CHEUNG PING v. SIU CHUNG YEE AND OTHERS

No. 5345 of 1982

                Loose hub nuts permitted wheel on 2nd defendant's lorry to come off and injure plaintiff. Lorry at time being driven by 2nd defendant's driver without express prior permission and on a frolic of his own. On plaintiff's claim held:-

No. 5345 of 1982

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

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JUDGMENT

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1. At about 7.50 a.m. on Sunday, 22nd February 1981 the plaintiff was waiting at a bus stop in Prince Edward Road, when she was knocked to the ground by the wheel of a lorry. This wheel had in fact been the near side rear wheel of a lorry driven by the 1st defendant and owned by the 2nd defendant. As the lorry passed the plaintiff in Prince Edward Road this wheel became detached from its hub and struck her. The cause of this detachment is plain. Subsequent examination of the lorry by a vehicle examiner revealed elongation of the stud holes, and burring of the stud threads. This damage shows that the nuts had not been properly tightened and that the wheel had been loose in the examiner’s words "for some time". Eventually first the nuts and finally the wheel itself fell off.

2. The plaintiff now claims damages for her injuries, and it reflects no credit on the law that her claim led to a three day hearing. There must, I think, be a strong social argument for saying that an owner who causes or permits his vehicle to be on the roadway in a condition which does not come up to the requirements of the Construction and Use regulations, should be Liable both civilly as well as criminally for the consequences. But this route can only be opened by the legislature. It has long since been closed by the courts: Phillips v. Brittania Laundry (1923) 2 K.B. 632: and Tan Chye Choo v. Chong Kew Moi (1970) 1 A.E.R. 266, PC. This state of the Law coupled with the liquidation of the 2nd defendant's insurers, Scotland Insurance Company Limited (Scotland) have produced this contest.

3. On the morning of 22nd February this lorry was in a patently defective condition. The Looseness of the hub nuts would have been apparent to any careful examining eye. As owners, therefore, the 2nd defendant have an exceedingly difficult task in negativing the inevitable inference of negligence. The position is not strictly res ipsa loquitur because the full facts are known. The relevant principle is that more broadly expressed by Lord Pearson in Henderson v. Jenkins (1970) A.C. 282 where at page 301 he said:-

"But if in the course of the trial there is proved a set of facts which raises a prima facie inference that the accident was caused by negligence on the part of the defendants, the issue will be decided in the plaintiff's favour unless the defendants by their evidence provide some answer which is adequate to displace the prima facie inference."

The facts I have stated raise a prima facie inference, again in Lord Pearson's words, of "default of the defendants in respect of inspection or maintenance or both". So I now turn to consider the defendant's explanation.

4. First Mr. Chan, the 2nd defendant's director in sole charge of this matter, attempted to assert that the 2nd defendant had effectively delegated its maintenance and repairing obligation to the 1st defendant. He wholly failed. The 1st defendant started work as a driver on 1st December 1980. Before this he was interviewed by Mr. Chan. Some questions were asked of his driving experience: none of his capacity to maintain or repair a vehicle. In fact he was trained only to drive. He was simply asked to take good care of the vehicle, and to report any defect that he discovered. He was not even given any clear information as to the past maintenance or service history of the vehicle, which was then something over a year old, or any clear instructions as to the future. The defendant company operated nothing which could be dignified by the word "system" at all. The 1st defendant was expected and was probably qualified to make the usual driver's checks, e.g. oil, water, and tyre pressures. But I do not put checking the tension of hub nuts into this category. Beyond this the practice was based on hope: the hope that any defect would manifest itself to the 1st defendant before anything serious occurred.

5. Secondly and by a late amendment, it was pleaded that the vehicle "was properly maintained and thoroughly serviced at the Ocean Motor Service Company prior to the date of the accident". All that has been proved in relation to this is that a firm then trading under that name was asked to carry out a reconditioning job to the body of the lorry by welding and repainting, and in fact completed that work quite shortly before the accident. To do this work it may or may not have had some or all of the lorry's wheels off. I do not know. Nothing has been proved about the experience or competence of this firm except that it appears no longer to be in business.

6. In these circumstances the conclusion that the 2nd defendants have failed to displace the inference of negligence is irresistible.

7. The 2nd defendants contended secondly that they were not answerable for the presence of the lorry on the road on Sunday at all and therefore not for any consequences which stemmed from such presence. The 1st defendant's duty, it was said at the end of each working day, and specifically on Saturday, 21st February, was to park the vehicle in the road adjacent to the defendants works, and return the key to a hook in the company office. He therefore had no right to take the vehicle home, and on this Sunday was not driving in the course of his employment. In the classic phrase he was "on a frolic of his own". The 1st defendant does not dispute this Statement of duty. On the Saturday evening he said that he parked the lorry and attempted to hand the keys in but found the office locked. In consequence he said that he took the vehicle home for two reasons: First because he could not return the keys; and secondly because he could find no parking space. I accept that he may have found the office apparently locked against him; but not that he could find no parking space. If this were true he would never have been able to have reached the office at all. He never began to explain why the position on which he had obviously parked the lorry was not suitable to accommodate it over the weekend.

8. I think that the real reason why the 1st defendant took the lorry home with him was that his father was then very seriously ill in hospital, and he particularly wanted to visit him there-early on this Sunday morning with some appropriate provisions. That I am sure was the only reason he gave to Mr. Chan after the collision the next day: and the reason which Mr. Chan finally accepted. Mr. Chan recognised the pressures the 1st defendant was then under, because he said in evidence that had he been in the office on the Saturday night, he would have consented to the 1st defendant's taking the vehicle home.

