1990

NG CHING HUNG AND ANOTHER v. LAU SHUN HING

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9794-EN-1991-06-26

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CACV000182B/1990

[Application for leave to appeal to the Privy Council]

IN THE COURT OF APPEAL

1990, No. 182
(Civil)

BETWEEN

	NG CHING HUNG by his father and next friend NG TIN TSAM	Applicant
	AND
	LAU SHUN HING	Respondent

------------

Coram: Fuad, V.-P., Liu & Ryan, JJ.

Date of Hearing: 26 June 1991

Date of Judgment: 26 June 1991

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JUDGMENT

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Fuad, V.-P. :

1. This is an application for leave to appeal to Her Majesty in Council. On 17th February 1987, Ng Ching Hung, who was then aged about 16, was crossing a road in Kwun Tong when he was knocked down by a car and injured. He sustained what is described in the medical evidence as a moderate to severe head injury. His skull was fractured, and bifrontal contusions needed a life-saving operation. Fortunately, the doctors were able to report that his post-operative physical recovery was quick and uncomplicated. Indeed, he was discharged from hospital quite soon and by the end of three weeks he was fully mobile and independent.

2. Sadly, however, his psycho-social recovery (he has serious behavioural problems) has been described as problematic.

3. Through his father, the boy brought an action in the High Court to recover damages from the driver of the vehicle for his loss and injuries. The hearing took place before Wong, J. on 17th October 1990 who delivered judgment on the next day. He decided the question of liability only at the request of the parties. His finding was that the defendant had been negligent, but that there was contributory negligence on the part of the boy to the extent of 70%.

4. There was an appeal to this court and the hearing took place on 5th March 1991. On that day, the court constituted by Liu, J., Power, J.A. and myself allowed the appeal of the defendant and announced that we would give reasons for our decision later. Those reasons, prepared for the court by Power, J.A., were handed down on 27th March 1991.

5. The plaintiff filed his application for leave to appeal on 10th April 1991. Rule 3 of the Order in Council regulating appeals from this court to Her Majesty in Council requires such applications to be made within 14 days from the date of the judgment to be appealed from. There is power under r.3A, inserted in 1980, for this court to extend the period within which an intending appellant is required to make his application.

6. From an affirmation made by Mr. Edwin Neo (he is a solicitor in the firm acting for the boy and his father) we know that the plaintiff's application for legal aid for the present purposes was granted on 10th April. We have been told that the application was made on 9th April. In the affirmation it is said that it was not possible for the application for leave to appeal to the Privy Council to be instituted until legal aid had been obtained, and that once legal aid was granted the application for leave to appeal to Her Majesty in Council had been filed. No delay had been intended by the applicant.

7. It seems to me quite clear that r.3, properly interpreted; requires the application for leave to appeal to be made within 14 days of the date of the decision in the appeal being announced, even though reasons may be given later. Where this court in deciding an appeal does not give its reasons immediately, this may well be a powerful factor to be taken into consideration when deciding whether or not to grant an application for leave to appeal out of time, for a party might wish to peruse the reasons for a judgment and get advice on them before deciding whether or not to pursue the matter any further. However, in this particular case the issues were very plain indeed. In fact the court having read the papers, invited Mr. Ronny Tong Q.C., who represents the intending appellant again before us today, to address the court first in seeking to support the decision of the judge. Only one witness was called at the trial, a police officer who had drawn the sketch plan. Neither the plaintiff nor the defendant gave evidence. The plaintiff's case, rather boldly as it turned out, rested almost entirely on a statement made to the police by the defendant in which he said that he was driving at a speed of 25-26 miles an hour in third gear at the time and in which he explained exactly what happened. I mean no disrespect to those acting for the boy when I suggest that it would have been very easy indeed for them to advise on what the court was likely to say in its reasons in the light of the course the appeal took and the interventions of members of the court during the hearing.

8. I of course, respectfully bear in mind what Hunter, J.A. said about the problems faced by a person who needs legal aid in Hui King Fai v. The Director of Housing Miscellanceous Proceedings 907 of 1987, but as Mr. Mills-Owens Q.C. has pointed out, quite fairly I think, it would not have been difficult or costly for a Notice of Motion to be filed within time. I cannot imagine that the Legal Aid Department would have refused to consider supporting such a step being taken to maintain the position. In fact, as we now know, legal aid to take the matter further was not applied for until 9th April and a decision was taken very quickly (on the following day) granting legal aid for the purposes of the application before us.

