MICHAL MAKSYMIA v. HKSAR

DCCJ558/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 558 OF 2013

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DECISION

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1.  The plaintiff institutes this action against the defendant for damages, alleging that:-

(i) the driving examiner, Mr Chan Wing Kin (“Mr Chan”), was negligent in discharging his duties as an authorized examiner in failing to assess the proximity of the motorcycle and in making negligent statements on the Driving Test Form TD 533 (“Allegation 1”);

(ii) the defendant was negligent in breaching its statutory duty by failing to fairly and accurately assess the plaintiff’s driving abilities in accordance with Schedule 8 of the Road Traffic (Driving Licences) Regulations (“the Regulations”) Cap 374B, in particular, failing to incorporate paragraph 7 of the said schedule within its evaluation criteria (“Allegation 2”);

(iii) the defendant has fettered its discretion found in the said schedule (“Allegation 3”); and

(iv) the defendant breached the contract between the plaintiff and the defendant by providing a test which did not comply with the Regulations (“Allegation 4”).

2.  The defendant took out a summons on 28 March 2013 to strike out this action on the grounds that:-

(a)   it discloses no reasonable cause of action;

(b)   it is frivolous and vexatious; and

(c)   it is an abuse of the process of the court.

Allegation 1

3.  The plaintiff’s major complaint was Mr Chan’s “failure to assess the proximity of the motorcycle” and the decision reached by Mr Chan was so unreasonable that no reasonable examiner would have arrived at.  The plaintiff contends that the motorcycle was at a substantial distance from the plaintiff while Mr Chan asserted that it was within one car length.

4.  The plaintiff’s case on negligence against Mr Chan was one derived from a statutory duty imposed on an authorized examiner, to conduct driving tests. He is required to show that either the Road Traffic Ordinance (“the Ordinance”) or the Regulations confers a right on him to sue for breach of statutory duty before he can rely on a common duty of care.  While conducting the Combined Road Test, Mr Chan in assessing the plaintiff’s driving abilities is exercising his discretion conferred upon him by Regulation 33 of the Regulations. Regulation 33 provides that:-

“(1) A person shall pass a driving test to drive a motor vehicle of the class specified in the driving test form if he satisfies an authorized examiner conducting the test that he is able to comply with the relevant requirements specified in the Eighth schedule”

There cannot be any common law duty of care in negligence if the exercise of his discretion falls within the ambit of statutory discretion which the Legislative has entrusted him to exercise (see Dorset Yacht Co Ltd v Home Office [1970] AC 1004).  There is no provision under the Ordinance and the Regulations which confers protection on a driving test candidate’s interest in any specific way.  Hence it cannot give rise to a private right to sue. 

5.  In the Statement of Claim, he avers that Mr Chan owed him a duty of care to ensure that the plaintiff was fairly and accurately assessed in his driving abilities in accordance with the Regulations as a condition of the contract.  No contract existed between the plaintiff and the defendant/Mr Chan.  The relationship between the plaintiff and Mr Chan was a learner driver/an authorized examiner.  There is no assumption of responsibility in such relationship, and there is no basis giving rise to a duty of care.  In his position as an authorized examiner, Mr Chan was obliged to assess the plaintiff’s abilities after the plaintiff had applied to the Transport Department for a driving test, and he was assigned to assess the driving abilities of the plaintiff.  There was no voluntary assumption of responsibility on his part towards the plaintiff.  Hence no duty of care can be imposed on him towards Mr Chan.

Allegation 2

6.  The plaintiff must show that it was the intention of the Legislature to provide a private right of action to driving test candidates for any breach of duty by the defendant or where it specifies a duty on the defendant to protect the plaintiff’s interest in taking the driving test.  However, there is no statutory provision which reveals such an intention.

7.  Under Regulation 45, a person aggrieved by the refusal of the Commissioner to issue, reissue or renew a driving licence or driving instructor’s licence may within 14 days of being notified of the refusal or cancellation apply in writing to the Commissioner for a review by a Transport Tribunal of the refusal.  The Ordinance, together with the Regulations, have provided a scheme which regulate the conduct of the defendant, which suggests that the remedy intended by the legislature is by way of a review rather than a private law action.

8.  With respect to the allegation that the defendant has failed to incorporate paragraph 7 of Schedule 8 into its evaluation criteria, ie, the Driving Test Form TD553, no such duty is owed under the relevant statutory instruments.

