YAU KAM CHING v. CHEUNG SHUN KAU

HCMP 1339/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 1339 OF 2014

(ON AN INTENDED APPEAL FROM DCPI NO. 522 OF 2012)

________________________

________________________

____________________

D E C I S I O N

____________________

Hon Kwan JA (giving the decision of the Court):

1. This is the defendant’s application for leave to appeal against the judgment of HH Judge Alex Lee on 17 March 2014 given after a four-day trial (“the Judgment”). The judge refused leave to appeal on 22 May 2014 and handed down his reasons for ruling of 12 pages on 6 June 2014 (“the Reasons for Ruling”). The defendant renewed his application to this court by a summons issued on 4 June 2014, even before his legal advisers had the benefit of considering the Reasons for Ruling.

2. Pursuant to the powers given in Order 59 rule 2A(5) of the Rules of the High Court, we determine this application on paper without an oral hearing.

3. The test for granting leave is clear.  The requirement in section 63A of the District Court Ordinance, Cap 336 must be satisfied.  It must be shown that the appeal has a reasonable prospect of success or that there is some other reason in the interests of justice that the appeal should be heard.  It is well established that a reasonable prospect of success means an appeal with prospects that are more than fanciful but do not need to be shown to be probable.

4. The plaintiff claimed damages for negligence sustained in a traffic accident when she was knocked down by a taxi driven by the defendant.  The judge found negligence proved against the defendant in that he had driven at a speed excessive in the circumstances.  He held that the plaintiff’s negligence was the major contributing cause of the accident, as she had not stopped to check the traffic condition when she emerged from two rows of cars parked on the right side of the road to cross the road.  He apportioned 70% of the blame to the plaintiff and 30% to the defendant.  Total damages were assessed at $462,405, and the plaintiff’s award was therefore reduced to $138,721.50.

5. The defendant’s intended appeal is against liability only.  Five grounds of appeal running up to eight pages were advanced in the draft notice of appeal.  It appears to us that the grounds of appeal in the draft notice are substantially if not entirely the same as the grounds considered by the judge in the Reasons for Ruling.

6. We do not propose to summarise the judge’s findings in the Judgment or his reasons for rejecting the grounds of appeal as reasonably arguable.

7. At the heart of this intended appeal is the attack on these two findings of the judge, which formed the basis of his holding that the defendant was negligent:

(1)   The judge rejected the defendant’s evidence that he applied the brake immediately after he heard the “Bang” sound.  The judge drew the inference that the defendant saw the plaintiff emerging and applied the brake when he was still some distance away from the point of collision but was unable to stop in time.  This inference was based on the original travelling speed of the defendant, the judge’s analysis of the total stopping distance given the speed and the brake marks left on the road, the blood stain in the police sketch showing the position where the plaintiff was lying immediately after the accident, and the fact that the plaintiff’s leg was trapped by the front right wheel immediately after the taxi had stopped (the Judgment, §§30 and 31; the Reasons for Ruling, §§12 to 15).

(2)   The defendant had driven at a speed excessive in all the circumstances, which would have taken him 10 metres or even more to bring the taxi to a halt, as he was aware of the risk of pedestrians emerging from between parked vehicles, that his vision of the pavement on the right was obstructed by the rows of doubly parked cars, and that the width of the road was so reduced by cars parked on both sides (the Judgment, §36; the Reasons for Ruling, §13).

8. Mr Martin Wong submitted for the defendant that even though he seeks to challenge the judge’s findings of fact, it is not an attack on a primary finding of fact or a finding involving credibility but is one of inference only.

9. For the proper approach which an appeal court should take in an appeal against a finding of negligence, these statements of Lord Hoffmann provide most useful guidance:

“The judge is deciding a question of mixed fact and law in that he is applying the standard laid down by the courts to the facts of the case[1]. It is in principle no different from the decision as to whether someone has been negligent or whether a patented invention was obvious: see Benmax v Austin Motor Co Ltd [1955] AC 370. On the other hand, the standards applied by the law in different contexts vary a great deal in precision and generally speaking, the vaguer the standard and the greater the number of factors which the court has to weigh up in deciding whether or not the standards have been met, the more reluctant an appellate court will be to interfere with the trial judge’s decision.” (Re Grayan Building Services Ltd [1995] Ch 241 at 254)

“The question of whether an invention was obvious[2] had been called “a kind of jury question” (see Jenkins LJ in Allmanna Svenska Elektriska A/B v The Burntisland Shipbuilding Co Ltd (1952) 69 RPC 63, 70) and should be treated with appropriate respect by an appellate court. It is true that in Benmax v Austin Motor Co Ltd [1955] AC 370 this House decided that, while the judge’s findings of primary fact, particularly if founded upon an assessment of the credibility of witnesses, were virtually unassailable, an appellate court would be more ready to differ from the judge’s evaluation of those facts by reference to some legal standard such as negligence or obviousness. … It would in my view be wrong to treat Benmax as authorising or requiring an appellate court to undertake a de novo evaluation of the facts in all cases in which no question of the credibility of witnesses is involved. Where the application of a legal standard such as negligence or obviousness involves no question of principle but is simply a matter of degree, an appellate court should be very cautious in differing from the judge’s evaluation.” (Biogen Inc v Medeva Plc [1997] RPC 1 at 45)

10. The standards applied by the judge here in determining if negligence was established in the particular context after taking into account a number of factors vary a great deal in precision.  Hence, his judgmental conclusion should be treated with appropriate respect by the appeal court and should not be disturbed unless he proceeded from some error of principle or is clearly unsustainable.  If the first instance decision falls within a margin of appreciation where the appeal court is of the view that the tribunal reached a conclusion it was entitled to reach, the appeal court should not interfere.

