CHAN CHIU TUNG v. CHENG KA FAI PHILIP

CACV 528/2021, [2023] HKCA 1277

On appeal from [2021] HKDC 994

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 528 OF 2021

(ON APPEAL FROM DCPI NO. 3309 OF 2020)

___________________

___________________

_________________

JUDGMENT

_________________

Hon Chu VP (giving the Judgment of the Court):

A. Introduction

1.  This is the plaintiff’s appeal against the judgment of His Honour Judge Andrew Li (“the Judge”) made on 13 August 2021 (“the Judgment”)[1], which struck out the plaintiff’s claim against the 1^st defendant for damage to his motorcycle arising out of a collision caused by the 1^st defendant’s negligence and ordered the plaintiff to pay the 1^st defendant’s costs of the entire action. 

2.  The plaintiff initially claimed against the defendants for damages for personal injuries and property damage.  He subsequently discontinued his claim against the 2^nd defendant.  He also reached a settlement with the 3^rd defendant for the personal injuries claim in the sum of HK$1,900,000, which was inclusive of interest and costs.  He pursued his claim against the 1^st defendant for damage to his motorcycle in the sum of HK$11,421.  The Judge struck it out on the basis that the claim fell within the exclusive jurisdiction of the Small Claims Tribunal.     

3.  The plaintiff sought leave from the Judge to appeal against the judgment.  By his decision given on 19 November 2021[2], the Judge granted leave to appeal on two of the six grounds in the draft notice of appeal (grounds 4 and 5) and ordered a stay of execution of the judgment pending the determination of the appeal.  On 23 May 2022, upon the plaintiff’s renewed application to this Court for leave to appeal on the other grounds[3], G Lam JA granted leave to appeal on the remaining four grounds in the draft notice of appeal. 

4.  The primary issue in this appeal is whether, in an action for damages for negligence, one tortious occurrence resulting in two types of damage gives rise to one single cause of action or two separate distinct causes of action.   

B.  Background

5.  On 30 June 2014, the plaintiff and the 1^st defendant were involved in a road traffic accident in which the private vehicle driven by the 1^st defendant collided with the motorcycle driven by the plaintiff.  

6.  In connection with the accident, the 1^st defendant was convicted on 2 January 2015 of the offence of careless driving upon his own plea of guilty.  

7.  The 2^nd defendant is the registered owner of the private vehicle driven by the 1^st defendant.  The 3^rd defendant is the insurer of the vehicle. 

8.  On 2 June 2017, the plaintiff commenced proceedings in the High Court against the 1^st and 2^nd defendants to claim damages for his injuries and the damage to his motorcycle occasioned by the negligent driving of the 1^st defendant. 

9.  On 24 May 2019, upon its application, the 3^rd defendant was joined as a defendant to the proceedings.  The plaintiff later discontinued the claim against the 2^nd defendant.   

10.  Following the increase in the civil jurisdiction of the District Court, the case was transferred to the District Court by the order of Marlene Ng J dated 17 September 2020. 

11.  By a consent order dated 4 June 2021, the 3^rd defendant was ordered to pay the plaintiff the sum of HK$1,900,000, which was inclusive of interest and costs in full and final settlement of his claim for personal injuries (“Personal Injuries Claim”) only.  

12.  On the same day, the plaintiff’s solicitors made an open offer to the 1^st defendant to settle the plaintiff’s claim for damage to his motorcycle (“Property Damage Claim”) by payment of the sum claimed (i.e., HK$11,421) and the costs of the action up to 4 June 2021 on the District Court scale. 

13.  As no reply was received from the 1^st defendant, the matter proceeded to trial. 

C.  The Judge’s judgment

14.  The trial came before the Judge on 23 June 2021.  Both sides were legally represented.  The Judge indicated to counsel at the commencement of the trial that the central issue was whether the District Court has jurisdiction to try the Property Damage Claim which was for the sum of HK$11,421, an amount that normally fell within the exclusive jurisdiction of the Small Claims Tribunal, and the issue should be determined first as a preliminary issue[4]. 

15.  The principal submissions of the plaintiff on the issue were that (i) the Personal Injuries Claim and the Property Damage Claim were different aspects of the single cause of action in negligence; (ii) there was no dispute that the claim was properly commenced in the High Court, and properly transferred to the District Court after its jurisdictional limit was increased to HK$ 3 million; and (iii) notwithstanding the settlement with the 3^rd defendant, the plaintiff’s claim had not been ousted from the jurisdiction of the District Court by reason of section 5(2) and the Schedule to the Small Claims Tribunal Ordinance, Cap. 338. 

16.  The 1^st defendant, on the other hand, argued that the Property Damage Claim should be struck out as it fell within the exclusive jurisdiction of the Small Claims Tribunal, and further questioned the fides of the plaintiff’s settlement with the 3^rd defendant in deliberately leaving out the Property Damage Claim.  

17.  The Judge drew the attention of counsel to several authorities which supported the view that a personal injuries claim and a property damage claim, even if arising out of a single traffic accident, were two separate causes of action, and adjourned the hearing for 30 minutes for counsel to consider them[5].  When the hearing resumed,  the plaintiff’s counsel[6] informed the Judge that he no longer pursued the proposition that only one cause of action was involved in the case.  In answer to the Judge’s specific questions, counsel also accepted that, in light of the authorities referred to by the Judge, there were in fact two separate causes of action in the case and indicated he  had no further submissions to make[7]. 

