1970

CHAN WING KWONG AND ANOTHER v. ALAN C.W. WONG

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HCA114/1970CHAN WING-KWONG AND ANOTHER v. ALAN C.W. WONG

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14151-EN

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CACV000048A/1970

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CIVIL APPEAL NO. 48 OF 1970

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BETWEEN
	Chan Wing Kwong (an infant by Chan Wah Yuet his father and next friend)	1st Appellant
	Chan Wah Yuet	2nd Appellant
	and
	Alan C.W. Wong	Respondent

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Coram: McMullin J.

Date of Judgment:

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JUDGMENT

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McMullin J.: The facts of the case and the relevant passages from the legislation with which we are concerned have been dealt with fully by My Lord in the judgment which has just been delivered and I do not propose to recapitulate them here.

2. We are asked to consider the meaning of the phrase: "...... in the custody of a parent" which appears in para. (b) of sub-section 2 of s.22 of the Limitation Ordinance Cap.347. These words, which occur in the precisely similar section in the Law Reform (Limitation of Action etc.) Act 1954 have in recent years been the subject of considerable discussion in the English Courts and we have been referred to virtually all the principal decided cases dealing with then in the course of the hearing of this appeal. Many judges have commented upon the obscurity of that phrase in the context of this legislation. I think, therefore, that it will be helpful to recall, as Mr. Litton for the Appellant would have us recall, that the purpose of the Limitation Legislation, in Hong Kong as in the United Kingdom, is to prevent the injustice which, all too obviously, may result from the preferment of stale claims at law when many years have elapsed following the occurrence of the events giving rise to such claims. The purpose of the Limitation Act and of the Ordinance, that is to say, is to see that this evil is abated in the interests of the public at large. Protection is however given to persons under disability, including the disability of infancy. That protection is, however, itself set about by a limitation. The Legislature, intent on seeing that old claims are not unjustly pursued, will, nevertheless, in deference to the immaturity of youth, not permit time to run against the claim of an infant for damages for personal injuries until the age of majority has arrived. But, having so provided, the Act (and the Ordinance) at once revert to the theme which is their main burden by providing, in effect, that even an infant will not be protected from the effects of his immaturity in respect of limitation periods should there exist a parent, as defined in the legislation, who can be regarded as having the infant in his custody at the date upon which the right of action accrues to the infant. What appears to be established upon the decided cases beyond doubt is that these words do not refer to any mere legal right such as may arise from custodial orders under the Matrimonial Causes Legislation or such as may be said to exist at common law empowering a parent to exercise control over the person or behaviour of his child until the age of majority, but that they imply solely that the infant is, de facto, in the care and control of its parent. That does not dispose of our difficulty however. Mr. Litton's principal complaint is that the trial judge, in coming to the conclusion upon the facts before him that the infant in this case was not in the custody of the father at the time of the accident, confined his attention to the question whether or not the father was at the relevant time in a position to exercise "day to day control" over him. To my mind he thereby makes a point to some substance. In none of the cases to which we have been referred do I find any support for the view that the care and control which constitute the meaning of the word custody in s.22 is to be limited to such physical care and control as it exercised, for instance, by the ordinary mother of the ordinary family in relation to the daily wants of her minor children. The impulse to care for one's children and the power to control their lives may be manifested in more ways than one and the conduct controlled may be multifarious. A parent may so behave as to show quite clearly that he has abandoned, or put beyond his own control, rights a father normally enjoys in relation to regulating the lives and affairs of his children. But the mere fact that he is not in physical contact with them everyday and that he has entrusted such day to day duties as may arise from his obligation to see that they are fed, adequately housed and schooled, need not, in my view, on its own show that he has lost the care and control of them. Mr. Litton asks us to say that the test proposed by Viscount Dilhorne in the case of Todd v. Davison, 1971 2 W.L.R. at p.910, is the most fitting test to resolve ...(illegible) the difficulties of the various cases which have been cited to us. He asks us to say that, in the wording of that test, this father in his particular circu circumstances was: "in a position in fact to exercise powers of control should he wish to do so." These powers of control, he argues, will include a variety of things not merely the daily feeding and other physical observances which fall to the lot of the housewife. They will include also such matters as the right to decide upon the school to which the infant is sent; the right to decide what religion the infant will follow. He might have added many other things as well: the right to decide upon the infant's diet; preferred companions; pastimes forbidden or permitted; and more remote and important concerns such as the eventual career to be taken up by the child. If the circumstances are such as to indicate that the parent is exercising control in that wider sense then he has surely not divested himself of that control simply by confiding to the care of another the vital cut ultimately less momentous duties concerned with physical nurture, housing and day to day discipline. I find myself drawn by these views. Several tests have been proposed in the various cases to which we were referred to determine the meaning of the words "in the custody of a parent" where they appear in s.22. It is perhaps some indication of the difficulty the courts have found in reaching an adequate interpretation that the House of Lords in Todd v. Davison should have approved the test proposed by Lord Denning M.R. in the earlier case of Hewer v. Bryant, (1970) 1 Q.B.357 at 369-370 whereas the suggested test of Donaldson J. in Duncan v. Lambeth London Borough Council (1968) 1 Q.B. 747 was called in question by their Lordships notwithstanding that the two proposed tests appear to be very similar in nature save for one expression used by Donaldson J. to which I will refer shortly. The test proposed by Lord Denning is in the following terms:

