Cheong Kau v. The Kowloon Motor Bus Co (1933) Ltd and Another
Read the full judgment text of HCA 134/1979 on BabelCite. This High Court CFI judgment.
1. Mr. CHEONG Mai-ping (hereafter referred to as "the deceased") was killed almost instantly in a traffic accident involving the 1st defendant's bus, No. AD 7037, which was driven by the second defendant at Castle Peak Road, New Territories on the 2nd January 1977. At the time of his death he was a bachelor, aged 28.
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HCA000134/1979 (Head-note) Plaintiff, who was also a "dependant," issuing a writ endorsed to the effect that he sued as administrator under F.A.O. and L.A.R.O., though grant of letters of administration not yet obtained - writ void ab initio - whether, outside the limitation period, plaintiff entitled to seek amendment of the writ to enable him to sue in capacity of "dependant" - writ curable ab initio - F.A.O., S3, S4 and S5; 020, r 5.
IN THE SUPREME COURT OF HONG KONG HIGH COURT -----------------
----------------- Coram: RHIND, J. Date of Judgment: 7th December 1981 ----------------- JUDGMENT ----------------- In open court 1. Mr. CHEONG Mai-ping (hereafter referred to as "the deceased") was killed almost instantly in a traffic accident involving the 1st defendant's bus, No. AD 7037, which was driven by the second defendant at Castle Peak Road, New Territories on the 2nd January 1977. At the time of his death he was a bachelor, aged 28. 2. According to his parents, he lived with them up to the time of his death, and was the major source of their support from his earnings as a shoemaker. 3. The father, who is the plaintiff in the present proceedings, contends that his son's death was caused by the negligent way in which the 2nd defendant, as servant or agent of the 1st defendant, drove its bus. 4. Two types of action became open to the plaintiff against the defendants as the result of the allegedly negligent killing of his son. Firstly, as his son had died intestate, the plaintiff was one of the persons entitled to take out letters of administration with a view to claiming damages under the Law Amendment and Reform (Consolidation) Ordinance, Cap. 23 (hereafter referred to as "L.A.R.O.") for the benefit of his late son's estate. In view of their late son's status as a bachelor, the plaintiff and his wife would have been the sole beneficiaries of his estate. As the result of the radical developments which have occurred in this branch of the law on account of such cases as GAMMELL v. WILSON and others(1) and V.S.L. Engineers (HK) Ltd. and Technic Construction Co. Ltd. v. Yeung Wing(2), the beneficiaries of the estate of a deceased who also happen to be "dependants" for the purposes of a claim under the Fatal Accidents Ordinance, Cap. 22 (hereafter referred to as "F.A.O.") will often do better financially under their L.A.R.O. than under their F.A.O. claim. 5. A F.A.O. claim was, of course, the second type of claim open to the plaintiff. 6. To launch a L.A.R.O. claim by the issue of a writ, it was essential for the plaintiff to have obtained a grant of administration to his late son's estate beforehand. Such a claim could only be brought by the plaintiff in a representative capacity, namely "as administrator" of the estate. (see Ingall v. Moran(3)) 7. By contrast, someone in the plaintiff's position at the time of his son's death enjoyed a choice of two modes of making the F.A.O. claim. One of those choices was to sue "as administrator" in accordinance with the provisions of S.3 and S.4 of the F.A.O. which are as follows :-
8. Although brought "as administrator," all damages awarded under such a F.A.O. claim are for the benefit of the "dependants," without at any stage forming part of the deceased's estate. 9. The alternative mode available to the plaintiff was to sue in his own name as a "dependant" by virtue of the provisions of S.5 of the F.A.O.:
10. Briefly, the position under the F.A.O. can be summed up by saying that if, within the first six months of the death, there is an executor or administrator, then only such executor or administrator is entitled to sue during that six month period for the purpose of securing to the "dependants" their benefits under the F.A.O. Once the period of six months has elapsed after the death, without the executor or administrator bringing an action, the executor or the administrator could still sue but so also can any "dependant" in his own name. 11. What is the legal position if, after the normal limitation period of three years for a personal injuries claim has expired, it comes to light that, during the limitation period, a plaintiff, who also happens to be a "dependant" of the deceased, purports to sue "as administrator" by issuing a writ for L.A.R.O. and F.A.O. damages at a time when he has not yet been granted letters of administration, although they do in fact get granted to him later? 12. That in essence is the problem which has arisen in the case before me. Before examining that problem further, I will proceed to give the rest of the facts. 13. It was not until 6th September 1979 that solicitors assigned to the plaintiff by the Legal Aid Department obtained for him a grant of letters of administration to his late son's estate. 14. However, some eight months earlier, viz. on the 9th January 1979 the plaintiff's solicitors had issued a writ on his behalf, bearing the following endorsement of claim:
