Chan Yuet Yung, Jeanne v. Chan Chun Fung and Another

DCCJ2887/2001

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 2887 OF 2001

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J U D G M E N T

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1. The plaintiff is the owner of motor vehicle registration No. JD 807. She claims against the driver of taxi registration No. JE 2212 for damages done to her car arising out of an accident that took place on 1 October 1999 at 11.40 pm at the junction of King's Road and Healthy Street East in North Point, (hereinafter referred to as "the said junction").

2. The plaintiff's vehicle was driven by the plaintiff's brother, Chan Ching-lim, who has been joined as a third party by the defendant in these proceedings. He was called as PW2 at the hearing.

3. The facts revealed that PW2 was driving his ex-wife, Madam Ka Ling-tei, ("PW1") home after the fireworks display earlier that evening from his home in Cloud View Road. The car had come down from Seven Sisters Road, turned into Healthy Street East and while crossing King's Road heading towards Healthy Street a collision took place between the plaintiff's car and the defendant's taxi at the said junction.

The Plaintiff's Case

4. It is the plaintiff's case that the defendant had driven down from Seven Sisters Road, which has a gradient downwards, to Healthy Street East at 20 to 30 miles per hour. PW2 had stopped at the traffic lights in front of the said junction on Healthy Street East next to a stationary vehicle on its left.

5. It is PW2's evidence that he had only started his car after the lights had turned green in his direction and proceeded onwards to cross King's Road when, to his surprise, the defendant's taxi rammed into his car on the driver's side, close to the mid-rear section of his car, causing his car to spin 90 degrees. As a result of the impact, the plaintiff's car was badly damaged, requiring extensive repair. The two motor surveyor's reports had been agreed and the damages claimed was $180,223.80.

The Defendant's Case

6. The defendant's case was that it was PW2 who had driven against a red traffic signal from Healthy Street East on to King's Road which caused the collision.

7. DW1, the defendant, is a taxi driver and he said in his evidence in court that he was driving at about 50 kilometres per hour on King's Road westbound towards Causeway Bay on the left third lane, that is the fast lane, on King's Road. He proceeded at the traffic lights at the said junction for the traffic signal was green. As soon as his car came up to the white line before the zebra crossing, he saw the plaintiff's car coming out of Healthy Street East. He applied the brakes on his car but was unable to stop his car in time to avoid a collision. He claimed he could see the traffic signal was still green in his favour after the collision.

8. The defendant referred to the two police statements of an independent witness, Madam Ng Suk-man, and the evidence given by her at the magistrate court hearing at the trial of PW2 for reckless driving. I must add here that PW2 was eventually acquitted at the end of the magistrate court trial. The defendant claims that the evidence of Madam Ng at the magistrate court hearing and her police statements should be accepted in spite of the fact that she did not attend court to give evidence and was not cross-examined due to failure of effective service of the witness subpoena.

Findings

9. Both PW2 and the defendant insisted they did not drive against the traffic signals and they had proceeded at the green light. I find that I would have to seek other independent evidence in order to reach a conclusion as to what did happen on the night of 1 October when the accident took place.

10. I can see from Madam Ng's evidence from the two police statements that she gave soon after the collision, and the evidence at the trial in Eastern Magistrate Court on 1 March 2000, that Madam Ng was an independent witness. Her two police statements and the transcript of the Eastern Magistrate Court hearing are in the agreed bundle produced at this hearing. Of course the transcript of the Eastern Magistrate Court is a public record and it is not disputed that those were the correct transcript of the hearing at Eastern Magistracy on 1 March 2000.

11. It seems that Madam Ng at the time was crossing King's Road at the said junction and she was facing Healthy Street East. At the time of the collision she was standing by the central divider traffic island waiting for the traffic signal for pedestrians to turn green so that she could cross King's Road.

12. From the evidence of the photographs on pages 146 to 152 of the agreed bundle, and the sketch plan on page 157 and the road map on page 161, I can see that Madam Ng was clearly standing quite close to the site where the collision took place. It was Madam Ng's evidence at the magistrate court hearing that she was standing at the traffic island in the middle of King's Road facing Healthy Street East. The pedestrian traffic signal on King's Road was red at the time and there was traffic moving along King's Road in front of her. According to her she was looking around and she could see the traffic signal for pedestrians crossing at Healthy Street East was green when PW2's car drove down from Healthy Street and it crossed King's Road, whereupon the collision took place.

13. The logical conclusion therefore is that at the relevant time the traffic signal on Healthy Street for vehicles must have been red, because the pedestrian signal was green. As Madam Ng was waiting to cross King's Road and, according to her evidence, the traffic signal for pedestrians was red and was against her crossing King's Road, it also follows that the traffic signal for the defendant's taxi on King's Road must be green.

14. The defence has referred to a letter from the Transport Department that on the relevant date, 1 October 1999, the traffic lights on King's Road and the said junction was operating as normal.

15. Though PW1 claimed that she did not see what was the traffic signal when PW2 proceeded onto King's Road from Healthy Street East, it was her evidence that she had noticed a stationary vehicle on her left and that PW2 had stopped before the said junction on Healthy Street East in front of the lights and by the right side to the stationery vehicle. The inference from her evidence must be that PW2 had stopped at the traffic lights on Healthy Street East. It is PW2's evidence that he had waited until the lights turned green before he proceeded on to crossing King's Road.

16. On the other hand I find PW1's evidence not completely reliable as her recollection of the incident cannot be described as clear and unblemished. In fact, PW1 admitted in court that her recollection was not very good. This is particularly so on a large number of details concerning the incident. Furthermore, she cannot be described as a completely independent witness.

17. PW2, on the other hand, claimed that there was no need for him to observe the traffic movement on King's Road as he noticed the traffic signal was green when he proceeded on to King's Road, and he said he did not notice if the vehicle on his left was moving or not, he trusted the green lights in his favour and he simply drove on. I have no doubt that was probably what he did at the time. If he had proceeded with caution and had emerged slowly from Healthy Street East, he would have noticed the defendant's taxi on the fast lane on King's Road on his right-hand side. But he did not do so. He explained there was no need to do so. It was PW2's evidence that he had done this route many times. This familiarity of the road may not be helpful in this case because very often one tends to be more careless if one knows the road well and knows at this time of the night the traffic on King's Road would be light. In fact, this also explained why there were no skid marks or brake marks from PW2's car, because he simply did not notice the defendant's car was riding along King's Road, while PW1, the defendant, did notice PW2's car emerging from Healthy Street East just as he was proceeding from the lights behind the zebra crossing towards the said junction. The defendant had braked leaving 11 metres of brake marks.

18. From the evidence before me, and particularly with the police statements and the magistrate court evidence of the independent witness, Madam Ng, in spite of the fact that she did not give evidence at these proceedings in this hearing, she was strenuously cross-examined in the magistrate court hearing, and there was no doubt in her evidence, which was consistent with the two police statements she gave to the police shortly after the accident.

19. I am therefore satisfied on the balance of probability that the plaintiff had failed to show that the defendant was negligent, that the defendant was at fault, that the defendant had driven against a red traffic signal on King's Road at the said junction and that the defendant had caused the accident. And since the plaintiff has failed to prove the defendant was at fault and was negligent, I dismiss the plaintiff's case and I grant costs to the defendant, to be taxed if not agreed.

(Discussion re costs of third party proceedings)

20. Since the third party proceedings was correctly issued and from my findings, it is proper for the defendant to recover costs on the third party proceedings. I would award costs of third party proceedings to the defendant on a common fund basis with certificate for counsel.

21. Exhibits P1 and P2 be returned to the plaintiff after expiry of appeal period.