"My conclusion is that an infant is 'in the custody of a parent' if he is, in point of fact, in the effective care and control of a parent at the time of the accident. I stress the word 'effective' because I am firmly of the opinion that Parliament must have had in mind a parent so circumstanced that it can be confidently expected that he will take whatever action is necessary or desirable on behalf of the infant: so much so, that if the parent fails to take action the blame falls on him and no one else. ....if the circumstances are not such that the father can confidently be expected to take action, the child should not suffer."

By the test of Donaldson J. an infant is

"in the custody of a parent within the meaning of the section if at the relevant time the circumstances of the parent and of the claimant are such that in relation to one another the average reasonable parent ..(illegible) circumstanced could be expected to take such action to prosecute or assist in the prosecution of the calim as he could be expected to take if the claim were his own."

These words were interpreted in the House of Lords as giving rise to the possible implication that a parent who in fact had the care and control of a child but was observing his duty of care and control very badly might be regarded as disfranchised as parent so that the child could not be said effectively to be in his care and control at all. No doubt it was the reference to the "average reasonable parent" which drew their lordships' strictures. With all respect to this very high authority, I feel that the test proposed by Donaldson J. suffered in the House of Lords by reason of the use to which counsel in that case sought to put it. In that case the child in question was living with parents who were found to be utterly inadequate and who had allowed the limitation period to elapse without taking action on behalf of their injured child and it was suggested by counsel that they had thereby lost custody. Immediately following his quotation from the judgment of Donaldson J. which I have set out above Viscount Dilhorne goes on to say:

"If this was the right test, it might afford some support to the contention that where the parents are 'inadequate' that there is no custody within the meaning of the Act. But I do not think that this is the right test. It seems to me to be substituting a new test and a different test from that of custody and it certainly is an odd interpretation of that word."