The title to the action merely referred to the plaintiff by his name without mentioning that he sued in any representative capacity. 15. That writ was duly served on the defendants who entered an appearance on the 15th February 1979. 16. For the rest of 1979 the action lay fallow. It was not until after the 1st January 1980, the day when the limitation period expired, that any further step was taken in the litigation. 17. That next step was in the form of a summons, lodged by the plaintiff's solicitors on the 25th January 1980, to have the writ amended by showing in the title that the plaintiff was the administrator of his late son, and to have the endorsement of claim amended so as to read "the plaintiff claims as administrator of the estate of the deceased and on behalf of himself and other dependants of the said deceased for damages under the F.A.O. and L.A.R.O. for the death of the said deceased caused by the negligent driving etc. ..... "However, the plaintiff's solicitors did not proceed with that proposed amendment, withdrawing their application on the 6th February 1980. 18. Instead of the proposed amendment just referred to, the plaintiff's solicitors contented themselves by issuing a fresh summons on the 8th February 1980, which merely sought to alter the spelling of the plaintiff's name from "Cheung Kau". to "Cheong Kau". That amendment was duly made by a Registrar on the 13th February 1980. 19. Next, on the 11th April 1980, the plaintiff's solicitors filed and served a statement of claim. That statement of claim limited itself to claims made under F.A.O., no reference whatsoever being made to any claim under L.A.R.O. The statement of claim described the plaintiff as the father of the deceased and averred that he brought this action for the benefit of the deceased's "dependants", namely himself and the deceased's mother. 20. At the end of June 1980, the solicitors for the defendants delivered a defence which, in effect, denied everything except that there had been an accident on the 2nd January 1977, involving the 1st defendant's bus which had been driven by the 2nd defendant. 21. After that, on the 31st July 1980, a summons for directions came on before a Registrar who gave the usual directions for a F.A.O. case, and ordered that within 30 days the case should be set down for trial in the running list. 22. Nothing further happened until the 8th December 1980 when the defendants delivered a bombshell in the form of a summons seeking to set aside the writ and all subsequent proceedings on the ground that the plaintiff had no title or authority to sue on behalf of the deceased's estate under L.A.R.O. and F.A.O., and had not brought this action in his own name under F.A.O. 23. By that summons, the defendants were, in effect, seeking to take advantage of the technicality that, the letters of administration not having been taken out till the 6th September 1979, they could not be related back to the date of the issue of the writ, namely the 9th January 1979. The limitation period already having expired, the defendants hoped to show that the writ was a nullity and that the plaintiff had lost his chance of suing in any capacity. 24. The plaintiff countered with a summons, seeking to amend the endorsement on the writ so that it read as follows -
25. The defendants' summons and the plaintiff's counter-summons were heard together before a Registrar on the 19th February 1981, the Registrar finding in favour of the defendants on their summons, and finding against the plaintiff on his counter-summons with the result that the plaintiff's action was struck out. The proceedings before me have been the plaintiff's appeal against that decision by the Registrar. 26. As already described, the amendment which the plaintiff seeks to the endorsement on the writ confines his claim to damages under F.A.O. for himself and his wife as "dependants" of their deceased son. It was not and could not be disputed by the defence that, as at the date of the original issuance of the writ, the plaintiff as a "dependant" of his deceased son was, as a matter of substantive law, entitled to make a claim for damages on behalf of himself and of other "dependants" such as his wife by virtue of the provisions of F.A.O. which I set out earlier. 