SIU CHI MOON v. RAINFIELD DESIGN AND ASSOCIATES LTD.

CACV 234/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 234 OF 1998

(ON APPEAL FROM HCPI 941 OF 1997)

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J U D G M E N T

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Mortimer V-P:

The defendant company, by its Director, applies for leave to appeal to the Court of Final Appeal against a finding of this Court in which we allowed the plaintiff's appeal on liability on 12 March 1999.

1. The action is one for personal injury. The order of this Court is that we held the defendant liable but the plaintiff guilty of 50% contributory negligence. We ordered that the case should be remitted to the Court of First Instance for the assessment of the damages.

2. The application for leave to appeal is accompanied by a document which I describe as a skeleton argument. This raises a number of questions argued before us on the appeal and refers to the facts. There is no basis put forward by the defendant upon which we could possibly give leave to appeal. Nevertheless there are certain other matters we have considered.

3. The first question is whether this appeal lies as of right under s.22(1)(a) of the Hong Kong Court of Final Appeal Ordinance which reads:

"(1) An appeal shall lie to the Court in any civil cause or matter-

(a) as of right, from any final judgment of the Court of Appeal, where the matter in dispute on the appeal amounts to or is of the value of $1,000,000 or more, or where the appeal involves, directly or indirectly, some claim or question to or respecting property or some civil right amounting to or of the value of $1,000,000 or more;"

The claim is an unliquidated one and the damages have not yet been assessed. In these circumstances, for the defendant to establish a right to appeal, it is necessary to show that there is either the utmost probability or a virtual certainty that more than $1m will be awarded, see the Nan Fung Textiles case (unreported) Miscellaneous Proceedings No. 13 of 1998.

4. Very helpfully Mr Wright, who appears for the plaintiff, has pointed out that this case involves paraplegia. The claim itself is for $9m on a 50% basis. But of course that is only the claim. We have no means of assessing what the award will be. Nothing has been put before us which entitles us to say as a virtual certainty that in the result the award will be more than $1m although in a paraplegic case, one would expect it to be so. For my part, I would refuse the application as of right.

5. There is a further matter which has concerned the Court. That is whether this is "a final judgment of the Court of Final Appeal". As is said by the editors of Halsbury's Laws of England, Vol. 26, paragraph 504:

"There is no definition in the Judicature Acts or the rules of court made under them of the terms 'final' and 'interlocutory', and a judgment or order may be final for one purpose and interlocutory for another, or final as to part and interlocutory as to part. It is impossible to lay down principles about what is final and what is interlocutory."

It is sometimes said that an order of the court for damages to be assessed is an interlocutory order. But it is to be noted that in the Ordinance, the words "final judgment" are used - "not final order". For my part, I would hold that this judgment of the Court of Appeal is final for this purpose - final as to liability. I would hold that this judgment, therefore, is one against which an application for leave to appeal could be granted.

6. So far as the other subsection of s.22 is concerned - s.22(1)(b) - and whether there is a question involved in this appeal "which by reason by its great general or public importance" is one upon which leave ought to be granted in the discretion of the court, I would hold that the point involved in this appeal is not one of great general or public importance. The question was whether the breach of statutory duty was solely due to the plaintiff's conduct and had been made out as a defence. This, as a principle, has been established for many years since Ross v Associated Portland Cement Manufacturers Ltd [1964]1 WLR 768 and Boyle v Kodak Ltd [1969]1 WLR 661. It is well established. Of course, as is often the position, the application of the principle is one which causes difficulty in individual cases.

7. For my part, therefore, I would refuse this application, making it clear at the same time that if the defendant so chooses, he may renew this application in front of the Appeals Committee of the Court of Final Appeal.

Leong JA:

8. I agree.

Nazareth V-P:

For the reasons given by my Lord, Mortimer V-P, I also would decline to give leave.

9. There is only one point I would add. This is what is said at p.1012 of the Supreme Court Practice 1999 Vol. 1, in paragraph 59/1A/4, which deals with the matter of split trials and preliminary issues:

"Thus if there is a trial on liability only with quantum to be tried later, both a judgment on liability and a judgment on quantum will be final orders in just the same way as the order would have been final if both had been tried together."

That is the effect of the English rule 1A of Order 59 which we do not have as such in Hong Kong, although it is said to be a reproduction of the pre-existing law on the authority of Holmes v Bangladesh Biman Corp. [1988]2 Lloyd's Rep 120, CA. I am not aware if that situation has been addressed by the Courts of Hong Kong. Furthermore, the reference in s.22(1)(a) and (b) is to a final judgment whereas the emphasis in corresponding and material legislation in England is to final orders. What the effect of all of that must be is not clear to me. Nonetheless, I am not persuaded that this is a case in which we should grant leave.

10. Accordingly, leave is refused.