ZHENG BIAO v. KWOK WAI LUNG AND OTHERS

cacv 241/2004

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 241 of 2004

(on appeal from HCPI NO. 115 of 2001)

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REASONS FOR JUDGMENT

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Hon Rogers VP:

1.  This is an appeal from a judgment of Deputy High Court Judge Saunders given on 25 June 2004.  The matter before the judge was a claim for personal injuries suffered by the plaintiff when he was working on a construction site.  By the time this matter came to be heard, the only remaining appeal was by the 4^th defendant and at the conclusion of the hearing, this court dismissed the appeal with costs payable to the other parties.

Background

2.  The plaintiff was working on a construction site at Tsing Yi in April 1998.  At the time he was walking along what the judge referred to as a rough walkway on that site.  He was going towards a container which was used for storage.  That container was adjacent to and parallel to a rough mud track used as a roadway for vehicles which were engaged on construction work.  Unfortunately he was crushed against the side of one of the containers by a small 5.3 tonne crane lorry.

3.  The first, and effectively the only, question which was raised on this appeal was whether the judge had been correct in holding that the vehicle involved was that which bore registration number EY 3871.  That was a vehicle owned by the 1^st defendant and driven by an unknown driver.  The judge accepted that the 1^st defendant could not now be found.  That position is accepted although it might be said to be somewhat surprising that a person whose identity card number is known can still not be found.

4.  The 4^th defendant had been joined to these proceedings as an interested party.  On this appeal Mr Bharwaney, who appeared on its behalf, drew this court’s attention to the evidence in relation to the identity of the vehicle which had been involved in the accident.  It is a sufficient to say that the judge held that the evidence of the plaintiff was not sufficient even on the balance of probabilities to establish the identity of the vehicle.  The simple reason was that the plaintiff had been crushed in the accident and he had not seen the number of the vehicle when the accident occurred.  He had, naturally, been taken to hospital by ambulance and what he knew of the identity of the vehicle came from what he had been told by others.

5.  The judge however accepted the evidence of Mr Chan, the safety supervisor of the 2^nd defendant.  Shortly after the accident had occurred on the morning of 29 April 1998 he was informed that the plaintiff had been sent to the Accident and Emergency Department of the hospital and he then immediately went to the hospital so that he could find out the details of the accident and the injury from the plaintiff.  Although his witness statement might be understood to say that he had learnt the identity of the vehicle involved in the accident from the plaintiff, when he gave evidence he said that after he had returned from the hospital, about an hour after the accident had occurred, he was informed by the foreman of Kam Bong, Mr Chan Chung, that the vehicle involved in the accident was that owned by the 1^st defendant namely EY 3981.  The cross-examination of Mr Chan was by no means extensive and this aspect concluded by the court asking:

“At the time you made either the witness statement or the declaration on the day of the accident, was there any argument as to which vehicle was involved in the accident?

A. No, no dispute.”

6.  The judge summarised the evidence in paragraph 10 of the judgment as follows:

“The evidence of the Ryoden safety supervisor, Mr Chan, was that shortly after the accident, having returned from the hospital where he saw Mr Zheng, he spoke to the foreman of a company called Kam Bong, which had a site office in a container, adjacent to the container Mr Zheng was to enter.  That foreman told Mr Chan that the vehicle involved in the accident was a crane lorry registered number EY 3981, that was used by Kam Bong.  Mr Chan knew the vehicle and was familiar with it on the site.  While the evidence of the identity of the vehicle is hearsay evidence, having regard to Mr Chan’s own knowledge of the vehicle, and the circumstances in which he was told the registration number, I am satisfied on the balance of probabilities that the vehicle that struck Mr Zheng was the crane lorry registered number EY 3981.”

7.  In my view that approach and finding was entirely justifiable.  When an accident of that nature occurs and an ambulance has to be called and a person is taken to hospital, it might be supposed that it is common knowledge at the time which vehicle was involved.  There were only three or four such vehicles on the site and it would be highly surprising if everybody concerned and roundabout in the vicinity was not well aware of which vehicle had been involved in the accident.

8.  Mr Bharwaney sought to rely on the provisions of section 49 of the Evidence Ordinance, Cap. 8:

“	(1)	In estimating the weight, if any, to be given to hearsay evidence in civil proceedings the court shall have regard to any circumstances from which any inference can reasonably be drawn as to the reliability or otherwise of the evidence.
	(2)	For the purposes of subsection (1), regard may be had, in particular, to the following-
		(a)	whether it would have been reasonable and practicable for the party by whom the evidence was adduced to have produced the maker of the original statement as a witness;
		(b)	whether the original statement was made contemporaneously with the occurrence or existence of the matters stated;
		(c)	whether the evidence involves multiple hearsay;
		(d)	whether any person involved had any motive to conceal or misrepresent matters;
		(e)	whether the original statement was an edited account, or was made in collaboration with another or for a particular purpose;
		(f)	whether the circumstances in which the evidence is adduced as hearsay are such as to suggest an attempt to prevent proper evaluation of its weight;
		(g)	whether or not the evidence adduced by the party is consistent with any evidence previously adduced by the party.”

9.  He placed reliance upon the fact that the evidence given by Mr Chan was “double” hearsay.  That may be correct.  But what is important is the particular circumstances of a case.  As section 49(1) makes quite clear the court must have regard to any circumstances from which any inference can reasonably be drawn as to the reliability or otherwise of the evidence.  I have no doubt that the judge was amply justified in concluding on the evidence before him that he could rely upon Mr Chan’s double hearsay evidence since, as the witness said, at the time in question there had been no dispute as to which vehicle was involved.

10.  The other points tentatively raised on this appeal related to the basis upon which the 4^th defendant had been joined in the action and as to whether, in view of some of the phraseology in the judgment, it was open to the 4^th defendant to raise issues as to whether there had been repudiation of the policy should the 4^th defendant wish to take the point in other proceedings.  Mr Sarony SC, who appeared on behalf of the plaintiff in this court, made it quite clear that no point would be taken that the 4^th defendant was not entitled to raise issues of repudiation or as to the basis upon which it would be liable as insurer.

Hon Le Pichon JA:

11.  I agree.

Hon Sakhrani J:

12.  I agree.