27. However, because the plaintiff chose to adopt a form of endorsement on his writ which read that he ".......... claims on behalf of the estate of the deceased for damages under F.A.O. and L.A.R.O. ......" the defendants contend that the plaintiff for himself and the other "dependants" is now debarred from pursuing the claim under F.A.O. 28. For the plaintiff to word his endorsement "on behalf of the estate of the deceased" is, so the defence argue, tantamount to the plaintiff claiming in the representative capacity of an administrator in accordance with the provisions of section 4(1) of F.A.O. Whether those words "on behalf of the estate of the deceased" in their context do mean that the plaintiff was purporting to sue as an administrator is a question which I do not in fact need to answer on the view I take of the law, but, for the purpose of considering the defence argument, I will assume that the defence is correct in its contention that the plaintiff was then purporting to sue in a representative capacity as an administrator. 29. Relying on a line of cases which includes Hilton v. Sutton Steam Laundry(4); Burns v. Campbell(5); and Finnegan v. Cementation Co. Ltd.(6), the defence contended that because the plaintiff chose to launch his action in a capacity he then lacked, the action was a nullity which could not be cured by any doctrine of "relation back" of the letters of administration to the date of the issuance of the writ. An unfortunate consequence for the plaintiff and his wife if this defence argument prevails is that, no matter how good their case might be on its merits, they cannot as of right start a fresh action in proper form because they are now outside the limitation period. 30. A more technical argument than the one resorted to by the defendants in the present case would be difficult to imagine. Confronted with a similar argument in Finnegan v. Cementation Co. Ltd.,(6) Singleton L.J. was moved to observe: "I would add that these technicalities are a blot upon the administration of the law and everyone except the successful party dislikes them. They decrease in numbers as the years go on and I wish I could see a way around this one." 31. Are judges nowadays still left to join in Singleton L.J.'s lament? The answer to that is, I believe, a clear "NO.". 32. Relief arrived in 1964 with the introduction of what is now 0.20 r.5, which is as follows:
33. I would not have thought that anything could be more clearly worded than 0.20, r.5 (2) and (4), the combined effect of which is that, if the court thinks it just to do so, it can grant leave to a party to alter the capacity in which he sues, although the period of limitation current at the date of the issue of the writ has expired, provided the capacity is one in which at the date of the issue of the writ he might have sued. The plaintiff falls four square within that: he might have sued upon behalf of himself and his wife for F.A.O. damages on the 9th January 1979 rather than "on behalf of the estate" of the deceased. Now he wants to alter the capacity from the latter to the former of the two just referred to. It is eminently just that he should be allowed to do so. 34. In the face of the clear wording of the rule, Mr. Lane for the defence wants me to add yet another blot on the administration of justice, in effect putting the clock back by seventeen years to the pre-1964 position. 35. He says the writ was a nullity, and contends that inevitably means it is incurable. 36. True, the pre-1964 authorities relied on by the defence --- They are all cases where a plaintiff jumped the gun by purporting to sue as administrator in issuing a writ for F.A.O. or L.A.R.O. damages before having been endowed with the necessary authority of a grant of letters of administration ---- are replete with references to the writ being void ab initio, or, in more lurid language, "a dead thing into which no life could be infused." (Burns v. Campbell(5)) 37. In the face of those pronouncements characterising writs as nullities in the circumstances just described, how could it come about that they could ever have life, the defence ask? The answer is simple: legislation can do anything. Resurrecting a phoenix from the ashes, metaphorically speaking, presents no problem to a law draftsman. Attaching too much literal significance to concepts like a writ being "a dead thing" is not helpful in the law. The courts approach problems pragmatically, and try to come up with sensible and just solutions. In the well-known words of Justice Oliver Wendell Holmes, "The life blood of the law is not logic but common sense." 