Lee Yu Cheung v. Accelspeed Co Ltd

DCCJ000827/1982

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CIVIL JURISDICTION

ACTION NO. 827 OF 1982

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Coram: Judge Caird in Court.

Date: 1 September 1982

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JUDGMENT

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1. This is a claim for alleged general and special damages totaling $1,888 arising out of a tour organized by the defendant to Shiu Hing - Ko Hwak - Canton, China, from the 1st to 4th August 1980, which tour had among its participants the claimant and a female companion, a Miss Chan.

2. The matter commenced in the Small Claims Tribunal and the claim was presented in a variety of ways. There have been no formal pleadings submitted by the plaintiff although there has been a formal defence and counter-claim filed by the defendant. However, at the hearing Miss Remedios representing the defendant elected not to pursue a counterclaim.

3. The plaintiff educated in the U.S.A was qualified as an attorney and presented his case in person. In view of the way in which this case came before me by way of transfer from the Small Claims Tribunal, I did not concern myself with what would be irregularities in pleading, in fact Miss Remedios no doubt motivated by the same considerations expressly did not elect to take any pleading points, and I am indebted to her for the way in which she for purposes of answering plaintiff's claim marshalled the various heads of claim sought to be relied on by him.

4. The plaintiff gave evidence that two days before the tour was scheduled to take place he called at defendant's offices, and spoke to a Mr. Fung to enquire about joining this tour. In his evidence, the plaintiff claimed that he specifically checked on two matters. First what were the travel documents required? Secondly, whether the company had obtained tickets for the non-stop Canton-Hung Hom train? He was handed a copy of an itinerary. A further matter of importance to the plaintiff was that wild animal food was one of the blandishments offered by the defendant and he asserted that this was of importance to him. In evidence he claimed not to have received any such food although there was evidence adduced by the defence as to a dish being served of "fruit eating fox".

5. I am prepared to accept that in his agitation arising out of matters which I shall traverse later the plaintiff may not have noticed any distinctive wild animal food dish placed before him, indeed such a dish may to the uninitiated bear a resemblance to dishes or rather a dish with which he may have been familiar. One need only draw on one's own experience in observing those eating, say rabbit or snake, for the first time and not being informed of the nature of the meat concerned. Accordingly, I do not propose to attribute any significance to this in relation to his claims.

6. The plaintiff claimed that he was told by a representative of the defendant that he needed to take only his Hong Kong Re-entry Permit and his Entry Permit into China and that at no time was he informed that he should take with him his Hong Kong Identity Card, this as he later found out being essential.

7. The itinerary followed an advertisement seen by him which had drawn his attention to the defendant's services and based on a "representation and the itinerary I entered into the contract".

8. I would add that Mr. Fung when giving evidence for the defendant said that at the material time, the defendant was "a special customer", he explained this was caused by the defendant booking for two persons, that he paid in full in advance and did not elect to attend a tea-party the evening before departure as did most people upon joining such a tour party.

9. The plaintiff during cross-examination asserted that because of his travel experience in the U.S.A. and Canada he always made enquiries as to the travel documentation required.

10. On the 1st August the plaintiff and his companion, Miss Chan, arrived at the Hong Kong - Macao Wharf shortly after 7 a.m. intending to board a jet-foil which was to leave after 8.00 a.m. About 8 a.m. he went through Immigration and was told then that he needed his Hong Kong Identity Card, he having left his at home, according to his evidence, deliberately. The plaintiff immediately informed the tour leader, a Miss Leung, of the position and asked her what he should do. She suggested that he go home (Pokfulam) and obtain his Identity Card and that he should rejoin the group in Macao, this the plaintiff proceeded to do and he obtained the next available boat to Macao which happened to be a hydrofoil arriving, as I understand the evidence, at a different Pier at Macao.

11. Meanwhile, Miss Margaret CHAN Yuk-lan travelling on the jetfoil had, as she related in evidence, a conversation with the tour leader and a Mr. Koo, someone apparently "with influence" with the tour company who came and talked to Miss Leung and said that arrangements for Miss Chan to wait for Mr. Lee the plaintiff, at the border were "improper". Some discussion in Punti took place and at its conclusion they asked her to wait for Mr. Lee at the Macao Wharf saying that after she had met him a member of the travel company's staff would take them to join the tour, this at the border. She fell-in with this suggestion and waited at the Macao Wharf taking care of two pieces of luggage. There were of course a number of people disembarking.

