CHAN MEI YEE AND OTHERS v. NG TAT CHEUNG

1990, No. A4435

__________________

______________

J U D G M E N T

______________

1. This action arises out of a traffic accident which occurred on the 25th September 1987. The defendant was driving his car to work shortly after 9 a.m. He was travelling from his home which is near Aberdeen to his work place which was in Tsimshatsui and was passing through Aberdeen in an easterly direction when he lost control of his car. It crashed through the barrier on the pavement and knocked down 3 pedestrians who are the plaintiffs in the action.

2. All the plaintiffs suffered quite serious injuries. The 2nd and 3rd plaintiffs have accepted payments which the defendant made into court and accordingly are no longer pursuing their claims.

3. The 1st plaintiff and the defendant have agreed the amount of damages which should be payable in respect of the injuries which were sustained by her but have been unable to agree the question of liability. The action before me was limited to this issue.

4. The plaintiff herself was unable to give evidence concerning the action on account of the injuries she sustained. She was rendered unconscious by the accident. She did, however, call Dr. Lingard, a Mechanical Engineer to give evidence on her behalf. Using as a data base the evidence which was available to the police he was able to draw various conclusions which indicated what the minimum speed of the defendant's car must have been immediately prior to the accident.

5. However, it is evident from the manner in which the statement of claim is couched that the plaintiffs placed reliance both upon the doctrine of res ipsa loquitur and the fact that the defendant was on the 16th September 1988 convicted of driving carelessly contrary to section 38(1) of the Road Traffic Ordinance, Cap. 374. The consequence of this is to bring into operation the provisions contained in section 62 of the Evidence Ordinance, Cap. 8 whereby the evidential burden shifts to the defendant to satisfy the court that his negligence was not the cause of the accident.

6. Dr. Lingard tendered in evidence the expert report he prepared concerning the accident. In the report Dr. Lingard attempted to reconstruct from the available data what had occurred. He took cognisance of the fact that at the time of the accident the road surface had been damp as a result of the prevailing weather conditions. It was common ground that it had been drizzling with light rain at the time in question. It was also common ground that when the defendant's car had come to rest it had been facing in the opposite direction to which it had been travelling. Also the inspector who had inspected the car had stated in his report that fourth gear had been engaged when he undertook his investigation. When these facts were taken in conjunction with the damage which had been caused to the car, the barrier and the shop which the car had rebounded from after impact he had come to a conclusion that the vehicle must have been travelling at at least 38 m.p.h. before the defendant had lost control of the car and it had started to skid. One of the grounds he had placed reliance upon was the amount of space which would have been required for the car to swing around so that it was facing in the opposite direction to the direction it had been travelling in.

7. Dr. Lingard was subjected to an able cross-examination by Mr.: Ramanathan who was representing the defendant. Notwithstanding this, I was satisfied that the validity of the expert report was not in any way seriously called in question and I have no doubt that the conclusion reached by Dr. Lingard, namely that the vehicle must have been travelling at at least 38 m.p.h. was proved to be a correct one.

8. The only witness to give evidence for the defence was the defendant. The passenger in his car was apparently unable to assist as according to his statement to the police he had been "asleep" at the time of the accident notwithstanding the early hour of the day.

9. The defendant said that prior to the accident he had been driving at between 30 to 40 k.p.h. He had been in second gear and was in the outside lane as it had been his intention to turn right at the turning which was further down the road. Suddenly he noticed a white car travelling very fast in the nearside lane. This car had then cut across the front of his car requiring him to apply his brakes sharply so as to prevent the cars coming into contact with each other. Initially he said that he had seen the car going on and turning right. When pressed in cross-examination by Mr. Poll he changed his evidence to say that he had only assumed that the car had turned right as the driver must have been anxious to reach the outer lane before the commencement of the double white lines which were placed on the road to prevent this. Mr. Poll then directed his attention to the photographs which were in evidence which did not show any double white lines in that part of the road. The defendant then referred to the arrow pointing to the right painted on the road which he claimed constituted a similar restriction upon drivers.

10. When he had applied his brakes to avoid coming into collision with the white car, the car had started to swing and he lost control of it. He then tried to apply the handbrake in addition to the footbrake. He said that as the handbrake was next to the gear shift of his car he assumed that in the agony of the moment he had mistakenly taken hold of the gear shift and that this was probably the reason why the gear had been engaged in the fourth gear when the car had been examined by the vehicle examiner.

11. I regret that I found the defendant to be a thoroughly unsatisfactory and unconvincing witness and I am prepared to attach the little weight to his testimony.

12. I am satisfied that he grossly underestimated the speed he was travelling at prior to the accident. I believe that this was a deliberate falsehood. Also I am not prepared to believe his evidence concerning the existence of the white car. In this connection, I have borne in mind the unsatisfactory evidence he gave initially to the effect that he had seen it turning right after it passed him.

13. While I appreciate that when a defendant is defending himself from charges there is no requirement whatever that he should give any evidence concerning the subject matter of the charges, I do find it to be of some significance that in the present case the defendant did not see fit to give evidence before the magistrate that the reason for the accident according to him had been the necessity of taking evasive action to avoid colliding with the white car.

14. There were other aspects of the defendant's evidence which I found to be unconvincing. I believe that he deliberately made reference to applying the handbrake so as to provide an explanation for the car being found to be in fourth gear by the examiner when it had been his evidence that he had been in second gear prior to the incident.

15. The defendant agreed in cross-examination that two movements would be required to move the gear lever from fourth gear to second gear. It would be necessary to shift the lever from fourth gear across the gate of the gearbox then into second gear. Such movements could not convincingly be reconciled with his evidence to the effect that this may have occurred as a result of his attempts to engage the handbrake. I regret that I have come to the conclusion that this part of his testimony was fabricated.

16. As I have said I found the defendant to be a witness upon whom little reliance could be placed.

17. I will now consider the overall circumstances of this accident. Mr. Ramanathan submitted that exceeding a speed limit did not of itself constitute negligent driving. I accept that this is correct.

18. However, I have no doubt whatever that in the conditions which existed on the morning of the accident the speed which I find the defendant was driving his car was excessive and sufficiently excessive to constitute negligence.

19. In this connection, I have borne in mind the evidence given by the defendant that he had only passed his driving test 1 month prior to the accident. He could not accordingly be considered an experienced driver. It is common ground that it was drizzling at, the time in question and that the road was wet.

20. It is also clear that the accident occurred in a built up area. I have no doubt that a speed of at least 38 m.p.h. on a slippery road by an inexperienced driver in such a built up area is excessive and was the reason for the occurrence of this very unfortunate accident.

21. I am satisfied that the defendant has not discharged the burden placed upon him by section 62 aforesaid and that the plaintiff has established the defendant's liability. I would accordingly find for the 1st plaintiff. I would also make an order nisi for the 1st plaintiff to have her costs which should be taxed in accordance with the Legal Aid Regulations.