KWONG KA YIN v. CHEUNG HING WORLDWIDE LTD AND ANOTHER

CACV 178/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 178 OF 2014

(ON APPEAL FROM HCPI 89 OF 2013)

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REASONS FOR JUDGMENT

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Hon Barma JA (giving the Reasons for Judgment of the Court):

1.  This was an appeal against the judgment of Deputy High Court Judge Wilson Chan (as he then was) finding the 2^nd defendant liable in negligence to the plaintiff for injuries suffered by the plaintiff in a traffic accident and awarded the plaintiff HK$900,000 by way of agreed damages. At the conclusion of the hearing, we allowed the appeal, set aside the judgment and ordered a re-trial before a different judge. We ordered that the costs of the appeal be paid by the plaintiff to the 2^nd defendant, to be taxed on the party and party basis if not agreed, and that the costs of the trial in the court below be reserved to the judge hearing the re-trial. We now give our reasons for doing so. The delay in handing down these reasons is regretted.

2.  The accident took place in the small hours of 20 April 2008, shortly after 1:00 am.  The 2^nd defendant was the driver of a taxi in which the plaintiff was a passenger.  Having picked up the plaintiff and another passenger (a Ms Tsang, a friend of the plaintiff) at Hong Kong International Airport, the 2^nd defendant was driving towards Kowloon on the Lantau Link, in the second lane of the three-lane carriageway.  As the taxi approached the point where the road diverged, where the first (left hand) lane merged with the slip road for Tsing Yi and the Cheung Tsing Highway, the 2^nd defendant lost control of the taxi, which spun and had three collisions : with the central divider at the point where the road diverged (the divider being between the first and second lanes), and with the concrete embankment or barrier on the right-hand side of the third (right-hand lane).  The taxi was seriously damaged, and the plaintiff (who was wearing a seat belt) suffered fractures to her right middle finger and distal right femur, and injuries to her right forehead and eyebrow.

3.  Although the plaintiff initially sued the both the owner and the driver of the taxi (as 1^st and 2^nd defendants respectively), the plaintiff discontinued her claim against the 1^st defendant on the first day of the trial.  Further, as we have noted, damages were agreed in the sum of HK$900,000.  Thus, the only issue for determination at trial was that of the liability of the 2^nd defendant for the accident.

4.  The plaintiff alleged that the accident was caused by the negligent driving of the 2^nd defendant.  The plaintiff suggested that the 2^nd defendant may have dozed off momentarily, and also that the fact that the 2^nd defendant was wearing flip flops while driving may have led to his loss of control of the taxi.

5.  The judge rejected the plaintiff’s evidence as to the 2^nd defendant having dozed off.  The plaintiff had said at trial that she had observed that the 2^nd defendant had slowed the taxi, that he had bowed his head, and that the taxi shook.  However, the judge noted that the possibility that the 2^nd defendant had dozed off was not mentioned by the plaintiff either to the police officer who attended at the scene of the accident, or in her first police statement dated 14 May 2008 (some three weeks after the accident).  Instead, the plaintiff had said on the night of the accident that she knew only that the taxi was being driven slowly, and that she had not observed the course of the accident, and had said in her first police statement that she was talking to her friend at the time, did not see the course of the accident and did not know why the 2^nd defendant had lost control of the taxi.  The suggestion that the 2^nd defendant had dozed off was raised for the first time in the plaintiff’s second police statement, made on 9 August 2008, nearly three months later.  Bearing in mind the earlier statements in which the plaintiff said she did not observe the course of the accident, and the relatively late stage at which she put forward the suggestion that the 2^nd defendant had fallen asleep at the wheel, the judge did not accept her evidence to the latter effect.  Mr Ramanathan SC, appearing for the plaintiff on appeal (but not in the court below), did not seek to challenge the judge’s decision to reject his client’s evidence.

6.  As for the suggestion that the 2^nd defendant wearing flip flops might have contributed to the accident, the judge rejected this on the basis that the plaintiff herself had admitted that this was just speculation on her part. This conclusion, too, was not challenged before us.

7.  The judge then went on to deal with the 2^nd defendant’s case.  The 2^nd defendant said that the accident was caused by another vehicle overtaking his taxi on the outside (i.e. in the third, or right-hand, lane), and then cutting into the lane in which the taxi was travelling suddenly, and just about one metre in front of the taxi.  The 2^nd defendant said that this created an emergency which forced him to brake and swerve, leading to the loss of control of the taxi which then collided with the concrete divider, spun across the carriageway and collided with the right hand side concrete structure as described in paragraph 2 above.  Under cross-examination, the 2^nd defendant said that he had approached the slight right bend where the accident took place at about 60-70 km/h, but then reduced his speed as the road was wet.  He said that he thought his speed when at the beginning of the chevron marking in front of the central divider was about 50-60 km/h, and that in response to the situation in which he had been placed by the other vehicle, he braked, but without slamming hard on the brakes or applying them abruptly, and swerved to the left, but that this was not a “big swerve”.  He then lost control of the taxi, resulting in the accident.

