TSOI KWOK KUEN v. CHAN WAH HIN

HCPI 1019/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1019 OF 2005

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J U D G M E N T

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Introduction

1.  This is an action by the Plaintiff, who is mentally incapacitated and suing by his next friend, against the Defendant for damages for personal injuries sustained by him in the course of a traffic accident which took place in Mainland China.

2.  The Writ of Summons was issued on 7 November 2005.  Originally there were two defendants.  It was subsequently amended with the result that the Defendant is now the only defendant.

3.  By an Order dated 4 October 2006, it was ordered by Master B Kwan that the issue of liability be tried separately from the issue of damages.

4.  This is the trial on the issue of liability.

The Basic Facts

5.  The Plaintiff and the Defendant were friends.

6.  On 12 November 2002, the Defendant was the driver of an 8-seater Toyota jeep with right-hand drive and with three rows of seats bearing a Hong Kong registration number “JX8293” and a Mainland China registration number “粵Z9944港” (“the vehicle”).

7.  The vehicle was registered in the name of one Huning Import and Export Co Ltd (“Huning”) of which the Defendant was and is a director and shareholder.  Huning is in the nature of a family company of the Defendant carrying on business in the flour trade.  It was originally the 2^nd Defendant named in the Writ of Summons.

8.  On 12 November 2002, the Plaintiff was a passenger in the vehicle.  Besides the Plaintiff and the Defendant, there were five other passengers in the vehicle.  All of them were friends.

9.  The party set off from a place called Wan Fau (雲浮) near the border between Guangxi and Guangdong.  The aim was to drive through Guangzhou to go onto the Guangzhou-Shenzhen Expressway (“the Expressway”), then to the Wang Gang Checkpoint to cross the border and go to Hong Kong.

10.  According to the Defendant in evidence, the entire journey would cover about 300 kilometres and he was to drop everybody at the Wang Gang Checkpoint before going back to Hong Kong by himself.

11.  At about 3:40 pm, when the vehicle had reached about Section 66 km and 300 m on the Expressway, the accident in question happened.  According to the Defendant, at that time, the vehicle was proceeding on the middle lane out of three lanes on the southbound carriageway.  The weather was fine, the road surface was dry and the traffic was light.  The vehicle was travelling at a speed of about 110 km/hr.  Suddenly, the vehicle veered to the left and, in order to avoid hitting the central dividing barrier, he applied the brakes gently and steered to the right and, in order to avoid hitting the railings on the right side of the carriageway, he steered left again.  The vehicle then overturned or flipped over sideways and crashed through the railings on the right and plunged down the slope into the Wu Dian Mei Reservoir (“the Reservoir”).

12.  The Defendant became unconscious for a moment and discovered that his collar bones were broken on both sides.  He managed to free himself from the vehicle and swim to the surface of the water.  He later learnt that three of the passengers, including the Plaintiff, had been thrown onto the road surface of the Expressway.  In the end, two of the passengers died and the rest were all injured as a result of the accident.  The injuries sustained by the Plaintiff were very serious.

13.  After the accident, the Defendant was admitted into a local hospital for treatment.  He was then detained by the local traffic police in the custodial ward for about three months.  In the meantime, investigations into the cause of the accident were carried out by the traffic police.  On 28 February 2003, the Defendant was granted bail but was not allowed to leave the Mainland.  On 12 June 2003, the Dongguan City District People’s Procuratorate (“the Authority”) issued a Charge Sheet (“the Charge Sheet”) against the Defendant regarding the accident.  The Charge Sheet also recorded that the Defendant had paid compensation to the families of the deceased passengers and to the injured passengers in the total sum of RMB413,089.30.

14.  On 28 November 2003, someone from the Dongguan City People’s Court telephoned the Defendant to ask him to go to court.  When he arrived, he was handed a document entitled “Criminal Judgment” which was to the effect that the court allowed the Authority to withdraw the prosecution against the Defendant.  That document recorded as follows : -

“After the case had been taken by this court, during the process of litigation, the Dongguan City District People’s Procuratorate, Guangdong Province discovered that the fact and evidence against the Defendant’s committing a traffic offence had changed.”