There was no question of parental inadequacy in the case before Donaldson J. Shorn of its reference to the average reasonable parent, his test offers the same criterion as that proposed by the Master of the Rolls in the later case, and I wonder whether the reference to the reasonable parent should be regarded as more than the attempt to clarify the intention of the legislature by ascribing to it the employment of an objective test in relation to its use of the term "custody" in the same way as criminal courts formerly applied the objective criterion of the "reasonable man" to the intentions of an accused person, who thereupon, and short of proof of mental deficiency, could be fixed with that degree of foresight. Similarly it may be that Donaldson J. meant to imply no more than that if that test showed a custodial relationship, then any parent, short of some radical impairment, would be fixed with that relationship. I make a point of the similarity of the tests proposed by these two cases because it seems to me that the circumstances of the case tried by Donaldson J. are relevant in another way to which I shall refer later. Taking the test of Lord Denning, however, which clearly had the approval of the judges in the House of Lords, it appears to me that, out of all the possible indicia of "care and control" he very clearly focuses upon that very indication which one would imagine to be the one most relevant to the purpose of the Limitation Act when he refers to a parent "so circumstanced that it can be confidently expected that he will take whatever action is necessary or desirable on behalf of the infant:" this draws us back once again to the consideration that the primary aim of the legislation is the protection of the public at large and not the protection of infants and that the concern of that legislation with the question of custody is naturally and properly concentrated upon a consideration as to whether or not the interests of the infant are adequately protected by the existence of a person who can be expected to take up his rights in law. If one puts aside for the moment the other possible indicia, such as, for example day to day care, religious iistruction, future career etc. and applies this test to the circumstances of the present case it would be in my opinion, by no means beyond doubt upon the evidence before the learned trial judge that this particular appellant was not so circumstanced that, prior to the accident, he could be confidently expected to take the action necessary on behalf of his child. If so much can be said with confidence would it not be somewhat artificial to frustrate the primary purpose of the limitation legislation on the ground merely that the parent's circumstances did not show certain other obvious indicia inherent in the concept of custody? No doubt custody is a question of fact; no doubt the absence of day to day physical control is a consideration which is relevant to the establishment of that fact but there are other considerations and of them all, for the purposes of this legislation, surely the most important must be the consideration as to whether or not the circumstances are such that a parent is likely to move on behalf of his child. The importance of the individual items in the list of all relevant indicia which may enter into the composition of custody will vary greatly from context to context and it is noteworthy that none of the decisions appears to establish any fixed hierarchy of such indications nor has any judge sought to propose any one indication as being generally dominant over all the rest.

3. Donaldson J. in Duncan v. Lambeth London Borough Council having formulated his test in terms set out above goes on to say:

"Applying this test, I am satisfied that the plaintiff was not in the custody of her father at the time of the accident and it is not suggested that she was in the custody of any other parent. The plaintiff had been taken into the care of the London County Council some four and a half years before the accident and it follows from the wording of s.1 of the Children Act, 1948, that at this time and at all material times thereafter the father was prevented by some circumstance from providing for the proper accommodation, maintenance and up-bringing of the plaintiff and that it was in the interest of the plaintiff that she should be taken into care. The situation is thus radically different from that of a child who attends a boarding school or who lives with relations while her parents are abroad. I take full account of the fact that the father was a regular visitor of the child as indicating affection for the child and a desire to keep in touch with her against the day when he could make a home for her, but that they did not come for over eight years. However, the average reasonable father who has been forced to entrust the physical and moral welfare of his child to the care of a local authority would, I think, be surprised to be told that it remained his duty to safeguard the child's legal rights. This, if he thought about the matter at all, he would regard as being a matter for action or at least advised to him by the local authority."

