LIU SHIH TENG, THE ADMINISTRATOR OF THE ESTATE OF LIU HAK WING, DECEASED v. HKCC DOTCOD LTD t/a DOTCOD SEAFOOD RESTAURANT & OYSTER BAR

HCPI 879/2018

[2022] HKCFI 1255

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 879 OF 2018

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DECISION

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I.  INTRODUCTION

1.  On 18 February 2022, this court handed down decision (“Decision”) that granted the following order (“Order”):

(a)	allowed the plaintiff’s (“P’s”) appeal by the Notice of Appeal filed on 11 December 2020 against the order of Master Kot dated 30 November 2020;
(b)	granted leave for P to amend his Statement of Claim filed on 12 April 2019 (“SoC”) in the manner marked in red as per the draft Amended Statement of Claim (regarding the proposed amendments in paragraph 4 therein (“Agreed Amendments”) and adding a new particular in paragraph 16(17A) therein (“Particular 6(17A)”));
(c)	directed P to file/serve the Amended Statement of Claim within 14 days from the date of such order;
(d)	granted a costs order nisi in terms as set out in paragraph 311 of the Decision;
(e)	granted a costs order nisi in respect of costs reserved under the Reserve Cost Order referred to in paragraphs 20 and 312 of the Decision;
(f)	granted case management directions in respect of the Split Trial Summons referred to in paragraphs 15 and 313 of the Decision.

2.  On 4 March 2022, the defendant (“D”) filed a summons for leave to appeal against the Order based on the intended grounds of appeal (“Intended Grounds”) set out in the draft Notice of Appeal (“Draft Notice”) annexed thereto (“Leave Summons”).

3.  The Leave Summons was originally scheduled to be heard on 13 May 2022. By written directions dated 7 March 2022, I drew the parties’ attention to the guidance by the Court of Appeal in Tsang Wing Kwai v Tsang Wing Fai,[1] and directed them to lodge written submissions. D and P lodged written submissions on 21 March and 4 April 2022 respectively. Having perused the written submissions, I found an oral hearing unnecessary, and considered the Leave Summons fit for paper disposal. By written directions dated 7 April 2022, this court informed the parties that the Leave Summons would be determined by way of paper disposal, and the hearing on 13 May 2022 was thereby vacated.

4.  For convenience, unless otherwise stated, I shall adopt the abbreviations in the Decision.

II.  LEGAL PRINCIPLES ON LEAVE TO APPEAL

5.  For general legal principles on leave to appeal against an interlocutory decision under section 14AA(4) of the High Court Ordinance Cap 4, I rely on (but without repeating the same here) my discussions in paragraphs 5-7 of my decision in Fong Chak Kwan v Ascentic Limited & ors.[2]

6.  D’s intended appeal sought to impugn an exercise of discretion. After all, my decision to allow the Appeal and to grant leave for P to amend the SoC to introduce/include the Agreed Amendments and Particular 6(17A) was plainly an exercise of case management discretion. In Tao, Soh Ngun (also known as Lo To Li Kwan or Lo To Lee Kwan) (in her personal capacity and in the capacity as the sole executor of the estate of Lo Ying Shek (also known as Lo Tau Koon or Lo Ping), deceased) v HSBC International Trustee Limited,[3] Kwan JA (as she then was) in giving the reasons for the judgment of the Court of Appeal said that “[the] judge’s decision to allow the subject amendments [to the plaintiff’s pleadings] was made in the exercise of his case management powers …… On well-established principles, the plaintiff has a very high hurdle to surmount to satisfy this court that the judge’s exercise of discretion in a matter of case management should be interfered with. ……”

7.  For general legal principles on leave to appeal against an exercise of discretion, I rely on (but without repeating the same here) the discussions in paragraph 8 of my decision in Fong Chak Kwan, and in paragraph 57 of the judgment by Kwan JA (as she then was) in Tao, Soh Ngun (also known as Lo To Li Kwan or Lo To Lee Kwan) (in her personal capacity and in the capacity as the sole executor of the estate of Lo Ying Shek (also known as Lo Tau Koon or Lo Ping), deceased).[4] In short, D had to show an arguable case with reasonable chance of success that the Order exceeded the generous ambit within which reasonable disagreement was possible and was in fact plainly wrong or, as Mr Wong SC (and Mr Kok with him), counsel for P, put it, “palpably wrong”, and not merely that the appellate court would prefer a solution which this court had not chosen.

III.  DISCUSSION

8.  The Draft Notice sought to impugn the Order, and if leave to appeal were granted and D were successful on its appeal, D would ask the Court of Appeal to (a) set aside the Order, (b) grant such other relief as might be appropriate, and (c) order P to pay D costs of the Appeal and of the appeal to the Court of Appeal (including all costs reserved if any) to be taxed if not agreed.

9.  The Draft Notice ran to 8 pages and 16 Intended Grounds under 3 broad areas (“Intended Bases”). The Decision is there for all to see, so it is quite unnecessary for this court to repeat here what had been said therein. Both Mr Leung SC (and Mr Tsoi with him), counsel for D, and Mr Wong SC dealt with the 3 Intended Bases in their written submissions, and I adopt the same approach. But for the avoidance of doubt, I have carefully considered the Draft Notice and the 16 Intended Grounds in their entirety in coming to my conclusions below.

10.  I start by setting out my conclusion that leave to appeal ought not to be granted as I am not satisfied there were reasonable prospects of success that I had erred in granting leave for P to amend the SoC in the manner as set out in the Order, especially in light of (a) the legal principles for amendment of pleadings set out in paragraphs 76-81 of the Decision (ie whether the disputed amendment was “bound to fail”), and (b) the legal principles for seeking leave to appeal against a case management discretion (ie whether there was an arguable case with reasonable chance of success that the Order was plainly or palpably wrong), both of which were not light thresholds but which D had to cross in order to succeed on the Leave Summons. I had carefully debated whether the novelty of alcohol liability in this jurisdiction would suggest this area of the law deserved appellate guidance from the Court of Appeal, but given (i) my views below on the Intended Bases and (ii) the interlocutory nature of the Summons/Appeal (which meant any discussion of the principles (according to Mr Leung SC) or emergent principles (according to Mr Wong SC) on alcohol liability would only be considered on the premise of whether or not they were “bound to fail”), I came to the firm view that appellate guidance on such basis would not fruitfully bring about definitive enlightenment on this area of the law. For all these reasons and my discussion of the Intended Bases below, I find myself unable to grant leave to appeal.

(a)  1^st Intended Basis: failure to distinguish between “occupancy duty” and “activity duty” so as to recognise new cause of action (Intended Grounds 1-5)

11.  D’s stance On the 1^st Intended Basis, D claimed the pleaded Particulars pertained to “occupancy duty” over the physical state of the Stairway, so the proposed Particular 6(17A) was in fact a veiled attempt to plead a new “cause of action” that went to “activity duty”. Plainly, the 1^st Intended Basis was a re-run of such contention already made by D at the Appeal, which contention relied on a distinction between “occupancy duty” and “activity duty” for occupiers’ liability.[5]

12.  Mr Leung SC submitted that this court had erred in reading (a) the passage in Clerk & Lindsell on Torts that he cited (“C&L Passage”),[6] and (b) the dissenting judgments of McHugh and Kirby JJ in Cole v South Tweed Heads Rugby League Club & anor[7] in reaching the view that it was arguably uncertain whether there was such a strict demarcation under ordinary negligence in common law as distinct from occupier’s liability at common law.[8]

13.  For (a) above in relation to the C&L Passage, Mr Leung SC submitted P’s reliance on “breach of statutory duty, breach of common duty of care, and/or breach of the OLO” as pleaded in paragraph 6 of the SoC actually referred to the same cause of action for occupiers’ liability now under the OLO, which was enacted to replace occupiers’ duty at common law and which confines occupiers’ liability to duty arising from the state of the premises. In other words, Mr Leung SC argued that the SoC pleaded a “statutory” cause of action under the OLO for occupiers’ liability that drew a clear demarcation between “occupancy duty” (within such statutory cause of action) and “activity duty” (without such statutory cause of action).

14.  Mr Leung SC argued that (a) the C&L Passage must be read in light the propositions in the above paragraph and in conjunction with paragraph 11-3 of Clerk & Lindsell on Torts[9] that draws a clear distinction between “occupancy duty” and “activity duty” under common law, and (b) the C&L Passage under the heading “Concurrent Duties” does no more than to state that at common law “occupancy duty” “may co-exist with duties owed in some other capacity”, ie duties that arise from relationship other than the occupier-visitor one.

15.  Mr Leung SC referred to (a) my judgment in 郭生琼作為2015年8月5日法庭命令委任為死者馬黑皮的遺產代表人 & anor v 黃文俊 & ors[10] (citing Ng Tat Kuen v Tam Che Fu & ors[11] and Luen Hing Fat Coating & Finishing Factory Ltd v Waan Cheun Ming[12]) that, according to Mr Leung SC, distinguished between “occupancy duty” and “activity duty”, and (b) the judgment of Coulson J in Geary v JD Wetherspoon plc[13] that, according to Mr Leung SC, also maintained such distinction as follows:

“58. In view of the claimant’s unqualified acceptance of the risk that she ran, the absence of anything on which responsibility or reliance could be based, and the trend of the authorities noted above, I am unable to conclude that there was any relevant assumption of responsibility on the part of the defendant ……

59. It must be remembered that this is a case about the potential liability of the occupier. But there was nothing unsafe about these premises, and no danger attributable to their structure. There could therefore be no liability under the 1957 or 1984 Acts [ie the Occupiers’ Liability Act 1957 and the Occupiers’ Liability Act 1984], and thus no liability at common law …… The danger was created by the decision to slide, not the bannister itself …… Moreover, the bannister was not defective ……

60. In addition, this was not a case, such as Uren v Corporate Leisure [2011] EWCA Civ 86, in which the defendant was taking responsibility by, say, organising activities (in that case, competitive games) which ran a risk of causing injury. As Mr Norris rightly submitted, if the defendant had been organising bannister-sliding competitions, there may well have been an assumption of responsibility. But in the circumstances of this case, there was no such assumption.”

Mr Leung SC added that the adoption of a holistic approach as recommended in Luen Hing Fat Coating & Finishing Factory Ltd (page 32)[14] did not detract from the distinction between “occupancy duty” and “activity duty”, and it was no coincidence that the plaintiff in that case abandoned reliance on occupiers’ liability before the Court of Final Appeal (page 29) given that the accident occurred in the course of handling machinery not arising from the “state of the premises”.

16.  For (b) above in relation to the dissenting views in Cole, Mr Leung SC submitted that this court in deriving an emergent “general duty of care” owed by commercial hosts to their patrons[15] on the strength of the Canadian authorities erred in taking Kirby J’s dissenting judgment in Cole (pages 71-72)[16] (and Kirby J agreed with McHugh J as to the duty of commercial hosts serving alcohol) out of context. Mr Leung SC further submitted that, quite apart from the subsequent decision in CAL No 14 Pty Ltd & anor v Motor Accidents Insurance Board,[17] “the duty postulated by McHugh J did not exist in a vacuum but was subject to a “qualification” that the injury must be of a foreseeable kind, which was predicated upon the facts that Mrs Cole was “intoxicated” and the defendant “ought to have foreseen … that [her] drinking had the effect that she was exposed or becoming exposed to the real possibility of suffering injury and taken action to prevent it”.[18]

17.  In summary, Mr Leung SC argued that this court’s unjustified relaxation of the conceptual demarcation between “occupancy duty” and “activity duty” led to its error in allowing P to purportedly rely on the facts and particulars in the SoC (that related solely to the “state of the premises” under the OLO, ie “occupancy duty”) and to graft onto them an allegation of “over-serving” alcohol in the guise of a particular of the claim in common law negligence whereas in fact it constituted a “new cause of action” founded upon a novel “activity duty”.

18.  P’s stance Mr Wong SC submitted that the 1^st Intended Basis, which was nothing more than rehashing D’s arguments for the Appeal that relied on a distinction between “occupancy duty” and “activity duty”, had no reasonable prospects of success, and that it would be a misuse of the appellate process to give D a “platform for regurgitating [its] arguments again in the hope that the appellate judges may come to a different view”.[19]

19.  Mr Wong SC argued that the core fallacy of D’s contentions was that the distinction between “occupancy duty” and “activity duty” for the purpose of occupiers’ liability was irrelevant to P’s common law claim in negligence, which P all along relied on to ground his amendment application.[20] Thus, Mr Wong SC claimed it was unfair and wrong for Mr Leung SC to refer to P’s plea of “breach of statutory duty, breach of common duty of care, and/or breach of the OLO” in paragraph 6 of the SoC as clearly referring to the same cause of action now under the OLO (see paragraph 13 above), which reference selectively omitted P’s express plea of “negligence” in paragraph 6 of the SoC. Mr Wong SC submitted that for P’s common law negligence claim, the court would take a holistic approach as confirmed by the Court of Final Appeal in Luen Hing Fat Coating & Finishing Factory Ltd (pages 32 and 36),[21] so there could not be any inflexible distinction between “occupancy duty” and “activity duty” for such common law cause of action.[22] On such basis, Mr Wong SC argued that P should be allowed to amend the SoC to simply add one further particular (ie Particular 6(17A)) to his existing common law negligence claim against D,[23] which particular could not be said to amount to any “new cause of action” for breach of demarcated “activity duty”. As for Mr Wong SC’s particular responses to Mr Leung SC’s more specific submissions in relation to the 1^st Intended Basis, I will deal with them in the discussion below.

