LI CHIU KING v. WAI CHI HING and Another

1995, No. PI543

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

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JUDGMENT

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The Undisputed Facts

1. On 5 October 1993, the first defendant (Mr Wai) was driving a Toyota Hi-Ace van along Cheung Sha Wan Road when the nearside rear wheel came off and struck the plaintiff. A few hours before the accident, Mr Wai had taken his van to the defendants' tyre shop. He was accompanied by a friend with a van of the same make and model as that of Mr Wai. Mr Wai asked Mr Tam Hau Ho (Mr Tam), one of the second defendants, to exchange the wheels on the two vans. Mr Tam did so.

The Agreement

2. All the parties have agreed the plaintiff's damages in the sum of $700,000. It is also agreed that the plaintiff must succeed against the defendants, or one of them. The issue before me is the responsibility of the defendants for the agreed damages.

The Pleadings and the Evidence

3. Mr Wai alleged that he took his van to Mr Tam who replaced the tyres. I should say here that both Mr Wai and Mr Tam often refer to "tyres" when they mean the wheels including the tyres. About three hours later, he says, one of the wheels fell off and injured the plaintiff.

4. Mr Wai's statement to the police, his "mitigation" when he was charged with, and pleaded guilty to, driving a dangerous vehicle, and his statement made for the purposes of these proceedings are all consistent with each other and with his evidence. In his statement for these proceedings, he said that he wanted the second defendants to change the wheels because they "were of five stubs and one external case to screw on" and he was unfamiliar with these. Mr Tam did not warn him that fitting these wheels would be dangerous.

5. In their defence to the third party notice, the second defendants said only that the replacement wheels "were very old and were of a racing type not fit for use on the said van". Mr Tam warned Mr Wai that this was dangerous, but Mr Wai insisted that it be done. In the second defendants' defence to the plaintiff's claim, the second defendants alleged that the wheels were unsuitable for Mr Wai's van, being fastened by only one screw. This allegation about the one "screw" is not repeated in their defence to the third party notice.

6. In Mr Tam's statement to the police, not disclosed during discovery and produced only when I required it after Mr Tam confirmed that he had made such a statement, he made no comment that the wheels he exchanged were unusual in any way, said that he locked up the "rims" safely and that there was no problem with the left rear wheel. He said in evidence that, in effect, this was not quite the truth, but it was a noble lie to protect Mr Wai, with no thought to protecting himself.

7. In his first statement for the purpose of these proceedings, Mr Tam repeated what he alleged in the defence to the third party notice. He explained the wheels could be fitted to Mr Wai's van with one screw only and that it was difficult to fit the wheels in spite of using a special spanner supplied by Mr Wai and his friend and a big metal hammer. In the end, the wheels were not fitted securely and he warned both drivers about this. They, however, insisted on the exchange.

8. Last week, the second defendants amended their pleadings to allege that the tyre that came off the van was not the one fitted by them. This allegation was based on a supplemental statement filed by Mr Tam in which he said, in essence, that he remembered from five years ago that the tyres he fitted to Mr Wai's van were "195/60HR14 with 4 wheel disc/nuts for racing car" whereas, according to the vehicle accident report, the tyres on the van at the time of the accident were size 185R14. In this statement, Mr Tam said that he also recalled that Mr Wai and his friend said that his charge was too high and they would re-exchange the tyres themselves.

9. In his evidence, Mr Wai said that the wheels and tyres to be exchanged were ordinary and easily seen in the street. He was not told the wheels were dangerous, and, as they had been fitted to the other van of the same model without problems, he thought they were suitable. He and his friend did not render any assistance or provide any tools. When driving, he did not hear any noise indicating anything untoward. The first warning he had was the van leaning to one side, but before he could do anything, the wheel came off. He did not change the wheels on the van. Mr Wai's evidence about his inability to give any identification details about his colleague, who owned the van from which the wheels were taken, was unsatisfactory. He wanted to change to the wheels from his friend's van because they were alloy and he liked them. His own wheels were steel and the original wheels supplied with the van when he bought it new. He did not know how to change the wheels from his friend's van because the style and screws were different. He could see the position of the bolts on his wheels, but those on his friend's were not obvious. Mr Wai was shown a model that consisted of a mock-up of a back plate for the wheel, with five bolts, and an adapter that fitted over these bolts providing a hub for the wheel. A single nut was designed to be screwed onto this hub to hold the wheel in place. Mr Wai thought that this was the design of his friend's wheels. He denied that he and his friend had swapped the wheels so that his friend's van would pass a vehicle examination and, after that, they swapped them back again. The tyre size on his friend's wheels was not 195. The wheel that came off was one fitted by Mr Tam. When Mr Tam changed the wheels, he did not look carefully at the method of fitting of the wheels to his van. He saw that an adapter was put on.

