Re Lee Kau and Another

Case No.

Court

Date—

Judge—

Case Document

100%Judiciary

CACV000055A/1975

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CIVIL APPEAL NO. 55 OF 1975

(ON APPEAL FROM O.J.M.P. 471/75)

BETWEEN
	In the matter of an intended action between LEE Kau and LO Kwok-kin
	and
	In the matter of the Limitation Ordinance, Cap. 347

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Coram: Briggs, C.J., Huggins, Pickering, JJ.

Date of Judgment: 19th December, 1975.

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JUDGMENT

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Huggins, J.:

1. As we are disagreeing with the learned judge I shall try to state my reasons as shortly as I can.

2. The English equivalent of the statute we are called upon to interpret has been criticised as laying claim to be described as the worst drafted Act on the statute book. The material parts of our Ordinance are identical. We are, moreover, faced with a decision of the House of Lords in which their Lordships were divided so that it is not immediately possible to discern the ratio decidendi. Lord Denning, M.R. and Stephenson, L.J. have gone so far as to say that the ratio decidendi is indiscernible and I think the other members of this court tend to the same view. Cons, J. did not feel able so readily to ignore the decision of the House and in that I agree with him: it is in his application of the decision that I venture to differ from him. In fairness to him it should be added that we have before us only the briefest note of his reasoning, with the result that it is difficult to say at precisely what point he and I part company.

3. It is conceded that the action which it is desired to bring, being an action for damages for negligence where the damages claimed consist of damages in respect of personal injuries, is prima facie subject to a three-year period of limitation, which has expired: see proviso (1) to s.4(1) of the Limitation Ordinance. The Applicant sought leave under s.27 to bring an action despite the expiration of the limitation period, he alleging, in the terms of s.27(3), that

"the material facts relating to [the] cause of action ... included facts of a decisive character which were at all times outside the knowledge (actual or constructive) of the plaintiff until a date which was not earlier than three years before the date on which the action [would be] brought".

There is then a fasciculus of sections dealing with the interpretation of that provision, but it is necessary to cite only three of those sections:

"30. In sections 27 and 29 any reference to material facts relating to a cause of action is a reference to any one or more of the following, that is to say -

	(a)	the fact that personal injuries resulted from the negligence, nuisance or breach of duty constituting that cause of action;
	(b)	the nature of extent of the personal injuries resulting from that negligence, nuisance or breach of duty;
	(c)	the fact that the personal injuries so resulting were attributable to that negligence, nuisance or breach of duty, or the extent to which any of those personal injuries were so attributable.

	31. For the purposes of sections 27 and 29 any of the material facts relating to a cause of action shall be taken, at any particular times, to have been facts of a decisive character if they were facts which a reasonable person, knowing those facts and having obtained appropriate advice within the meaning of section 33 with respect to them, would have regarded at that time as determining, in relation to that cause of action, that (apart from any defence under section 4(1) or so much of section 8 of the Fatal Accidents Ordinance as requires actions under that Ordinance to be commenced within three years after the death of the deceased) an action would have a reasonable prospect of succeeding and of resulting in the award of damages sufficient to justify the bringing of the action.
	32.(1) Subject to the provisions of subsection (2), for the purposes of sections 27 and 29 a fact shall, at any time, be taken to have been outside the knowledge (actual or constructive) of a person if, but only if -

	(a)	he did not then know that fact;
	(b)	in so far as that fact was capable of being ascertained by him, he had taken all such action (if any) as it was reasonable for him to have taken before that time for the purpose of ascertaining it; and
	(c)	in so far as there existed, and were known to him, circumstances from which with appropriate advice within the meaning of section 33 that fact might have been ascertained or inferred, he had taken all such action (if any) as it was reasonable for him to have taken before that time for the purpose of obtaining appropriate advice as aforesaid with respect to those circumstances.
	(2)	In the application of subsection (1) to a person at a time when he was under a disability and was in the custody of a parent, any reference to that person in paragraph (a), (b) or (c) of that subsection shall be construed as a reference to that parent."

