Chan Wing Kwong and Another v. Alan C.W. Wong
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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
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CACV000048A/1970 IN THE SUPREME COURT OF HONG KONG APPELLATE JURISDICTION CIVIL APPEAL NO. 48 OF 1970 -----------------
----------------- Coram: McMullin J. Date of Judgment: ----------------- JUDGMENT ----------------- 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:
By the test of Donaldson J. an infant is
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:
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:
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):
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:
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.
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