18.  The line of authorities that the Judge provided to counsel, which begins with the leading case of Brunsden v Humphrey (1884) 14 QBD 141, was summarized in the Judge’s judgment as follows: 

“ 37. In Brunsden v Humphrey [1881-5] All ER 357; (1884) 14 QBD 141 (English Court of Appeal), the plaintiff sued the defendant for damage to his cab in a collision caused by the negligence of the defendant's servant and recovered damages. The plaintiff subsequently sued for personal injuries sustained in the same collision. The English Court of Appeal held by majority that the aforesaid claims for damages for property damage and for personal injuries constituted two distinct causes of action, so the earlier judgment was no bar to the subsequent action.

38. Bowen LJ in Brunsden held that according to the popular use of language the defendant’s servant had done only one act (ie driving a vehicle negligently), but in fact two separate kinds of injury were inflicted and two wrongs done. The mere negligent driving in itself if accompanied by no injury to the plaintiff or no injury to the cab was not actionable at all. Both causes of action might be said to be founded on one act of the defendant’s servant, but they were not on that account identical causes of action.

39. Brunsden was approved by Lord Pearce in Cartledge v E Jopling & Sons Ltd [1963] AC 758, but was not followed in the United States and Canada. Although Griffiths LJ in Buckland v Palmer [1984] 3 All ER 554, 559 confessed he always had difficulty in following the majority in Brunsden, he took ‘it to be settled by the decision of this court in [Brunsden] that if as a result of a car accident a plaintiff suffers both personal injury and damage to his car he has two distinct causes of action, one for his personal injuries and the other for damage to his property’.

40. Davidson v North Down Quarries Limited [1988] NI 214 endorsed Brunsden. In that case, the plaintiff suffered personal injuries and damage to his motor car in an accident. Proceedings against the defendants in respect of the plaintiff’s personal injuries were settled without a hearing. Later, the plaintiff commenced proceedings against the defendants in respect of the car damage. It was held that both of the plaintiff’s claims, whilst arising from the same set of facts, gave rise to two causes of action and so there was no bar to the later action. In any event, the plaintiff’s first action was settled on a basis which excluded the claim for damage to the car.

41. Nicholson J reviewed the authorities and decided to follow Brunsden because he considered it was rightly decided. He observed there would obviously be cases where on the facts the causes of action completely overlapped, but he did not consider the causes of action merged. In his view, the existence or standard of duty owed might vary from case to case as between injury to person, injury to personal property and injury to real property. ”

19.  On these authorities[8], the Judge was of the view that the Personal Injuries Claim and the Property Damage Claim could not be regarded as giving rise to one single cause of action just because they both happened to be based on the tort of negligence.  He held that they were two separate and distinct causes of action arising out of the same traffic accident. 

20.  The Judge further held that as the Property Damage Claim was under HK$75,000, the plaintiff’s claim against the 1^st defendant fell within the exclusive jurisdiction of the Small Claims Tribunal, and the District Court has no jurisdiction to hear it[9]. As the District Court has no power or jurisdiction to transfer an action to the Small Claims Tribunal, the Judge struck out the action[10]. 

21.  On the question of costs, the Judge held that costs should follow the event[11]. He was also critical of the plaintiff’s conduct in pursuing the claim, which was a meagre sum, against the 1^st defendant, and took the view that this was for a cynical move to recover whatever costs of the action that was not covered by the settlement sum payable by the 3^rd defendant[12].   He therefore ordered the plaintiff to pay the 1^st defendant the costs of the action.

D.  Grounds of appeal and the respondent’s notice

22.  In this appeal, the plaintiff raises six grounds of appeal which may be subsumed under three issues as follows: 

(1)  Grounds 1 and 2: Should the question of whether the plaintiff’s claim was within the jurisdiction of the Small Claims Tribunal be determined at the commencement of the action and not subsequently? (“Timing Issue”)  

(2)  Grounds 3, 4 and 5: In the modern law of negligence, whether one tortious act resulting in two types of damage gives rise to a single cause of action, and whether the Judge was correct to follow Brunsden v Humphrey and to hold that the Property Damage Claim should have been separately commenced or maintained in the Small Claims Tribunal? (“Cause of Action Issue”) 

(3)  Ground 6: Even if the Judge were correct to strike out the Property Damage Claim, whether the plaintiff should be ordered to pay to the 1^st defendant the costs of the entire action? (“Costs Issue”) 

23.  The 1^st defendant has filed a respondent’s notice[13] which seeks to support the Judges’ decision on the following additional grounds (respectively “RN1” to “RN7”):

(1)  Brunsden v Humphrey is still good law in Hong Kong.

(2)  The plaintiff acted mala fide in only settling the Personal Injuries Claim with the 3^rd defendant and deliberately leaving the Property Damage Claim to be pursued against the 1^st defendant.

(3)  The settlement with the 3^rd defendant has satisfactorily and fully discharged the whole action.  The plaintiff is barred from pursuing the Property Damage Claim against the 1^st defendant by the operation of the doctrine of res judicata.