10. Mr Vickers, a mechanical expert, prepared a report concerning this matter. This report proceeded on the basis that the wheels fitted to Mr Wai's van by the second defendants were alloy wheels with a standard five bolt fitting. Mr Vickers overlooked the allegation that the wheels were secured with one "screw" only. This is not surprising because this allegation was made only once in the defence to the plaintiff's claim. In the defence to the third party notice, the allegation was that "were very old and were of a racing type not fit for use on the said van". It was upon this allegation that Mr Vickers concentrated. The plaintiff's advisers also failed to appreciate that the main thrust of the second defendants' case was that the wheel mountings on Mr Wai's van were not designed for the type of wheels that Mr Tam says he was asked to fit, that it was necessary to use an adapter and this was the cause of the difficulties in fitting the wheels. This must have been obvious to the second defendants' advisers when they read Mr Vickers' report. Yet they did nothing at all to ensure that this misapprehension was corrected. Instead, a model was prepared to demonstrate Mr Tam's case, and this was produced only on the morning of the trial.

11. The second defendants' advisers must also have appreciated, from at least March 1998, that they would need an expert to support their client's case. The obvious person for this purpose would be Mr Lau Kam Kong, a senior vehicle examiner who examined Mr Wai's van after the accident. Indeed, the second defendants' advisers made an ineffectual attempt to contact Mr Lau then, but gave up. They did not try hard enough. When Mr Pun was briefed, he took it upon himself to contact Mr Lau, and did so after a couple of hours and some phone calls. Then I was asked to authorise the issue of a subpoena against Mr Lau late of Friday of last week, although Mr Lau had said he would attend voluntarily. I refused that authorisation. At the start of this trial, Mr Pun sought leave to call Mr Lau, but not on the basis that he could say what type of wheel was on Mr Wai's van at the time of the accident. When it became clear to me that a very important issue in the case was the type of wheels on Mr Wai's van at the time of the accident, I allowed the second defendant to call him. Mr Lau's evidence established that, when he examined the van, it was fitted with alloy wheels, not the steel wheels originally fitted, but they were not the type Mr Tam says he fitted to the van in that they were not secured with a single nut. After some difficulty, Mr Lau was able to see on photographs of the van taken by him after the accident wheel caps. These were racing style; designed to be decorative so that the wheels would look like single screw wheels.

12. Mr Lau said that the holes for the bolts in the wheel that had come off were elongated from wear. The alloy was soft. His evidence of how long it would take to result in this wear was not satisfactory. He said that it was his view that all five, or possibly four, of the nuts had been left loose when the wheel was fitted.

13. In his evidence, Mr Tam said that Mr Wai's van had fitted steel wheels and the other van had alloy racing type wheels fitted. Mr Wai and his friend said they wanted the wheels exchanged because the friend's van was going for its annual examination. The friend produced the wheel spanner. He changed two of the wheels but found that there was free play. He warned Mr Wai that it was dangerous; the wheels could easily come off. Mr Wai said the wheels were driven on the road every day and there was no problem. Mr Tam suggested that the wheels be swapped back; that the vehicles be taken to a garage to do the work. Mr Wai and his friend insisted that he continue. They said that he was not required to shoulder any responsibility. He did continue and they helped. When done, the wheels were all checked and inspected and found all fixed. Mr Wai and his friend said the work was too expensive and they would re-exchange the wheels themselves after the examination

14. Mr Tam said that the wheels put onto Mr Wai's van had a single stud. What he said in his supplemental statement about "with 4 wheel disc/nuts for racing car" was wrong. When asked why he had made no reference to the adapter in his written statements, he had no adequate explanation to offer. He had no record of the fact that the type put onto Mr Wai's vehicle was size 195. He remembered this after five years. When asked to explain why he had not mentioned the tyre size in his first statement, he said he did not know until recently the size of the tyre at the time of the accident. When asked why he had not said that Mr Wai and his friend had said that they would re-exchange the wheels themselves after the examination in his first statement, he said that perhaps the interpreter had not translated this. He did not think he told his solicitor that Mr Wai and his friend had said that he would not have to be responsible. When asked if he meant properly secured when he had said that the wheels were "fixed", he confirmed this. Then he said that, by properly secured, he meant he had done his best. When it was pointed out to him that, in his statement, he had implied that another had heard them say that the vehicle was to be examined that day, Mr Tam said that he meant that he did not hear clearly the time of the examination.

