WONG SIU PUI v. LAU TAK CHI

HCMP 622/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 622 OF 2016

(ON AN INTENDED APPEAL FROM DCPI NO 2711 OF 2013)

_______________

_______________

_______________

J U D G M E N T

_______________

Hon Poon JA (giving the Judgment of the Court) :

Introduction

1.  On 21 October 2011 at about 11:30 pm, a traffic accident happened on Ching Cheung Road near Caritas Medical Centre in Sham Shui Po.  The plaintiff was riding on a motorcycle.  He was hit from behind by the medium goods vehicle driven by the defendant on the third (outermost) lane on Ching Cheung Road.  The plaintiff suffered personal injury as a result of the collision.  He sued the defendant for damages for the personal injury that he suffered.  The defendant denied liability.  The trial took place before HH Judge Alex Lee in September and October 2015.

2.  The main issue at trial was whether the accident was caused, as the plaintiff asserted, by the defendant tailgating him, driving too fast and failing to stop; or, was it the case, as the defendant asserted, it was he who had cut into the third lane first, and the accident was caused by the plaintiff subsequently cutting sharply into the same lane without giving any warning or paying proper regard to the defendant’s vehicle and then decelerated suddenly, allowing him no time to avoid the collusion.

3.  By a judgment handed down on 31 December 2015, the learned Judge found that the accident occurred because the plaintiff cut into the third lane without giving any prior warning and then decelerated, giving the defendant virtually no time to avoid collision.  The Judge also found that there was no negligence on the part of the defendant.  For completeness, the Judge proceeded to assess the loss and damage that the plaintiff would have been entitled if the defendant were held liable.  He assessed general damages at HK$200,000.00 and special damages at HK$233,531.00 with interest.  The Judge then dismissed the plaintiff’s claim with costs.

4.  The plaintiff applied for leave to appeal, which was refused by the Judge by his decision handed down on 4 March 2016.

5.  The plaintiff renews his application for leave to appeal to this Court.  He seeks to challenge both the Judge’s findings on liability and his assessment of damages on quantum.

6.  Pursuant to the Court’s directions, the parties have filed their respective submissions.  Having considered them, we now give our judgment.

Discussion

7.  Pursuant to section 63A(2) of the District Court Ordinance, Cap 336, leave to appeal shall not be granted to the plaintiff unless he can demonstrate that his appeal has a reasonable prospect of success or there is some other reason in the interest of justice why his appeal should be heard.

8.  The plaintiff raised 3 grounds of appeal.

9.  Ground 1 complained that the Judge’s finding that the defendant was not negligent and the plaintiff was solely responsible for causing the accident was not supported legitimately by evidence capable of being relied upon by reason of the matters detailed therein.

10.  First, the plaintiff contended that certain findings of primary fact made by the Judge in relation to the plaintiff’s deceleration could not be supported by the defendant’s evidence, which was contradicted by some answers in the defendant’s cautioned statement.  And the Judge did not resolve the contradiction or give adequate reasons for not attaching weight to the defendant’s cautioned statement.  However, the Judge expressly stated at § 12 of the judgment that he was alive to this issue and went into considerable details of the discrepancies and said that he had taken all of them into account.  In §16 of the judgment, the Judge pointed out certain material aspects of the defendant’s evidence were supported by independent evidence.  The Judge therefore preferred the defendant’s evidence to that of the plaintiff, and made the finding of facts set out in §17 of the judgment.  In our view, the Judge had thoroughly considered the evidence and had adequately explained the basis for the findings he made in relation to the plaintiff’s deceleration.

11.  Second, the plaintiff contended that the Judge was wrong to take his evidence on deceleration out of context and use it to support the defendant’s case.  There is no substance in this complaint.  The Judge expressly held at §15 of the judgment that the plaintiff’s evidence was not reliable with one exception which is that he had reduced his speed upon cutting into the third lane with a view to avoid collusion.  The Judge had given detailed reasons on why he accepted this particular part of his evidence.  We do not accept the plaintiff’s evidence on deceleration had been taken out of context.  The Judge is perfectly entitled to accept the plaintiff’s evidence in part while rejecting other aspects of his evidence.

12.  Third, the plaintiff contended that there is no evidence to support the findings that the plaintiff decelerated “almost immediate” after cutting out, or suddenly or sharply as to leave the defendant no time to avoid the accident.  However, the Judge found at §16 of the judgment that the plaintiff’s deceleration was sudden and it caused the accident by reference to the totality of the evidence including circumstantial evidence relating to:

(1)  the speed of the defendant’s vehicle in that he had already applied brake before the collision;

(2)  the position of the plaintiff’s motorcycle at the time of the collision, that it was only partially on the third lane hence the cutting in was incomplete; and

(3)  the angle of the collision showing that the plaintiff’s motorcycle had not finished the cut lane motion.

13.  Contrary to the plaintiff’s contention, the Judge had taken into account the discrepancies in both the defendant’s evidence and the plaintiff’s evidence.  On balance, he considered the defendant’s evidence more probable than the plaintiff’s.  The reasons given by the Judge as to why he preferred the evidence of the defendant despite the discrepancies in his evidence were sound and logical.  We can see no basis to intervene.

14.  In short, we are not satisfied that the plaintiff has shown a reasonably arguable case that the Judge’s finding on the cause of the accident is plainly wrong.  Ground 1 has no merits.

15.  By Ground 2, the plaintiff contended that in light of the defendant’s admission that before he cut into the third lane, he was conscious of the possibility of the plaintiff’s motorcycle cutting out at any time due to the very slow speed of the engineering vehicle and trawler, and his vehicle was close to the plaintiff’s motorcycle when the defendant attempted to accelerate and overtake, the Judge erred in holding that defendant did not breach the duty of care in failing to warn the plaintiff or to enlarge the distance between his and the plaintiff’s vehicles before cutting into the adjacent lane.

16.  These matters had been considered by the Judge at §§18 – 21 of the judgment before he concluded in §22 that the defendant was not negligent in the circumstances of the case.  We agree with his reasoning which we find sound and logical.

17.  Ground 3 complained that the Judge erred in holding that had the plaintiff not decelerated, the accident would not have happened, and that the Judge should have held that the accident was caused or contributed to by the defendant’s failure to take appropriate measures in the circumstances.  This Ground is essentially the same as Ground 2.  For the reasons stated above, we also see no substance in Ground 3.

Conclusion

18.  We are not satisfied that there is a reasonable prospect of success in the plaintiff’s appeal.  Nor is there some other reason in the interest of justice that the appeal should be heard.  We therefore refuse to give the plaintiff leave to appeal.

19.  As this application is totally without merit, we further make an order under Order 59 rule 2A(8) of The Rules of the High Court, Cap 4A, that no party may request our determination to be reconsidered at an oral hearing inter partes.

20.  Costs should follow the event.  We order the plaintiff to pay the defendant costs of this application, to be summarily assessed. For the purpose of the summary assessment, the defendant shall lodge and serve a statement of costs within 14 days from the handing down of this judgment. The plaintiff shall lodge and serve his statement of objection (if any) within 7 days thereafter.  We will then give our decision on the assessment in writing.