The Shell Company of Hong Kong Limited v. Chow Chiu and Another

HCA009337/1982

BETWEEN:-

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Coram: The Honourable Mr. Justice Jackson-Lipkin in Court.

Dates of hearing: 16th & 17th April 1984

Date and time of delivery of judgment: 17th April 1984 at 2.36 p.m.

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JUDGMENT

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1. The Plaintiff Company, in so far as this action is concerned, is a vendor of petrol, diesel fuel and oil and, possibly, of cylinders of gas. The latter do not come into the matter but have been mentioned in evidence. At all material times, the Plaintiff operated what is now known as a "service station" for the sale of fuel to vehicles on Castle Peak Road; it is known as The Shell Tsuen Wan Service Station. On 19th May 1981, about 7 o'clock in the morning, the 1st Defendant drove a mechanically propelled vehicle, which, throughout these proceedings, has been called "the dumptruck", into the forecourt of the Plaintiff's Service Station to be refueled. The layout of the Service Station appears clearly from Exhibit 1, where it will be seen that, at the material times, there were two lines of pumps. And on the outer side of the Service Station, that is the lower end of Exhibit 1, abutting what is called the "service road", there is a row of pumps underneath a canopy. Further into the station, slightly at an angle towards the left hand side looking back Exhibit 1 is a row of four pumps. It is common case that the 1st Defendant was the driver of the dumptruck; that he did drive into the petrol station; and that he did park alongside a row of pumps in order to obtain petrol. The 1st Defendant has marked with a St. Andrew's cross, the position on Exhibit 1, which, he says, is approximately the position where he parked his vehicle. Although Mr. Pirie tells me that, as Counsel, he advised that the Court be supplied with the details and dimensions of the dumptruck, none has been forthcoming, and I am left entirely guessing as to its weight, its length, its breadth, its height, the height above ground of the dumping compartment (which has been called "the tray" in the evidence) when lowered, the height of the base of that when lowered: And, so far as the height of the canopy is concerned, I can only guess that from the photographs, Exhibit 2 and Exhibit 2A. It appears that it is either necessary, or more convenient, and it does not fall to me to decide in this matter which of those is correct, that the dumping compartment be raised from its lowered position in order to facilitate the supply of fuel to the vehicle. According to the Plaintiff, it is necessary: According to the 1st Defendant, it is convenient. But he that as it may, there is no doubt that in this case the mechanism was set in motion and the dumping compartment started to rise. Apparently the vehicle was so close to the canopy that, when the dumping compartment was being raised, it struck that canopy and caused damage to it, the repair to which cost $104 802.00; and it is over that sum that this action is brought. There is no Prayer for damages for loss of profit for such time as certain of the pumps were put out of use. Quantum is agreed. Liability was the only issue.

2. Liability falls into different categories. Between the Plaintiff and the 1st Defendant, there is this: Was the accident caused solely by the negligence of the 1st Defendant, or solely by the negligence of an attendant of the Plaintiff, who was serving the vehicle with petrol, if "serving" be the correct verb to use, or was the accident caused partly by the Plaintiff's servant, partly by the 1st Defendant, and is so, in what proportions.

3. As between the Plaintiff and the 2nd Defendant, there is a. totally different issue, and it is this: Was the 2nd Defendant, at all material times, the employer of the 1st Defendant, or, if not, was the 1st Defendant acting as the 2nd Defendant's agent at the time of this accident, or was the relationship between the 2nd Defendant and the 1st Defendant such, that, in law, the 2nd Defendant would be vicariously liable for the accident to the 1st Defendant.

4. I have said what the Plaintiff's case is; the 1st Defendant's case is quite simply that he could not see what was happening; he relied wholly upon the instructions given to him by the petrol pump attendant, the servant of the Plaintiff; he was not told that he was too close to the canopy; and he was not told in time to stop raising the dumping compartment:   And as a result, the accident occurred.