I take from this passage the implication that had the learned judge been confronted with circumstances such as those which arise when parents leave a child at home in the care of relatives while proceeding abroad, that he would not have been disposed to find that the child had passed from the custody of its parents. The radical difference which he found between those circumstances and the circumstances before him is that in his case the child had been confided to the care of a local authority which might thereafter be regarded as being in the position of its parent and charged with all duties which formerly would have been the parent's to perform. And this notwithstanding the fact that under the Children Act, it has open to the father to take the child out of the institution at any time he chose. There is to my mind a world of difference between the situation of a father who has confided the care of his child to a local authority and that of a father who has for a period of six years made various provisions for the housing, feeding and schooling of his child. On the undisputed evidence the father in the present case boarded his three children including the plaintiff, at different times, at a boarding shcool; with himself at an apartment house and with two different families the first being the family of one of his neighbours in his native village in the New Territories. He paid for their upkeep and for their schooling, he chose the school to which they should go, he visited them on the average between two and three times a week. In doing so it seems to me that he was exercising care and control over his children albeit by the agency of a neighbour selected by himself and although his circumstances did not permit him to look to their daily physical needs himself. I think it begs the question to say that he had confided the upbringing of his children to Mrs. So (Lee Fung). As distinct from the parent who has relinquished control of his child to a public authority this parent remained in a position to instruct his tutelary agent Mrs. So in all the important matters concerning the upbringing of his children. Primarily however we must keep in mind the purpose of the Limitation Ordinance. In contradistinction to the parent in the case of Duncan v. Lambeth London Borough Council who in the opinion of the judge in that case would have been surprised to be told that it remained his duty to safeguard the child's legal rights, the father in this case would clearly not have been surprised to have been told any such thing. No surer indication that this is so could possibly be afforded than is afforded by the fact that, on the happening of the accident, he actually did move to protect his child's rights. Counsel for the respondent frankly admitted that in the context of local society in Hong Kong a woman in the position of Mrs. So would not only not have regarded herself as charged with any duty to look to the legal rights of the plaintiff but would have regarded that as primarily the duty of the father. If I am right in supposing that a correct test of custody was proposed both by Lord Denning in Hewer v. Bryant and (with any reservations that may be necessary to offset one suspect phrase) by Donaldson J. in Duncan v. Lambeth London Borough Council I would say that the most important consideration was not whether the day to day care and control of the child was in the father but rather whether the father was so circumstanced that he must be said to have retained and to have been in a position to exercise such custodial rights in relation to his child as included at the least the right to pursue his child's legal remedy following upon the accident. I would stress the fact that in the test proposed by Lord Denning the word "effective" in the phrase "effective care and control" was specifically defined by him in terms of the likelihood or otherwise of the parent in question taking necessary legal action rather than in terms of the parent's power to be on hand day by day to see in general to the upbringing of his child. If the word "custody" is to bear a rather artificial and limited meaning in section 22, as Sachs L.J. thought in Hewer and Bryant (P.371 of the Report) and yet to imply effective care and control in the parent, as now appears to be established, it seems logical, in scrutinising custodial capacity, to assume that the limitation of its meaning will derive from and be related to the concern of the legislature with limitation of actions so that, in this context, of all indications which might go to show custody in the parent the one of primary importance - though not the only one - would be any indication that the parent had shouldered the duty of bringing legal action. Perhaps it was some consideration of this sort which was in the mind of Diplock L.J. when, in Todd and Davison, he said (Page 314):

"Left to myself, my choice might well have fallen upon a criterion for 'custody of a parent' somewhat narrower than that which has commended itself to the majority of your Lordships."

One might speculate whether that learned Judge may not have been minded to restrict the meaning of "custody" in this special context wholly to the consideration of such particular circumstances as might bear directly on the possibility of the infant's interests as regards litigation being adequately protected by the existence of a parent. Be that as it may, it does not seem unreasonable, applying the test proposed by Lord Denning, to give great weight to such evidence so that where it is shown that a parent has the capacity and opportunity of making suit on behalf of his child and where it is reasonable to assume that he would do so the other wider incidents of care and control to which the Courts will normally resort in order to determine whether custody exists should be relegated to a position of secondary importance in relation to that factor which is the factor of primary concern to the legislature in dealing with the problem of stale claims. I believe that in referring to "day to day" control the trial Judge adopted a wrong test, or at any rate, a mistaken order of priorities, in resolving the question whether at the date of the accident the child was in its father's care and this on the basis either that it was too narrow a view of cutsody which, notwithstanding the absence of day to day control might, in an overall sense, continue in the father or else because it appeared to ignore the evidence concerning the most relevant aspect of custody within the intention of the legislation. I do not, of course, suggest that the fact that the father did move to protect his child's legal rights after the accident amounts to irrebuttable evidence of custody for the purposes of the Ordinance. But the primary aspect of care and control with which the action was concerned was care and control of the infant in relation to his rights of litigation. As Lord Diplock said in Todd and Davison:

"The expression 'custody of a parent' may sensibly bear more than one meaning."

On the totality of the evidence and notwithstanding the father's seeking legal aid after the accident it was open to the trial Judge to find that the circumstances were such that, looking at the situation as it was before the accident and applying Lord Denning's test, the father was not in such a position that he could be confidently expected to take whatever action might be necessary. That is the correct test however and in view of his special reliance on the evidence as to day to day control I find it hard to say that the trial Judge applied it although he referred to it. Day to day control seems to me to be something altogether narrower than overall supervision and care andif the trial Judge found, as I think he did, that because the daily routine of looking after the children had been placed in the hands of Mrs. So (and later Mrs. Ip) the father had lost custody of them I think he was wrong and that he at least might have come to a different conclusion on the question of custody had he asked himself whether, on the whole of the evidence, including the evidence of what the father did after the accident, the infant's rights at the date of the accident were likely to be protected.

