JUDGMENT

NH Chan JCA:

In this appeal, the facts are simple and not controverted. At the time in question one Mr Ng Seng Wah was standing beside the driver's door of his motor car AW 2255 which was parked on the nearside of the road. The deceased (ie, the husband of the plaintiff (appellant)) was also standing next to Mr Ng's stationary car near the offside rear door of the vehicle. At that moment another motor car BCC 4647 driven by the defendant (respondent) reversed into the offside rear portion of Mr Ng's car, although Mr Ng did not see the actual collision. He did, however, hear a crashing sound and when he turned around he saw that the respondent's car had already backed into the rear of his car. He ran to the back of the two cars and found the deceased lying on the ground behind the vehicles. The deceased was gravely injured and shortly after he succumbed to his injuries.

In this case, at the conclusion of the evidence called for the plaintiff, the defence submitted that there was no case for the defendant to meet. The judge below ruled in his favour after putting counsel for the defendant to his election to stand by his submission and not to call evidence. The plaintiff's action was dismissed. The judge found that negligence was not proved because he did not believe that Mr Ng, who was the only eye witness called by the plaintiff, actually saw how the accident happened as detailed by him.

The plaintiff appeals to this court.

The plaintiff is the widow of the deceased. In her statement of claim, she has pleaded res ipsa loquitur.

The circumstances of an accident may raise the presumption of negligence under the maxim of res ipsa loquitur. Where a car mounts the pavement it has been held to afford a prima facie case of negligence against the driver (McGowan v. Stott [1923], unreported, followed and reported in Halliwell v. Venables [1930] 143 LT 215, 217).

In Laurie v. Raglan Building Co. [1941] 3 All ER 332, Lord Greene M.R. (with whom Goddard and Du Paroq LJJ agreed) said, at 335, 336:

What is the position where a person lawfully on the pavement is struck by a vehicle, which, in the ordinary course of things, has no right to be in that position? ... it is said that the evidence which was led at the trial established that the wheels of the lorry never mounted the pavement at all, and on that proposition there is based the argument that, whereas, where a vehicle mounts the pavement with its wheels, a prima facie case of negligence is raised, no such prima facie case is raised in a case where all that happens is that some portion of the vehicle hangs over the pavement and hits a person lawfully upon that pavement. ... I cannot see why any distinction is to be drawn, for the purpose of the rule relating to a prima facie case of negligence, between a case where the wheels of a vehicle actually mount the pavement and one where a portion of the vehicle sweeps across the pavement.

In each case, the vehicle is in a position where it has no right to be.

Here in the present case, the defendant's car was found in a position where, in the ordinary course of things, it had no right to be. It was found behind Mr Ng's parked car after knocking into it. The deceased, who was then standing beside the rear offside door of Mr Ng's parked car only a moment ago, was found lying on the ground at the back of the two vehicles. Plainly, the accident could not have happened without negligence on the part of the defendant. In my view a prima facie case of negligence has been established by the plaintiff.

In Lloyde v. West Midlands Gas Board [1971] 1 WLR 749, Megaw LJ describes res ipsa loquitur as in essence no more than a common sense approach to the effect of the evidence in certain circumstances. It means that a plaintiff prima facie establishes negligence where: (i) it is not possible for him to prove precisely how the accident happened, but (ii) on the evidence as it stands he manages to show that the accident could not have happened