CHEUNG KIN KWOK ALEN v. LAU KAM CHEE AND ANOTHER

HCPI 374/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.374 OF 2001

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J U D G M E N T

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1. This is a claim for damages for personal injuries by the plaintiff arising from a traffic accident which occurred on 4 April 1998 when the lorry driven by the plaintiff drove off Tai Po Road, crashed through a barrier on the side of Tai Po Road, ran down a small slope and ended up overturned on Lung Cheung Road causing the plaintiff to sustain very severe injuries and from which he is now wheelchair bound permanently.

2. Two defendants are named in the Writ. However, the Writ was never served on the 2nd defendant. Therefore for all intents and purposes, I am only concerned with the claim against the 1st defendant who is sued as the employer of the plaintiff at the time of this accident and who I shall refer to hereinafter as "the defendant" for convenience.

3. This judgment deals only with the question of liability as there had been an order for split trial.

Background

4. The defendant operates a family business as a supplier of frozen meat to various shops, restaurants and other eating places. The defendant's place of business is at Leader Industrial Centre in Shatin.

5. The plaintiff, who obtained his driving license in June 1997, was employed by the defendant as a driver cum delivery worker in December 1997.

6. The daily schedule of the plaintiff as such a driver cum delivery worker for the defendant is to make his daily rounds setting out from the Leader Industrial Centre between 10 a.m. and 11 a.m. each day delivering frozen meat by lorry to the various customers of the defendant in the Shatin and Tai Wai areas, then in the Kowloon area and finally in the Tsuen Wan area. After making these deliveries, but before returning to the defendant's place of business, the plaintiff will have to drive the lorry to pick up frozen meat ordered by the defendant from various godowns in Tsuen Wan, Kwai Chung and Fo Tan. These godowns closes normally by 5 p.m. each day. The normal working hours for the plaintiff is from 9 a.m. to 6 p.m. daily. When making the deliveries or picking up goods from the godowns, the plaintiff is the only worker of the defendant in the lorry, doing both the driving and the delivery work.

7. The normal route taken by the plaintiff when doing his daily rounds and coming out to the Kowloon area from Shatin or Tai Wai is to take Tai Po Road. The only other possible route out to Kowloon from Shatin would be via the Lion Rock Tunnel. However, it is common ground of all concerned that Tai Po Road is the more direct route for the plaintiff to make his daily rounds of deliveries in the Kowloon area in that going via the Lion Rock Tunnel will take an extra 10 to 15 minutes travelling time not to mention the tunnel charges.

8. It is also common ground that it is well known to all motorists using Tai Po Road that the presence of wild monkeys is a known feature in respect of one particular section of Tai Po Road, namely north of the junction of Tai Po Road and Caldecott Road until one comes to a public car park between Mile Stone 50 and 51. That stretch of Tai Po Road and its surrounding hills is so well known for wild monkeys that it is commonly referred to by the locals as "monkey hill". The accident however did not take place along that stretch of Tai Po Road, but at a spot further south of the junction with Caldecott Road, just before Tai Po Road joins with Lung Cheung Road.

The plaintiff's case

9. The plaintiff's claim against his employer, the defendant, is not based on any defect in the lorry driven by the plaintiff.

10. The plaintiff's case is that the accident came about when he was going downslope on that stretch of Tai Po Road having only one lane and which joins up with the eastbound carriageway of Lung Cheung Road, several monkeys suddenly appeared from the hillslope to the right side of his lorry. One of the monkeys, being the one in front, in fact came out onto the road and into the path of his lorry on the left side some two or three metres in front of it. When he saw this the plaintiff applied emergency braking and swerved to his left. In taking such action to avoid hitting the monkey, the lorry crashed into the barrier on the left side of that downslope. That barrier was about one to one and a half feet high. The lorry went through the barrier, down a small sand slope and ended up in the eastbound lane of Lung Cheung Road where it overturned on its side.