9. I have every sympathy for the boy but in my judgment insufficient grounds have been shown to justify the indulgence sought; and it would be wrong for me not to indicate that in reaching my decision I have been influenced (without, I hope, appearing in any way to be arrogant) by a consideration of the prospects of success of the intended appeal.

10. I would refuse the extension of time and dismiss he motion on that ground alone.

11. However, out of courtesy to counsel who have addressed us at some length on whether or not r.2(a) of the Order in Council was satisfied, I think I ought to say a few words on the subject. It was common ground between leading counsel that the judgment of the Court of Appeal in this case arising from the split hearing conducted by Wong, J. was a "final judgment" for the purposes of r.2(a). It seems to me, therefore, that in the special circumstances of a case such as this, the intending appellant has to satisfy this court that there is a reasonable probability that the damages he will recover if his appeal to their Lordships is successful and the issue goes to trial will be not less than the $500,000 mentioned in r.2(a). It is only then that he would have an appeal as of right and the authorities show that this court has a duty to form a view on this point. I am satisfied that while the court must not impose too heavy a burden on an intending appellant, the onus is on him to satisfy the court that he comes within r.2(a).

12. I need only say that after hearing the helpful submissions of Mr. Tong and Mr. Mills-Owens, I have reached the conclusion that the plaintiff has established that it is reasonably probable that the damages he would receive (were he successful on the issue of liability) after a hearing on the question of damages, would not be less than a sum between $1.6 and $1.7 million which is the relevant amount because of the 70% contributory negligence found against the intending appellant, a finding which was not challenged in the appeal that we heard on 5th March.

Liu, J.:

13. I agree that this application falls to be decided exclusively under r.2(a) but, for the reasons given by my Lord the Vice-President with which I agree, extension of time should not be granted. I would also dismiss the application.

Fuad, V.-P. :

14. I am grateful to my Lord for mentioning r.2(b). I wish to add to my judgment that I would have been quite unable to hold, were it necessary, that the question involved in the appeal is one which satisfies any of the criteria in r.2(b).

Ryan, J.:

15. I agree with my Lord the Vice-President that the application ought to be dismissed. I have nothing further to add.

Representation:

Mr. Ronny Tong, Q.C. and Miss Josephine Pinto (Hoosenally & Neo) for the Plaintiff/Applicant

Mr. Richard Mills-Owens, Q.C. and Mr. Nicholas Pirie (Johnson, Stokes & Master) for the Defendant/Respondent

9793-EN-1991-06-26

NG CHING HUNG AND ANOTHER v. LAU SHUN HING

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CACV000182A/1990

[Application for leave to appeal to the Privy Council]

IN THE COURT OF APPEAL

1990, No.182
(Civil)

BETWEEN
	NG CHING HUNG by his father and next friend NG TIN TSAM	Applicant
	AND
	LAU SHUN HING	Respondent

--------

Coram: Fuad, V.-P., Liu & Ryan, JJ.

Date of Hearing: 26 June 1991

Date of Judgment: 26 June 1991

------------------

JUDGMENT

------------------

Fuad, V.-P.:

2. Sadly, however, his psycho-social recovery (he has serious behavioural problems) has been described as problematic.

3. Through his father, the boy brought an action in the High Court to recover damages from the driver of the vehicle for his loss and injuries. The hearing took place before Wong, J. on 17th October 1990 who uelivered judgment on the next day. He decided the question of liability only at the request of the parties. His finding was that the defendant had been negligent, but that there was contributory negligence on the part of the boy to the extent of 70%.

5. The plaintiff filed his application for leave to appeal on 10th April I991. Rule 3 of the Order in Council regulating appeals from this court to Her Majesty in Council requires such applications to be made within 14 days from the date of the judgment to be appealed from. There is power under r.3A, inserted in 1980, for this Court to extend the period within which an intending appellant is required to make his application.

6. From an affirmation made by Mr. Edwin Neo (he is a Solicitor in the firm acting for the boy and his father) we know that the plaintiff's application for legal aid for the present purposes was granted oh 10th April. We have been told that the application was made on 9th April. In the affirmation it is said that it was not possible for the application for leave to appeal to the Privy Council to be instituted until legal aid had been obtained, and that once legal aid was granted the application for leave to appeal to Her Majesty in Council had been filed..No delay had been intended by the applicant.

