Chan Cheung v. Leung Kwok Wai and Others

FAMV No. 1 of 2006

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION 

MISCELLANEOUS PROCEEDINGS NO. 1 OF 2006 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACV NO. 107 OF 2003)

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Between:

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Appeal Committee: Mr Justice Bokhary PJ, Mr Justice Chan PJ and Mr Justice Ribeiro PJ

Date of Hearing: 3 March 2006

Date of Determination: 3 March 2006

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D E T E R M I N A T I O N

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Mr Justice Bokhary PJ:

1.This application for leave to appeal to the Court of Final Appeal arises out of a collision between two container vehicles, resulting in personal injuries to one of the drivers.  One vehicle was driven by the applicant.  He is the driver who was injured.  The other vehicle was driven by the 1^st respondent in the course of his employment with the 2^nd respondent.  It was in a service road that the collision took place.  That road was a nine-lane, one-way road serving the 3^rd respondent’s container terminal.

2.At the time of the collision the 1^st respondent was, as directed by the 3^rd respondent’s staff, making a U-turn in the service road.  This manoeuvre brought his vehicle broadside into the path of the applicant’s vehicle travelling along the service road.  As a result, the front of the applicant’s vehicle ran into the offside of the 1^st respondent’s vehicle.

3.The applicant sued the respondents for damages for personal injuries and consequential loss.  Suffiad J made four major findings.  First, the 1^st respondent was negligent in making a U-turn as he did.  Secondly, the 2^nd respondent was vicariously liable for such negligence.  Thirdly, the 3^rd respondent was in breach of its common duty of care as an occupier because its staff had directed a U-turn without sufficient manpower or facilities to see that done safely.  Fourthly and finally, the applicant was 60% contributorily negligent for failure to keep a proper lookout in that he had taken his eyes off the road in order to look for a seal to lock the container which he was delivering.

4.The Court of Appeal (Rogers VP, Le Pichon JA and Stone J) affirmed those findings and therefore the result which Suffiad J reached.  Differently constituted as to one member, the Court of Appeal (Rogers VP and Stone and Chu JJ) refused the applicant leave to appeal to the Court of Final Appeal.  The applicant now asks us for such leave.

5.Several points, some being different ways of saying the same thing, have been urged in support of this leave application.  Essentially these points go to two complaints made on the applicant’s behalf.  One of these complaints concerns the question of whether the applicant’s blameworthiness is to be considered against the combined blameworthiness of the respondents or against their individual blameworthiness.  In the appeal to the Court of Appeal it was submitted on the applicant’s behalf that Suffiad J had failed to consider the blameworthiness of the parties.  Considering that submission, the Court of Appeal queried the correctness of the “combined” approach, and considered what the allocation of blameworthiness ought to be on the “individual” approach.  It was after doing so that they affirmed the result reached by Suffiad J.

6.At the leave application to them, the Court of Appeal’s attention was drawn to the decision of the House of Lords in Fitzgerald v. Lane [1988] 3 WLR 356.  On the strength of that decision, the Court of Appeal accepted the correctness of the “combined” approach.  Rather than either immediately listing the appeal for re-argument before themselves or immediately sending the case to the Court of Final Appeal, the Court of Appeal hearing the leave application went into the question of what the allocation of blameworthiness ought to be on the “combined” approach.  Having done so, they remained satisfied that the result reached by Suffiad J ought to be affirmed.

7.In our view, the Court of Appeal hearing the leave application were correct in adopting the procedure of themselves going into the question which they did.  And we see no reasonable prospect of the answer which they gave to it being disturbed by the Court of Final Appeal given, as explained in Poon v. Hsin Chong Construction (2004) 7 HKCFAR 148 at pp 162-165, how much it takes to warrant disturbing a trial judge’s allocation of responsibility.  So the first complaint does not provide a proper basis for leave to appeal to the Court of Final Appeal, and we turn now to the other complaint.

8.It is against Suffiad J’s refusal to treat as evidence the contents of a statement made to the police by a Mr Chik Wing Pun, one of the 3^rd respondent’s security guards.  Although urged on the applicant’s behalf to treat those contents as evidence, Suffiad J refused to do so for the reason that Mr Chik was readily available as a witness if the applicant wished to call him. 

9.Before the Court of Appeal and now before us, efforts have been made on the applicant’s behalf to inject important questions of practice and indeed principle into the issue of this refusal.  However that may be, we have no reason to think that, even if he had treated the contents of Mr Chik’s statement as evidence, Suffiad J would have attached any weight to them in the face of the other evidence and the applicant’s unwillingness to call Mr Chik even though he was readily available as a witness.  In practical terms, the refusal cannot provide an arguable basis for disturbing concurrent finding of fact. 

10.Like the first complaint, the second one does not provide a proper basis for an appeal to the Court of Final Appeal.  In addition to those two specific complaints, Ms Christina Lee for the applicant advanced a more general argument on the basis of the “or otherwise” limb of s.22(1)(b) of the Court’s statute.  This argument involves in effect an invitation to look at apportionment of responsibility afresh on final appeal.  Such an invitation cannot be accepted.

11.Ms Lee has, as she should, said everything that can be said on behalf of the applicant for whom one naturally has sympathy.  It is unfortunate that he was injured and additionally unfortunate that he will receive only 40% of the damages assessed.  But it would not be a kindness to raise, only eventually to dash, his hopes by granting him leave to pursue an appeal that he has no reasonable prospect of winning.  In the result leave to appeal to the Court of Final Appeal must be - and is - refused.

Ms Christina Lee (instructed by Messrs Burke, Fung & Li and assigned by legal Aid Department) for the applicant

Mr Tung Ming Lee (instructed by Messrs Deacons) for the 1^st and 2^nd respondents

Mr Patrick D Lim (instructed by Messrs Dibb Lupton Alsop) for the 3^rd respondent