20.  Discussion It was Mr Leung SC’s core contention under the 1^st Intended Basis that the proposed Particular 6(17A) was a new cause of action for breach of the common law duty of care premised on “activity duty” (in contra-distinction to the statutory cause of action for breach of the common duty of care premised on “occupancy duty” that had since supplanted and replaced occupiers’ duty under common law) because P essentially only pleaded breach of “occupancy duty” under the OLO in the SoC (see paragraph 13 above). On the other hand, Mr Wong SC argued that the proposal to amend the SoC to add Particular 6(17A) was intended to more fully particularise P’s presently pleaded cause of action in general negligence (rather than the cause of action for occupiers’ liability) in the SoC, and the “conceptual discipline” (as Mr Leung SC would describe it) of distinguishing between “occupancy duty” and “activity duty” for the purpose of occupiers’ liability was irrelevant to P’s pleaded cause of action in general negligence that required “a holistic view of foreseeability, proximity and the need to be satisfied that it would be fair, just and reasonable to impose a duty of care”.[24]

21.  It is in the context of such debate that I turn to Mr Leung SC’s submissions on the C&L Passage. It is useful to start with the evolution of occupiers’ duty under common law and later under statute to put the C&L Passage in its proper context, so I set out below a more extensive extract from Clerk & Lindsell on Torts:[25]

“11.01 Common law At common law, occupiers’ liability was one of several cases of liability based on negligence which evolved before a general principle of liability was propounded in Donoghue v Stevenson. As the rules had been worked out in some detail before that case, they differed from those which might have been expected to be derived from that decision. Two features stood out. First, what an occupier could and could not do without attracting liability was treated to a large extent as a matter of law, rather than as a matter of fact which turned on what was reasonable in a given case. Secondly, the scope of an occupier’s duties towards those on his land depended crucially on their status. Trespassers and other unlawful visitors were owed no duty at all except in respect of intentional or reckless injury. As regards lawful visitors, a distinction was drawn between persons entering under a contract and those entering merely by invitation or permission, express or implied, on the part of the occupier. In the class of contractual visitors a further distinction was drawn between persons entering under a contract for the use of the premises and those entering under a contract in which the use of the premises was only ancillary to some other purpose. In the heterogeneous class of persons who entered without contract, there was the all-important distinction between “invitees”, in the purpose of whose visit the occupier had a material interest, and ‘licensees” for example those visiting for purely social purposes. The latter were owed a much more exiguous duty.

11.02 Generally [The Occupiers’ Liability Act 1957] gave effect to recommendation in the Law Reform Committee’s Third Report. Its main purpose was to provide new rules, and a “common duty of care,” to replace the rules of the common law under which the duty owed by an occupier of premises differed according as the visitor was an invitee or a licensee. Under the Act, the substance of occupiers’ liability still contains a number of features not found in the rest of the law, and for that reason it is still helpful to treat it separately.

11.03 Scope of occupier’s liability: “occupancy duty” and “activity duty” The common law of occupier’s liability, with its distinctions between licensees, invitees, trespassers and the like, was limited in application to dangers due to the state of the premises. By contrast, where a danger arose from activities on the land, such as shooting or driving vehicles, rather than from the state of the land itself, any duty arising (“activity duty”) was governed by the general rules of negligence, in which issues such as the status of the claimant were largely irrelevant.

11.04 The [Occupiers’ Liability Act 1957] is not entirely clear on this point, s.1(1) providing that the rules in it:

‘shall have effect in place of the rules of the common law, to regulate the duty which an occupier of premises owes to his visitors in respect of dangers due to the state of the premises or to things done or omitted to be done on them.’[26]

It could be argued that these words are wide enough for the Act to apply to all injuries on land due to the negligence of the occupier, thus erasing the common law distinction. But while there may of course be liability for dangers in the state of land due to activities on it, or failure to supervise those carried on by others, and the boundary may be a narrow one, it now seems clear that the specific reference to the “state of the premises” limits the effect of the Act to occupancy duties. As Lord Hoffmann observed, the mere fact that a person may get into danger on a given piece of land is not itself a peril due to the state of the premises, and even if the occupier’s acts or omissions may concurrently affect his safety this does not widen the ambit of the subsection. Furthermore, it seems right in principle: if A’s activity hurts B, the regime governing it should be the same whether or not B happens to have been on A’s land at the time. Thus injuries due to the occupier failing properly to supervise a firework display, shooting a person on his land, inadequately controlling thugs in a nightclub, failing to teach a visitor to use sports equipment, or failing to ensure safe working conditions for a contractor, have been held to fall outside the occupier’s liability regime and within that of general negligence. In any case, where the claimant’s status is not in issue there is often little practical difference between his remedy under the Act and that at common law. The issue in many cases will be one of fact: was the claimant foreseeable, and has the duty to take reasonable care been broken? Indeed, even in clear “occupancy” cases the courts have on occasion simply ignored the Act.

11.05 Concurrent duties There is no doubt that liability under the Act (like occupier’s liability at common law) may co-exist with duties owed in some other capacity, for example as a school, hospital authority, employer, or event organiser; in such a case the claimant can rely on whichever cause of action more advantageous to him. “Occupation of premises is a ground of liability and is not a ground for exemption from liability.” Hence the fact that the claimant would fail were he to bring an action under the Act is no reason to deny liability if he sues in some other capacity, or indeed for ordinary negligence at common law.” (my emphasis)

22.  As seen above, the traditional approach of the common law to occupiers’ liability was to divide entrants to premises into categories, eg (a) the duty to an invitee was to exercise reasonable care to prevent damage from unusual danger of which the occupier knew or ought to have known, (b) the duty to a licensee was the lower duty to warn of any concealed danger on the premises known to the occupier, (c) the duty to an entrant under contract depended on the terms of the contract, and (d) the duty to a trespasser was to abstain from intentional or reckless injury. Notwithstanding modern development of the law of negligence following Donoghue v Stevenson, the common law on occupiers’ liability remained entrenched in different duties owed to different categories of entrants to premises. Eventually England chose the path of statutory reform, which led to enactment of the Occupiers’ Liability Act 1957 (“1957 Act”) that replaced the common law duties owed by occupiers to different categories of lawful visitors (eg invitees, licensees and entrants under contract) by a statutory “common duty of care” owed by occupiers to visitors as from 1 January 1958. But the 1957 Act does not alter the common law in relation to trespassers, which has remained unchanged until intervention by the House of Lords in Herrington v British Railways Board[27] in holding that trespassers are owed a duty of common humanity. Subsequently, the Occupiers’ Liability Act 1984 (“1984 Act”) lays down the duty to trespassers and other uninvited entrants to premises in statutory form.[28]

23.  The 1957 Act provides impetus for statutory reform in other common law jurisdictions including Hong Kong. The OLO enacted in 1959 reflected a number of provisions in the 1957 Act, but Hong Kong has not adopted the 1984 Act, so the law in Hong Kong concerning duty owed by occupiers to trespassers “continues to be supplanted by the common law: see British Railways Board v Herrington [1972] AC 877, see also Wong Wing Ho (a minor) v Hong Kong Housing Authority & Anor [2008] 1 HKC 180 (CA) ……”[29]

24.  Turning to the main provisions in the 1957 Act,

(a)	section 1(1) provides it has effect, in place of the common law, that regulates the duty which an occupier owes to his visitors in respect of dangers due to the state of the premises or to things done or omitted to be done on them;[30]
(b)	section 1(2) provides that the rules so enacted regulate the duty imposed or to whom it is owed, but the common law still applies as to the persons on whom the duty is imposed (ie the occupier under the 1957 Act is the person treated as an occupier under common law) or to whom it is owed (ie the visitor under the 1957 Act is the person treated as the occupier’s invitee or licensee under common law);[31]
(c)	under section 2(1),[32] an occupier owes to all visitors the same common duty of care, ie a duty to take such care as in all the circumstances of the case is reasonable, to see that the visitors will be reasonably safe in using the premises for the purposes for which they are invited or permitted to be there (see section 2(2)).[33]

But the 1957 Act does not deal with causation/remoteness of damage, or the defences of assumption of risk (see section 2(5) of the 1957 Act)[34] and/or exclusion of liability (see sections 2(1) and 3 of the 1957 Act) referred therein, which matters have to rely on the common law. Thus, the 1957 Act is not a self-sufficient or complete code for occupiers’ liability in the sense that such statutory cause of action relates back to the common law on certain aspects.

25.  More importantly, the coverage of occupiers’ liability in the 1957 Act is not complete (eg it does not apply to trespassers) and, as identified by Mr Leung SC, its ambit is limited to injuries/loss caused by the static condition of the premises (ie breach of “occupancy duty”) and not by the dynamic activities on the premises (ie breach of “activity duty”) with the latter being outside the ambit of the 1957 Act and governed by common law (see paragraph 27 below). In Singaporean jurisprudence,[35] this distinction between liability for breach of “occupancy duty” and for breach of “activity duty” for the purpose of occupiers’ liability is described as “static-dynamic dichotomy”, ie liability that pertains to the static condition of the premises, and liability that pertains to the dynamic activities on the premises.

26.  Indeed, the “conceptual discipline”, as Mr Leung SC would describe it, of distinguishing between “occupancy duty” and “activity duty” came about in early case law on occupiers’ liability prior to the 1957 Act to provide escape from harsh/unjust outcomes of the then common law on occupiers’ liability as a result of limitations imposed by different duties (particularly the limited duty owed to licensees) owed to different categories of entrants to premises (eg “licensees, invitees, trespassers and the like”[36]) in cases involving negligent activities on the premises.[37] In other words, a claim for breach of “activity duty” may escape the formalisim of traditional common law on occupiers’ liability (which liability is essentially for omissions in relation to the state of the premises and hence regarded as a limited/special duty) that has always been more limited than liability for negligent acts (which liability is regarded as a general duty) (see also paragraph 46 below). The 1957 Act was enacted in response to widespread dissatisfaction with such confusing/unpredictable state of the then common law on occupiers’ liability by sweeping away “the formalistic categories of relationship adopted under the traditional common law rules (with the exception of trespassers) and imposed a ‘common duty of care’ (see s 2(1)) on an occupier towards all ‘visitors’ (defined in s 1(2) as invitees and licensees) on his premises”.[38]

27.  However, even though section 1(1) of the 1957 Act appears to extend the “common duty of care” to dynamic activities on (as well as static condition of) the premises (see paragraph 24(a) above), section 1(2) thereof casts doubt on this (see paragraph 24(b) above), and subsequent English jurisprudence has made clear that the specific reference to the “state of the premises” limits the effect of the 1957 Act to “occupancy duty”[39] leaving dynamic activity as part of the law of general negligence. Thus, V K Rajah JA in See Toh Siew Kee v Ho Ah Lam Ferrocement (Pte) Ltd & ors, a decision of the Singaporean Court of Appeal, explained as follows:[40]

“[39] …… [The 1957 Act] did not obliterate the distinction between the static and the dynamic …… (referred to hereinafter as ‘the static-dynamic dichotomy’): s 1(1) specifically referred to ‘dangers due to the state of the premises’. In Fairchild v Glenhaven Funeral Services Ltd [2001] EWCA Civ 1881, [2002] IRLR 129 at [129]-[130] the English Court of Appeal confirmed that the language used in the [1957 Act] strongly indicated that the English Parliament intended the [1957 Act] to apply only to static duties (ie, duties arising from the static condition of the property). Thus, even after legislative intervention, the law in England on occupiers’ liability was still not fully rationalised as part of the general law of negligence.” (my emphasis)

28.  In making the observation that “the law in England on occupiers’ liability” (that adopts the disjunctive “static-dynamic dichotomy” that takes “activity duty” outside the ambit of the 1957 Act) “was still not fully rationalised as part of the general law of negligence”, V K Rajah JA in See Toh Siew Kee explained that the English courts have not had the opportunity to definitively consider whether the rules governing occupiers’ liability (under the 1957/1984 Acts) should be subsumed under the general principles of the law of negligence[41] (ie (a) whether the general law of negligence adopts a conjunctive holistic approach of concurrent duties/liabilities vis-à-vis both the static and the dynamic without inflexible distinction between “occupancy duty” and “activity duty”, or (b) whether the 1957 Act has effect in replacing/abrogating the common law such that the latter has no continuing role and hence no concurrent common law duty for static-related claims that come within the 1957 Act).

