HCPI 879/2018
[2022] HKCFI 474
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
PERSONAL INJURIES ACTION NO. 879 OF 2018
____________________
BETWEEN
LIU SHIH TENG, THE ADMINISTRATOR OF THE ESTATE OF LIU HAK WING, DECEASED Plaintiff
and
HKCC DOTCOD LIMITED trading as DOTCOD SEAFOOD RESTAURANT & OYSTER BAR Defendant
____________________
Before: Hon Marlene Ng J in Chambers
Date of Hearing: 17 September 2021
Date of Handing Down Decision: 18 February 2022
____________________
D E C I S I O N
____________________
I. INTRODUCTION
1. The plaintiff (“P ”) was the father and administrator the estate of Liu Hak Wing, deceased (“Deceased ”) who died on 7 September 2015 as a result of the Accident referred to in paragraph 4 below.
2. There was no dispute that on 4 September 2015,
Restaurant ”) at the Basement (“Basement ”), Landmark Prince (“Building ”), 10 Chater Road, Central, Hong Kong;
D ”) was the operator of the Restaurant and the occupier thereof within the meaning of the Occupiers Liability Ordinance Cap 314 (“OLO ”);
Entrance ”), so visitors could only enter/leave the Restaurant’s dining area at the Basement via a stairway that connected such dining area at the Basement to its Entrance on the ground floor (“Stairway ”).
3. P claimed the Stairway (a) was tall and steep with narrow steps, (b) was black/dark in colour, and (c) had poor or inadequate lighting during evening or night time. D denied such allegations, and further averred the allegation in (a) above was embarrassing for want of particulars as to the standard or reference upon which such allegation was based. D went on to claim (i) the Stairway, equipped with a handrail on either side, was well-lit at all material times, and (ii) the fact the steps of the Stairway were paved with black/dark coloured marble was irrelevant to and not causative of the Accident.
4. It was P’s pleaded case that at/about 9:00pm on 4 September 2015, whilst the Deceased was walking on the Stairway to leave the Restaurant, he slipped and fell on the stairs/steps and landed on the landing/platform of the Stairway (“Landing ”), and as a result sustained grievous head/brain injuries, including fractures to the base of the skull and severe injuries to the brain, which caused his death 3 days later (“Accident ”).
5. On 20 August 2018, P commenced the present action against D on behalf of the dependants of the Deceased and in respect of bereavement and funeral expenses under the Fatal Accidents Ordinance Cap 22, and for the benefit of the estate of the Deceased under the Law Amendment and Reform (Consolidation) Ordinance Cap 23 (“LARCO ”). By the Writ of Summons, P claimed damages, interest and costs for personal injury, loss and damage sustained in the Accident that were caused by D’s negligence, breach of common duty of care, breach of the OLO and/or breach of statutory duty by D and its servants, employees and/or agents.
6. On 12 April 2019, P filed his Statement of Claim (“SoC ”) that set out the following particulars of D’s negligence, breach of statutory duty, breach of common duty of care and/or breach of the OLO (“Particulars ”), and insofar as necessary P would also rely on the doctrine of res ipsa loquitur :
“(1) Causing and/or permitting the Stairway to be constructed with an unreasonably steep gradient that created an inherent danger to the visitors of the Restaurant and/or the users of the Stairway;
(2) Failing to warn the Deceased of the steepness of the Stairway;
(3) Causing and/or permitting the use of marble and/or slippery material in the construction of the Stairway;
(4) Failing to warn all visitors of the Restaurant, in particular the Deceased, of the marble and/or slippery surface of the Stairway;
(5) Causing and/or permitting each individual step/stair on the Stairway to be unreasonably narrow; and in particular narrower than the sole of an adult foot, such that an adult could not place his entire foot thereon fully and firmly;
(6) Failing to take any steps to prevent the Stairway from being slippery and/or dangerous;
(7) Failing to give the Deceased any adequate or effective warning of the slippery surface at the Stairway or at all;
(8) Failing to place any warning signs, notices of warning or otherwise warning patrons/visitors of the Restaurant of the steepness and slippery surface of the Stairway;
(9) Failing to place any anti-slippery mat at the top of the Stairway and/or on the platform connecting thereto to ensure the safety of the visitors including the Deceased;
(10) Failing to provide sufficient lighting at the material time which would allow the surroundings of the Stairway to be sufficiently lit, such that the slippery and/or dangerous conditions of the Stairway (which was black/ dark in colour) could reasonably be detected/noticed;
(11) Failing to fix illuminating tapes and/or abrasive strips at the edge of the steps/stairs throughout the Stairway, which could allow visitors of the Restaurant including the Deceased to reasonably detect/notice the slippery and/or dangerous conditions of the Stairway and to prevent them being slippery;
(12) Exposing all patrons/visitors of the Restaurant including the Deceased to a trap and/or hazard of slipping and/or falling;
(13) Exposing the Deceased to a foreseeable risk of damage or injury that [D] knew or ought to have known by leaving the Stairway in a slippery and/or dangerous state;
(14) Permitting the Deceased to use the Stairway when [D] knew or ought to have known that it was unsafe and dangerous in the circumstances for the Deceased to do so;
(15) Failing to provide and/or maintain a safe environment and safe means of access for the visitors of the Restaurant, including the Deceased;
(16) Failing to take sufficient measures, if at all, to remove all dangers involved with the Stairway;
(17) Failing to safeguard, prevent injury to, and/or escort to safety, the patrons/visitors of the Restaurant including the Deceased, who would reasonably be expected to have consumed alcohol at the Restaurant, in light of the potential danger arising from the Stairway (“Particular 6(17) ”);
(18) Failing to take any or any reasonable care to prevent injury or damage to the Deceased; and
(19) Failing to discharge the common duty of care to see that the Deceased was reasonably safe pursuant to Section 3 of the OLO or at all.” (my emphasis)
7. On the same day, P filed his Statement of Damages claiming loss and damage in excess of $157,000,000.
8. On 28 October 2019, D filed its Defence to deny liability. D claimed that:
Licensing Board ”)) (“Liquor Licence ”) were valid and in force at all material times;
Landlord ”), which lease was renewed from time to time;
in situ at all material times, and D or any person did not do anything to alter its structure, dimensions, gradient or layout;
st flight (from the level of the Restaurant premises at the Basement to the Landing, “1st Flight ”) and, upon a right turn, 16 steps on the 2nd flight (from the Landing leading up to the ground floor or street level, “2nd Flight ”);
via the Stairway as evidenced by the issue and renewal of the restaurant licence and the Liquor Licence for the Restaurant by the relevant authorities upon inspections of the premises and its amenities from time to time.
9. In its Defence, D further averred the Deceased used to frequent the Restaurant, and as a repeated visitor to the Restaurant he was (or ought to have been) fully aware of the condition of the Stairway, but he had never made any complaint as to the state of the Stairway or raised any concern pertinent to the safety thereof.
10. In respect of the events in the evening of 4 September 2015, the Defence pleaded that:
Hau ”) who was also a regular patron;
th or 6th step on the 2nd Fight onto the Landing and sustained serious head injury from which he died on 7 September 2015;
11. In its Defence, D also claimed that (1) at all material times there was nothing arising from the physical state of the Stairway to render it dangerous or unsafe for use by the patrons/visitors of the Restaurant, and (2) the Accident did not occur by reason of the physical state of the Stairway:
st and 2nd Flights, and the riser of each step did not exceed 175mm (in height) whereas the tread of each step was not less than 225mm (in width);
12. D further averred that:
13. Relying on the above averments, D concluded it had taken such care in all the circumstances of the case that was reasonable to see that the patrons/visitors of the Restaurant (including the Deceased) would be reasonably safe, and/or that it had properly and reasonably discharged all its duties towards P (if any). D further averred that the doctrine of res ipsa loquitur was not applicable.
14. Further or alternatively, D pleaded that the Accident (the cause of which was denied and put to strict proof) was wholly caused and/or contributed to by the Deceased’s own contributory negligence:
“(a) Failing to hold firmly onto the handrail when ascending the Stairway;
(b) Failing to mind his own step and/or to keep any or any proper lookout when ascending the Stairway;
(c) Failing to pay any or any due care and attention when ascending the Stairway;
(d) Failing to take heed of (or pay any or any sufficient regard to) the condition of the Stairway (including its tread width) when ascending the Stairway;
(e) Failing to avoid or prevent the Accident when he knew or ought reasonably to have known the condition of the Stairway (including its tread width);
(f) Failing to appreciate and guard against the usual or ordinary risk or danger which was reasonably expected or anticipated in ascending a staircase;
(g) Exposing himself to a risk of injury which he knew or appreciated or ought to have known and/or appreciated;
(h) Failing to appreciate and/or guard against the ordinary risk of injury or danger attendant upon his voluntary consumption of alcohol;
(i) Failing to avoid or prevent the [Accident] when he knew (or ought reasonably to have known or anticipated) the ordinary risk of injury or danger attendant upon his voluntary consumption of alcohol and/or the effect thereof commensurate with his tolerance therefor;
(j) Failing to arrange and/or procure assistance in so far as he was suffering from any bodily condition, howsoever arising, rendering him unfit or unable to ascend the Stairway in a safe manner; and/or
(k) Failing in all the circumstances to exercise any or any reasonable care for his own safety.”
15. On 11 March 2020, D filed a summons to seek an order for split trial on the issues of liability and damages in the present action, and for the issue of liability to be tried before a judge of the High Court of Hong Kong in the fixture list (“Split Trial Summons ”). On the same day, D filed the affirmation of its solicitor Wong Lok Yan in support of the Split Trial Summons (“Wong Aff ”). On 16 April 2020, this court granted directions/timetable for filing and serving affidavits in opposition and in reply, and adjourned the Split Trial Summons for argument before the Personal Injuries Judge (“PI Judge ”) to a date to be fixed. On 26 May 2020, P filed the affidavit of his solicitor Lee Ying Biu Andrew (“Lee ”) in opposition (“Lee 1st Aff ”).
