NG CHUN PUI AND OTHERS v. LEE CHUEN TAT AND ANOTHER

CACV000064A/1987

IN THE COURT OF APPEAL

1987, No. 64 (Civil)

Headnote

                It is permissible to aggregate claims properly joined within a single action to satisfy Rule 2(a) of the Order in Council regulating appeals to Her Majesty in Council.

IN THE COURT OF APPEAL

1987, No. 64 (Civil)

BETWEEN

	NG CHUN PUI and NG WANG KING Administrators of the estate of NG WAI LEE and attornies of CHOI YUEN FUN and NG WAN HOI	1st Plaintiffs
	TSE CHI WAI by his father and next friend TSE SAI YING	2nd Plaintiffs
	TSE SI YIN	3rd Plaintiff
	NG SUET LAI	4th Plaintiff
	CHU YUN MAN	5th Plaintiff
	AND
	LEE CHUEN TAT (also spelt as LEE TSUEN TAT)	1st Defendant
	HO KWAN LEUNG	2nd Defendant

_______

Coram: Hon. Cons, V.-P., Fuad & Clough, JJ.A.

Date of hearing: 14 October 1987

Date of ruling: 14 October 1987

________

RULING

________

 

Cons, V-P.:

1. In February 1982 an accident occurred in Castle Peak Road when a coach carrying a party of children veered across the central reservation and collided with a public light bus travelling in the opposite direction. One passenger in the bus was killed and the driver and three passengers were injured.

2. In due course an action for damages and other relief was brought by or on behalf of those injured and by the administrator of the estate of the deceased. There is no suggestion that the joinder of the various Plaintiffs in the one single action was in any way improper. At the hearing at first instance the judge was asked to deal with liability alone. He found for or the Plaintiffs. On appeal to this Court his decision was reversed.

3. The five Plaintiffs now seek leave to appeal to Her Majesty in Council. The first point taken on their behalf is that they have an appeal as of right. Damages of course have not yet been assessed but it is agreed for the purposes of this application that the aggregate of the five claims must exceed $500,000 although no individual claim could reach that amount.

4. Rule 2 of the appropriate Order in Council provides that an appeal shall lie "as of right, from any final judgment of the Court, where the matter in dispute on the Appeal amounts to or is of the value of $500,000 or upwards, or where the Appeal involves, directly or indirectly, some claim or question to or respecting property or some civil right amounting to or of the value of $500,000 or upwards."

5. We are told that there is no direct authority in point but such authority as we have been referred to, in my view, seems to point in favour of the Plaintiffs. I am referring to the two New Zealand cases. In the first, Good v. Bruce⁽¹⁾, the fact that the potential liability of the Defendant to all possible plaintiffs exceeded the minimum was held sufficient to bring, the matter within a similarly worded "rule", even though no one plaintiff recovered that amount. That was followed in the second Bankier and Others v. New Zealand Waterside Workers' Union and Another⁽²⁾ ,where the total liability of the defendant had in fact already been established. I appreciate that in those cases it was the defendant who was seeking to appeal the decision to the Privy Council. But on the general principle that what is sauce for the goose is sauce for the gander I would have thought     that the converse should apply. It is suggested that the case of Allan v. Pratt⁽³⁾ precludes the application of the converse but for myself I do not find that case of assistance with respect to the aggregation of separate claims. Nor do I think the New Zealand cases can be distinguished simply on the ground that they were representative actions rather than actions in which more than one plaintiff had joined. For myself I would be disposed to follow the New Zealand approach.

6. If I should be wrong in that, I would turn then to the wording of the rule itself. It is upon the first part that the plaintiffs rely, that is, "the matter in dispute on the appeal amounts to or is of the value of $500,000 or upwards". I observe first that it is in general not technical language. It does not refer to "causes of action". It does not use the word "claim". Nor indeed does it make any reference to "parties".

7. We have been referred to Rule 1 of the Order in Council which expressly provides that words in the singular include the plural and vice versa. But even without recourse to that rule it seems to me that the natural, commonsense construction of the words "matter in dispute on the Appeal" would comprehend joined claims which in the aggregate do exceed the amount stipulated. The object of the rule seems to me to be to ensure that their Lordships are not troubled by trivial appeals. This appeal is not trivial. In itself it does involve more than $500,000. For my part I am satisfied that the Plaintiffs are entitled to leave as of right.

8. It is not necessary then to consider whether the questions which will he argued before their Lordships are in themselves of great general or public importance, which, if so, would allow this Court in its discretion to grant leave. I would merely observe that in my view the judgment complained of did not decide questions of that degree.