9.  Section 8 of the Ordinance empowers the Secretary to make regulations to provide for the instruction and testing of persons applying for or holding driving licence, which include Schedule 8 of the Regulation.  Schedule 8 sets out the requirements as to which a candidate for a driving test shall satisfy an authorised examiner in order to pass a driving test.  These provisions clearly do not impose a statutory duty on the defendant to incorporate the criteria set out in Schedule 8 procedurally in the Combined Road Test, let alone in any particular manner or in the manner suggested by the plaintiff, ie, in the Driving Test Form TD553.  Given that there is no statutory duty to incorporate Schedule 8 in the manner alleged by the plaintiff, there cannot be any common law duty of care derived from a statutory duty which does not exist.

Allegation 3

10.  The plaintiff alleges that Mr Chan has failed to:-

(a)   consistently and accurately assess the distance, position and actions of other vehicles;

(b)   failing to account for critical portions of time during the driving test;

(c)   failing to accurately assess the weather and road conditions;

(d)   failing to recognize the rights and duties of the plaintiff;

(e)   acting inconsistently with regards to his claims.

The plaintiff submits that these failures to competently assess the plaintiff are so careless and unreasonable that it is hard to see how Mr Chan can be said to have exercised the discretion intended by the Regulations.  Mr Chan has instead exercised a discretion on facts that bear little resemblance to what actually occurred which is not the intention of the regulations.

11.  He refers to the following speech of Lord Reid in Dorset Yacht:-

“But Parliament cannot reasonably be supposed to have licensed those who do such things to act negligently in disregard of the interests of others so as to cause them needless damage. Where Parliament confers a discretion the position is not the same. Then there may, and almost certainly will, be errors of judgment in exercising such a discretion and Parliament cannot have intended that members of the public should be entitled to sue in respect of much errors. But there must come a stage when the discretion is exercise so carelessly or unreasonably that there has been no real exercise of the discretion which Parliament has conferred. The person purporting to exercise his discretion has acted in abuse or excess of his power. Parliament cannot be supposed to have granted immunity to persons who do that. The present case does not raise that issue because no discretion was given to the Borstal officers. ”

(Underlines added)

12.  Under the “Particulars of unreasonableness and irrationality” the plaintiff made the following claims:-

“(a) The plaintiff claims that in addition to being negligent, the decisions reached by Mr Chan are decisions that no reasonable examiner, taking into account all of the relevant considerations, and ignoring irrelevant considerations would have arrived at.

(b) The plaintiff further claims that the defendant’s decisions, when examined closely, ignore or contradict basic legal principles as well as public policy considerations observed by this Honourable Court, making Mr Chan’s decisions particularly unreasonable and irrational.

(c)  The plaintiff claims that even on Mr Chan’s own version of events, Mr Chan’s decisions continue to be unreasonable, contradictory, and irrational.”

The plaintiff did not make allegations in the Statement of Claim that the exercise of discretion by Mr Chan in his judgment was so careless or unreasonable that there has been no real exercise of the discretion which the Legislative has conferred.  At most, his allegation is that Mr Chan’s decisions was “particularly unreasonable and irrational”.  He was not alleging that Mr. Chan’s exercise of discretion fell outside the ambit of statutory discretion which the Legislative has entrusted him to exercise.  Therefore the exercise of Mr. Chan’s discretion conferred upon him by statute is not ultra vires.  Hence the plaintiff’s claim is not actionable in common law.  Assuming that what was pleaded in the Statement of Claim is correct, it cannot be said that Mr Chan’s judgment is so unreasonable that it fell outside the ambit of statutory discretion.

Allegation 4

13.  The Legislature does not intend to provide a private right of action to candidates of driving test.  Hence there cannot be any right of action by way of breach of contract.  Furthermore, there is no contract between the plaintiff and the defendant.  The plaintiff asserted that he and the defendant implicitly and/or explicitly contracted for the defendant to provide a “Test of Competence” in accordance with the Regulations and for the defendant to exercise a reasonable level of skill in assessing the plaintiff’s driving ability.  Such assertion is misconceived.  The defendant is empowered by s 13 of the Ordinance to charge a fee for providing and running the Combined Road Test.  In doing so, the defendant is merely performing it statutory obligation in its capacity as a public body, and is not acting in a private capacity to enter into an agreement with the plaintiff.  There was no offer to enter into agreement, and no intention to create legal relation on the part of the defendant.

14.  The plaintiff’s claim is simply not actionable.  They do not raise a reasonable cause of action.  There is no chance of success even if it goes to trial.  I therefore strike out his claim.

Costs

15.  I make an order rise for costs, to be made absolute in 14 days’ time, that the plaintiff do pay costs of these proceedings (including the striking out application) in the sum of $18,697.