16. On 15 July 2020, P filed a summons for leave to amend the SoC (“Amendment Summons ”) in the manner marked in red as per the draft annexed thereto (“Draft ASoC ”):
“[D] was/is the operator of the Restaurant, and was/is the occupier of the Restaurant (including the Stairway, as defined below) within the meaning of the [OLO]” (paragraph 4(1) of the Draft ASoC).
“The visitors to the Restaurant could only access to or leave the basement dining area via a tall and steep stairway that comprised of narrow steps (the “Stairway” ), which connected the basement dining area to the Restaurant’s main entrance on the ground floor. At all material times, [D] has/had immediate supervision and full control of the Stairway, and in particular (i)the Stairway and the basement dining area comprised an enclosed space under [D’s] full control, and (ii) [D] has at all material times been responsible for the renovation works in respect of the Stairway. ” (paragraph 4(3) of the Draft ASoC)
“The Accident was caused by the negligence, breach of statutory duty, breach of common duty of care, and/or breach of the OLO by [D] (including its agents/servants).
……
(17A) Continuing to serve alcohol to the Deceased despite knowing that the Deceased might have been intoxicated from the alcohol provided at the Restaurant. Insofar as is necessary, [P] will refer to the Licensing Conditions of [D’s] Liquor Licence [“Licence Conditions ”], which provided, among other things, that [D] shall not allow any person to become drunk on the premises, nor shall liquor be supplied to any person who is drunk [“Condition 2 ”] [collectively, “Particular 6(17A) ”];
……” (paragraph 6(17A) of the Draft ASoC)
D did not oppose the proposed amendments to paragraph 4 of the SoC (collectively, “Agreed Amendments ”), so the true debate was whether P should be allowed to amend the SoC to plead the proposed Particular 6(17A) or not.
17. On the same day, D filed the affirmation of his solicitor Chow Wing Fu (“Chow ”) to oppose the Amendment Summons (“Chow Aff ”). On 9 September 2020, P filed Lee’s 2nd affidavit in reply (“Lee 2nd Aff ”).
18. The Amendment Summons was heard by Master Kot on 27 November 2020 (“Master Hearing ”) with Mr Wong SC (and Mr Kok with him) appearing for P and Mr Leung SC (and Mr Tsoi with him) appearing for D. On 30 November 2020, Master Kot (a) granted leave for (i) P to amend paragraph 4 of the SoC as per the Agreed Amendments, (ii) P to file/serve the Amended Statement of Claim (“ASoC ”) within 7 days, (iii) D to make consequential amendments to its Defence and to file/serve its Amended Defence (if any) within 14 days thereafter, and (b) further ordered costs of and occasioned by the Amendment Summons be to D on party-and-party basis with certificate for 2 counsel to be taxed if not agreed (collectively, “Master Order ”). In short, the Master Order disallowed P’s application to introduce the proposed Particular 6(17A) into P’s SoC by way of amendment. On the same day, Master Kot also delivered oral reasons for the Master Order (“Master Reasons ”).
19. On 11 December 2020, P filed his Notice of Appeal against the Master Order, and sought the following reliefs on appeal (“Appeal ”):
“(1) The [Master Order] be set aside;
(2) Leave be to [P] to amend the [SoC], in respect of [Particular 6(17A)] as set out in the [Draft ASoC] annexed to the [Amendment Summons];
(3) Leave be to [P] to file and serve the [ASoC] within 7 days of the Order to be made; and
(4) Costs of and occasioned by [P’s] Application (including the [Master Hearing]) be to [P];
AND that the costs of [the Appeal] be paid by [D] to [P].”
20. On 2 February 2021, this court ordered that (a) the Appeal be heard at a substantive hearing in consultation with counsel’s diaries, (b) the Split Trial Summons be restored for further case management at the hearing of the Appeal, (c) P’s filing/serving of the ASoC be stayed pending the outcome of the Appeal, and (d) costs of and occasioned by the applications made by way of a letter dated 30 December 2020 by P’s solicitors (“PSols ”), a letter dated 31 December 2020 by D’s solicitors (“DSols ”) and a joint letter dated 22 January 2021 by PSols/DSols be reserved for determination at the hearing of the Appeal (“Reserve Cost Order ”) (collectively, “2/2/21 Order ”).
21. The Appeal was heard by this court on 17 September 2021 (“Appeal Hearing ”). Mr Wong SC (and Mr Kok with him) appeared by P, and Mr Leung SC (and Mr Tsoi with him) appeared for D.
II. D’s AFFIRMATION EVIDENCE
22. Overview Chow claimed no explanation had been given for the “belated” amendment to introduce the proposed Particular 6(17A), and in any event such proposed amendment purportedly founded on Condition 2 (a) did not give rise to a cause in action in civil law, and (b) was embarrassing for want of particulars. It was said that a party seeking to amend his pleadings should provide sufficient particulars to support the application to amend, but the Draft ASoC did not plead any particulars of “knowledge” on the part of D as to the “drunkenness” or “intoxication” of the Deceased.
23. Chow further claimed (a) the Amendment Summons filed after the Split Trial Summons was a pre -meditated/tactical decision by P not to refer to the “drunkenness” or “intoxication” of the Deceased in the SoC, and (b) the lack of particulars was also a tactical decision as demonstrated by P’s blatant failure/refusal to provide particulars even when they were alerted to the deficiency of the proposed Particular 6(17A).
24. Chow further alleged the proposed Particular 6(17A) was inherently inconsistent with P’s stance in the 21/7/20 Letter (see paragraph 33 below) that “whether the Deceased was in fact drunk is immaterial ” (my emphasis).
25. P’s current pleaded case In paragraph 4 of the SoC, P pleaded the circumstances of the Accident, ie the Deceased slipped and fell on the stairs/steps of the Stairway. Chow claimed that consistent with such pleaded case and also evident from the Particulars as a whole, all P’s original causes of action (ie negligence or breach of statutory duty) rested on the physical state of the stairs/steps. But the Lee 1st Aff sought to rely/ focus on the fact the Deceased consumed alcohol (in contra -distinction to being intoxicated ) as an aspect of the factual background in support of P’s claim arising from the alleged defective Stairway:
“12. I verily believe that the Other Material Breaches (or at least most of them) are simply unanswerable by [D]. Whilst [D] has attempted to address Paragraph 6(1), (3), (5) and (10) of the SoC in Wong Aff ……, these breaches relate only to the physical state of the premises, which is merely one aspect of [P’s] case against [D] . For instance, the Other Material Breaches included, inter alia , the failure to safeguard, prevent injury to, and/or escort to safety, the patrons or visitors of the Restaurant including the Deceased, who would “reasonably be expected to have consumed alcohol at the Restaurant ” (see [Particular 6(17)] of [SoC]). These breaches are particularly pertinent in the present case, since it is not in dispute that the Deceased had consumed alcohol at the Restaurant, and was leaving the Restaurant via its stairway at the time of the fatal accident (see Wong Aff, Paragraphs 6, 13(2), 27 and 30).
13. I would refer this Honourable Court to Other Material Breaches as pleaded in Paragraph 6 of the [SoC]. These Other Material Breaches included [D’s] breaches of duty in failing to maintain and provide a safe environment for the visitors of [D’s] restaurant (the “Restaurant ”), which encompassed [D’s] failures to take sufficient precautionary and/or supervisory measures for the visitors (including to those who had consumed alcohol provided at the Restaurant) . [D’s] material breaches extended well beyond those in relation to the physical state of the premise , but these heads of claim were not addressed at all by [D] in Wong Aff.” (my emphasis)
26. Chow said the basis of P’s claim as to the allegedly defective Stairway was also found in the pre -action letter dated 19 July 2018 by P’s former solicitors (“19/7/18 Letter ”), which set out the particulars of D’s failures in relation to the “Stairway”, “trap” or “environment” (see sub- paragraphs 4(A)-(Q) of the 19/7/18 Letter) that were almost identical to the pleas in the SoC’s Particulars (see paragraph 6 above) except for the following:
“R. failing to safeguard, or prevent to, or escort [D’s] patrons including the Deceased who might be intoxicated in light of the potential danger arising from [the Stairway];
S. continued to serve alcohol to the Deceased who might be intoxicated in breach of the Liquor Licence; and
T. failing to detect that the Deceased might be intoxicated.”
In view of the close resemblance between sub-paragraphs 4(A)-(Q) in the 19/7/18 Letter and the Particulars in the SoC, Chow claimed P appeared to have made a conscious decision (a) to omit the word “intoxicated” and to plead instead that the Deceased “would reasonably be expected to have consumed alcohol ” (my emphasis), (b) to refrain from pleading that D ought to have known that the Deceased “might have been intoxicated” in “failing to detect” the potential danger arising from the Stairway, and (c) not to make any allegation on the basis of “continuing to serve alcohol to any person who is drunk”.
27. Chow said in light of P’s currently pleaded case as explained above, D in its Defence pleaded that the Accident did not occur by reason of the physical state of the Stairway (see paragraphs 8-11, 12(a) and 14 above), and responded to some of the averments in the SoC (see paragraphs 3 and 12(b) above). Further, Chow claimed that since P’s pleaded case was premised on a narrow compass of alleged defective Stairway, D filed the Split Trial Summons on 11 March 2020 in the belief that it had reasonable prospect of successful defence on liability. Chow said P was expected/required to conduct the present litigation in a responsible manner, so insofar as he intended to allege the Deceased was “drunk” or “intoxicated” in order to give rise to a duty of care owed to the Deceased (which D denied), it was incumbent upon P to properly ascertain the facts and to plead his case with full particulars in a timeous fashion.