11. In bringing this claim against his employer, the plaintiff puts his case on the footing that prior to the accident in question, he had on earlier occasions seen other drivers on Tai Po Road meeting with near accidents because of monkeys dashing out onto the road and into their paths and that he himself had such a similar experience in March 1998 when a monkey came out onto the road into the path of his lorry. However on that occasion he was able to stop his lorry in time and avoid any accident.

12. It is also the plaintiff's case that in the light of these experiences of his, he had informed the defendant and also another person in the defendant's business Mr Yeung Chi that he felt that it was dangerous to drive along Tai Po Road with the possibility of monkeys suddenly dashing out into the path of his lorry and had requested to be allowed to use the Lion Rock Tunnel as an alternative route in making his rounds. Such request was turned down by the defendant who only told him to be more careful when driving along Tai Po Road.

13. Moreover, the plaintiff seeks to rely on his own special characteristic in that he feared that the presence of monkeys along Tai Po Road and the possibility of their coming into the path of his lorry would pose a danger or hazard to his driving along that road, as a matter which he had made known to the defendant and which the defendant, as his employer, ought reasonably to have known when turning down the plaintiff's request to use the Lion Rock Tunnel as an alternative route.

14. On this basis, it is the plaintiff's case that the defendant, as an employer, was in breach of his duty of care to the plaintiff for unreasonably refusing to allow the plaintiff to use the Lion Rock Tunnel but insisting on his using Tai Po Road in making his deliveries and thereby making the plaintiff to take on a risk which was not reasonable in all the circumstances. It is also the plaintiff's case that had the defendant acceded to the plaintiff's request to use the Lion Rock Tunnel, this accident would not have happened.

The defence

15. Firstly, the defendant takes issue with the plaintiff in respect of the basic factual matters as follows :

(a) the defendant denies that the plaintiff has ever complained to him (or anyone else in the company) as to the danger which the plaintiff felt arising from his fear that monkeys will stray or dash onto Tai Po Road and into the path of his lorry;

(b) the defendant also denies that the plaintiff has ever requested to use the Lion Rock Tunnel as a regular alternative basis and further says that the plaintiff was free to choose whatever route he thought best and that if he had chosen to use the Lion Rock Tunnel, he would be reimbursed with the tunnel charges;

(c) the defendant also denies having specified or insisted on the plaintiff using Tai Po Road as the route for his deliveries when coming out to Kowloon to make deliveries; and

(d) the defendant puts the plaintiff to strict proof that it was due to a monkey wandering into the path of the plaintiff's lorry that was the cause of this accident and not because of the plaintiff's own driving.

16. Secondly, the defendant submits that even if the disputed facts are found in favour of the plaintiff, the defendant was not negligent towards the plaintiff since it is not unreasonable for the defendant to require the plaintiff in making the deliveries to use Tai Po Road which is the most direct and convenient route for such deliveries.

17. Nor is there any evidence to show that Tai Po Road was considered to be dangerous to motorists using it because of the presence of the wild monkeys. Instead the evidence before the court from the experts and the police show that Tai Po Road is as safe as any other road in the territory. Moreover, the evidence of the expert show that in using the Lion Rock Tunnel as an alternative, the same possibility of the presence of monkeys along Lion Rock Tunnel Road (which is the approach to the Lion Rock Tunnel from Shatin) is no less than what it is along that stretch of Tai Po Road where this accident happened.

The evidence

18. The factual evidence as to how the accident occurred came from the plaintiff alone. There was no other eye witness to the accident and it follows that no one else was in a position to challenge or contradict directly the evidence of the plaintiff that he had to take evasive action because of the monkey. It was this evasive action which led to his lorry crashing through the barrier, down the slope between Tai Po Road and Lung Cheung Road and finally overturning on the eastbound lane of Lung Cheung Road.

19. The plaintiff also gave evidence of his earlier experiences relating to monkeys along Tai Po Road and his request to the defendant to be allowed to use the Lion Rock Tunnel.