7. It seems to me quite clear that r.3, properly interpreted, requires the application for leave to appeal to be made within 14 days of the date of the decision in the appeal being announced, even though reasons maybe given later. where this court in deciding an appeal does not give its reasons immediately, this may well be a powerful factor to be taken into consideration when deciding whether or not to grant an application for leave to appeal out of time, for a party might wish to peruse the reason for a judgment and get advice on them before deciding whether or not to pursue the matter any further. However, in this particular case the issues were very plain indeed. In fact the court having read the papers, invited Mr. Ronny Tong Q.C., who represents the intending appellant again before us today, to address the court first in seeking to support the decision of the judge. Only one witness was called at the trial, a police officer who had drawn the sketch plan.Neither the plaintiff nor the defendant gave evidence. The plaintiff's case, rather boldly as it turned out, rested almost entirely on a statement made to the police by the defendant in which he said tnat he was driving at a speed of 25-26 miles an hour in third gear at the time and in which he explained exactly what happened. I mean no disrespect to those acting for the boy when I suggest that it would have been very easyindeed for them to advise on what the court was likely to say in its reasons in the light of the course the appeal took and the interventions of members of the court during the hearing.

8. I of course, respectfully bear in mind what Hunter, J.A. said about the problems faced by a person who needs legal aid in Hui King Fai v. The Director of Housing Miscellaneous Proceedings 907 of 1987, but as Mr. Mills-Owens Q.C. has pointed out, quite fairly I think, it would not have been difficult or costly for a Notice of Motion to be filed within time. I cannot imagine that the Legal Aid Department would have refused to consider supporting such a step being taken to maintain the position. In fact, as we now know, legal aid to take the matter further was not applied for until 9th April and a decision was taken very quickly (on the following day) granting legal aid for the purposes of the application before us.

10. I would refuse the extension of time and dismiss the motion on that ground alone.

11. However, out of courtesy to counsel who have addressed us at some length on whether or not r.2(a) of the Order in Council was satisfied, I think I ought to say a few words on the subject. It was common ground between leading counsel that-the judgment of the Court of Appeal in this case arising from the split hearing conducted by Wong, J. was a "final judgment" for the purposes of r.2(a). It seems to me, therefore, that in the special circumstances of a case such as this, the intending appellant has to satisfy this court that there is a reasonable probability that the damages he will recover if his appeal to their Lordships is successful and the issue goes to trial will be not less than the $500,000 mentioned in r.2(a). It is only then that he would have an appeal as of right and the authorities show that this court has a duty to form a view on this point. I am satisfied that while the court must not impose too heavy a burden on an intending appellant, the onus is on him to satisfy the court that he comes within r.2(a).

12. I need only say that after hearing the helpful submissions of Mr. Tony and Mr. Mills-Owens, I have reached the conclusion that the plaintiff has established that it is reasonably probable that the damages he would receive (were he successful on the issue of liability) after a hearing on the question of damages, would not be less than a sum between $1.6 and $1.7 million which is the relevant amount because of the 70% contributory negligence found against the intending appellant, a finding which was not challenged in the appeal that we heard on 5th March.

Liu, J.:

Fuad, V.-P.:

Ryan, J:

15. I agree with my Lord the Vice-President that the application ought to be dismissed. I have nothing further to add.

Representation:

Mr.	Ronny Tong, Q.C. and Miss Josephine Pinto (Hoosenally & Neo) for the Plaintiff/Applicant
Mr.	Richard Mills-Owens, Q.C. and Mr. Nicholas Pirie (Johnson, Stokes & Master) for the Defendant/Respondent.

9795-EN-1991-03-05

NG CHING HUNG AND ANOTHER v. LAU SHUN HING

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CACV000182/1990

IN THE COURT OF APPEAL	1990 No. 182
	(Civil)

Headnote

Appeal from decision of a judge finding that a defendant driver whose passing vehicle collided with a pedestrian running into his vehicle from the front of a stationary maxicab was 30% to blame.

The only evidence before the court as to the circumstances of the accident was contained in a statement to the police by the defendant driver. The evidence indicated that the defendant drove his vehicle so that it was well clear of the maxicab, that he was not proceeding at an unsafe speed, that there was no evidence of failure to keep a proper look-out. Held that there was no duty on the driver in such circumstances to sound his horn or to drive at a speed so slow that it would ensure he did not collide with a pedestrian who ran into his path and that the judge was wrong to find any negligence on the part of the driver.

IN THE COURT OF APPEAL	1990 No. 182
	(Civil)

BETWEEN

	NG CHING HUNG by his father and next friend NG TIN TSAM	Respondent/ Plaintiff

	AND

	LAU SHUN HING	Appellant/ Defendant

-----------------------

Coram: Hon. Fuad, V.-P., Power J.A & Liu J.