The defendant was allowed to go free.

The Plaintiff’s Case

15.  The Plaintiff’s primary cause of action is in negligence.  In paragraph 3 of the Statement of Claim, he has set out a large number of particulars of negligence.  In his submission, Mr D’souza, Counsel for the Plaintiff, has trimmed the particulars down to the following : -

“(a)   Driving at excessive speed.

(j)    Driving the Private Vehicle upon the Expressway knowing that the tyre was defective.

(k)   Driving the Private Vehicle at excessive speed knowing that the tyre was defective.

(p)   Exposing the Plaintiff to a danger or a trap or a foreseeable risk of injury.”

16.  Paragraph 4 of the Statement of Claim pleads as follows : -

“4. Further or in the alternative, the Plaintiff will rely on the doctrine of res ipsa loquitur insofar as the same is applicable in the circumstances of this case.”

The Defence Case

17.  In paragraph 4 of his Defence, the Defendant has denied negligence on his part and pleaded that the accident “arose from inevitable accident occurring notwithstanding the exercise of all reasonable care and skill by the Defendant”.  The particulars thereunder read as follows : -

“    Particulars

While the Defendant was driving the Private Vehicle within the speed limit imposed at the Guangzhou-Shenzhen Expressway, the offside rear tyre (“the said tyre”) of the Private Vehicle was suddenly damaged or burst by a piece of hard object, whereby the Vehicle went out of control and notwithstanding the exercise of all reasonable care and skill in the emergency thereby created, the Defendant was unable to avoid the accident.  The tyres including the said tyre were from time to time under regular and proper service and maintenance and with proper tyre pressure.”

18.  In paragraph 5 of the Defence, the Defendant has also pleaded contributory negligence on the part of the Plaintiff in failing “to wear or fasten the safety seat belt”.

The Law – the Basic Proposition

19.  The most recent, clear and authoritative exposition and explanation of the so-called “doctrine of res ipsa loquitur” (the word “doctrine” being now generally recognised to be somewhat of a misnomer) is that made by the Hon Bokhary PJ in his leading judgment in the case of Sanfield Building Contractors Ltd v Li Kai Cheong (2003) 6 HKCFAR 207.  The learned Judge says as follows : -

“2. The expression res ipsa loquitur (the thing speaks for itself) features prominently in the judgments of the courts below in this case.  It is an expression that some lawyers (prominent among them Hobhouse LJ (as he then was) in Ratcliffe v Plymouth and Torbay Health Authority [1998] PIQR P170) prefer to avoid.  But some lawyers still find it convenient.  For my own part, I think that using it is convenient sometimes.  The important thing to remember – and make clear – is that the expression does not denote a doctrine but merely “a mode of inferential reasoning”.  The words which I have put within quotation marks are those used by Gleeson CJ and McHugh J in their joint judgment in a recent decision of the High Court of Australia, Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121 at p. 141.

3.  This mode of inferential reasoning applies only to accidents of unknown cause.  But it matters not that the immediate cause of an accident (eg brake failure or a burst tyre) is known.  As long as the cause on which the issue of liability actually turns (eg why the brakes failed or the tyre burst) is unknown, the accident is regarded as one of unknown cause.  The res ipsa loquitur mode of inferential reasoning comes into play where an accident of unknown cause is one that would not normally happen without negligence on the part of the defendant in control of the object or activity which injured the plaintiff or damaged his property.  In such a situation the court is able to infer negligence on the defendant’s part unless he offers an acceptable explanation consistent with his having taken reasonable care.  The “essence” of this was identified by Lord Radcliffe in Barkway v South Wales Transport Co Ltd [1950] 1 All ER 392 at p. 403G.  It is, his Lordship said, that “an event which in the ordinary course of things is more likely than not to have been caused by negligence is by itself evidence of negligence”.

4.  None of this is to be analysed as putting an onus on the defendant to disprove negligence. ………………………”

[emphasis added]

20.  In my view, the part of the Judgment of Bokhary PJ quoted above is particularly helpful because, although the Sanfield case itself is not even a traffic accident case, the learned Judge did use a burst-tyre situation as an example and lay down the approach to be adopted in such a situation.  I propose to adopt the same approach in my analysis of the evidence below.

