CHANG MAN SZE v. CHAN SIU WAI AND ANOTHER

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AND

HCPI 291/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 291 OF 2007

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(Heard Together)

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J U D G M E N T

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1.  This is the trial of two actions (heard together) wherein the Plaintiff in each of them claims damages for personal injuries sustained in a traffic accident.

2.  The Defendants are the same in both actions.  The 1^st Defendant was the driver of one of the vehicles involved in the traffic accident.  The 2^nd Defendant was the owner of the vehicle driven by the 1^st Defendant and has been sued on the basis that she is vicariously liable for the alleged negligence on the part of the 1^st Defendant.  As far as I can see, no issue arises on vicarious liability.  Mr. Sakhrani, Counsel for the Defendants, has more or less indicated that the two Defendants would stand or fall together.

3.  Although I have not made a site inspection, the parties have produced certain photographs to assist me in my understanding of thelocus in quo of the accident.  In addition, there are certain sketch plans and diagrams put in evidence.  Furthermore, the parties produced as exhibits (Exhibits P₁ and D₁) video tapes by using video recorders in vehicles travelling along the Gascoigne Road Overpass in both directions on subsequent occasions in order to show the views of the Overpass from the positions of the drivers in such vehicles looking towards the road in front.

4.  In this trial, I am concerned only with the issue of liability.  In the event that I find the Defendants to be liable, the parties will proceed to the second stage of the proceedings which is the assessment of damages.

The Accident

5.  In the early morning of 7^th May 2006, at about 03:15 a.m., the Plaintiffs were passengers sitting at the back of a taxi bearing registration No. KB 9649 (“the taxi”) driven by a Mr. Lai Yiu Wah (“Mr. Lai”).  The taxi was travelling on the Gascoigne Road Overpass along the northbound carriageway near the point where the Overpass crossed Nathan Road below it when a collision occurred between the taxi and a private vehicle bearing registration No. CG 227 (“D1’s car”) which had been driven by the 1^st Defendant along the southbound carriageway.  Apparently, D1’s car suddenly went out of control, collided with some of the traffic poles planted along the middle of the hatched area dividing the two carriageways and then veered across onto the northbound carriageway before colliding almost head-on with the taxi.  The photographs show that both vehicles were very seriously damaged.

6.  All the four persons in the two vehicles, namely, the Plaintiffs, Mr. Lai and the 1^st Defendant, were injured.

7.  The Plaintiffs had just been to a birthday party.  They were very tired and were in fact asleep before they were waken up by the collision.  They were therefore not in a position to give any meaningful account of how and why the collision took place.  Only the two drivers could give evidence as to what happened.

8.  I should add that neither side has chosen to adduce any expert evidence relating to how the collision could possibly have happened.

9.  The 1^st Defendant was subsequently prosecuted for careless driving in relation to the accident.  He was convicted in the Magistrates’ Court on 3^rd January 2007.  That conviction was however set aside by the Court of First Instance on appeal on 10^th July 2007.

Res Ipsa Loquitur

10.  In paragraph 8 of each of the Statements of Claim, each Plaintiff has pleaded :

“8. So far as it is necessary, the Plaintiff will also rely on the doctrine of Res Ipsa Loquitur during the trial to establish the responsibility of the Defendants for the injuries of the Plaintiff.”

11.  The effect of such a plea was explained by the Privy Council in the case of Ng Chun-pui v. Lee Chuen-tat [1988] 2 HKLR 425.  In the words of Lord Griffiths at page 427 D – I, the explanation goes as follows : -

“The burden of proving negligence rests throughout the case on the plaintiff.  Where the plaintiff has suffered injuries as a result of an accident which ought not to have happened if the defendant had taken due care, it will often be possible for the plaintiff to discharge the burden of proof by inviting the court to draw the inference that on the balance of probabilities the defendant must have failed to exercise due care, even though the plaintiff does not know in what particular respects the failure occurred. …

So in an appropriate case the plaintiff establishes a prima facie case by relying upon the fact of the accident.  If the defendant adduces no evidence there is nothing to rebut the inference of negligence and the plaintiff will have proved his case.  But if the defendant does adduce evidence that evidence must be evaluated to see if it is still reasonable to draw the inference of negligence from the mere fact of the accident.  Loosely speaking this may be referred to as a burden on the defendant to show he was not negligent, but that only means that faced with a prima facie case of negligence the defendant will be found negligent unless he produces evidence that is capable of rebutting the prima facie case.  Resort to the burden of proof is a poor way to decide a case; it is the duty of the judge to examine all the evidence at the end of the case and decide whether on the facts he finds to have been proved and on the inferences he is prepared to draw he is satisfied that negligence has been established.  In so far as resort is had to the burden of proof the burden remains at the end of the case as it was at the beginning upon the plaintiff to prove that his injury was caused by the negligence of the defendants.”