Date of hearing: 5 March 1991

Date of Judgment: 5 March 1991

Date of Handing Down Reasons for Judgment: 27 March 1991

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JUDGMENT

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Power, J.A.

1. This is the judgment. of the court.

2. On the 17th of February 1987 at about 8.20a.m., NG Ching-hung, the plaintiff, was crossing Ko Fai Road, Kwun Tong, when he was struck by a light goods vehicle, registration No.CN 6542, being driven by its owner, LAU Shun-hing, the defendant. The plaintiff, who suffered severe injuries, brought an action for damages for negligence against the defendant alleging, inter alia, that he failed to keep a proper lookout, drove too fast and failed to. sound his horn. It was the defence that the accident was wholly caused by the negligence of the plaintiff in that he had, inter alia failed while crossing the road, to keep any proper lookout for oncoming vehicles.

3. The trial before Wong J. took an unusual course in that only one witness, a police officer who produced a sketch plan of the scene or the accident, was called. The judge also had before him a motor vehicle Enquiry Accident Report, 8 photographs of the scene and of the vehicle and the statement of the defendant taken by a police officer some three hours after the accident.

4. The plaintiff's case rested largely upon the statement. In it the defendant said that, while driving his vehicle loaded with wood materials along Ko Fai Road at about 25-26 m.p.h. in third gear, he saw a maxicab stop "to set down and pick up passengers at a distance of about three lengths of my vehicle ahead by the roadside on my left". He said that on seeing this "I steered my car to the right travelling with my vehicle a little bit in the opposite carriage way and ready to overtake the maxicab." He went on to say that "when the head of my car reached a distance of about 2 ft. prior to the head of the maxicab, I suddenly saw a man running out from the head of the maxicab. On seeing that, I braked the car immediately. But as the distance was so close, the near side front of my car hit the said man. After the impact, I immediately stopped the car and got out of it." In answer to questions from the interviewing police officer, he said that the maxicab had stopped about 6 ft. from the near side kerb, and that he did not see the man before the accident as his view was blocked by the maxicab.

5. The trial judge when canvassing the evidence in his findings, stated that he thought it "not unreasonable to infer that he (the defendant) must be driving at a speed in the region of 30 m.p.h." He gave no indication as to what he based that inference upon. It seems that it must have been founded upon a submission by Miss Pinto in which she said that "if we take the skid mark of 11 m., and, compared it with page 120 of Bingham (sic). He (sic) must have been driving at least 30 m.p.h. - taking the skid mark". We are satisfied that, in circumstances such as these, which involved a loaded goods vehicle, without expert evidence to indicate the proper use of such a braking table which, we cannot help but remark, makes no reference to skid marks, the judge was wrong to have drawn the inference which he did as to speed. This finding is not, however, in the outcome of great significance as Mr. Tong Q.C, with Mr. Ozorio for the plaintiff, does not place any reliance thereon.

6. The trial judge was satisfied that the plaintiff was negligent, but he was also satisfied that there was negligence on the part of the defendant. This he described in the following way:

"In this case, the Defendant had clearly noticed the stationary maxicab setting down and picking up passengers before the Plaintiff ran into his vehicle. If he had looked at the side where the passengers alighted and boarded the maxicab at all or more closely he should have seen the Plaintiff earlier and the accident would have been avoided. I am satisfied on a balance of probabilities that he was not keeping a proper lookout and this is why this accident happened."

The judge apportioned the blame 70% to the plaintiff and 30% to the defendant.

7. From that decision, appeal has been brought to this court. It is the submission of Mr. Mills-Owens, Q.C., who appears with Mr. Pirie for the appellant defendant, that there was no evidence before the judge to support any finding of negligence on the part of the defendant. Having react the papers, we asked Mr. Tong to address us first. He submitted that the accident must be looked at in the light of the following facts: (i) that it occurred at a time when and at a place where workers were returning to work in the factories and shipyards in the vicinity; (ii) that the maxicab would very likely be carrying such workers; (iii) that the defendant had seen it stop well over 50 ft. ahead of him. Given those matters he submitted that the defendant should have taken precautionary measures to avoid the potentially dangerous situation that could arise if a passenger suddenly emerged from in front of the maxicab by (1) giving it a wide berth, (2) slowing down; and (3) sounding his horn.

