Lam Tam Luen v. Asia Television Ltd

CACV 134/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 134 OF 2007

(ON APPEAL FROM HCPI Nos. 1394 and 1395 OF 2003)

----------------------

HCPI 1394/2003

BETWEEN

HCPI 1395/2003

AND BETWEEN

----------------------

Before : Hon Le Pichon, Cheung JJA and Burrell J in Court

Date of Hearing : 19 February 2009

Date of Decision : 19 February 2009

Date of Reasons for Decision : 24 February 2009

-----------------------------------------

REASONS FOR DECISION

---------------------------------------

Hon Le Pichon JA :

1.I agree with the Reasons for Decision given by Cheung JA.

Hon Cheung JA :

2.This Court refused the plaintiff’s application for leave to appeal out of time to the Court of Final Appeal against the judgment (Rogers VP, Cheung JA and Burrell J) dated 20 May 2008.  I now give my reasons.

3.The application is out of time by one day.  Mr. Martin Lee, SC accepted that he has to show there are merits to the appeal.

Special relationship

4.In terms of law there is no controversy that there must be a special relationship between the defendant and the deceased in order to render the defendant liable for the wrongful acts of Tang.

Causation and foreseeability

5.In terms of facts, Mr. Lee challenged the findings of Suffiad J and this Court on causation and foreseeability.

Concurrent findings of fact

6.The significance of concurrent findings of fact has been dealt with by the Court of Final Appeal in a series of cases such as Sky Heart Limited v. Lee Hysan Estate Company Limited (1997-98) 1 HKCFAR 318, Kwan Siu Man v. Yaacov Ozer (1997-98) 1 HKCFAR 343 and Chan Wai Sun v. Oceanic Wing Ltd and Ano. FACV No. 24 of 2005.

7.In my view the plaintiff has not shown that the concurrent findings of fact can be challenged by reason of miscarriage of justice or violation of some principle of law or procedure.  The plaintiff is simply advancing the same grounds which she claims support her case on causation and foreseeability.  These issues have been addressed.

Question of great general public importance

8.The question of great general or public importance as framed by the plaintiff is that :

‘Is a defendant, a television broadcasting station, liable to a plaintiff who appeared as a guest in the defendant’s programme for the harm deliberately inflicted on the plaintiff by a third party who was portrayed in a very poor light in the said programme and who was suffering from delusional disorder at the time of the pre-mediated attack on the plaintiff in circumstances where it was the defendant’s negligence and/or breach of contract which brought the plaintiff into the delusional world of that third party?’

9.I am of the view that no such question arises in this case.  The decision is fact specific and deals with the claim between the plaintiff and the defendant.  No general question relating to the role of a public television station arises at all.

Conclusion

10.The application was accordingly dismissed with costs to the defendant.

Hon Burrell J :

11.I agree.

Mr. Martin Lee, SC & Mr. Y. L. Cheung, instructed by Messrs Ho, Tse, Wai & Partners, for the Plaintiff

Mr. Mohan Bharwaney, SC, instructed by Messrs Waller Ma Huang & Yeung, for the Defendant