HO WING HUNG v. MAEDA CORPORATION

1993, No.A4941

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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R U L I N G

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1. The issue I have to decide today is not whether Regulation 39 or Regulation 49 applies to the facts of the case. The question I have to decide today is the relationship between the two regulations as a matter of law, and that is the limited extent of my determination today.

2. In my view, Mr Sarony has very fairly conceded, and I accept this to be a correct statement of law, that if both Regulation 49(1) and Regulation 39(1) apply to a factual situation, that is when both regulations are applicable, then the fact of the applicability of Regulation 39(1) would, as a matter of law, oust the applicability of Regulation 49(1). And, to that extent, that will exclude the operation of Regulation 49(1) to the factual situation. For that reason, there is no question of parallel application of both regulations at the same time.

3. Having resolved that preliminary issue in the manner I did, I do not think it is possible for me to render any further assistance to the parties at this stage with the limited brief I have. It is not a matter for me to advise the parties as to how they should amend their pleadings in view of the ruling today; but I would have though that, probably, the simplest thing to do is for the Plaintiff, if he so wishes, simply to plead that Regulation 49(1) applies only. And then it is for the Defendant to raise as a defence that Regulation 39(1) applies, therefore, Regulation 49(1) will not apply. It would then be up to the Plaintiff to come back to say why he believes Regulation 49(1) instead of Regulation 39(1) should apply; or, whether he accepts Regulation 39(1) applies and proceed on that basis to say why Regulation 39(4) would not exclude liability. He may leave it in as an alternative plea nevertheless, but that would, of course, give rise to the undesirable situation which Mr Mills-Owens envisaged : that effectively, today's ruling really has solved little for the parties. It is of course, desirable for the Plaintiff to decide whether Regulation 49 or Regulation 39 would be the proper provision he relies on, instead of leaving it in the alternative; though I accept that probably, one would wish to have the best of both worlds and leave every option open.

4. However, I think, unless of course one is seriously pursuing the argument that the Defendant had run before the Magistrate in respect of Regulation 39 (that is, that it only applies to an open excavation instead of a horizontal excavation in the form of a tunnel, that the words "adjacent" or "from" should be read conjunctively rather than disjunctively). I do not really think offhand that Regulation 39 can really be restricted to a case of open excavation as such. But of course, this is my personal view on the matter, and I have not heard argument on it and I will be very slow to comment any further on that.