(4)   The court is not bound to accept that the settlement with the 3^rd defendant only relates to the Personal Injuries Claim, and should construe it as a full and final settlement between the plaintiff and all defendants.

(5)  Even if the plaintiff is entitled to pursue against the 1^st defendant, the settlement with the 3^rd defendant has over-compensated him such that the plaintiff does not have any valid claim against the 1^st defendant.

(6)  The 1^st defendant had in his Defence and in the opening submission at trial argued that he was not negligent, or alternatively there was substantial contributory negligence on the plaintiff’s part.   

(7)  To allow the plaintiff to pursue the Property Damage Claim which is in the sum of HK$11,421 is against the underlying objectives of costs effectiveness, reasonable proportion and procedural economy, doing fairness between the parties and fair distribution of court resources as stated in Order 1A rule 1(a), (c), (d) and (f) of the Rules of the District Court, Cap. 336H. 

E.  Our reasons for decision

E.1  Timing Issue: When should the question of whether a claim is within the jurisdiction of the court be determined?  

24.  Mr Lin submitted on behalf of the plaintiff that the question as to whether the plaintiff’s claim was within the jurisdiction of the Small Claims Tribunal should be determined at the commencement of the action but not subsequently. He relied on two District Court decisions, Chow Wai-fun Amy v Mckeon Brendan Hugh, unreported, DCCJ 15684/2000, 28 February 2001 and Hoi Cheng Pan v Headstart Educational Group Ltd, unreported, DCCJ 4028/2006, 24 April 2007. 

25.  Chow Wai-fun Amy is an action for possession, arrears of rent and mesne profits.  After the commencement of the proceedings, the defendant delivered possession to the plaintiff.  The remaining claims for unpaid rent and mesne profits were reduced to HK$40,000 after giving credit for the rental deposit held by the plaintiff.  His Honour Judge Lok (as he then was) rejected the defendant’s argument that the remaining claims fell within the exclusive jurisdiction of the Small Claims Tribunal and could not be proceeded with in the District Court.  He held that (at §3): 

“ … When the Plaintiff commenced the present action, the case and the claim properly fell within the jurisdiction of this court. It was only because of the subsequent conduct of the Defendant in surrendering the premises that the claim for possession no longer became necessary. In my judgment, if the Plaintiff’s claim was a proper one when he first commenced it, the events which occurred after the commencement of the action would not deprive this court of the jurisdiction to deal with the matter. What matters is the claim of the Plaintiff at the commencement of the claim, and so I am of the view that the District Court does have jurisdiction to deal with the present claim.”

26.  In Hoi Cheng Pan, after commencing an action against the tenant for damages for breach of a tenancy agreement, the plaintiff was able to re-let the premises.  He quantified his claim at HK$27,815 after giving credit for the security deposit provided by the defendant.  Her Honour Judge Marlene Ng (as she then was) dismissed the defendant’s application to strike out the plaintiff’s claim for want of jurisdiction.  Applying Chow Wai-fun Amy, the judge held that the measure of general damages claimed by the plaintiff at the commencement of the proceedings exceeded the prevailing jurisdictional limit of the Small Claims Tribunal and the District Court’s jurisdiction was not ousted by the subsequent reduction in the quantification of the claim as a result of successful mitigation of loss occurring after the commencement of proceedings (at §§72 to 74 and 93). 

27.  We are in agreement with the views expressed in these cases, which are not really controversial.  As is clear from the decision granting leave to appeal, the Judge accepted that the proper time to consider whether the plaintiff’s claim was within the jurisdiction of the Small Claims Tribunal is the commencement of the action.  What led the Judge to conclude that the plaintiff’s remaining claim against the 1^st defendant was within the exclusive jurisdiction of the Small Claims Tribunal is his finding that the Personal Injuries Claim and the Property Damage Claim were two separate causes of action.  At §12 of the decision, the Judge explained that if there were two separate and distinct causes of action, then it must be questionable whether the plaintiff should have commenced or maintained the Property Damage Claim in the High Court or the District Court as the claim was within the jurisdiction of the Small Claims Tribunal.

E.2  Cause of Action Issue: Does one tortious act resulting in two types of damages gives rise to one single cause of action or two separate causes of action?

28.  The core issue in this appeal is whether the Property Damage Claim is a cause of action separate and distinct from the Personal Injuries Claim, as found by the Judge, or whether they together form one single cause of action.  Mr Lin’s submissions, in gist, are twofold.  First, he contends that the Judge should not have relied on Brunsden, which has not been followed in Canada and Scotland and has been doubted by the English Court of Appeal. Second, he argues that in the modern law of negligence, one tortious occurrence resulting in the victim suffering two types of damage gives rise to one cause of action.  Mr Lin readily acknowledged at the hearing that in advancing these submissions he is seeking to retract the concession made by the plaintiff’s trial counsel before the Judge (see §17 above).

E.2.1   Brunsden v Humphrey

29.  We begin with a consideration of the English Court of Appeal’s decision in Brunsden v Humphrey, which establishes that where a single act violates two separate rights or interests protected by the law two causes of action arise.  The first question that we have to decide is whether we should follow the decision. 

