GAMMON CONSTRUCTION LTD v. HO KEUNG AND OTHERS

HCPI No. 1142 of 1995

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1142 OF 1995

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J U D G M E N T

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1. On the 2nd December 1992 there was a collision between a Light Goods Vehicle and a Worksbus. The latter ran into the back of the former on a downhill section of the road. At least three High Court actions have been initiated as a result of the accident, based on the negligence of the driver and/or the owner and/or the hirer and/or the person responsible for the maintenance of the bus.

2. Action number 1186 of 1995 was brought by a passenger in the preceding vehicle against the four defendants concerned with the bus in the respects to which I have referred. It was unarguable that the bus had defective brakes. Those of the defendants who were responsible for this were prosecuted and convicted in the Magistrates Court. Interlocutory judgment was obtained against the Third Defendant, in default, he being the hirer of the bus and responsible for the maintenance.

3. In March of this year this action was tried before Mr. Justice Brian Keith. The Learned Judge found that the Third Defendant was solely responsible for the collision, thereby absolving not only the driver of the bus but also the other two defendants. The case against the driver had been pleaded on the basis that he ought to have known that the brakes were defective and therefore should either have stopped driving the bus or should have adjusted his speed to allow for the defect. In practical terms had he known of the defective brakes in advance of the situation which led to the accident he would have been liable in negligence to some degree.

4. The Learned Judge was carefully comprehensive in his findings: "Since there was no factual basis on which it could be said that he ought to have known that [the brakes] were not working properly, I find that the First Defendant was not negligent."

5. The upshot of this is that there is a finding in the High Court, after a trial of the issue, that the Third Defendant was solely responsible for the collision. That issue is 'res judicata' or, as is more generally stated, issue estoppel [See Wood v. Luscombe 1966 1 QB 169; Henderson v. Henderson (1843) 3 Hare 100; and Wain v. F. Sherwood & Sons Transport Ltd. (The Times), 16 July 1998].

6. Of the other two High Court actions, one is by a passenger on the bus against the same four defendants, No. 1149 of 1995, and the other is by the employers of the workmen on the bus (No. 628 of 1998) claiming against the same four defendants an indemnity in respect of the payments made by the employers under the Employees Compensation Ordinance to its workmen.

7. These two actions have now come before me for a Pre-Trial Review. The Plaintiff in the first of these actions, has also obtained interlocutory judgment in default against the Third Defendant.

8. Mr. Chan Chi Hung for the Plaintiff in the first of these actions, says he wishes to, and is entitled to proceed against the First Defendant (the driver) because the matter of whether the First Defendant was in any event driving too fast, even without knowledge of the state of the brakes, was not ventilated at the trial before Mr. Justice Keith. It was not pleaded by that Plaintiff against the driver.

9. In my view at that trial the case against the driver was put, very sensibly, on the basis of knowledge of the defective brakes. If he had no knowledge he was not liable. There was obviously no evidence of his driving at an excessive speed in the circumstances known to him. The question would nonetheless have been at large and had the Learned Judge heard any such evidence from which such a conclusion could properly be drawn it would have been open to him to find such a fact. As I have said there was none.

10. Mr. Chan has readily conceded that the Plaintiff's legal advisers in this action knew of the existence of the action which was tried before Mr. Justice Keith. Therefore they could have applied to consolidate their action with that one and take part in the trial, putting such matters as were deemed appropriate to the First Defendant. I am satisfied that had they done so it would have made no difference to the outcome. Alternatively they could have agreed to abide the result on liability in respect of that action which would in my view have been the most sensible, practical and economic course.

11. If these actions were to proceed, the same issues as to liability would be ventilated in the face of a clear, unequivocal and unappealable finding of fact. It was a conclusive finding. It would be contrary to public interest and to the fundamental doctrine that there must be an end to litigation. It would be a waste of this court's time and resources. It would be a waste of litigants' time and money. It would be oppressive on the First Defendant. It would also be oppressive on the Third Defendant who has already been found liable for the collision. It would be harmful to the Plaintiffs in both actions who would have to bear the costs of their actions in proceeding with what I regard at best as speculative and unmeritorious litigation. It can only benefit the lawyers. It has incidentally been accepted that there should be no further proceedings against the Second and Fourth Defendants, no doubt sensibly, by reason of Mr. Justice Keith's findings.

12. Although the First Defendant has not made a formal application to stay these actions - he is present though unrepresented - the Court may act of its own motion. Similarly the Third Defendant has made no such application. He is not present. As I have indicated the court must have regard to his interests. Accordingly I order a stay in respect of both these actions in respect of the Third Defendant. There is already judgment against him. There will be judgment for the First Defendant against the Plaintiff in both actions with his costs to be borne by the Third Defendant. There will also be judgment for the Second and Fourth Defendants against the Plaintiff with their costs in both actions; in action 1142 of 1995 to be borne by the Third Defendant and their costs in action 628 of 1998 to be borne by the Plaintiff. There will be no order for costs in respect of the Pre-Trial Reviews and the application of 24th July 1998.