Chan Wing Kwong and Another v. Alan C. W. Wong
Read the full judgment text of CACV 48/1970 on BabelCite. This Court of Appeal judgment.
1. This is an action for damages for negligence against a solicitor. The plaintiff Appellants are a father and his infant son. For the moment it is sufficient to say that the negligence alleged is that the solicitor, who was formerly assigned to act professionally for the Appellants by the Director of Legal Aid, failed to institute proceedings on behalf of the Plaintiffs in respect of personal injuries to the infant alleged to have been due to the negligence of persons who may conveniently be de
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CACV000048/1970 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CIVIL APPEAL NO.48 OF 1970 (On appeal from O.J. Action No. 114/70) -----------------
----------------- Coram: Full Court (Huggins and McMullin, JJ.) Date of Judgment: 31st July, 1971. ----------------- JUDGMENT ----------------- 1. This is an action for damages for negligence against a solicitor. The plaintiff Appellants are a father and his infant son. For the moment it is sufficient to say that the negligence alleged is that the solicitor, who was formerly assigned to act professionally for the Appellants by the Director of Legal Aid, failed to institute proceedings on behalf of the Plaintiffs in respect of personal injuries to the infant alleged to have been due to the negligence of persons who may conveniently be described as "the tortfeasors". It appears that even to this day no action has been instituted against the tortfeasors but it is the contention of the Appellants that such an action would now inevitably fail by reason of the provisions of the Limitation Ordinance. The Respondent takes a different view and he persuaded the Plaintiffs, through their counsel, to consent to an order for the trial as a preliminary issue of the question whether the Appellants' cause of action against the tortfeasors was statute barred. This preliminary issue came on for trial before Mr. Justice Blair-Kerr and he held in favour of the Respondents that the cause of action was not statute-barred. It is against that decision that the Appellants now appeal to this Court. 2. It is a matter for serious criticism that the order for the trial of the preliminary issue has not been included in the record on the appeal. The only indication we have of the precise tens of the order is contained in the following passage from the judgment of Mr. Justice Blair-Kerr:
Although the Statement of Claim in the present action alleges that a draft Statement of Claim to be filed in the proposed action against the tortfeasors was either drafted or settled by counsel that draft has also not been exhibited. Nevertheless para.8 of the Statement of Claim in the present action alleges only one cause of action in the infant and his father, that being a cause of action in respect of which the period of limitation had expired before 21st January 1970, the date on which the Writ in the present action was issued. It reads:
The whole of the argument both before the Judge in the court below and before us has proceeded upon the basis that it was an action for damages for negligence where the damages claimed consisted of or included damages in respect of personal injuries to the infant, so that by virtue of s.4 of the Limitation Ordinance the period of limitation was three years. 3. Upon the appeal doubt has been expressed as to the full extent of the cause of action in the present case against the Respondent. Clearly para 8 of the Statement of Claim, which I have just cited, complains that the Respondent was negligent in not commencing proceedings on behalf of the Appellants before 2nd February 1969, but is that the full extent of the complaint? Counsel for the Appellants contends that upon this pleading it would be open to the Appellants to ask for a judgment on the basis that the Respondent negligently failed to institute proceedings within a reasonable time even though no defence under the Limitation Ordinance was set up or established. Although we are told that counsel for the Appellants has been unable to find any reported case where a case based on dilatoriness simpliciter has been before the courts I am prepared to assume for the purposes of this case that such an action would lie and that there might be circumstances in which damage could be proved. However, I am well satisfied that no such claim is raised by the pleadings in this case. The very fact that the Appellants consented to the trial of the preliminary issue under the Limitation Ordinance is a clear indication that they themselves by their counsel agreed that liability in the present action turned entirely upon the limitation point. Although we do not have the affidavits which were before him, Mr. Registrar Jones, who (we are told) made the Order for trial of the preliminary issue, would, I am sure, not have done so had he not been under the impression that a decision on this point would substintially dispose of the action. On a fair reading of the pleadings I have no doubt that the limitation point was indeed the only substantial issue upon which liability depended. 4. The decision therefore turned upon a very narrow point but to understand it it is necessary to set out the relevant provisions of the Limitation Ordinance. Section 4(1) provides that an action founded up upon tort shall be brought within six years of the date on which the cause of action accrued but proviso (i) shortens the period to three years where the action is for damages for negligence in respect of personal injuries. In the present case the injury was sustained on 2nd February 1966 and, if the Appellants' contention is correct, the cause of action became barred on 2nd February 1969. The Respondent says, however, that s.4 would not apply because the injured party was under a disability on the date when the cause of action accrued. Section 22(1) reads:
