Gregory Robert Scott Crichton v. Chang Sai Hung and Another

CACV000093/1986

BETWEEN 

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Coram: Cons, V.-P., Fuad & Kempster, JJ.A.

Date of hearing: 23rd Septmber, 1986.

Date of delivery of judgment: 23rd September, 1986.

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JUDGMENT

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Cons, V.-P.:

1. This is an appeal from His Honour Judge Scriven who rejected the Plaintiff's claim for damages. The Defendants to the claim are partners in an electrical business, apparently accustomed to do work for the Plaintiff's employer, the American International Assurance Co. Ltd. At the company's request they collected from the company's godown a dishwasher belonging to the company - not a new one by any means - replaced a water pump and inlet pipe, and then installed it in the Plaintiff's home. However when it was used it overheated. The Defendants were called in. They took the machine away, but on its return it was no better. Called again, they replaced the thermostat and gave advice to the Plaintiff's wife as to how she should operate the machine. Nevertheless the third time that the machine was used, sadly after a dinner party, the machine caught fire during the night and next morning it was the Fire Services who had to be called in. The fire caused damage to the contents of the machine and to some other items in the Plaintiff's household.

2. An Incident Report by the Fire Services was accepted in evidence by the learned Judge. Under the heading "Believed Cause" we find -

"Sparks/heat generated from electric short circuit in the motor of a power-driven dish washing machine ignited the insulating material of electric wiring which in turn set fire to nearby combustible material."

That is all that is known as to the cause of the fire.

3. The Amended Particulars of Claim appear in one paragraph to rely upon a misrepresentation made upon the occasion of the Defendants' second visit, but no attempt was made to support that by evidence. Negligence was relied upon, although the solicitor who then appeared for the Plaintiff expressly excluded dependence upon the doctrine of Res Ipsa Loquitur. He withdrew that exclusion on a subsequent and unsuccessful application to the Judge to reverse his dismissal of the claim. At that stage the Judge gave leave to appeal to this Court, but for a reason which, for myself, I must confess I find very hard to understand.

4. The Notice of Appeal contains seven grounds. Mr. Waung, who now appears for the Plaintiff, and if I understand his argument correctly, has abandoned the substance of those grounds. His submission instead seems to me to impose upon the Defendants a duty tantamount to that of insurers, at least for a reasonable time after their work, although in his view it does not go that far. He relies also upon a letter written by the Defendants, dated the 13th January. That is clearly a mistake as it must have been written some time in February. Mr. Waung seeks to find in that letter admissions of negligence, but for my part I am unable to find any.

5. The submission turns on Paragraph 1 of the Claim -

"        On or about 5th January 1985, the Defendant was engaged by the Plaintiff's employer, namely, American International Assurance Company, Limited, to provide repair and checking services in respect of certain electrical appliances including one 'Zanker' dishwasher (hereinafter referred to as 'the said dishwasher') to be installed at the residence of the Plaintiff at No. 12 Tai Tam Road, Hong Kong."

That, it is said, imposed a duty thoroughly to check the dishwasher and leave it in such condition that it was not likely to cause a fire within a reasonable period, or at least warn those likely to operate it of possible dangers.

6. I express no opinion upon the scope of the Defendants' duty if the circumstances of Paragraph 1 had been made out. It is sufficient to say that the paragraph was traversed by the Defence and apart from the admission of installation and the actual repairs made, there was no evidence in support.

7. A secondary suggestion of negligence is that the repairs themselves were carried out in such a way that they caused the fire. Again I find no evidence to substantiate the suggestion.

8. In my view this appeal has no merit and I would dismiss it.

Fuad, J.A.:

9. I agree. In my judgment the Plaintiff's claim as pleaded and sought to be proved was rightly dismissed, and the appeal fails.

Kempster, J.A.:

10. I too agree that this appeal fails, for the reasons already given by my Lord the Vice-President. The Defendants have never properly been apprised of the case they had to meet below or in this Court. This is because the Plaintiff, by his legal adviser, has never been able to specify first the circumstances in which a duty of care as between the Defendants, with whom he had no contractual nexus, and himself arose; secondly, the nature of the breach of any such duty; and thirdly, the causal connection between any such breach and the fire which occurred on or about the 7th February 1985.

Representation:

William Waung (M/s T.S. Tong & Co.) for Plaintiff/Appellant

Chang Sai Hung and Cheng Shek Wah, Defendants/Respondents in person