XCHRX THE KANG OH v. WONG YIK FAI and Another

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

(PERSONAL INJURIES No. 791 of 1995)

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REASONS FOR JUDGMENT

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1. Immediately after hearing counsel for both parties on 8th July 1996, I dismissed the Plaintiff's appeal from a Master's Order on the summons dated 2nd April 1996 taken out by the Plaintiff.

2. This is a personal injuries action arising out of a traffic accident. Paragraph 7 of the Amended Statement of Claim, which was filed and served after the date of the summons, pleads as follows:

"7. The Plaintiff intends to adduce evidence that on the 6th day of September 1994, at the North Kowloon Magistracy, the 2nd Defendant was charged with and was convicted of the offence of careless driving in case No. NKS11847/94. The said charge and conviction are relevant to establishing or tending to establish that :-

(a) the 2nd Defendant was driving the 1st Defendant's vehicle at the time and place aforesaid;

(b) the said collision occurred at the time and place aforesaid; and

(c) the said collision was caused by the negligence of the 2nd Defendant."

3. The response of the Defendants can be found in paragraph 5 of their Defence, as follows:

"5. The 1st and 2nd Defendants deny that the conviction as alleged in paragraph 7 of the Statement of Claim is relevant to any issue in this action."

4. The Plaintiff sought all the particulars of the circumstances and matters relied on by the 1st and 2nd Defendants to support "the claim of irrelevance". As that request was not acceded to, the Plaintiff took out the summons before the Master who heard it on 4th June 1996 and dismissed it. The appeal is from that order of dismissal.

5. It is common ground of the parties that the Defendants have by other parts of their Defence admitted the matters pleaded in sub-paragraphs (a) and (b) of paragraph 7 of the Amended Statement of Claim. What remains in issue is whether the conviction is relevant to the question of negligence of the 2nd Defendant in respect of the collision as pleaded in paragraph 7(c) of the Amended Statement of Claim.

6. Mr Hung on behalf of the Plaintiff argued that the conviction, which was admitted by the Defendants by implication (by non-denial), shifted the burden of proof, and the Plaintiff by relying on the conviction did not need to prove negligence. As the Defendants denied the relevance of the conviction to the question of the 2nd Defendant's negligence, they had the burden to prove the irrelevance, wherefore they should properly be ordered to provide particulars of the matters on which they relied to support the absence of negligence.

7. Mr Hung relied on the dicta of Lord Denning and Buckley LJ in Stupple v. Royal Insurance Co Ltd [1970] 3 All ER 230, at respectively 236c-d and 239a-b, as follows:

"Take a running-down case where a plaintiff claims damages for negligent driving by the defendant. If the defendant has not been convicted, the legal burden is on the plaintiff throughout. But if the defendant has been convicted of careless driving, the legal burden is shifted. It is on the defendant himself. At the end of the day, if the judge is left in doubt the defendant fails because the defendant has not discharged the legal burden which is on him. The burden is, no doubt, the civil burden. He must show, on the balance of probabilities, that he was not negligent ... But he must show it nevertheless. Otherwise he loses by the very force of the conviction."

"Once the conviction has been proved the task of the court, instead of being, as would otherwise be the case, to decide whether A has successfully shown that on a balance of probability B did the act, becomes to decide whether B has successfully shown that, on a balance of probability, he did not do the act."

8. I agree that the legal burden of proof of negligence is shifted from a plaintiff when he has proved a conviction of careless driving. However, neither dictum of the learned judges deals with the question of the burden of proof of the question of relevance of the conviction. By the Defendants' admission of the 2nd Defendant's conviction of careless driving, the Plaintiff is dispensed with the task of proving the conviction. However, the denial of the relevance of the conviction to the issue of the 2nd Defendant's negligence in respect of the collision has not shifted the legal burden of proving the relevance at all, which remains with the Plaintiff. For example, if the conviction were that the 2nd Defendant was guilty of robbery or common assault, the Plaintiff would need to prove the relevance of such a conviction to the issue of negligence. As the conviction is careless driving, it may be an easy task for the Plaintiff to prove the relevance of the conviction to the issue of negligence of the 2nd Defendant in respect of the collision that is admitted. But the difficulty or ease to prove an issue does not affect the question regarding on whom the burden of proof of that issue lies.

9. The Plaintiff alleges negligence of the 2nd Defendant and the particulars of negligence under paragraph 5 of the Statement of Claim were amended with additions and they have remained afoot since the issue of the summons. The Plaintiff also pleads the conviction and that it is relevant to establishing or tending to establish that the collision was caused by the negligence of the 2nd Defendant. It is trite that he who alleges must prove. If the Plaintiff were to maintain that the burden of proof has been shifted by reason of the admission of the 2nd Defendant's conviction to the Defendants for them to disprove negligence, then it would have been unnecessary for the Plaintiff to retain the particulars of negligence under paragraph 5 of the Amended Statement of Claim.

10. The denial of the relevance of the conviction is a bare denial by the Defendants without putting forward any positive case. It is not a "claim of irrelevance" as alleged by the Plaintiff in his request for further and better particulars. Contrary to Mr Hung's contention, there is no law or rule in s. 62 of the Evidence Ordinance, Cap. 8, or in Order 18, rule 7A of the Rules of the Supreme Court to require the Defendants to provide particulars in such circumstances. Nor, indeed, can support for Mr Hung's contention be derived from the dicta of the learned judges in the Stupple case. Paragraph 5 of the Defence as it stands will not permit the Defendants, without measures taken by the court for protecting the Plaintiff's interest, to adduce any evidence at the trial to prove irrelevance (see Weinberger v. Inglis [1918] 1 Ch 133 at 139 and Dukes Court Estates, Ltd v. Associated British Engineers, Ltd [1948] 2 All ER 137 at 140E-G). If the Defendants were to allege that the conviction was erroneous, which they have not, then it would be incumbent upon them to provide particulars as to the basis on which they made their allegation. There are also a number of examples given by Lord Denning in Stupple (see p. 236e-h of the report) in which the defendant can seek to prove his innocence or challenge the weight of the conviction although he has been convicted. In those circumstances, it would of course be necessary for on the defendant to plead facts with particulars in support. But in the present case where there is but a bare denial, it would be improper to order further and better particulars.

11. The burden of proving the relevance of the conviction to the question of negligence as pleaded in paragraph 7(c) of the Amended Statement of Claim and denied by paragraph 5 of the Defence remains with the Plaintiff (see Butterworths Personal Injury Litigation Service, para. [454]). Once the relevance is proved by the Plaintiff, then the legal burden of proving no negligence will shift to the Defendants, but the Defendants should not, at this stage, be compelled to disclose their hand in assisting the Plaintiff to prove the relevance.

12. For the above reasons, I dismissed the Plaintiff's appeal with costs.

(K.H. Woo)

Judge of the High Court