12.  With such guidance, I shall proceed to assess the evidence.

The Evidence

13.  As mentioned above, the Plaintiffs were both asleep at the time of the accident and were not in a position to give evidence as to what happened.  Chang Man Sze, the Plaintiff in HCPI 290/2007, was called and gave evidence very briefly.  She was not cross-examined.  Kwok Yat Ming, the Plaintiff in HCPI 291/2007, was simply tendered for cross-examination and there was none.

14.  The driver of the taxi, Mr. Lai, was called to give evidence for the Plaintiffs.  He said that at about 3:05 a.m. on 7^th May 2006 (early Sunday morning) he picked up the Plaintiffs in Tsim Sha Tsui and was asked to go to Tsing Yi.  The taxi later proceeded along the Gascoigne Road Overpass on the northbound carriageway.  It was then about 3:15 a.m. and the traffic was not heavy but there were other vehicles travelling in both directions.  The weather and road conditions were good and dry and the street lighting was good.  He was travelling at about 45 kph.  He first noticed D1’s car coming in the opposite direction on the opposite lane.  There was nothing unusual about it.  When D1’s car came very near the taxi, it suddenly swerved across the middle of road, ran down some of the traffic poles planted along the middle of the hatched area dividing the two carriageways and then collided with the taxi.  In answer to questions put by me, he confirmed that he did not notice any irregularity in the way that D1’s car was travelling; it had certainly not travelled in a zig-zag manner before it suddenly veered across.

15.  I find Mr. Lai to be a reliable witness and I accept his evidence.

16.  At my suggestion, the Plaintiffs and the Defendants caused a subpoena to be issued summoning P.C. 48589, Ng Kwok Wai (“the police officer”), to come to give evidence.  When he did come on the second day of the trial, he was called as a witness for the Plaintiffs.

17.  The police officer appeared to me to be honest, forthcoming and was trying to answer questions put to him in a straight forward manner.  I accept his evidence.

18.  According to the police officer, he had been with the unit dealing with investigation into traffic accidents since 1995.  He was very familiar with the road in question.

19.  He made a statement dated 8^th September 2006 which has been included in the Bundle of Documents placed before the Court by consent of the parties.  He confirmed the truth and accuracy of the same and adopted it as part of his evidence at the trial.  Presumably, he must have consulted the contemporaneous notes he made at the scene of the accident before making this statement on 8^th September 2006.  Neither Counsel for the Plaintiffs nor Counsel for the Defendants has challenged the truth and accuracy of the statement.

20.  In the statement, the police officer recorded as follows : -

“03:45 hrs. on the same day, I investigated D2 [meaning the 1^st Defendant] who said that he, before arriving at the accident venue, felt the tyres skidding.  Then the right tyres of V2 [meaning D1’s car] skidded before V2 bumped against V1 [meaning the taxi] on the opposite lane.  After the accident, a patch of waste water was found on the accident venue which, he believed, may have led to tyre skidding of V2.”

21.  Later in the statement, the officer recorded as follows : -

“03:50 hrs. on the same day, I examined the scene.  It was fine and of clear view at the accident venue.  There was oil stain, which was very wet and slippery, in the middle of the lane of the overpass of Gascoigne Road (southward).  I, could not walk or stand, almost fell down when standing on the middle of the lane.  There was no obvious waste water on the ground where the accident occurred.  However, there was a lot of petrol and engine oil leaked from V2.  There were debris everywhere on the ground, but there was no sand or gravel.  As the scene had already been blocked, traffic flow was smooth.  I did not see any oil stain on the ground of the overpass of Gascoigne Road (southward).”

It is agreed by all parties concerned that the last word “(southward)” in the quotation above should read “(northward)”.

22.  Shortly after the accident, the police officer drew a sketch plan (“the 1^st sketch plan”) depicting the scene of the accident.  He showed that each carriageway measured 3.3 metres from the kerb to the outer edge of the hatched area in the middle of the road separating the two carriageways.  He showed the positions of D1’s car and the taxi after the accident and the debris on the ground.  He also showed a line running all the way along the middle of the southbound carriageway which he described with the caption of “oil stain”.