11. Mr Wong relied on a passage in Fardon v Harcourt-Rivington in [1932] All ER Rep 81 at 83C to D, also reported in (1932) 146 LT 391 as laying down some principle of law governing the fact situation of a possibility of danger emerging and cited authorities (Moore v Poyner (1975) RTR 127 and Yip Yung Cheung v Tsim Chi Ming, DCPI 1406/2007, 12 November 2010) as instances in which that principle was said to be applied.  Mr Wong had apparently not read the case of Fardon v Harcourt-Rivington, as he made the same error as the judge in Yip Yung Cheung did at §18, referring to Fardon as a case of the English Court of Appeal.  That case was a decision of the House of Lords and the passage relied on came from the speech of Lord Dunedin.

12. Lord Dunedin in that relevant passage did not lay down an inflexible principle of law.  Rather, he was careful to emphasise at the outset that “the root of this liability is negligence, and what is negligence depends on the facts with which you have to deal.”  The judge in the present case had cited to him Moore v Poyner and Yip Yung Cheung and had clearly taken them into consideration, as well as other cases that were cited (the Judgment, §§32 to 35; the Reasons for Ruling, §§8 and 9).  We could detect no error or misdirection in law, nor do we think the judge had in any way misidentified the risk, as contended by Mr Wong.  And we see no proper basis to interfere with the inference of the judge that the defendant saw the plaintiff emerging and applied the brake when he was still some distance away from the point of collision but was unable to stop in time.  The judge was fully entitled to reject the defendant’s evidence and draw that inference on the evidence before him on the balance of probabilities.

13. Mr Wong submitted the judge was in error in failing to address Yip Yung Cheung in the Judgment and in not arriving at the same outcome as Yip Yung Cheung, which he contended was a case of very similar factual circumstances.  He submitted that was also a reason in the interests of justice why the appeal should be heard, to remove any “perversity” in cases decided differently where the facts are so similar.

14. This submission is wholly misconceived.  The judge has pointed out the differences in the evidence and findings of Yip Yung Cheung (the Reasons for Ruling, §8) from the present case, with which we agree.  In any event, whether a driver is negligent or not is fact specific, and any decision applying the general standard to particular facts is unlikely to produce a precedent.  As stated by Sir John Donaldson, MR in Kite v Nolan [1983] RTR 253 at 256D to E: “The doctrine of precedent applies to principles and not to the application of principles to particular facts with the possible exception of a case in which the facts are wholly identical, which is extremely unlikely in most circumstances.”

15. We agree with the other reasons given in the Reasons for Ruling.  None of the grounds advanced are reasonably arguable.  The threshold requirements for granting leave to appeal are clearly not met.  This leave application should not have been brought.

16. We dismiss the application for leave to appeal and further order under Order 59 rule 2A(7) that no party may request the determination to be reconsidered at an oral hearing inter partes, as the application is entirely without merit.

17. It seems to us disproportionate costs have been incurred by the defendant in pursuing the leave applications in the court below and before us.  According to the statements of costs lodged by the defendant’s solicitors, total costs of $132,141 have been incurred for these two applications, leaving aside the costs of the substantive appeal, if there be one, in order to set aside an award of $138,721.50 to the plaintiff.  It is not apparent to us why litigation should be conducted without regard to a sense of reasonable proportion.

18. We make an order nisi the defendant should pay the plaintiff’s costs for this failed application and we proceed to make a gross sum assessment.

19. The plaintiff’s solicitors have put in a statement of costs for this purpose with total costs of $80,450.  We will reduce the fees recoverable, in view of the fact that the arguments deployed by the defendant before us are substantially similar to those advanced in the leave application heard by the judge.  Further, it seems to us there may well be some duplication of work in terms of preparation for written submission and legal research in the professional work done by solicitors.  We would allow $22,700 for solicitors’ charges (including 5.5 hours’ work for the fee earner) and $25,000 for counsel’s fees, making a total of $47,700.

20. We further order the plaintiff’s own costs to be taxed in accordance with the Legal Aid Regulations.

21. Any party who seeks to vary the above order nisi and gross sum assessment shall lodge a written submission within seven days hereof, with leave to the other party to reply in writing within seven days thereafter.

[1] In that particular case, the court was considering the question of conduct appropriate to a person fit to be a director.

[2] That particular case was an action for infringement of the patent and the court had to consider the defence that the claimed invention was obvious, as was in Benmax v Austin Motor Co Ltd.