29.  I note with interest that whilst Mr Leung SC cited a few authorities (discussed below) that appear to adhere to the distinction/ dichotomy that excludes “activity duty” for the purpose of occupiers’ liability under the 1957 Act (or the OLO), he did not cite any authority for the proposition in paragraph 28(b) above that in the field covered by the 1957 Act or the OLO (ie breach of “occupancy duty”), such statutory liability replaces/abrogates the common law (which practically means the 1957 Act or the OLO sets up a separate/exclusive code for occupiers’ liability premised on “occupancy duty”) without resorting to general negligence as an alternative[42] (which practically means there is no concurrent duty/liability under common law).

30.  Although not so clearly or boldly stated, Mr Leung SC might nebulously have the above in mind when, in paragraph 2 of his written submissions, he argued (a) the proposed Particular 6(17A) in fact introduced a new common law cause of action for “activity duty”, but (b) reference to “breach of statutory duty, breach of common duty of care, and/or breach of the OLO” in paragraph 6 of the SoC in fact referred to “the same cause of action now under the [OLO]” (ie statutory cause of action), which “was enacted to replace occupier’s duty at common law” (my emphasis) and which “confines to the duty to arising from the “state of the premises” and which makes a clear distinction between “occupancy duty” and “activity duty””, and in such submissions he made no mention at all of P’s existing cause of action in general negligence already pleaded in paragraph 6 of the SoC, which common law cause of action P expressly relied upon to ground his application to amend the SoC to add the proposed Particular 6(17A)).

31.  Mr Leung SC’s submissions in the above paragraph seemed to harness the propositions in paragraphs 28(b) and 29 above to suggest that the proposed Particular 6(17A) was a “new cause of action” on the premise that (a) the existing Particulars pertained to “occupancy duty” (and not “activity duty”) under the exclusive statutory cause of action under the OLO for occupiers’ liability, and (b) the proposed Particular 6(17A) pertained to “activity duty” under the common law cause of action for general negligence outside the statutory regime. But such argument, if taken to its logical conclusion, must mean the presently pleaded common law cause of action for general negligence actually did not exist by virtue of the OLO that exclusively covered “occupancy duty”, which, according to D, was the sole subject currently pleaded in the Particulars.

32.  But this was not D’s stance all along, whether for the Appeal or for the Leave Summons. At the Appeal, Mr Leung SC did not suggest P’s entire or existing cause of action in general negligence for breach of the common law duty of care in the SoC was not viable and/or was liable to struck out (as noted by Mr Wong SC in his submissions for the Appeal).[43] Further, in footnote 5 of his written submissions for the Leave Summons, Mr Leung SC reminded that even though the existing Particular 6(17) made reference to expectation of consumption of alcohol by customers, it was still a plea as to “occupancy duty” in relation to the design/construct of the Stairway “whether analysed within the rubric of “common duty of care” (under OLO) or the law of negligence (under common law)” (my emphasis). Such acknowledgment that the Particulars on “occupancy duty” could alternatively be analysed within “the rubric of …… the law of negligence (under common law)” pointed towards the non-exclusivity of the statutory cause of action under the OLO for occupiers’ liability based on “occupancy duty”, which suggests that the cause of action in general negligence already pleaded in paragraph 6 of the SoC embraces concurrent duties as to both the static and the dynamic, which in turn arguably fed Mr Wong SC’s submissions that such common law claim requires a holistic approach without inflexible distinction between “occupancy duty” (as D acknowledged) and “activity duty” (as D accepted). In my view, this plainly lent weight to P’s position (which, in my view, was not “bound to fail”) that the proposed Particular 6(17A) was nothing more than an additional particular to the already pleaded common law cause of action for general negligence, and not any new cause of action.

33.  But even if I were to put aside the English position and D’s stance for the time being, the juridical basis for distinguishing between “occupancy duty” and “activity duty” (in contrast to factual differences between the static condition of the premises and the dynamic activities on the premises in the particular factual matrix of each case) in Hong Kong is in a state of doubt because when this point was raised in Waan Chuen Ming v Lo Kin Nam t/a Kar Kin Engineering & Supplier Co & anor,[44] the Court of Appeal held it was unnecessary to decide on this ground.

34.  In that case, the 2^nd defendant argued the OLO was not engaged because the OLO “is concerned not with an occupier’s ‘activity duty’ but only with ‘occupancy duty’” (page 357). Cheung JA at pages 357-463 noted the English position that recognised such distinction for the purpose of occupiers’ liability by discussing at length the Report on Liability for Damage or Injury to Trespassers and Related Questions of Occupiers’ Liability,[45] relevant English authorities[46] and learned textbooks,[47] and the learned justice of appeal went on to say as follows (page 363):

“45. The authorities recognised the distinction between ‘occupancy duty’ and ‘activity duty’, However, it is not necessary, for the purpose of this appeal, to decide whether the present case falls outside the ‘occupancy duty’ of the 2^nd defendant and therefore did not engage the [OLO]. It is also not necessary to decide, whether based on the distinction between ‘occupancy duty’ and ‘activity duty’, what Lord Keith regarded to be the special circumstances where a liability is to be attached to the occupier must necessarily be outside the scope of the ‘occupancy duty’. The distinction of these two types of duty obviously was canvassed before the House of Lords, yet Lord Keith [in Ferguson v Welsh[48]] did not specifically state that the ‘special circumstances’ must be considered in the context of a claim based on negligence.”

Cheung JA (with Tang VP concurring and Stone J dissenting) went on to hold in that case that negligence was established on well-established principles and on the plaintiff’s pleaded case against the 2^nd defendant (pages 363-364), and insofar as necessary, liability could also be established based on the “special circumstances” test propounded by Lord Keith in Ferguson (page 367). Whilst the trial judge’s decision against the 2^nd defendant was based on breach of the common duty of care by an occupier, it was said his reasoning was equally applicable to that based on negligence (page 367).

35.  Tang VP (as he then was) in refusing to grant leave to appeal to the Court of Final Appeal[49] noted that “…… after a detailed discussion of the authorities on the distinction between ‘activity duty’ and ‘occupancy duty’ [Cheung JA] did not find it necessary to rest his judgment on the distinction” (paragraph 8), and instead Cheung JA held the 2^nd defendant owed a duty of care to the plaintiff in negligence on the basis of foreseeability of damage, proximity of relationship, and justice and reasonableness (paragraph 8), which judgment did not depend on the 2^nd defendant’s relationship with the plaintiff as an employee of the 1^st defendant (who was an independent contractor of the 2^nd defendant) (paragraph 11).

36.  Thus, whilst it may be argued that the OLO is concerned with injury/damage caused by the static condition of the premises rather than by the dynamic activities on the premises, of more interest for the present purpose is the scope/ambit of the common law cause of action in general negligence which P had already pleaded in the SoC and which P relied upon to introduce the proposed Particular 6(17A). But as seen above, the Hong Kong position is uncertain[50] as to whether:

(a)

the OLO creates a separate/exclusive statutory cause of action premised on “occupancy duty” that abrogates any concurrent duty under the general law of negligence, thus (as D argued) rendering any plea of breach of “activity duty” (based on the common law cause of action in general negligence) that grafts onto the existing and only plea of breach of “occupancy duty” (that gives rise to a statutory cause of action for occupiers’ liability under OLO) to be a “new cause of action” (see paragraphs 28(b) and 29 above); or

(b)

the OLO is not any separate/exclusive code, so a claimant need not resort to it if the defendant’s concurrent static-dynamic duties, which are not subject of inflexible distinction between “occupancy duty” and “activity duty” under the common law tort of negligence as pleaded (whether in the original or amended claim), can be holistically and sufficiently established on the basis of foreseeability of damage, proximity of relationship, and justice and reasonableness (as explained in Luen Hing Fat Coating & Finishing Factory Ltd)[51] (see paragraph 28(a) above).

It was in such legal uncertainty in Hong Kong that the Court of Appeal in Waan Chuen Ming decided the 2^nd defendant’s liability was sufficiently established under the general law of negligence.

37.  The Court of Final Appeal eventually granted leave to appeal in that case.[52] As pointed out by Mr Leung SC, by the time of the substantive appeal to the Court of Final Appeal, the plaintiff no longer relied on occupiers’ liability because on the particular facts of that case the accident was not due to the “state of the premises”, and the success or otherwise of his claim against the 2^nd defendant would turn not on occupiers’ liability but on the tort of negligence (see page 29 of Luen Hing Fat Coating & Finishing Factory Ltd).

38.  Similar outcomes were seen in Ma Yuet Pong v Chan Kar Wai & ors,[53] Ng Tat Kuen,[54] 郭生琼作為2015年8月5日法庭命令委任為死者馬黑皮的遺產代表人 & anor,[55] and Wong Yeung Chui Yee v Citybase Property Management Limited[56] in which the courts resolved the issue of liability based on the tort of negligence without engaging the OLO because on case-specific facts the plaintiffs’ complaints were not in relation to the state of the premises but were in relation to the dynamic activities on the premises.

39.  The same could also be said of the case of Geary cited by Mr Leung SC. In that case, the pub in question was a refurbished gentlemen’s club with a grand open staircase at the centre of a listed building. The bannisters on the staircase were below the minimum height allowed under the relevant municipal building code, but an exemption/waiver had been obtained from the local authority. Prior to the subject accident, several other customers had injured themselves (albeit not seriously) sliding down the bannisters. About half a year after the subject accident, another customer sustained head injury as a result of another sliding incident. As a result, the pub management placed a rope around the bannisters to make it impossible to slide down them.

40.  In March 2007, the claimant went to the pub for drinks with work colleagues. She had altogether 4 vodka-and-tonics, and on leaving the building she attempted to slide down the bannisters, lost her balance, fell over backwards onto the marble floor, and fractured her spine resulting in devastating injuries. The claimant sued the defendant owners/operators of the pub principally in negligence for breach of the common law duty of care although there was an alternative claim for breach of the 1957/ 1984 Acts. At the close of evidence, the claimant indicated that the alternative claim under the 1957/1984 Acts added nothing to the common law claim.

41.  Coulson J dismissed the claim. He accepted the claimant was not drunk at the time of the incident, and found there was nothing unsafe about the state of the premises to give rise to liability under the 1957/1984 Acts. The claimant’s injuries were not caused by any defects in the staircase but by her decision to slide. Under cross-examination, the claimant accepted that sliding down bannisters carried an obvious risk of falling off, that she had chosen to take such risk, and that she had not believed she was permitted to slide down the bannisters. So it was the claimant’s act that was dangerous, and the defendants had no free-standing duty to protect her from such an obvious and inherent risk. The claimant made a genuine and informed choice and had voluntarily assumed such obvious risk, which risk unfortunately materialised.

42.  Coulson J noted that in the authorities where the defendant was held to have assumed responsibility for the claimant’s risk-taking, there were particular facts or specific reliance (eg the defendant could have been liable if it had encouraged risk-taking by, say, organising bannister-sliding competitions), and mere foreseeability of injury and occupation of the premises were insufficient. But in the case before him, there was no evidence that the defendants had assumed responsibility sufficient to negate the defence of voluntary assumption of risk of injury by the claimant’s action, and there was no sufficient evidence to satisfy the foreseeability, proximity, and fair, just and reasonable criteria of the Caparo[57] test for common law negligence. On such basis, it was held that no relevant duty of care was owed by the defendant to the claimant.

43.  In short, irrespective whether the activity-based claims in the above cases (see paragraphs 38-42 above) succeeded or failed at the end of the day, they fell within the general law of negligence and outside the OLO or the 1957 Act. But the factual situation particular to such cases was quite the obverse of D’s perception of P’s presently pleaded case, ie D claimed P’s case was premised on the “state of the premises” (under the OLO) and not on any “activity duty” (outside the OLO), so the proposed Particular 6(17A), which was said to pertain to “activity duty”, was a “new cause of action” (under general negligence). In my view, while the distinction between “occupancy duty” and “activity duty” may be helpful in excluding a claim from the OLO, a separate question arises as to whether such distinction marks the ambit of common law general negligence, an uncertain subject which the Court of Appeal in Waan Cheun Ming has left unresolved (see paragraphs 33-36 above). In my view, Mr Wong SC’s contention in paragraphs 28(a) and 36(b) above is, quite plainly, not “bound to fail” given (a) the uncertain legal position in Hong Kong as explained above, (b) the absence of detailed addresses made to this court on the juridical basis of an occupier’s duty of care following the enactment of the OLO, and (c) the overall discussion in Part III(a) herein. On (a) above, I note for the sake of completeness (although there is no need for me to rely on such matters) that Hong Kong is not alone in such legal uncertainty, see eg the Western Australian experience[58] and judicial observations in Singapore[59].