23.  The police officer was asked to explain this line running along the middle of the southbound carriageway with the caption of “oil stain”.  He said that it meant the line of discolouration caused by engine oil dripped down from vehicles, especially heavy trucks, which slowed down and then accelerated on and off in heavy traffic.

24.  He was asked by Mr. Clough, Counsel for the Plaintiffs, as to whether he saw on the road any ‘waste water’ recorded in his own statement as having been reported to him by the 1^st Defendant which the 1^st Defendant believed had caused his car to skid.  In answer, the police officer said that he did not see any waste water but he did see oil stain along the middle of the southbound carriageway.  He tried to see whether such oil stain was slippery.  He did not check the whole stretch of the road; he checked only a small stretch.  He did find one patch which was very slippery and, when he tried to stand on it, he almost fell.  He was asked to indicate where that patch was.  He indicated with a cross marked on a copy of the 1^st sketch plan (marked “Exhibit P₂”).  It was a spot in the line running along the middle of the southbound carriageway but on the straight part as opposed to the bending part of that carriageway.  The spot was shown right opposite to the taxi on the opposite lane.  The police officer further explained from one of the photographs that it was a short distance behind where the ambulance was parked.

25.  The police officer was cross-examined by Mr. Sakhrani, Counsel for the Defendants.  It is noteworthy that he was not challenged on the accuracy of his marking of the position of the slippery patch of oil stain on Exhibit P₂.

26.  It transpired that the police officer took a proper statement from the 1^st Defendant at St. Teresa’s Hospital on 21^st May 2006 which was about two weeks after the accident.  In that statement, the 1^st Defendant said this : -

“There was no vehicle moving ahead of my private car.  After my car passed the multi-level parking lot of Yaumati, I noticed that there was a right turn ahead, so I kept moving along following the road shape ahead.  When my private car came close to Nathan Road, I discovered a patch of reflective substance in the middle of the road ahead of me.  I believed that must be waste water, occupying an area of about one car-space.  My car was only about a few feet away from the waste water when I saw the reflective substance on the road.

Moreover, there was oil stain in the middle of the road.  When I was making turn to the right following the road shape, my private car began skidding on the right and I lost control over it.  At that moment I also saw a taxi, licence plate number of which was later known to me as KB9649, moving along the opposite lane on the overpass of Gascoigne Road (northward) towards New Territories.  I did not notice the speed at which the taxi was moving.  I had already attempted to stop my car by applying the brake urgently when the two vehicles of us were about one car-space away from each other.  But in the end the head of my private car bumped against that of the taxi of the other party.  After the crash, my private car spun to the right, and finally my private car stopped horizontally on the overpass of Gascoigne Road (southward).”  (emphasis added)

27.  It is to be noted that in the part of the 1^st Defendant’s statement quoted in paragraph 26 above, he did make a distinction between the “patch of substance in the middle of the road ahead of me” which he believed must be “waste water” and “oil stain in the middle of the road”.

28.  In cross-examination, Mr. Sakhrani put to the police officer that, when the 1^st Defendant told him at the scene of the accident about the “patch of waste water”, he must have meant the “patch of reflective substance” in his statement given at the hospital on 21^st May 2006.  The police officer agreed.

29.  It transpired that, when the police officer took the statement from the 1^st Defendant at the hospital, he also drew a sketch plan (“the 2^nd sketch plan”).  He indicated on the same the position of D1’s car before the skid, the position of the waste water, the position of the oil stain and the point from which and the direction in which D1’s car took after the skid until it ended up colliding with the taxi.  After he had confirmed the accuracy of the sketch plan with the 1^st Defendant, he asked the 1^st Defendant to sign or initial it to indicate his agreement and the 1^st Defendant did so.

30.  The position of the patch of waste water as indicated by the 1^st Defendant on the 2^nd sketch plan is at almost the apex of the bend and on the nearside of the line in the middle of the carriageway depicted as “oil stain”.  Its position on the road is different from that of the slippery patch as marked by the police officer on Exhibit P₂.  In answer to Mr. Sakhrani, the police officer confirmed that that was so.