12. Miss Chan waited at the jet-foil pier whilst plaintiff in hot pursuit is a hydrofoil arrived at a different pier. This aspect of the whole disastrous (to the plaintiff) episode was described in her closing submission by Miss Remedios as a "merry muddle".

13. The plaintiff arrived at Macao and leaving his pier, obtained the services of a taxi and then proceeded with all despatch to the frontier. where he went through Customs and Immigration officials representing both Macao and China, and met the group. When he first saw the tour leader, she asked where his friend was, he asked what happened, upon which Miss Leung replied "she had told my friend to wait for me at Macao - Hong Kong Wharf". The plaintiff asked Miss Leung to come with him. She said "this was impossible". I would add in passing that the tour leader at this stage obviously had the dilemma of electing to stay with her tour group or going with the plaintiff to find the one "lost lamb". I add that the plaintiff had been through the border backwards and forwards, a total of three times without finding his friend and luggage.

14. After speaking to Miss Leung, the plaintiff once again went through the Customs and Immigration checks returning to Macao. One cannot help but he impressed by, the way in which the plaintiff was able to pursuade the officers to allow him through so quickly and also, with the obvious sympathy and understanding extended to him by officials from both jurisdictions. The plaintiff returned to Macao Ferry and found Margaret Chan who was accompanied by a representative of the defendant company. They boarded a taxi again, and travelled back to the border where plaintiff once again checked through Customs, as did Miss Chan for the first time.

15. The plaintiff obtained his documents back from the Chinese officials, he having left these with them. The tour group was not waiting for them, so as plaintiff had the itinerary, they went to the next stop, hiring a taxi operating within the peoples Republic of China, this after discussion with the representative of the tour company. Reimbursement for this taxi journey has been made by the defendant company.

16. Meanwhile the tour party had travelled on an unscheduled side trip this to placate the other members of the group while Miss Leung was trying arrange for them to wait for the plaintiff and his companion to show up.

17. After plaintiff was reunited with the group, the tour proceeded according to the itinerary, until the 4th August when they returned to Hong Kong. The return journey was by way of train which stopped at Lo Wu when passengers disembarked, went through Immigration and joined the Lo Wu-Hung Hom train. There was a discrepancy in the evidence here, plaintiff claiming that some considerable time was spent at the border, Miss Leung on the other hand asserting that the time spent was only some 10 or 15 minutes. Also the plaintiff claimed that he and Miss Chan lad to stand from Canton to Lo Wu whilst it was assented by Miss Leung that members of the group had to stand only on the Hong Kong part of the journey.

18. It may be that the plaintiff's memory was at fault in this regard.

19. It was common ground that the tour group was to make a tour by coach of Canton during the morning of the 4th, but that because of the change of train, this had to be cancelled and as stated by Miss Leung a substitute tour was arranged for the evening of the 3rd, but not many tourists availed themselves of this opportunity as they wished to shop. The plaintiff asserted that he did not hear of this substituted tour which Miss Leung said was announced at dinner on the evening of the 3rd.

20. It appears that normally bookings are made by the defendant with the Chinese travel Authorities to travel by the express train, but tickets, are not issued until the party arrives at Canton and on this occasion the defendants had not been told of the change until the evening of the 3rd August.

21. It is obvious that other members of the tour party felt rancour over that I believe to be a serious curtailment of the tour, resulting in very considerable loss of enjoyment for all those partaking. Accordingly the defendant ordered two tables for supper for the 10th August and hosted the tour party or rather those wishing to attend, at a cost of $2,360 at Hong Kong and Kowloon Diamond Restaurant, Lung Kee Building. The plaintiff and Miss Chan elected not to attend this banquet.

22. The itinerary handed to the plaintiff when he made his arrangements and entered into the contract with the defendant on about a the 30th July contained the following information or conditions under the general head "responsibilities"-

23. Although the English version had not been certified, the parties agreed the foregoing translation and my interpreter confirmed its accuracy after some alterations had been agreed.

24. For the defendant, Miss Leung and Mr. Fung gave evidence. The gravamen of their evidence being that Miss Leung explained that there could be alterations to travel arrangements because the Chinese Authorities had complete control, these matters being beyond the control of the company. Mr. Fung said that this was standard advice given, and it is found to be necessary, because on one previous occasion the defendant company had found that a tour group had to return with its journey broken at Lo Wu, rather than as arranged by the express train.