The Evidence and the Analysis of the Same

21.  There is no dispute that the Plaintiff has been so mentally incapacitated that he was not able to give evidence at the trial.

22.  The only witness who gave evidence on behalf of the Plaintiff was his wife and next friend, Madam Yee Tat Hing.  She was in the United States when the accident occurred and only flew back to see the Plaintiff a bit later.  She attempted to give hearsay or double-hearsay evidence as to how the accident happened.  Such evidence is so plainly unhelpful that Mr D’souza in his submissions has, rightly in my view, not sought to place any reliance on it.  It is therefore not necessary for me to set out such evidence.

23.  The only evidence as to how the accident happened and the events leading up to it was given by the only witness for the defence, namely, the Defendant himself.

24.  I now proceed to deal with the evidence (both written and oral) given by the Defendant as well as some of the documentary evidence adduced.

25.  I deal first with the point of “excessive speed” made by the Plaintiff.  There is no dispute that the legal speed limit on the stretch of the Expressway where the accident occurred was 120 km/hr.  The Defendant gave evidence to the effect that he was driving at an average speed of about 110 km/hr and that shortly before the accident he had a look at the speedmeter and noticed the speed of 106 km/hr.  There is completely no evidence suggesting the contrary.  I accept this part of the evidence of the Defendant.  Taking into account the road condition at the time and the fact that the Defendant was driving within the legal speed limit, I find that the Plaintiff has not proved that the Defendant was driving at an “excessive speed”.

26.  I go on to deal with the question of “burst tyre”.

27.  I first examine all the available evidence relating to the allegation of “burst tyre”.

28.  In paragraph 5 of the Witness Statement of the Defendant dated 11^th January 2007, he said : -

“At the time of the accident, the Private Vehicle suddenly out of control swerved to the left and at the same time I heard one of the male passengers Mr Tsui shouting “burst of tyre”.”

“Mr Tsoi” is a reference to the Plaintiff.

29.  In the witness box, the Defendant confirmed that the Plaintiff was sitting in the middle of the second row of seats and that he did shout “burst of tyre”.  In answer to a question by me, he said that, before the vehicle got out of control, he himself heard a “pop” sound coming from the outside on his right.

30.  Both the Plaintiff and the Defendant have also disclosed a sketch plan (“the Sketch Plan”) which has on its top the words「車故发生，交通警的现场绘示意图」(transliteration : “traffic accident occurred,  sketch plan of the scene by the traffic police”).  The Sketch Plan is unsigned and undated and does not even contain any description of the maker except, perhaps, what is suggested by the words quoted above as having been made by some traffic policeman who arrived at the scene of the accident.  Nobody from the Plaintiff’s side or the Defence side, including the Defendant, was able to tell the Court how they came to be in possession of a copy of the Sketch Plan and how it came into existence.

31.  The Sketch Plan appears to show in quite a lot of detail the debris and brake marks and scratches left on the surface of the road (although not the position of the three passengers who were thrown onto the road).  It even contains detailed figures indicating the points on the Expressway at which the abovementioned various items were found.

32.  On the bottom half of the Sketch Plan, certain words in Chinese appear.  I set out the certified translation of the same as follows : -

“Oral account after  the accident :	12/11 incident.  Began to discover that the rear right tyre punctured and the vehicle steered to the left.  The driver braked the vehicle and it veered to the right (did not crash onto the left protective fence as the braking was light).  The vehicle then lost control and overturned.  There were scratches on the road surface and the vehicle overturned and fell off the vehicle lane.
Furthermore, photos  are provided :	plaque, surface materials of a tyre and the rear right tyre without surface materials.  The photo shows the position of puncture; after the front right tyre scratched the floor, the tarmac caused it to release the pressure; each braking plate functions well, photo of the damaged vehicle.”

There is no indication as to who gave the oral account after the accident.  Furthermore, nobody on the Plaintiff’s side and the Defence side has ever seen any of the photographs referred to in the Sketch Plan.  I should also point out that under the description of the photos, when one reads the original in Chinese, it is ambiguous whether the words “The photo shows the position of puncture” relates to the right rear tyre or the right front tyre.