and there follow four provisos which are not material to this case. If that provision applies, then the cause of action would not be statute barred until three years from the date upon which the infant attains his majority - which date still lies some nine years in the future. But the Appellants say that the provision does not apply by reason of the unhappily worded s.22(2)(b), which reads in part:
In effect the Appellants say they could prove (and have in fact proved) that the infant was in the custody of the father at the time of the injury and that therefore they could not prove, to use the language of the sub-section, that the infant "was not .... in the custody of a parent". 5. The grounds of appeal set out in the Notice of Motion are as follows:
The second of these "grounds" was not, of course, a ground at all but when counsel for the Respondent indicated that he proposed to disregard it the Appellants applied for and, were granted, leave to amend the second paragraph by adding "in that he misconstrued the effect of the words 'in the custody of a parent in s.22(2)(b) of the Limitation Ordinance". 6. As I understand Ground I what is in truth complained of is that there was no evidence upon which the learned judge could, if he correctly directed himself as to the meaning of "custody of a parent", find that the infant appellant was not in the custody of his father. Ground 2 now alleges that he did not correctly direct himself as to the meaning of the material phrase. 7. I think it is convenient to deal with the second ground first and, as it seems to me, the complaint is based upon one brief passage in the judgment:
It is submitted on behalf of the Appellant that the learned judge took as the test of custody the existence or otherwise of "effective day to day control" and that that was wrong. Counsel relies upon a passage in Hewer v. Bryant(1) where Lord Denning M.R. said:
That passage was cited without disapproval in Todd v. Davison(2), which came before the House of Lords after the trial before Mr. Justice Blair-Kerr. In that case Viscount Dilhorne said at p.905:
Lord Pearson said at p.913:
At p.910 Viscount Dilhorne said:
8. The first question in the present case is whether the "effective day to day control" which Mr. Justice Blair-Kerr had in mind was something different from the "effective care and control" referred to by Lord Denning. Mr. Justice Blair-Kerr is a judge of great experience and in his judgment he referred to authorities which lay down the true test. However, he did so in the course of arriving at a conclusion that custody is a question of fact to be determined on the evidence rather than in order to ascertain what factors are relevant to that question of fact. There is no doubt that the addition of the words "day to day" could indicate that he regarded what I will call "immediate physical charge" as the deciding factor, whereas it is no more than one of the relevant factors. I have given this matter the most anxious consideration but if the learned judge could not see "how any court could reasonably come to the conclusion that the father has had de facto custody of any of his children since he arranged for them to be brought up by Mr. and Mrs. So" I think he must have been applying a narrower test than that which ought to be applied. On the application of the true test I think the case was by no means so clear. 9. I must therefore turn to the first ground of appeal, which raises the question whether it has been proved that the infant appellant was not in the custody of his father. 10. The infant is one of four infant children of the father, all of whom were born in the years 1958 to 1960. The father was in business but he fell upon bad times and when his financial circumstances deteriorated some four years before the date of the accident to the infant the mother deserted the father. At that time he was unemployed and for a short while he looked after the children himself. However, he could not afford to go on doing this and, to free him for gainful employment, he put the children into a nursery. Later he put them in the charge of a Mrs. SO Lee-fung, to whom he paid $40 a month each for their board and lodging. They remained with Mrs. So throughout the three years preceding the accident. The father himself found irregular employment on construction sites and usually lived wherever he happened to be working. So far as I can understand it, before the accident two of the boys went to stay with someone else in the New Territories, leaving the infant appellant and his younger sister with Mrs. So. Immediately after the accident the father appears to have taken the other three children away from Mrs. So, taking them for several days to an apartment house and then arranging for them to be looked after by a Mrs. Ip at Rennie's Mill. Later the infant Appellant was also sent to live with Mrs. Ip, where he remained for three years. The daughter at some time left Mrs. Ip and went to live with Mrs. So, where she now is. 11. The evidence of the father was at times confused and even contradictory but the learned judge accepted that up to the time of the accident the father paid Mrs. So $40 a month for each child to cover the cost of his board and lodging. He visited his children whenever he was able to do so but "his visits must have been rather irregular": there was evidence that they amounted to two or three visits a week on the average. Although there were times when he himself lived at the construction sites there were also times when he slept in the street. At the present time he has a bed space at 385 Yuen Chow Street, 1st floor, and takes his meals at a restaurant. 