20. In so far as such factual dispute between the parties are concerned, the defendant gave evidence denying that the plaintiff had ever made any request to use the Lion Rock Tunnel or that the plaintiff had ever complained to him about monkeys making it dangerous to drive on Tai Po Road.

21. The defendant called a witness Yeung Chi who supported the defendant in the factual dispute between him and the plaintiff. Yeung Chi also denied that the plaintiff had ever said anything to him or anyone else in the company about monkeys making the plaintiff feel unsafe driving along Tai Po Road or that the plaintiff had ever requested to use the Lion Rock Tunnel as an alternative route.

22. The plaintiff also called two witnesses from the Agricultural and Fisheries and Conservation Department to give evidence as to the presence of wild monkeys in the country park areas of Kowloon Hills as well as statistics in relation thereto. The plaintiff also called as a witness a senior inspector attached to Traffic Kowloon West relating to statistics kept of vehicle accidents caused by monkeys but unfortunately no such statistics were available since the statistics kept were not categorized on such a basis. The evidence from these last three witnesses called by the plaintiff were not in any way challenged by the defence.

Findings of facts

23. I found the plaintiff to be basically an honest witness doing his best to relate the truth to the court. From his demeanour in court and the manner he gave his evidence, he struck me as being a timid person and the sort of person who will be concerned if a monkey should suddenly dash out onto the road in the path of his lorry.

24. On the other hand I am not impressed by the defendant or his witness Yeung Chi. Yeung Chi said in cross-examination that he had never heard the plaintiff mention anything about monkey during the whole period of his employment by the defendant, yet the defendant agreed that the plaintiff had on more than one occasion mentioned about seeing monkeys while driving along Tai Po Road.

25. Quite apart from that discrepancy between the evidence of Yeung Chi and that of the defendant, when the defendant was asked further as to the context in which the plaintiff spoke of monkeys to him, his answer was that the plaintiff only told him about seeing monkeys along Tai Po Road and nothing else. I find that not only surprising but that if that was the full context in which the plaintiff had mentioned the monkeys to him, it is even more surprising that he could remember such trivial conversation five years later. I was quite sure that the defendant remembered that conversation because there was much more to it than he cared to admit.

26. Having heard all the evidence in this case from both parties, I have no hesitation in accepting the evidence of the plaintiff both as to how the accident occurred and as to his earlier request to the defendant to use the Lion Rock Tunnel as an alternative route rather than Tai Po Road. I also accept his evidence that he had seen other motorist coming close to having an accident because of the monkeys in that area and that he himself had a near miss when a monkey crossed the path of his lorry some time in March 1998.

27. I also accept his evidence that the defendant did not agree to his using the Lion Rock Tunnel because that was a less direct route which would take a longer time and would also involve having to pay the tunnel charges.

The duty owed by the defendant as employer to the plaintiff

28. The duty of an employer to his employee at common law was stated by Lord Wright in the case of Wilson & Clyde Coal Co. Ltd v. English to be :

"I think the whole course of authority consistently recognizes a duty which rests on the employer and which is personal to the employer, to take reasonable care for the safety of his workmen, whether the employer be an individual, a firm, or a company, and whether or not the employer takes any share in the conduct of the operations. The obligation is threefolds, as I have explained [i.e. 'the provision of a competent staff of men, adequate material, and a proper system and effective supervision']."

That duty was described by Lord Wright at the time of that judgment to be threefold because the doctrine of common employment was still in existence. That doctrine of common employment having been abolished by the Law Reform (Personal Injuries) Act of 1948, it is no longer necessary to put the duty under three heads. It is now a single personal duty of the employer which is non-delegable.

29. Although it is a single personal duty of the employer to take reasonable care for the safety of his workmen, it has for long been convenient, when dealing with a particular case, to divide that duty into a number of categories but which may frequently overlap. Those categories are (i) to provide a safe place of work, including a safe means of access; (ii) to employ competent employees and supervision; (iii) to provide and maintain adequate plant and appliances; (iv) to provide a safe system of work.

