Wong Shing Hung v. The Hong Kong and China Gas Co Ltd and Another
Read the full judgment text of HCA 2599/1973 on BabelCite. This High Court CFI judgment.
1. The plaintiff in this action claims damages against the defendant in respect of the death of his daughter who was killed on the 14th October 1972 as a result of a gas explosion that occurred at the Daimaru Department Store where the deceased was an employee.
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HCA002599/1973
IN THE SUPREME COURT OF HONG KONG ORIGINAL JURISDICTION -----------------
----------------- Coram: Mr. Registrar Jones in Chambers. Date of Judgment: 20th May. 1974. ----------------- DECISION ----------------- 1. The plaintiff in this action claims damages against the defendant in respect of the death of his daughter who was killed on the 14th October 1972 as a result of a gas explosion that occurred at the Daimaru Department Store where the deceased was an employee. 2. A third party notice claiming an indemnity or a contribution was issued by the defendant against the Attorney General alleging that the deceased's death was caused because of the negligence of the Fire Services Department. An unconditional appearance was entered by the third party although it would appear having regard to the nature of the present application to have been appropriate to file a conditional appearance. A statement of claim has been filed by the defendant which the third party by this summons applies to strike out on the ground that it discloses nor reasonable cause of action in that as the statement of claim contains no allegation of lack of bona fides in the exercise of powers, by virtue of the provisions of sections 4 and 27 of the Crown Proceedings Ordinance Cap. 300 the Third Party is entitled to the protection afforded by section 22 of the Fire Services Ordinance Cap. 95. Section 4 of the Crown Proceedings Ordinance deals with the liability of the Crown in tort and section 27 deals with the application to the Crown of certain statutory provisions. 3. Mr. Evans who appeared for the Attorney General argued that even if negligence is established by the defendant section 22 of the Fire Services Ordinance provides the Crown with an absolute right to immunity. Section 22 provides that:-
4. In his submission Mr. Evans cited a New Zealand case Tally v. Motueka Borough(1) and a decision of the High Court of Australia Board of Fire Commissioners of New South Wales v. Arbouin(2) in which cases the question of immunity was claimed under provisions similar to section 22 which lends weight to his argument although much of what was said was obiter. However, it appears that the matter has not so far been argued in Hong Kong. 5. Mr. Jackson-Lipkin for the defendant submitted that the issue raised by the third party is a pleading point and is analogous to a case where the Limitation Ordinance is pleaded in an action which is statute barred. Mr. Evans contended that defendant should have specifically pleaded mala fides, but I do not agree with this proposition. It may of course be necessary to do so when the defendant replies to the defence. 6. I am of the opinion that the matter raised by the third party is one that is properly to be determined by the trial judge upon the evidence with the result that I accept Mr. Jackson-Lipkin's submission that if the third party wishes to invoke immunity it should be pleaded in their defence. In the circumstances it is unnecessary for me to deal with the other points that were raised during the course of the argument. 7. Accordingly the summons will be dismissed with costs to the defendant in the third party proceedings. There will be a certificate for counsel. 8. Dated this the 20th day of May, 1974.
Representation: (1) 1939 N.Z.L.R. P.252-255 (2) 1963-64 Commonwealth Law Reports Vol. 109 P. 105 |