Waan Chuen Ming v. Lo Kin Nam t/a Kar Kin Engineering & Supplier Co and Another
Read the full judgment text of CACV 281/2008 on BabelCite. This Court of Appeal judgment was delivered on 12 October 2009 before Tang VP, Cheung JA and Stone J.
Tort law – duty of care – employer of independent contractor – provision of chattel for contractor's use – foreseeability of harm – proximity – whether liability depends on contractor relationship – Court of Appeal majority (Tang VP and Cheung JA; Stone J dissenting) found 2nd defendant liable as joint tortfeasor where 2nd defendant supplied pallet jack and roller trolley used to move stentering machine in unsafe manner – Application for leave to appeal to Court of Final Appeal – Whether proposed grounds involved questions of great general or public importance – First question framed too broadly to be meaningful; second question did not arise from judgment which was based on Spring v Guardian Assurances plc foreseeability/proximity/just-reasonableness test rather than employer–contractor distinction – Court of Appeal emphasised liability did not depend on relationship between parties; same result would follow for innocent visitor or bystander – Powerful dissent alone insufficient to justify leave – Leave refused with costs – 'or otherwise' basis for leave generally within determination of CFA Appeals Committee – 2nd Defendant subsequently granted leave by CFA Appeal Committee (FAMV55/2009 dated 4 December 2009).
Legal issues: Whether leave to appeal to Court of Final Appeal should be granted for questions concerning duty of care owed by employer to independent contractor's employee
Outcome: Application for leave to appeal to the Court of Final Appeal dismissed; 2nd defendant's leave application to CFA Appeal Committee subsequently granted (FAMV55/2009 dated 4 December 2009).
Cited by 5 cases
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CACV 281/2008 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO. 281 OF 2008 (ON APPEAL FROM HCPI 588 and 591 OF 2003 (Consolidated)) ----------------------
(Consolidated by the Order of Master B. Kwan dated 7th June 2004) ---------------------- Before: Hon Tang VP, Cheung JA and Stone J in Court Date of Hearing: 7 October 2009 Date of Decision: 7 October 2009 Date of Reasons for Decision: 12 October 2009 ------------------------------------- REASONS FOR DECISION ------------------------------------- Hon Tang VP: 1.By a majority we had allowed the plaintiff’s appeal (Stone J dissenting). 2.The plaintiff was an employee of the 1st defendant. The 1st defendant was engaged by the 2nd defendant to repair and maintain the 2nd defendant’s stentering machine at the 2nd defendant’s factory. The accident occurred during the moving of the stentering machine. 3.The stentering machine was moved by a pallet jack and a roller trolley provided by the 1st defendant to the 2nd defendant. 4.In my judgment I said:
5.On that basis, I was satisfied and agreed with the analysis of Cheung JA that:
6.This is the 2nd defendant’s application for leave to appeal on the basis that two questions of great general public importance are involved in the appeal. These question are:
7.The first question is very broadly based, so broadly based as to be meaningless. Surely the answer must depend on the circumstances. 8.The second question does not arise from our judgment. Cheung JA who after a detailed discussion of the authorities on the distinction between ‘activity duty’ and ‘occupancy duty’ did not find it necessary to rest his judgment on the distinction. He held that the 2nd defendant owed a duty of care to the plaintiff on the basis of the judgment of Spring v Guardian Assurances plc [1995] 2 AC 296, namely, the foreseeability of damage; proximity of relationship and justice and reasonableness. 9.Mr McCoy SC, appearing for the 2nd defendant, submitted that our decision involved an important extension of the pre-existing law, and the questions of law suggested by him involved a close consideration of the intrinsically important and practically significant area of tort law involving the duty of care owed by an employer to an independent contractor utilizing a chattel provided for that contractor to operate. 10.He also argued that if any duty of care was owed by the applicant to the independent contractor, the extent of the duty would have to take account of the independent functions of the contractor: To equate the duty with that owed by an employer to his employer would be to give no weight to the very circumstance which differentiates contractors from employees. 11.However, as a reading of my own judgment would show, although on the facts the plaintiff was an employee of the 1st defendant and the 1st defendant was an independent contractor of the 2nd defendant, our judgments did not depend on such relationship. The plaintiff might have been an innocent visitor to the factory who was not in the employment of either defendant. Indeed, as was mentioned during the hearing of the appeal, if the accident had occurred whilst the stentering machine was being moved outside the factory of the 2nd defendant and the stentering machine had fallen on a bystander the result have been the same. In other words, liability did not depend on the relationship of the parties at all. 12.Mr McCoy also mentioned the possibility of leave being granted on the “or otherwise” basis. He mentioned the fact that there is a powerful dissenting judgment from Stone J. That may be so but it is not a sufficient reason for leave to be given. 13.For the above reasons, I dismissed the application for leave with costs. Hon Cheung JA: 14.I agree. Hon Stone J: 15.A decision having been reached in this appeal different from that which I favoured, I hope I may be forgiven for taking take the view that this matter usefully could be considered by the Court of Final Appeal. 16.However, in light of the judgments of Tang VP and Cheung JA upon this application, it is clear that Mr McCoy has not been able to get home on his argument for the grant of leave under section 22(1)(b), and in this context I recognize the force of their view that he does not thus succeed. 17.As to leading counsel’s alternative argument for the grant of leave under the “or otherwise” provision, as I understand the position this basis generally is regarded as being within the determination of the Appeals Committee of the territory’s highest court, to which the 2nd defendant presumably now will consider making a further leave application.
Mr Gerard McCoy, SC, instructed by Messrs King & Co., for the 2nd Defendant Mr Neville Sarony, SC & Mr Y. L. Cheung, instructed by Messrs Samuel Li & Co., assigned by the Director of Legal Aid, for the Plaintiff 2nd Defendant's leave to appeal to Court of Final appeal granted by Appeal Committee of Court of Final Appeal. Please refer to FAMV55/2009 dated 4 December 2009 |
Other judgments that cite this case
Further hearings and rulings under CACV 281/2008