AU YIN HO AND ANOTHER v. HUNG YUK SHAN AND OTHERS

H.C. Action No. 6445 of 1983

Joint tortfeasors - contribution sought - Plaintiff's action against one tortfeasor statute barred - Section 19 of the Law Amendment and Reform (Consolidation) Ordinance, Cap 23 regulates right of one tortfeasor to claim contribution from another - whether fact that tortfeasor is deceased and is sued through administrator of his estate enables case to be distinguished from House of Lords decision.

No. 6445 of 1983

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

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JUDGMENT

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1. The issue of whether the 1st and 2nd Defendants are entitled to any indemnity or contribution from the 3rd Defendant in respect of the Plaintiff's claim was ordered to be tried as a preliminary issue before the trial of the action itself and various directions were given for this purpose including the fact that the 3rd Defendant in the action be the Plaintiff in the preliminary issue and that the 1st & 2nd Defendants in the action be the Defendant's in the preliminary issue.

2. This then is my ruling on the preliminary issue in respect of which I have heard argument from Counsel representing both parties. The facts are not in dispute and I will try to outline them as briefly as possible.

3. On the 8th March 1981 a fatal accident occurred in King's Road, North Point when a motorcycle ridden by LIU CHUN WAH collided with a China Motor Bus. At the time a person named KWAN SHING YIP was a passenger on the motorcycle. As a result of the collision both LIU CHUN WAH and KWAN SHING YIP lost their lives.

4. The administrator of the estate of LIU CHUN WAH bought an action suing the driver of the bus and its owner, namely the 1st and 2nd Defendants in this action, for damages under High Court Action No. 9046 of 1981. Settlement was eventually reached and judgment was accordingly given on 1st February 1983 on the basis of the agreement that the deceased, the rider of the motorcycle was 45% to blame for the accident.

5. On the 25th May 1983 the administratrix of the estate of the pillion rider, KWAN SHING YIP commenced this present action suing the three named defendants. The 3rd Defendant applied to have the Plaintiff's action against him dismissed on the grounds that the proceedings were not commenced within 6 months of the date Letters of Administration were granted to him, namely on 17th November 1981. He relied, of course, on Sec 20(3) of the Law Amendment and Reform (Consolidation) Ordinance Cap. 23 which provides.

"No proceedings shall be maintainable in respect of a cause of action in tort which by virture of this section has survived against the estate of a deceased person unless .......

 

6. The action against the 3rd Defendant was accordingly dismissed. The 1st and 2nd Defendants had served on the 3rd Defendant a notice under Order 16 Rule 8 of the Rules of the Supreme Court claiming an indemnity or contribution in respect of the Plaintiff's claim and as a result of further directions they also served a statement of claim on the 3rd Defendant alleging that the said collision was caused or contributed to by the negligence of the said LIU CHUN WAH.

7. The 3rd Defendant now seeks a ruling that as the 1st and 2nd Defendants' right to claim an indemnity or contribution is a statutory right provided by Section 19(1)(c) of the Law Amendment and Reform (Consolidation) Ordinance, Cap. 23 and as that provision does not include tortfeasors who have already been sued and found not liable in respect of the same damage then the 1st and 2nd Defendants claim should be dismissed because, it is argued, the 3rd Defendant was sued and was not found liable.

8. The relevant parts of Section 19 are as follows :-

"19(1)where damage is suffered by any person as a result of a tort .............

 

9. The 3rd Defendant's argument that he is excluded from the classes of persons contemplated as potential contributory tortfeasors because he was originally sued in this action and it was later dismissed against him depends on whether or not the wording of Sec. 19(1)(c) extends to those persons who were sued and found not liable, not on the merits of the case, but because of a time limitation provision.

10. Mr. Sakhrari Q.C., who appeared in this preliminary issue on behalf of the 3rd Defendant, has cited an authority which he contends is on all fours with the facts of this case and that is the House of Lords decision in: George Wimpey & Co. Ltd v B.O.A.C.⁽¹⁾

11. In that case an employee of B.O.A.C. was injured when a vehicle owned by his employer collided with another owned by George Wimpey & Co. Ltd. He bought an action against both the Company and B.O.A.C. and the former served a third-party notice on B.O.A.C. claiming a contribution. Because B.O.A.C. was a public authority it had special protection under the Limitation Act and the employee's action against it was dismissed as being statute barred.

12. Wimpey's claim for contribution from B.O.A.C. was refused by the trial judge and they appealed. The Court of Appeal (Denning L.J. dissenting) dismissed the appeal and the matter was taken to the House of Lords where a majority held that the appeal must fail. The English courts were concerned with the identical provision as our Sec. 19(1)(c) but then known in England as Sec. 6(1)(c) of the Law Reform (Married Women and Tortfeasors) Act 1935.