4. I should add that I have little relish for the conclusion to which I feel impelled and I am in full agreement with the criticisms which have been made of the unusual circumstances of this action. I can see, without going into the matter, that there may well be formidable objections to the future courses of this litigation whatever may be the outcome of the proceedings immediately following upon this appeal. However, these are not considerations with which we can be concerned at this stage, and however reluctantly, I am in agreement with my Lord that the proper course is to order that the priliminary issue be tried afresh and that the costs of this appeal and in the court below should abide the results of the rehearing.

	(A.M. McMullin)
	Puisne Judge.

Representation:

14152-EN-1971-07-31

CHAN WING KWONG AND ANOTHER v. ALAN C. W. WONG

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CACV000048/1970

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CIVIL APPEAL NO.48 OF 1970

(On appeal from O.J. Action No. 114/70)

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BETWEEN
	CHAN WING KWONG (an infant by CHAN Wah-yuet his father and next friend)	1st Appellant
	CHAN WAH YUET	2nd Appellant
	and
	ALAN C. W. WONG	Respondent

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Coram: Full Court (Huggins and McMullin, JJ.)

Date of Judgment: 31st July, 1971.

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JUDGMENT

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1. This is an action for damages for negligence against a solicitor. The plaintiff Appellants are a father and his infant son. For the moment it is sufficient to say that the negligence alleged is that the solicitor, who was formerly assigned to act professionally for the Appellants by the Director of Legal Aid, failed to institute proceedings on behalf of the Plaintiffs in respect of personal injuries to the infant alleged to have been due to the negligence of persons who may conveniently be described as "the tortfeasors". It appears that even to this day no action has been instituted against the tortfeasors but it is the contention of the Appellants that such an action would now inevitably fail by reason of the provisions of the Limitation Ordinance. The Respondent takes a different view and he persuaded the Plaintiffs, through their counsel, to consent to an order for the trial as a preliminary issue of the question whether the Appellants' cause of action against the tortfeasors was statute barred. This preliminary issue came on for trial before Mr. Justice Blair-Kerr and he held in favour of the Respondents that the cause of action was not statute-barred. It is against that decision that the Appellants now appeal to this Court.

2. It is a matter for serious criticism that the order for the trial of the preliminary issue has not been included in the record on the appeal. The only indication we have of the precise tens of the order is contained in the following passage from the judgment of Mr. Justice Blair-Kerr:

"The defendant denies that the cause of action against (the tortfeasors) is statute barred; and on 17th September 1970 there was a consent order made by the Registrar that this question be tried as a preliminary issue. That is how the matter now comes before me."

Although the Statement of Claim in the present action alleges that a draft Statement of Claim to be filed in the proposed action against the tortfeasors was either drafted or settled by counsel that draft has also not been exhibited. Nevertheless para.8 of the Statement of Claim in the present action alleges only one cause of action in the infant and his father, that being a cause of action in respect of which the period of limitation had expired before 21st January 1970, the date on which the Writ in the present action was issued. It reads:

"The defendant was negligently and wrongfully dilatory in instituting proceedings on behalf of the plaintiffs and wrongfully failed to commence proceedings before 2nd February 1969 or at all in consequence whereof the plaintiffs' cause of action became statute barred under the provisions of s.4(1) of the Limitation Ordinance."

The whole of the argument both before the Judge in the court below and before us has proceeded upon the basis that it was an action for damages for negligence where the damages claimed consisted of or included damages in respect of personal injuries to the infant, so that by virtue of s.4 of the Limitation Ordinance the period of limitation was three years.

