Secretary for Justice v. Tang Siu Kwan
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DCCJ 4023/2005 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO. 4023 OF 2005 ------------------------ BETWEEN
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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 the Defendant on 14 November 2005. 2.The Plaintiff's case is that on 26 January 2003, a vehicle registration no. KS6130 driven and owned by the Defendant hit and damaged a public light pole no. FB9094 and hence the Defendant is liable to compensate the Plaintiff pursuant to Section 6 of the Public Lighting Ordinance, Cap. 105 and also for the tort of negligence. 3.I accept, on all the evidence that is available before me, that the above event did in fact take place. Negligence and Res Ipsa Loquitur 4.It is the Plaintiff's case that the Defendant was negligent and the Plaintiff had sought to rely on the "doctrine" of Res Ipsa Loquitur. 5.The Traffic Accident Report prepared by the police contained a summary of the police's finding as to how the accident occurred. It reads "V was traveling along Tin Ha road towards Castle Peak road from Lau Fau Shan. On reaching A/L, D swerved to the right for avoiding an unk. Truck which overtaking from opposite direction. The front part of D rammed into the lamp post which was erected at the right hand side of the road. As a result, D had minor inured to the D and damaged to V and lamp post." That is the only available evidence concerning the circumstances of the accident. I accept such evidence. 6.It is clear that the facts here can afford no scope for the Res Ipsa Loquitur mode of inferential reasoning to operate so as to affix the Defendant with liability: Sanford Building Contractors Limited v. Li Kai Cheong, FACV No. 16 of 2002, 27 June 2003 applied. There can be no finding of negligence against the Defendant on such facts. 7.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. 8.If the Plaintiff is to succeed in recovering damages against the Defendant, the Plaintiff would have to rely on the rights created under the Public Lighting Ordinance. Title to sue 9.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. 10.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. 11.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. 12.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). 13.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. 14.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. 15.The deeming provision above operates "in relation thereto". What does this "thereto" refer to? 16.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. 17.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. A hit-and-damage situation cannot by any stretch of imagination be equated to something related to the "removing, taking, carrying away or stealing of" public light poles etc. 18.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 19.The Plaintiff has sought to rely on Section 6 of the Public Lighting Ordinance in relation to its right to payment by the Defendant. I consider the Plaintiff to be so entitled. 20.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 thanwilfully, 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." 21.Clearly the 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. 22.Although Section 6 does not say anything about to whom the payment is to be made, I consider it proper to order the Defendant to pay the Plaintiff. Quantum 23.I find the quantum of damages claimed, being $5,004.22 as to labour and cost of material for the repair and $1,000.84 as to the Plaintiff's administrative costs in relation thereto entirely reasonable. Order 24.In the circumstances, the Plaintiff has succeeded in its claim and I would order the Defendant to pay the Plaintiff the sum of $6,005.06 together with interest thereon at Judgment rate from 18 August 2005, 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 Defendant: unrepresented, absent |
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