Lai Pui Ling Suing By Her Brother and Next Friend Lai Hin Ho v. Ho Chi Keung and Another
Read the full judgment text of CACV 138/2016 on BabelCite. This Court of Appeal judgment was delivered on 28 August 2017.
1. This is the plaintiff’s appeal against the judgment of G Lam J on 19 May 2016 ([2016] 3 HKLRD 329) in an action for personal injuries. She sustained a severe head injury when she was wakeboarding in the waters off Sai Kung on 14 July 2010. She sued by her next friend and younger brother Lai Hin Ho (“Mr Lai”). The 1 st defendant was the registered owner of the open cruiser that was towing the plaintiff at the time and the 2 nd defendant was the coxswain.
Cites 4 cases
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CACV 138/2016 AND CACV 48/2017 CACV 138/2016 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO 138 OF 2016 (ON APPEAL FROM HCPI NO 464 OF 2014) ________________________ BETWEEN
________________________ AND CACV 48/2017 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO 48 OF 2017 (ON APPEAL FROM HCPI NO 464 OF 2014) ________________________ BETWEEN
________________________ (Heard together)
________________________ J U D G M E N T ________________________ Hon Kwan JA (giving the judgment of the court in CACV 138/2016): 1.This is the plaintiff’s appeal against the judgment of G Lam J on 19 May 2016 ([2016] 3 HKLRD 329) in an action for personal injuries. She sustained a severe head injury when she was wakeboarding in the waters off Sai Kung on 14 July 2010. She sued by her next friend and younger brother Lai Hin Ho (“Mr Lai”). The 1st defendant was the registered owner of the open cruiser that was towing the plaintiff at the time and the 2nd defendant was the coxswain. 2.Interlocutory judgment for damages was entered against the 1st defendant in default of notice of intention to defend. The action proceeded to trial on liability as between the plaintiff and the 2nd defendant, with assessment of damages against both defendants. 3.The judge concluded that the plaintiff has failed to prove that the 2nd defendant breached any legal duty of care towards her that caused the accident and her injuries and he is not liable to the plaintiff. He dismissed the plaintiff’s action against the 2nd defendant. This is the subject of the present appeal (CACV 138/2016). 4.In a subsequent hearing on 8 September 2016, the judge considered whether the default judgment against the 1st defendant should be set aside. In his decision handed down on 25 January 2017 ([2017] 1 HKLRD 1248), he ruled against the plaintiff. The statement of claim was struck out as against the 1st defendant and the action against him dismissed. This is the subject of another appeal of the plaintiff (CACV 48/2017) heard on the same day. The accident 5.As noted by the judge, no live evidence was given at the trial by any person present at the scene of the accident. 6.The plaintiff’s side did not call her former boyfriend Ho Yat Chi Ivan (“Mr Ho”), who was interviewed by Mr Lai on 12 February 2012 (the interview was recorded) and had provided a witness statement on 8 January 2013. The plaintiff had given a statement to Hung Chou Io (“Mr Hung”; he gave evidence on her behalf as an expert), which was not disclosed and she had a meeting with him but she did not give evidence at the trial. And no explanation was provided to the court why none of the other persons who had participated in the wakeboarding activities at the time were not called as witnesses. 7.The defendants did not have legal representation throughout. The 1st defendant did not file any witness statement. He was not present at the scene and only took a minimum part in the trial. The 2nd defendant filed a defence but was barred from giving evidence because of his failure to file a witness statement in compliance with an unless order. Both attended the hearing of these appeals in person. 8.The relevant facts found by the judge on the available evidence may be stated as follows. 9.The plaintiff was 27 years of age at the time of the accident. She began wakeboarding in around 2008, learning from friends. The judge found she knew the basic skills but was not very experienced or proficient in wakeboarding. 10.Mr Ho started wakeboarding in 2009. He knew that the plaintiff had not had any formal training in the sport. He arranged the activity a week before the accident. He contacted a person who ran a fish farm in Sai Kung to arrange for a motorboat and coxswain on the day. He went with the plaintiff and three colleagues. Each agreed to contribute $400 and the total sum was to be paid to the coxswain at the end of the day. They went in the morning to the fish raft in Kai Lung Wan, Sai Kung to collect the wakeboards and boarded the boat for wakeboarding at about 11 am. They told the 2nd defendant, who was driving the boat, they were not too proficient in wakeboarding. 11.The morning was uneventful. It was sunny, not particularly windy and the sea was not rough. After a morning’s session, they went back to the fish raft for lunch. The five wakeboarders and the 2nd defendant shared the bread and beer which the former brought with them. The judge accepted Mr Ho’s statement in the interview that the plaintiff had drunk about two cans of beer during lunch. There was dispute as to how much beer the 2nd defendant had drunk during lunch. 