30. No one of the four categories would be applicable in the present case. The words of Parker LJ in the case of Wilson v. Tyneside Window Cleaning Co. [1958] 2 QB 110 at 123-124 comes to mind where he said :

"I think that this case is a very good example of the difficulties that one gets into in treating the duty owed at common law by a master to his servant as a number of separate duties ... It is no doubt convenient, when one is dealing with any particular case, to divide that duty into a number of categories; but for myself I prefer to consider the master's duty as one applicable in all the circumstances, namely, to take reasonable care for the safety of his men, or ... to take reasonable care to so carry out his operation as not to subject those employed by him to unnecessary risk."

Those words are both apt and applicable in the present case where the negligence alleged by the plaintiff cannot be conveniently put into any of the categories when it is so divided.

31. Adopting the words of Paker LJ I shall approach the present case by considering the employer's duty as one applicable in all the circumstances which is to take reasonable care for the safety of his employee. In adopting this approach, the fact that what is complained of by the present plaintiff cannot conveniently be put into any of the categories referred to above, is not, per se, fatal to the plaintiff's case, but that the question then to be decided must be whether the defendant has taken reasonable care for the safety of the plaintiff, or to put it differently, whether the defendant was in breach of that duty of his in all the circumstances of this case based on the facts as found by me.

The standard of care of an employer

32. The standard of care to be expected from an employer towards his employee has been stated by Swanwick J in the case of Stokes v. Guest, Keen & Nettlefold (Bolts and Nuts) Ltd [1968] 1 WLR 1776 at 1783 where he said :

"From these authorities I deduce the principles, that the overall test is still the conduct of the reasonable and prudent employer, taking positive thought for the safety of his workers in the light of what he knows or ought to know; ... He must weigh up the risk in terms of the likelihood of injury occurring and the potential consequences if it does; and he must balance against this the probable effectiveness of the precautions that can be taken to meet it and the expense and inconvenience they involve. If he is found to have fallen below the standard to be properly expected of a reasonable and prudent employer in these respects, he is negligent."

On the other hand, an employer is not liable to his workman for any damage suffered, arising out of the ordinary risks of the service, when there is no negligence on the part of either himself or his other employees.

Decision

33. Applying the facts as found by me to the legal principles stated above, I have come to the conclusion in respect of the following matters :

1. Tai Po Road is a normal ordinary road linking Kowloon with the New Territories constructed and maintained as any other road in the territory;

2. there is no evidence to suggest that a motorist driving along Tai Po Road meets up with or faces any additional hazards or risks over and above the usual and ordinary risks which all motorists would face driving along any other roads in Hong Kong, Kowloon or the New Territories;

3. this is so notwithstanding that it is widely known of the presence of monkeys in the hills over which some part of Tai Po Road runs and there is no evidence before me of any warning signs along Tai Po Road (or any stretch of it) to warn motorists to beware of monkeys;

4. nor are there any statistics before me as to how many accidents involving vehicles were caused or brought about by monkeys;

5. the plaintiff's fear of monkeys running out onto the Tai Po Road does not make Tai Po Road any more different from other roads in the territory;

6. nor can that fear of the plaintiff be any different from the general apprehension which any reasonable motorist should have when driving on any public roads and it is that which puts them under a duty to drive at a safe speed and to keep a proper lookout; and

7. in all the circumstances of the case, it was not unreasonable for the defendant to either insist upon the plaintiff using Tai Po Road to make his delivery or to disagree with the plaintiff's suggestion of using the Lion Rock Tunnel. Accordingly there was no breach of duty by the defendant towards the plaintiff.

34. For these reasons, I find that the defendant was not negligent to the plaintiff and the plaintiff's claim is dismissed with costs, the costs order being an order nisi.