 

In his judgment Viscount Simonds said p.178:-

"The question of construction, as I see it, is whether section 6(1)(c) can, according to its natural meaning, be so interpreted as to admit a claim for contribution by one tortfeasor against another when that other has been sued by the injured person and held not liable. I agree with Parker J and Singlehon and Morris L.JJ in thinking that it cannot."

and further down that page:

"It happens in the case under appeal that the reason why the party from whom contribution was claimed was held not liable was because the Limitation Act was successfully pleaded. But this is irrelevant to the issue ..... the subsection plainly contemplates two classes only of persons from whom contribution can be claimed VIZ: those who have been sued and those who have not been sued but would, if sued, be held liable. If the intention had been to include a third class of persons who having been sued and found not liable, might yet in hypothetical proceedings be sued a second time and then found liable. I should have expected to find it expressed in clear and appropriate language. Not only is it not so expressed, but on the contrary I find in the words actually used the clear indication that the class of persons who 'if sued would have been liable' does not include persons who having been sued have been held not liable. "

13. Lord Tucker joining the majority said this at p.192

"It would, in my view, require very clear language to lead to the conclusion that in addition to the categories consisting of (1) those sued and held liable and (2) those not sued but who, if sued, would have been held liable, there is to be added a third class consisting of those who have been sued and held not liable but who may now be proved liable in further proceedings. "

14. The House of Lords by reason of their majority decision have quite clearly ruled that their intrepretation of Sec. 19(1)(c) is such that it excludes from those who can be considered as contributory tortfeasors persons who have been sued but found not liable because they successfully invoked a time limitation provision. In the absence of any distinguishing features I would feel bound to rule in favour of the 3rd Defendant on the basis of this authority.

15. Mr. Mumford for the 1st and 2nd Defendants sought to persuade me that it is still open to consider the question as to the time at which a hypothetical action must be assumed to have been brought. In other words the expression "who is, or would if sued have been liable" does not refer to any particular period of time and he went on to urge me to adopt a literal construction and read the expression to mean "who would, if sued at any time, have been liable" This logically would overcome the limitation restrictions placed on suing the estate of a deceased person and bring the 3rd Defendant within the provisions of Sec. 19(1)(c).

16. With respect, the flaw in this argument is that we are not dealing here with a hypothetical action and we are not dealing with a tortfeasor who is in the category of one who if sued would have been liable. The 3rd Defendant in this case was sued and found not liable. The situation has been best summed up by Lord Tucker in the Wimpey  case where at p.191 he said:

"There are two separate and exclusive categories. If an alleged tortfeasor comes into the first category his liability to make contribution will be conclusively determined by the result of the suit. If he is in the first category it is immaterial to speculate what his fate would or might have been if he had fallen into the second category".

17. The 3rd Defendant falls into that first category and it is outside my province to wonder at what time he should be considered to have been liable in a hypothetical suit.

18. Mr. Mumford also sought to distinguish the facts of this case with those before the House of Lords in "Wimpey v B.O.A.C.".⁽¹⁾ In that case, he contended, it was the actual tortfeasor who had been sued and found not liable, namely B.O.A.C. In the present case it was not the tortfeasor who had been sued and found not liable but the administrator of his estate. Mr. Mumford argued that Section 19(1)(c) may well be construed so as to provide a tortfeasor who has been unsuccessfully sued with a defence to a claim for contribution but such a defence is not available to the tortfeasor's administrator. It is an unusual and imaginitive submission but in my opinion it must fail. What the 1st and 2nd Defendants have been seeking in this action is contribution from the 3rd Defendant in respect of the Plaintiff's claim. They rely for this on Section 19(1)(c). But this provision does not speak of administrators it refers only to tortfeasors, yet, the 1st and 2nd Defendants claim contribution from the administrator of a tortfeasor. Logically, if the administrator of a tortfeasor's estate is liable under Sec. 19 (1)(c) to be subjected to a claim for contribution he is entitled to the same defences that the tortfeasor has been geven. In addition I do not consider it is correct to submit that tho tortfeasor has not been sued and found not liable. After his death he was sued in the only way known to the law namely against the administrator of his estate and I find that this argument also fails.

19. The final point made by Mr. Mumford is that the 3rd Defendant has been sued and found liable and refers me to the other High Court action in which the 3rd Defendant commenced proceedings against the 1st and 2nd Defendants which action was settled on the basis that the 3rd Defendant accepted 45%o contributory negligence.

20. I cannot agree that that action can constitute the 3rd Defendant as having been sued. He was the Plaintiff at the outset and was never the subject of any counterclaim or set-off. Even if I am wrong on this point I do not consider that the other proceedings were "in respect of the same damage". The damage in that action concerned the death of LIU CHUN WAH. The damage in the present action is the death of his pillion passenger, KWAN SHING YIP. It is a clear and unambiguous condition in Sec. 19(1)(c) that the tortfeasor to be liable for contribution must have been sued in respect of the same damage and this third contention must join the fate of it's predecessors.

21. I accordingly rule that the 1st and 2nd Defendants are not entitled to any indemnity or contribution from the 3rd Defendant in respect of the Plaintiff's claim and he will be entitled to judgment with costs to be taxed if not agreed. I consider this matter was fit for additional Counsel and I so certify.

(1)    [1955] A.C. 169