(D. Cons) Vice-President

(1)    1917 N.Z.L.R. 919

(2)    [1950] Gazette Law Reports 307

(3)    (1888) 13 App. Cas. 780

Fuad, J.A.:

9. I agree. I acknowledge the force of the arguments advanced to us by Mr. Bharwaney but in the absence of direct authority I reach the same conclusion as my Lord the Vice-President. I think this is clearly a final judgment. The intended appeal is from what is clearly a final judgment of the Court of Appeal of Hong Kong, and I think it can fairly be said that the matter in dispute on the appeal amounts to $500,000 or upwards. I do not think that the words used by the relevant rule should be given a grudging interpetation.

10. I would also indicate that if an appeal to Her Majesty in Council does not lie as a right, I am not satisfied that the condition precedent to the grant of leave in the discretion of the Court given by paragraph (b) of that Rule has been satisfied.

(K.T. Fuad) Justice of Appeal

Clough, J.A.:

11. I agree with the judgment delivered by my Lord the Vice-President and I too would grant the application. I have nothing further to add.

(P.G. Clough) Justice of Appeal

Representation:

Mr. Rodney Pritchard assigned by D.L.A. for Plaintiffs/ Applicants

Mr. M. Bharwaney (M/s Deacons) for Defendants/Respondents

CACV000064/1987

IN THE COURT OF APPEAL

1987, No. 64 (Civil)

BETWEEN

	NG CHUN PUI and NG WANG KING Administrators of the estate OF NG WAI LEE and attornies of CHOI YUEN FUN and NG WAN HOI	1st Plaintiffs
	TSE CHI WAI by his father and next friend TSE SAI YING	2nd Plaintiffs
	TSE SI YIN	3rd Plaintiff
	NG SUET LAI	4th Plaintiff
	CHU YUN MAN	5th Plaintiff
	AND
	LEE CHUEN TAT (also spelt as LEE TSUEN TAT)	1st Defendant
	HO KWAN LEUNG	2nd Defendant

_________

Coram: Hon. Cons, V.-P., Kempster & Clough, JJ.A.

Date of hearing: 22 and 23 September 1987

Date of delivery of judgment: 23 September 1987

__________

JUDGMENT

__________

 

Cons, V-P. delivered the judgment of the Court:

1. On a wet Sunday afternoon in February some 5 years ago, a party of children were returning from a day out in Lok Ma Chau. The coach in which they were being carried was travelling along the Castle Peak Road, after passing through Yuen Long, when suddenly it veered across the central reservation to collide with a public light bus travelling on the far lane of the opposing carriageway. One passenger in the bus was killed and the driver and three other passengers were injured.

2. In due course an action for damages and other relief was brought by or on behalf of those injured and by the administrator of the estate of the deceased. The Defendants were the driver of the coach and the owner of the coach who employed him. The hearing came on before Nazareth J. on the 27th April this year when he was asked to deal solely with the question of liability.

3. Counsel for the Plaintiff at the hearing adduced no evidence other than documents submitted by way of hearsay, the most important being the sketch drawn after the accident and the motor vehicle report, the latter showing that prior to the accident the coach was in roadworthy condition. Counsel relied instead upon the circumstances of the accident themselves to establish negligence, that is res ipsa loquitur.

4. Defence counsel called the driver and a social worker who had been sitting in the front seat of the coach. Their evidence, which was accepted by the judge, was that the coach was travelling at about 40 m.p.h. along a straight stretch of road, in the outer lane of the two lane carriageway, when the coach was suddenly overtaken on the nearside by a blue car which cut in front of the coach from the inner lane. The reaction of the driver - he described it as "a matter of reflex action" - was to break and steer a little to the right, but on the wet road the coach skidded and careered into the other carriageway.

5. The judge found for the Plaintiffs. He was not satisfied that the Defendants had "by affirmative proof discharged the burden that shifted to them" by reason of the doctrine of res ipsa loquitur. He observed in the course of his judgment that it -

"	...was not disputed, that on the doctrine of res ipsa loquitur the coach having gone across the central reservation onto the wrong side of the road, the onus shifts to the Defendants to show that the 1st Defendant (the driver) was not negligent."

He put the Defendants' position a little differently a few lines further -

"	...as I have said it is not disputed that the onus shifts to him (the driver) and the 2nd Defendant to rebut the prima facie evidence or presumption that he was negligent."