44.  The difficulty and lack of utility in respect of the distinction between “occupancy duty” and “activity duty” for the purpose of a common law cause of action in general negligence is also highlighted in Clerk & Lindsell on Torts (see paragraph 21 above). As noted by V K Rajah JA in See Toh Siew Kee (page 383),

“[56] …… In any event, there is little to no practical utility in considering the question [of whether the rules governing occupiers’ liability should be subsumed under the general principles of the law of negligence, ie whether under common law negligence there are concurrent static-dynamic duties/liabilities with no inflexible distinction between “occupancy duty” and “activity duty”]. As Clerk & Lindsell on Torts (20^th edn, 2010) …… states at para 12-04:

‘… [W]here the claimant’s status is not in issue there is often little practical difference between his remedy under the [1957 Act] and that at common law [under the law of negligence]. The issue in many cases will be one of fact: was the claimant foreseeable, and has the duty to take reasonable care been broken?’ (My emphasis.)”

The above passage extracted from Clerk & Lindsell on Torts went on to state that “[indeed], even in clear “occupancy” cases the courts have on occasion simply ignored the [1957 Act]” (see paragraph 21 above).[60] V K Rajah JA in See Toh Siew Kee referred to the 2 cases cited in the footnote to the above passage in Clerk & Lindsell on Torts as follows (pages 384-385):

“[59] It is also interesting to note that some English cases have ignored the [1957 Act] altogether, as can be seen from Davies v The Mayor, Aldermen and Burgesses of The Borough of Tenby [1974] 2 Lloyd’s Rep 469 (“Davies”) and Ward v Tesco Stores Ltd [1976] 1 WLR 810 (“Ward v Tesco Stores”). Davies concerned a plaintiff who became a quadriplegic as a result of striking his head on the sea bottom after diving from the defendant’s loose diving-board, while Ward v Tesco Stores concerned a plaintiff who slipped and fell when she trod on spilt yoghurt on the defendant supermarket’s floor. In both cases, there is no mention whatsoever of the [1957 Act] – further fortifying the proposition that the law on occupiers’ liability is, at its root, a mere subset of the general principles of the law of negligence. Clerk & Lindsell on Torts (2010) have therefore good reason to observe that “[i]ndeed, even in clear ‘occupancy duty’ cases the courts have on occasion simply ignored the [1957 Act]” (at para 12-04). ……”

45.  On this note, I turn to the C&L Passage which states that liability under the 1957 Act (in much the same way as occupiers’ liability at common law) may coexist with duties owed in some other capacity, eg as a school, hospital authority, employer or event organiser, and in such a case the claimant can rely on whichever cause of action was more advantageous to him. This is elaborated and explained in Charlesworth & Percy on Negligence[61] as follows:

“…… Nevertheless, it should be kept in mind that the relationship of occupier and visitor is but one source of a duty of care in relation to the site of premises. Different legal relationships between two persons can exist side by side without being mutually exclusive. So a claimant is not restricted to suing the defendant in his capacity as the occupier of dangerous premises, if he can also sue the same person in his capacity, for instance, as employer.”

46.  The C&L Passage next cites an observation by Lord Gardiner LC when delivering the judgment of the Privy Council in Commissioner for Railway v McDermot.[62] It is perhaps useful to refer to the more extensive extract set out in Charlesworth & Percy on Negligence as follows:[63]

“In their Lordships’ opinion the basic principle for a case such as this is that occupation of premises is a ground of liability and is not a ground of exemption from liability. It is a ground of liability because it gives some control over and knowledge of the state of the premises, and it is natural and right that the occupier should have some degree of responsibility for the safety of persons entering his premises with his permission …… If there is no other relevant relationship, there is no further or other duty of care. But there is no exemption from any other duty of care which may arise from other elements in the situation creating an additional relationship between the two persons concerned. Theoretically in such a situation there are two duties of care existing concurrently, neither displacing the other. A plaintiff could successfully sue for breach of either or both of the duties if the defendant had committed such breaches, although for practical purposes the plaintiff could be content with establishing the general duty [eg common law negligence] and would not gain anything by adding the special and limited duty [eg occupier’s liability].” (my emphasis)

This led to the conclusion in the C&L Passage that were the claimant to fail in bringing an action under the 1957 Act (ie there is no “occupancy duty/ liability”), there is still no reason to deny liability (a) “if he sues in some other capacity”, or (b) “indeed for ordinary negligence at common law”. Thus, occupiers’ liability is not the be all and end all, and the court must look to see if other pleaded causes of action can be established (eg the tort of negligence based on the arguable contention (which is not “bound to fail”) of concurrent duties without inflexible distinction between “occupancy duty” and “activity duty”).

47.  For (a) above, the question to resolve is whether the defendant has a “relationship” with the claimant that gives rise to a duty of care under the tort of negligence. The relevant test to determine whether such duty of care arises is set out in Caparo Industries Plc v Dickman[64] or, more relevantly for Hong Kong, in Luen Hong Fat Coating & Finishing Factory Ltd, which comprises a threshold question of factual foreseeability coupled with a two-stage test comprising proximity and policy considerations (ie whether it is fair, just and reasonable to impose a duty of care), which considerations turn on the facts and circumstances of each case. What the C&L Passage suggests is that if there is a “special” relationship with the defendant giving rise to a duty of care, then the claimant can still sue under common law in his “other capacity” notwithstanding any failure to bring a claim under the 1957 Act (or the OLO).

48.  This was precisely the question addressed by this court in paragraphs 139-141 of the Decision, ie whether the relationship between alcohol serving outlets or commercial hosts and their patrons to whom they serve alcohol or liquor gives rise to a duty of care on the part of the former as occupier/publican of the drinking premises, which duty, if breached, may result in alcohol liability in negligence. Whilst international jurisprudence is divergent on the subject, some jurisdictions (notably the Canadian one) hold that such outlets/hosts and their patrons are in a “special” proximate relationship that creates a general duty of care owed by such outlets/hosts when dealing with their patrons, and then go on to impose obligations on such outlets/hosts to take affirmative action or preventive steps to ensure their patrons do not become intoxicated and thereby cause injury to themselves or others affected by their conduct (see paragraph 141 of the Decision). As explained in Crocker v Sundance Northwest Resorts Ltd,[65] the issue of duty of care turns on “relationship” and depends on the circumstances of the relationship between the parties (see paragraph 166 of the Decision).

49.  The series of Canadian cases discussed in paragraphs 153-168 of the Decision show incremental judicial willingness in Canada to impose greater responsibilities on alcohol serving outlets or commercial hosts towards their patrons and third persons who may be affected by their conduct based on foreseeability, proximity and fairness/justice due to their special invitor-invitee relationship (see paragraph 169 of the Decision), which trend has been endorsed in Stewart v Pettie[66] and Childs v Desormaux[67] (see paragraph 170 of the Decision).

50.  Echoing Crocker, Major J in giving the unanimous decision in Stewart held that (a) the existence or otherwise of a duty of care is a question of relationship and not a question of conduct, (b) every patron is in a invitor- invitee “special relationship” with the bar/restaurant establishment that imposes a general duty at common law on the latter to take positive action to protect the former and others from the dangers of intoxication, which duty requires such drinking establishment (even if a patron has not shown visible signs of intoxication) to (i) monitor the consumption of such patron, (ii) make reasonable assumption from the amount consumed that such patron is likely to be impaired, and (iii) take positive steps to prevent such patron from doing any act or activity that is likely to cause harm), and there is no question that commercial vendors of alcohol owe a general duty of care to third persons who may be affected by the conduct of such patrons (paragraph 172 of the Decision).

51.  Such Canadian judicial acceptance that alcohol serving outlets or commercial hosts owe a general duty of care to its patrons and third persons who may be affected by their conduct is re-affirmed in Childs (notwithstanding contrary views by Gleeson CJ and Callinan J in Cole as re-affirmed in CAL No 14 Pty Ltd & anor) (see paragraph 173 and 175 of the Decision). In Childs, McLachlin CJ noted Stewart affirmed that a “special relationship” exists between taverns and third parties affected by the conduct of the patrons that requires the former to take positive action to protect the latter, and the Chief Justice highlighted the 3 matters set out in paragraph 186 of the Decision (which I shall not repeat here) for imposing such general duty of care on alcohol serving outlets or commercial hosts (see paragraph 186 of the Decision). Hummel v Jantzi[68] also reinforced the Canadian emphasis on a publican’s general duty of care by reason of the “special” invitor-invitee relationship with its patrons, and on a publican’s duty to monitor its patron’s consumption of alcohol before the point of intoxication (see paragraph 194 of the Decision).

52.  The Canadian position on alcohol liability has been summarised in paragraphs 196-197 of the Decision, which for convenience I repeat here:

“196. Thus, the Canadian position on alcohol liability can be briefly summarised. There can be an implied general duty of care on the part of alcohol serving outlets or commercial hosts to ensure the safety of their patrons and others arising out of the “special” invitor-invitee relationship because injury was usually reasonably foreseeable, and because alcohol providers derive economic benefit from selling/serving alcohol and are more likely to have the ability to monitor a patron’s alcohol consumption, to recognise signs of alcohol impairment, and to determine when he has drunk alcohol in excess. An alcohol serving outlet or commercial host does not escape liability simply by not knowing that the patron has become inebriated if it ought reasonably to have known as a result of its monitoring obligation. Although the ultimate determinant of liability remains the foreseeability of harm to the patron or others (ie a matter of “relationship” underpinned by the legal/policy rationale explained above), the standard of care required will vary depending on “conduct” in the circumstances to be investigated and/or determined at trial, but the Canadian authorities suggest that alcohol serving outlets or commercial hosts are expected to go to quite considerable lengths to develop protocols to meet such duty of care.

197. The above discussions show that Canadian legal principles governing liability of alcohol serving outlets or commercial hosts (which may arise from the condition of the premises, from the activities thereat and/or by reference to their patrons’ conduct) are quite expansive. Even though a duty of care owed by such outlets/hosts to their patrons and others remains a fact-sensitive determination with foreseeability (that serving alcohol will cause harm to the patrons or others) and proximity (by reference to common law, statute and licence control conditions) remaining at the core of the analysis, the case law suggests this aspect of Canadian tort law has evolved and developed to meet the varied circumstances in which such outlets/hosts serve their patrons, understand the extent of their inebriation and/or be subject to the particular factual proximity with third persons. This must have resonance (if not direct application) in Hong Kong when there is as yet no body of case law at all on this very subject.”

53.  It is in light of the above analysis of Canadian jurisprudence that this court by the Decision held that P’s contention for the existence of a general duty of care owed by a commercial host or publican (eg D in the present case) under common law (as distinct from mere “occupancy duty” owed by an occupier) to their patrons (eg P in the present case) was not “bound to fail”. This also feeds the proposition in the C&L Passage that a cause of action on occupiers’ liability under the 1957 Act (or the OLO) will not circumscribe the claimant’s pursuit of a claim against the defendant “if he sues in some other capacity”, eg under a special invitor-invitee relationship between a commercial host / publican and patron that gives rise to a general duty of care under the tort of negligence as explained above.

54.  Turning next to (b) above that concerns liability “for ordinary negligence at common law”, Mr Wong SC complained that Mr Leung SC made a blinkered reference in his written submissions to (a) above (ie failure under the 1957 Act (or the OLO in Hong Kong) was no reason to deny liability if the claimant “sues in some other capacity”), and omitted to set out the fullness of the C&L Passage that also referred to (b) above, ie failure under the 1957 Act (or the OLO in Hong Kong) was no reason to deny liability if the claimant also sued for and established ordinary negligence under common law, which this court correctly noted in paragraph 101 of the Decision.

55.  The C&L Passage in this respect cites inter alia the following case law in the relevant footnote:

(a)

In AC Billings & Sons Ltd v Riden,[69] contractors reconstructing the front approach to a house in which lived a caretaker and his wife so obstructed the normal approach that it became impassable. Their workmen suggested to the caretaker’s wife that persons might go in and out of the house by using the forecourt of the house next door, a route involving danger because it led through a narrow way between bushes and the unfenced sunk area of the house. The claimant visited the caretaker and his wife by invitation one evening after dark, and used that way in on the suggestion of the caretaker’s wife. In leaving the same way, after declining an offer to escort her, she fell into the area next door sustaining injuries. It was held that the accident was caused partly by the danger of the route and partly by the claimant’s own negligence (page 257). The contractors were not occupiers of the site of the accident being adjacent property (so an action for occupiers’ liability would have failed), but they were found to have been negligent (ie they were aware of the danger, and in failing to provide a safe approach to the house, they were in breach of duty to use reasonable care when lawful visitors attempting to leave the house were precipitated into danger on adjacent property) and were liable in damages to the claimant who was guilty of contributory negligence (pages 257-258 and 263).