12.After lunch, they resumed wakeboarding. The wakeboarders, but not the 2nd defendant, continued to drink a little beer and water while on the boat. They took turns to wakeboard, each time for about five to ten minutes. The person who was wakeboarding wore a life jacket, but not a safety helmet. The passengers kept a look-out on the one wakeboarding and gave the latter suggestions on movements. The 2nd defendant also kept a look-out in the rear mirror. 13.After wakeboarding once in the afternoon, the plaintiff said she was tired and had a slight headache. She rested on the boat for ten minutes or so and seemed to have recovered. Sometime after 3 pm, she took to wakeboarding a second time. After a short while, as she was being towed on the wakeboard, she fell forward on to the sea and cried for help. By the time she was pulled up to the boat, she was becoming unconscious. She was quickly taken to hospital and found to have suffered acute subdural haemorrhage over the left cerebral hemisphere. She was in hospital for nine months and was assessed to have suffered a 39% impairment of the whole person. The allegations of negligence against the 2nd defendant 14.The allegations of negligence made against the 2nd defendant, as summarised by the judge, are as follows:
The judge’s findings on the allegations of negligence 15.The judge’s findings that the plaintiff has failed to establish negligence on each of the above allegations may be stated as follows: (1) Speed of the boat 16.There was no evidence that the boat was being driven by the 2nd defendant at an excessive speed. The judge found Mr Hung’s opinion on the boat’s speed inadmissible and, in any event, not probative of anything. Mr Ho, who gave the only eyewitness account, had never suggested that the boat was travelling too fast. 17.There is no appeal against this finding. (2) Safety helmet 18.There was little to support the allegation that the 2nd defendant fell below the applicable standard of care in failing to provide the plaintiff with, or to ensure that she wore, a safety helmet. In any event, it was not the duty of the 2nd defendant as the coxswain (who did not hold himself out to be an instructor or coach) to supply any personal equipment such as non-slippery shoes, gloves and safety helmets. 19.There is no appeal against this finding as well. (3) Observer on the boat 20.Mr Ho and his friends were performing the function of observers to keep a look-out of the person wakeboarding. In any event, there was nothing to suggest that the 2nd defendant failed to stop the boat soon enough after the plaintiff fell and nothing to suggest that the absence of a designated observer was in any way causative of the accident or the plaintiff’s injuries. 21.This finding was not challenged on appeal. The remaining four findings formed the subject of this appeal. (4) Driving the boat whilst his ability was impaired by consumption of alcohol 22.The judge accepted Mr Ho’s evidence in the recorded interview that the 2nd defendant had drunk beer during lunch. The 2nd defendant did not deny that he had consumed beer, what he asserted in the defence was that he was not “affected by alcohol” when he was driving[1]. 23.The judge noted it was mentioned in Mr Ho’s witness statement that the 2nd defendant drank four to five cans of beer during lunch. Having considered the evidence, he found this “inherently improbable”. There was no evidence that the 2nd defendant was affected by the consumption of alcohol. The judge declined to resolve the dispute of whether the 2nd defendant had consumed four to five cans of beer by drawing adverse inferences against him. On the evidence, all he could fairly find is that “the 2nd defendant did drink some beer during lunch but it is not known how much. More likely than not it was not a remarkable amount.”[2] 24.In the absence of evidence of how much the 2nd defendant actually drank, there was no proper basis for finding him negligent in driving the boat after having drunk some beer during lunch, or that his breath or blood alcohol exceeded the limit proposed by the Marine Department for legislation or that he was in any way adversely affected by the effect of alcohol at the time of the accident[3]. (5) & (6) Failing to advise the plaintiff not to consume any alcoholic drinks; failing to prevent the plaintiff from wakeboarding after consuming alcohol 25.The judge accepted Mr Ho’s evidence in the interview and the witness statement that the 2nd defendant did not tell the passengers they could not wakeboard after drinking alcohol, and that he did not prevent them from wakeboarding in the afternoon. The judge did not accept the 2nd defendant’s assertion in his defence that he did advise the plaintiff, presumably including other passengers, not to drink too much beer[4]. 