33.  Despite the unsatisfactory features about the Sketch Plan as mentioned above, I am prepared to accept on the balance of probabilities that the Sketch Plan was made by some police officer who arrived at the scene and investigated into the accident.

34.  On the basis of the evidence of the Defendant and the Sketch Plan, I find on the balance of probabilities that the accident was caused by the bursting of the right rear tyre of the vehicle.

35.  I am, however, not prepared to go as far as finding that the bursting of the tyre was caused by it being “damaged or burst by a piece of hard object” as alleged by the Defendant in the Defence.  There is no evidence to such effect given by the Defendant or as appearing from the Sketch Plan.  I should add that there is also no expert evidence on this question.  By the Order of Master B Kwan dated 4 October 2006, she ordered that no expert evidence as to liability should be adduced in written or oral form.  I asked the parties the reason why the learned Master made such an order and neither side was able to tell me.

36.  As is clear from the judgment by Bokhary PJ in the Sanfield case quoted in paragraph 19 above, proving that the immediate cause of an accident was a burst tyre without more is not the end of the matter.  The accident should still be “regarded as one of unknown cause” and the “res ipsa loquitur mode of inferential reasoning comes into play”.  “In such a situation the court is able to infer negligence on the defendant’s part unless he offers an acceptable explanation consistent with his having taken reasonable case”.

37.  It is therefore incumbent upon me to examine the evidence given by the Defendant regarding the maintenance of the tyres on the vehicle to see whether he has offered an acceptable explanation consistent with his having taken reasonable case.

38.  By her Order dated 4 October 2006, Master Kwan ordered that the Plaintiff and the Defendant should serve and exchange witness statements on or before 8 November 2006.

39.  It would seem that the parties agreed to extend the deadline for the service and exchange of witness statements.  Even after that, the Defendant still delayed.  As a result, on 29 December 2006, Mr Registrar C Chan had to make an order which reads as follows : -

“4. Unless the Defendant shall exchange his witness statement as to facts with the Plaintiff 14 days hereof (ie by 5pm on 12^th January 2007), the Defendant shall be debarred from filing and serving any witness statement as to facts and calling any factual witness to testify.”

The Defendant was represented by a firm of solicitors at that time, albeit not the same firm acting for him now.  There can be no doubt that the Defendant and his solicitors must realise the importance of the witness statement to be filed by him.  As it transpired, his Witness Statement dated 11 January 2007 was filed.

40.  In paragraph 2 of the Witness Statement of the Defendant, he says : -

“Before the start of the journey, as my usual practice and during the time of refill at gas station, I have examined the condition of the tyres and noted they were normal and of proper pressure.  I also noted that the Private Vehicle was functioning normal with normal braking system.  At all material times, the weather was fine, the road surface was dry and the traffic condition was smooth.  As far as I can recall, the rear tyres of the Private Vehicle were changed in early 2002.  The annual vehicle examination in Hong Kong was done in early 2002 as one of the requirements for the renewal of the vehicle licence in Mainland China for the year of 2002.”

41.  At this juncture, I should refer to the evidence of the Defendant regarding the history of the vehicle.  The vehicle was manufactured in 1996.  Huning purchased the vehicle as a used car in February 2001.  It was to be used by the Defendant almost privately.  He did not cause an inspection of the vehicle to be carried out before purchase.  Prior to the registration of the vehicle being renewed in February 2002, it had to go for a Government-approved inspection because it was by then a 6-year old car.  The Defendant also said in the witness box that in 2002 the vehicle had to be inspected in Hong Kong by a Mainland-approved agency in order to have the Mainland registration renewed, although he did not say in which month.