31.  Mr. Sakhrani was seeking to establish through the police officer that, D1’s car being a small Japanese car and the carriageway being quite wide, D1’s car was actually occupying most of the offside half of the carriageway so that the nearside front wheel actually went over the patch of reflective substance or waste water in the middle of the carriageway which caused it to skid.  It is again noteworthy that Mr. Sakhrani did not challenge the police officer on the position of the waste water and the commencement point and direction of the skid as indicated on the 2^nd sketch plan.

32.  The 1^st Defendant was the last witness to give evidence.  He said that he was quite familiar with the road in question.  He had spent the evening at his girl friend’s home in Cheung Sha Wan and was driving back to his home in North Point.  He said that he was travelling at around 50 kph on the southbound carriageway of the Gascoigne Road Overpass.  After he emerged from beneath the Yaumati multi-storey car park, the road took a right hand bend.  He was travelling nearer the centre of the carriageway than the kerb.  He could not see much of the road in front because the bend was quite sharp.  He said that by the time he noticed the patch of reflective substance which he thought to be waste water on the road he was very near it already.  He felt the skid and tried to correct it by decelerating, applying the brakes and steering.  Nevertheless, his car still went over to the other side.

33.  The 1^st Defendant was asked to indicate on a clean copy of the 1^st sketch plan (later marked “Exhibit D₂”) as to where the patch of reflective substance or waste water was.  He drew a patch thereon which was near the apex of the bend but occupying the offside half of the carriageway.  This is different from the position and shape of the patch of waste water as shown on the 2^nd sketch plan.

34.  He was further asked to indicate on yet another clean copy of the 1^st sketch plan (later marked “Exhibit D₃”) the position of the commencement and the direction of the skid.  They are again different from those shown on the 2^nd sketch plan.

35.  The 1^st Defendant was cross-examined by Mr. Clough about the discrepancies in question.  He did not give satisfactory answers and simply gave an explanation that they were probably the result of different degrees of familiarity with the locality and of drawing skills between him and the police officer and also faults in his own memory.

36.  I find the 1^st Defendant to be an unsatisfactory witness, sometimes bordering on being somewhat evasive.  I do not accept his evidence.

37.  I watched in Court the videos (Exhibits P₁ and D₁) more than once.  Although there is a bend to the right after one has emerged from under the Yaumati car park on the southbound carriageway, it is indeed a very “long and gentle” bend as Mr. Clough has described it.  I do not accept the 1^st Defendant’s assertion that there was a patch of reflective substance or waste water as indicated by him either on Exhibit D₂ or on the 2^nd sketch plan as drawn by the police officer.  Even if there had been such a patch, I do not accept that he could only have noticed it when he came very close to it.

38.  Furthermore, I do not accept that the 1^st Defendant felt the skid and immediately decelerated, applied the brakes and tried to correct his path by steering.  If he had done so, the probability was that his car would have wobbled or proceeded in a zig-zag manner before crossing over to the opposite lane.  In this regard, I accept the evidence of the taxi driver who said that, before D1’s car veered into his path all of a sudden, he did not notice that it was travelling irregularly or in a zig-zag manner.

39.  In the particular circumstances of this case and bearing in mind the fact that the 1^st Defendant was the only person who was in control of his car and the situation, it is simply not enough for the 1^st Defendant to try to explain away the accident by giving evidence which does not seem credible in light of the condition of the road, in particular, the bend in question, and which is also inconsistent with the evidence given by independent witnesses.  In all the circumstances, it is not for the Court to come to a positive finding as to exactly how and why the accident happened.  It could have been caused by the 1^st Defendant’s lack of skill in driving, his temporary loss of concentration or his dozing off whilst driving.  Mr. Sakhrani submitted that it was never put to the 1^st Defendant that he was dozing off.  I do not think that that was necessary.  By his evidence, he must have impliedly denied that he was not concentrating on that he was dozing off.  It was well past 3:00 a.m. in the morning when most people would have gone to bed.  That is one of the circumstances which the Court is entitled to take into consideration.

40.  All in all, I find that at the time of the accident the 1^st Defendant was not driving with due care and attention and that he was negligent in having collided with the taxi on the opposite carriageway where he should not have been.

41.  I find in favour of the Plaintiffs and against both Defendants on the question of liability.

42.  I make an order nisi that the Defendants do pay the costs of the Plaintiffs in both actions to be taxed if not agreed.  I also make an order that the Plaintiffs’ costs be taxed according to the Legal Aid Regulations.