FUNG LO SZE v. FAN SHUK CHING t/a CLUB VERSATLLES AND ANOTHER

IN THE COURT OF APPEAL

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JUDGMENT

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Silke, J.A.:

1. This is an appeal against the judgment of Mr. Petrus Chan, sitting as a Deputy Judge of the District Court, in which he found for the Plaintiff in the sum of $21,596.80 as against both the 1st and the 2nd Defendants with interest and costs.

2. The Plaintiff was the registered owner of a car BB660. On the 21st of February 1985, at about ten minutes to six in the evening, that car was being driven by the Plaintiff's husband. He had left his children at a cinema and had himself decided to have a drink in a club. He went to the street which contained the Club Versailles and pulled up his car outside a line of other parked cars. He was approached by the 2nd Defendant, Singh Gajjan, who said "Hello". He understood the approach was to park his car for him. He left the keys in the car and went into the Club. Some little time later he became aware that the car BB660 had been involved in a collision. It had been driven at the time of the accident by the 2nd Defendant.

3. The 2nd Defendant was subsequently convicted of the offence of careless driving. The sum claimed related to damage to the Plaintiff's car and there is no contest before us in relation to the quantum.

4. There were two issues in-the Court below, the first being: Was the 2nd Defendant acting in the course of his employment and secondly, was there sufficient notice given to Mr. Liang, the Plaintiff's husband, that the Club exempted itself from liability for any damage caused in the course of the parking of cars by its servant.

5. The trial judge found against the Defendants on both points. The second point is no longer pursued in this Court. We are-concerned solely with the course of the employment of the 2nd Defendant.

6. It is submitted on behalf of the 1st Defendant - the Appellant - that the trial judge misapprehended the evidence of Mr. Poon, a witness called on behalf of the 1st Defendant, to such an extent that he fell into error.

7. There was, at trial, an oral judgment delivered. It was a reserved judgment and was delivered from that which is described as "An Outline of Judgment". The 1st Defendant was represented at the taking of the judgment not by counsel, whose attendance was dispensed with, but by his instructing solicitors. A note was taken of that which was said and it is suggested that the note of the solicitors was a fuller note than that contained in the Outline of Judgment. The judge's comments were asked for. The judge accepted that he "would not be surprised" if he did say words to similar effect as those contained in the solicitor's note. Without objection we have today added to the judgment that passage from the solicitor's note upon which the judge made his comments. It reads:

      For the first ground of defence, he relied on Mr. Poon's evidence that the 2nd Defendant was a cleaner and not a parking attendant. Poon further said that the 2nd Defendant does not speak Punti and therefore cannot welcome customer."

And we now come to the two particular matters upon which Mr. Shum, in his submission, has relied. First:

"He also remarked that it would be a lie to say that the 2nd Defendant was a doorman."

Mr. Shum takes issue with this and said that this was never said by Mr. Poon in evidence. The added portion continues:

"In other words, what was pleaded in the 1st Defendant's pleading was untrue."

Then comes the second matter:

"He added that the 2nd Defendant was specialized in cleaning the 2 columns at the entrance."

Again, it is Mr. Shum's submission that at no stage did Mr. Poon ever say that the 2nd Defendant was "specialized" in anything or in particular in the cleaning of the two columns at the entrance.

8. We have had our attention drawn to the passages in the evidence of Mr. Poon which relate to these two matters.

9. On the first, it was his evidence that he had employed the 2nd Defendant as "door attendant to clean the entrance". He described the 2nd Defendant's duty, apart from cleaning the entrance, as:

"To guard entrance to prevent anyone causing damage."

10. In cross-examination, it was put to him that:

11. Then a little later came the most important question and answer:

12. It was further put:

13. In the Re-amended Defence of the 1st Defendant, paragraph 2 averred as follows:

"The 2nd Defendant was employed by the 1st Defendant to act as a doorman to welcome customers of Club Versailles, and not otherwise ....."

14. In his comments upon the added passage quoted earlier the trial judge said:

"Further, I might have summarized Mr. Poon's evidence before I said, in the judgment, I disbelieve him. I did not mean to be exhaustive nor can I remember the exact words I used, if any."

I am quite satisfied that, when the judge referred to it as a lie to say that the 2nd Defendant was a doorman, he was thinking of the 2nd Defendant in the terms in which he was described in paragraph 2 of the pleadings: "a doorman to welcome customers" and clearly that passage in the pleadings was directly contradicted by the evidence of Mr. Poon. That is all he intended by that comment, I do not think it to be in anyway a misapprehension of the evidence given by Mr. Poon.

15. As to the second, so called, misapprehension. The word "specialized" is possibly unfortunate but neither the first nor the second matters were intended to be direct quotes, that is the ipsissima verba of the witness. They were intended to show the effect of his evidence and, possibly, with a gloss of the judge's own view of that evidence. I say that because of the use of' the word "specialized". Clearly, if Mr. Poon were to be believed, it was a part of the 2nd Defendant's duties to clean those columns. It was not part of his duties to park cars. The judge was simply emphasising the distinction as between that which was alleged in the pleadings, that which was given in evidence and the case that the Plaintiff was erecting as to the authority of the 2nd Defendant to take away and park the car.

16. Again, for myself, I do not think there to have been any misapprehension in respect of this aspect.

17. Grounds 6 and 7 of the Grounds of Appeal have caused us some concern but we have been told that ground 6 relates solely to the misapprehension point and that ground 7, if we should find against the Appellant on the misapprehension point, falls to the ground. Our concern stems from that passage in the judgment of the trial judge where he said:

"I do not believe in Mr. Poon's evidence and I do not put any weight onto D2's statement either. The Summary of Facts, however, was a record compiled by a police inspector acting in the course of his duty and this was produced with the consent of; D1

It would seem, though we have not seen it, that a Hearsay Notice was issued prior to trial and that no counternotice was served and no objection taken to the evidence sought to be admitted. This Hearsay Notice referred to, first, the statement of the 2nd Defendant made to police officer in connection with the charge of careless driving and, secondly, to the Summary of Facts prepared by a police officer for the purpose of the trial in the Magistrate Court. How that Summary of Facts could become a matter of a Hearsay Notice is something I do not fully understand and on which I have some considerable doubt but, if the trial judge placed no weight upon the 2nd Defendant's statement, which I presume to have been admitted by the trial judge under Order 38, the 2nd Defendant being present throughout the proceeding, I question how he could do so and yet place weight upon the Summary of Facts which gives all the appearance of having been prepared from that very statement. But, as I have said, this point specifically has not been taken before us and it is, therefore, unnecessary for us to deal with it further.

18. In the event, this appeal must be dismissed.

Huggins, V.-P.:

19. I entirely agree and there is nothing that I can usefully add.

Clough, J.A.:

20. I also agree and there is nothing that I can usefully add.