Assessment of the Evidence

15. I have no hesitation in accepting the evidence of Mr Wai over that of Mr Tam.

16. Mr Wai's evidence was consistent with his earlier statements, and was inherently credible. I was not happy with the fact that he could not give a name to his friend, but when pressed on this and accused of concealing the name, he spontaneously said that anyone was welcome to check with his previous employers to see that he had made attempts to trace the friend. Mr Wai's evidence was consistent with the probabilities. Generally, I was impressed with this man as a witness.

17. On the other hand, Mr Tam put up a very poor showing. He was excitable and voluble. His earlier statements were not consistent with each other or his evidence. He all but admitted he had lied to the police. Or perhaps he had not lied to the police at all. Perhaps he said that there had been no problem when the police contacted him because, in fact, as Mr Wai says, there had been no problem. His evidence is not consistent with the probabilities. He says, in essence, that he warned Mr Wai that the wheels were not fitted properly and were dangerous. In these circumstances, it is not probable that a professional driver would then take the van onto the public road. Nor is it probable that a person in the trade in the position of Mr Tam would be content to fit wheels in a dangerous state and allow the vehicle to leave his premises like this. He must have known that, if there had been an accident, he would be accused of not doing his job properly. It is also not probable that Mr Tam would remember the size of the tyre after 5 years with no written record to assist.

18. The fact of the matter is that we know, from Mr Lau's independent evidence, that the wheels on Mr Wai's van at the time of the accident were not the wheels that had been on his van when he had arrived at Mr Tam's premises. Those wheels had been steel; the wheels at the time of the accident were alloy. It follows that, if Mr Tam is to be believed, Mr Wai must have, within a few hours of changing his wheels at Mr Tam's place, changed them yet again to a third set of wheels. This is improbable to the highest degree. There can be no reasonable explanation for Mr Wai doing this.

19. I am, of course, aware that Mr Wai says that he thought that the wheels fitted to his van were fitted with a single nut. In this, I find that he must have been mistaken. I have no doubt that he thought that they were fitted with a single nut; indeed, he says so. That is why he took the vans to Mr Tam in the first place. I have no doubt that he thought this because, as one can see from the photographs and as Mr Lau says, the wheels found to be on Mr Wai's van after the accident were designed with a wheel cap to give the appearance that they were fitted by a single nut.

Finding as to Second Defendants' Negligence

20. It follows from my findings thus far that it must be the case in all probability that Mr Tam did not properly secure the nuts fastening the wheel that came off. This means that the second defendants were negligent in this respect.

Mr Wai's Negligence?

21. The remaining question is whether Mr Wai was also negligent. He can be found to be negligent only if a reasonable man would have been aware that there was some problem with the van that might cause a danger to other people. I cannot find any evidence that would justify such a finding. It may be that, if Mr Wai had reason to suspect that one of his wheels might come off, he would have been listening for any suspicious noise, and he might have heard one. But I find that this is not the case. The wheels, as far as he knew, had been changed by a competent professional. There had, as far as he knew, been no problems in doing this. In these circumstances, there was no reason why he should think that one of the multitude of noises one hears coming from a commercial vehicle like this was signalling a danger. In the result, I find that Mr Wai was not negligent.

Result

22. In the result, I find that the second defendants are solely responsible for the damages suffered by the plaintiff. There will be judgment for the plaintiff against the second defendants only in the sum of $700,000.

Costs

23. The matter of costs has not been argued, but, on the face of it, there seems to be no reason why costs should not follow the event. Without more, it seems to me that the just order is that the second defendants pay the costs of the plaintiff and the first defendant, and I make an order nisi accordingly.

JK FINDLAY

Judge of the High Court
Court of First Instance