28. Proposal for amendment Chow claimed the “belated” proposal to amend by adding the proposed Particular 6(17A) came only after D filed the Split Trial Summons. On 26 May 2020 P filed the Lee 1st Aff to oppose the Split Trial Summons alleging inter alia P was likely to succeed on the issue of liability (see paragraph 14 of the Lee 1st Aff), and on the very same day P sought D’s consent to file the ASoC and asked D to reply within 3 days.
29. Chow claimed the matters in (a)-(d) below were unclear on the face of the proposed Particular 16(17A), and D would also rely on the Liquor Licence (issued to the manager of the Restaurant on 3 August 2015)[1] and the Guidelines on Assessing Liquor Licence Applications (issued by the Licensing Board on 23 June 2015) (“Licence Guidelines ”):[2]
30. By a letter dated 5 June 2020, DSols sought further particulars in respect of the proposed Particular 6(17A) (“5/6/20 Letter ”):
“We are unable to agree to your proposed amendments as [D] is unable to understand [P’s] pleaded case in relation to the abovementioned paragraph.
In order for [D] to properly prepare an Amended Defence in response, we should be grateful if [P] can expressly and unequivocally set out in his proposed [ASoC]:
1. Whether it is [P’s] case that the Deceased was intoxicated at the time of the accident?
2. If so, please provide full particulars of facts in support of [P’s] case that [D] knew the Deceased was intoxicated at the time of serving him alcohol (O.18, r.12(4) refers).”
31. Chow claimed that whilst D sought such further particulars, the deadline for D to file affirmation in reply to the Lee 1st Aff fell on 24 June 2020, but despite exchange of the following inter partes solicitors’ correspondence and absent courtesy of any constructive reply/ notice for 40 days, P filed the Amendment Summons on 15 July 2020:
st Aff;
32. Particular 6(17A) DSols wrote to PSols on 20 July 2020 stating the following:
RHC ”);
st Aff to contest the Split Trial Summons;
33. On 21 July 2020, PSols replied to D’s request for particulars of the proposed Particular 6(17) inter alia as follows (“21/7/20 Letter ”):
“1. We consider that there is no basis for [D] to oppose [P’s] [application to amend the [SoC]. We regard your opposition, like your [Split Trial Summons], is merely a delaying tactic. We further take the view that [P’s] proposed amendment to [Particular 6(17A)] is self-explanatory and sufficiently particularized, and [P] is not obliged to reply to [D’s] purported inquiries for particulars as set out in page 2 of your letter.
2. In order to avoid unnecessary argument, we set out the following brief responses, which should put to rest any purported inquiries on [D’s] part:
(1) It is not in dispute between the parties that the Deceased “would reasonably be expected to have consumed alcohol at the Restaurant”: see [Particular 6(17)] of the [SoC] and paragraph 12 of the Defence.
(2) It is [P’s] case that the duty was imposed on [D] (1) not to allow any person to become drunk; and (2) not to supply liquor to any person who is drunk. Therefore, whether the Deceased was in fact drunk is immaterial given [D] continued to serve a substantial quantity of alcohol to him as evidenced by the relevant bill as disclosed in item 8 of [D’s] List of Documents.
(3) In other words, [P’s] pleaded case in [Particular 6(17A)] does not depend on the “degree of drunkenness” at the material time . It follows that [D’s] requested particulars are neither relevant nor necessary.
(4) Incidentally, as [D] was under a duty to comply with the conditions imposed under [D’s Liquor Licence], [D] was therefore under a positive duty to observe whether the deceased was drunk or not . We take this opportunity to also enquire with you whether (a) [D] did take notice of whether the Deceased was drunk or not at the material time; and (b) if so, the Deceased was drunk or not? Please reply to us to the above within the next 14 days
34. Chow said that the burden of proof lied squarely on P, and claimed that quite apart from legal arguments as to the non-existence of any duty of care as a matter of law, the Deceased’s “drunkenness” or “intoxication”, if so alleged and proven, would be directly relevant to the issue of causation. Further, the assertion under paragraph 2(2) of the 21/7/20 Letter that “whether the Deceased was in fact drunk is immaterial” (see paragraph 33 above) appeared to be inconsistent with the following assertions in the Lee 1st Aff:
“34. Fourth , I believe [D] has also understated the complexity of the liability issues, by mischaracterising the liability trial as a mere “slip-and-fall case ”. In particular, whilst it is not in dispute that the Deceased had consumed alcohol prior to the accident, it is very much in dispute as to the effect of such alcohol on the Deceased at the relevant time . In particular, [D] expressly pleaded that the Deceased had (i) “[f]ailed to appreciate and/or guard against the ordinary risk of injury or danger attendant upon his voluntary consumption of alcohol ” (at Paragraph 15(h) of Defence), and (ii) “[f]ailed to avoid or prevent the Accident when he knew (or ought reasonably to have known or anticipated) the ordinary risk of injury or danger attendant upon his voluntary consumption of alcohol and/or the effect thereof commensurate with his tolerance thereof ” (at Paragraph 15(i) of Defence). These matters are expected to be hotly disputed, and in particular (i) the effects of alcohol on the Deceased at the time, and/or (ii) the safety of the physical state/design of the Stairway in light of his alcohol consumption, would likely require significant expert testimony .” (my emphasis)
35. Impact on the Split Trial Summons Chow claimed that as the allegations under the proposed Particular 6(17A) and the reference to the Licence Conditions would not give rise to a “cause of action”, DSols wrote further to PSols as follows:
36. By a letter dated 4 August 2020, PSols proposed for the Split Trial Summons and the Amendment Summons to be heard together since P did “not see any reason for further delaying the disposal of the Split Trial Summons”, and P considered the dispute over the proposed Particular 6(17A) “cannot be a valid ground for staying the Split Trial Summons”. By their reply letter dated 5 August 2020, DSols claimed that having the Amendment Summons and Split Trial Summons heard together would cause substantial prejudice to D in the latter application. But PSols in their letter dated 5 August 2020 simply stated that (a) both applications were “simple and straightforward”, (b) the proposed Particular 6(17A) was only a “single sub-paragraph”, and (c) D could address both applications by way of further affirmation. On 6 August 2020, Master Grace Chan suggested the parties should address their disagreements to the PI Judge.
37. I pause to note that subsequent to the Chow Aff, DSols wrote to this court on 28 September and 31 December 2020, and PSols wrote to this court on 30 December 2020. By then Master Kot had granted the Master Order, and P had lodged the Appeal. On 11 January 2021, this court by written directions ordered the Appeal to be heard first (with 1 hour reserved) and the Split Trial Summons be restored for further case management at the Appeal, so upon disposal of the Appeal this court would be able to give case management directions for further conduct/hearing of the Split Trial Summons. On 22 January 2021, the parties jointly wrote to court to propose formal case management directions for such purpose. On 2 February 2021, this court granted the 2/2/21 Order (see paragraph 20 above).
38. Conclusion Chow claimed that by making the proposed amendments to the SoC on the same date as filing the Lee 1st Aff to oppose the Split Trial Summons, P in fact attempted to embellish his pleaded case, which he well knew was hitherto only founded on the “state of the premises” (albeit having regard to the fact that such premises were used as a restaurant where alcohol might be consumed), and had nothing to do with the “drunkenness” or “intoxication” of the Deceased. Thus, Chow said it was a conscious/deliberate decision by P not to refer to the “drunkenness” or “intoxication” of the Deceased in the SoC, and no explanation was proffered for P’s “belated” change of stance by way of the proposed amendments. Chow said the reasonable conclusion to draw from the above context was that the proposed Particular 6(17A) was another tactical decision that was geared towards resisting the Split Trial Summons.
39. In any event, Chow claimed the proposed Particular 6(17A) was unmeritorious/useless as it disclosed no reasonable “cause of action” as a matter of law, and the proposed allegation therein was so wanting in particulars that it was embarrassing and should be disallowed. Further or alternatively, it was said that had P pleaded the proposed Particular 6(17A) with full particulars from the outset, D would have fully addressed such “cause of action” (which D denied) in the Wong Aff.
III. P’s AFFIRMATION EVIDENCE
40. Overview The Lee 2nd Aff complained the Chow Aff substantially consisted of arguments rather than facts which was improper for the purpose of affirmation evidence, and found it surprising D saw fit to put forward the 15-page Chow Aff to oppose only 1 sub-paragraph in the Draft ASoC. The Lee 2nd Aff reminded it was well-established that the general approach of the courts was to grant leave to amend pleadings unless it could be shown the proposed amendment was “bound to fail”. But as the proposed Particular 6(17A) was plainly not “bound to fail”, P should have been given leave to amend the SoC, including adding the proposed Particular 6(17A). Further, the Lee 2nd Aff noted the present action had not progressed beyond the stage of pleadings and discovery, so it was wrong for D to suggest the Amendment Summons was “belated”. Rather, the Lee 2nd Aff claimed the Amendment Summons was filed at an early stage, which reinforced the view that D would suffer no prejudice from the proposed amendments.
41. Particular 6(17A) Lee believed the primary argument in the Chow Aff, ie the amendments in the proposed Particular 6(17A) “does not give rise to a cause of action in civil law”, could be disposed of from a plain reading of the proposed Particular 6(17A).
42. Lee said, properly understood, the causes of action P relied on were set out in the preamble of paragraph 6 of the SoC, which included the tort of negligence and other breaches of duties, so Particular 6(17A) (proposed to be added as one of the Particulars) was not any free-standing “cause of action in civil law” but was merely one of the “PARTICULARS OF NEGLIGENCE AND/OR BREACH OF STATUTORY AND/OR OTHER DUTIES”. For P’s claim premised on the tort of negligence, Lee understood the courts would take a holistic approach in determining whether D owed duty of care to P, which would require the court to assess all circumstances of the case. For P’s claim premised on occupiers’ liability, D was under a common duty of care pursuant to section 3 of the OLO, ie to take “such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe” in using the premises.