26.The judge rejected the plaintiff’s submission that the 2nd defendant had a duty to ensure all participants in wakeboarding were sober and fit before letting them take part in the sport and was negligent in failing to ensure that nobody involved in wakeboarding had consumed alcoholic drinks. The wakeboarders were independent educated adults of full ability who could reasonably be expected to take care of themselves and to avoid taking part in water sports if they fell unwell or unfit. The 2nd defendant was only hired as a coxswain. He was not responsible for giving them training or instructions on wakeboarding. As a matter of common sense, a coxswain might suggest to a passenger he or she should not take part in wakeboarding if the passenger was obviously unfit. But save in extreme circumstances, neither the 2nd defendant’s duty of care nor his contractual power extended to dictating who could and who could not wakeboard in the afternoon. In any event, there was no evidence that the plaintiff would, more probably than not, have heeded a reminder for her not to wakeboard that afternoon merely because she had had some beer[5]. 27.Furthermore, there was nothing to suggest that the 2nd defendant knew the plaintiff was unfit to wakeboard. There was no suggestion in Mr Ho’s interview or statement that the plaintiff was behaving in any unusual manner or showing any symptom of unfitness such that anyone skilled in the sport would have stopped her from taking part. The judge took the view the fact that she had a headache in the afternoon but soon recovered did not amount to circumstances in which the 2nd defendant could be expected to try to prevent her from wakeboarding[6]. (7) Failing to provide a safe system and environment to the participants 28.The judge found it difficult to identify a part of the system that was particularly and inherently unsafe. Even now the precise cause of the accident remained unclear. He referred to Luen Hing Fat Coating & Finishing Factory Ltd v Waan Chuen Ming (2011) 14 HKCFAR 14 at §30. Taking a holistic view of foreseeability, proximity and the need to be fair, just and reasonable to impose a duty of care, he held that it would not be right to impose on the 2nd defendant a duty in effect to see to it that the participants were not injured. The participants were not the 2nd defendant’s employees. Rather, he was their contractor engaged to provide services of a limited scope. If the plaintiff failed to establish negligence on the basis of the more particular allegations discussed above, there was no basis to impose a general duty and to hold that it was breached simply because the plaintiff had sustained injuries[7]. 29.The judge further held that the maxim res ipsa loquitur does not assist the plaintiff. This is because wakeboarding is a sport with inherent risks and the accident that happened is not such that from its occurrence alone one can infer negligence on the part of the 2nd defendant[8]. The appeal in CACV 138/2016 30.Mr Meyrick Wong, who appeared for the plaintiff at the trial and before us, argued that if the judge had taken a holistic view of foreseeability, proximity and the need to be satisfied that it would be fair, just and reasonable to impose a duty of care, he should have held that the 2nd defendant owed the plaintiff a duty of care as a passenger and participant of the wakeboarding activities provided by the 1st and 2nd defendants. His arguments ran as follows:
31.The crux of Mr Wong’s submission is his contention in (4), namely that the mere consumption of alcohol by both the 2nd defendant and the plaintiff would ground the imposition of a duty of care on the 2nd defendant. We firmly reject his submission for these reasons:
32.The judge was clearly right to hold that in the absence of evidence of how much the 2nd defendant actually drank, there was no proper basis for finding him negligent in driving the boat after lunch or that he was adversely affected by the effect of alcohol at the time of the accident. As a hired coxswain, the 2nd defendant was not responsible for giving instructions or training to the participants. We agree with the judge that save in extreme circumstances, neither the 2nd defendant’s duty of care nor his contractual power extended to dictating who could or could not wakeboard in the afternoon. 33.Mr Wong sought to attack the judge’s holding in refusing to find that the 2nd defendant had consumed four to five cans of beer during lunch. We see no valid basis for this attack. The judge had fully considered the evidence in Mr Ho’s interview and statement and the inherent probabilities. He was entitled not to accept the version in Mr Ho’s statement (even though there was no evidence from the 2nd defendant to contradict this) and to conclude on the available evidence all that he could fairly find was that the 2nd defendant did drink some beer during lunch, it was not known how much and more likely than not it was not a remarkable amount. Contrary to Mr Wong’s contention, the judge has given adequate reasons in §§32 and 33 of his judgment for all his findings. We see no conflict between the finding that the 2nd defendant did drink some beer of an unknown amount and the finding that more likely than not it was not a remarkable amount. 34.Mr Wong referred to the proposals in Local Vessels Advisory Committee paper (LVAC Paper No 13/2015) dated August 2015 and the provisions in the Merchant Shipping (Seafarers) (Health and Safety: General Duties) Regulation, which came into operation on 1 December 2016, on the limit of alcohol in the breath or blood of a seafarer on board a ship. We do not think the legislative proposals and provisions, which came into being well after the accident, would in any way advance the plaintiff’s case, for the reasons given in §§35 to 36 of the judgment. 