(b)

In Bailey (a minor suing by his next friend Bailey) v Armes & ors,[70] the claimant child fell from a sloping roof behind a supermarket store and sustained head injuries. He brought action by his father and next friend against the occupiers of the premises, the occupiers of a flat overlooking the flat roof of the supermarket store and their young son. After trial, the occupiers of the premises and the young child were held not responsible to the claimant (page 1). The trial judge found the claimant gained access to the roof by climbing up the wall from the garden (page 2), and the accident occurred when the claimant and the young son of the occupiers of the flat overlooking the flat roof of the supermarket store had been running up the sloping roof, and the claimant sliding down the slates onto the flat roof near the ridge tiles, falling over and landing in the yard at the back of the supermarket store (page 3). The trial judge rejected the contention that the occupiers of the flat overlooking the flat roof of the supermarket store had sufficient control of the roof to constitute them occupiers for the purposes of the 1957/1984 Acts (which finding was upheld on appeal), but if he were wrong on such finding, the claimant could not be regarded as their visitor (as they did not know the claimant was on the roof on the occasion of the accident, and did not acquiesce in or give permission for other children to play on the roof) (pages 3-4). The trial judge next turned to the claimant’s case based on a duty of care at common law, but found in the circumstances of the case that the occupiers of the flat overlooking the flat roof of the supermarket store had assumed no duty towards the claimant, so there was no relationship in which it was fair, just or reasonable to impose responsibility on them (which finding was upheld on appeal) (pages 4-5).

56.  In my view, AC Billings & Sons Ltd and Bailey (a minor suing by his next friend Bailey) are not materially different from Ma Yuet Pong, Ng Tat Kuen, 郭生琼作為2015年8月5日法庭命令委任為死者馬黑皮的遺產代表人 & anor, Wong Yeung Chui Yee and Geary discussed in paragraphs 38-42 above in which the courts resorted to general negligence under common law (with success in some cases and failure in others upon case-specific and fact-sensitive analysis), and in the failed cases there was absence of any “special relationship”, “for example as a school, hospital authority, employer, or event organiser” (see C&L Passage), or ordinary “neighbour” relationship, to give rise to any common law duty of care.

57.  In short, the existence of a claim for occupiers’ liability premised on “occupancy duty” does not deny vitality of a co-existing claim under common law negligence premised either on duty of care arising from a “special relationship” in which the claimant “sues in some other capacity” or arising from ordinary “neighbour” relationship in which the claimant “sues …… for ordinary negligence at common law”. Here, (a) P had already pleaded both causes of action under the OLO and under common law negligence, and (b) the proposed Particular 6(17A) was put forward to particularise the cause of action under general negligence. Given the possible co-existence of these 2 causes of action (such that “there is often little practical difference between …… remedy under the [1957 Act] and that at common law” and that “even in clear “occupancy” cases the courts have on occasion simply ignored the [1957 Act]” – see paragraphs 44-46 above), and further given the statutory remedy cannot be used to deny the pleaded common law remedy if proved, I find D’s emphasis on the distinction between “occupancy duty” and “activity duty” for the purpose of occupiers’ liability under the OLO was somewhat of a red herring, and the true issue was whether P should be allowed to amend the SoC to introduce the proposed Particular 6(17A) to support his common law cause of action on general negligence which he had already pleaded in the SoC.

58.  I cannot see how I have erred in my reading of the C&L Passage when in paragraph 101 of the Decision I referred to the 2 pleaded causes of action under OLO and common law negligence, and the possible co-existence of these 2 causes of action that may allow P to “rely on whichever cause of action is more advantageous to him”, and then I went on to say on such premise that I would turn to “the arguability of a duty of care owed by an occupier/publican (eg an alcohol serving outlet or commercial host that sells alcohol to the public from its business premises for profit) to prevent drunkenness or intoxication of a patron to protect such patron and other entrants (eg the outlet’s/host’s other patrons) against reasonably foreseeable injury under the umbrella of ordinary negligence at common law whether arising from defects of the premises and/or from activities at the premises as a result of their relationships, ie whether such “neighbourhood” relationships are similar to those of existing categories of “special” relationships in which duty of care already exists (eg schoolmaster-pupil, hospital-patient, employer-employee, etc)”.

59.  In the circumstances, given the proper understanding/effect of the C&L Passage explained above, and the Canadian jurisprudence explained above and in Part VII(f) of the Decision, it is quite plain that P’s suggestion that the proposed Particular 6(17A) was merely an additional particular for the presently pleaded claim under common law negligence that co-existed with his claim under the OLO cannot be said to be unarguable or “bound to fail”.

60.  Turning now to Mr Leung SC’s complaint that in deriving an emerging “general duty” on the strength of Canadian authorities this court had erred in harnassing Kirby J’s dissenting judgment in Cole out of context (see paragraph 16 above), the short answer is that even putting aside the dissenting judgments of Kirby and McHugh JJ in Cole, this court has found that the evolution/development of Canadian jurisprudence on alcohol liability (see Part VII(f) of the Decision and paragraphs 48-52 above) of itself will have resonance in Hong Kong where there is as yet no body of case law at all on this every subject, and that such Canadian jurisprudence is self-sufficient in lending support for P’s contention (which is arguable and not “bound to fail”) for the existence of and rationale for a general duty of care owed by alcohol serving outlets or commercial hosts to their patrons, which duty may come into existence before any “intoxication” or “knowledge” such that there is no need to specifically plead these matters to raise “exceptional circumstances” (see also paragraphs 78-82 below).

61.  But even if one were to consider the dissenting judgments of Kirby and McHugh JJ in Cole, I am not persuaded that I have taken Kirby J’s dissenting judgment out of context. Mr Leung SC’s suggestion otherwise seems to be predicated on his argument that the duty postulated by McHugh J is subject to “the qualification that the injury must be of a kind that was reasonably foreseeable” (see paragraph 217 of the Decision in which I set out paragraphs 31-32 of McHugh J’s judgment at page 60 of Cole in full). This refers to the “foreseeability” element of the duty of care under the tort of negligence as explained in Luen Hing Fat Coating & Finishing Factory Ltd (see paragraph 83 of the Decision). I have also set out paragraphs 91-93 of Kirby J’s judgment at pages 71-72 of Cole in full in paragraph 218 of the Decision to enlighten how the learned judge explained that “the plaintiff [in that case] (and patrons of alcohol serving outlets or commercial hosts) was “potentially vulnerable to harm as a result of [the club’s] commercial activities”, so [that] the club had a duty in terms as explained by McHugh J ……” (my emphasis). Kirby J at paragraphs 91-92 in Cole (which paragraphs were set out in full in paragraph 218 of the Decision) explained inter alia as follows (which I have italicised for emphasis in paragraph 218 of the Decision):

“…… As McHugh J points out in his reasons, with which I agree, the common law has long recognised that the occupier of premises owed a duty to take reasonable care for the safety of those who enter the premises. The duty arises from the occupation of the premises. It extends to protection from injury from all of the activities on the premises, including, in registered premises such as the club’s, the sale of alcoholic drinks …… a patron was a person who, in the reasonable contemplation of the club and its employees, was potentially vulnerable to harm as a result of his commercial activities. Such harm was reasonably foreseeable in the given circumstances ……” (my further emphasis)

Then, in paragraph 216 of the Decision, I encapsulated the dissenting judgments in Cole as follows: “…… McHugh and Kirby JJ held that the club as the occupier with absolute control over the club premises had an affirmative duty which extended to taking reasonable care to prevent injury caused by, and reasonably foreseeable as a result of, the consumption of alcohol at the club premises” (my emphasis). In light of the above, I am unable to see how I have taken Kirby J’s dissenting judgment out of context, or ignored the element of reasonable foreseeability of injury of the kind that a customer under the influence of liquor would be likely to suffer for establishing duty of care. McHugh J also reminded that “it is not necessary that the club should reasonably foresee the precise injury that the customer suffered or the manner of its infliction. It is enough that the injury and its infliction were reasonably foreseeable in a general way” (see paragraph 217 of the Decision).

62.  It seemed, therefore, that the essence of Mr Leung SC’s complaint boiled down to my failure to recognise that injury of the foreseeable kind in Cole was predicated upon the facts that (a) the plaintiff was intoxicated and (b) the club ought to have foreseen her drinking had the effect that she was exposed or becoming exposed to the real possibility of suffering injury and ought to have taken action to prevent it.

63.  I am not persuaded that Mr Leung SC’s aforesaid submissions have reasonable prospects of success. At the outset, for proper understanding of the reasons discussed below for coming to such view, it is necessary to reiterate the importance of appreciating the difference between (a) the factual circumstances in a particular case, and (b) the juridical rationale for the judge’s decision.

64.  For (a) above, McHugh J in paragraph 33 of Cole (page 60) explained that by lunchtime, signs of the plaintiff’s inebriation was plain to anyone who cared to look, and Mrs H said that at midday the plaintiff was drunk and carrying on and arguing, and that her speech was a bit funny (see paragraph 201 of the Decision). Mrs H testified that by about 1:45pm the plaintiff was “absolutely drunk”, and by 2:15pm to 2:30pm she was “totally inebriated” (see paragraphs 201-202 of the Decision). McHugh J accepted the plaintiff was intoxicated by early afternoon. But even though the plaintiff had been drinking since around 9:00am and throughout the day, there was no finding of signs of inebriation until about lunchtime (see paragraphs 201 and 209 of the Decision). The learned judge at paragraph 35 of the judgment (pages 61-62) (which I have set out in full in paragraph 219 of the Decision) went on to say that “[upon] the evidence, the Club ought to have foreseen by early afternoon at the latest that [the plaintiff’s] drinking had the effect that she was exposed or becoming exposed to the real possibility of suffering injury and taken action to prevent it” (my emphasis but omitted in the extract set out in paragraph 4 of Mr Leung SC’s written submissions – see paragraph 219 of the Decision). Interestingly, McHugh J did not make any finding as to when at the earliest the club ought to have reasonably foreseen a real possibility that the plaintiff would suffer injury resulting from alcohol ingestion and/or as to the plaintiff’s state of sobriety/inebriation at that point in time. It was unnecessary for him to do so in the circumstances of Cole because (i) the club allowed the plaintiff to drink long after lunchtime or early afternoon, and her progressively rising intoxication thereafter increased her risk of suffering the kind of injury she eventually did, and (ii) the club did not take any preventive action until 3:00pm when the club refused to sell her further alcohol and/or until close to 5:30pm when the club manager told her to leave the premises (see paragraph 219 of the Decision).

65.  For (b) above, McHugh J explained the juridical rationale for establishing a duty of care as follows (which I have cited in full in paragraphs 217, 219 and 221 of the Decision save for paragraph 34 of his judgment referred to below):

“[31] The duty of an occupier …… extends to the protection of injury from all the activities on the premises. Hence, a licensed club’s duty to its members and customers …… extends to protecting them from injury from activities carried on at the club including the sale or supply of food and beverages. In principle, the duty to protect members and customers from injury as a result of consuming beverages must extend to protecting them from all injuries resulting from the ingestion of beverages. ……

……

[34] …… the Club ought to have foreseen that her consumption of alcohol had reached a point that further alcohol might expose her to an alcohol-induced risk of injury …… The Club owed her a personal duty not to expose her to the risk of injury, and by directly supplying her, or by permitting her companions to supply her, with further alcohol, the Club breached the personal duty of care that it owed to her. ……the duty owed by clubs to entrants extends to take affirmative action to prevent harm to those to whom the duty is owed. ……

[35] …… The need to monitor the conduct of others and to intervene by advice, warning or more drastic action are frequent characteristics of affirmative duties …… And where, as here, a club has a duty to protect an entrant from injury, it is beside the point that the discharge of its duty may require the club to monitor the conduct including the sobriety of persons on the premises. ……

[36] Nor is it the point that alcohol affects persons differently and that it is often very difficult to judge the extent to which a particular person is affected by liquor. Clubs …… are held to the standard of reasonableness, not mathematical precision …… It is a question of whether a reasonable licensee, having the opportunity to observe a customer, would think that further drinking by the customer might give rise to a real possibility that the customer would suffer harm.” (my emphasis)

From the above, the juridical rationale put forward by McHugh J for holding that alcohol serving outlets or commercial hosts do owe a duty of care to protect their patrons from the ills of alcohol ingestion rested on such outlets’ or hosts’ (i) obligation to observe/monitor their patrons’ sobriety to ascertain the point in time when it is reasonably foreseen that further drinking by their patrons may give rise to real possibility that alcohol-induced harm will befall their patrons, and (ii) need then to take affirmative action to protect their patrons from reasonably foreseeable risk of injury. Plainly, as Mr Leung SC acknowledged, the matters in (i)-(ii) above require deliberation “on the facts” particular to the circumstances each case, but I do not see McHugh J in setting out the juridical rationale for finding a “general duty of care” imposes an immutable prerequisite of “intoxication” for taking affirmative action in (ii) above (in contra-distinction to a finding of intoxication on the facts of Cole).