38. In the circumstances I am considering, it does so happen, though, that there is respectable legal theory to explain away the tantalising condundrum of how the kiss of life could be imparted to this dead thing, the null writ. Whereas previously the writ was void ab initio, the 1982 edition of the White Book instructs us at page 384 (20/5 - 5/7), under the heading "Power to Amend After Expiry of Limitation Period", that the defects which can be corrected by amendment in the circumstances specified by 0.20 r. 5 (3)(4) and (5)" ...... are treated as having been cured ab initio." Thus, that which was void ab initio is now cured ab initio. 39. Mr. Lane, relying on a passage at page 382 of the 1982 White Book 20/5 - 8/2 contends that what the plaintiff is seeking to do by his application is to add a new party rather than alter his capacity, and also the plaintiff is raising a new cause of action, as contrasted with an amendment. If Mr. Lane were correct on that, the proposed amendment would not "relate back" to the date (i.e. 9th January 1979) of the writ which it seeks to amend, but rather to the date on which the amendment was made (i.e. the date of the delivery of this judgment). Therefore, the plaintiff would be statute-barred. 40. I think the defence are plainly wrong about the plaintiff adding a new party and raising a new cause of action. 41. As a matter of common English usage, I regard it as virtually unarguable to say that a man who, up till now, has been suing, in effect, as an administrator, but who, from now on, will be suing on behalf of himself and his wife as "dependants" under F.A.O. is not "altering" his capacity. Interestingly, under the old pre-1964 law, the very words used by Morris L.J., in Finnegan v. Cementation Co. Ltd.(6) when refusing a plaintiff leave to amend by deleting words so that she could sue on behalf of herself and her "dependants" under F.A.O. rather than as administratrix of her late husband's estate, were that this would "alter the capacity" in which the action was brought by the plaintiff. 42. As to the suggestion that the plaintiff is raising a new cause of action, no authority was drawn to my attention on this, so common sense will have to be the guide. It must have been abundantly clear to the defendants all along from the time the plaintiff issued his writ that he was making a claim under F.A.O. whether such a claim is made by a plaintiff "as administrator" of the deceased or in his own capacity as a "dependant" makes no difference to a defendant (except, perhaps, previously in the matter of raising unmeritorious defences). The two capacities are alternatives provided by sections 4 and 5 of F.A.O. In whichever of the two capacities a plaintiff sues, a defendant's liability is precisely the same, and the damages awarded accrue directly for the benefit of the "dependants" and never form part of the deceased's estate. 43. Although the courts in Hong Kong are now empowered by 0.20 r 5 to amend by allowing a plaintiff who has been prematurely labelled "an administrator" to sue outside the limitation period in some other capacity that he enjoyed at the time of the issue of the writ, that provision will still be of no assistance to a plaintiff who, outside the limitation period, wants to sue in the capacity of an administrator, but who had not yet received a grant of letters of administration at the date of the issue of the writ, the prime example of that being, of course, a plaintiff who issues a writ "as administrator" to claim L.A.R.O. damages before a grant of letters of administration. 0.20 r. 5 is of no help to such a plaintiff, because he never had the capacity to sue as an administrator when the writ was issued. Thus, in that situation, the technical rigours of the old law still apply unabated in Hong Kong. 44. In England, though the plaintiff in the situation just described has at lest been afforded some relief, because, by a new 0.20 r. 5 (4) introduced earlier this year, an amendment to alter the capacity in which a party sues may be allowed outside the limitation period, even if the new capacity is one acquired since the commencement of proceedings. It is my earnest hope that, in the fullness of time, Hong Kong's Supreme Court Rules Committee will give thought to following England's example so that this vestigial blot on the administration of justice in this Colony may receive its quietus. 45. However, as the plaintiff's summons before me confines itself to seeking an amendment which will enable him to pursue only his claim for himself and his wife as "dependants" under F.A.O., rather than a double-barrelled claim under both F.A.O. and L.A.R.O., I am able to give him what he wants, for the reasons stated above. 46. I accordingly allow the appeal by reversing the Registrar's decision in that I dismiss the defendant's summons and make an order in terms of the plaintiff's summons.
Representation: Mr. R. Wei, Q.C. and Mr. J. Bleach (John Ip & Co.) for Appellant/Plaintiff Mr. W. Lane (Deacons) for Respondent/Defendant. (1) (1981) 1 All E.R. 576 (2) Civil Appeal 27/81 (3) (1944) K.B. 160 (4) (1946) K.B. 65 (5) (1952) 1 K.B. 15 (5) at 17 (6) (1953) 1 Q.B. 688 (6) at 699 (6) at 708 |