3. Upon the appeal doubt has been expressed as to the full extent of the cause of action in the present case against the Respondent. Clearly para 8 of the Statement of Claim, which I have just cited, complains that the Respondent was negligent in not commencing proceedings on behalf of the Appellants before 2nd February 1969, but is that the full extent of the complaint? Counsel for the Appellants contends that upon this pleading it would be open to the Appellants to ask for a judgment on the basis that the Respondent negligently failed to institute proceedings within a reasonable time even though no defence under the Limitation Ordinance was set up or established. Although we are told that counsel for the Appellants has been unable to find any reported case where a case based on dilatoriness simpliciter has been before the courts I am prepared to assume for the purposes of this case that such an action would lie and that there might be circumstances in which damage could be proved. However, I am well satisfied that no such claim is raised by the pleadings in this case. The very fact that the Appellants consented to the trial of the preliminary issue under the Limitation Ordinance is a clear indication that they themselves by their counsel agreed that liability in the present action turned entirely upon the limitation point. Although we do not have the affidavits which were before him, Mr. Registrar Jones, who (we are told) made the Order for trial of the preliminary issue, would, I am sure, not have done so had he not been under the impression that a decision on this point would substintially dispose of the action. On a fair reading of the pleadings I have no doubt that the limitation point was indeed the only substantial issue upon which liability depended.

4. The decision therefore turned upon a very narrow point but to understand it it is necessary to set out the relevant provisions of the Limitation Ordinance. Section 4(1) provides that an action founded up upon tort shall be brought within six years of the date on which the cause of action accrued but proviso (i) shortens the period to three years where the action is for damages for negligence in respect of personal injuries. In the present case the injury was sustained on 2nd February 1966 and, if the Appellants' contention is correct, the cause of action became barred on 2nd February 1969. The Respondent says, however, that s.4 would not apply because the injured party was under a disability on the date when the cause of action accrued. Section 22(1) reads:

"If on the date when any right of action accrued for which a period of limitation is prescribed by this Ordinance, the person to whom it accrued was under a disability, the action may be brought at any time before the expiration of six years from the date when the person ceased to be under a disability or died, whichever event first occurred, notwithstanding that the period of limitation has expired:"

and there follow four provisos which are not material to this case. If that provision applies, then the cause of action would not be statute barred until three years from the date upon which the infant attains his majority - which date still lies some nine years in the future. But the Appellants say that the provision does not apply by reason of the unhappily worded s.22(2)(b), which reads in part:

"In the case of actions for damages for negligence ...... where the damages claimed by the Plaintiff for the negligence ...... consist of on include damages in respect of personal injury to any person ...... - ............................................................

(b)

this section shall not apply unless the Plaintiff proves that the person under the disability was not, at the time when the right of action ...... accrued to him, in the custody of a parent".

In effect the Appellants say they could prove (and have in fact proved) that the infant was in the custody of the father at the time of the injury and that therefore they could not prove, to use the language of the sub-section, that the infant "was not .... in the custody of a parent".

5. The grounds of appeal set out in the Notice of Motion are as follows:

"	1.	The learned judge failed to direct himself that the evidence adduced showed that the 1st Plaintiff was in the effective care, control and custody of his father, the 2nd Plaintiff, and that although the 2nd Plaintiff was in poor circumstances, he did take the necessary action on behalf of his infant son, the 1st Plaintiff.
	2.	The judgment of the learned judge was wrong and ought to be set aside".

The second of these "grounds" was not, of course, a ground at all but when counsel for the Respondent indicated that he proposed to disregard it the Appellants applied for and, were granted, leave to amend the second paragraph by adding "in that he misconstrued the effect of the words 'in the custody of a parent in s.22(2)(b) of the Limitation Ordinance".

6. As I understand Ground I what is in truth complained of is that there was no evidence upon which the learned judge could, if he correctly directed himself as to the meaning of "custody of a parent", find that the infant appellant was not in the custody of his father. Ground 2 now alleges that he did not correctly direct himself as to the meaning of the material phrase.

7. I think it is convenient to deal with the second ground first and, as it seems to me, the complaint is based upon one brief passage in the judgment:

"... I do not see how any court could reasonably come to the conclusion that (the father) has had de facto custody of any of his children since he arranged for them to be brought up by Mr. and Mrs. So. For many years he has not been in a position to exercise effective day to day control over them; and, in my view, that was the position at the time of the accident on 2nd February 1966".

