Attorney General v. Yeung Hip Yung

DCCJ011514/1975

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT KOWLOON

CIVIL JURISDICTION

ACTION NO. 11514 OF 1975

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Coram: A.L. Leathlean, D.J.

Date of Judgment: 27th April, 1976.

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DECISION

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1. In this case the Plaintiff claims damages for damage which the Defendant is alleged to have done to a lamp-post. The defence filed is to the effect that the brakes of the motor car which the Defendant was driving, and which collided with the lamp-post in question, failed, thereby depriving him of control over its movement. This is an application by the Plaintiff that the defence be struck out.

2. Upon the hearing of the application the Defendant did not appear, so whether his defence goes so far as, or falls short of, a claim that the brakes failed through no fault of his, but, e.g., failed as a result of a latent defect, is not altogether clear. However, it could be that that is what the Defendant, who apparently drew his own defence, is trying to say, and I propose to deal with the application upon that basis.

3. Mr. Sum for the Plaintiff sought to pray the provisions of section 6 of the Public Lighting Ordinance in aid of the application. Those provisions are as follows:

"6. When any damage or injury has been occasioned to any of the posts, standards, brackets or lamps provided under this Ordinance by any person otherwise than wilfully, and such person has not made satisfaction for the same, the District Court shall, where proceedings are commenced in respect of such damage or injury, order the said person to make full satisfaction for the amount of such damage or injury, together with all incidental costs and expenses."

4. In my view the strongest recent case in support of the Plaintiff's application, to which, however, I was not referred by Mr. Sum in argument, is Kensington Borough Council v. Walters ^(1). That was a case under section 181(3) of the Local Government Act, 1939, the provisions of which are in my view for all present practical purposes similar to those of section 6 of the Public Lighting Ordinance. The facts, very briefly, were that the motor car which Mr. Walters was driving was propelled by another motor car into a street refuge. The Divisional Court held that Mr. Walters was liable. However, not surprisingly in my view, with respect, that decision, which is not binding upon this court, attracted informed criticism at the time in an article entitled "Towards the Deodand" by J.W.C. Turner at pages 89 and 168 of the 1960 Criminal Law Review, in which the law and the authorities are exhaustively reviewed. The learned author concluded by submitting that the decision ought not to be taken as unquestionable authority for future cases. I agree. I can see no distinction between the case of a motorist who through no fault of his own is propelled by another motorist who through no fault of his own is propelled by another motorist into a street refuge and the case of a motorist whose brakes fail through no fault of his own, and who upon that account loses control of his vehicle, which then collides with a lamp-post.

5. As I understand from Mr. Sum that this is the first time that this point has arisen in the courts of this Colony I am putting my reasons in writing. In the perhaps unlikely event of the Defendant appearing and defending it may well be that I shall need to deal with it in greater detail. For present purposes, however, I propose to say no more than that in my judgment the defence filed could be a good defence. The application that it be struck out is accordingly dismissed.

6. Dated this twenty-seventh day of April, 1976.

Representation:

(1) (1959) 3 W.L.R. 945 & (1960) Crim.Law Review 62