LAU CHING AND OTHERS v. NG YAU CHI AND ANOTHER

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J U D G M E N T

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Godfrey J. (delivering the judgment of the Court)

1. This is an appeal from Mr Justice Gall who, on 11th October 1991, after a three-day hearing, dismissed the claim of the plaintiffs, the personal representatives of Chan Wai Lok deceased, for damages arising out of a road accident in which Mr Chan died.

2. The accident happened at about 7:45 p.m. on 21st September 1987. It was drizzling. The road was wet and slippery. Mr Chan was standing on the pavement outside 47 Tai Kok Tsui Road, Kowloon, near his own parked vehicle, when he was struck by a vehicle which skidded out of thedriver's control and mounted the kerb. It was a van owned by Ng Yau Chi (the 1st defendant) and driven by his employee Lai Ka Leong (the 2nd defendant) at a speed, or so the 2nd defendant said in evidence, of 30-40 kph. Mr Chan died the next day, the cause of his death being the injuries he sustained in the accident.

3. The material facts may for present purposes be summarised as follows.

4. The accident occurred in the stretch of Tai Kok Tsui Road between Pok Man Street and Ka Shin Street. At the point where the accident occurred, Tai Kok Tsui Road is a two lane one-way road. When the accident occured, the van being driven by the 2nd defendant was travelling in the outer lane. The 2nd defendant was 19 years old. He was a very new and inexperienced driver, particularly at night and in the wet. He knew that dogs were often in the area (which he knew well). The point where the van driven by the 2nd defendant ended up was 28.4 metres from the nearest point of the intersection with Pok Man Street. The defendant drove across the intersection of Tai Kok Tsui Road and Pok Man Street, in the outer lane of the road, following two car lengths behind a minibus. Having passed the intersection, he saw a large dog come from his right, and stop for a moment in front of him, between his van and the minibus. He braked hard, and swerved into the inner lane, which was free of moving vehicles. He lost control of his van. In the inner lane was parked Mr Chan's van. Mr Chan was standing on the pavement. The 2nd defendant's van struck the back of the parked van, driving it forward several feet, possibly 10 feet. The moving van, having hit the parked van with considerable force, mounted the kerb and collided with Mr Chan some 5 feet or more across the pavement.

5. On these facts, the judge acquitted the 2nd defendant of negligence. He concluded that the 2nd defendant was driving, at the time of the accident, no faster than a normal prudent and experienced driver would have done in the circumstances. He concluded that the 2nd defendant's loss of control of the van he was driving was not negligent, given all the circumstances, and that, once the 2nd defendant had lost control, he could not be held to account for the passage of the vehicle. Having acquitted the 2nd defendant of negligence, the judge did not find it necessary to consider the liability of the 1st defendant.

6. In arriving at his conclusions, the judge had to form a view as to the speed at which the 2nd defendant's van was moving when the accident happended. The judge said this:-

"There has been no expert testimony to assist me in assessing the speed of the moving van from its course after the driver commenced to swerve. I do have the assistance of the sketch and the Highway Code put before me. Since the distance from the intersection with Pok Man Street to the point of collision with the Deceased was 28.4 metres and since the evidence of the driver was not challenged that he did not commence to swerve until after he had passed through the intersection and since his van was 4 metres long the vehicle could at most have travelled 24.4 metres after commencing to brake. The Highway Code suggests that the shortest distance for a vehicle to come to rest on a wet road from 40 kph including reaction time is 30 metres. The moving van struck the stationary van with considerable force but it must have been a glancing bow for the vehicle to have continued on after impact. I am therefore on balance satisfied that the speed of the 2nd Defendant's van was under 40 kph at the point where he commenced to swerve."

7. Unfortunately, this analysis, as was conceded before us by counsel for the 2nd defendant, is misconceived. The judge took into account provisions of the Highway Code which did not in fact, in the circumstances of the case, give him any assistance at all as to the speed at which the van was travelling, since it did not stop at a predetermined distance from a vehicle in front which is the matter with which the Highway Code is concerned. It went into a violent and, indeed, uncontrollable skid, which is a different matter altogether. In these circumstances, we find ourselves unable to follow the judge in his conclusions. It seems to us (as it seemed to Mr Justice McKenna in Richley (Henderson) v. Faull [1965] 1 WLR 1454) that, the 2nd defendant's vehicle having ended up where it had no right to be, there is a prima facie case of negligent driving by him which he can only displace by proving that the accident happened without his default (see the case cited at page 1457). The 2nd defendant has sought to explain the violent skid which brought his vehicle onto the pavement by proving, as indeed he did, that it happened because he braked hard in order to avoid the dog which had run in front of his vehicle. But on its own that is not, as it seems to us, necessarily good enough to acquit him of negligence. It is the duty of a prudent driver to drive at such a speed, and with such control over his vehicle, as to avoid a skid of such violence as to cause his own vehicle to mount the kerb, strike a parked vehicle on the way, force it forward several feet (possibly as much as 10 feet) and kill a person standing some 5 feet or more across the pavement.

8. The problem, therefore, is this. On the facts found by the judge, ought he to have concluded that the 2nd defendant was driving much too fast in all the circumstances and had braked much too hard? Alternatively, was he right to find that the 2nd defendant was driving at a prudent speed and did not brake too hard? We find ourselves, on the material before us, unable to avoid the conclusion that, in coming to a view as to what speed the 2nd defendant was doing, the judge must have been significantly influenced by his misconception as to the relevant effect of the Highway Code. In those circumstances, the position is plainly unsatisfactory. We cannot allow the appeal, because we are not satisfied that the 2nd defendant was necessarily driving too fast or had braked too hard. On the other hand, we cannot dismiss the appeal either, because justice requires that the plaintiff be given an opportunity to prove those matters to a judge whose mind is uninfluenced by the misconception to which we have referred. It seems to us, therefore, that the only just course for us to take is to order a retrial. As it seems to us, there has been a substantial miscarriage of justice; and that is precisely the circumstance for which the provisions of O.59, relating to the powers of the court to order a new trial, are directed. That, accordingly, is the order we propose to make. We think it would be best, in all the circumstances, that the case should be retried before another judge.

Order:

1.      Appeal allowed.

2.     Order of Gall, J. dated 11th October 1991 set aside.

3.     Re-trial ordered before another judge of High Court.

4.     Plaintiff to have costs of appeal but the order is stayed until the decision in the second trial (so that if the defendants succeed again, the costs of the appeal and of the action can be set off).

5.     Costs of former trial shall be reserved to the judge hearing the re-trial.

6.     Speedy trial ordered.