35.He repeated his submission before the judge that the 2nd defendant should have advised the plaintiff not to consume alcohol or not to wakeboard after consuming alcohol. He complained that the judge has failed to give reasons or adequate reasons for rejecting his submission. He contended that even if reasons were given, they were plainly wrong. There is no merit in any of these contentions. Adequate reasons were given in §§37 to 39 of the judgment, and the judge was plainly right in holding the way he did. 36.The appeal in CACV 138/2016 is wholly without merit. We therefore dismiss the appeal. The 2nd defendant has informed the court he would not seek costs against the plaintiff. So the only order we make is for the plaintiff’s own costs to be taxed in accordance with the Legal Aid Regulations. Hon Cheung JA (giving the judgment of the Court in CACV 48/2017): Jurisdiction and procedure 37.The Judge on his own motion and after hearing the parties set aside the default judgment entered against the 1st defendant and struck out the plaintiff’s statement of claim and dismissed her claim (‘the dismissal order’). 38.In dealing with the jurisdiction to set aside the dismissal order, the Judge held that :
1st defendant’s arguments 39.Mr Wong did not challenge the jurisdiction or procedure adopted by the Judge in making the dismissal order. Instead his case against the dismissal order is simply on the ground that the case was not plain and obvious enough for the Judge to dismiss the plaintiff’s claim. 40.Mr Wong argued that independent of the negligence of his servants, the 1st defendant still owed the plaintiff a duty of care because he was the owner and manager of the boat. It is therefore misconceived that if the 2nd defendant was found not negligent, the 1st defendant would be exonerated. 41.Mr Wong submitted that it is never in dispute that the 1st defendant had accepted monetary reward in providing services to the plaintiff for wakeboarding. It is clear that the plaintiff has a legitimate argument that the 1st defendant owed her a duty of care in that the service and management of the activity had to be safe and reach a reasonable standard and the 1st defendant had breached that duty. This is independent of the negligence of the 2nd defendant. 42.In arguing that the case was not plain and obvious enough for the Judge to dismiss the plaintiff’s claim, Mr Wong submitted that the Judge had wrongly considered that he should first have regard to the decision in favour of the 2nd defendant and whether those facts (which could only mean those findings of fact as against the 2nd defendant) could reasonably support a judgment against the 1st defendant and if not, whether it is reasonably possible that, given the opportunity, the plaintiff could have averred sufficient facts capable of support the judgment. He submitted that the Judge was putting the cart before the horse and the Court is only required to look at the pleaded case of the plaintiff and assume that she would be able to come up to proof in order to support a proper cause of action against the 1st defendant. 43.Mr Wong submitted that the more proper and correct question the Judge ought to have considered is whether the allegations and facts raised by the plaintiff in support of her cause of action for negligence against the 1st defendant was so plainly and obviously unsustainable that it raised no reasonable cause of action. Correct approach 44.I disagree that the Judge had adopted the wrong approach. The Judge set out his approach as follows :
45.In my view the issue of approach has to be considered in its context. By the time of the hearing leading to the dismissal order, the case (although between the plaintiff and the 2nd defendant) had gone beyond the stage of pleading and evidence had been heard and adjudicated upon between the plaintiff and the 2nd defendant. The Judge gave judgment against the 2nd defendant on 19 May 2016 and he directed the hearing of the dismissal order which was then heard on 8 September 2016. The plaintiff’s lawyer was given ample time to deal with the application. In resisting the dismissal order, the plaintiff did not reformulate her claim against the 1st defendant nor relied on any new evidence that she might have against the 1st defendant not previously adduced at the trial on liability of the 2nd defendant. Even up to now, Mr Wong has not relied upon any new allegations of negligence or evidence not already adduced before. In the circumstances, I cannot detect any fault on the part of the Judge to pay regard to his decision on the liability of the 2nd defendant. The allegations 46.Of the seven allegations of acts or omissions on the part of the 1st defendant which constituted negligence, four of them were based on vicarious liability by reason of the negligence of the 2nd defendant (namely, paragraph 4, particulars (i), (ii), (iv) and (v)). They had been conceded by the lawyer acting for the plaintiff (not Mr Wong who did not appear on the hearing of the dismissal order) to be not sustainable against the 1st defendant. The remaining three allegations as pleaded are that : 1) The 1st defendant, as the employer/principal of the 2nd defendant failed to instruct the 2nd defendant not to tow anyone for the purpose of wakeboarding when the person had consumed alcohol (paragraph 4, particular (iii)); 2) The 1st defendant failed to provide the 2nd defendant with any or any adequate supervision as to how to perform his works safely; (paragraph 4, particular (vi)); 3) Exposing the plaintiff or suffering the plaintiff to be exposed to a risk or injury or loss in which the 1st defendant knew of or ought reasonably to have known (paragraph 4, particular (vii)). 