Case Document

100%Judiciary

CACV000171A/1999

CACV 171/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 171 OF 1999

(ON APPEAL FROM HCPI 27 OF 1999)

BETWEEN
	CHAN SIU LUN	Plaintiff (Appellant)

	AND

	HUI CHO YEE	1st Defendant/1st Respondent
	LEE SHING KEUNG	2nd Defendant/2nd Respondent

Coram: Hon. Leong & Wong, JJ.A. in Court

Date of hearing: 13 October 1999

Date of delivery of judgment: 13 October 1999

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J U D G M E N T

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Leong, J.A. (giving the jugement of the Court):

1. The appellant was injured in an accident in December 1988. As a result he suffered personal injuries. On 4th October 1991, he issued a writ claiming damages from the owner (1st defendant) and the driver (2nd defendant) of the vehicle involved in the accident. His statement of claim alleged as follows:

"1. At all material times, the 1st Defendant was the owner of a private BMW car registration number BY 739 ('the said car') and employed the 2nd Defendant as a chauffeur.

2. At all material times the 2nd Defendant was the driver of the said car.

3. On the evening of the 7th day of December 1988, the Plaintiff was running in Cloud View Road at the junction of Tin Hau Temple Road when the 2nd Defendant so negligently drove managed and controlled the said car that he caused or permitted the same violently to collide with the Plaintiff and knocked him down.

Particulars of Negligence

(a) Driving at a speed which was too fast in the circumstances;

(b) Failing to keep any or any proper lookout or to have any or any sufficient regard for the Plaintiff;

(c) Failing to see the Plaintiff in sufficient time to avoid colliding with him or at all;

(d) Failing to give any or any adequate warning of his approach;

(e) Failing to heed the presence of the Plaintiff in the said Road; and

(f) Failing to stop, slow down, swerve or in any other way so to steer, manage, control or manoeuvre the said car as to avoid colliding with the Plaintiff."

2. Paragraph 4 of the statement of claim alleged that in consequence of the above negligence the plaintiff has suffered loss and damages, pain and suffering. It then set out the particulars of injury.

3. The appellant's claim was heard in the Court of First Instance of the High Court before Nguyen, J. On 17th May 1998, Nguyen, J. found negligence on the part of both the appellant and the 2nd defendant. He gave judgment in the appellant's favour and having regard to the appellant's contributory negligence, awarded him damages totalling $267,852.

4. The appellant was dissatisfied with this judgment and he appealed to the Court of Appeal and on 12th November 1998, the Court of Appeal allowed his appeal and increased the award to $322,934.

5. The appellant remained dissatisfied and sought to appeal to the Court of Final Appeal but his application for leave to appeal to that Court was dismissed by the Court of Appeal and the Court of Final Appeal on 25th November 1998 and 21st December 1998 respectively.

6. Apparently the appellant was not satisfied and he persisted his action and on 11th January 1999 he issued fresh proceedings against the same two defendants. The allegations in the statement of claim of the new action are identical to those in the former action except that the particulars of injuries are in much more details and include particulars as to his mental condition after the accident. The fact remains that the appellant's new action was based on the same cause of action and claiming the same relief against the same parties.

7. On 11th June 1999, Registrar Chu ordered that the appellant's new action be dismissed on the ground of "res judicata". The appellant appealed against the Registrar's order and his appeal was dismissed by Cheung, J. on 24th June 1999. The Judge in his judgment said:

"The Plaintiff is now suing in this action on the same cause of action he had relied upon in the previous action and also against the same parties. This he cannot do. The principle is that the same cause of action cannot be litigated again when it had already been adjudicated upon. The only basis relied upon by the Plaintiff to continue with the present action is that he has some additional evidence not previously disclosed in the earlier action. This is not good enough. Leave to adduce fresh evidence must be made to the appellate courts in the earlier action. Whether such leave would be granted or not is a different consideration."

