Re Lee Kau and Another
Read the full judgment text of CACV 55/1975 on BabelCite. This Court of Appeal judgment.
2. In April 1973, he applied to the Legal Aid Department as he wished to recover damages in respect of his injuries. In June, his application was refused on the merits: the reason given was that it was not thought that he had shown reasonable grounds for commencing proceedings. The appellant appealed against this decision to the Registrar but this was dismissed in July 1973. In July 1973, the same month, the appellant again applied to the Legal Aid Department and again his application was refuse
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CACV000055/1975 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CIVIL APPEAL NO. 55 OF 1975 -----------------
Coram: Briggs, C.J., Huggins & Pickering, JJ. Date of Judgment: 19th December, 1975. ----------------- JUDGMENT ----------------- Early in the morning of the 9th July, 1972, the appellant was travelling in the back of a truck along the Lion Rock Tunnel Road to Shatin going in the direction of Fanling. His wife was sitting beside the driver and he was in the back asleep. The truck left the road and overturned and the appellant was thrown out. He was rendered unconscious and only regained consciousness when he was in hospital. He suffered serious injuries. 2. In April 1973, he applied to the Legal Aid Department as he wished to recover damages in respect of his injuries. In June, his application was refused on the merits: the reason given was that it was not thought that he had shown reasonable grounds for commencing proceedings. The appellant appealed against this decision to the Registrar but this was dismissed in July 1973. In July 1973, the same month, the appellant again applied to the Legal Aid Department and again his application was refused for the same reason. In June 1975, he applied to an area advisory body and further representations were made to the Legal Aid Department. On the 9th September, 1975, he was informed by the Legal Aid Department that he had a worthwhile cause of action against the driver of the truck. 3. By this time the period of three years prescribed by section 4 of the Limitation Ordinance had expired. 4. The appellant is a vegetable hawker and is without the financial means necessary to seek advice from a solicitor. After receiving advice from the Legal Aid Department in September 1975 that he had a worthwhile action, the appellant applied to the Court for leave to bring an action under Part III of the Limitation Ordinance, which deals with the extension of limitation periods in certain cases. This was refused and this appeal is an appeal against that refusal. 5. It is agreed that the Legal Aid Department made a mistake when the original applications were being considered by them and that their refusal to grant legal aid was based on erroneous information for which the appellant was in no way to blame. 6. I agree with Lord Denning's succinct statement on the correct interpretation of the relevant portion of the law. The English Act is in similar terms to the Limitation Ordinance in Hong Kong. In the case of In re Harper v. The National Coal Board(1) he was dealing with a case of five men who had done all that it was reasonable for them to do in order to find out whether they had a claim and who were not at fault in any way in only discovering that they had a claim after the three year period of limitation had expired. 7. In such a case, he said:-
8. In the present case, the appellant himself did all that was reasonable for a man in his position to do. He laid the correct facts of the accident as he knew them before the Legal Aid Department and was told, and told more than once, that on those facts he would not be able to succeed in an action for damages for negligence. It was not until the 9th September, 1975, that he knew that he had a worthwhile action. In those circumstances time should not run against the appellant until that date. 9. Mr. Oswald Cheung, Q.C., who appeared for the appellant, drew the court's attention to the case of Smith v. The Central Asbestos Company(2). This case was discussed at length by the Court of Appeal in the case of In re Harper v. The National Coal Board(1). I agree with respect, with the decision of that court that there is no discernible ratio decidendi in Smith v. The Central Asbestos Company(2) and that though that is a decision of the House of Lords, it is not a decision which is helpful in the present appeal. 10. In my view, this is a clear case for giving leave for the purposes of the Ordinance. The appeal is therefore allowed and leave is granted to the appellant for the purposes of the Ordinance. Costs are to be costs in the intended action; and taxed under the Legal Aid Regulations.
Representation: Cheung, Q.C., & E. Chan (D.L.A.) assigned for appellant. (1) (1974) 1 Q.B. 614. (2) (1973) A.C. 518. IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CIVIL APPEAL NO. 55 OF 1975 (ON APPEAL FROM O.J.M.P. 471/75)
----------------- Coram: Briggs, C.J., Huggins, Pickering, JJ. Date of Judgment: 19th December, 1975. ----------------- JUDGMENT ----------------- Huggins, J.: 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
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:
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:
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) -----------------
----------------- Coram: Briggs, C.J., Huggins and Pickering, JJ. Date of Judgment: 19th December, 1975. ----------------- JUDGMENT ----------------- Pickering, J.: 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. 2. 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:
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). 3. 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. 4. 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 |