5. The Plaintiff was unable to call the actual attendant. Counsel tells me that he has gone back to China. The Plaintiff called a Mr. Tang Ngor-yim, who told me that he is the only one still in the employ of the Plaintiff out of some seven employees who were there at the relevant time. The Plaintiff, therefore, relied entirely upon Mr. Tang's evidence, and I will say immediately that he was a most unsatisfactory witness. I took a very poor view of him when he gave his evidence, and had reservations about the allegations that he made, to which I will revert in one moment. The only witness for the 1st Defendant was the 1st Defendant himself, and I will say here that I was very impressed with him as a witness: I thought he was doing his best to be frank and straightforward, and I infinitely preferred his evidence to that of Mr. Tang. If there is any conflict between the two, I have no hesitation in accepting the evidence of Mr. Chow. Of course, obviously, there were some inconsistencies, some contradictions in his evidence. But in the evidence of any honest witness, there are almost always some. Basically, the story of Mr. Tang, who was apparently "foreman"  of the night shift, was that the 1st Defendant drove into the forecourt, was asked by Mr. Tang and the attendant who sold him the petrol, for the keys of the cab to the fuel tank. The driver, according to Mr. Tang, said, "No", and, leaving the engine running and the motor operating the dumping compartment in operation, he got out from the cab and went around the south of the vehicle to open the petrol tank. Mr. Tang said that he and the attendant stood beside the 1st Defendant, but that, at the time, he did not notice movement until there was a noise which indicated to him that the dumping compartment had struck the canopy. When I say I was not impressed, that, of course, is my view of the witness observing and hearing him, and weighing the probabilities against the background of the whole of the evidence. But that is not to say that I found him an unmitigated liar; I said that I found him a wholly unsatisfactory witness. I did not accept his evidence. The explanation is fairly straightforward. It is a combination of what I have just said that, he was not the person responsible for refuelling the dumptruck. I commence with the first two answers that he gave in his cross-examination in answer to Mr. John Lee. The first question was: "It is almost 4 years since the accident?'' Answer: "Yes, there are.". Question: "It may be the incident you can not recall now". (That was put into an interrogative form by the Interpreter.), and the answer was: "It is too long ago.". And then he was asked: "All you can remember is there had been an accident?" Answer: "Yes, right.". He was trying his best, as I find, to assist his employer and his imagination outran his memory.

6. The 1st Defendant, whose answers to everybody were frank, and frank to the point of inculpatory, gave the following explanation. He wanted his vehicle to be refuelled. He drove into the petrol station. There was a number of other vehicles there, add I accept his version of that. There was only one space available for him. I accept that. He could not get his dumptruck into that space absolutely parallel to the lower pumps, and he went in at an angle. That, alas, was a fatal error so far as this action is concerned. There appears to have been a good relationship at the time between the 1st Defendant and the attendant at the garage. The 1st Defendant says that he had been there many times before, very many times I think he said. And Mr. Tang said that he was well-known there. It is quite clear from the evidence that a system has grown up between the 1st Defendant and the staff of the petrol station, that they would assist the 1st Defendant by telling him where to park, and calling out to him when he should raise the dumping compartment, so that they could get the hose to the fuel tank, how far he should raise it and so on. That is what happened in this case. He was at an angle. He was not straight. He knew the canopy was there, and he told me so quite frankly. And he told me that he was quite incapable of seeing the dumping compartment rising if he was sitting in the cab. And he said, and I accept his evidence, that he was sitting in his cab throughout this incident. Clearly, the major blame must lie with him. I asked him if he would reverse on to a main road under the directions of somebody at the site - he said certainly would not. I ask him why he should then raise the dumping compartment of the dumptruck under the directions of an unskilled pump attendant, and he very frankly said he must accept a share of the blame for the incident. And, I must add, he never sought to evade that issue. As Mr. Pirie has rightly said that, before putting the lever into position which would put into operating the lifting mechanism, he should have either got out, or leant out his cab to see that the raising of the dumping compartment . would cause no danger to the premises which he had entered: That he failed to do. He knew that the canopy was there. And he told me he knew that there would only be a narrow margin. And yet he did not take the simple precaution of getting out of the cab to see whether that margin was so narrow that there was a likelihood of his scraping or hitting the canopy. On the other hand, as I say there, was this apparently long  history of his being given assistance by the attendants and, up to a point, I put it no higher than up to a point, he was entitled to accept such assistance. I say "accept".: I do not say rely on. In those circumstances, I feel that the plea of contributory negligence by the Plaintiff should succeed to a certain degree. Counsel for the 1st Defendant said that the apportionment should be 20% for the 1st Defendant and 80% for the Plaintiff. I can not accept that on the facts, or even on general principles relating to the use of motor vehicles. The latter can be disregarded because, on the facts of this case, I hold that the majority blame was quite clearly and unequivocally that of the 1st Defendant. Mr. Pirie tried to urge upon me that there should be no contributory negligence at all, but, when I pointed out to him the long connection between the attendants and the driver, and the fact that he could accept a little assistance, although not rely on it entirely. Mr. Pirie conceded that, if I would find any contributory negligence, he would be content to leave it at 10%. 10% is what I had in mind at 11.30, and 10% is a figure from which I have not been moved by anything that has fallen from Counsel. There will, therefore, be judgment for the Plaintiff for 90% of $104,802.00.

