DUE JIN CHING v. WOO & HO ENGINEERING CO (a firm)

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JUDGMENT

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Kempster, JA :

1. These are appeals in relation to liability only from a judgment given by Deputy High Court Judge O'Dea as long ago as 14 October 1986 whereby he ordered tnat the defendants, Woo & Ho Engineering Co (a firm) and Mr woo Kwok-leung, should pay to the plaintiff, Mr Due Jin-ching, the sum of $674,900 by way of damages for very serious personal injuries resulting in the loss of the left leg which the judge found  had been sustained by reason of their negligence.

2. At all material times the partners of Woo & Ho Engineering Co, sued pursuant to Order 81 Rule 1 of the Rules of the Supreme Court, were Mr Ho Chit-ngam and Mr Woo Yau-wai. The second defendant was the latter's son.

3. During September 1983 Mr Ho bought a Kato bulldozer ("the Kato") either on his own personal behalf or on behalf of the firm and parked it in the compound at Tuen Mun where the firm's plant was kept.

4. According to the plaintiff he offered to buy the "Kato" from Mr Ho subject to an inspection which was arranged for 3 January 1984. The plaintiff drove his car with toe second defendant on board to the compound. Entry was ffected through a locked gate by the use of the second defendant's key. The second defendant obtained another key, namely the ignition key for the Kato, from a small site office and attempted unsuccessfully to start the machine. The plaintiff then hoisted himself onto the wheel belt in order to inspect the battery. Meanwhile the second defendant started up another caterpillar bulldozer ("the Caterpillar") and drove it towards the Kato in order to attach jump leads to the respective batteries. In so doing he crushed the plaintiff against the side of the Kato. Thereafter the second defendant backed the plaintiff's car into the compound, assisted the plaintiff into the back seat and drove him to hospital.

5. According to Mr Ho's version of events he never agreed to sell the Kato, which he had bought personally, to the plaintiff and never agreed that it should be inspected by the plaintiff in company with the second defendant or that either the plaintiff or the second defendant should have access to the compound. Only Mr Ho and his partner, Mr Woo Yau-wai, had keys to the gate. Mr Woo Yau-wai denied authorising the second defendant to go to the compound with the plaintiff. Some 16 weeks after the incident the chain securing the gate was found sawn through.

6. According to the second defendant the plaintiff had asked for his company in the inspection of the Kato and the two of them had gained access to the compound by climbing thefence. The plaintiff had driven the Caterpillar to a point adjacent to the Kato and asked him to attach jump leads toits batteries. Meanwhile the plaintiff attached the other ends of these leads to the battery of the Kato at which stagethe Caterpillar spontaneously reversed into the Kato strikingthe plaintiff as it did so. The second defendant then tookthe ignition keys to the plaintiff's car, climbed over thefence, secured the help of other persons, who cut the chainsecuring the gate with a wire-cutter, and reversed theplaintiff's car into the compound. At this stage his accountof events matched that of the plaintiff. The seconddefendant denied that he was employed by or acting on behalf of the firm. He also denied he was authorised to enter the compound.

7. Accepting the plaintiff's version of events the judge found that the second defendant had been negligent in and about the way he drove the Caterpillar and that the plaintiff had sustained personal injuries as a result. He also found that the second defendant had been acting as agent for and with the authority of the first defendants; thus fixing the firm with vicarious liability.

8. On 20 February 1987 these appeals were called onbefore this court as presently constituted and it was suggested to the plaintiff's counsel that since he claimed to be the owner of the Kato only Mr Ho Chit-ngam should havepeen held liable for the negligence of the second defendant and that an order for a retrial would be appropriate. Thiswas an issue which, in my view, had been raised both in thepleadings and in the course of evidence. In the event thehearing was adjourned sine die with liberty to restore; a direction being given that the Notices of Appeal should beservea on Mr Ho Chit-ngam personally. Mr Woo Kwok-leung has affirmed today that both Notices were duly served. Mr Ho has not appeared at this hearing.

9. Nothing has been said today which persuades me that the Deputy Judge can be faulted in accepting, as he did, the plaintiff's evidence as to what occurred within the compound in preference to that of the defendants. Accordingly the second defendant's appeal must fail. As regards the first defendant, however, it is contended in the Notices of Appeal that there was no evidence upon which a finding could properly nave been made that the second defendant had been acting as that firm's agent since the Kato was the property of Mr Ho rather than of the firm. Reference is implicitly made to that part of Mr No's evidence where he said: -

But this purchase, he went on to say, was in anticipation of further business and there was no suggestion that Mr Ho personally carried on business involving the use of bulldozers outside the ambit of the partnership.

10. The Deputy Judge expressly accepted the plaintiff's testimony in relation to what had transpired prior to the incident in the compound as well as accepting his testimony as to what transpired at the time of the accident. To quote the judge's own words: -

The plaintiff's account of what had transpired prior to the two men going to the compound included the evidence : -

Again in the absence of contradictory documentary evidence the Deputy Judge cannot be faulted in so finding. No more can it be said, a matter canvassed by this court in argument, that the judge failed to advert or apply his mind to this particular issue. It therefore follows that the judge was entitled to find that the plaintiff had gone to the compound with the second defendant at the instance of the first defendants and that the second defendant was acting on behalf of that firm in assisting the plaintiff to test and examine the Kato.

11. In the premises I would affirm the judgment as against both defendants and dismiss the appeals.

Sir Derek Cons, V-P :

12. I agree with my Lord that the appeals must be dismissed and for the reasons which he has given.

Clough, JA

13. I agree and have nothing to add.