43. Thus, Lee claimed that the proposed Particular 6(17A) contained particulars of P’s presently pleaded “causes of action” in the preamble of paragraph 6 of the Draft ASoC, which were plainly relevant to factual determinations that the court would have to make at trial, so there was no reason to shut out such proposed amendment especially at this early stage of the proceedings. Since D did/could not suggest P’s causes of action against D in negligence and/or occupiers’ duty were liable to be struck out, Lee could not see how the additional particular by way of the proposed Particular 6(17A) was “bound to fail”, which was what D had to show in opposing the proposed amendment.
44. Lee further highlighted the proposed Particular 6(17A)’s reference to the Licence Conditions as part of the particulars of D’s negligence and/or breach of duties, and claimed it was indisputable that at all material times D had full knowledge of (and was obliged to comply with) the Licence Conditions, which accordingly were part of the material factual circumstances that the court would have to take into account in its holistic assessment of the pleaded duties owed/breached by D to the Deceased.
45. Lee believed the suggestion that the proposed Particular 6(17A) was “embarrassing for want of particulars” was a complete non-starter. In any case, even if D felt it was entitled to further or better particulars (which P denied), Lee believed this was not a basis for objecting to the proposed amendments, which was precisely the point Master Grace Chan made at the call-over hearing of the Amendment Summons on 6 August 2020.
46. Lee believed the proposed Particular 6(17A) should be allowed to enable the real issues/disputes between the parties to be fairly adjudicated upon by the court at trial.
47. Specific responses to the Chow Aff Lee claimed D made a number of scattered-gun arguments in Chow Aff which he would address in the Lee 2nd Aff.
48. As for the suggestion in the Chow Aff that the Amendment Summons came only after the Split Trial Summons so it was a “belated” amendment (see paragraphs 22, 28 and 38 above), Lee reiterated that the Amendment Summons was not a late application in the context of the present proceedings which had not progressed beyond the pleadings stage. Lee said P was advised by counsel to seek leave to amend the SoC, and in any case the Split Trial Summons had yet to be argued and D had not acceded to P’s proposal for a substantive hearing to be fixed for the Split Trial Summons. Lee could not see how D could be said to be prejudiced by the timing of the Amendment Summons at all, and noted D did not suggest it was a “late” application.
49. Lee denied the Amendment Summons was a pre -meditated/ tactical decision by P not to refer to the “drunkenness” or “intoxication” of the Deceased in the SoC (see paragraphs 23 and 38 above), and claimed there was no basis for such assertion. If D argued that P was seeking to change his case, such argument was both (a) irrelevant to the merits of the Amendment Summons, and (b) incorrect as a matter of fact when Particular 6(17) of the SoC already expressly pleaded the Deceased would “reasonably be expected to have consumed alcohol at the Restaurant”. Lee could not see how the additional particular by way of the proposed Particular 6(17A) would be inconsistent with P’s original pleaded case.
50. Lee said the argument in the Chow Aff that the proposed Particular 6(17A) was “inherently inconsistent” with P’s stance that “whether the Deceased was in fact drunk is immaterial” (see paragraphs 24 and 34 above) was both confusing and wrong in that:
was intoxicated at the time of the accident” (seethe 5/6/20 Letter by DSols – see paragraph 30 above).
inter alia “[no] person shall be allowed to become drunk on the premises ……” (my emphasis), which reinforced that at the material time D had a duty towards its visitors even before they became drunk. Lee said that whilst the precise scope of D’s duty to the Deceased was likely to be hotly contested at trial, this would not be a basis for precluding P’s proposed amendments.
51. Lee claimed the Chow Aff appeared to have misunderstood the proposed Particular 6(17A), which was not a plea that the Deceased was drunk or intoxicated, and so P was not required to plead to D’s “knowledge” as to the same (see paragraph 29(d) above). But Lee said D could not plausibly deny it had knowledge the Deceased “might have been intoxicated”:
[3] Further, under Condition 2 (see paragraph 16 above), D was under a positive duty to observe (and hence acquaint itself with knowledge of) whether the Deceased was drunk or not.
[4]
[5] and the receipt for 4 September 2015 showed D had served 6 pints of Carlsberg beer and 8 glasses of red wine between the Deceased and Hau.
52. The Chow Aff alleged all of P’s original causes of action lied in the physical state of the “stairs and steps” (see paragraphs 25-27 above), but Lee claimed this was irrelevant to the Amendment Summons and was also plainly wrong. Lee noted Particular 6(17) of the SoC expressly pleaded D had breached his duties towards the Deceased who would “reasonably be expected to have consumed alcohol at the Restaurant”, which duties were not confined to the “physical state” of the premises, but expressly included, eg, D’s duty to “escort [the Deceased] to safety” in view of his expected consumption of alcohol pleaded under Particular 6(17).
53. So Lee claimed it was also wrong for the Chow Aff to assert P’s original pleaded case was based on a “narrow compass of the alleged defective stairway” upon which D made its split trial application (see paragraph 27 above). Lee claimed that, to the contrary, even D’s Defence was not confined to this alleged “narrow compass”, eg D’s Defence positively pleaded the Deceased “was a mature person in control of his own faculties and reason”, so D allegedly did not owe a duty to the Deceased “by the mere fact that he would reasonably be expected to have consumed alcohol at the Restaurant” (see paragraph 12(b) above).
54. Lee next claimed that the forensic exercise of comparing the SoC with P’s 19/7/18 Letter (see paragraph 26 above) was plainly irrelevant to the Amendment Summons.
55. The Chow Aff next referred at length to various solicitors’ correspondence (see paragraphs 31-32 and 35-36 above), but Lee could not see the relevance or purpose of doing so. Lee invited the court to review such correspondence in full, and would only note D appeared to blame P for its own failure to file its affirmation in reply for the Split Trial Summons by the deadline of 24 June 2020 under my order dated 16 April 2020. Lee claimed D was obliged to comply with such court order, and it was no excuse for D to withhold filing of such affirmation evidence simply because it considered it had not received favourable response from P by correspondence (still less relating to an entirely separate application).
56. The Chow Aff then made a legal point as to the “non-existence of any duty of care as a matter of law” (see paragraphs 34 and 39 above). Lee reiterated the courts would take a holistic approach as to the existence of a defendant’s duty of care, and here the proposed Particular 6(17A) contained particulars relevant to the pleaded duties owed by D to the Deceased, in particular for the causes of action for breach of duty in negligence and occupiers’ liability.
57. Lee contended the observation in the Chow Aff that “the Deceased’s “drunkenness” or “intoxication”, if so alleged and proven, is directly relevant to the issue of causation” (see paragraph 34 above) appeared to be irrelevant, and he reiterated P was not required to contend the Deceased was drunk or intoxicated by his pleas in the proposed Particular 6(17A).
58. Lee disagreed with the further allegation in the Chow Aff that P’s contention that “whether the Deceased was in fact drunk is immaterial” in the 21/7/20 Letter appeared to be inconsistent with what Lee said in paragraph 34 of the Lee 1st Aff (see paragraph 34 above), which Lee said was plainly incorrect:
st Aff did not contend the Deceased was drunk.
st Aff observed that “the effects of alcohol on the Deceased” was relevant to the defence raised by D, more specifically as to paragraph 15(h) and (i) of the Defence.
was intoxicated at the time of the accident”, so Lee could not see the purpose of even comparing the 2 statements in the first place.
59. The Chow Aff devoted a section titled “Impact on Split Trial Application” (see paragraphs 35-36 above), but Lee did not understand Chow’s argument that the proposed Particular 6(17A) was yet another tactical decision that was geared towards resisting the Split Trial Summons (see paragraph 38 above). “Is it [D’s] stance that if the present amendment is allowed, they would withdraw the split trial application? But even if the proposed amendment has any “impact ” on the split trial application, this has no bearing on the present amendment application. This is instead a matter for [D] to raise and address for the split trial application”. Lee claimed if D took the view that the proposed Particular 6(17A) would “impact” on the merits of the Split Trial Summons, then D must also accept the proposed Particular 6(17A) was relevant to D’s prospects of success in the present action, which all the more demonstrated the proposed amendment should be allowed for the real issues/disputes between the parties to be fairly adjudicated at trial.
60. Lee disagreed with the allegation in the Chow Aff that P had made a “change of stance” from the existing SoC (see paragraph 38 above), and claimed the proposed Particular 6(17A) was entirely consistent with the remainder of the SoC.
61. The Chow Aff argued that if P had pleaded Particular 6(17A) with full particulars from the outset, D would have fully addressed such cause of action (which was denied) in the Wong Aff (see paragraph 39 above). But Lee said this was a bad point as D had/has ample opportunity to address the proposed Particular 6(17A) by affirmation:
62. Conclusion In view of the above, Lee urged the court to grant leave for the proposed Particular 6(17A) in the Draft ASoC.
IV. MASTER REASONS
63. Before I turn to the Master Reasons, I refer to Mr Leung SC’s summary of P’s case at the Master Hearing:
not drunk, but drunkenness was an imprecise concept such that P could not actually confirm this;
64. The Master Reasons noted the Particulars in paragraph 6(1)-(16) of the SoC gave particulars of negligence as to the construction, design and setting of the Stairway and D’s failure to warn visitors of the Restaurant of the same, and in particular Particular 6(17) alleged D failed to safeguard, prevent injury to and/or escort to safety visitors of the Restaurant (including the Deceased) who would reasonably be expected to have consumed alcohol at the Restaurant, in light of the potential danger arising from the Stairway.
65. Master Kot disagreed with P’s submissions that the proposed Particular 6(17A) would allow the real issues/disputes between the parties to be fairly and properly determined. P did not plead the Deceased was drunk, and when pressed upon P was only prepared to concede the Deceased did consume some alcohol at the Restaurant. Since it was not P’s case that the Deceased got drunk/intoxicated due to D’s excessive supply of alcohol and thereby slipped and fell on the Stairway, Master Kot failed to see how continued serving of alcohol as alleged in the proposed Particular 6(17A) was relevant to P’s case and/or was necessary to be added to the SoC by amendment for the purpose of disposing fairly of the cause or matter.