30.  In Brunsden, the plaintiff sustained bodily injury and damage to his cab in a collision between his cab and the defendant’s van caused by the negligence of the defendant’s servant.  Having recovered damages for the damage to his cab in an action brought in the county court, he commenced another action in the High Court for damages for personal injury.  In the Queen’s Bench Division (Pollock B and Lopes J) (1883) 11 Q.B.D. 712, judgment was entered for the defendant.  It was held by Lopes J that (at 714):

“ But the cause of action in the county court, and the matter to be determined there, was the negligence of the defendant in driving his van. The plaintiff made no claim in the county court for damages in respect of his personal injuries, but he might have done so, for the injury was caused by the same matter which was tried and determined in the county court, that is, the defendant’s negligence. He is now bringing his action, not for a new wrong, but for a consequence of the same wrongful act which was the subject of the former suit.”

31.  The Court of Appeal by a majority (Brett MR and Bowen LJ) allowed the appeal on the ground that the collision gave rise to two causes of action, one for injury to the person and the other for injury to the property; and the recovery in the first action of compensation for the damage to cab was no bar to the subsequent action for injury to his person.  Brett MR explained that (at 145-146):

“ The collision with the defendant’s van did not give rise to only one cause of action: the plaintiff sustained bodily injuries, he was injured in a distinct right, and he became entitled to sue for a cause of action distinct from the cause of action in respect of the damage to his goods: therefore the plaintiff is at liberty to maintain the present action. Different tests have been applied for the purpose of ascertaining whether the judgment recovered in one action is a bar to a subsequent action. I do not decide this case on the ground of any test which may be considered applicable to it; but I may mention one of them; it is whether the same sort of evidence would prove the plaintiff’s case in the two actions. Apply that test to the present case. In the action brought in the county court, in order to support the plaintiff’s case, it would be necessary to give evidence of the damage done to the plaintiff’s vehicle. In the present action it would be necessary to give evidence of the bodily injury occasioned to the plaintiff, and of the sufferings which he has undergone, and for this purpose to call medical witnesses. This one test shews that the cases of action as to the damage done to the plaintiff’s cab, and as to the injury occasioned to the plaintiff’s person, are distinct.”

32.  Bowen LJ considered the question of whether in the case of an accident caused by negligent driving, in which both the goods and the person of the plaintiff were injured, there was one cause of action only or two causes of action which were severable and distinct was a difficult one, and felt great doubt and hesitation in differing from the judgment of the court below and the dissenting judgment of Lord Coleridge CJ.  He nevertheless concluded that (at 150-151):

“ Two separate kinds of injury were in fact inflicted, and two wrongs done. The mere negligent driving in itself, if accompanied by no injury to the plaintiff, was not actionable at all, for it was not a wrongful act at all till a wrong arose out of the damage which it caused. One wrong was done as soon as the plaintiff’s enjoyment of his property was substantially interfered with. A further wrong arose as soon as the driving also caused injury to the plaintiff’s person. Both causes of action, in one sense, may be said to be founded upon one act of the defendant’s servant, but they are not on that account identical causes of action. The wrong consists in the damage done without lawful excuse, not the act of driving, which (if no damage had ensued) would have been legally unimportant.”

33.  Lord Coleridge CJ dissented and said that (at 152-153):

“ It appears to me that whether the negligence of the servant, or the impact of the vehicle which the servant drove, be the technical cause of action, equally the cause is one and the same: that the injury done to the plaintiff is injury done to him at one and the same moment by one and the same act in respect of different rights, i.e. his person and his goods, I do not in the least deny; but it seems to me a subtlety not warranted by law to hold that a man cannot bring two actions, if he is injured in his arm and his leg, but can bring two, if besides his arm and leg being injured his trousers which contain his leg, and his coat-sleeve which contains his arm, have been torn. The consequences of holding this are so serious, and may be very probably so oppressive, that I at least must respectfully dissent from a judgment which establishes it. I think that the Court below was right, and that this appeal should be dismissed.”

34.  Brunsden was applied in the House of Lords’ decision in Cartledge v E Jopling & Sons Ltd [1963] AC 758, which concerns the effect of the Limitation Act in cases where an insidious industrial disease has done secret damage whose existence may not be discovered, or even discoverable, until some years after the first onset of the disease.  In rejecting the appellant’s argument that even if a cause of action accrued when the unknown injury was done to the appellant, a fresh cause of action would accrue when the damage was discovered, Lord Pearce took it as settled law that in personal injury cases, two separate actions could be brought for personal injury and property damage (at 780):

“ In cases of personal injury the law is clear and has been settled for many years. Although two separate actions may be brought, one for personal injury and one for damage to property, both being caused by the same negligence (Brunsden v. Humphrey), only one action may be brought in respect of all the damage from personal injury.”

It should be noted that Cartledge is not about different rights being infringed and whether separate causes of action lie in respect of them. 

35.  In Buckland v Palmer [1984] 3 All ER 554, 559 Griffiths LJ, despite having difficulty with the reasoning of the majority decision in Brunsden, also took it to be settled that if as a result of a car accident a plaintiff suffers both personal injury and damage to his car he has two distinct causes of action, one for his personal injuries and the other for damage to his property.   

36.  In the Irish case of Davidson v North Down Quarries Limited [1988] NI 214, Nicholson J (as he then was) after reviewing the authorities, which included Cartledge and Cahoon v Franks (see §42 below), concluded that Brunsden was correctly decided and should be followed.