25. I don't need to traverse the evidence adduced by the defendants in any detail. Miss Leung denied that it was she who suggested that Miss Chan wait at Macao Pier for the plaintiff, asserting that this was something Miss Chan did of her own volition. The events at the border including the side trip undertaken by the tour party while waiting for the plaintiff and Miss Chan were described by Miss Leung as were the discussions she had with the plaintiff upon his arrival at Shek Kee China Travel Association.

26. Miss Chan gave evidence for the plaintiff, I was most impressed with her and believed her to be completely honest and possessed of complete and accurate recall.

27. I was also impressed with the plaintiff although I believe he may have at time been rather abrasive in his relations with the servants and agents of the defendant company. He in answer to one question in cross-examination as to his attitude, stated "I know my rights".

28. In the event, I accept the evidence of the plaintiff and Miss Chan clearly preferring their evidence to that of Miss Leung and Mr. Fung and believe that the plaintiff was

29. I turn to Clause 1 on the itinerary and note it reads under the heading "important notes for the members of the tour".

There was no mention of the documents required for the return to Hong Kong.

30. It was put to the plaintiff by Miss Remedios in cross-examination that there was a legal requirement to carry identity cards in Hong Kong at all times. The plaintiff replied that at that time this was not so. There was no evidence adduced on behalf of the defendant to contradict this.

31. The plaintiff bases his claims essentially on

The Law

(a) Negligent Advice

32. It is clear that a defendant may be liable in both tort and contract arising out of the same fact situation Esso Petroleum Co. Ltd. v. Mardon ⁽¹⁾. Therefore in the instant case liability may be founded in tort for negligent advice and in contract for breach of warranty or under the Misrepresentation Ordinance.

33. It is also set clear law that when damages in negligence may arise these are not restricted to economic loss but may cover the loss of enjoyment resulting from a holiday that has been spoiled Ichand v. Frangoulis ⁽²⁾ where damages were awarded in respect of a claim for negligence and the comparable cases in contract were applied as to the appropriate measure of damages i.e. Jarvis v. Swans Tours Ltd. ⁽³⁾ and Jackson v. Horizon Holidays Ltd. ⁽⁴⁾.

34. I turn to the plaintiff's claim based on negligent advice. It is trite law that any claim based on negligence must be founded upon the Existence of a Duty recognised at law, which must be established independently of carelessness and foreseeability.

35. The duty of care in giving advice can only arise where the person giving the advice carries on the business or profession of giving advice of the kind sought. Otherwise there is no accepted standard of skill and care which the advisee can legitimately expect to be observed Mutual Life and Citizens Assurance Company Ltd. v. Evatt ⁽⁵⁾. This amounted to a redefinition and extension of the principle applied when new law was created in Hedly Bynne & Co. Ltd. v. Heller & Partners Ltd. ⁽⁶⁾.

36. It was established in Evatt's case, upon certain agreed facts, that the Assurance Company's business did not include the giving of advice on investments. Evatt himself was a policy-holder with the defendant company which company owned shares in a company in which Evatt had an interest and contemplated investing further. The defendant did not claim to have the required skill and competence to give advice or to exercise the necessary diligence to give reliable advice.

37. A majority of the Privy Council held that the only duty owed to Evatt was to give him an honest answer to his inquiries.

38. In the instant case, I believe that Travel Agents holding out that they arrange tours, have as a consequence, a duty to advice on arrangements made for both individuals and tour groups as to what documentation is required to enable their clients to traverse frontiers, including Visas end such other documents sufficient to enable their clients to enter the country to which the agent has arranged for them to travel, together with such documentation as would enable the tourists to return to their. country of origin, in the instant case, Hong Kong.

39. In my view, accepting the plaintiff's evidence as I have the defendant was negligent in not advising Mr. Lee that he had to have with him his Hong Kong Identity Card, together with his Re-entry Permit into Hong Kong and his Entry Permit into China.

40. The economic loss sustained by the plaintiff was his taxi fares from Macao Pier to Pokfulam and return. There was no loss sustained in respect of his jet-foil ticket he having been supplied this by Miss Leung, as part of his package. The taxi fare to the border of Macao and China from the pier were incurred and the Company would be liable for taxi fares within the People's Republic of China which fares have already been paid.

41. I believe the amount claimed for the round trip between Hong Kong Macao Wharf and plaintiff's residence at Pokfulam Road, at $15 to be a reasonable amount.

42. Plaintiff complained about his holiday being spoiled and also that he suffered loss of enjoyment from annoyance conveyed to him by other tourists in the party.