4. The "material fact" which the applicant says was not known to him until August of this year is that the accident was due to the negligence of the proposed Defendant - or, in the language of the statute, that his injuries "resulted from the negligence constituting [the] cause of action". Prior to the decision of the House of Lords in Central Asbestos Co. Ltd. v. Dodds (1973) A.C. 518 (on appeal from Smith v. Central Asbestos Co. Ltd. (1972) 1 Q.B. 518) the Court of Appeal had held in a series of cases that time did not run against a man "until he knew that he had a worthwhile cause of action": see per Lord Denning, M.R. in In re Harper v. National Coal Board (intended action) (1974) 1 Q.B. 614, 620. Applying that test one would be bound to say that if the Applicant here did not know that the accident he suffered was due to the negligence of the proposed defendant he could not have known that he had a worthwhile cause of action.

5. There is no doubt that the speeches in Dodds's Case at first sight showed a remarkable lack of unanimity. There were two extreme views, each held by two of their Lordships, and Lord Pearson took a middle course. Lord Pearson agreed with Lord Simon of Glaisdale and with Lord Salmon that a person's lack of knowledgethat he has a worthwhile cause of action is not "a material fact". As Lord Pearson said at page 544:

"The phrase 'the material facts' .... refers to matters of fact, not conclusions of law".

How, then, did Lord Pearson come to the conclusion that the intended plaintiff did not know the material facts whereas Lord Simon and Lord Salmon thought that he did? He said that the material facts which the plaintiff did not know were that the proposed defendant had been at fault and that the plaintiff's injuries were attributable to that fault. Lord Reid and Lord Morris of Borth-y-Gest went further: they thought that the fact that the disease contracted by the plaintiff was attributable to the actionable negligence of the defendant was a material fact - the view which was rejected by all three of the other judges. With respect it was not necessary for them to go as far as they did, but it seems to me that they could not have held that view unless they also thought, as did Lord Pearson, that the fact that the employer was at fault and that the workman's injuries were attributable to that fault were material facts. That was the common factor which resulted in the dismissal of the appeal and in my view it is that common factor which should be regarded as establishing the proper test to be applied in these cases.

6. Applying that test I am satisfied that on the evidence before us - evidence which may be challenged hereafter - the Applicant did not know until August of this year that the proposed defendant was at fault. No doubt he suspected that the defendant was at fault but, even if he had been conscious of (and had understood) the maxim res ipsa loquitur, he would not have known whether any other inference than one of negligence could be drawn from all the available evidence: not until his advisers made a full inquiry would it be known whether in truth the lorry had run off the road through the fault of the defendant or as a result of matters over which he had no control. Not only did the Applicant not know whether his injuries "resulted from the negligence" of the defendant but he did not know whether they "were attributable to that negligence". Those facts were "facts of a decisive character" and not only were they not known to him but "he had taken all such action as it was reasonable for him to have taken ... for the purpose of ascertaining [them]", including action to obtain advice.

7. It is for these reasons that I would allow the appeal and grant leave under s.27 of the Ordinance.

19th December, 1975.

Representation:

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CIVIL APPEAL NO. 55 OF 1975

(On appeal from O.J.M.P. 471/75)

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	IN THE MATTER of an intended action between LEE Kau and LO Kwok-kin
	and
	IN THE MATTER of the Limitation Ordinance, Chapter 347.

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Coram: Briggs, C.J., Huggins and Pickering, JJ.

Date of Judgment: 19th December, 1975.

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JUDGMENT

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Pickering, J.:

8. I agree with my brother Huggins J. that there is no doubt that the speeches in Dodd's case⁽¹⁾ show a remarkable lack of unanimity. I would differ, however, with my learned brother in his comment that the speeches "at first sight" show such a lack. For my part I have found that lack to remain both at first sight, second sight, and upon repeated readings of the speeches.