8.  Having recorded the 2^nd defendant’s evidence, the judge rejected it, saying at paragraphs 20 and 21 of his judgment:

“20. I agree with Mr Newman Wong [counsel for the plaintiff at trial]’s submissions that the 2^nd defendant’s account of the accident is inherently improbable and incredible. In short, if the 2^nd defendant were telling the truth regarding the manner in which he was driving the taxi (ie travelling at a modest speed of around 50 km/h; did not slam hard on the brakes; and only swerved slightly to the left), I simply cannot see how he would have lost control of his taxi in the way he did, resulting in collisions causing very substantial damage to the vehicle.

21. In my view, the 2^nd defendant’s evidence regarding the accident is no more than an embellished account painted by him so as to minimise his responsibility for the accident.  I reject the 2^nd defendant’s evidence as being unreliable.  I hold that I can put no weight on the same.”

9.  Having rejected both the plaintiff’s and the 2^nd defendant’s version of events, the judge concluded that, absent any explanation, the fact that the taxi swerved to the left, leading to the series of collisions that it experienced, was sufficient to give rise to an inference that the swerve and the collisions must have been due to negligence on the part of the driver, and that the principle of res ipsa loquitur was applicable.

10.  Mr Bleach SC, appearing for the 2^nd defendant before us (but not below), while recognising the burden that he had to meet in order to overturn the judge’s finding of fact, submitted that in this case, the 2^nd defendant was able to meet that burden as the judge had unfortunately failed to explain why it was that he had rejected the 2^nd defendant’s evidence about the unidentified car cutting sharply in front of the taxi, particularly as that evidence, if accepted, would have provided a plausible explanation for the accident so as to displace the inference of negligence that might otherwise be drawn from the occurrence of the accident without any explanation.  Mr Bleach accepted that the judge was not bound to accept without question any apparently plausible explanation put forward by the 2^nd defendant, and was entitled, indeed obliged, to consider and evaluate such an explanation before accepting it.  However, Mr Bleach suggested that it did not appear that the judge had properly evaluated the explanation offered by the 2^nd defendant.  In particular, apart from recording the 2^nd defendant’s evidence about the identified car, the judge did not deal with it further, and failed to explain whether he accepted that there had been such a car, and if so, why that did not provide a proper explanation for the accident that would exonerate the 2^nd defendant, while on the other hand if he did not accept that there had been such a car, why not.

11.  We think that there is real force in this submission.  With respect to the judge, given the 2^nd defendant’s explanation of how the accident had happened, the central factual issue that called for determination was whether or not there in fact had been another car which had cut in front of the taxi when only a very short distance ahead of it (according to the 2^nd defendant) about 1 metre.  This was a matter that needed to be addressed, with reasons being given whichever way it was decided.

12.  Here, as is apparent from the extracts from the judgment set out above, the judge does not appear to have engaged with the question of the unidentified vehicle. The reasons he gave in paragraph 20 of his judgment make no mention of the 2^nd defendant’s case concerning the unidentified vehicle, and provide no explanation as to why that case was rejected.  All that is said is that if the 2^nd defendant was telling the truth about the way in which he was driving the taxi, and the manoeuvres that he made, he would not, in the judge’s view, have lost control of the taxi so as to result in the collisions which took place.  But if there were a car which had cut across the taxi at close quarters, it seems to us quite possible that the 2^nd defendant would have had to brake and swerve, and that these actions might have led to the accident, even if the taxi had been travelling at the relatively modest speed claimed by the 2^nd defendant.

13.  Mr Bleach also drew our attention to evidence (not mentioned by the judge) that there had been skid marks on the road surface, which Mr Bleach said were consistent with his client’s case as to having braked and swerved so as to skid and lose traction with the road surface.  This evidence, if accepted, might well be regarded as supportive of the 2^nd defendant’s version of events.

14.  If the judge was minded to reject the evidence of the 2^nd defendant as to the unidentified car, it was in our view necessary to explain why he rejected that evidence.  Unfortunately, this was not done. In our view, the reasons given in paragraph 20 of the judgment do not support a conclusion that the 2^nd defendant’s case as to the unidentified car should be rejected.  It therefore follows that the conclusion that the judge reached as to liability was flawed, and should be set aside, with the consequence that the appeal must be allowed.

15.  Mr Bleach submitted that the appropriate course to take would be to dismiss the claim, rather than to order a retrial, particularly having regard to the rejection of the plaintiff’s evidence, and the evidence as to the skid marks. However, we did not think that it would have been appropriate to dismiss the claim altogether.  The fact that the plaintiff’s evidence was rejected as unreliable does not rule out the possibility that the accident was due to the fault of the 2^nd defendant, whether because he dozed off, or for some other reason.  It remains necessary for the 2^nd defendant’s evidence to be evaluated, in the light of all the other available evidence, in order to come to a conclusion as to whether or not his version of events should be accepted.  This is not something that this court can do on appeal.  We therefore decided that the appropriate course would be to remit the matter to the High Court for re-trial before a different judge.

16.  For the foregoing reasons, we allowed the appeal, and made the orders for re-trial and as to costs indicated in paragraph 1 above.