2^nd Third Parties.

2.  Mr Joseph Vaughan, counsel for the 1^st, 2^nd and 5^th Defendants, in his skeleton submissions, produced a diagram showing the line of vehicles involved in the chain collision.  It is reproduced below:

Line of vehicles involved in the chain collision
'1st Collision'		LR6924 ('1st Vehicle')
		↑ KE8236 ('2nd Vehicle')1
		↑
'2nd Collision'		KF6576 ('3rd Vehicle')
		↑ KX8860 ('4th Vehicle')2
'3rd Collision'3		↑
		CX7321 ('5th Vehicle')4
'4th Collision'		↑
		LS6808 ('6th Vehicle')5

1   Driven by D1 and owned by D2

2   Driven by D3 and owned by D4

3   In paragraph 8 of the Judgment, the learned Deputy Judge referred to the 3^rd Collision as between the 4^th and 3^rd Vehicles.  It is understood that he must have been referring to the 4^th and 5^th Vehicles instead.

4   Driven by 1^st TP and owned by 2^nd TP

5   Driven and owned by D5

3.  The 1^st Defendant was the driver of the 2^nd Vehicle (the 2^nd Defendant, the owner) which was a medium goods vehicle bearing the registration number KE8236 ("2^nd Vehicle"). The 3^rd Defendant was the driver of another medium goods vehicle owned by the 4^th Defendant with the registration number KX8860 ("4^th Vehicle").  The 5^th Defendant was the driver and owner of the 6^th Vehicle – another medium goods vehicle bearing registration number LS6808.

4.  The 5^th Vehicle was CX7321, a bus which was driven by the 1^st Third Party and owned by the 2^nd Third Party.

5.  As a result of the accident, the 1^st, 3^rd and 5^th Defendants were charged with and convicted of careless driving.  The 1^st and 5^th Defendants pleaded guilty to the charge, and the 3^rd Defendant was convicted after trial.

6.  After trial, Deputy District Judge Victor Dawes found the 1^st, 2^nd and 5^th Defendants to be liable in negligence to the Plaintiff.  He awarded the Plaintiff damages (agreed at) HK$140,000 to be apportioned as to 30% to the 1^st and 2^nd Defendants, and 70% to the 5^th Defendant.

7.  This is the 1^st, 2^nd and 5^th Defendants' ("these Defendants") application for leave to appeal against the decision, leave having been refused by the learned Deputy Judge on 29 July 2011.  The learned judge's reason for refusing leave to appeal was handed down on 29 July 2011.

8.  The hearing before the Deputy Judge took place between 11 and 13 August 2010.  The 1^st Defendant did not give evidence.  The 3^rd and 5^th Defendants gave evidence.  So did the 1^st Third Party.

9.  This is what the learned judge said about the 1^st Plaintiff's evidence which he accepted:

"(b)   The Collisions

5.   The plaintiff alleged that upon reaching near chainage 61.2 (Sham Tseng), the 1^st Vehicle slowed down to cope with the road condition ahead.  There was suggestion that it was because a dog was running across the road.

6.   The 1^st defendant failed to stop in time causing the front part of 2^nd Vehicle to hit the rear of 1^st Vehicle ('1^st Collision').  The 2 vehicles stopped on the Lane after the 1^st Collision.

7.   The 3^rd Vehicle was immediately behind the 2 vehicles and it had stopped in time to avoid any collision with the 2^nd Vehicle.  However, for reasons that are in dispute, the 3^rd defendant did not manage to avoid the collision between the 3^rd and 4^th Vehicles. ('2^nd Collision'). 

8.   The last 2 vehicles involved also failed to avoid collisions.  It is common ground that: (i) 4^th Vehicle collided with the (5^th Vehicle) ('3^rd Collision'); and (ii) the 6^th Vehicle collided with the 5^th Vehicle ('4^th Collision'). 

9.   It should be noted that the abbreviations '2^nd Collision', '3^rd Collision' and '4^th Collision' are used for convenience only as the causes and sequences of the collisions are in dispute.  Both the 3^rd defendant and the 1^st Third Party claimed that they managed to stop their vehicle in time to avoid hitting the vehicle in front.  However, as a result of being hit by the vehicle from the back, their respective vehicle was pushed forward which resulted in a further collision with the vehicle in front.

10.   On the other hand, the 5^th defendant argued that although he had failed to stop the 6^th Vehicle in time to avoid hitting the 5^th Vehicle, the impact of the collision was mild and he had almost managed to stop in time.  In any event, the 5^th Vehicle had already collided with the 4^th Vehicle before it was hit by the 6^th Vehicle from the back.  In other words, the 4^th Collision had nothing to do with the 3^rd Collision."

10.  In discussing the liability of the 1^st and 2^nd Defendants, the learned judge was influenced by the fact that so far as the 1^st Defendant was concerned, although he did not give evidence, when he pleaded guilty to the charge of careless driving, he had admitted that:

"… the vehicle in front (i.e. the 1^st Vehicle) merely slowed down and did not come to a complete stop and the problem was caused by the 1^st collision. …"

11.  On that basis that he found the 1^st Defendant negligent in failing to keep a safe breaking distance which resulted in the 1^st collision.

12.  Although the 3^rd Defendant was convicted after trial, he found that there was no causal link between the 2^nd collision (and the conviction of the 3^rd Defendant) with the so-called 3^rd collision.

13.  So far as the 5^th Defendant is concerned, he found that the 5^th Defendant liable because of his failure to keep a safe braking distance and to stop his vehicle in time thereby contributing to the injuries suffered by the Plaintiff.

14.  So far as the 1^st Third Party was concerned, the learned judge was not satisfied with the evidence of the 5^th Defendant, whom he found to be an unreliable witness.  He acquitted the 1^st Third Party of negligence because he found that he

"33.   … had managed to stop the 5^th Vehicle in time and the 3^rd Collision was the result of it being hit from the back by the 6^th Vehicle because the 5^th defendant had failed to stop in time."

15.  Mr Vaughan submitted that there is a duty of care of high standard imposed on drivers following other vehicles in a line of traffic to drive with such care as to be prepared for foreseeable emergency, to enable him to avoid colliding with vehicles in front, and to avoid creating a situation of danger for other vehicles.  He referred to the well-known cases of Thompson v Spedding [1973] RTR 312 (CA); and Mugford v Ames [2000] SASC 241.  Mr Vaughan relied on the fact that the 1^st Third Party was involved in the 3^rd collision. 

16.  With respect to Mr Vaughan, the learned judge had found as a fact that the 1^st Third Party had managed to stop his bus in time, but that the collision was caused when the vehicle travelling behind him collided with the bus and pushed it forward.  So the 1^st Third Party had failed to stop in time.

17.  In the case of the 3^rd Defendant, as I have mentioned, the learned judge found that there was no causal link between the 2^nd collision (and the conviction of the 3^rd Defendant) with the so-called 3^rd collision.

18.  On the basis of such findings of fact, I do not believe that the proposed appeal has a reasonable prospect of success.  I agree with Mr Gidwani for the 3^rd and 4^th Defendants that there is no reasonable prospect of these findings of fact being overturned.  See Ting Kwok Keung v Tam Dick Yuen (2002) 5 HKCFAR 336.  That being the case, leave to appeal is refused.  I also make an order nisi that the 1^st, 2^nd and 5^th Defendants pay the 3^rd and 4^th Defendants' costs.