YAM KWOK KIT v. LAI SZE FAI

HCPI 210/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.210 OF 2002

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REASONS FOR JUDGMENT

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1) This is an appeal by the defendant against the order of Master Kwan made on 30 July 2002 by which the Master ordered, at the CLR hearing, that interlocutory judgment on liability be entered against the defendant with damages to be assessed.

2) After hearing the parties, I allowed the appeal by the defendant and ordered that the Order of the Master giving interlocutory judgment on liability against the defendant be set aside and that the issue of contributory negligence be tried between the parties. I now give my reasons for so ordering.

3) The plaintiff brings this claim for damages for personal injuries arising from a traffic collision which happened on 25 November 2000. At that time, the plaintiff was driving his motor cycle travelling on the 2nd lane of the northbound carriageway of Sheung Yuet Road. The defendant was driving a light goods vehicle ("LGV") travelling on the southbound carriageway of the same road. At the junction of Sheung Yuet Road and Wang Kwun Road, as the defendant attempted to turn right into Wang Kwun Road, the plaintiff's motor cycle collided with the front of the defendant's LGV on the left side.

4) As a result of this collision, the defendant was summoned for and pleaded guilty to careless driving.

5) At the CLR hearing before the master, despite objections from the solicitor of the defendant, the Master entered judgment on liability against the defendant and ordered damages to be assessed.

6) In bringing this appeal, the defendant does not seek to contest his liability in negligence to the plaintiff. He concedes that. His complaint is that by making the order that she did the Master effectively precluded the defendant from contesting contributory negligence of the plaintiff which had been pleaded by the defendant in his Defence.

7) It has always been the defendant's case that the plaintiff was driving at an excessive speed of 60 to 70 kph immediately before the collision. This was stated by him in his statement to the police and was repeated by him to the magistrate in mitigation when he pleaded guilty to careless driving. This is also the stance taken by him in his witness statement in these proceedings.

8) Contributory negligence was pleaded in the Defence of the defendant and the high speed of the motor cycle is one of the particulars given in respect of that plea.

9) The defendant has consistently alleged from the outset that the plaintiff's motor cycle was travelling at an excessive speed. Needless to say that is not accepted by the plaintiff. Therefore it is a disputed fact.

10) If it should transpire at the end of the day that the plaintiff was travelling at the speed alleged by the defendant, it is possible that the plaintiff could be found to be contributorily negligent since it is common grounds that Sheung Yuet Road has a 50 kph speed limit. That however would depend on hearing all the evidence, cross-examination and making findings of fact. It would be for the trial judge to do and not for me at this stage.

11) For present purposes, all that I am concerned with is that on the disputed facts there is a possibility that the plaintiff may be found to be contributorily negligent as and when such disputed facts are resolved at trial by the trial judge. It follows therefore that by making the order that she did, the Master wrongly deprived the defendant from having the issue of contributory negligence to be fairly determined at trial.

12) It should further be noted that the conviction for careless driving against the defendant is not, by itself, conclusive of the fact that there could be no contributory negligence on the part of the plaintiff. Such a conviction would normally only be relevant to the question of negligence of the person convicted.

13) It was for these reasons that I allowed the appeal by the defendant.