66.  Bearing in mind (i) the support Kirby J drew from Jordan House Limited v Menow[71]and Stewart for his conclusion that the club owed the plaintiff a duty of care of the kind described by him (see paragraph 93 at page 72 in Cole and paragraph 218 of the Decision), (ii) the resonance between the reasoning of McHugh and Kirby JJ in finding such duty of care and the reasoning of Major J in Stewart (see paragraphs 174 and 178 of the Decision) and McLachlin CJ in Childs in finding a “general duty of care” (see paragraph 185-186 and 225 of the Decision), and (iii) my understanding of the Canadian position as explained below (see paragraph 52 above and paragraphs 196-197 of the Decision), I cannot see how it could be said I have erred “in deriving an emerging “general duty” on the strength of the Canadian authorities” by taking Kirby J’s dissenting judgment in Cole out of context and/or by overlooking McHugh J’s “qualification” of such postulated duty by requiring that the “injury must be of a foreseeable kind”, especially in light of my following views in the Decision:

(a)	There can be an implied general duty of care on the part of alcohol serving outlets or commercial hosts to ensure the safety of their patrons and others arising out of the “special” invitor-invitee relationship because injury was usually reasonably foreseeable, and because alcohol providers derive economic benefit from selling/serving alcohol and are more likely to have the ability to monitor a patron’s alcohol consumption, to recognise signs of alcohol impairment, and to determine when he has drunk alcohol in excess (see paragraphs 178, 186 and 196 of the Decision).
(b)	Although the ultimate determinant of liability remains the foreseeability of harm to the patron or others (ie a matter of “relationship” underpinned by the legal/policy rationale explained above), the standard of care required will vary depending on “conduct” in the circumstances to be investigated and/or determined at trial, but the Canadian authorities suggest that alcohol serving outlets or commercial hosts are expected to go to quite considerable lengths to develop protocols to meet such duty of care (paragraphs 185 and 196 of the Decision).
(c)	Even though a duty of care owed by such outlets/hosts to their patrons and others remains a fact-sensitive determination with foreseeability (that serving alcohol will cause harm to the patrons or others) and proximity (by reference to common law, statute and licence control conditions) remaining at the core of the analysis, the case law suggests this aspect of Canadian tort law has evolved and developed to meet the varied circumstances in which such outlets/hosts serve their patrons, understand the extent of their inebriation and/or be subject to the particular factual proximity with third persons (paragraph 197 of the Decision).

67.  Further, Intended Grounds 3 and 5 alleged that I have erred in failing to recognise that the proposed Particular 6(17A) was a new cause of action that entailed argument of a “novel” duty based on the Licence Conditions despite P’s assertions that he was not seeking to advance a “free-standing civil cause of action”. It was suggested that in the absence of any express plea of the twin material facts of “intoxication” and “knowledge”, P was in fact advancing a civil claim for breach of “activity duty” by “over-serving of alcohol in the abstract (founded upon the Licence Conditions without more), which is unknown to the common law in any of the jurisdictions considered”.

68.  This is, again, a repetition of the arguments Mr Leung SC made at the Appeal which this court has dealt with in the Decision (see paragraph 195 of the Decision). Intended Grounds 3 and 5 were premised on the distinction between “occupancy duty” and “activity duty” and on pleas of “intoxication” and “knowledge” to raise “exceptional circumstances”. I have dealt with these arguments in my discussions in paragraph 195 of the Decision and in paragraphs 20-59 above and paragraphs 78-82 below, which I adopt but will not repeat here, and I have also found they do not preclude P’s contentions in support of the proposed Particular 6(17A) as being unarguable or “bound to fail”.

69.  I should also point out that Mr Wong SC made clear from the outset that “P was not relying on any freestanding civil cause of action for breach of statutory duty in relation to the DCO and/or the DCLR nor any independent cause of action for breach of the Licence Conditions” (see paragraphs 128 and 181 of the Decision). Mr Wong SC accepted that the averment of breach of statutory duty in paragraph 6 of the SoC in fact referred to breach of the common duty of care for occupiers’ liability under the OLO. What P sought to assert was that breach of the Licence Conditions would inform/reinforce the issue of existence/breach of D’s duty of care under common law negligence as follows (see paragraph 128 of the Decision):

“…… Rather, it was said the Licence Conditions would inform the issue of D’s duty/breach, and the specific prohibition in Condition 2 that “[no] person shall be allowed to become drunk on the [drinking] premises” would reinforce that D did owe a duty of care to the Deceased even before (and regardless of whether) he might have become intoxicated. Mr Wong SC contended the Licence Conditions showed D was under a positive duty to observe (and to acquaint itself with knowledge of) whether the Deceased was drunk or not, which lent weight to P’s contention that it was not necessary for P to plead/show the Deceased was in fact intoxicated or drunk.”

70.  I have referred to Clerk & Lindsell on Torts (see paragraphs 84 and 195 of the Decision), the concurring judgment of Martland, Spence and Laskin JJ in Jordan House Limited (see paragraph 154 of the Decision), and the observations by G E Taylor J in Hummel (see paragraph 195 of the Decision), all of which, in my view, lent viable support for P’s contention that “breach of statutory obligation (extended to breach of the Licence Conditions according to the principles discussed in paragraph 84 [of the Decision]) by reason its authoritative source could inform/reinforce an arguable duty of care owed to the Deceased by D on common law principles (see paragraph 128 [of the Decision]), and such breach was not, as D surmised, to raise a freestanding civil cause of action for breach of statutory duty or for breach of the Licence Conditions” (see paragraphs 155 and 195 of the Decision). In re-running his arguments in this respect that had already been made at the Appeal, Mr Leung SC had not addressed the above discussion/analysis by this court in the Decision. Bearing in mind the “not bound to fail” threshold for amending the SoC to introduce the proposed Particular 6(17A), I do not consider Intended Grounds 3 and 5 have reasonable prospects of success.

71.  For all of the above reasons, I am not persuaded that the Order and the reasons in the Decision were plainly or palpably wrong by reason of the 1^st Intended Basis, which, in my view, do not have reasonable prospects of success.

(b)  2^nd Intended Basis: erroneous identification or reliance on “emergent” legal principle (Intended Grounds 6-10)

72.  D’s stance Mr Leung SC submitted that the plea in Particular 6(17A) that D continued to serve alcohol knowing that the Deceased “might be intoxicated” (a mere possibility) was clearly insufficient and defective as there was no plea that (a) the Deceased was incapable of looking after himself (through intoxication) and (b) D knew (or ought to have known) about the Deceased’s condition so that D was particularly obliged to take precautionary measures to protect him, so no duty had arisen and in any event there was no actionable breach and causation. Mr Leung SC further complained that in discussing the Hong Kong, Canadian, Australian and English authorities, and concluding in paragraph 287 of the Decision that “the local courts will have to find its own way and set its own incremental pace for the development of tort law in this area”, this court had not identified (nor had P pleaded) the material facts of “intoxication” and “knowledge” to raise “exceptional circumstances” capable of giving rise to a lis between the parties that would engage “emergent” legal principles (if any). In this respect, Mr Leung SC cited my judgment in Civic Ltd v 余綺妙 & ors[72] to remind that under Order 18 rule 11 of the RHC a party may raise a point of law in a pleading as it may define or isolate an issue or question arising from the facts as pleaded, and indeed it may be essential if the case is to be advanced properly, but only by pleading “all the material facts”.

73.  Mr Leung SC submitted that in all the Canadian authorities examined by this court in the Decision, there was undisputed intoxication (to the extent that the relevant person presented a real and imminent danger to himself or others) coupled with the fact that the defendants had (or ought to have) knowledge thereof. For example, the judgment of Haines J in Menow v Honsberger et al [73] (the first instance judgment in respect of the decision of the Supreme Court of Canada in Jordan House Limited) noted that “[the] plaintiff admits that at the material time he was intoxicated” (see also paragraph 153 of the Decision), and the judgment of Wilson J in Schmidt v Sharpe[74] also noted the plaintiff was already intoxicated when he entered the hotel.

74.  Mr Leung SC further argued that for the reasons set out below, this court had erred in rejecting D’s contentions that an express plea of “exceptional circumstances” specifying the twin requirements of “intoxication” and “knowledge” was necessary to raise a viable cause of action (see paragraph 189 of the Decision):

(a)	In McLaughlin v Cerda,[75] Kirchner J summarily dismissed the third party claim against the commercial host observing as follows: “[49] In both these cases [Jordan House Limited and Stewart], the critical factor giving rise to potential liability on the part of the commercial host is that the patron was intoxicated when they left the host’s establishment. …… [54] However, the Respondents suggest this case may give rise to a novel point of law that would impose liability on S&L Langley for failing to warn S&L Abbotsford of the Langley staff members’ plans for the evening, regardless of Ms Cerda’s statement of sobriety. Yet the Respondents have pleaded neither this novel point of law nor the facts required to support it. Their third party notice is framed entirely around Ms Cerda’s state of intoxication as a patron when she left S&L Langley. Nor have the Respondents made substantial arguments that would support the novel point of law. As discussed below, they rely heavily on a single case which, in my view, does not assist their position. If the Respondents truly seek to establish a new duty of care or to expand the standard of care for an existing duty, this should be pleaded and fully argued. …… [59] The Respondents further say that the standard of care may be different here because S&L Langley and S&L Abbotsford are related companies, held by a single ownership group. They argue there was a special duty on the part of one of them (Langley) to warn the other (Abbotsford) of the Langley employees’ plans to spend an evening dining and drinking in the Abbotsford premises. Again, no authority is cited for this proposition and it does not arise on the third party notice. In all the cases cited to me, intoxication at the place of employment or at the establishment of the commercial host is a necessary element of the duty of care. The fact is S&L Langley and S&L Abbotsford are separate corporate entities and it is clear that Ms Cerda did not become intoxicated at S&L Langley.” (my emphasis)
(b)	Since it is only when a case is properly pleaded that it can be effectively adjudicated upon,[76] so even assuming that an emergent “general duty” could be derived from the regulatory regimes under Canadian law, a valid cause of action could only be established where the 2 essential elements of “intoxication” and “knowledge” were pleaded and proved. In the absence of such “mandatory requirements”, the proposed Particular 6(17A) was insufficient to raise a proper issue for trial.
(c)	Against such background, Mr Leung SC submitted that this court failed to give sufficient weight and effect to the highly persuasive and compelling Australian and English[77] jurisprudence (see paragraph 227 of the Decision) which distinguished or rejected the Canadian position as to the existence of the “general duty of care” unless in “extreme cases” or with “exceptional circumstances”, including the views of Gleeson CJ in Cole (see paragraphs 207-208 of the Decision) and Gummow J in CAL No 14 Pty Ltd (see paragraphs 236-237 and 241 of the Decision, which views were in consonance with Lai Pui Ling suing by her brother and next friend Lai Hin Ho v Ho Chi Keung & anor[78] wherein the Court of Appeal held that a coxswain had no “duty to ensure all participants in wakeboarding were sober …… save in extreme circumstances”. Thus, it was said that this court ought to have found that no “emergent” legal principle was engaged by the proposed Particular 6(17A) which was, at best, half-pleaded and clearly defective.

75.  P’s stance Mr Wong SC submitted that P’s arguments for the 2^nd Intended Basis had been rejected by this court in the Decision. He argued that (a) it was difficult to see how this court’s identification of an “emergent” legal principle, which should require full argument in light of the facts and evidence at trial, could possibly be regarded as a “palpable error”, and (b) this court must be right to observe that “the local courts will have to find its own way and set its own incremental pace for the development of tort law in this area (see paragraph 287 of the Decision), so the 2^nd Intended Basis had no reasonable prospects of success.

76.  Discussion As pointed out in paragraph 109 of the Decision, Mr Leung SC accepted the court should not strike out existing pleadings and/or the court should allow pleadings to be amended if difficult or emergent legal principles are at stake such that further development and/or argument in proper factual context at trial is justified. This agreed proposition was borne out by the observations of the Court of Appeal in Tadjudin v Bank of America National Association[79] also set out in paragraph 109 of the Decision.

77.  As regards Mr Leung SC’s submissions that this court in concluding, after examining local and overseas jurisprudence, that “the local courts will have find its own way and set its own incremental pace for the development of tort law in this area” of alcohol liability (see paragraph 287 of the Decision) failed to identify the material facts that would give rise to a lis between the parties to engage the emergent legal principles (if any), this is in fact a roundabout way of complaining that P failed to plead “intoxication” and “knowledge” to raise exceptional circumstances in the proposed Particular 6(17A). But such submission failed to recognise that under the umbrella of emergent legal principles identified by this court, there was an arguable contention that might eventually carry the day or at least not “bound to fail” that “D owed a general duty of care to the Deceased by reason of their special invitor-invitee relationship, which duty might have come into existence before any “intoxication” or “drunkenness”, such that there was no need to specifically plead “intoxication” and/or “knowledge” to raise “exceptional circumstances” (which contention was premised on the absence of any such general duty)” (see paragraph 169 of the Decision).