37.  A decade from Buckland v Palmer, the English Court of Appeal expressed doubt over the decision in Brunsden.  In Talbot v Berkshire County Council [1994] QB 290, a passenger in a car involved in an accident brought a claim for damages for personal injury against the plaintiff who was the driver.  The plaintiff’s insurer joined the local highway authority claiming contribution to the passenger’s claim, but made no claim for the plaintiff’s own injuries.  Judgment was entered for the passenger with the blame for the accident apportioned between the plaintiff and the local authority.  The plaintiff subsequently sought to bring a fresh action against the local authority in respect of his personal injuries.

38.  At first instance, Otton J held that the plaintiff was prima facie estopped by the doctrine of res judicata from bringing the new action but that there were special reasons permitting him to pursue his claim. However, he found the plaintiff’s claim to be time-barred.  In opposing the plaintiff’s appeal, the local authority contended that the judge’s decision should be affirmed on the ground that the claim was barred by the operation of the rules of res judicata and/or cause of action estoppel.  The Court of Appeal dismissed the appeal holding that there was no reason why the principles of res judicata should not apply without limitation in personal injuries actions, and the plaintiff should have included his claim in the third party proceedings against the local authority as it arose out of substantially the same facts as the cause of action in respect of which the passenger’s claim had been made.

39.  In discussing whether the rule in Henderson v Henderson (1843) 3 Hare 100 applied to bar the plaintiff’s claim, Stuart-Smith LJ (with whom Mann and Nourse LJJ agreed) pointed out that Henderson had been applied and approved at the highest levels but had escaped attention in personal injury cases.  He referred to Brunsden and commented that (at 296F-G): 

“ Henderson’s case, 3 Hare 100, however appears to have escaped attention in the field of personal injury litigation. In Brunsden v. Humphrey (1884) 14 Q.B.D. 141 the plaintiff had sued the defendant for damage to his cab and recovered damages. He subsequently sued for personal injuries sustained in the same collision. The court by a majority held that the two causes of action were different, namely trespass to goods and trespass to person and res judicata through cause of action estoppel did not apply. Lord Coleridge C.J. dissented. Had Henderson’s case, 3 Hare 100 been cited, the decision might have been different.”

The view was shared by Mann LJ who observed that had Henderson been referred to the court in Brunsden, “then perhaps Lord Coleridge CJ might not have found himself in the unfortunate position of having to dissent from Brett MR and Bowen LJ” (at 300H-301B).

40.  Brunsden has not been followed in Canada. In Cahoon v Franks [1967] S.C.R. 455, the plaintiff who had brought an action for damage to his automobile caused by the defendant’s negligence sought to amend his statement of claim to add a claim for personal injuries.  The defendant, replying on Brunsden, argued that the amendments raised a new cause of action which was time barred.  The Supreme Court of Canada dismissed the defendant’s appeal, holding that Brunsden is not good law in Canada and should not be followed.    

41.  Hall J, who delivered the judgment of the Supreme Court of Canada, endorsed the reasoning given by Porter JA in the Supreme Court of Alberta, Appellate Division as follows (at 458-459): 

“ It is important to bear in mind that it was the ‘forms of action’ that were abolished by the Supreme Court of Judicature Act, 1873. To apply Brunsden v. Humphrey to the facts here would be to revive one of the very forms of action which that Act abolished. The cause of action or, to use the expression of Diplock, L.J., “the factual situation” which entitles the plaintiff here to recover damages from the defendant is the tort of negligence, a breach by the defendant of the duty which he owed to the plaintiff at common law which resulted in damage to the plaintiff. The injury to the person and the injury to the goods, and perhaps the injury to the plaintiff’s real property and the injury to such modern rights as the right to privacy flowing from negligence serve only as yardsticks useful in measuring the damages which the breach caused.”

“ To deny this plaintiff the opportunity to have a court adjudicate on the relief which he claims merely because it lacks ancient form would be to return to those evils of practice which led to judicial amendment and the ultimate legislative abolition of “forms of action”. As Lord Denning, M.R. said in Letang v. Cooper, [1965] 1 Q.B. 232 at p. 239:

‘I must decline, therefore, to go back to the old forms of action in order to construe this statute. I know that in the last century Maitland said ‘the forms of action we have buried, but they still rule us from their graves’ (see Maitland, Forms of Action, 1909, p. 298), but we have in this century shaken off their trammels. These forms of action have served their day. They did at one time form a guide to substantive rights; but they do so no longer. Lord Atkin, in United Australia Ltd, v. Barclays Bank Ltd. [1941] A.C. 1, 29, told us what to do about them:

‘When these ghosts of the past stand in the path of justice clanking their mediaeval chains the proper course for the judge is to pass through them undeterred.’’

I make reference again to the abstracts quoted by Johnson, J.A. from the judgment of Lord Denning in Letang v. Cooper at p. 240, and the judgment of Diplock, L.J. in Fowler v. Lanning [1959] 1 Q.B. 426. ‘The factual situation’ which gave the plaintiff a cause of action was the negligence of the defendant which caused the plaintiff to suffer damage. This single cause of action cannot be split to be made the subject of several causes of action.”