66. Although P contended a breach of the Licence Conditions might be evidence of D failing to conform to the requisite standard of care in the circumstances such that the proposed Particular 6(17A) was not itself a new “cause of action” based on breach of the Liquor Licence, Master Kot did not agree any duty of care would arise before someone got drunk. As there was no evidence the Deceased was drunk, Master Kot failed to see (a) why D should be blamed for continued serving of alcohol to the Deceased and/or (b) how P could say the Deceased had been in breach of Condition 2. Master Kot found that in the absence of such breach, P could not rely on the proposed Particular 6(17A) to show D had been negligent, so the allegations in the proposed Particular 6(17A) were bound to fail.
67. Although P insisted that the plea in the proposed Particular 6(17A) should be considered by the trial judge when all the evidence would be before the court, Master Kot could not see how P could adduce such evidence at trial without pleading at this stage whether the Deceased was drunk or not, and it would be unfair for D’s preparation of its defence to have a wild guess as to P’s case on the condition of the Deceased.
68. Master Kot further agreed with D there was no general duty of care by D in the provision of alcohol to customers except under exceptional cases where the defendant had knowledge of the injured person’s intoxication or condition. Such conclusion was endorsed by the Canadian case of Jordan House Limited v Menow[6] that P heavily relied on. In any event, Master Kot distinguished Jordan House Limited on the basis that the defendant in that case knew the plaintiff was intoxicated, and here P never pleaded the Deceased was intoxicated or D knew such fact. Thus, Master Kot failed to see how Jordan House Limited would be of assistance.
69. P’s argument that the fact the proposed Particular 6(17A) averred D knew the Deceased might have been intoxicated would not obviate the requirement to show knowledge of the Deceased’s intoxication as well as some foreseeable harm to the Deceased, but there was neither evidence/plea of intoxication of the Deceased nor any harm foreseeable by D.
70. P also argued that whether a duty of care would arise under the proposed Particular 6(17A) involved emergent legal principles that should be allowed to go for trial. But taking P’s case to the highest, Master Kot considered that, in the absence of any plea of intoxication of the Deceased, there was no factual basis to support any breach of the Liquor Licence as alleged in the proposed Particular 6(17A), so there was no need for emergent legal principles to be considered.
71. Having considered the parties’ submissions, Master Kot granted leave for P to amend the SoC only for the Agreed Amendments in paragraph 4 of the Draft ASoC, and disallowed the amendment in the proposed Particular 6(17A).
V. LEGAL PRINCIPLES
72. Appeal against master’s decision I have set out the relevant principles in paragraph 51 of my judgment in Ng Ting Kwok v Ng On Kwok & anor ,[7] which I adopt but do not repeat here.
73. Pleadings and particulars It is perhaps useful to reiterate the nature of a statement of claim (as a pleading) and the purpose of particulars that I have summarised in Chan Ying Wai v Secretary for Justice for and on behalf of Commissioner of Correctional Services as follows:[8]
“34. Statement of claim The central purpose of the statement of claim is to formulate the cause(s) of action against the defendant. A statement of claim must state (a) in summary form the material facts on which the plaintiff relies for his claim,[9] (b) specifically the relief(s) or remedy(ies) which he claims[10] and (c) the legal connection/nexus between the facts relied on and relief/remedy(ies) claimed to enable the defendant to know the case he has to meet.[11]
35. The pleaded facts must be “material”, ie any fact which the party is entitled to prove at trial even though “it may relate only to the quantum of damages or the type of relief claimed”.[12] “Material” means necessary for the purpose of formulating a complete cause of action; and if any one material statement is omitted, the statement of claim is bad. ……
36. Particulars Order 18 rule 12(1) of the RHC provides that “…… every pleading must contain the necessary particulars of any claim …… or other matter pleaded ……” Particulars are the details of the case set up, and form part of the pleadings.
37. The function of particulars is as follows: (a) to inform the other side of the nature of the case that he has to meet as distinguished from the mode in which the case is to be proved, (b) to prevent the other side from being taken by surprise at the trial, (c) to enable the other side to know with what evidence he ought to be prepared and to prepare for trial, (d) to limit the generality of the pleadings, the claim and the evidence, (e) to limit and define the issues to be tried, and as to which discovery is required, and (f) to tie the hands of the party so that he cannot without leave go into any matters not included. In a nutshell, particulars carry into operation the principle that the litigation, particularly the trial, should be conducted fairly, openly and without surprises, and incidentally to save costs.[13] ”
74. Pleading knowledge Order 18 rule 12(4) of the RHC provides as follows:
“Where a party alleges as a fact that a person had knowledge or notice of some fact, matter or thing, then, …… the Court may, on such terms as it thinks just, order that party to serve on any other party -
(a) where he alleges knowledge, particulars of the facts on which he relies, and
(b) where he alleges notice, particulars of the notice.”
75. “If knowledge or the absence of it is material, it should be expressly alleged, notwithstanding the words in [Order 18 rule 12(1)(b) of the RHC]. …… Where knowledge is pleaded as a fact, particulars of the facts on which a party relies in support of such allegation may, but need not, be contained in the pleading itself, but such particulars should be given on request or the court may order them to be given [see Order 18 rule 12(4) of the RHC]. The usual form would be, particulars of specific facts, documents or overt acts on which a party intends to rely in support of the allegation that the other party had knowledge of some fact matter or thing ……” (my emphasis).[14]
76. Amendment of pleadings I have also set out the relevant principles in paragraphs 37-41 of my judgment in Chen Yusheng v Wo Ming Engineering Limited & anor ,[15] which I adopt but do not repeat here.
77. However, in view of the nature of counsel’s submissions at the Appeal Hearing, it is perhaps useful to highlight what Ng J said in Hsu Ming Chi v Lam Shu Chit & ors as follows:[16]
“14. Leave is readily granted to amend before trial unless it can be shown that the new claim based on the proposed amendment is bound to fail. While the court is entitled to have regard to the merits of the case, it should only do so when the merits are readily apparent, and are so apparent as not to require prolonged investigation: Natamon Protpakorn v Citibank NA supra at para. 25 (per Cheung JA).[17]
15. If the proposed amendments are bound to fail, no leave to amend should be granted. In this regard, the court will take the applicant’s proposed pleaded case to the highest: Bank of China v Leigh Hardwick unrep., HCA 1110 of 2006, 28 August 2013, per Anthony Chan J at para. 2.
16. Absent any real prejudice, an application for amendment, albeit late, must be decided upon the general principle that a court of law seeks to adjudicate on the real issues and disputes between the parties and, if possible, technical and procedural rules should not stand in the way of allowing the parties to raise their real claims or defences before the court for adjudication: VSC Building Products Co Ltd v Kono Insurance Ltd., unrep. HCA 947/2005, 9 September 2009, per A Cheung J (as he then was) at [22].
17. Where prejudice is claimed, the burden is on the party opposing the amendment to show prejudice. There is no injustice to the opposing party if he can be compensated by appropriate orders as to costs: Re Playmates Investments Ltd supra at 582H, 584C (Le Pichon J as she then was).
18. Lastly, in giving effect to the underlying objectives of the [RHC], including those concerning amendments, the court shall always recognize that the primary aim in exercising the powers of the court is to “secure the just resolution of disputes in accordance with the substantive rights of the parties”: RHC O 1A r 2(2).
……
32. As the authorities show, if the objection is put on the basis that the plea is bound to fail, the court will take the applicant’s proposed pleaded case to the highest. As submitted by Mr Neoh SC, in the present case, it means the Defendants would have to show that the plea is incapable of belief by any trial judge. But the viability of this plea …… can only be assessed on “the totality of the evidence”, particularly, in the light of the credibility of [2 witnesses]. This is clearly a matter which calls for viva voce evidence at trial when the testimony of the witnesses can be tested. It is difficult to see how, at the interlocutory stage, the court can resolve the matter in favour of the Defendants and rule that the plea …… is bound to fail.”
78. This has been recently and similarly summarised by Au-Yeung J in Shell Hong Kong Limited v Meyer Aluminium Limited as follows:[18]
“95. Amendments are allowed “for the purpose of determining the real question in controversy between the parties to any proceedings or of correcting any defect or error in any proceedings”: Hong Kong Civil Procedure 2020 , Vol 1, §20/8/6.
96. Leave is readily granted to amend before the trial unless it can be demonstrated that the new claim based on the proposed amendment is bound to fail. While the Court is entitled to have regard to the merits of the case, it should only do so when the merits are readily apparent, and are so apparent as not to require prolonged investigation: Natamon Protpakorn v Citibank [2009] 1 HKLRD 455, at §§25 & 26, CA. In that case, the original statement of claim had been struck out. The CA held that it was a drastic measure to drive the plaintiff from the judgment seat even before it had the chance to put forward its case at the trial. This could only be done in plain cases. Whilst this principle was usually stated in the context of striking out applications, it was held to be equally appropriate where leave to amend was objected to in that case.”
On appeal, the Court of Appeal upheld the decision of the Deputy President[19] and endorsed the above approach (paragraph 47), but added as follows:
“53. The generosity has to be balanced against the unfairness and prejudice that might occasion to the other side if they were required to defend a competition claim without knowing what case they have to meet and what issues their experts need to address: see Sel-Imperial Ltd v The British Standards Institution [2010] EWHC 854 at paragraphs 17 and 18; Swain-Mason v Mills & Reeve LLP [2011] 1 WLR 2735 at paragraphs 72 and 73. As noted by Deputy President at paragraph 97 of the Reasons for Decision of 29 May 2020, the principle discussed in Perak Pioneer Ltd v Carrian Holdings Ltd CACV 59/1985, 13 June 1985, are apposite in the present circumstances. As illustrated by the facts of that case, such principle is not confined to situations where amendments were only applied for at trials.
