XCHRX LUI KWAN SHING v. CHAN PUI SHAN, PATSY and CHENG YUK KIU (Third party)

HCPI490/97

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES NO. 490 OF 1997

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J U D G M E N T

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1. This is an appeal from a decision of a master who declined to strike out a third party Statement of Claim. It was before me in July 1998, but was adjourned until today for further argument.

2. The action was instituted in April 1997 and it arises out of a motor vehicle accident on 21st September 1994. The plaintiff was a passenger in a vehicle driven by his mother in the north bound direction along Lion Rock Tunnel Road, driving from the tunnel towards Shatin. The defendant was driving her vehicle in the opposite direction towards the tunnel. The allegation in the Statement of Claim is that the defendant moved from one lane to another and in so doing collided with a taxi, causing the taxi to cross to the wrong side of the road and to collide in turn with the vehicle in which the plaintiff was carried. As a result, the plaintiff suffered significant injuries.

3. The defendant filed a third party notice dated 26th June 1997. A Defence was filed the same day and the defendant denies negligence. She asserts that she was forced to swerve to her right by a white private car which drove across her path causing her to collide with the taxi which struck the plaintiff's car. She then asserts in the Defence that "Further or in the alternative, the accident and the injuries sustained were caused wholly or contributed to by the negligence of the third party...", the particulars of negligence asserting that the third party, driving south behind the vehicle carrying the plaintiff, failed to keep a safe distance from the plaintiff's vehicle and failed to slow down to avoid the collision.

4. The third party Statement of Claim, which it is sought by this application to strike out, repeats the circumstances in which the defendant came to collide with the taxi which then struck the plaintiff's vehicle. After stating the fact of that collision, it goes on to assert that the third party was driving behind the plaintiff's vehicle and was following too closely and thereby caused or permitted her vehicle to collide with the rear of the plaintiff's vehicle.

5. It is said in the pleading that "the said accident" was caused wholly or contributed to by the negligence of the third party, and the particulars of negligence include allegations of failing to keep a safe distance and driving too fast. There is then recited the fact that the plaintiff allegedly suffered injury "by reason of the aforesaid".

6. The summons to strike out the third party Statement of Claim is framed on the footing that (a) it discloses no reasonable cause of action against the third party; and (b) it is frivolous and vexatious.

7. It seems clear to me that the defendant is saying that such injuries as were suffered by the plaintiff may not have been incurred but for, or were aggravated by, the alleged negligence of the third party. In so far as it is, or may be, suggested that the defendant has asserted that the accident was caused or contributed to by the third party and that the only accident alleged by the Statement of Claim is an accident involving the plaintiff's vehicle, the defendant's vehicle and a taxi, the reality is that the accident to which the third party pleading is clearly directed is the series of collisions which it is said form part of the same incident.

8. The argument by the third party runs as follows : that if the third party is guilty of a tort, then his tort is a quite separate tort from that of the defendant, and that on no view can the two be viewed as joint tortfeasors. Accordingly, it is said, the defendant is not entitled to claim against the third party as a joint tortfeasor. Such tort, if any, as has been committed by the third party must have been an independent and distinct one committed after the tort for which it is said the defendant is responsible. The submission goes on, that if there has been negligence by the third party, and that negligence caused no damage further to that caused to the plaintiff by the defendant's negligence, then the third party will bear no liability and there can, under such circumstances, be no valid claim by the defendant against the third party. Alternatively, that if the third party was negligent and that negligence aggravated the damage caused by the negligence of the defendant, then the defendant will only be liable to the plaintiff for such of the plaintiff's injuries as were occasioned by the defendant's negligence. That being so, there is, it is said, once again, no room for a claim or contribution by the defendant from the third party.

9. The lacuna in the argument of the third party is this : that whilst this is not a case where it can justifiably be asserted, on the allegations made by the defendant, that the defendant and the third party can be constituted as joint tortfeasors, the fact that they are not joint tortfeasors is not the end of the matter and does not of itself mean that under no circumstances can the defendant be liable for the entire damage suffered by the plaintiff.

"If each of several persons not acting in concert commits a tort against another person, substantially contemporaneously and causing the same or indivisible damage, each several tortfeasor is liable for the whole damage." See Halsbury's Laws 4th Edn., Vol.45, paragraph 1235. That is to be distinguished from the situation where there are independent and consecutive torts where the damage can be said to be distinct. The principle by which one tortfeasor may be liable to a plaintiff for all the damage, even though there are two independent tortfeasors, was expressed by Stable J. in Bank View Mill v. Nelson Corporation [1942] 2 All ER 476 at 483 in reference to an example which closely, though not altogether, matches the facts of the present case :

" There may be cases and no doubt there are where each of two separate tortfeasors as for example if the owners or drivers of two motor cars acting entirely independently, simultaneously hit one pedestrian is responsible for all the damages because there is only one unit of damage, if one may use such an expression, and nobody is in a position to show what part of that indivisible unit of damage was done by each car."

10. So, too, in this case, although the impacts were not simultaneous, it seems to me that it may prove most difficult to apportion what damage was caused to the plaintiff by the impact of which particular vehicle, and the damage may well be viewed as one unit of damage. I think that the circumstances alleged fall within the principle summarised in Halsbury in the paragraph which I have cited, in other words, that the allegation in this case is that the third party is one of two several concurrent tortfeasors.

11. It is clearly arguable that the two parties concerned in this application, namely, the defendant and the third party, are parties to which section 3 of the Civil Liability Contribution Ordinance applies :

"(1) Any person liable in respect of any damage suffered by another person may recover contribution from any other person liable in respect of the same damage."

12. But even if it were possible to distinguish between the damage done by each impact, the particular allegations in this case may by another route nonetheless rendered the defendant liable, in the first instance, for the entire damage. That route is exemplified by a case, the facts of which are remarkably close to the facts alleged in the present case. The case is cited in Charlesworth and Percy on Negligence, 9th Edn., paragraph 2/221 and the case is Ward & Others v. Palamarchuk and Pelech (1977) 6 WWR 193. The editors say that in that case :

" The plaintiffs sustained injuries as a result of a motor accident which was caused by the negligence of the first defendant driver. Immediately after the first collision, there was a second collision when the second defendant driver drove into their wrecked vehicles. It was held that the plaintiffs could recover all their damages from the first defendant because such damage as was occasioned by the second defendant had occurred by virtue of a situation into which the first defendant alone had placed them."

Because of that continuum in causation, the first defendant was held liable for all the damages suffered by the plaintiffs and the question of how much of the total damage was to be borne by the second defendant was a matter as between the two defendants. That approach might well in this case also transpire to be the appropriate approach.

13. In my judgment, the premise upon which the third party's argument is based, namely, that this is a case in which the defendant can be liable only for that damage which is shown she herself caused is, for reasons which I have canvassed, flawed.

14. It follows that on the facts alleged by the defendant, she is entitled to seek from the third party a contribution. It is also clear that there is a question or an issue relating to the original subject matter of the action between the plaintiff and defendant which should be determined as between the plaintiff, defendant and the third party, and that it was appropriate that a third party notice should be issued in accordance with the provision of Order 16 of the Rules of the High Court. Accordingly, this appeal is dismissed.