Wong Chun Lan v. Wu Wai Kuen

HCPI 1102/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1102 OF 2004

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BETWEEN

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Before : Deputy High Court Judge Carlson in Chambers (Open to the public)

Date of Hearing : 20 July 2005

Date of Judgment : 20 July 2005

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J U D G M E N T

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Introduction

1.This is an appeal from an order of Master Betty Kwan dated the 19^th April 2005 whereby she entered judgment for the Plaintiff under Order 18 Rule 19 of the Rules of the High Court on the basis that the Defendant had no reasonable cause of defence and directed that the Plaintiff’s damages were to be assessed.

2.Such an order is sparingly made, the Court reserving its jurisdiction to enter judgment in this way only in cases where on any view of the matter the Plaintiff’s case is unanswerable.  In this matter the Master decided to make the order of her own motion on the Check List Review hearing – the Plaintiff not having asked for judgment to be entered in this way.  Nevertheless, the Master was perfectly entitled to take the course that she did.  The question which I need to decide is whether she was correct to have taken this undoubtedly draconian measure on the facts of this case.

The apparent issues

3.The material facts would not appear to be in dispute.  The Plaintiff was a petrol pump attendant employed at an Esso Petrol Station at Yuen Long.  At just after 3a.m. on the 6^th March 2003 the Defendant drove his Toyota motor car into the station and asked the Plaintiff to put $100 worth of petrol in it for which he gave the Plaintiff a $100 note in pre-payment and his Esso bonus card.  The petrol filler cap on this model of car is on the nearside of the vehicle which was the side nearest to the petrol pump.  The Defendant remained seated in the driver’s seat throughout.  The Plaintiff then inserted the nozzle of the fuel line into the filler aperture and shortly after that she walked around to the driver’s window and returned the bonus card to the Defendant, first having swiped it into the petrol pump so as to record the Defendant’s $100 purchase.  She then walked away and out of the Defendant’s sight.  The fact that she had returned the card, walked out of his sight and given the limited amount of time that would have been required to put $100 worth of petrol into the vehicle led the Defendant to believe that the transaction had been completed.  This being what he thought, the Defendant then put the car into gear and began to move forward.  What he had not seen was that the Plaintiff was at that moment still tending the fuel line, whose nozzle was still inserted into the car’s petrol tank.  The car’s forward movement caused the nozzle to jump out of the fuel tank sharply and it struck the Plaintiff in the face breaking her jaw.

4.The Plaintiff’s version differs in one respect which I must recount but this does not alter, in any relevant sense, the overall circumstances which gave rise to this unfortunate accident.  What the Plaintiff says is that she had asked the Defendant how much petrol he wanted and he told her $100 worth and gave her his bonus card.  She then took the card, swiped it and keyed in the $100 sale into the pump and put the nozzle into the tank to start the fuelling process.  She then went back round to the driver’s window, returned the bonus card and was given the $100 note at that point.  She then returned to the rear nearside of the car to complete the fuelling of the vehicle whereupon, the vehicle unexpectedly moved forward causing the nozzle to jump out and hit her on the face.

5.The police attended the petrol station and following their investigation the Defendant was summoned for careless driving to which he pleaded guilty and was fined $900.  Perfectly properly, this is relied on by the Plaintiff as evidence of negligence by the Defendant.

6.On the pleadings the defence deny negligence and also plead contributory negligence, the main thrust of which is that the Plaintiff’s conduct overall had led the Defendant to believe that the re-fuelling had been completed and that it was safe for the Defendant to drive off as he was in the process of doing.

The Prospects

7.Putting it as its most neutral this is clearly a case where the Defendant is highly likely to be shown to have been negligent in coming to the assumption that the re-fuelling of his car had been completed.  The only live issue is likely to be whether the Plaintiff should suffer a reduction in her damages by virtue of contributory negligence.  In taking the course that she did the Master must have considered firstly, that the Defendant was “dead in the water” on negligence and also, that the plea of contributory negligence was a non-starter.

The Law

8.Mr Patrick Lim for the Defendant, addresses the matter correctly by posing the question, “Has the Defendant got a reasonable cause of defence?”  A reasonable cause of action [or of defence] means a cause of action with some chance of success when only the allegations in the pleadings are considered.  See Lord Pearson in Drummond- Jackson v. BMA (1970) 1WLR 688.  “So long as the Statement of Claim (or the defence) on the particulars disclose some cause of action, or raise some questions fit to be decided by a judge or jury, the mere fact that the case is weak and not likely to succeed is not a ground for striking it out”.  [para. 18/19/6 HK Civil Procedure 2004].

9.Miss Susanna Leong, for the Plaintiff, submits that the Defendant’s “life-line” based on his plea of contributory negligence cannot stand up to proper analysis.  She says, correctly in my view, that the standard of care in contributory negligence is what is reasonable in the circumstances, which requires forseeability of harm to oneself.  She expresses it in this way:

“Ought the Plaintiff reasonably to have foreseen that the Defendant, or any driver, would have relied only on the return of the bonus card as an indication that the transaction had been completed so that it was safe for him to drive away?”

She submits that the answer to that question is no – because he could and should have done more by, for instance, checking his side mirrors.

10.She has also sought to analyse out of the case the other allegations of contributory negligence.

Conclusion

11.My view of this is that this is a weak case of contributory negligence but that it is one that ought to be allowed to go forward to trial.  The Defendant, through his counsel should be permitted to explore all the relevant circumstances with the witnesses including, the fact that this $100 transaction, even though petrol prices may have been lower in 2003 than they are today, was always going to be a short one.  Whilst the Order 18 rule 19 jurisdiction is a salutary one which should be exercised to put to an end patently hopeless cases at the earliest possible moment, this is not one of those cases.  Weak certainly, but not one that has no chance of success.  It should be allowed to go to trial.  The appeal must therefore be allowed and the learned Master’s interlocutory judgment set aside.

Miss Susanna Kong instructed by Messrs Simon Si & Co., for Plaintiff

Mr Patrick Lim instructed by Messrs Lau, Chan & Ko, for Defendant