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Lee Ting Yeung v Yeung Chung On

Judgment Cited authorities 5 Cited in Precedent Map Related
Vincent
Judgment Date25 September 2008
Year2008
Judgement NumberDCCJ1939/2006
Subject MatterCivil Action
CourtDistrict Court (Hong Kong)
DCCJ001939/2006 LEE TING YEUNG v. YEUNG CHUNG ON

DCCJ1939/2006

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 1939 OF 2006

________________________

BETWEEN

LEE TING YEUNG Plaintiff
and
YEUNG CHUNG ON Defendant

________________________

Coram: Deputy District Judge Frederick HF Chan in Open Court

Hearing dates: 22nd and 23rd September 2008

Date of handing down judgment: 25th September 2008

JUDGMENT

Trial in absentia

1. On 3rd July 2008, the present case was put on the Running List of the District Court pursuant to the order of Master Clement Lee and on 19th September 2008 (Friday), it was lifted there-from for a 2-day trial commencing on 22th September 2008 (Monday).

2. On the 1st day of the trial, the Defendant failed to turn up. By virtue of O. 35 r. 1 Rules of the District Court (Cap. 336, Sub. Leg.), the Plaintiff asked the Court to proceed with the trial in the Defendant’s absence and adduced affirmation evidence to satisfy the Court[1] that the Defendant was given sufficient notice of the hearing dates. I allowed the trial to proceed. Mr. Tam Wai Kuen (“Mr. Tam”) and Mr. Lee Ting Yeung (“the Plaintiff”) then testified before me.

The Plaintiff’s case

3. From the un-contested testimonies called by the Plaintiff and on the balance of probabilities, I found that the circumstances of the present dispute were as follows.

4. On 19th August 2004 at about 10:36 p.m., Mr. Tam was driving an urban Toyota taxi (registration no. KD2768) (“the Taxi”) along Tai Po Road towards Kowloon.

5. At the material time, he (as a taxi-driver on night shifts) hired the Taxi from its owner, the Plaintiff. The Taxi was owned by the Plaintiff since 2001 and fuelled by diesel.

6. Whilst he was travelling in a safe speed of 50 km/hour in the fast lane, he was shocked to see a vehicle (registration no. HM871) (a yellow BMW (“the BMW”) was speeding towards him in the same lane and against the flow of traffic. Mr. Tam immediately took steps to avoid the vehicle by first swerving the Taxi to the left and then to the right to avoid colliding with the BMW.

7. The Taxi crossed into the opposite side of the Tai Po Road towards the direction of Shatin and collided with another vehicle (with registration no. KJ3171) (“Vehicle 3171”). The impact of the head-on collision was so strong that the frontal parts of the Taxi were crushed and smashed. Subsequently, the police investigated the accident and found out that the Defendant was the owner and driver of the BMW.

8. The Defendant was charged under STS1152/2005 with an offence of dangerous driving contrary to section 37(1) of the Road Traffic Ordinance (Cap. 374). At the criminal trial, the Defendant pleaded not guilty and the prosecution called Mr. Tam to testify against him. The Defendant was duly convicted of dangerous driving and sentenced to 240 hours of community services by the learned magistrate, Mr. Thomas Tsang (“the Conviction”).

9. It is the Plaintiff’s case that the collision between the Taxi and the Vehicle 3171 was caused solely by the negligent driving on the part of the Defendant whilst he was in the driving seat of the BMW. The Taxi was examined and it was later found that the costs of repair would exceed the value of it. The Plaintiff made the decision to scrap it. In legal parlance, the Taxi was a constructive total loss.

10. The Plaintiff computed his claims for damages in the statement of claim as follows:

(a) Total loss of the Taxi HK$65,000
(b) Loss of use for 49 days @ HK$700 per day HK$34,300
(c) Survey fee HK$720
(d) Handling and storage charges HK$400
(e) Towing fee HK$400
Total: HK$100,420

Loss of use

11. I paused here to observe that the claim for “loss of use” as pleaded by the statement of claim was imprecise and I would respectfully echo what Lord Justice Rix had recently observed in The Baltic Surveyor [2002] 1 Lloyd’s Rep. 623, 643, left column that:

“A Hepplewhite chair, much as it might delight its owner by its uniqueness, irreplaceability or beauty, and however much difficulty the assessment of its value in the case of loss may cause, once that value has been found, is not to be made the subject of a further head of damage for loss of use depending on whether it is more or less used or more or less loved. As the Earl of Halsbury, L.C. said in The Mediana [1900] AC 113 at p. 117:

‘When I say deprived of their vessel, I will not use the phrase “the use of their vessel”. What right has a wrongdoer to consider what use you are going to make of your vessel? More than one case has been put to illustrate this: for example the owner of a horse, or of a chair. Supposing a person took away a chair out of my room and kept it for twelve months, could anyone say you had the right to diminish the damages by showing that I did not usually sit in that chair, or that there were plenty of other chairs in the room?’

