XCHRX LU HUNG LOK v. LEE SIU KEE and Another

1995, No. A1208

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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J U D G M E N T

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1. This is an appeal against the decision of Master Jennings whereby, inter alia, he gave judgment for the Plaintiff on an Order 14 application with damages to be assessed.

2. The basis of the action is quite simple. The Plaintiff parked his car on the 2nd Defendant's premises leaving the keys in the custody of the Defendants. When he returned to collect his car it was damaged to the front and to the rear. It is the Plaintiff's case that none of that damage had existed before leaving the car on that day.

3. If all that damage was caused whilst on the Defendants' premises, the Defendants are liable either in negligence or in breach of their duty of care under the contract of bailment. How the damage was done is not known to the Plaintiff. He is able to rely only what he has been told by the Defendants, their servants or agents. However that does not matter. The fact of damage in the circumstances described is sufficient to found liability. Indeed a faxed letter from the Defendants to the Plaintiff dated 9th January admitted, in general terms, that the Plaintiff's vehicle was, damaged "by the collision with another vehicle ... driven by our attendant." On the strength of that letter, understandably and logically, the Plaintiff sought to obtain summary judgment under order 14. The Master made the order sought although at that hearing, as reflected in affirmations filed on behalf of the Defendants, the Defendants were contending that the damage to the rear of the car pre-existed its arrival at the Car Park on the 6th January. He came to the conclusion that all the damage was caused by the Defendants their servants or agents.

4. There were a number of preliminary issues before the appeal proper was argued before me by Mr. Chan. The first concerned a summons for leave to rely upon a further affirmation by Mr. Tse filed since the hearing before Master Jennings. The Plaintiff did not oppose the application and it was agreed that the Plaintiff should have the costs involved.

5. The second and third related to certain affirmations filed on behalf of the Plaintiff. It was contended that the Plaintiff in issuing a second summons for judgment under order 14 (the first having been mistakenly issued before the service of a Statement of Claim) could not rely upon an affirmation filed in support of the first summons. There is no merit in this. It would be utterly wasteful for an affirmation to be sworn and filed which differed from the first only in the date on which it was sworn.

6. The third concerned the fact that all the deponents to the affirmations filed on behalf of the Plaintiff gave as their address "care of" the Plaintiff's Solicitors. This is wrong, a bad practice, unjustified in this case, but occasioned no prejudice or difficulty for the Defendants. Subject to the stricture or warning implicit in my second sentence, I make no order in respect of them.

7. The only issue therefore is should the Defendants have leave to defend the action as a whole or as to a part. The Plaintiff cannot fail in respect of a cause of action against the Defendants concerning the frontal damage and consequential loss following from that.

8. Belatedly they have raised a defence in respect of the damage to the rear. The Master took a robust, and, in my view, entirely realistic view of this contention. Having read all the affirmations and the other documents, the letter of the 9th January is inconsistent with this contention. Mr. Tse took photographs of the damage to the front and rear of the Plaintiff's vehicle on the 6th or 7th January. He says that he was aware, then, that the rear damage could not be explained by the collision (or collisions) on the car park. If that is so why did not the letter of 9th January say so? He says a short informal note written by him and given to the Plaintiff at the scene, specifically referred only to the frontal damage. If that is the case it is even more surprising that the formal letter of the 9th January failed to make any distinction. This becomes even more astonishing bearing in mind that the Plaintiff, who was naturally very upset at seeing his new car so badly damaged, was claiming that he should be supplied with a new car at the Defendants' insurers' expense.

9. However in order to exclude the Defendants from having the issue of causation and quantum as to this rear damage tried, I would have to be satisfied that there was no credible argument on this issue. Although I share the views of the Learned Master as to the rear damage and view the Defendants' contentions sceptically on the papers, oral evidence could change the picture bearing in mind that the Plaintiff has to prove causation of this damage, and human experience recalls cases where a Plainitff has sought to make a later tortfeasor liable for damage already done. Implicit in the Defendants' contention is an allegation of fraud on the part of the Plaintiff. I have decided the Defendants should have leave to defend but only as to the issue of causation and quantum in relation to the rear damage.

10. In substance the appeal is dismissed. Judgment for the Plaintiff as to the frontal damage, with quantum to be assessed stands. The Defendants shall have leave to defend, upon filing and serving a defence within 7 days, as to the damage to the rear.

11. The costs of the appeal shall be the Plaintiff's costs as to the issue of liability generally and the frontal damage; the costs in relation to the causation of the rear damage will be costs in the cause viz. if the Plaintiff succeeds on the question of causation he shall have all the costs of this appeal; if the Defendants succeed on the issue of causation of the rear damage they shall have that proportion of the costs of the appeal which relate solely to that issue. I make that an order nisi.