42.  In cross-examination, Mr D’souza asked the Defendant about the practice of Huning in keeping company documents such as tax returns, sales receipts and receipts for purchases.  The Defendant said that Huning would keep such documents for a period of 7 years before destroying them.  He was then asked whether Huning had still kept the documents relating to the purchase of the vehicle and the inspection of the vehicle in February 2002 and the receipt for the change of tyres in February 2002.  He said that no one had ever asked him for such documents.  He further said that such documents had been destroyed and were no longer in existence because they were more than seven years old.  I then put to the Defendant that, when he made his Witness Statement in January 2007, it had been less than seven years since February 2002 and that the company should still be in possession of the receipts for the purchase of these tyres.  The Defendant simply said that he had not thought of keeping such documents.  He further said that the traffic police did not ask him for them nor did his previous legal representatives.  I asked him who in Huning would be responsible for destroying the documents and his answer was his sister, Ms Chan Wah Tsui.  She was not called as a witness.

43.  I do not accept this part of the evidence of the Defendant.  As at the time of the Defendant making his witness statement in January 2007, he and his legal advisers must have appreciated the importance of proving due maintenance of the tyres because the checking of the tyres on the day of the accident and the replacement of the rear tyres were specifically mentioned in the witness statement.  If the rear tyres had been replaced in early 2002 as alleged, Huning must have kept the receipt for the purchase of the new tyres.  It would have been a strong point in favour of the Defendant for him to produce the receipt so as to show that the tyres on the vehicle were being properly maintained.  I cannot believe that in the process taking the Defendant’s witness statement his legal advisers would not have asked him whether there was any receipt for the purchase of the tyres.

44.  Furthermore, if, as the Defendant would seem to want to give the impression, he was being asked about the retention of the company documents of Huning for the first time in the witness-box, he should at least have requested an opportunity to check with his sister to see whether the relevant documents had really been destroyed instead of just saying categorically that all documents over seven years would have been destroyed.

45.  I therefore do not accept the allegation by the Defendant that the rear tyres had been changed in early 2002.  Even if the rear tyres had in fact been replaced in early 2002, by the time that the accident happened in November 2002, they might already have been subject to very much wear and tear.  In the circumstances, the Defendant has not shown how old the tyres on the vehicle were and whether and how the rear tyres had been maintained or kept in good condition so as to be able to withstand long journeys on expressways on the Mainland.

46.  The Defendant also said in the witness box that on the day of the accident he in fact checked the condition of the tyres more than twice.  Whenever he stopped to go to the toilet, he would walk around the vehicle and check all the tyres by kicking them.  On the balance of probabilities, I am of the view that that is an exaggeration on the part of the Defendant and I do not accept it.

47.  In his closing submission, Mr D’souza has referred me to a case in England : Livingston v Geddes and others (Unrepated, QBD, 81/NJ/2539, Deputy Judge Martin Collins QC, 24 June 1982).  In that case, the Plaintiff’s car collided with the rear of the trailer forming part of a very long articulated vehicle which had stopped on one-and-a-half lanes on the motorway because of the deflation and loss of a front tyre which caused the defendant driver to lose control of his vehicle.  That case in my view is an application of the correct principles regarding res ipsa loquitur.  Whilst recognising that each case must be decided on its own facts, I find the following passage at pages 6 – 7 of the judgment of the learned Deputy Judge helpful in considering the approach to be adopted in a similar situation : -

