SEAWEALTH ENTERPRISES LTD. v. WAN CHEUK KEUNG AND ANOTHER

DCCJ 21488/1999

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO.21488 OF 1999

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JUDGMENT

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Background:

[1] The Plaintiff was the registered owner of a Mercedes Benz passenger vehicle bearing registration number AL338 (the "Benz") and the 1st Defendant was the registered owner of a specialized live-fish transporting lorry bearing registration number GF3894 (the "Lorry").

[2] On or about 3.35pm of 19th January 1998, the Benz was driven by one of the Plaintiff's directors, Madam Lam Mei Wah Suez ("Madam Lam"), traveling eastbound on Electric Road. At the same time, the Lorry was driven by the 2nd Defendant Mr. Fan Kam Yau ("Mr. Fan"), one of the 1st Defendant's employees, also traveling eastbound on Electric Road.

[3] The right front of the Benz collided with the left rear of the Lorry. The Benz's right front fender and front bumper were damaged as a result of the collision. The Defendant alleged that the left rear fender and the fiberglass tub in the Lorry were also damaged in the collision.

[4] The Plaintiff brought claim against the 1st and 2nd Defendants for damages to the Benz as follows:

(1)	Repair costs	HK$	48,933.80
(2)	Survey fee		680.00
(3)	Loss of use of vehicle		2,659.00
	Total	HK$	52,272.80

[5] The Defendant counter-claimed against the Plaintiff for damages to the Lorry as follows:

(1)	Repair costs	HK$	8,160.00
(2)	Loss of use of lorry		4,400.00
	Total	HK$	12,560.00

The Plaintiff's Case:

[6] Madam Lam testified that at the material time she was driving her 2 years old daughter to her care-taker and after she turned left from Gordon Road onto Electric Road going eastbound, she drove on the right lane. She was traveling at approximately 30 to 40 kilometers per hour. When she got to the junction of Electric Road and Watson's Road, she noticed from her rear view mirror that the Lorry was about 7 to 8 car lengths behind her and approaching at a very high speed. Madam Lam was so concerned with the approaching Lorry that she sounded the Benz's horn to signal to the Lorry driver.

[7] After traveling a further distance of 1 or 2 car lengths, the Lorry overtook the Benz on the right side, mounting the pavement in the process. There were other traffic on the left lane, therefore Madam Lam was unable to move to the left lane to avoid the Lorry. As there was insufficient space for the Lorry to pass on the right, the left rear fender of the Lorry collided with the right front fender and bumper of the Benz.

[8] After both drivers had alighted, Madam Lam scolded Mr. Fan for running into her vehicle. Due to his guilt, Mr. Fan did not reply. Madam Lam then reported the incident to the police.

The Defendant's Case:

[9] Mr. Fan testified that he was driving the Lorry on the right lane along Electric Road going eastbound. The right lane was open, but there was a petrol tanker truck on the left lane and traffic was backed up on that lane. When Mr. Fan first noticed the Benz, it was stuck 4-5 feet behind the petrol tanker truck on the left lane. Mr. Fan continued along the right lane, checking his right rear mirror in the process, as that part of Electric Road was narrow. After he passed the Benz, he heard a crushing sound, when he looked at his left rear mirror, he noticed that the Benz had ran into the Lorry's left rear.

[10] The Parties agreed that before the police arrived, neither moved their vehicles. The investigating constable had an opportunity to observe the position of the vehicles immediately after the collision. After investigation, the police issued a warning letter to Madam Lam, but no charges were brought against either Madam Lam or Mr. Fan.

The Issue:

[11] There was a collision between the Lorry and the Benz; the drivers gave a diametrically different account of what had happened. There were no other independent witnesses; therefore this case must be decided on the veracity of the witnesses' testimonies. If Madam Lam's account was correct, then Mr. Fan was clearly negligent when he attempted to pass on the right of the Benz. On the other hand, if Mr. Fan's account was correct, Madam Lam had failed to keep a proper look out prior to changing from the left lane to the right lane. The sole issue was: Whether Madam Lam's account or Mr. Fan's account of the event was more believable?