78.  The Canadian case law gives healthy support for such proposition, which is consistent with the proposed Particular 6(17A) and the further particulars of the proposed Particular 6(17A) given in the 21/7/20 Letter (see paragraphs 33 and 190 of the Decision). This was borne out by:

(a)	the concurring judgment of Ritchie and Judson JJ in Jordan House Limited that considered a duty of care would arise at an earlier point in time (i) to prevent intoxication of a patron in the first place and (ii) to take reasonable precautions when he became intoxicated such that breach of the duty in (i) above could not be salvaged by subsequent acts to help the patron should an accident later befalls the patron (see paragraph 160 of the Decision);
(b)	the judgment in Canada Trust Co v Porter[80] which found the hotel owner was in breach of duty to third persons affected by the conduct of its patron by serving alcohol to its patron past the point of intoxication “in circumstances when it had no past dealings with the patron, had no special knowledge of his susceptibility to alcohol and/or was not able to determine his state of sobriety/intoxication” (ie the claimant could not have pleaded “knowledge”) (see paragraph 161 of the Decision);
(c)	the judgment in Schmidt which held the hotel owner was partly liable for breach of duty when “(a) the patron did not know the bar staff, (b) there was no evidence the patron exhibited visible signs of intoxication when he arrived at the hotel, and (c) he consumed only a small proportion of his alcohol intake of the evening at the hotel” (ie the claimant could not have pleaded “knowledge”) (see paragraph 163 of the Decision).

All of the above cases have made inroads against a restrictive approach of imposing duty of care only in “exceptional circumstances” or only where the alcohol serving outlet or commercial host has knowledge of alcohol impairment, and “suggests that the special invitor-invitee relationship between the patron and such outlet/host brings with it a monitoring duty to avoid over-serving to prevent intoxication in the first place (which duty comes into play before the point of intoxication)”, and “which goes a long way to support the arguability of P’s stance that D owed P a general duty of care to the Deceased by reason of their special invitor-invitee relationship, which duty might have come into existence before any “intoxication” or “drunkenness”, such that there was no need to specifically plead “intoxication” or “knowledge” to raise exceptional circumstances” (which contention was premised on the absence of any such general duty)” (see paragraph 169 of the Decision).

79.  Then, the 2 landmark Canadian cases of Stewart and Childs took the matter further. In Stewart, the patron had no visible signs of intoxication and the trial judge found the dinner theatre could not have been aware of the patron’s degree of intoxication (see paragraph 171 of the Decision). Stewart accepts that alcohol serving outlets or commercial hosts owe a general duty of care to its patrons and third persons who may be affected by the conduct of such patrons to take positive steps to protect them from the dangers of intoxication (and this was re-affirmed in Childs) (see paragraph 173 of the Decision). Major J made clear that “intoxication” and “knowledge” did not set the parameters of liability in negligence, and an alcohol serving outlet or commercial host cannot escape liability merely because a patron does not show visible signs of impairment, and if it was foreseeable that he, say, will drive after leaving the drinking premises, such outlet/host has a positive obligation to monitor the patron’s alcohol consumption based on the amount served and to make reasonable assumption from the amount consumed that the patron is likely to be impaired, and to determine whether any intervention is necessary to prevent the patron from doing any act/activity that is likely to cause harm. Likewise, such outlet/host cannot escape liability where it “intentionally structured the environment in such a way to make it impossible to know whether intervention is necessary” (see paragraphs 174-175 of the Decision).

80.  In Childs, McLachlin CJ noted Stewart affirmed that a special relationship existed between taverns and affected third parties that can require the former to take positive action to protect the latter, and the Chief Justice highlighted 3 matters that underlied a general duty of care on alcohol serving outlets or commercial hosts by reason of their special invitor-invitee relationship with their patrons, ie the expectation/ease of monitoring alcohol consumption by the tavern, the regulation of sale/consumption of alcohol, and the profit-making contractual nature of the relationship between a tavern keeper and its patron (see paragraph 186 of the Decision).

81.  Upon analysis of such Canadian jurisprudence (irrespective of the Australian and/or English positions), I considered the expansive Canadian approach which unquestionably accepts the “special” invitor- invitee relationship that imposes public host duty of care cannot be said to be wholly unarguable in this jurisdiction, and/or the contention that establishing occupier/provider negligence does not necessarily require “intoxication” and “knowledge” cannot be said to be “bound to fail” when one refers to the Canadian position, and “on such basis I am not persuaded there must necessarily be “concomitant allegations” or express pleas that the Deceased was intoxicated to the extent of being unable to look after himself and that D knew the Deceased was exposed to risk of injury to himself by reason of such intoxication or drunkenness to raise a viable plea” (see paragraphs 180, 188-189 and 195 of the Decision). I then further summarised the Canadian position in paragraphs 196-197 of the Decision as set out in paragraph 52 above.

82.  Mr Leung SC in his written submissions did not seek to deal with the reasoning in the Canadian cases, and did not explain how this court fell into error in so reading such Canadian cases. In light of the aforesaid analysis of the Canadian jurisprudence in paragraphs 48-52 and 78-81 above that turned on a “special” invitor-invitee relationship and the 3 factors highlighted in McLachlin CJ’s discussion of the juridical rationale for such general duty of care in Childs (see paragraph 80 above), it is not quite correct for Mr Leung SC to say that such general duty of care was merely derived from the regulatory regime under Canadian law (see paragraph 74(b) above). Rather, the effect of the legislative framework was to inform/reinforce the existence and breach of such duty of care (see paragraphs 67-70 above). I do not find merit in D’s contention in paragraphs 72 and 74(b) above.

83.  Then turning to Mr Leung SC’s arguments that in all Canadian authorities examined by this court, there was undisputed “intoxication” or “knowledge” (see paragraph 73 above), it is important to distinguish the particular factual matrix of each case (eg this court has in paragraphs 153, 158-159 and 167-168 of the Decision noted that the plaintiffs in Jordan House Limited and Hague were drunk) from the juridical rationale for the existence and scope/extent of the general duty of care owed by the alcohol serving outlet or commercial host to its patron by reason of their special invitor-invitee relationship (see paragraph 63 above and paragraph 169 of the Decision). Given such “special” invitor-invitee relationship that raises a duty on the part of the alcohol serving outlet or commercial host to monitor a patron’s alcohol consumption, to recognise signs of alcohol impairment, and to determine whether the patron has drunk alcohol in excess, such duty and breach thereof may have come into existence before any “intoxication” or “drunkenness”, and a breach of the monitoring duty may also mean there is no “knowledge” (see paragraphs 78-79 above). Thus, I am unable to see how the concomitant allegations of “intoxication” and “knowledge” premised on the absence of any general duty of care are essential pleas under the Canadian approach that is premised on the very existence of such general duty of care (see paragraph 169 of the Decision).

84.  Mr Leung SC submitted this court’s reliance of the Canadian cases was fallacious as this court failed to give sufficient effect to the contrary Australian/English jurisprudence that rejected the existence of any general duty of care unless there are “intoxication” and “knowledge” to raise “exceptional circumstances”. In fact, this court has canvassed the Australian and English jurisprudence in detail in paragraphs 199-287 (over 56 pages) in the Decision. It cannot be said that this court has not given careful consideration to the Australian and English positions. But more importantly, Mr Leung SC’s argument failed to recognise that in dealing with an application for amendment of pleadings, the relevant threshold is whether the proposed amendment is “bound to fail”. Mr Leung SC did not explain why on the basis of such threshold this court cannot take into account the Canadian approach (bolstered by the minority views in Cole) as a viable strand of the emergent legal principles (especially when there is no local jurisprudence directly on the subject and when overseas jurisprudence may still refine the existence, scope and extent of any relevant duty of care) that may support the legal arguability of the proposed Particular 6(17A), especially when one looks at the “higher abstraction of the legal/policy rationales that underlie international common law jurisprudence in this area (which cannot be brushed aside merely by concentrating on the facts of different case authorities …… or by reference to the stare decisis of national court decisions in other jurisdictions) ……” (see paragraphs 142-143 and 287 of the Decision). In my view, notwithstanding Australian/English jurisprudence, including the views of Gleeson CJ in Cole and those of Gummow J in CAL No 14 Pty Ltd that disagreed with the Canadian position, there is still ample basis for the view that “the proposed Particular 6(17A) should not be stifled at this stage so that emergent principles can develop in proper factual context in light of divergent international views” (see paragraph 287 of the Decision).

85.  As regards the suggestion that there is no emergent legal principle given the Court of Appeal’s decision in Lai Pui Ling suing by her brother and next friend Lai Hin Ho, I am unable to see how such authority is determinative of the law on alcohol liability in Hong Kong when it has not carried out any holistic fact-sensitive analysis of the “relationship between a drinking patron and an alcohol serving outlet or commercial host whose business is to sell/serve alcohol to be consumed on its drinking premises for profit”, which scenario is far different from “[the] relationship between a wakeboarder and the coxswain” (see paragraph 150 of the Decision). Mr Leung SC had no answer save to say that in the context of the relationship between a wakeboarder and the coxswain the latter had no duty to ensure all participants in wakeboarding were sober save in “extreme circumstances”. That being the case, I cannot see how I have erred in coming to the view that the Hong Kong jurisdiction is still virgin territory as to alcohol liability (if any) owed by alcohol serving outlets or commercial hosts to patrons and others, and it is persuasive to draw on the experience of overseas common law jurisprudence (including the Canadian position and the dissenting views in Australia) based on their juridical rationales rather than particular facts in each case in order to consider whether the proposed Particular 6(17A) is or is not “bound to fail” for the purpose of amendment of pleadings (see paragraphs 151-152 of the Decision). As Mr Wong SC pointed out, in Lee See Woo v Chu Hong Pong,[81] DHCJ Jin Pao SC, in making obiter observations in relation to an application under Order 14A of the RHC, noted the caution by the Court of Appeal in Tadjudin against summary determination of emergent legal principles in the context of interlocutory applications, and went on to indicate that for emergent legal principles arising from case law both majority and dissenting judgments can be considered:

“57. In my view, the issue of whether the tort of malicious prosecution should be extended to cover civil proceedings generally is precisely the type of “emergent legal principle” which should not be summarily determined on a strike out or O.14A application. Although there was legal argument presented on the issue, it mostly consisted of assertions that either the majority or minority judgments in Willers and Crawford were correct. This is perhaps understandable since the matter was argued at an interlocutory hearing fixed together with a strike out application. But this would have been the first occasion on which a Hong Kong court has been called upon to squarely determine this issue. There are important implications for Hong Kong law if the tort were to be extended. I take the view that in-depth analysis of other overseas jurisprudence would have been of assistance, together with a detailed analysis of how the tort of malicious prosecution should be developed, if at all, in the local context. In the absence of full argument on these matters, and bearing in mind that I do not have the benefit of a full set of facts at trial, I am not satisfied that it would have been appropriate to make the O.14A determination.” (my emphasis)

86.  Mr Leung SC next referred to McLaughlin. In that case, Ms C, after finishing her serving shift at the 1^st restaurant (“S&L Langley”), remained there to have a post-shift drink with several colleagues. They planned to travel to a related but legally separate 2^nd restaurant (“S&L Abbotsford”) that was newly-opened for dinner after they finished their drinks. They had helped train the new staff of S&L Abbotsford. Ms C had not been drinking during her shift, and only had 1 post-shift drink and might not even have finished it, so she was not intoxicated when she left S&L Langley where she worked. Ms C then drove to the plaintiff’s home to pick up the plaintiff who also worked at S&L Langley. They then drove to S&L Abbotsford where they met other colleagues from S&L Langley for the planned dinner (not party) and drinks. At S&L Abbotsford, Ms C and her colleagues consumed various amounts of alcohol, including 2 bottles of complimentary wine. Later, Ms C drove herself and the plaintiff to another inn where they continued to drink. There was no evidence as to exactly how much alcohol the plaintiff and Ms C consumed at S&L Langley or later at the inn. Then in the early hours of the following day, Ms C attempted to drive the plaintiff home from the inn. Ms C lost control of her car on the highway causing her car to leave the road and roll over several times.

87.  The plaintiff sued Ms C and the owners of the car driven by her (collectively, “Respondents”) and the 3 licensed establishments (ie S&L Langley, S&L Abbotsford and the inn), and alleged Ms C was intoxicated at the time of the accident. The plaintiff claimed Ms C was over-served alcohol by 1 or more of the 3 licensed establishments, thus rendering them negligent, and therefore liable for her injuries. S&L Langley applied for summary trial determination of its liability, arguing that Ms C had only 1 drink at its establishment and was not intoxicated when she left its premises, so there was no conduct to show it failed to meet the standard of care required of a commercial host serving alcohol to patrons. The plaintiff and S&L Abbotsford consented to such application, the operator of the inn did not file any response, but the Respondents opposed the application.