9. In re Harper v. National Coal Board⁽²⁾ Lord Denning, M.R. with great clarity and felicity, analysed the speeches in Dodd's case and in so doing extricated the Court of Appeal and incidentally this Court from the difficulties inherent in the different approaches displayed by those speeches. Lord Denning said:

"	One thing is clear. We can only accept a line of reasoning which supports the actual decision of the House of Lords. By no possibility can we accept any reasoning which would show the decision itself to be wrong. The second proposition is that if we can discover the reasoning on which the majority based their decision, then we should accept that as binding upon us. The third proposition is that, if we can discover the reasoning on which the minority base their decision, we should reject it. It must be wrong because it led them to the wrong result. The fourth proposition is that, if we cannot discover the reasoning on which the majority based their decision, we are not bound by it. We are free to adopt any reasoning which appears to us to be correct, so long as it supports the actual decision of the House.
	In support of those propositions. I would refer to the speech of Lord Dunedin in Great Western Railway Co. v. S.S. Mostyn (Owners) [1928] A.C. 57 73-74, and of Lord MacDermott L.C.J. in Walsh v. Curry [1955] N.I. 112, 124-125, and of Viscount Simonds in Midland Silicones Ltd. v. Scruttons Ltd. [1962] A.C. 446, 468-469.
	Applying the propositions to Smith v. Central Asbestos Co. Ltd. [Dodd's case] [1973] A.C. 518, the position stands thus: (1) the actual decision of the House in favour of Dodd must be accepted as correct. We cannot accept any line of reasoning which would show it to be wrong. We cannot therefore accept the reasoning of a minority of two - Lord Simon of Glaisdale and Lord Salmon - on the law. It must be wrong because it led them to the wrong result. (2) We ought to accept the reasoning of the three in the majority if we can discover it. But it is not discoverable. The three were divided. Lord Reid and Lord Morris of Borth-y-Gest took one view of the law. Lord Pearson took another. We cannot say that Lord Reid and Lord Morris of Borth-y-Gest were correct: because we know that their reasoning on the law was in conflict with the reasoning of the other three. We cannot say that Lord Pearson was correct: because we know that the reasoning which he accepted on the law led the other two (Lord Simon of Glaisdale and Lord Salmon) to a wrong conclusion. So we cannot say that any of the three in the majority was correct. (3) The result is that there is no discernible ratio among the majority of the House of Lords. In these circumstances I think we are at liberty to adopt the reasoning which appears to us to be correct.
	In my opinion we should adopt the reasoning which was accepted in this court in the long line of cases before the decision of the House of Lords. None of these was overruled. They may therefore be said to be binding on us. But in any case we should follow their reasoning especially as it was accepted by two of their Lordships who were in the majority".

What in fact the Master of the Rolls was there adhering to was the principle established in a series of cases in the Court of Appeal and quoted by my lord the President to the effect that time did not run against a man until he knew that he had a worthwhile cause of action. This principle was established in such cases as In re Pickles v. National Coal Board (Intended Action)⁽³⁾; Skingsley v. Cape Asbestos Co. Ltd.⁽⁴⁾; Newton v. Cammell Laird & Co. (Shipbuilders and Engineers) Ltd.⁽⁵⁾; Drinkwater v. Joseph Lucas (Electrical) Ltd.⁽⁶⁾; Smith v. Central Asbestos Co. Ltd.⁽⁷⁾ and Knipe v. British Railways Board⁽⁸⁾.

10. This, as it seems to me, is the principle to which we must adhere since the ratio decidendi of the speeches in the House of Lords in Dodd's case is so obscure that it would be an injustice to rely upon that case to deprive the present appellant from his opportunity of bringing an action.

11. We are, of course, acting on the ex parte statement of the appellant and the proposed defendant has not been heard, but he will have an opportunity of canvassing the matter, if he so wishes, on the hearing inter partes. I would concur in allowing the appeal and giving leave for the purposes of the Ordinance with costs to be costs in the intended action and to be taxed eventually under the Legal Aid Regulations.

Representation:

Oswald Cheung, Q.C., and Edward Chan (D.L.A.) for appellant.

(1) [1973] A.C. 518

(2) [1974] 1 Q.B. 614

(3) [1968] 1 W.L.R. 997

(4) [1968] 2 Lloyd's Rep. 201

(5) [1969] 1 W.L.R. 415

(6) [1970] 3 All E.R. 769

(7) [1972] 1 Q.B. 244

(8) [1972] 1 Q.B. 361