42.  In declining to follow Brunsden, the Canadian Court noted that the case had been rejected in the United States of America, and further observed that:

“ The decision in Brunsden v. Humphrey may well have persisted in Great Britain largely because the courts were bound by it. Free as we are to apply reason unhampered by precedent, I am of the opinion that the principle of Brunsden v. Humphrey ought not to be adopted.”

43.  The Scottish Court also declined to follow Brunsden.  In Smith v Sabre Insurance Company Ltd [2013] SC 569, the car driven by the reclaimer was involved in a collision with another car.  Having successfully sued in respect of his personal injuries, the reclaimer brought a second action to recover the cost of repair to his vehicle.  The Lord Ordinary held that the subject matter of both actions was the same, namely the negligence of the other driver, and the reclaimer was precluded from pursuing the second claim by reason of the rule of res judicata.  The Court of Session upheld the decision holding that where a natural or legal person suffered damage as a result of a single negligent act, that gave rise to a single right to obtain damages which must be pursued in one action.  

44.  Lord Brodie, who delivered the opinion of the Court of Session, rejected the reclaimer’s argument which relied on Brunsden.  He held (at §§37-39) that Brunsden was not part of the law of Scotland as it had not been approved or followed in any Scottish case.  Referring to the dissenting judgment of Lord Coleridge CJ, the modern English definition of cause of action in Diplock LJ’s judgment in Letang v Cooper [1985] 1 QB 232 at 243 and McGregor on Damages (18^th ed, §9.006), he was further of the view that the rule that one act of negligence causing damage gave rise to only one “ground of action” (which is the equivalent of cause of action in Scots law) was consistent with the idea that in Scots law delictual liability could be subsumed under the single general principle, damnum injuria datum, as opposed to an analysis in terms of a number of individual torts such as trespass to the person and trespass to goods as suggested by Bowen LJ.  It was moreover pointed out that the rule would avoid the difficulty of having to determine what exactly was a distinct interest or right giving rise to a separate cause of action, such as where damage was sustained to a number of different goods or to a variety of other proprietorial interests.  He concluded that:

“ If, as would be suggested by Brunsden, a separate action may be brought in respect of each sort of interest which has been damaged, it is not inconceivable that one delictual act might give rise to a number of actions, but just how many might be difficult to determine. A one action rule offers simplicity and certainty. Following Brunsden does not.”

45.  The discussions in Cahoon, Smith and Talbot show that the majority decision in Brunsden has been doubted in two respects, namely (1) the holding that where a negligent act gives rise to bodily injuries and property damage, there are two separate causes of action for the violation of separate rights; and (2) a claimant who has obtained judgment in one action for one type of damage suffered (such as personal injury) is not barred from bringing a fresh action for another type of damage suffered (such as property damage) notwithstanding that the damage flowed from the same act of negligence. 

E.2.2   Application of Brunsden v. Humphrey in Hong Kong

46.  Mr Lin informed us that from his research, Brunsden has been considered or mentioned in eight Hong Kong cases, none of these cases is binding on this Court, and none of them has analysed or discussed the correctness of the majority decision that personal injury and property damage occasioned by the same negligent act give rise to two separate and distinct causes of action[14].

47.  Among the cases, Chan Siu Lun v Hui Cho Yee, unreported, CACV 171/1999, 13 October 1999 is the only decision of this Court; the others are all first instance decisions. The plaintiff in that case suffered personal injury in a road traffic accident.  Being dissatisfied with the amount of personal injury damages awarded by the court, he issued a fresh action to claim for more personal injury damages.  It was a classic case of res judicata and the claim was dismissed.  In dismissing the plaintiff’s appeal, Leong JA (as he then was) referred to Brunsden for the proposition in Bowen LJ’s judgment that damages resulting from one and the same cause of action must be assessed and recovered once and for all.  Similarly, in Mitchell v Lemm (1909) 4 HKLR 213 at 215 and Yong Hong-wai v Ng Kam-Shing & Ors [1994] 2 HKLR 153 at 157, Brunsden was cited or mentioned in the context of the doctrine of res judicata and for the same proposition of Bowen LJ.  These cases bear no relevance to the issue in this appeal. 

48.  In So Cheung t/a the Cheung Kee Firm v Lau An (1931-32) 25 HKLR 22 at 23, Brunsden was cited in an extract from Clerk and Lindsell on Torts explaining who are joint tortfeasors for the purpose of the rule that where a tort is joint there can only be one action and one judgment for the whole amount of the damages to which the plaintiff is entitled.  The decision is also of no relevance to this appeal.  

49.  In the District Court case of Tang Kwan Yee v Luo Xing Wen and Another, unreported, DCPI 352/2008, 2 July 2008, Her Honour Judge Marlene Ng (as she then was) noted the doubt which Stuart-Smith and Mann LJJ in Talbot threw upon Brunsden, but considered that such observations “went to the question whether the majority decision in Brunsden that res judicata through cause of action estoppel did not apply could have been different if the majority had considered not just cause of action estoppel but also res judicata in the wider sense (i.e. the Henderson principle)” and did not concern the majority’s view that the two causes of action were different: see §§57-58. 