88.  Ms C argued unsuccessfully that the management at S&L Langley knew that its staff, after drinking at S&L Langley, planned to have a “girl’s night out” at S&L Abbotsford, and on such basis it was impressed with a duty to warn management at S&L Abbotsford about this possibility. Kirchner J found there was no admissible evidence as to what the management of S&L Langley knew at the material time about the post-shift plans of Ms C and other staff, and there was scant evidence of formal sanction/sponsorship of the night out by S&L Langley and/or S&L Abbotsford. Citing Jordan House Limited and Stewart, Kirchner J found that S&L Langley’s standard of care was met by ensuring Ms C did not drive away from its premises while she was intoxicated, but as she was not intoxicated when she left S&L Langley, it could not be said that S&L Langley failed to meet the required standard.

89.  If it were suggested, as Mr Leung SC attempted to do, that McLaughlin stood for the proposition that the crucial factor for potential liability on the part of the commercial host was the patron’s intoxication upon departure from the premises, then I am not persuaded that the facts/ decision in McLaughlin lent themselves to such broad proposition:

(a)	As Kirchner J said, it is important to note the pleaded basis in the third party notice for imposing liability on S&L Langley, S&L Abbotsford and the inn focused on the state of intoxication of Ms C as a guest/patron on leaving the premises of each host (paragraph 19), ie the Respondents alleged that (i) Ms C as guest/patron left the premises of each host “in an intoxicated state” and gave particulars accordingly, and (ii) such hosts failed to prevent her from driving a vehicle from each host’s premises “while she was intoxicated” (paragraphs 20-22). “In short, [Ms C’s] state of intoxication is an essential component of the Respondents’ third party claim against S&L Langley” (paragraph 23). Indeed, the third party claim against S&L Langley was “fully grounded in the allegation that [Ms C] was intoxicated when she left S&L Langley …… [and] it has been proven she was not intoxicated at the time, so there was no basis to find S&L Langley failed to meet its standard of care either as a commercial host or as an employer” (paragraph 61), and it was on such basis that Kirchner J granted judgment in the summary trial application and dismissed the Respondents’ claims “against S&L Langley as set out in the Respondents’ third party notice” (paragraph 62). Clearly, this is quite different pleading from the proposed Particular 6(17A).
(b)	The Respondents advanced a “novel legal argument” for the summary trial application, ie that S&L Langley might have failed to meet the standard of care even though Ms C was not intoxicated when she left its premises by “failing to warn S&L Abbotsford [being another commercial host] of the Langley staff members’ plans for the evening, regardless of [Ms C’s] state of sobriety”, but such contention did not arise on the Respondents’ pleadings as “[their] third party notice is framed entirely around [Ms C’s] state of intoxication as a patron when she left S&L Langley” (paragraphs 23 and 54). Whilst it might be suggested that a novel duty on the part of one restaurant to warn another restaurant of a patron’s further plans for the evening should sound in the patron’s intoxication, such “novel legal argument” did not arise on the existing Particulars and proposed Particular 6(17A).
(c)	As pointed out by Mr Wong SC, Kirchner J did not receive full argument on the “novel legal argument” as the Respondents “have pleaded neither this novel point of law nor the facts required to support it”, “[nor] have [they] made substantial arguments that would support the novel point of law” (paragraph 54). The Respondents relied heavily on a single case that did not really assist their position, but the novel legal point was not “pleaded and full argued”, eg on how the test for establishing a novel duty of care was met (paragraphs 54-57).
(d)	As further pointed out by Mr Wong SC, the third party notice in McLaughlin did not require holistic consideration of S&L Langley’s state of the premises, but here both the state of the Stairway as well as alcohol-serving at the Restaurant need to be considered as a whole.

For all the above reasons, I am not persuaded Kirchner J’s decision in McLaughlin not to entertain, on the unsatisfactory evidence before him, the prospect of finding a new duty of care whereby one commercial host has to warn another commercial host that a sober patron heading their way may later become intoxicated (which duty/facts were a far cry from the scenario in the present case and the proposed Particular 6(17A)) would advance the matter any further for D.

90.  I am also not persuaded that the case of Lance v Redmond[82] that Mr Leung SC cited will take the matter any further. Mr Leung SC cited it for the general proposition that “only when a case is properly pleaded can it be effectively adjudged upon”. But such general proposition begged the question as to what amounts to a properly pleaded case. This came around back to Mr Leung SC’s contention that both “intoxication” and “knowledge” must be pleaded and proved in order to raise “exceptional circumstances” to ground duty of care. In the above discussions and in the analysis set out in the Decision, I have explained why it is arguable (or at least not “bound to fail”) that there is no bright line “mandatory requirement” that P must plead “exceptional circumstances” based on such “concomitant allegations” for the purpose of his negligence claim. Indeed, it was the very existence of different overseas judicial attitudes (including the Canadian position and the Australian dissenting views) that showed the proposed Particular 6(17A) is not “bound to fail”.

91.  In any event, Lance is not a case on alcohol liability at all even though there was strong evidence that the plaintiff (despite her denial) was intoxicated (paragraphs 18-19). The plaintiff claimed she tried to get her cigarettes which she believed were in a van, but she did not know who was in the van, so when the van started up, she banged on it to get the attention of the driver, but her hand was caught in the door handle, so she was pulled along, knocked over and was injured (paragraph 7). The plaintiff was disbelieved, and she failed to prove her case and/or to show the defendant driver was negligent (paragraph 9). The evidence showed what probably happened was that the plaintiff was upset, knew who was in the van, knew her boyfriend was leaving with some possessions from their residence and ran out incautiously in an effort to stop him (paragraph 8), but the court would not make her case for her when she “chose a shoal ridden course and foundered” (paragraph 10).

92.  H D Boyle J said “[what] probably happened raises issues of duty and foreseeability specific to this action. What the Plaintiff says happened does not. The generality of the pleadings does not assist the Plaintiff” (paragraph 6). Since the plaintiff’s case was dismissed on rejection of her case on her pleadings, evidence or argument (paragraph 67), what the learned judge said about the issues of duty and foreseeability based on “what probably happened” (ie evidence that the plaintiff rejected) were plainly obiter. On the evidence that the plaintiff rejected, she was intoxicated, and the defendant driver “was aware that he and [the plaintiff’s boyfriend] should be on their way to avoid what he described as a positive “escalation of the situation” and he knew the Plaintiff had been drinking” (paragraph 66). Given the ready availability of evidence as to “intoxication” and “knowledge” on “what probably happened” (which was not the plaintiff’s case “on her pleadings, evidence at trial or in argument” – paragraph 67), it was not surprising that the learned judge stated “[it] is a duty owed to someone known to be intoxicated and known to exhibit unusual behavior in a highly volatile relationship, [Jordan House Limited] ……; Howe v Megara, St Catherine’s & Toronto Railway (1925) 2 DLR 115” (paragraph 65). Quite plainly, such observation that pertained to the particular factual scenario as to “what probably happened” in that case plainly did not set out any analysis as to the existence and parameters of the general duty of care with respect to alcohol liability in Canada that benefited from more mature subsequent development of the juridical basis of alcohol liability discussed in Stewart and Childs. In short, I agree with Mr Wong SC that Lance is merely a case in which the plaintiff had failed to properly plead and prove her case.

93.  For all of the above reasons, I am not persuaded the 2^nd Intended Basis had any reasonable prospects of success.

(c)  3^rd Intended Basis: erroneous exercise of discretion (Intended Grounds 11-16)

94.  D’s stance Mr Leung SC submitted that on the foregoing submissions in Part III(a)-(b) above, this court erred in exercising its discretion to allow the SoC to be amended to add Particular 6(17A) on the basis that it arose out of “the same set of facts” pursuant to Order 20 rule 5(5) of the RHC. It was said that on proper analysis, Particular 6(17A) was a “new cause of action” and time-barred. Mr Leung SC argued that the proposed amendment required full explanation from P and considerations under section 30 of the LO, but none was forthcoming from P.

95.  It was also said that the proposed Particular 6(17A) purported to raise a novel “cause of action” turning on the Deceased’s idiosyncratic reaction to alcohol. Given P’s stance that the Deceased was “not drunk”, no duty of care could have arisen. Mr Leung SC submitted that, to put it bluntly, where the Deceased was “not drunk” to the extent that he was incapable of looking after himself (in contra-distinction to a finding of contributory negligence which would not depend on a degree of intoxication to the extent that the injured person was incapable of looking after himself), there could be no duty and no actionable breach or causation, so the proposed Particular 6(17A) was bound to fail. Mr Leung SC submitted that the court should not to be asked to decide a question of law in the abstract, and D should not be required to meet a case under hypothetical and unclear state of facts. Consequently, Mr Leung SC argued that the proposed appeal to the Court of Appeal was eminently arguable, and this court should grant leave for such appeal.

96.  Discussion Since Mr Leung SC’s arguments on the exercise of discretion were dependent on his contentions for the 1^st and 2^nd Intended Bases, the 3^rd Intended Basis necessarily falls away upon my rejection of the 1^st and 2^nd Intended Bases. Mr Leung SC’s submissions in the above paragraph were nothing more than a repetition of D’s insistence on the “concomitant allegations” of “intoxication” and “knowledge” to give rise to “exceptional circumstances”, omission of which would render the proposed Particular 6(17A) devoid of the necessary factual context, and therefore it was “bound to fail”. In the discussions above and in the Decision, I have explained why, on the basis of overseas judicial attitudes, it is not unarguable (or at least not “bound to fail”) that “exceptional circumstances” are not absolutely required to ground alcohol liability, and I do not agree D’s contrary arguments have reasonable prospects of success.

97.  As for the complaint that the court should not be asked to decide a question of law in the abstract, and D should not be asked to meet a case under hypothetical and unclear state of the facts, such complaint was again premised on D’s insistence on the necessity to raise the “exceptional circumstances” of “intoxication” and “knowledge”, and I repeat my views above. In my view, P’s contention that the alcohol serving outlet or commercial host owes a general duty of care that arises even before the patron’s intoxication to take positive steps to protect the patron from foreseeable injury as a result of the notorious consequences of alcohol ingestion cannot be said to be “bound to fail”, and D failed to show reasonable prospects of contending otherwise. In the SoC, P had pleaded the restaurant-patron relationship (see paragraph 2 of the Decision), the condition of the Restaurant (see paragraphs 2-3 and 6 of the Decision), the circumstances of the Accident (see paragraph 4 of the Decision), and the Particulars that elaborated on the Deceased being reasonably expected to have consumed alcohol at the Restaurant (see paragraph 6 of the Decision). P also gave voluntary particulars of Particular 6(17A) by the 21/7/20 Letter (see paragraph 33 of the Decision). Then, matters as to the scope/breach of the duty and as to causation will turn on the evidential factual “mix” at trial that would include matters set out in paragraph 121(a)-(d) of the Decision. There would be little if any concern that the proposed Particular 6(17A) (which was intended to be only a facet of the overall holistic deliberation of the claim in negligence), if allowed, would be considered in the abstract, and it would not prevent D from contending by way of way of defence (if D so wished) that such plea was fallacious in the absence of “exceptional circumstances” of “intoxication” and “knowledge” to enable proper debate of the differing strands of emergent legal principles on alcohol liability at trial.

98.  As regards Mr Leung SC’s arguments in paragraph 95 above, D raised argument premised on the allegation that the proposed Particular 6(17A) was a “new cause of action”, which contention had been canvassed under the 1^st Intended Basis and which I have found to have no reasonable prospects of success, so the “time bar” contentions also fell away. Moreover, Mr Leung SC did not develop the “time bar” contention in his submissions at the Appeal apart from asserting that the proposed Particular 6(17A) “is prima facie time-barred” or is “now time-barred” (see paragraph 289 of the Decision), and there was no suggestion from D that the proposed Particular 6(17A) (even if it were a “new cause of action” but I disagree) did not arise from the same or substantially the same set of facts under the existing cause of action in respect of which relief had already been claimed in the SoC under Order 20 rule 5(5) of the RHC (see paragraph 307 of the Decision). Mr Leung SC’s submissions in paragraph 95 above focused on the limb of “the same facts” under Order 20 rule 5(5) of the RHC, but strangely overlooked the other limb of “substantially the same facts”. Given that the latter was the basis on which I concluded that the proposed Particular 6(17A) (even if it were a “new cause of action” but I disagree) was not time-barred (see paragraph 307 of the Decision), there was paucity in Mr Leung SC’s written submissions (save for the 1^st and 2^nd Intended Bases which I do not find persuasive) as to why the new plea and the existing cause of action in negligence bolstered by the Particulars (including Particular 6(17)) would not arise out of substantially the same facts.

99.  For all of the above reasons, the 3^rd Intended Basis had no reasonable prospects of success, and I am not persuaded the exercise of discretion was “plainly wrong”.

IV.  CONCLUSION

100.  In the circumstances, I dismiss the Leave Summons. There is no reason why costs should not follow event, I therefore grant a cost order nisi that D shall pay P costs of and occasioned by the Leave Summons (including all costs reserved, if any) to be taxed if not agreed with certificate for two counsel.