It seems to me that applies as much to a claimant who seeks to recover, on top of the full value to him of a lost vessel, and interest, a further head of loss for personal use”.

12. As evidence and submissions unfolded in the present case, this head of “loss of use” was refined to include the loss of hire fees under 2 agreements of hire.

Liability

13. On liability, the Plaintiff sought to rely on the Conviction as evidence of the Defendant’s negligent driving. Pursuant to the provisions of Order 18 rule 7A of the Rules of the District Court (Cap. 336, sub. Leg.), it was pleaded in the statement of claim dated 20th April 2006 that the Conviction was relevant to the Plaintiff’s allegations of negligent driving against the Defendant. At trial, the Plaintiff adduced the transcripts and witness statements in relation to the Conviction for the Court’s consideration. To err on the safe side, the Plaintiff’s statement of claim also placed reliance on the legal doctrine of res ipsa loquitor or “the thing speaks for itself”.

14. In this regard, I would refer to Chiu Shung Lam v. Tang Chi Sum Terence & Others, DCCJ2673/2002, unreported, 12th June 2003. There, the plaintiff alleged that the negligent driving of the five defendants caused damages to his taxi. The plaintiff also relied on the convictions of some of the defendants for careless driving and resort was placed in the pleadings on res ipsa loquitor.

15. Deputy District Judge Marlene Ng (as H. H. Judge M. Ng then was) held that when the factual circumstances were known, any reliance on the doctrine would be misconceived and akin to overegging the pudding. She said at p. 8:

“39. … It is trite that if the circumstances of the incident are known and evidence in respect of the same is to be adduced, the court must examine all the evidence at the end of the case and decide whether on the facts and inferences the court finds that negligence has been established. The burden remains throughout on the party alleging negligence … to prove that the damage was caused by the negligence of the alleged parties … I draw no assistance from this principle in the present case as the factual matrix of the chain collision was covered in detail by evidence from the parties”.

16. On the relevance and evidential effect of the convictions of the respective defendants for careless driving in relation to the chain collisions, the learned Deputy Judge observed as follows at p. 9:

“Normally, the effect of a conviction of careless driving shifts the burden of proof to the person convicted to show that he was not negligent. In Stupple v. Royal Insurance Co. Ltd. [1971] 1 QB 50, in considering section 11 of the Civil Evidence Act (the equivalent of section 62 of the Evidence Ordinance Cap. 8), Lord Denning at pp. 72-73 said (as approved in Lau Ka Po v. Man Cheuk Ming & Others, HCPI584/1996, Cheung J. (unreported, 10th March 1997):

“… The Act does not merely shift the evidential burden, as it is called. It shifts the legal burden of proof … Take a running-down case where a plaintiff claims 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 upon him. The burden is, no doubt, the civil burden. He must show, on the balance of probabilities, the he was not negligent: …

But he must show it nevertheless. Otherwise, he loses by the very force of the conviction …

In my opinion, therefore, the weight to be given to a previous conviction is essentially for the judge at the civil trial. Just as he has to evaluate the oral evidence of a witness, so he should evaluate the probative force of a conviction.

If the defendant should succeed in throwing doubt on the conviction, the plaintiff can rely, in answer, on the conviction itself, and he can supplement it, if he thinks it desirable, by producing (under the hearsay sections) the evidence given by the prosecution witnesses in the criminal trial, or if he wishes, he can call them again. At the end of the civil case, the judge must ask itself whether the defendant has succeeded in overcoming the conviction. If not, the conviction stands and proves the case”.

17. The Defendant’s 2-page defence dated 30th May 2006 merely put the Plaintiff to strict proof. Indeed, no allegation of contributory negligence was advanced by the Defendant. Given the Conviction, the Defendant’s plea was somewhat audacious. On the basis of the (oral and documentary) evidence, I was satisfied on the balance of probabilities that the Plaintiff’s case on liability was fully...

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