TAI MEI LIN v. FUNG KING KONG & LEE MAN YI MANDY HCPI 425/2006

S’s words:-

The Plaintiff being the mother of the 1st Defendant commenced the action against inter alia her own son. The issue whether it is appropriate to claim the 2nd Defendant being the owner of the subject car was not discussed and I would not make any comment thereto.

However, this case was not purely a claim from a passenger claiming against his own driver but is a case that a mother claiming against her own son for negligent driving. It is definitely too difficult for the insurers to defend such a claim (on behalf of the Defendants or otherwise). Thus, if I were the solicitors for the Defendants, I believe a quick settlement should be preferred.

The Defence of undertaking “an emergency manoeuvre to avoid a collision with” a vehicle.

--- quote from judgment ---

Date of Judgment: 12 July 2007

Just after midnight on 25 May 2003 the plaintiff Madam Tai was one of four passengers in a Honda saloon car driven by her son Fung King Kong the 1st defendant.

But there was an accident. As they approached a slight left hand bend in the road Mr Fung caused the car to swerve to the left and it struck railings bordering the carriageway.

Madam Tai has not fully recovered and remains permanently partially disabled. By this action she is suing the driver, her son, and the owner of the car, Mandy Lee, the 2nd defendant, for her consequential loss arising out of Mr Fung’s negligent driving.

The defence as pleaded by both defendants and adduced in evidence is that Mr Fung was undertaking an emergency manoeuvre to avoid a collision with a public light bus. The PLB had emerged from the exit of a petrol station that was on the right hand side of Tai Tong Road and had turned right into the lane occupied by the Honda and just ahead of it. To avoid hitting the PLB Mr Fung had no alternative but to swerve to the left. But this action took him into a collision path with the railings which brought the car to a sudden and violent stop. Mr Fung was not negligent or responsible for the accident or his mother’s injuries; that was entirely the fault of the driver of the PLB.

It seems to me that the PLB emerged because its driver believed that he had adequate room and time to manoeuvre safely, and that this was probably a correct decision. Had there been a danger of an imminent collision the sudden prospect of danger would have been evident to Mr Fung’s passengers.

Mr Fung, an inexperienced driver with as he put it not very good skills, driving a car he had not driven before, over-reacted. If he were at all concerned about the proximity of the PLB the appropriate course would have been to brake and if necessary brake hard, to allow the PLB to accelerate away, and otherwise hold his line.

The course he took, of swerving at speed into the railings, was inappropriate, and the sole or at least primary cause of the accident.