9. Similarly on the Monday, when his initial anger had subsided, Mr. Chan said that he forgave the 1st defendant. He signed an insurance claim form, albeit directed at the wrong insurer, in which he consciously and deliberately acknowledged that the 1st defendant was driving the lorry at the time of the accident with his consent. This attitude he maintained thereafter, first because it was necessary to enable the company directly and the plaintiff indirectly to benefit from the insurance policy: and secondly to prevent the 1st defendant being prosecuted for taking and driving the lorry without consent. This attitude was manifested in Mr. Chan's Statement to the Police of 27th May 1981, and especially in the deletions: in the claim made later under the Scotland Policy: and by the claim made against that third party in these proceedings.

10. On those facts I think that the plaintiff might have been in difficulty had it been necessary for her to rely on any allegation of negligent driving by the 1st defendant. But she does not have to do so, and indeed there was no negligent driving. The negligence alleged and proved is the negligence of the 2nd defendants in relation to the maintenance of the vehicle. The plaintiffs damage resulted from the presence of the defendant's vehicle on the road in this condition. For this the 2nd defendant is responsible unless the company can successfully distance itself from the presence of the vehicle on the roadway on this Sunday. This, to my mind, raise a question of remoteness of damage c.p. the speech of Lord Reid in Dorset Yacht v. Home Office (1970) A.C. 1004 at p.1027.

11. The plaintiff's first submission here is that the 1st defendant was driving with the 2nd defendant's consent. She relies on implied consent by reason of Mr. Chan's evidence, and upon express consent by post-accident ratification. I agree. I also agree with the view expressed in Bowstead on Agency 14th edition page 40 that "the owner of a car might ractify unauthorised use of it in order to take advantage of the insurance policy". In my judgment the plaintiff is entitled to succeed on this ground alone.

12. Secondly the plaintiff submits and 1 further agree that the same conclusion can be reached more directly. The 2nd defendant had one lorry and one driver. This lorry had to be properly maintained to prevent this driver from endangering other road users. So the danger to be guarded against was the presence of the 1st defendant on the road at the wheel of a defective vehicle. In these circumstances one of the "very kind of things" (Dorset Yacht p.1030) to be guarded against was user of this lorry by the driver not only during but outside the course of his employment. Indeed on the facts here there is a strong probability that if the 1st defendant had not had this vehicle on the road on the Sunday, he would have suffered exactly the same type of accident during the course of his work on the Monday. In my judgment therefore the 1st defendant's presence on the road on this Sunday was reasonably foreseeable and the 2nd defendant is responsible for the consequences.

13. On liability therefore my conclusion is that the 2nd defendant is liable to the plaintiff, whereas the 1st defendant is not.

14. Turning to quantum, the plaintiff suffered a fracture of the left femur. As she was already some four months pregnant she had to be conservatively treated with skeletal traction for some twelve weeks. She in fact remained in hospital until after the birth of her child by Caesarian Section on 10th July. The fracture has healed in good alignment with some overriding which has resulted in some 1.5 centimetres of shortening in this leg. She suffers from some slight restriction of movement of the hip, and pain at the fracture site associated with changes in the weather. Of greater significance is a lack of stability in the left knee joint which may well lead to the onset of osteo arthritis. She may also suffer pain after prolonged standing, and this could have a marginal limiting effect on the jobs available to her in the future. Dr. Horsfall originally put her permanent disability on the whole person's scale at 3%. But this was before he had discovered the shortening, and in the light of that he was minded to increase this assessment to 5%.

15. In these circumstances an appropriate figure for general damages to cover pain, suffering, loss of amenity and the slight impairment in earning capacity would in my judgment be $35,000.

16. Turning to special damage the position in relation to the items set out in paragraph 7 of the Statement of Claim is as follows:

17. On my calculations this produces a total for special damages of $9,120.

18. The 2nd defendant makes two claims for an indemnity. That against the 1st defendant I reject for the reasons I have already given. That against Scotland who it appears was the only insurer, I can deal with very shortly. A certificate of insurance has been produced to me dated 21st February 1980 issued by a company calling itself Sheraton Underwriters Limited purporting to act (inter alia) on behalf of Scotland covering the vehicle on the date in question for third party risks whilst it was being driven with the insured's permission. The policy number on the certificate is said to be SV80/3067. No such policy was produced at the time or at all to the 2nd defendant. The policy was admitted on the pleadings by Scotland. It's then solicitors by correspondence purported to produce it. The policy produced by them bore a different number and related to a different vehicle. Scotland has taken no part in the hearing. Its pleaded defence was breach of condition. It has failed to produce the relevant policy and so this defence of breach of condition does not leave the ground. In these circumstances the 2nd defendant in my judgment is entitled to the indemnity it seeks under the policy referred to in this insurance certificate.

19. In my judgment, therefore: -

20. Before leaving this case I must add a word about the documentation. There were a comparatively small number of relevant documents in this case. There was no dispute as to the authenticity of any. They could very easily have been assembled in one bundle in chronological order. This did not happen. Instead I was handed three or more bundles of documents each by the plaintiff's and the 2nd defendant's solicitors which resulted in maximum duplication and confusion.

21. This practice of each party preparing its own bundle of documents is not only a waste of time and money, it makes trials more difficult. In every case, all documents admitted to be authentic should be bundled together in chronological order and paged. Such a bundle is agreed only as to authenticity. Every party is free to argue any point on admissibility or relevance. In my judgment it is the duty of the solicitors to all parties to compile such a bundle before the trial starts. Exhortation having failed, I shall in future take steps to enforce this duty by making special orders as to costs, and in particular by disallowing the costs of the preparation of independent bundles.