47.The Judge held against the plaintiff on these three allegations. Mr Wong now challenges his view on two of them. The first was particular (vi). Particular (vi) 48.In respect of particular (vi), the Judge held that :
49.Mr Wong argued that the Judge had in fact not addressed the real complaint of the plaintiff, namely, the 1st defendant had a duty to ensure that the 2nd defendant did not consume any alcohol at all given that he was going to operate a motorized boat towing passengers on wakeboards. He submitted that this was an issue that was not further broached by the Judge. 50.I disagree. In effect Mr Wong is submitting that the discharge of this duty requires the 1st defendant when he allowed the 2nd defendant to use his boat, to specifically tell the 2nd defendant that he should not drink alcohol when he is operating the boat. 51.The starting point of the 1st defendant’s duty is that he should only allow the boat to be driven by a competent driver. The plaintiff had failed to establish incompetency on the part of the 2nd defendant in operating the boat and there is no allegation or evidence that the 1st defendant knew or was aware that the 2nd defendant was prone to drink. There is also no allegation or evidence that at the time of the accident on 14 July 2010 there were many cases of water sports accidents caused by the consumption of alcohol by the boat driver which impaired his ability. This being the context of this case, we have grave doubts whether the duty now advocated by Mr Wong should be imposed on the 1st defendant in the first place. 52.At best Mr Wong can only point towards the Safety Manual for Water Skiing and Wakeboarding issued by the Hong Kong Water Ski Association (apparently published in 2007) that skier/wakeboarders, drivers and observers are recommended to save alcoholic drink until completing skiing/wakeboarding. But there is no allegation or evidence that this recommendation (which no doubt is a sensible one) is well known amongst boat owners at the time of the accident. The criminal sanction imposed on seafarers who drank was not then in force. 53.But more importantly, even if one was to proceed on the existence of a duty by the 1st defendant to warn the 2nd defendant not to take alcohol when he is on the job, what is fatal to the plaintiff’s case is the Judge’s finding that there is no evidence which showed the 2nd defendant’s ability to drive was impaired by alcohol. This is the stark fact of this case. In fact the real complaint of Mr Wong boils down to his challenge that the Judge’s finding that there was no evidence that the 2nd defendant was affected by consumption of alcohol was based on circumstantial evidence bordering on conjecture, in that the Judge could only say that ‘on the evidence all I can fairly find is that the 2nd defendant did drink some beer during lunch but it is not known how much’. 54.As discussed earlier in our judgment in CACV 138/2016 the Judge had properly made a finding on this issue. Particular (vii) 55.Mr Wong’s argument on this issue is similar to his last point except the argument is not confined to the 2nd defendant, but extends to the plaintiff as well. Again the formulation of this duty will require the 1st defendant to tell the 2nd defendant that he should ensure nobody should drink before wakeboarding. What we have said earlier about our doubts on the 1st defendant’s duty in relation to the 2nd defendant applies to this issue as well. Furthermore, the evidence is that even according to the plaintiff’s own expert, he would not put an absolute ban on wakeboarders from drinking alcohol. In the light of this, it is farfetched to impose the duty on the 1st defendant. 56.Again what is more important is the finding made by the Judge on the issue of drinking by the plaintiff which Kwan JA had addressed in paragraph 31(4) of this judgment. It is further worth repeating what the Judge said :
Conclusion 57.The Court has sympathy for the misfortune of the plaintiff but the Judge was clearly right in dismissing the plaintiff’s claim against the 1st defendant. Accordingly the appeal is dismissed. Costs 58.The 1st defendant has indicated that he would not seek costs against the plaintiff. We will only order that the plaintiff’s own costs are to be taxed in accordance with the Legal Aid Regulations.
Mr Meyrick Wong, instructed by Or & Lau, assigned by the Director of Legal Aid, for the Plaintiff (Appellant) in both cases The 1st Defendant (1st Respondent) in both cases, appeared in person The 2nd Defendant (2nd Respondent) in CACV 138/2016, appeared in person |
Cases cited in this judgment
Further hearings and rulings under CACV 138/2016