China Light and Power Company, Limited v. China Harbours Engineering Company

HCA001628/1985

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

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Coram: Mantell J. in Chambers

Date of hearing: 5th July, 1985

Date of delivery of judgment: 5th July, 1985

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JUDGMENT

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1. This is an appeal from a decision of Master Hansen, given on 25th of June, 1985 by which he ordered that judgment obtained by the Plaintiff on 15th May be set aside and the Defendant be at liberty to file a defence.

2. China Light and Power had laid certain of its electricity supply cables in the roadway at Tuen Mun. The Defendants are building contractors, and during the course of work, carried out in 1984 for the government dug up sections of this particular roadway, which is the New Lung Mun Road, and in so doing, damaged cables belonging to the Plaintiff. The case for the Plaintiff is that that damage was done as a result of negligence by the Defendant.

3. The defence put before the Master in draft form, denied negligence. It avers that in regard to the damage which was done on 7th May 1984 it had itself dug trial holes to determine the line of the cables and it is admitted that prior to starting work they have seen a copy of letter which enclosed the site plans for the cable. The case put forward is that notwithstanding the trial excavations it was misled as to the direction of the cable because it did not follow the line of the kerb at a uniform distance and therefore they were not negligent. Whatever the merit of that defence may be, or turn out to be at the hearing, it seems to me that it does raise the issue of negligence or no negligence on the pleadings and an arguable defence and so far as that is concerned the Master was right to set aside judgment.

4. There was a second occasion when damage occurred, the 15th of July, 1984. The case put forward by the Defendant, is that the damage was done by a sub-contractor who dug up the road without their knowledge or supervision. A sophisticated argument is put forward by Mr. Smith for the Plaintiff that by the wording of the defence it is impliedly admitted that this sub-contractor was not an independent contractor and therefore that on the pleadings they must be liable for his negligence which it is said is also impliedly admitted. I do not read the pleadings in that way, I am afraid, and I am sure that such was not the intention of the learned pleader whoever he might be. Consequently, it seems to me that there is a defence raised on the pleadings as to whether or not the act which caused this second piece of damage was an act for which the Defendant is vicariously responsible. Consequently, I have formed the view that the Master was right in his decision in setting aside the default judgment and giving the Defendant leave to file a defence. This appeal is dismissed with costs.

Representation:

Clifford Smith instructed by Gary W. Cust for Plaintiff/Appellant

Patrick Chan instructed by Liu, Chan and Lam for Defendant/Respondent