Own Sheung v. The National Insurance Co Ltd
Read the full judgment text of CACV 28/1977 on BabelCite. This Court of Appeal judgment.
1. The respondent was an insurer within the provisions of section 2 of the Motor Vehicles (Third Party Risks) Ordinance and insured a lorry AE7310, the property of Leung Hung Tat. In June 1971 the plaintiff employed Leung Hung Tat and his lorry for the purpose of transporting a piece of heavy machinery used for moving earth and called a traxcavator. The appellant was the driver of the traxcavator and was a passenger on the lorry on which it was being transported. An accident occurred and the app
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CACV000028/1977
Coram: Briggs, C.J., Huggins & Pickering, JJ.A. Date of Judgment: 20th February, 1978. ----------------- JUDGMENT ----------------- 1. The respondent was an insurer within the provisions of section 2 of the Motor Vehicles (Third Party Risks) Ordinance and insured a lorry AE7310, the property of Leung Hung Tat. In June 1971 the plaintiff employed Leung Hung Tat and his lorry for the purpose of transporting a piece of heavy machinery used for moving earth and called a traxcavator. The appellant was the driver of the traxcavator and was a passenger on the lorry on which it was being transported. An accident occurred and the appellant was seriously injured. The appellant recovered a judgment for damages for his injuries in the sum of $351,700 in April 1974 against the driver of the lorry and Leung Hung Tat. This judgment was unsatisfied and so the appellant called upon the respondent to pay. 2. The Statement of Claim states that the appellant employed Leung Hung Tat for the purposes referred to above. The insurance policy contained a clause which said that the defendant was not to be liable for injury to any person caused in or upon the insured vehicle at the time of the event out of which any claim should arise "other than a passenger carried by reason of or in pursuance of a contract of employment." The trial judge held that the appellant was not on the lorry as a passenger in pursuance of a contract of employment. He held that the phrase "a contract of employment" was synonymous with a contract of service and the phrase could not apply to a contract for the hire of a vehicle as was the case here. He therefore found in favour of the respondent. The appellant appealed. 3. In the trial before us the appellant sought to argue that the appellant was an employee of the owner of the lorry because it was necessary for him to be present with the traxcavator which the lorry was carrying and to that extent he was an employee of the owner of the lorry, albeit a volunteer. It was necessary for him to be there in order to load and unload the traxcavator and to be at the disposal of the driver of the lorry in case of any accident, such as a puncture. The whole case as presented in the court below was that the appellant employed the lorry and its driver. It was never suggested that the appellant was an employee of the owner of the lorry. This point was neither pleaded nor argued in the court below. Nor does it form one of the grounds of appeal. We do not think it right therefore that the point should be argued before us and we dismiss the appeal with costs. 4. We came to this conclusion with great reluctance. This is a case in which a man was awarded very heavy damages for very serious injuries caused by the negligence of the driver of the lorry. He has been left, in effect, with an empty judgment. This case again brings to the notice of the courts the necessity for a Motor Insurers' Bureau in Hong Kong. It is almost certain that if such a body had existed here, the appellant would not have been left with an empty judgment. In the past, when a suggestion has been made to establish a Motor Insurers' Bureau the matter has been deflected to another issue, namely, whether a system of no-fault insurance of motor vehicles should be brought into force in this territory. We think the two matters are completely different and we respectfully reiterate that in our view the time has come for the establishment of a Motor Insurers' Bureau in Hong Kong.
Representation: Jackson-Lipkin, Q.C. & Stevenson (D.L.A.) for appellant. Swaine, Q.C. & D. Chang (Hoosenally & Co.) for respondent.
----------------- Coram: Briggs, C.J., Huggins and Pickering, JJ.A. Date of Judgment: 20th February, 1978. ----------------- JUDGMENT ----------------- Huggins, J.A.: 5. Counsel for the Appellant have not thought it proper to argue before this Court the matters which are raised by the Notice of Appeal as we interpret it and I agree that the appeal must be dismissed. 20th February, 1978. Representation: |