Chan Wing-kwong and Another v. Alan C.W. Wong
Read the full judgment text of HCA 114/1970 on BabelCite. This High Court CFI judgment was delivered on 8 December 1970.
1. It is alleged in the statement of claim that on 2nd February 1966 the first plaintiff (who was then a child aged 6 1/2 years) was knocked down by a goods vehicle driven by a person named Ng Kwong; that the accident was caused solely by the negligence of Ng Kwong; that, in consequence thereof, the first plaintiff's right leg was so badly crushed that it had to be amputated; and that he was in hospital from 2nd February till 1st September 1966.
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HCA000114/1970 IN THE SUPREME COURT OF HONG KONG ORIGINAL JURISDICTION ACTION NO.114 OF 1970 (Trial of Issue) -----------------
----------------- Coram: Hon. Blair-Kerr, J. in Court Date of Judgment: 8 December 1970 ----------------- JUDGMENT ----------------- 1. It is alleged in the statement of claim that on 2nd February 1966 the first plaintiff (who was then a child aged 6 1/2 years) was knocked down by a goods vehicle driven by a person named Ng Kwong; that the accident was caused solely by the negligence of Ng Kwong; that, in consequence thereof, the first plaintiff's right leg was so badly crushed that it had to be amputated; and that he was in hospital from 2nd February till 1st September 1966. 2. The second plaintiff, who is the father of the child, applied for legal aid. The first of a series of certificates was issued by the Director of Legal Aid on 2nd March 1967; and the defendant was assigned to act as the plaintiffs' solicitor. Counsel was assigned on 16th June 1967; and on 27th June 1968 a draft statement of claim was forwarded by counsel to the defendant for the purpose of instituting proceedings against Ng Kwong and the owner of the goods vehicle. 3. The plaintiffs allege that the defendant was negligent in that he failed to commence proceedings "before 2nd February 1969 or at all in consequence whereof the plaintiffs' cause of action became statute barred" by virtue of the provisions of the Limitation Ordinance, Cap.347; and that by reason of his alleged negligence they have lost all prospects of recovering damages; and they claim damages against him. 4. The defendant denies that the cause of action against Ng Kwong and the owner of the goods vehicle is statute barred; and on 17th September 1970 there was a consent order made by the Registrar that this question be tried as a preliminary issue. That is how the matter now comes before me. 5. As Mr. Jackson-Lipkin said, it is rather a bizarre situation; and I find it a little difficult to understand. One would have expected the action against the alleged tortfeasors to have proceeded at least to the stage of ascertaining whether they were going to plead limitation. Instead, the plaintiffs have chosen to assume that they would do so, and furthermore that this plea would be upheld by the court. So, they now proceed against their ex-solicitor, presumably having withdrawn their instructions to proceed against Ng Kwong and the owner of the vehicle. 6. In England prior to 1939, it was the law that time did not begin to run under any circumstances during infancy, or other disability. As Lord Denning said in Hewer v. Bryant(1):-
That was the position in Hongkong until the enactment of the Limitation Ordinance Cap.347 on 11th June 1965. 7. Section 4(1) of the Ordinance provides that an action founded on tort shall not be brought after the expiration of six years from the date on which the cause of action accrued; but in the case of an action for damages for negligence where the claim includes damages for personal injuries, the period of limitation is three years. Section 22 provides that if the plaintiff was under disability on the date when the cause of action accrued the action may be brought at any time before the expiration of six years from the date when the plaintiff ceased to be under disability. But, s.22(2) provides that in the case of an action for damages for, inter alia, negligence where the claim includes damages for personal injuries, the action may be brought at any time before the expiration of three years from the date when the plaintiff cessed to be under disability. But s.22(2)(b) reads:-
