Secretary for Justice v. Ng Kwan Lung and Another
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DCCJ 480/2006 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO. 480 OF 2006 ------------------------ BETWEEN
------------------------ Coram: Deputy District Judge R. Cheung in Court Date of Hearing: 2nd January 2007 Date of Handing down Assessment of Damages: 12th January 2007 ----------------------------------------- ASSESSMENT OF DAMAGES ----------------------------------------- 1.The hearing was for assessment of damages. Default Judgment was entered against both the 1st Defendant and the 2nd Defendant on 13 June 2006. 2.The Plaintiff's case is that on 19 February 2003, a vehicle registration no. JF2521 driven by the 2nd Defendant and owned by the 1st Defendant hit and damaged a public light pole no. K6422 and hence they were liable to compensate the Plaintiff pursuant to Section 6 of the Public Lighting Ordinance, Cap. 105. 3.I accept, on all the evidence that is available before me, that the above event did in fact take place. 4.The accident resulted in two pedestrians being killed and the damage of six pedestrian railing and one light post. The evidence before me does not show that the Defendants were negligent. The Police Traffic Accident Report does not indicate that any action was contemplated against the 2nd Defendant. There is no averment in the pleading that the Defendants were negligent. There cannot be any finding of negligence against the Defendants. 5.The tort of trespass to goods cannot assist the Plaintiff. The authorities appear to be fairly clear on this point: "Assuming that some damage has been caused, is negligence necessary for liability for unintentional trespass to goods? The answer is clearly yes but the traditional view is that once a direct injury has been proved the defendant bears the burden of proving "inevitable accident" as a defence. However, since the decision in Fowler v. Lanning, which held that in an action for unintentional trespass to the person the plaintiff must prove negligence on the part of the defendant the same may be true of cases of trespass to goods, though the matter cannot be regarded as finally settled." per Winfield & Jolowicz on Tort, 13th edition, page 469 . Also, "Apart from the requirement that the interference must be of a direct nature, there must be some blameworthy state of mind in the trespasser. An accidental interference of a non-negligent nature is not a trespass" per Clerk & Lindsell on Torts, 19th edition, para 17-124 . 6.If the Plaintiff is to succeed in recovering damages against the Defendants, the Plaintiff would have to rely on the rights created under the Public Lighting Ordinance. Title to sue 7.I take judicial notice that the Director of Highways was and is in possession of the public lighting system in Hong Kong of which the subject public light pole forms part. This possessory title is a sufficient title to sue: O'Sullivan & Another v. Williams (1992) 3 All E.R. 385 applied. 8.Insofar as pleadings are concerned, although the Plaintiff has not expressly pleaded its possessory title to sue, I am prepared to accept that the Plaintiff's possession of the public light pole in question is an event which constitutes a condition precedent necessary for the case of the Plaintiff, and hence it is to be regarded as already so pleaded by necessary implication, pursuant to Rule 7(4) of the Rules of the District Court, Cap. 336. Alternatively, matters within the province of judicial notice need not be expressly pleaded. 9.It is the Plaintiff's case that Section 3 of the Public Lighting Ordinance also confers on the Plaintiff a title to sue. I accept that to be correct. 10.Section 3 is in the following terms: "The laws relating to the removing, taking, carrying away or stealing of fixtures and chattels respectively shall be interpreted to apply to the removing, taking, carrying away or stealing of any of the posts, standards, brackets or lamps provided under this Ordinance; and the property of and in all or any of such posts, standards, brackets or lamps shall be deemed to be vested in the Director of Highways for all the purposes of any proceedings, civil or criminal, in relation thereto" (emphasis my own). 11.Section 3 contains inter alia a deeming provision to the effect that the property of public light poles etc. provided under the Public Lighting Ordinance is vested in the Director of Highways. 12.I take judicial notice that the Director of Highways was and is under the Public Lighting Ordinance responsible for providing, and has in fact provided, the public with an adequate system of public lighting of which the public light pole in question formed part. 13.The deeming provision above operates "in relation thereto". What does this "thereto" refer to? 14.One plausible way to read Section 3 is to treat the deeming provision as operative in legal proceedings in relation to all public light poles etc. provided under the Public Lighting Ordinance. This wider view enables the deeming provision to operate in the present case. 15.Another plausible way of reading Section 3 is to treat the deeming provision as operative only in legal proceedings in relation to the "removing, taking, carrying away or stealing of" such public light poles etc. This narrower view means that the deeming provision cannot operate on the facts of the present case. An accidental hit-and-damage situation cannot by any stretch of imagination be equated to something relating to the "removing, taking, carrying away or stealing of" public light poles etc. 16.I bear in mind that the Public Lighting Ordinance was passed with the following stated purpose: "To provide for the public lighting of Hong Kong and for the protection of the appliances used in connexion therewith". The heading of Section 3 reads "Property in lamp posts and lamps to be vested in Director of Highways". I consider that the Legislature had intended the deeming provision to be of general application and the wider view above is the correct view of the law. Section 6 of the Public Lighting Ordinance 17.The Plaintiff has sought to rely on Section 6 of the Public Lighting Ordinance in relation to its right to payment by the Defendants. I consider the Plaintiff to be so entitled. 18.Section 6 is in the following terms: "When any damage or injury has been occasioned to any of the posts, standards, brackets or lamps provided under this Ordinance by any person otherwise than wilfully, and such person has not made satisfaction for the same, the District Court shall, where proceedings are commenced in respect of such damage or injury, order the said person to make full satisfaction for the amount of such damage or injury, together with all incidental costs and expenses." 19.Clearly the 2nd Defendant is liable under Section 6 to make payment. He had damaged the public light pole in question. The evidence does not show that to be awilful act. Negligence is not a necessary ingredient for the liability under Section 6 to arise. 20.Although Section 6 does not say anything about to whom the payment is to be made, I consider it proper to order the 2nd Defendant to pay the Plaintiff. Vicarious Liability 21.Apart from the evidence that the 1st Defendant was the owner and the 2nd Defendant was the driver of the vehicle in question at the time of the accident, there is no evidence as to their relationship or as to for what purpose the vehicle was being driven at the time. Nevertheless, I consider that in the absence of evidence to the contrary, ownership per se is sufficient for an inference to be drawn that prima facie the 1st Defendant is vicariously liable for the 2nd Defendant's act, and since such prima facie evidence has not been rebutted, I would find the 1st Defendant as vicariously liable for the 2nd Defendant's act: Rambarran v. Gurrucharran (1970) 1 All E.R. 749 applied. Quantum 22.I find the quantum of damages claimed, being $1,820 as to labour and cost of material for the repair and $364.00 as to the Plaintiff's administrative costs in relation thereto entirely reasonable. Order 23.In the circumstances, the Plaintiff has succeeded in its claim and I would order the 1st Defendant and the 2nd Defendant to jointly pay the Plaintiff the sum of $2,184.00 together with interest thereon at Judgment rate from 27 January 2006, the date of the Writ herein, until satisfaction. There be an Order Nisi that the costs of this action be to the Plaintiff, to be taxed if not agreed. Unless an application is made to vary the same, the Order Nisi shall become absolute in 14 days.
Representation: Mr. Chong Moon Hing, Senior Government Counsel of Department of Justice, for the Plaintiff The 1st Defendant: unrepresented, absent The 2nd Defendant: appearing in person |