54. …… the above guidance should not be applied inflexibly (after all it is a matter of discretion to be exercised in light of all the circumstances of the case) ……”
79. The court also has to bear in mind that Order 20 rule 8(1A) of the RHC provides that the court shall not order a pleading to be amended “for the purpose of determining the real question in controversy between the parties to any proceedings, or of correcting any defect or error in any proceedings” (see Order 20 rule 8(1) of the RHC) “unless it is of the opinion that the order is necessary either for disposing fairly of the cause or matter or for saving costs”. In this regard, “[the] court will always look at materiality of the proposed amendment …… An inconsistent or useless amendment will not be allowed …… nor an addition of some irrelevant matters or an amendment which fails to give the necessary material facts or particulars …… nor an addition of a claim which the plaintiff had precluded himself from raising ……”[20]
80. As to the degree of particularity required to be provided before any proposed amendment to pleadings is allowed, Mr Leung SC drew my attention to the observations of Fuad JA in Perak Pioneer Limited v Carrian Holdings Limited (in Liquidation) as follows:[21]
“…… An applicant, who seeks to amend a petition or other pleading is seeking an indulgence and has to comply with the relevant Rules. The opposing party is entitled to object to the amendments on principles laid down by practice and the R.S.C. It was incumbent on the judge to decide, once he did not adjourn the matter, each issue raised as to the propriety of the amendments, on its merits.
As regards particulars, in my view, it is no answer to an objection that a proposed amendment lacks particulars, to say that particulars can later be given. Of course, if a pleading lacks particulars, particulars can be asked for in the usual way and ordered by the Court if necessary, but where an amendment is applied for it would be an unusual case where the Court would consider it appropriate to allow an amendment to be made which lacks particularity, and might cause embarrassment.”
81. This and other authorities were carefully considered by DHCJ Keith Yeung SC (as he then was) in Vigers Hong Kong Limited (in Creditors’ Voluntary Liquidation) v Michael Andrew Barclay Binney & ors , and he distilled the following principles in a nuanced post -CJR approach to the question of particularity for the purpose of amendment of pleadings:[22]
“28. From the above authorities, the following considerations can be distilled:
(a) When an application for amendment is opposed on the basis of lack of particularity, the Court, when deciding whether the application may be granted in the exercise of its discretion, should take into account all relevant facts and circumstances which include in particular the underlying objectives, the degree of particularity that has been provided, whether the point sought to be raised is a new one, whether embarrassment may be caused, and the stage at which the application is made;
(b) The required degree of particularity is determined by the need to provide a fair and sufficient indication of the case that is being brought and that the opposing party has to meet;
(c) If that degree of particularity is not met, the application may be refused, irrespective of the stage of proceedings at which the application is made. It is not an answer in this context to say that further and better particulars may later be sought;
(d) But if that degree of particularity has been met, the fact that there may be room for a post-amendment request for further and better particulars is not in itself a ground for exercising the discretion against the application;
(e) Any lack of particularity which is likely to cause embarrassment may also lead to refusal of the application;
(f) When the application is made late, it is of particular importance that the proposed amendment be clearly drawn and with full particulars to enable the court and the other parties to understand the nature of the case that the applicant wishes to make. The underlying objectives, the constraints of time, and the high risk of disruption of the orderly conduct of trials by the courts and of prejudice to the other party must demand strongly that that be done.”
82. Negligence Mr Wong SC reminded this court of the general principles on the tort of negligence. The common law duty of care that gives rise to a claim in damages is to be determined by reference to the tests adopted by the House of Lords in Caparo Industries Plc v Dickman & ors ,[23] and the leading local authority is Luen Hing Fat Coating & Finishing Factory Ltd v Waan Chuen Ming ,[24] which essentially adopted the approach in Caparo Industries Plc as explained by Sir Donald Nicholls VC in the English Court of Appeal in White & anor v Jones & anor .[25] I have set out such general principles in paragraphs 48-71 of my judgment in Hon Kwan v Zara Asia Limited ,[26] which I adopt but do not repeat here.
83. However, it is useful to highlight Bokhary PJ’s observations on the relevant elements of the duty of care under the tort of negligence as explained in Luen Hing Fat Coating & Finishing Factory Ltd (pages 32 and 36) as follows:
“30. Ultimately it is necessary to stand back and take 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. In Marc Rich & Co v Bishop Rock Ltd [1996] 1 AC 211, 235E-G Lord Steyn endorsed the statement in the Court of Appeal by Saville LJ (as Lord Saville of Newdigate then was) that “these three matters overlap with each other and are really facets of the same thing”. The relationship between proximity and what is just and reasonable was addressed in the Supreme Court of Canada by McLachlin J (as McLachlin CJ then was) in Canadian National Railway v Norsk Pacific Steamship Co [1992] 1 SCR 1021. At p.1152 she said that “the concept of proximity may be seen as an umbrella, covering a number of disparate circumstances in which the relationship between the parties is so close that it is just and reasonable to permit recovery in tort.”
……
42. Still on the question of fairness, justice and reasonableness, it has to be borne in mind that the danger involved was to life and limb. Without making light of purely economic loss, it is fair to say that the fact of personal safety being at stake is always significant. Thus in Cathay Pacific Airways Ltd v Wong Sau Lai (2006) 9 HKCFAR 371 the Court observed (p.376F) that while the duty of care owed by an employer to his employees was not absolute, the standard of care demanded is naturally high since personal safety is at stake. Just as that was a factor in that context, so is it a factor in the present context. In Perret v. Collins [1998] 2 Lloyd’s Rep 255, 275, col.1, Buxton LJ said that “when one turns to the judgmental issues of justice, fairness and reasonableness the importance of the fact that what is put at risk is the plaintiff’s body, and not just his goods, is … deeply embedded in the law of negligence”. Indeed it is, and rightly so. This is an area in which legal policy is involved. And there can be no doubt that the policy considerations in favour of personal safety are naturally very powerful.”
84. I also keep in mind the distinct questions of (a) the existence (as discussed above) and the scope (which depends on the circumstances of the relationship between the parties) of a duty of care and (b) the relevant standard of care (which depends on the circumstances of the case). “Both duty and standard turn on reasonableness but in the case of duty, the question is whether the nature of the relationship reasonably requires that care be taken; whilst in the case of standard, the question is what conduct is reasonably required in the particular circumstances” (my emphasis).[27] Further, “[breach] of a code of practice or legislation may be evidence of the defendant not conforming to the required standard of care. Similarly, observance of such codes may be evidence of following the standard of care required in the circumstances …… Standards set down by legislation may also indicate the level at which the defendant ought to act ……”[28]
VI. MISCELLANEOUS MATTERS
(a) D’s stance
85. Deliberate avoidance of pleading “intoxication” D claimed P “deliberately” avoided pleading “drunkenness” and/or “intoxication”, so the Amendment Summons to amend the SoC to add the proposed Particular 6(17A) was a “change of tack”. D complained P failed to give explanation for such “belated” “change of tack”, which failure should weigh with the court in refusing the proposed amendment.
86. Mr Leung SC submitted that in P’s pre -action letter (ie the 19/7/18 Letter) 20 allegations of D’s fault were particularised, including paragraph 4(R)-(T) that alleged the Deceased “might be intoxicated” (see paragraph 26 above). The Writ of Summons was issued on 20 August 2018. When the SoC was filed on 12 April 2019, the allegations in paragraph 4(R)-(T) of the 19/7/18 Letter were omitted from SoC (even though such pleading mirrored other allegations of fault in the 19/7/18 Letter) (see paragraph 6 above), so D contended (a) such omission was “a deliberate decision on the part of P”, (b) “the expression “might have been intoxicated” in the proposed Particular 6(17A) was omitted from the original [SoC] by design”, (c) it was a “tactical step to avoid pleading “intoxication ” and it is not through a slip or inadvertence”, (d) it was P’s attempt to “embellish his pleaded case” which was hitherto only founded on the state of the premises which had nothing to do with “drunkenness” or “intoxication” of the Deceased, and (e) it was a “conscious and deliberate decision of [P] not to refer to the “drunkenness ” or “intoxication ” of the Deceased in the [SoC]” (see paragraphs 23, 26 and 38 above).
87. “Change of stance/tack” Mr Leung SC submitted that if one considered the architecture of the SoC in its entirety, P’s pleaded causes of action lied in the physical state of the Stairway (ie D’s breach of “occupancy duty”) as opposed to relying on (i) any intoxicating state of the Deceased (ie D’s breach of “activity duty”) and/or (ii) any building regulations or code of practice in respect of the “construct and design” of the Stairway (ie breach of statutory duty other than occupiers’ liability), which was demonstrated by the following:
88. D claimed the proposed Particular 16(7A) was a poor attempt to “sneak” in a new “cause of action” premised on “activity duty” (in contra -distinction to “occupancy duty” as currently pleaded in the SoC) owed to P by D in over-serving alcohol by relying on the Licence Conditions but “pertinent to the idiosyncrasy of the Deceased (ie relating to his reaction to whatever quantity of alcohol he had consumed)”.
89. “Belated” application D complained P failed to proffer any explanation for the “belated” “change of tack” in proposing amendments to the SoC that included the proposed Particular 6(17A).
90. Split Trial Summons D claimed that given the SoC’s focus on breach of “occupancy duty”, the response in its Defence was also premised on the physical state of the Stairway:
91. D filed the Split Trial Summons on 11 March 2020, and the Amendment Summons came afterwards on 26 May 2020. D saw the latter application as a poor attempt “to shore up P’s pleaded case” in face of the strength of D’s defence case (see the above paragraph and the evidence as to the safety of the Stairway[29] ) to resist D’s application for split trial. Mr Leung SC submitted the proposed amendment would certainly have impact on the pending Split Trial Summons. “It is axiomatic that depending on whether the amendment is allowed, D would have to amend its Defence and to adduce further affidavit evidence to demonstrate a good prospect of being exonerated in a split trial on liability”.