8. It would appear that the intention of the legislature was that as regards these particular classes of action, time should begin to run as soon as the cause of action accrues, even in the case of a person under disability, in the absence of proof by the plaintiff that the person under disability was, at the material time, not in the custody of a parent. As Lord Denning said in Hewer v. Bryant(1), presumably the legislature thought that every parent who had the custody of a child ought to bring an action for him; and if he did not do so the child must suffer. 'Parent' is defined as including grandparents and step-parents, whether legitimate, illegitimate or in consequence of adoption. 9. There is no doubt at all that if s.22 does apply, time does not begin to run during disability. It matters not if the person is a few weeks old when the cause of action accrues. Time begins to run when the person ceases to be under disability. 10. What, then, is the meaning of the word "custody" in s.22(2)(b)? There has been two schools of thought about this. In Hewer v. Bryant(2), Paull J. at first instance thought that "custody" meant legal custody, and that the law was accurately stated by Sir William Brett M.R. in In re Agar-Ellis(3) thus:-
And at p.426, Paull J. said:-
11. That view was utterly rejected by Lord Denning when the case came before the Court of Appeal. The Master of the Rolls said (pp 369/70):-
Sachs L.J. adopted a similar approach (p.374). His conclusion was that the words "in the custody of a parent" in the Limitation Acts have a "special, limited and somewhat artificial meaning"; and that the word
And in Brook v. Hoar(4), Melford Stevenson J. said:-
I agree entirely that, for the purpose of s.22 of the Limitation Ordinance, "custody" is a question of fact to be determined on the evidence. 12. In this case, the relevant facts are very simple; and they disclose a situation which is all too common in Hongkong today. The second plaintiff is a casual manual labourer. During the last 10 years his employment has been somewhat irregular. For most of that period, he has worked in the construction business; and this has necessitated his moving from one building site to another throughout the Colony. He has also been a factory worker from time to time 13. He is the father of four children - three boys and one girl. The eldest boy was born in 1958. The first plaintiff and his brother are twins. They were born on 1st September 1959. The girl was born in 1960. 14. The second plaintiff's wife deserted him in 1962. His daughter was then 1 1/2 years old. He cared for the four children for a time; but he found it impossible to continue doing so. He had to try to find work in order to live; and he could not work and look after four young children as well, especially as his work took him from one construction site to another in various parts of the Colony. He therefore put the four children into a nursery. Later, he found a lady named Lee Fung who was willing to care for the children; and, for two or three years prior to 2nd February 1966, they lived with her and her husband, a Mr. So. The second plaintiff paid Mr. and Mrs. So $40 per child per month to cover the cost of the childrens' board and lodging. 15. After his son was discharged from hospital, the second plaintiff arranged for his three sons to be brought up by a Mr. and Mrs. Ip in Rennie's Mill. He pays Mr. and Mrs. Ip $90 per child per month to cover board, lodging and school fees. He is not a Christian himself; but it appears that Mr. and Mrs. Ip take the children to the Lutheran Church on Sundays. The second plaintiff buys some clothing for the children; but the Lutheran Church also makes some contribution in this regard. He has visited his children whenever he was able to do so; but because he has been working and sleeping on building sites situated far away from Kowloon or Rennie's Mill, his visits must have been rather irregular. 16. In evidence he gave 385 Yuen Chow St., 1st floor, as his present residential address. But, from his answers in cross-examination, I gathered that he did not possess more than a bed-space. Indeed, he said that he sometimes slept in the street. 17. It is not in dispute that the second plaintiff has "custody" of his children in the legal sense of the term. But I do not see how any court could reasonably come to the conclusion that he has had de facto custody of any of his children since he arranged for them to be brought up by Mr. and Mrs. So. For many years he has not been in a position to exercise effective day-to-day control over them; and, in my view, that was the position at the time of the accident on 2nd February 1966. 18. The only person who gave evidence was the second plaintiff himself. Presumably his object was to prove that his son was in his custody on 2nd February 1966. But, in fact, he proved to my entire satisfaction that his son was not in his custody on that date. 19. Section 22(1) therefore applies. The period of limitation does not begin to run during the first plaintiff's minority; and, in my view, it is open to the plaintiffs to institute proceedings against Ng Kwong and the owner of the goods vehicle.
Representation: H. Litton, Q.C. (Messrs. W. Lore & Co.) for Plaintiffs. M.H. Jackson-Lipkin (Brutton & Stewart & Co.) for Defendant. Judgment handed down (1) (1970) 1 Q.B. p.367. (1) (1970) 1 Q.B. at p.368. (2) (1969) 1 Q.B. at p.424. (3) (1883) 24 Ch D at p.326. (4) (1967) 1 W.L.R. at p.1341. |