7. I now come to the 2nd Defendant. The 2nd Defendant practically single-handed brought this action on himself by his Affirmations. I need not trouble with his original Defense because it was dealt with by an Order of a Deputy Judge Davies on the 24th of January this year, when he ordered that the 2nd Defendant should bear all the costs up to January, the costs thrown. away by a proposal of Amendment by the Defendant and the 1st Defendant's costs. In other wards, the conduct to which I referred has already sounded in an Order for costs against the 2nd Defendant, because he has had to pay the whole costs of the action up to the time of appearing before Deputy Judge Davies. The question arises was there a contract or agreement or understanding of employment between the 1st and 2nd Defendants. On the evidence before me, I am quite satisfied there was not. There were Statements and Affirmation and answers in response to questions put by Mr. Pirie and some by me, which did, at one time, indicate that he relationship of employer and the employee existed. But, as Mr. Chow said, he is only a simple-minded person. And it was quite apparent throughout his evidence that he was only a simple-minded person, although, as I have said, frank and straightforward. He had ideas of legal relationships, but that no connection whatever with any legal relationship on which anybody in this Courtroom have ever fought. Understandably, no blame attaches to him. But Ifind on the facts, and all I am concerned with here is fact, that he never was an employee of the 2nd Defendant - if his bizzare interpretation of "employment" if anything to go by, the 2nd Defendant would be the employee of the 1st Defendant.

8. Happily, that is something that has not been canvassed before me. This was a simple, straightforward, uncomplicated Hong Kong Cantonese arrangement relating to a vehicle. Mr. Chow can not get credit, Mr. Ng can and does. Mr. Chow has the vehicle. He arranges all his own contracts, and that is clear on the evidence; Mr. Ng had nothing whatever to do with arranging for the work for the dumptruck for his, Mr. Chow's contracts. The price was agreed upon for the ultimate transfer to Mr. Chow of  the legal title to the vehicle, that is registration in the register held by the Commissioner of Transport: But a de facto title and the de facto physical control and the de facto right to permanent possession of the vehicle, I find, on the evidence presented to me, passed long ago from the 2nd Defendant to the 1st Defendant. In other words, Mr. Chow as the person whom the law regards as the owner, the property in the vehicle having passed to him, subject to the repayment to the mortgagor. He tells me quite simply, that he arranged his own contracts, he went out, he did the work and he gave some of the money that he earned to Mr. Ng, and that was obviously put towards payment of the purchase price. He frankly admits the purchase price has not yet been paid off. But that has little to do with it, if the agreement between the parties was, as I have held it to be on the facts of this case, that property should pass with possession and not with the final payment.

9. By having found this as a matter of fact on the evidence, and on my acceptance and on my interpretation of the evidence of the 1st Defendant, that the let Defendant was neither the employee not the agent of the 2nd Defendant, and, accepting that he was not a person driving or managing the vehicle at the direction, under the command, at the insistence or in any way controlled by the 2nd Defendant, the Plaintiff must fail in its action against the 2nd Defendant. There will, therefore, be judgment for the 2nd Defendant against the Plaintiff.

10. There will be Orders for costs against the 2nd Defendant up to and including 28th May and of the Amendment of and the consequence that followed from that. The 2nd Defendant will have his costs from the 13th of April subject, however , to the Orders for costs made by Deputy Judge Davies of 24th January and Deputy Judge Leathlean of 28th February, and, in so far as the regulations, permit that one will be set off against the other. Much has been said in the applications for costs about the Affirmations and the conduct of the parties. I think I should point out, in dealing with costs, what I pointed out to Counsel in the course of argument, that it appears from the Summons of 18th May, and the markings thereon by Master Hansen, that the Order he made under paragraph 1 was on the basis of regularity of a interlocutory judgment and not on the basis of a Defence on the merits. I forgot to mention that before, I mention it now. I have every sympathy with the 1st Defendant; I saw how he struggled to express himself before me, (He had notions of what the law was.): Instead of leaving it to his lawyers, he tried to express himself. But I do not see why that should rebound on the Plaintiff, depriving it of 10% of their costs. Indeed, I have shewn the high regard I have for Mr.Chow as a witness, but having a high regard for Mr. Chow does not mean I should penalise the Plaintiff, obliged to bring the action, obliged to continue with the action, when there is no money in Court. As far as I know, there was no suggested apportionment at an earlier stage. Nothing has been done. The Plaintiff was left, up until the date of the hearing, with an action in its hands - it had to pursue it perforce. The Plaintiff will have its costs against the 1st Defendant.

11. The Plaintiff further asks that the 1st Defendant be ordered to pay such balance, if any, as there may be due and owing in the Order for costs to the Plaintiff up to the set-off of the two Orders made by Deputy Judge Davies and Deputy Judge Ieathlean and my Order to-day. In the peculiar circumstances of this case, the whole history of it, having regard to the entirety of the history, and the conduct of the parties, I think it would be wrong to set off the 1st Defendant with the balance of those costs. There will just be a simple order as against the lot Defendant that he pay the Plaintiff's costs of the action to be taxed. There will be an Order for Legal Aid taxation of the costs of the let Defendant, and the costs of the 2nd Defendant, and there will be liberty to apply to me any forenoon next Term (after the 9th of June) should any difficulty arise with the Taxing Masters or with the Legal Aid Department on these Orders for taxation. No Summons will be necessary, so long as the other side is notified 48 hours in advance, and my Clerk is told 48 hours in advance. Any of you may come along at 9.30 in the forenoon and have the matters sorted out by me.

Representation:

Munro & Co. For the 2nd Defendant.