(b) P’s stance
92. Mr Wong SC submitted the Amendment Summons was filed at an early stage of the proceedings before the parties progressed beyond pleadings/discovery, and there was no discernible prejudice arising from P’s proposed amendment to add the proposed Particular 6(17A) to the SoC.
(c) Discussion
93. Notwithstanding D’s repeated allegations that the Amendment Summons was a “belated” application, I am of the view that the Amendment Summons could not be said to be a late application. The present action was up to the stage of close of pleadings and completion of discovery, but the parties had not even exchanged/served witness statements. So this case is a long way yet from being ready to be set down for trial in respect of P’s claim on both issues of liability and quantum or even just on the issue of liability.
94. Perhaps D alleged the Amendment Summons was “belated” because D considered P (a) in 2018 by paragraph 4(R)-(T) of the 19/7/18 Letter had already made complaints same or similar to the allegations in the proposed Particular 6(17A), (b) did not plead the same in the SoC in 2019, and (c) only attempted to introduce the same by the Draft ASoC in 2020. But I am not persuaded this chronology would have accounted for much if the proposed Particular 6(17A) was (i) meritorious in the sense that it was arguable or at least not “bound to fail” and (ii) (if it were a “new cause of action” as D alleged but which P disagreed) not time-barred, which matters I would consider and discuss below. On the premise of (i)-(ii) above together with appropriate protection by compensation in costs, I cannot see why at this stage of the proceedings (see the above paragraph) P should not be allowed to amend the SoC to add the proposed Particular 6(17A) even if this was due to P’s inadvertent omission or even change of mind. In such circumstances, such proposed plea (if it satisfied (i)-(ii) above) would be a material averment for allowing the real issues/disputes between the parties to be tried and determined and/or for correcting any defect in the proceedings, and D (who carried the burden to establish prejudice) had not articulated any real/substantive prejudice that was not compensatable by costs.
95. D tried to elevate the seriousness of his complaint against the proposed Particular 6(17A) by suggesting that (a) P made a conscious and/or tactical decision to avoid pleading “drunkenness” and “intoxication” in SoC despite having alluded to such allegations or similar allegations in paragraph 4(R)-(T) of the 19/7/18 Letter, and (b) the proposed Particular 6(17A) was a deliberate “change of tack” to expand its currently pleaded claim of breach of “occupancy duty” to embrace a new claim of breach of “activity duty”. But again, if the proposed Particular 6(17A) was (i) meritorious in the sense that it was arguable or at least not “bound to fail” and (ii) (if it were a “new cause of action” as D alleged but which P disagreed) not time-barred, I cannot see why P should not be allowed to change his mind to introduce the proposed Particular 6(17A) in his pleadings at this stage of the proceedings (see paragraph 93 above) when D was unable to suggest any real prejudice not compensatable by costs. Indeed, it is not unknown for pleadings to be amended to include additional material facts, additional particulars of the pleaded cause(s) of action and/or additional cause(s) of action to allow the court to adjudicate on the real issues/disputes between the parties. I note that despite D’s harsh complaints, they did not go so far to say P was legally precluded from seeking the amendment in the proposed Particular 6(17A).
96. As regards the impact of the proposed Particular 6(17A) on the Split Trial Summons, I am not persuaded it would have prevented P from introducing the proposed Particular 6(17A). After all, the norm is for a legal action to proceed to trial on both issues of liability and quantum such that allowing a split trial on the issue of liability ahead of trial of the issue of quantum is an exception justified by case management convenience, and disallowing such split trial of itself had no adverse effect on the parties’ fundamental right to trial (subject to any statutory and/or inherent power of the court that may be invoked for summary disposal of the claim). So, if the proposed Particular 6(17A) was (i) meritorious in the sense that it was arguable or at least not “bound to fail” and (ii) (if it were a “new cause of action” as D alleged but which P disagreed) not time-barred, and it went to the real issues/disputes between the parties, it should not be suppressed even if its introduction would render D’s Split Trial Summons futile (subject to appropriate compensation on costs if justified and allowed by the court). On such rationale, D’s insistence on deferring the Split Trial Summons until after the disposal of the Amendment Summons was quite understandable.
97. Mr Leung SC complained that the introduction of the proposed Particular 6(17A) would increase costs and prolong investigation for the present action, and submitted that this should not be allowed. In my view, any prejudice to D would not be measured by whether P’s proposal for amending the SoC to introduce the proposed Particular 6(17A) would make it more difficult for D to resist P’s claim and/or for D to mount the Split Trial Summons, nor would it be a major consideration that such proposed amendment would expose D to increased financial liability. If such proposed amendment was not so plainly and obviously forlorn that it could not succeed, and instead it was necessary for determining the real questions in controversy, which determination would serve the interests of justice, then it ought to be allowed so long as it was not time-barred (if it were a “new cause of action” as D alleged but which P disagreed) and would not work an injustice incapable of being compensated by costs. As I have explained in Chen Yusheng , whilst D might be disappointed by any permission for P to amend the SoC, what the court must strive to achieve would be to avoid injustice and not disappointment (paragraph 54). In Gale v Superdrug Stores Plc , Lord Millett in dealing with an application to withdraw an admission of liability said as follows:[30]
“…… In my judgment leave should normally be granted if the application is made in good faith, raises a triable issue with a reasonable prospect of success, and will not prejudice the plaintiff in a manner which cannot be adequately compensated. ……
Of course, the unexpected nature of the defence must have been a disappointment to the plaintiff; but I cannot think that this should count for anything. The sounder the defence sought to be raised by the amendment, the greater the disappointment to the plaintiff if it is allowed and the greater the injustice to the defendant if it is not. What the court must strive is to avoid injustice, not disappointment.”
After all, in giving effect to the underlying objectives of the RHC, the court shall always recognise that the primary aim in exercising the powers of the court (including those concerning amendment of pleadings) is to “secure the just resolution of disputes in accordance with the substantive rights of the parties”.
98. Thus, at the Appeal Hearing, Mr Wong SC and Mr Leung SC focused their oral submissions on the merits/vitality of the proposed Particular 6(17A) (ie the matters in paragraphs 94(i), 95(i) and 96(i) above) rather than on the various procedural matters that featured in Mr Leung SC’s written submissions (see paragraphs 85-91 above). But, as seen in paragraph 289-290 below, Mr Wong SC spent little and Mr Leung SC spent no time in their oral submissions on the time-bar issue (see the matters in paragraphs 94(ii), 95(ii) and 96(ii) above). I propose to turn first to the merits of the proposed amendment (if such merits were readily apparent) before returning briefly to the time-bar issue.
VII. PARTICULAR 6(17A)
(a) D’s stance
99. Overview D claimed the proposed Particular 6(17A) was objectionable and bound to fail (ie liable to be struck out even if it had already been pleaded in the SoC) in that (a) it disclosed no reasonable cause of action, (b) it was embarrassing for want of particulars, and (c) it was immaterial, useless and/or unnecessary, so D should not be called upon to answer such half-pleaded and futile averment.
100. New “cause of action” on “activity duty” D claimed the Particulars in the SoC revolved around the physical state of the Stairway that went to the issue of “occupancy duty”, and the consumption of alcohol pleaded in Particular 6(17) also concerned alleged danger of the Stairway. Mr Leung SC submitted that the proposed Particular 6(17A) was essentially a veiled attempt to plead a new “cause of action” for excessive/over serving of alcohol (with reference to the Licence Conditions) that went to the issue of “activity duty” in relation to the Deceased under the guise of adding a mere “particular” to the existing causes of action.
101. In support of the above submission, Mr Leung SC argued that the common law distinguished between “occupancy duty” and “activity duty”. Clerk & Lindsell on Torts states as follows:[31]
“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, sometimes known as “occupancy duties”. By contrast, where a danger arose from activities on 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 such as the status of the claimant were largely irrelevant.” (my emphasis)
However, I note with interest that P’s pleaded causes of action in the SoC did not appear to be premised on breach of “occupier’s liability” under common law, but rather for breach of statutory duty under the OLO for occupiers’ liability and for breach of duty of care in negligence at common law (see preamble to paragraph 6 of the SoC – see paragraph 6 above). The distinction between “occupier’s liability at common law” (which draws “distinction between licensees, invites, trespassers and the like”) and “ordinary negligence at common law” (which turns on “neighbourhood” relationships or proximity) is further explained in Clerk & Lindsell on Torts as follows:[32]
“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 is 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 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)
I will return to discuss below 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).
102. Common law But Mr Leung SC disagreed there is any such duty, and argued that since there is no general duty of care (ie “activity duty” in contra -distinction to “occupancy duty”) on the part of an alcohol serving outlet or commercial host (a) not to over-serve alcohol to a patron and/or (b) to prevent a patron’s “intoxication” or “drunkenness” save in “exceptional circumstances”, there is no freestanding cause of action for excessive/over serving of alcohol known to common law. So it was insufficient for P to merely aver that the Deceased had been supplied with alcohol (regardless of the amount) and/or that he “might have been intoxicated” without asserting (i) how/when any duty of care arose, (ii) what was the standard of care, (iii) the manner such duty was breached, and (iv) how such breach caused the injury, which facts would be material and relevant according to the concurring judgment of Gummow and Hayne JJ in Cole v South Tweed Heads Rugby League Club Ltd & anor[33] discussed below.