6. We have heard argument and we nave been referred to many interesting authorities with regard to the precise nature of the burden cast upon a defendant when the suggestion of res ipsa loquitur is made good. We do not intend to go into them now. In our view this case no longer turns upon that suggestion. It ceased to do so once the judge accepted the evidence of the 1st Defendant and his witness. The position became then identical with that found by Lord Porter in Bolton v. Stone^(l) when he said -

"

Nor am I assisted by any reliance upon the doctrine of `res ipsa loquitur'. Where the circumstances giving rise to the cause of the accident are unknown that doctrine may be of great assistance, but where, as in the present case, all the facts are known, it cannot have any application. It is known exactly how the accident happened and it is unnecessary to ask whether this accident would have happened had there been no negligence; the only question is, "do the facts or omissions which are known and which led up to the injury amount to negligence."

In Barkway v. South Wales Transport Co. Ltd⁽²⁾ he spoke in similar vein but required only that the facts be "sufficiently known". It is suggested for the Plaintiff that in this instance the facts are not sufficiently known. Counsel instanced as an ekample the state of the traffic, in particular the relationship between the blue car and the vehicle to its front. The judge referred to that aspect in these words -

"

Looking at the evidence it is not clear and has not been established whether the gap between the blue car and the vehicle ahead of it in the inner lane was being closed; that is a material matter because it would make the action of the driver of the blue car much more dangerous if the gap was being closed. More to the point; the blue car would have had to cut in even more sharply if the gap was closing and the danger might have been such as would justify a higher degree of braking and swerving."

7. The angle of approach, if we may so term it, was not canvassed in the evidence other than by the manual demonstration of the lst defendant. However both he and his passenger described the cutting in front as being "sudden", which gives some idea of how that took place. We are not persuaded that there is any material omission in this respect. None other has been suggested and we are satisfied that the facts were sufficiently known below and that the judge was wrong to found his conclusion upon the principle of res ipsa loquitur.

8. The only question then is "do the facts and admissions which are known and which led up to the injury amount to negligence?" In coming to our decision we must not lose sight of the fact that at the time the Defendant was put in a difficult position by what the judge described as a "very dangerous manoeuyre". In Tocci v. Hankard⁽³⁾ Lord Denning is reported to have remarked that -

"	It had often been said that, when a dangerous situation was created..., one ought not to be critical of what was done on the spur of the moment to avoid an accident."

Nevertheless that will not necessarily absolve the defendant from all liability. In Parkinson v. Liverpool Corporation⁽⁴⁾ the English Court of Appeal approved as a proper approach -

"	....that the driver did that which an ordinary, reasonable, careful, driver would do in the circumstances of that particular emergency."

Again, in Parnell v. Metropolitan Police District Receiver (5), the court quoted with approval from a Scottish judgment which included these words -

"	...it is a question of fact whether, on any emergency disclosing itself, the following driver acted with the alertness, skill and judgment reasonably to be expected in the circumstances."

9. As the papers in this appeal originally stood the question would not have been open to us, albeit We heard argument thereon for the whole of yesterday afternoon. However this morning we have given leave for the Plaintiffs to file a Respondent's Notice out of time.. That sets out many particulars by which negligence is alleged, most of them taken from the original Statement of Claim. We think the more important may be fairly summarised as allegations that the driver failed to keep a proper lookout vis-a-vis the blue car, as a result of which he over reacted to the situation when it did occur.

10. In the end we have come to the conclusion that none of the allegations are made out. We have been taken by counsel with care through the evidence. We find nothing to support the suggestion that the driver failed to keep a proper lookout in the circumstances. At first glance it may be thought that the second allegation is made good by the Defendant's answer under cross-examination when he said -

"	Because I was too anxious. I was so anxious that I braked too hard."

11. On reflection however we are inclined to think that his answer may equally, or even more properly, be interpreted as an example of wisdom with the benefit of five years hindsight. At the time he was attempting to extricate himself, his coach and his passengers from a situation which appeared to him - and we would interpose that the judge obviously accepted him as a truthful man - as a situation of extreme danger. The consequences of his action were in fact unfortunate, but that should not be laid at his door. He did what any careful driver would instinctively have done in the circumstances, and we are satisfied that he acted with the alertness, skill and judgment which could reasonably have been expected. Even if he did react slightly more than he should have done, slightly more than was strictly necessary, we are not satisfied that a lesser reaction would not have produced much the same result.

12. For these reasons we would allow the appeal and set aside the order made below.

(D. Cons) Vice-President

(M. Kempster) Justice of Appeal

(P.G. Clough) Justice of Appeal

(1)    [1951] A.C. 850 at 859

(2)    [1950] 1 All E.R. 392

(3)    (1966) 110 Sol. J.O. 835

(4)    [1950] 1 All E.R. 367 at 368E

(5)    (1976) R.T.R. 201 at 204

Representation:

Richard Mills-Owens, Q.C. & M. Bharweney (M/s Deacons) for Defendants/Appellants

Rodney Pritchard & Miss Susan Kwan (D.L.A.) assigned for Plaintiffs/Respondents