CHAN CHEUNG v. LEUNG KWOK WAI AND OTHERS

cacv 107/2003

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 107 of 2003

(on appeal from HCPI NO. 917 of 2001)

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REASONS FOR JUDGMENT

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Hon Rogers VP:

1.  This was an application for leave to appeal to the Court of Final Appeal under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484.  At the conclusion of the hearing of this application leave was refused with costs with reasons to be given in writing.  An order was made for the taxation of the plaintiff’s costs in accordance with the Legal Aid Regulations.

2.  The background to the case can be found in the reasons for judgment of this court handed down on 5 May 2005.  The grounds upon which leave was sought were threefold.  In the first place it was said that there was an issue of great general or public importance as to whether section 47(1)(a) and section 47(1)(b) of the Evidence Ordinance, Cap. 8 had to be considered conjunctively or separately when considering the exclusion of and the admissibility of hearsay evidence in civil proceedings. 

3.  The matter arose because the judge had not admitted in evidence a statement of a security guard, Mr Chik Wing Pun, which had been given to the police.  The judge had refused to do so because although the 3rd defendant had initially intended to call Mr Chik as a witness, however when the 3rd defendant indicated that it would not be calling him as a witness it gave the plaintiff and the other parties every opportunity of themselves calling Mr Chik as a witness.  Indeed, as the judge recorded in paragraph 40 of his judgment, there was no objection from any party to the plaintiff, had he so wished, calling Mr Chik.  The judge went on to say in paragraph 45 of his judgment that it was determinative that the plaintiff had been afforded every opportunity of calling Mr Chik as a witness if the plaintiff had wanted his evidence before the court.  In view of the fact that the plaintiff made a conscious decision not to call Mr Chik as a witness the judge considered that that was an end of the matter. 

4.  In my view the judge was clearly correct.  Indeed the matter is rather the other way.  Had the judge admitted the statement, albeit that it was one made to the police, on an important issue in the case, when there was likely to be a direct conflict in the evidence, it would have put him in an invidious position of having to decide the correctness of oral testimony on the basis of a written statement made by a person who could easily have been called as a witness but deliberately was not.  In those circumstances there can be no ground for complaint.

5.  The second matter said to be a matter of great or general public importance which should be submitted is whether section 21(1) of the Law Amendment and Reform (Consolidation) Ordinance, Cap. 23 mandates that it is just and proper for this court to have found that the blameworthiness of the plaintiff should be considered against the blameworthiness of each of the parties.  The matter arises in this way.  The judge found as a fact that the major cause of the accident had been the plaintiff’s own negligence.  He said at paragraph 75:

“From the findings above, there can be no doubt that the immediate and major cause of the accident was due to the failure of the plaintiff to keep a proper lookout.  To that extent, the plaintiff must be contributory negligence to a large extent.”

6.  The judge went on to say that he assessed the contributory negligence of the plaintiff at 60%.  In doing so the judge considered the blameworthiness of the plaintiff in respect of the accident as against the combined actions of the other defendants and not on an individual basis against each of the defendants separately.  As recorded in the judgment of this court, during the course of argument on the appeal this court queried counsel for the plaintiff as to whether the blameworthiness of the plaintiff should be considered against each of the parties, but counsel was emphatic in arguing the case on the basis that the blameworthiness of the plaintiff should be judged as against the combined blameworthiness of the 1st and 3rd defendants.  This court gave its decision on the appeal immediately at the conclusion of the hearing with reasons to be given in writing.

7.  At the hearing of the appeal this court’s attention had not been drawn to the case of Fitzgerald v Lane [1988] 3 WLR 356.  The focus of the argument had been somewhat different, and this court had been addressed on the basis that the judge had not considered blameworthiness but had only considered the question of liability.  In doing so one of the cases cited was Brown and another v Thompson [1968] 2 All.ER 708.  In considering that case after the hearing it became appropriate to refer to what Lord Pearce had said in The Miraflores and The Abadesa [1967] 1 AC 826 at 845G-I, because in the passage in Brown cited to this court Winn LJ had referred to that passage in Lord Pearce’s speech as being “worthy of close study by all practitioners concerned in matters of this kind”.

8.  It was at that stage that concern arose that if the blameworthiness of the plaintiff should have been judged as against the blameworthiness of the defendants individually, the level of contributory negligence found against the plaintiff was possibly too high.  It thus became a matter of concern to this court that the plaintiff might have been accorded a measure of disservice by the case having been argued on the basis that it had been.  It was in those circumstances that this court first considered the matter on the basis on which the judge had approached the case, namely that the culpability, or blameworthiness, of the plaintiff was very high.  This court then also considered the blameworthiness of the defendants individually.  Since the judge had found that the major cause of the accident was due to the failure of the plaintiff to keep a proper lookout, and this court looking at the plaintiff’s culpability concurred with that view, the finding of contributory negligence at the level of 60% was about the lowest level open.  Then, having gone on to consider the matter as against the defendants individually, this court still did not consider that such level could be lowered in favour of the plaintiff.

9.  Now that the case of Fitzgerald v Lane has been brought to the attention of this court it can be seen, particularly from the passage in the judgment of Lord Ackner at pages 364-8, that the approach advocated by the plaintiff on this appeal was indeed the correct approach.  The plaintiff’s conduct on the one hand has to be contrasted with the totality of the tortious conduct of the defendants on the other.  As far as the present case is concerned, the judge below decided the case on that basis and this court upheld the judge on that basis; the fact that this court also considered that if the blameworthiness of the plaintiff were judged against that of the defendants individually the result would be the same does not alter the situation.  In so far as it is now argued that this court should not have even considered the approach as in The Miraflores and The Abadesa, the position simply is that the plaintiff could only have been better off on the basis of the application of the principles enunciated in that case than is the case on the basis of the principles in Fitzgerald v Lane, which the plaintiff has established is the correct approach.

10.  In so far as Ms Lee, who appeared on behalf of the plaintiff on this application, but not on the appeal, sought to reopen the finding of the level of 60% contributory negligence, that is a matter on which this court agreed with the judge below, and it did not seem appropriate to this court to give leave to appeal on what was essentially a question of fact.

11.  The remaining matter argued was under the “or otherwise” provision of section 22(1)(b).  It was said that in view of the plaintiff’s serious injuries it was unfair that he should be deprived of so much of the damages to which he would otherwise be entitled.  This court, of course, has considerable sympathy with any injured party but sympathy cannot determine this matter.  Part of the argument advanced involved a comparison of the culpability of the individual defendants in comparison to that of the plaintiff.  In this respect the argument came dangerously close to the reasoning in The Miraflores and The Abadesa, thus undermining the point that the plaintiff had successfully established that the correct approach was that in Fitzgerald v Lane.

Hon Stone J:

12.  I agree.

Hon Chu J:

13.  I agree.