Leung Ling-wai Stephen v. Tsui Kai-yeung and Another

HCA001453/1977

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Coram: Cons, J.

Date of Judgment: 20th November 1978.

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JUDGMENT

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1. Fairly early in the morning of the 13th September 1975 Mr. Tsui Kai-yeung was driving a Datsun diesel motor-car along Kung Lock Road in Kowloon. As he rounded a difficult and almost blind corner he collided head-on with a motor-cycle coming the other way. Mr. Tsui and the rider of the motor-cycle were both to some extent to blame for the collision, but Mr. Tsui was by far the worse offender. Judgment has already been given against him at the conclusion of the two-day hearing. The rider of the motor-cycle was severely injured. Damages were awarded at just over $30,000.

2. Mr. Tsui did not own the car he was driving. He was unemployed at the time and had borrowed the car from his elder brother to go for a drive round. Even the elder brother did not own the car. He was looking after it for a friend, Mr. Wong Hong-chong, who was away for a while in China. The elder brother, of course, had permission to drive the car. He had also asked for, and obtained, Mr. Wong's permission for his younger brother to do the same. It is now sought to make Mr. Wong liable for the damage that the younger brother caused.

3. In Launchbury and Others v. Morgans and Others ⁽¹⁾ the English Court of Appeal attempted to widen the basis of vicarious liability in cases such as this. The attempt was unsuccessful⁽²⁾. The basis remains the same as it was. The plaintiff must show that the driver was at the material time using the vehicle for the owner's purposes or on the owner's behalf. That is a question of fact to be decided in each case.

4. The present factual situation is not uncommon in Hong Kong. An owner who is going abroad for some time asks a friend to look after his car while he is away. The owner merely hands over the keys and the insurance documents. There is no formal arrangement. In the absence of anything to indicate otherwise I would take the terms of that informal arrangement to be that the caretaker will keep the car safe and in good condition and will see that it is properly serviced and maintained while the owner is away. And in return for accepting those responsibilities the caretaker is entitled to use the car for his own private purposes as and when he wishes.

5. The evidence of Mr. Wong and the elder brother does not indicate any departure from the normal arrangement. Can it then be said that the younger brother was driving that morning on Mr. Wong's behalf or for his purposes? In my view it cannot. I appreciate that under cross-examination the elder brother was induced actually to agree that he was "looking after (the car) for (Mr. Wong's) purposes, although unpaid". But. I do not think this really takes the matter any further. The driving had nothing to do with looking after the car or seeing that it was properly maintained and serviced. It is suggested that the use was to Mr. Wong's benefit in the sense, I assume, that a car left idle for a substantial period of time tends to deteriorate. There may well be occasions where that is a valid consideration. I can envisage, for example, cases where the caretaker has no personal need of a car and only drives the owner's car occasionally and for that very purpose. But that was obviously not the case here. Mr. Wong had only two things in mind when he left the car with the elder brother. He did not want to leave the car unattended on the street and he did not want to pay garage fees. The younger brother was not driving the car for the car's benefit. He was out for a joy ride on his own account. Mr. Wong is not liable. The plaintiff's claim against him is dismissed.

Representation:

Mr. F. Eddis (Johnson, Stokes & Master) for the plaintiff.

Mr. C. Young (Rodget W. Young & Co.) for 1st defendant.

Mr. Y.C. Mok (Vincent Lo & Co.) for 2nd defendant.

(1) [1971] 2 Q.B.245

(2) [1973] A.C.127