8. The Judge also said that the matter of assessment of medical evidence and other evidence had already been fully considered in the previous action and the matter could not be litigated again.

9. The appellant appealed against this judgment. His grounds are that the Court had not gone into the merits of his case and therefore it was not an abuse of process for him to re-litigate on the matter. He also submits that the Court had been misled by untrue statements adduced by the defendants and their medical witnesses and this would be evident in the light of the new evidence by the American Psychiatric Association. The Court was therefore wrong not to have permitted him to adduce such new evidence from the American Psychiatric Association and to show that this Association was the leading medical institution on "Depressive Disorder" and "Obsessive Compulsive Personality Disorder", a condition he has suffered as a result of the accident.

10. The appellant relies on Jelson (Estates) Ltd. v. Harvey [1983] 1 WLR 1401. Suffice to say this case has established no more than where there is only procedural error and the case has been disposed of on that basis and the Court has not gone into the merits of the case, it would not be an abuse of process for the parties to re-litigate on the same matter.

11. In the present case, the Court had gone into the merits of the case. The trial Judge had considered in detail the medical evidence of the appellant and the respondents at the trial including the appellant's psychological and emotional status, his chances of suffering from depression and the chances of having a "psychiatric or psychotic decompensation" under stressful events. These were gone into during the appellant's appeal to the Court of Appeal. The appellant had plenty of opportunities to adduce the new evidence both at the trial and in his appeal before the Court of Appeal, but he had not done so. In any case, what is alleged in his new action as regards his psychiatric and psychological health was caused by the same negligent act of the same defendants. These injuries were not injuries not discoverable or revealed until after the award of damages to him.

12. Bowen, L.J. in Brunsden v. Humphrey [1884] 14 QBD 141 at 147 made the principle clear in the following paragraph in his judgment:

"... It is a well settled rule of law that damages resulting from one and the same cause of action must be assessed and recovered once for all. ... 'The principal consideration,' says De Grey, C.J., in Kitchen v. Campbell, 'is whether it be precisely the same cause of action in both, appearing by proper averments in a plea, or by proper facts stated in a special verdict, or a special case.' 'And one great criterion,' he adds, 'of this identity is that the same evidence will maintain both actions.' See per Lord Eldon in Martin v. Kennedy. 'The question,' says Grose, J., in Seddon v. Tutop, 'is not whether the sum demanded might have been recovered in the former action, the only enquiry is whether the same cause of action has been litigated and considered in the former action."

13. The opinion of Sankey, L.J. in Conquer v. Boot [1928] QB 336 at 340 is that "in personal injury cases damages are assessed once and for all."

14. In Yat Tung Investment Co. Ltd. v. Dao Heng Bank Limited [1975] AC 581 at 589 - 590, Lord Kilbrandon had this to say on the plea of "res judicata":

"The second question depends on the application of a doctrine of estoppel, namely res judicata. .... But there is a wider sense in which the doctrine may be appealed to, so that it becomes an abuse of process to raise in subsequent proceedings matters which could and therefore should have been litigated in earlier proceedings. The locus classicus of that aspect of res judicata is the judgment of Wigram V.-C. in Henderson v. Henderson (1893) 3 Hare 100, 115 where the judge says:

'... where a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.'

The shutting out of a 'subject of litigation' - a power which no court should exercise but after a scrupulous examination of all the circumstances - is limited to cases where reasonable diligence would have caused a matter to be earlier raised; moreover, although negligence, inadvertence or even accident will not suffice to excuse, nevertheless 'special circumstances' are reserved in case justice should be found to require the non-application of the rule."

15. We do not see how in the circumstances of the appellant's case, the doctrine of "res judicata" would not prevent him from pursuing his new action which was no more than re-litigation on a cause of action which had been fully adjudicated on its merits by a court of competent jurisdiction. The decision of Cheung, J. in dismissing his appeal against the Registrar's order striking out his new action must be correct. The appeal is therefore dismissed with costs to the respondents.