The Findings:

[12] After careful consideration of the evidence, I have decided that Mr. Fan's account of the events was more believable. My decision was based on the following:

[13] In accordance with the scaled sketch plan prepared by the investigating constable (page 92 of the agreed bundle), immediately after the accident, the Benz stopped at an angle on the right lane. The front of the Benz was pointing to the right and the left rear corner resting near the dividing line between the left and right lanes. This was inconsistent with Madam Lam's version of the event. If the Lorry had bumped into the Benz's right front at high speed, it would be natural for the Benz's front to be pointing to the left instead of the right.

[14] The vehicles' position after the collision was however, consistent with Mr. Lam's account of events. If Madam Lam was traveling on the left lane and attempted to cross on to the right lane, while the Lorry was traveling on the right lane at the time of the collision, one would expect the vehicles to be exactly where they were depicted in the investigating constable's sketch plan.

[15] The right lane on Electric Road was simply not wide enough for the Lorry to have passed the Benz on the right. In accordance with Madam Lam's testimony, she had been traveling on the right lane for sometime when the Lorry passed her on the right, mounting the pavement in the process. A careful review of the photographs taken at the scene of the accident by the investigating constable (photographs on page 108 of the agreed bundle) revealed that at the relevant time a construction site occupied the right side of that part of Electric Road. On the right pavement of that part of the road, there was a long pedestrian steel railing and a structural steel reinforced hoarding only inches from the right lane. Immediately in front of the steel railing and hoarding was a fire hydrant. The Lorry simply could not pass the Benz on the right and mount the pavement, without crashing into the steel railing or the steel hoarding.

[16] Madam Lam testified that she sounded the Benz's horn and signaled to the Lorry that she was on the right lane. The sounding of the horn was more consistent with drivers who were trying to compete for the same space against other traffics. It was illogical for Madam Lam to sound her horn, if she had been traveling on the right lane for sometime and simply noticed the Lorry approaching from the rear.

[17] Madam Lam testified that initially the Lorry was 7 to 8 car lengths behind the Benz and within the time she traveled 2 to 3 car lengths, the Lorry had caught up and passed her on the right. Even if there was enough room on the right for the Lorry to pass, to have done so in such a short time, the Lorry would have to be traveling at an extremely high speed. However, after the collision there were no skid marks on the road. Madam Lam's testimony was inconsistent with the physical evidence of the scene.

[18] As to the allegation that Mr. Fan did not reply when Madam Lam scolded him after the accident. Madam Lam was still very upset when describing the accident in court 3 years later. One could imagine her emotional state immediately after the accident. Mr. Fan was perhaps wise not to have said anything to Madam Lam at the time. I cannot draw any negative inference from Mr. Fan's silence.

[19] The Plaintiff's claim must therefore be dismissed.

The Counter-claim:

[20] The main difficulty with the 1st Defendant's counter-claim was the fact that Mr. Fan had, in his police statement dated 17th Feb 1998, stated that the Lorry required no repairs. The only evidence of damage to the Lorry was the photograph exhibited on page 110 of the agreed bundle. Even there, the only visible damage was a slightly bended right rear mudguard. There was simply no evidence of any damage to the left rear section of the Lorry.

[21] A further difficulty in the counter-claim was that the 1st Defendant testified that he had entrusted the repair of the Lorry and the rental of the replacement vehicle to an "Ah Ming". Cash was paid to Ah Ming and only unsigned receipts were obtained.

[22] I have carefully reviewed the receipts and found that there was no addresses or telephone numbers on these receipts. The repair receipts did not even have a signature or a chop. I found it impossible to accept the 1st Defendant's evidence. The Defendants' counter-claim is therefore dismissed.

Judgment:

(1) The Plaintiff's claim is dismissed.

(2) The Defendants' counter-claim is also dismissed.

(3) Costs of defending the main claim be to the Defendants, to be taxed if not agreed. Costs of defending the counter-claim be to the Defendants by counter-claim, to be assessed if not agreed.