12. The father has paid Mrs. Ip $90 a month for each child to cover board, lodging and school fees. The judge made no finding as to who arranged their schooling but the father said in cross-examination that Mr. and Mrs. So had arranged the infant appellant's schooling for him. This was obviously an error and in re-examination he confirmed that the children did not go to school when with the So family and he asserted that he himself decided what school they should go to subsequently. The judge did refer to the fact that the father was not a Christian and that Mr. and Mrs. So took the children to church on Sunday. He expressly accepted the evidence of the father that he "arranged with other people to take care of (his children)" because he could not look after them while he was going from site to site all over the Colony. 13. There is one other matter which must be mentioned. The father did in fact take professional advice about the infant's legal rights after the accident: Mrs. So did not. The question is, of course, not what the father did but what it could confidently be expected that he would do, so that one must be careful not to attach undue weight to the action of the father: it does not necessarily follow that he acted in a way which might confidently be expected. Nevertheless this is evidence which cannot be wholly ignored. 14. It is right to say that all that is in issue is whether the father had custody: it is not necessary to decide who had custody if he did not. The infant was clearly in the custody of the father up to the time when the mother deserted the father and one has to inquire whether the conduct of the father amounted to an abandonment of care and custody. Where another person has immediate physical charge I think one must look at the relationship between the father and that other person. If, for example, the father hires a servant to exercise immediate physical charge I cannot believe that he thereby transfers "care and control" so long as he remains in a position to supervise that servant. It is a question of degree: if he goes abroad he may put himself so out of touch with the servant that he is no longer in effective care and control. On the other hand if he maintains regular contact then the mere fact that he is not at home for part of every day does not prevent his having effective care and control: see Woodward v. Hastings Corporation(3). In that case the infant was living in a home which was the father's home. That is no doubt a material consideration, but in Woodward v. Hastings Corporation the father had less personal control over the infant than had the father in the present case. There the mother (who was also "a parent") was, of course, in any event in control, but Mr. Justice Hallett clearly inclined to the view that the father himself also had care and control. In Brook v. Hoar(4) Mr. Justice Melford Stevenson said that "an essential characteristic of such custody is the right to control the infant's life coupled with the capacity to exercise that control whether arising from economic circumstances or otherwise". It was strongly argued on behalf of the Respondent in the present case that the father's economic circumstances prevented his exercising control, but that again must be a question of degree. In Hong Kong there are, alas, cases where parents because of their economic circumstances give their children away for de facto adoption. In such cases they clearly surrender care and control. But a parent who cannot provide a family home for his children does not ipso facto surrender care and control: it may be possible, though more difficult, to maintain care and control in the home of another. It would have been helpful had the learned judge said who he believed selected the infant's school, although such selection was not made until after the accident. The fact that the father allowed Mrs. Ip to take the infant to church is as consistent with the father's having no religious convictions as with his surrendering the right to choose the infant's religious eaucation and, again, the judge has not made any finding as to his attitude. He found that the father made visits to the children "whenever he was able to do so", that he has bought some clothing for them and that he has paid for their board and lodging and for school fees, but to what extent the father sought to express to Mrs. So his wishes as to the manner of the children's upbringing and to what extent she would have had regard to those wishes was not inquired into. 15. The onus was on the Appellant to establish that the claim was statute barred and for that purpose to prove that the father retained care and control. Although there was some evidence not expressly rejected by the learned judge which pointed to his having done so, I think it would be wrong for us to attempt to make any finding on the strength of the written record. With the greatest reluctance I have come to the conclusion that we must allow the appeal on the ground of misdirection and order a new trial of the preliminary issue. My reluctance is even greater than it normally would be because I cannot but agree with the learned judge that the situation is, on the evidence before us, bizarre. We have here the spectacle of an infant and his father seeking to prove that they have no right of action against persons who are said to have done them a wrong. The present action was instituted without the Appellants' first proceeding against the alleged tortfeasors. Nor is it pleaded that the tortfeasors indicated an intention to raise the statute as a defence. I am therefore especially loth to make any order which will lead to the protraction of this litigation. On the other hand a new trial will give an opportunity for a fuller investigation of the matters which are relevant to the existence or non-existence of parental care and control as defined by the cases. 16. I would order a new trial and subject to anything that may be said, would direct that the costs both here and in the court below abide the result of the action. 31st July, 1971. Representation: (1) 1970 1 Q.B. 357, 369 (2) 1971 2 W.L.R. 898 (3) 1944 K.B. 671 (4) 1967 1 W.L.R. 1336, 1341 |