50.  Brunsden was also cited in two early cases in the context of whether breach of a contract gave rise to two causes of action or one. In The Chai Ley Company v The Fung Cheong Company and Yam Kee (1913) 8 HKLR 84 at 88, the contract was terminated by the defendants’ default. The plaintiffs claimed that the defendants were liable for work and labour done but brought an action only for the return of deposit, and were met by the objection that they were splitting their cause of action.  Kemp J held that the claim for the return of deposit and the claim for work and labour done together formed one cause of action.  He distinguished Brunsden on the basis that unlike Brunsden where one act violated two distinct and independent rights, the rights of the plaintiff in the case were all intimately bound up by the contract. 

51.  In The Union Trading Company Limited v Chu Kwok (1938) 30 HKLR 41 at 46 and 47, the defendants failed to take delivery and did not pay the price of the goods.  The plaintiffs after obtaining judgment for the price of the goods, brought a second action for the interest on the price of the goods and the storage charges. Williams J held that the two actions involved different and distinct causes of action and the second action was not barred by the previous judgment.  He considered that Brunsden was “more nearly applicable” than the case of Chai Ley Company. In both of these cases, there was no discussion or analysis of the principle in Brunsden or the correctness of the majority decision.  The two cases do not shed light on the particular issue before us. 

52.  In short, the Hong Kong cases that Mr Lin has been able to find are not binding on this Court, and no useful assistance can be derived from them. 

E.2.3   Our views

53.  In the absence of binding authority, it is open to us to consider and decide whether to follow the majority decision in Brunsden.  In our view, the issue of whether personal injury and property damage caused by the same accident or negligent act gives rise to one single cause of action or two separate and distinct causes of action has to be determined by considering what constitutes a cause of action

54.  The modern definition of cause of action was laid down by Diplock LJ in Letang v Cooper at 242G-243A where a cause of action was described as “simply a factual situation the existence of which entitles one person to obtain from the court a remedy against another person”.  The definition has been cited and consistently applied in this Court: see, for example, Convoy Global Holdings Ltd and Another v Kwok Hiu Kwan and Another [2021] HKCA 1594 at §62; and Shenzhen Futaihong Precision Industry Co Ltd and Others v BYD Company Limited and Others [2018] HKCA 408 at §81.   

55.  Diplock LJ pointed out that (at 243D-E) the abolition of the forms of action by the Judicature Act 1873 did not affect causes of action, so the names of the various “forms of action” had continued to be used to describe the various categories of factual situations that entitle one person to obtain from the court a remedy against another.  Diplock LJ thus cautioned (at 243E-F) that:

“ … it is essential to realise that when, since 1873, the name of a form of action is used to identify a cause of action, it is used as a convenient and succinct description of a particular category of factual situation which entitles the person to obtain from the court a remedy against another person. To forget this will indeed encourage the old forms of action to rule us from their graves.”

56.  Given that in modern time a cause of action means a factual situation which gives the claimant a right to remedy, it is inapt to split a single factual situation into several legal situations.  In this regard, we have found the reasoning of Porter JA, as endorsed by Hall J, in Cahoon (see §41 above) to be compelling.  In the present case, the cause of action or factual situation entitling the plaintiff to claim against the defendants is the negligent driving of the 1^st defendant causing damage.  The injury to the plaintiff’s person and the damage to his motorcycle flow from one single act of negligence and serve only as yardsticks for measuring the damage which the negligent act caused.

57.  In our view, just as the old forms of action for trespass to the person and trespass to goods do not, and should not, in modern day define the cause of action, the majority view in Brunsden that where one negligent act results in bodily injury and damage of property, two rights have been violated such that there are two causes of action should not be followed.  To allow a separate cause of action for each interest or right that has been injured will run into the difficulty of defining what exactly constitutes a distinct interest or right.  As Lord Brodie observed in Smith (at §39), while most interests can be categorized by reference to either the right to bodily integrity or the right to property, not all interests which might suffer damage by a wrongful or tortious act can fall into one of the categories.      

58.  The majority decision in Brunsden also does not sit well with the well accepted rule in Henderson v Henderson that a claimant is barred by cause of action estoppel from pursuing a claim which could have been litigated at the same time as a claim previously brought: see Talbot at 296, 300-301; Buckland v Palmer; and McGregor on Damages (21^st ed) at §§11-005 to 11-007.  The rule in Henderson has been regularly applied in our courts and affirmed at the highest level: see, for example, Ko Hon Yue v Chiu Pik Yuk (2012) 15 HKCFAR 72 at §§2, 82 and 83.  The Judge had in his judgment commented that the plaintiff, after settling the Personal Injuries Claim, ought to have withdrawn the Property Damage Claim in the District Court and pursued it separately in the Small Claims Tribunal.[15] In our view, this highlights the intrinsic problem of the rule in Brunsden.  Not only will it fall foul of the rule in Henderson, but it will also lead to repetition and technicality in litigation, which should be avoided.    

59.  For the above reasons, we hold that Brunsden v. Humphrey should not be followed.  In our view, where one tortious occurrence results in two types of damage, it gives rise to one single cause of action.  In the present case, the Personal Injuries Claim and the Property Damage Claim are based on the same act of driving by the 1^st defendant which the plaintiff contends is negligent.  The two claims form one single cause of action.  Since the plaintiff’s claim was properly within the jurisdiction of the High Court at its commencement and was subsequently properly transferred to the District Court, the Property Damage Claim is within the District Court’s jurisdiction and does not fall within the exclusive jurisdiction of the Small Claims Tribunal notwithstanding that the amount of the claim is HK$11,421.  It follows that the Judge’s reliance on Brunsden and his order striking out the plaintiff’s claim against the 1^st defendant cannot be supported.     