8. It was the submission of Mr. Tong that the judge's finding of failure by the defendant to keep a proper lookout was justified upon the evidence as, had he kept a proper lookout, he would have seen sufficient to alert him to the need to take the precautionary action outlined above. He submitted that failure to heed the precepts of the Road Users Code is prima facie negligence, and that the defendant was in breach of that code insofar as he did not drive with the appropriate degree of care placed by it upon drivers proceeding in streets which pedestrians might cross. He reminded us that the onus lay on the defendant to show that the trial judge was clearly wrong in his conclusion.

9. He referred to a number of cases and, while conceding that each case depends very much upon its own facts, submitted that there were principles to be drawn therefrom which had direct application to the situation before us. He referred particularly to Foskett v. Mistry [1984] RTR 1 and to the judgment of May L.J. at p.4 where he said, quoting Lord Dunedin in Fardon v. Harcourt-Rivington (1932) 146 LT 391 at p.392,:

"The root of this liability is negligence, and. what is negligence depends on the facts with which you have to deal. If the possibility of the danger emerging is reasonably apparent, then to take no precautions is negligence; but if the possibility of danger emerging is only a mere possibility which would never occur to the mind of a reasonable man, then there is no negligence in not having taken extraordinary precautions."

Mr. Tong argued that any driver in Hong Kong must have recognized the possibility that a passenger, stepping down from a maxicab which has stopped to allow him to alight, might then immediately attempt to cross the road. The mere existence of such a possibility is not, however, in our view the real issue. What must be. determined is whether the defendant, in all of the circumstances including that possibility, acted with reasonable care. There was no evidence before the trial judge to indicate that the defendant would have been able to see more than he admitted in his statement to having seen. The thrust of Mr. Tong's argument was that, having observed the maxicab stop, given the possibility referred to above, it was incumbent upon the defendant to sound his horn and moderate his speed. we were assisted in assessing this argument by what were reported as the observations of the Court of Appeal in Moore (an infant) v.Poyner [1975] RTR 117, in which an infant who ran on to the roadway from in. front of a parked coach was struck by a passing car. Buckley L., having indicates that the driver in order to have put himself in a position where he could have stopped and thus avoided the accident would have had to slow down to something like 5 m.p.h., said at 113:

	"It seems to me that this is a case in which there was an appreciable risk that a child might be masked by the coach and that he , might run into the path of the defendant's car; but the likelihood of that happening at the precise moment at which he was passing the coach was so slight that it is not a matter which the defendant ought to have considered to require him to slow down to the extent that I have indicated.
	So on that ground I do not myself feel able to agree with the judge's decision that the defendant was guilty in not reducing his speed to below 30 mph. It is quite true that, if he was in fact driving at 30 mph, he was driving at the maximum legal speed in a built up area; but in my judgment it is a speed which ought to be regarded as a safe speed in the circumstances of this case and with the conditions obtaining in the road at that time.
	With regard to the sounding of his horn, of course with hindsight one can see that it would have been better if the defendant had sounded his horn; but the question is whether it was a precaution that he ought to have realised that he ought to take and here again for my part I think the judge's decision places too heavy a burden on a driver in circumstances such as these."

10. Mr. Tong submits that the present case is taken out of the type of situation being dealt with in Moore v. Poyner because the defendant admitted that he was aware of the likelihood that people would alight from the maxicab. we are satisfied that no such distinction can properly be drawn. To require a driver in circumstances such as this to slow down from the moderate speed of 25 to 26 m.p.h. to a speed that would ensure that he cues in a position to avoid any risk of a pedestrian running into his path from in. front of the minibus would be quite unreasonable. we are also satisfied that the suggestion that the defendant should immediately have sounded his horn places too heavy a burden on the driver. The defendant drove his vehicle so that it was well clear of the maxicab, he was not shown to have proceeded at an unsafe speed in the circumstances and there is no evidence that he failed to keep a proper lookout. When the plaintiff appeared in front of him, there was no action that he could take to avoid a collision. In our view, there was nothing before the judge to establish that the defendant failed to act with reasonable care. We were satisfied that the trial judge was wrong to find negligence on his part and that this appeal must, therefore, succeed.

Representation:

Mr. Ronny Tong Q.C. and Mr. Michael Ozorio (instructed by Hoosenally & Neo) for the Respondent/Plaintiff.

Mr. Mills-Owens, Q.C. and Mr. Nicholas Pirie (instructed by Johnson, Stokes & Master) for the Appellant/Defendant.