It is submitted on behalf of the Appellant that the learned judge took as the test of custody the existence or otherwise of "effective day to day control" and that that was wrong. Counsel relies upon a passage in Hewer v. Bryant⁽¹⁾ where Lord Denning M.R. said:

"My conclusion is that an infant is 'in the custody of a parent' if he is, in point of fact, in the effective care and control of a parent at the time of the accident. I stress the word 'effective' because I am firmly of the opinion the Parliament must have had in mind a parent so circumstanced that it can be confidently expected that he will take whatever action is necessary or desirable on behalf of the infant: so much so that, if the parent fails to take action, the blame falls on him, and on no one else".

That passage was cited without disapproval in Todd v. Davison⁽²⁾, which came before the House of Lords after the trial before Mr. Justice Blair-Kerr. In that case Viscount Dilhorne said at p.905:

"Such a parent '(i.e. a parent as defined in the Limitation Act 1939)' could reasonably be expected out of natural affection to seek to protect the interests of the infant ...".

Lord Pearson said at p.913:

"An infant ... is in the custody of a person who has him in charge and is looking after him. He is the person who normally must know of the accident and has the opportunity of taking legal advice and bringing an action as next friend if so advised".

At p.910 Viscount Dilhorne said:

"It suffices that the circumstances are such that a parent is in a position to exercise powers of control should he wish to do so, and that will be the case when the infant ... is in his care".

8. The first question in the present case is whether the "effective day to day control" which Mr. Justice Blair-Kerr had in mind was something different from the "effective care and control" referred to by Lord Denning. Mr. Justice Blair-Kerr is a judge of great experience and in his judgment he referred to authorities which lay down the true test. However, he did so in the course of arriving at a conclusion that custody is a question of fact to be determined on the evidence rather than in order to ascertain what factors are relevant to that question of fact. There is no doubt that the addition of the words "day to day" could indicate that he regarded what I will call "immediate physical charge" as the deciding factor, whereas it is no more than one of the relevant factors. I have given this matter the most anxious consideration but if the learned judge could not see "how any court could reasonably come to the conclusion that the father has had de facto custody of any of his children since he arranged for them to be brought up by Mr. and Mrs. So" I think he must have been applying a narrower test than that which ought to be applied. On the application of the true test I think the case was by no means so clear.

9. I must therefore turn to the first ground of appeal, which raises the question whether it has been proved that the infant appellant was not in the custody of his father.

10. The infant is one of four infant children of the father, all of whom were born in the years 1958 to 1960. The father was in business but he fell upon bad times and when his financial circumstances deteriorated some four years before the date of the accident to the infant the mother deserted the father. At that time he was unemployed and for a short while he looked after the children himself. However, he could not afford to go on doing this and, to free him for gainful employment, he put the children into a nursery. Later he put them in the charge of a Mrs. SO Lee-fung, to whom he paid $40 a month each for their board and lodging. They remained with Mrs. So throughout the three years preceding the accident. The father himself found irregular employment on construction sites and usually lived wherever he happened to be working. So far as I can understand it, before the accident two of the boys went to stay with someone else in the New Territories, leaving the infant appellant and his younger sister with Mrs. So. Immediately after the accident the father appears to have taken the other three children away from Mrs. So, taking them for several days to an apartment house and then arranging for them to be looked after by a Mrs. Ip at Rennie's Mill. Later the infant Appellant was also sent to live with Mrs. Ip, where he remained for three years. The daughter at some time left Mrs. Ip and went to live with Mrs. So, where she now is.

11. The evidence of the father was at times confused and even contradictory but the learned judge accepted that up to the time of the accident the father paid Mrs. So $40 a month for each child to cover the cost of his board and lodging. He visited his children whenever he was able to do so but "his visits must have been rather irregular": there was evidence that they amounted to two or three visits a week on the average. Although there were times when he himself lived at the construction sites there were also times when he slept in the street. At the present time he has a bed space at 385 Yuen Chow Street, 1st floor, and takes his meals at a restaurant.

12. The father has paid Mrs. Ip $90 a month for each child to cover board, lodging and school fees. The judge made no finding as to who arranged their schooling but the father said in cross-examination that Mr. and Mrs. So had arranged the infant appellant's schooling for him. This was obviously an error and in re-examination he confirmed that the children did not go to school when with the So family and he asserted that he himself decided what school they should go to subsequently. The judge did refer to the fact that the father was not a Christian and that Mr. and Mrs. So took the children to church on Sunday. He expressly accepted the evidence of the father that he "arranged with other people to take care of (his children)" because he could not look after them while he was going from site to site all over the Colony.