“The sole witness called by the defendants with regard to the state and history of the tyres on the vehicle was the first defendant himself.  No witness responsible for maintenance was called and no record either relating to purchase or maintenance was made available.  The second defendant ceased trading some time ago and this may go some way to explain the absence of documentation.  It is also right to say that there was no order for discovery, and documentation of this kind was not called for even informally on behalf of the plaintiff.  So that it would be wrong to draw some adverse inference in the sense that documents had been withheld or destroyed which should have been retained and made available.  And I do not draw any such inference.  However, the fact remains that no such evidence has been produced before me.  It was conceded on behalf of the defendants that on the first defendant’s account there was a period in this history of the tyres which was not covered by evidence – by direct evidence.  The first defendant told me that the tyres were put on at about  Christmas 1977 as far as he could remember.  He said they were new and that he had gone down to get them himself at the Tyre Service as instructed by the foreman.  He said in cross-examination that he could not say why he remembered the period in time at which that happening took place.  There was, as appears from what I said earlier, no evidence from the foreman and no documentary evidence to support his account of when the new front tyres were fitted.  He then told the Court of his history.  He said he drove the vehicle between the fitting of the new tyres and the accident, that is to say between Christmas or just before Christmas and the 18^th January except for a week when he was on holiday when it was driven by someone else on local journeys.  And I note that even if I were to accept as necessarily accurate his account that the new tyres had been fitted in December, that this week would, in fact, be quite a substantial proportion of the time during which the tyres had been fitted on the lorry.  No evidence was given as to any instructions either to the first defendant or to his fellow drivers as to the necessity of reporting any incident likely to set up damage to the tyres.  At any rate, the first defendant said that he had not been involved in any such incident but, of course, he could not speak as to the other drivers’ experience during the week when he was on holiday and when it was being used, according to his recollection, on local work.  The first defendant’s account of the precautions which he took on the day of the accident was rather remarkable.  He told me that before setting off from Aberdeen at about nine o’clock he examined the vehicle, checked the oil, water, tyres and lights.  He checked the tyres by going round looking at the tread pattern and giving them a kick and there was nothing remarkable in that.  But his evidence continued that he stopped three times between Aberdeen and the site of the accident for a cup of tea and a break and he said each time he checked the tyres again, checking them all round, and I have no hesitation in rejecting his evidence to this effect.  I just do not believe that in the real world a driver in the absence of some specific instructions or circumstance would ever be likely to act in this over-meticulous way and indeed counsel for the defendants realistically accepted that this was a part of the evidence which would not be likely to be immediately acceptable.  In the light of the first defendant’s inability to say why he remembered the approximate date and of the absence or the lack of documents or other proof tending to fix the date of the purchase of the new tyres, I do not find myself able to rely on the accuracy of the first defendant’s evidence that they tyres had been renewed in about Christmastime.  He could be right as to this, but I find that it could just as easily be the case that new tyres had been fitted in, say, October or November, there being nothing in his recollection to tie it to Christmas.  And I find that the defendants have not established, on the balance of probabilities, that the tyres were renewed at that time.”

48.  In the result, the vehicle being in the complete control and management of the Defendant at the time of the accident, I find that he has not offered an acceptable explanation consistent with his having taken reasonable case.  I find that he is liable in negligence to the Plaintiff for the Plaintiff’s injuries sustained as a result of the accident.

Contributory Negligence

49.  According to the Defendant, before he started off the journey, he had reminded all the rear seat passengers to put on their seat belts.  None of them did.  I accept his evidence that, at the time of the accident, none of the rear seat passengers was wearing a seat belt.  If they had, the injuries sustained by them might not have been so serious.  The three passengers, including the Plaintiff, who had been thrown onto the road might not have been so.

50.  On such basis, the Defendant has pleaded contributory negligence against the Plaintiff.

51.  No evidence has been adduced as to whether a rear seat passenger travelling on the Mainland was required by law to wear a seat belt in November 2002.

52.  I have been referred to the English case of Froom v Butcher [1976] 1 QB 286 in which the Court of Appeal found the plaintiff driver who did not wear his seat belt to be guilty of contributory negligence and that the damages awarded to him should be reduced by 20%.  From the report, it would appear that that was a time when it was compulsory for cars to be manufactured with seat belts but not compulsory for a driver to wear his.

53.  The Froom case was followed by the Court of Appeal in Hong Kong in the case of Ho Wing-cheung v Liu Siu-fun and Pak Chuen-shun (CACV 96/1979 Unreported judgment of the Court of Appeal delivered on 30 April 1980).  In that case, the plaintiff front-seat passenger who did not wear her seatbelt was found to be guilty of contributory negligence and her damages were reduced by 20%.

54.  In the present case, I am of the view that it would have been prudent for the Plaintiff to have worn his seatbelt because he knew that he was going to travel on an expressway, irrespective of whether there was any requirement to do so by law.

55.  In all the circumstances, I find him to be guilty of contributory negligence and that whatever damages he will be awarded should be reduced by 20%.

Costs

56.  I make an order nisi that the Defendant should pay to the Plaintiff the costs of the action up to the completion of the trial on liability to be taxed on a party-and-party basis, if not agreed.

Conslusion

57.  It remains for me to thank Counsel for both parties for their able assistance to the Court.