E.3      Respondent’s notice

60.  We will deal with the respondent’s notice before moving to the Costs Issue. 

61.  RN1 contends that Brunsden is good law in Hong Kong.  In light of the discussions and conclusions on the Cause of Action Issue, such contention cannot stand. 

62.  RN2 to RN5 relate to the plaintiff’s settlement with the 3^rd defendant and can be considered together.  In respect of the scope of the settlement, it is clear from the consent order dated 4 June 2021 that the settlement between the plaintiff and the 3^rd defendant is only in respect of the Personal Injuries Claim.  Further, as pointed out by Mr Lin in his oral submissions, it was disclosed in the affidavit filed on behalf of the 3^rd defendant in its joinder application[16] that the 3^rd defendant had repudiated the insurance policy issued to the 2^nd defendant on account of false declaration or material non-disclosure of information relating to the 1^st defendant, namely the 1^st defendant was disqualified from holding a driving licence at the time of the making of the insurance proposal form.  Despite the repudiation, the 3^rd defendant is under a statutory duty to satisfy any judgment in favour of the plaintiff on the Personal Injuries Claim (including interest and costs) by reason of section 10(1), read together with section 6(1)(b), of the Motor Vehicles Insurance (Third Party Risks) Ordinance, Cap. 272. 

63.  In this appeal, we are not concerned with, and we express no view on, whether the 3^rd defendant has a valid reason to repudiate the 2^nd defendant’s insurance policy.  What is, however, relevant is the fact that the 3^rd defendant has repudiated the insurance policy such that its liability under Cap. 272 is confined to any judgment on the Personal Injuries Claim.  In the circumstances and given that the 1^st defendant has no evidence to support his challenge, the suggestion in RN2 that the plaintiff acted mala fide in reaching a settlement with the 3^rd defendant only on the Personal Injuries Claim has no basis at all.    

64.  Moreover, in light of the clear terms of the consent order and the repudiation of the insurance policy, there is no basis for the court to construe the consent order, and in turn the settlement, as covering the entirety of the action (i.e., including the Property Damage Claim against the 1^st defendant).  The plaintiff is also not barred from pursuing his claim against the 1^st defendant.  RN3 and RN4 therefore fail.       

65.  As to RN5, there is nothing to support the 1^st defendant’s assertion that the plaintiff has been “over-compensated” by the settlement with the 3^rd defendant.  In any event, the settlement only concerns damages for the plaintiff’s personal injuries, and its amount has no impact on the plaintiff’s entitlement to the Property Damage Claim and/or its quantum. This ground fails. 

66.  In respect of RN6, whether the 1^st defendant was negligent and/or there was contributory negligence on the plaintiff’s part is irrelevant to the issues in this appeal.  These are issues to be determined in the trial on the Property Damage Claim.  This ground also fails.

67.  Finally, on RN7, for the reasons we gave for the Cause of Action Issue and for rejecting RN1 to RN6, the complaint that to allow the plaintiff to pursue his claim against the 1^st defendant is contrary to the underlying objectives in Order 1A of the Rules of the District Court simply has no merits.

68.  In conclusion, as none of its grounds is made out, we order that the respondent’s notice be dismissed.

69.  The plaintiff’s appeal against the order striking out and dismissing his claim against the 1^st defendant should be allowed.  The Judge’s order should be set aside and the matter remitted to the District Court for continuation before another judge. 

E.4  Costs Issue: Should the plaintiff pay the 1^st defendant the costs of the entire action?

70.  As we have come to the view that the plaintiff’s claim against the 1^st defendant ought not to have been struck out and the appeal should be allowed, the costs order made by the Judge will have to be set aside.  It follows that the Costs Issue falls away and need not be considered. 

E.5  Costs of the trial before the Judge and the costs of the appeal

71.  On the costs of the trial before the Judge, in light of the concession made by the plaintiff’s trial counsel which is retracted in this appeal (see §28 above), we consider it is appropriate to make no order as to costs.  

72.  As to the costs of this appeal, applying the normal rule of costs follow the event, we make an order nisi that the 1^st defendant pays the plaintiff the costs of the appeal, including the costs of the applications for leave to appeal, to be taxed if not agreed.

F.  Disposition

73.  Accordingly, we make the following orders:

(1)  The plaintiff’s appeal is allowed. 

(2)  The respondent’s notice is dismissed.

(3)  The Judges’ order dated 13 August 2021 is set aside.  There is no order as to the costs of the trial before the Judge.

(4)  The plaintiff’s claim against the 1^st defendant and the question of costs between the plaintiff and the 1^st defendant be remitted to the District Court for determination before another judge.

(5)  There is an order nisi that the 1^st defendant pays the plaintiff the costs of the appeal and the costs of the applications for leave to appeal in DCPI 3309/2020 and CAMP 546/2021.  The order shall become absolute after 14 days unless either party applies to vary the order