Read the full judgment text of FACV 000018/2003 on BabelCite. This FACV judgment was delivered on 30 April 2004 before Chief Justice Li, Mr Justice Bokhary PJ, Mr Justice Chan PJ, Mr Justice Ribeiro PJ and Sir Thomas Eichelbaum NPJ.
Civil procedure – pleadings – whether a party may succeed on a scenario not pleaded by himself but pleaded by his opponent – construction site accident – scaffolding worker fell from height – plaintiff pleaded he was standing on ladder; defendant pleaded in alternative he was standing on ladder or on light trough – whether trial judge could find liability on light trough scenario – Wong Bokhary PJ holding that, provided it does so fairly, a court may decide in favour of a party on a scenario pleaded by the opponent – John G. Stein & Co. Ltd v. O'Hanlon followed – Soar v. National Coal Board and Waghorn v. George Wimpey distinguished as scenarios pleaded by neither side – no question of election arose where defendant itself advanced the scenario in the alternative – no amendment required where defendant had pleaded contributory negligence on the light trough scenario and trial judge did not wholly exonerate plaintiff – Bank of America v. Chai Yen and Flywin Co. Ltd v. Strong & Associates applied on fairness – Court of Appeal's contrary conclusion overturned – Contributory negligence – apportionment of responsibility – Law Amendment and Reform (Consolidation) Ordinance Cap. 23 s.21(1) – how an appellate court should approach a trial judge's apportionment – apportionment equated with an exercise of discretion – Wishing Long Hong v. Wong Kit Chun applied – appellate court will not interfere unless result is outside the range reasonably available to the court below – blameworthiness and causative potency – policy of Construction Sites (Safety) Regulations Cap. 59 to protect workers from falls – Reeves v. Commissioner of Police of the Metropolis and Li Man Yuen v. V.F. Electric Manufacturing considered – 75/25 per cent apportionment held within permissible range and not disturbed – trial judge rejected ladder version, accepted defendant's out-of-court admission of standing on light trough – assessment of 25 per cent contributory negligence upheld – appeal allowed – trial judge's orders restored including three-quarters of first-instance costs – costs order nisi in appellant's favour for the Court of Final Appeal and Court of Appeal proceedings to become absolute 21 days after judgment – legal aid taxation of appellant's own costs in all three courts.
Legal issues: Whether a party may succeed on a scenario pleaded only by the opponent · Appellate approach to a trial judge's apportionment of responsibility
Outcome: Appeal allowed; the Court of Final Appeal unanimously restored the trial judge's orders including the damages award (with 25 per cent deduction for contributory negligence), interest, and the award of three-quarters of the appellant's costs at first instance.
Cited by 3 cases