43. In considering what flows from defendant's negligent advice one must take into account the change which occurred on board the jetfoil when Miss Chan agreed to wait at Macao Wharf Pier. It was this which primarily brought about the plaintiff's loss of enjoyment as he went to the border and through the customs formalities while she was still waiting at the Pier. Had he met her as arranged they would have caught up with the tour party and not lost any appreciable time and suffered minimal if any inconvenience or loss of enjoyment.

44. In my view the "loss of enjoyment" under this head attributable to defendant's negligence is minimal.

(b) Plaintiff's claim as founded in Contract

45. In Jarvis v. Swans Tours Ltd. ⁽³⁾ Lord Denning held in respect of a claim for a spoil holiday that ''...it is not necessary to decide whether they were representations on warranties because since the Misrepresentation Act 1967 there is a remedy in damages for misrepresentation as well as for breach of warranty".

46. I observe that Lord Denning's approach has not fount favour in some academic circles, it being postulated that the distinction between damages in Contract and Tort does not seem to have been appreciated.

47. In the circumstances with which I have to deal I adopt Lord Denning's approach, this in view of the enactment of the Misrepresentation Ordinance, Cap.284. Section 3(3) equates to Section 2(3) of the Misrepresentation Act 1967 (H.K.) which section has been said to provide the only "dim clue" to the test to be applied in assessing Damages.

48. I am in no doubt that the statements made on behalf of the defendant relating to the return journey Canton - Hong Kong in the circumstances as accurately and truthfully described by the plaintiff amounted at the least to misrepresentation and accordingly any damages incurred by the plaintiff must be made good by the defendant.

(c) Damages for Miss Chan's loss of enjoyment

49. Miss Chan was accompanied the plaintiff, he having entered into the contract for the tour on her behalf. As in Jackson v. Horrison Holidays Ltd.⁽⁴⁾. The plaintiff is not a trustee for Miss Chan but nevertheless following that case I hold that Mr. Lee can recover damages not only for the diminution in the value of the holiday and the discomfort vexation and disappointment which he himself has suffered, but also for the discomfort, vexation and disappointment suffered by Miss Chan. I appreciate I an extending the principle expressed in the case referred to from wife and children to a travelling companies outside the bounds of wedlock, however to me the important criteria were that the plaintiff:-

(d) Exemption Clause

50. Any clause which is intended to provide a contracting party with a means of evading liability in tort or contract must be expressed clearly and without ambiguity, otherwise it will be ineffective.

51. It must clearly state what the intention is. Hollier v. Rambler Motors (AML) Ltd.⁽⁷⁾ is an example where a garage owner was liable for loss or damage due to its own negligence despite an attempt to provide exemption by using the words "...not responsible for damage caused by fire to customers cars on the premises".

52. Per Salman L.J. where a party "wants to include in it (a contract) a term exempting himself from liability for his own negligence. To be effective that term must sufficiently clearly convey that it is liability for negligence which is being excluded".

53. To this I would add misrepresentation or breach of warranty.

54. In the instant case the terms of the contract, as earlier quoted, do not in my view exempt the defendant, from liability for its own negligence or its misrepresentation.

(e) Measure of Damages

55. As earlier stated the damage caused by reason of the negligent advice is minimal. In respect of the misrepresentation the plaintiff had his holiday cut short by the best part of a half day - which time was to be spent touring Canton. This created great deal of vexation and disappointment, also there was discomfort experienced at the border - Hong Kong-China and in respect of the train journey within this territory.

56. My award for general damages is to include damages claimed as itemised in heads 3, 4, 5 and 6 of the letter dated 11th August, 1980 from the plaintiffs then solicitors to the defendant. I disallow the toll call Canton Hong Kong as an item of special damage. The other items of special damage were not contested as to quantum but only as to liability. Miss Chan suffered the sane discomforts, vexation and disappointment.

CONCLUSIONS

57. I award to the plaintiff damages as follows:-

(1)    1975 QB 819 affirmed 1976 QB801

(2)    1977 IWLR 556

(3)    1973 1 All E.R. 71

(4)    1975 3 All E.R. 92

(5)    1971 A.C. 793 and 1971 (All. E.R. 150)

(6)    1964 A.C. 465

(7)    1972 2 Q.B. 71

Representation:

Mr. Lee Yu Cheung in person.

Defendant represented by Miss Remedios inst'd by Lawrence Pang & Co.