CHOW YIK KWAN v. LEE HON YIN and Another

IN THE COURT OF APPEAL

1996, No. 73
(Civil)

-----------------------------------------------

----------------------

J U D G M E N T

----------------------

Litton, V.-P. (giving the judgment of the Court):

1. This appeal concerns a motor accident which happened 7¾ years ago, on 9 December 1988. It is an appeal against Seagroatt, J's determination of liability. Damages have yet to be assessed.

2. A BMW car, driven by the 1st defendant, with the plaintiff in the front passenger seat, was on the inner lane of a two-lane carriage-way, going at about 30 m.p.h. This was in the rural part of the New Territories. The road, Po Lam road, was slightly uphill, with a gradual sweeping right-hand curve. The 1st defendant was then a relatively inexperienced driver, having passed his test 21 months earlier. The BMW belonged to his employer, the 2nd defendant. The 1st defendant had driven the car infrequently and, on the day in question, he said he was driving more slowly than normal because he was not particularly happy with the brakes. The accident happened when the 1st defendant and the plaintiff had returned to the 2nd defendant's office in Kwun Tong to collect a piece of equipment, to carry out work on behalf of the 2nd defendant at Tsui Lam Estate in Junk Bay.

3. The time of the accident was about 1pm. The weather was good. The traffic was light. Po Lam Road was divided by a double white line, and the opposite carriageway, downhill, was single lane. As the BMW was going uphill, the 1st defendant became aware of a truck ahead, stopped on the outer lane. Suddenly a white car, going very fast (estimated at about 50 m.p.h.) overtook the BMW on the outer lane: cutting-in in front of the BMW; possibly to avoid hitting the truck in the outer lane. There is no suggestion that the 1st defendant applied his brakes. His reaction was to swerve to the left and then he mounted the grass verge and slammed into a concrete block on the passenger side: with such force that the plaintiff was badly injured.

4. The plaintiff was, of course, totally blameless. In the court below, all that he needed to establish was a degree of negligence on the part of the defendants, over and above de minimis.

5. The 1st defendant was, on the afternoon in question, driving the BMW in the course of his employment, with the plaintiff, a work colleague, as his passenger: the 2nd defendant was vicariously liable for the 1st defendant's negligent driving.

6. It is not necessary to examine all the judge's findings, nor is it for this court to evaluate the whole of the evidence afresh. Negligence is a matter of degree, on which reasonable minds can reasonably differ. Plainly, the 1st defendant had over-reacted to the sudden situation. He lost control of his vehicle when a more skilful driver would not have done so. The car left the roadway, mounted the grass verge and then hit the concrete block. On his own admission he was not as aware of the surrounding traffic conditions as he might have been, and he admitted that because of this he was more startled by the sudden appearance of the white car than he might have been. It was open to the judge to conclude that because of this his reaction was excessive and he was accordingly negligent.

7. We dismiss this appeal, with costs.