13. There is one other matter which must be mentioned. The father did in fact take professional advice about the infant's legal rights after the accident: Mrs. So did not. The question is, of course, not what the father did but what it could confidently be expected that he would do, so that one must be careful not to attach undue weight to the action of the father: it does not necessarily follow that he acted in a way which might confidently be expected. Nevertheless this is evidence which cannot be wholly ignored.

14. It is right to say that all that is in issue is whether the father had custody: it is not necessary to decide who had custody if he did not. The infant was clearly in the custody of the father up to the time when the mother deserted the father and one has to inquire whether the conduct of the father amounted to an abandonment of care and custody. Where another person has immediate physical charge I think one must look at the relationship between the father and that other person. If, for example, the father hires a servant to exercise immediate physical charge I cannot believe that he thereby transfers "care and control" so long as he remains in a position to supervise that servant. It is a question of degree: if he goes abroad he may put himself so out of touch with the servant that he is no longer in effective care and control. On the other hand if he maintains regular contact then the mere fact that he is not at home for part of every day does not prevent his having effective care and control: see Woodward v. Hastings Corporation⁽³⁾. In that case the infant was living in a home which was the father's home. That is no doubt a material consideration, but in Woodward v. Hastings Corporation the father had less personal control over the infant than had the father in the present case. There the mother (who was also "a parent") was, of course, in any event in control, but Mr. Justice Hallett clearly inclined to the view that the father himself also had care and control. In Brook v. Hoar⁽⁴⁾ Mr. Justice Melford Stevenson said that "an essential characteristic of such custody is the right to control the infant's life coupled with the capacity to exercise that control whether arising from economic circumstances or otherwise". It was strongly argued on behalf of the Respondent in the present case that the father's economic circumstances prevented his exercising control, but that again must be a question of degree. In Hong Kong there are, alas, cases where parents because of their economic circumstances give their children away for de facto adoption. In such cases they clearly surrender care and control. But a parent who cannot provide a family home for his children does not ipso facto surrender care and control: it may be possible, though more difficult, to maintain care and control in the home of another. It would have been helpful had the learned judge said who he believed selected the infant's school, although such selection was not made until after the accident. The fact that the father allowed Mrs. Ip to take the infant to church is as consistent with the father's having no religious convictions as with his surrendering the right to choose the infant's religious eaucation and, again, the judge has not made any finding as to his attitude. He found that the father made visits to the children "whenever he was able to do so", that he has bought some clothing for them and that he has paid for their board and lodging and for school fees, but to what extent the father sought to express to Mrs. So his wishes as to the manner of the children's upbringing and to what extent she would have had regard to those wishes was not inquired into.

15. The onus was on the Appellant to establish that the claim was statute barred and for that purpose to prove that the father retained care and control. Although there was some evidence not expressly rejected by the learned judge which pointed to his having done so, I think it would be wrong for us to attempt to make any finding on the strength of the written record. With the greatest reluctance I have come to the conclusion that we must allow the appeal on the ground of misdirection and order a new trial of the preliminary issue. My reluctance is even greater than it normally would be because I cannot but agree with the learned judge that the situation is, on the evidence before us, bizarre. We have here the spectacle of an infant and his father seeking to prove that they have no right of action against persons who are said to have done them a wrong. The present action was instituted without the Appellants' first proceeding against the alleged tortfeasors. Nor is it pleaded that the tortfeasors indicated an intention to raise the statute as a defence. I am therefore especially loth to make any order which will lead to the protraction of this litigation. On the other hand a new trial will give an opportunity for a fuller investigation of the matters which are relevant to the existence or non-existence of parental care and control as defined by the cases.

16. I would order a new trial and subject to anything that may be said, would direct that the costs both here and in the court below abide the result of the action.

31st July, 1971.

Representation:

(1) 1970 1 Q.B. 357, 369

(2) 1971 2 W.L.R. 898

(3) 1944 K.B. 671

(4) 1967 1 W.L.R. 1336, 1341