103. Mr Leung SC submitted that to raise excessive/over serving of alcohol as any valid cause of action, the pleader has to plead material facts of the alleged “exceptional circumstances” (eg (a) the patron has been so intoxicated that he is not able to look after himself, and (b) the alcohol serving outlet or commercial host has knowledge that the patron is exposed to risk of injury to himself or others) so as to inform the other party whether and how the alleged duty of care has been triggered. D noted 5 years had elapsed since the Accident, and it believed P had had ample opportunity to investigate and to decide (with assistance by experts if necessary) whether it was his case that the Deceased was in fact intoxicated, but to date there was no such expert evidence or factual evidence (say, from Hau). Further, notwithstanding repeated requests/ demands, P failed to provide any or any sufficient particulars as to (i) whether the Deceased was intoxicated or drunk, and/or (ii) whether D knew the Deceased’s intoxication or drunkenness, and in the absence of such particulars (or other particulars that would raise allegation of “exceptional circumstances”), the proposed Particular 6(17A) (disguised as a particular under the cause of action in ordinary negligence under common law) as presently formulated (which Mr Leung SC characterised as an “irresponsible” plea) “confers no proper cause of action at common law and it is bound to fail irrespective of the evidence to be adduced at trial”.
104. Mr Leung SC also contended that if, on the other hand, P were to aver the Deceased was not intoxicated or drunk, the proposed Particular 6(17A) would be immaterial, useless and/or unnecessary because in such case any excessive/over serving of alcohol would be irrelevant. It would not give rise to any relevant/viable duty of care independent of (or add anything to the “occupancy duty” arising from) the consumption of alcohol already pleaded in Particular 6(17) as an aspect of the risk attendant upon the physical state of the premises/ Stairway, and at the very least P would fail to satisfy the matters in paragraph 102(iii)-(iv) above.
105. In any event, Mr Leung SC submitted that the proposed Particular 6(17A) was embarrassing for imprecision and/or want of particulars such that “it cannot determine the real question in controversy between the parties”, and that D should not be called upon to deal with such half-pleaded averment that would have major impact on the matters in paragraph 102(i)-(iv) above.
106. Statute law Mr Leung SC noted the rolled-up preamble in paragraph 6 of the SoC pleaded P’s causes of action as “negligence, breach of statutory duty, breach of common duty of care, and/or breach of the OLO by [D] (including its agents/servants)”, but did not raise any specific statutory provision (eg the Dutiable Commodities Ordinance Cap 109 (“DCO ”) or Dutiable Commodities (Liquor) Regulations Cap 109B (“DCLR ”)) the other than section 3 of the OLO, so “breach of statutory duty, breach of common duty of care” were actually the same cause of action as breach of the OLO in relation to the physical state of the Restaurant premises.
107. Mr Leung SC further submitted that statutory regulations governing licensees[34] are to be narrowly construed. Where a specific mode of enforcement is provided, the presumption is that they do not create any civil cause of action. On this, Mr Leung SC referred to general principles on the subject set out in Clerk & Lindsell on Torts ,[35] and to the particular observations in Cole and CAL No 14 Pty Ltd & anor v Motor Accidents Insurance Board [36] on the non-existence of civil cause of action arising from liquor control legislation.
108. Mr Leung SC argued that a fortiori the same principles applied to the Licence Conditions (eg Condition 2) imposed by the Licensing Board, which were not even statute, that required sellers of alcohol not to serve persons who were “apparently intoxicated”. It was further said that, in any event, the Licence Conditions were intended to preserve social order and/or to prevent the effect of unruly behavior of drunken persons on other patrons at the drinking premises rather than to create a duty for protection of the drunken persons themselves.
109. Emergent principles There was no disagreement between senior counsel that 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. In Tadjudin v Bank of America National Association ,[37] the employer terminated the employee’s employment, and the employee sued the employer for breach of implied term of employment not to exercise its contractual right of termination to avoid the employee being eligible for performance bonus. It is sufficient to refer to the helpful headnote that summarised the views of the Court of Appeal (pages 418-419):
“(3) Whether anti-avoidance terms could be implied into employment agreements was an area of law in the process of developing and it would be far too sweeping at this interlocutory stage to say, as the Judge did, that the implied terms contended for were inconsistent with legislative policies by looking solely at the four corners of the [Employment Ordinance Cap 57].[38] The court had resorted to the common law to develop the law because justice and fair play so required, at times when existing statutory provisions were found to be inadequate or insufficient to meet the requirement of justice (Takacs v Barclays Services Jersey Ltd [2006] IRLR 877 applied). (See paras.55-57.)
(4) Accordingly, this was not a plain and obvious case for striking-out. The case should go to trial given the fact-sensitive issues (Takacs v Barclays Services Jersey Ltd [2006] IRLR 877 applied). (See paras.64-65.)”
In my view, these observations have resonance here because the threshold for amendment of pleadings is akin to that of striking out pleadings, ie leave to amend should be disallowed if taking the proposed pleaded case to the highest the proposed amendment is “bound to fail”.
110. But Mr Leung SC drew my attention to Chan Siu Man v Lam Jenny & anor (personal representatives) & ors[39] in which the plaintiff applied under the Inheritance (Provision for Family and Dependants) Ordinance Cap 481 for reasonable financial provision on the basis that she had been maintained by the deceased prior to his death. The plaintiff passed away in the course of the litigation, and the executor of her will applied as personal representative of her estate to carry on the proceedings. One of the defendants applied to strike out such application on the ground that the plaintiff’s cause of action did not survive her death. DHCJ Mimmie Chan (as she then was) held that prior to her death the plaintiff only had locus standi and no enforceable right under the relevant ordinance, and that “[in] light of the authorities cited to [her] at the hearing, [she] cannot see any difficult or emergent legal principle at stake, as was present in the case of [Tadjudin ] to justify any further argument” (page 454).
111. I am not persuaded Chan Siu Man took the principles in Tadjudin any further save to highlight the consideration is necessarily case-specific. Mr Leung SC contended that here, in light of case law from the common law jurisdictions discussed below, there were no emergent legal principles at stake to justify further argument at trial.
112. Contributory negligence Mr Leung SC disagreed with what he perceived to be P’s contention, ie the fact D pleaded contributory negligence obviated the need to confirm the Deceased’s state of intoxication and/or to plead “exceptional circumstances” (including D’s knowledge of the Deceased’s state of intoxication).
113. Mr Leung SC submitted D’s primary stance as pleaded in its Defence was to deny any duty of care for P’s consumption of alcohol, so the burden fell/remained on P to plead/prove a sufficient case of duty, breach, causation and damage (especially “how and when the duty arose” and “how and when the duty was breached”), which burden was not relieved by D’s plea of contributory negligence under its alternative position for which no duty of care was conceded.
114. In this respect, Mr Leung SC referred to section 21(1)[40] and section 21(10)[41] of LARCO that set out the apportionment of liability in case of contributory negligence, and cited Standard Chartered Bank v Pakistani National Shipping Corp & ors (No 4) [42] in which Aldous LJ of the English Court of Appeal, in considering section 1(1) of Law Reform (Married Women and Tortfeasors) Act 1945 (equivalent to section 21(1) of LARCO) and upon referring to Professor Glanville William’s book Joint Torts and Contributory Negligence ,[43] O’Connor LJ’s observations in Forsikringsaktieselskapet v Butcher [44] and Prichard J’s observations in Rowe v Turner Hopkins & Partners ,[45] agreed that whilst contributory fault that goes to a matter of defence need not be actionable (as it may or may not involve a breach of duty owed to the defendant), primary fault that goes to the issue of liability must be actionable (as the defendant cannot be at fault unless in breach of duty owed to the plaintiff) (pages 180-183).
115. In the context of intoxication cases, Mr Leung SC said Stanley J likewise made similar observations as follows in Schuller v SJ Webb Nominees Pty Ltd ,[46] and held the trial judge was wrong to decide on the question of contributory negligence on the assumption that he was wrong on the issue of liability (page 169):
“57. The judge turned to consider the question of contributory negligence on the assumption that he was wrong on the issue of liability ……
58. In my view, his Honour fell into error in adopting this course. His Honour had not only found that no duty of care existed but also that the plaintiff had voluntarily and consciously assumed an obvious risk. Having concluded liability against the plaintiff on those grounds, the judge should not have gone on to consider the question of contributory negligence.”
116. Mr Leung SC therefore submitted P could not therefore rely on D’s plea of contributory negligence to obviate his need to plead the necessary facts and constituent elements that would give rise to a proper “cause of action” in tort against D in the context of the present case. But I note, as explained in paragraph 130 below, this was not the purpose for which Mr Wong SC sought to rely on D’s plea of contributory negligence. Rather, it was always P’s contention that it was unnecessary to plead “intoxication” and “knowledge” as “exceptional circumstances” to raise an additional “particular” for his cause of action in negligence instead of any “new cause of action” as D suggested, and he pointed to D’s plea of contributory negligence to show the proposed Particular 6(17A) (which, it was said, was shown to be arguable and not bound to fail) would not cause prejudice to D since it would raise the same factual enquiry as required for establishing D’s plea of contributory negligence.
(b) P’s stance
117. Overview P claimed the proposed Particular 6(17A) was relevant to his claim in negligence against D, so leave should be granted for him to add such proposed particular in order to deploy full particulars of the factual basis upon which he would rely to support his claim in negligence against D, and to allow the real issues/disputes between the parties to be fairly and properly determined.
118. Holistic approach Mr Wong SC submitted that the general legal principles set out in paragraphs 83-84 above demonstrated that consideration of the constituent elements of a cause of action in negligence (eg the existence/scope of duty, standard of care, breach of duty, and causation of loss) would involve fact-sensitive matters to be resolved at trial. Mr Wong SC noted Bokhary PJ in Luen Hong Fat Coating & Finishing Factory Ltd observed that the consideration of fairness, justice and reasonableness is an intrinsic element of the duty of care, and can be employed to ground imposition of a duty of a care either in circumstances in which no duty has previously existed or where a duty has previously been denied (page 35), and ultimately the court has to “stand back and take 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 ……” (see paragraph 83 above).
119. “Particular” not “cause of action” Mr Wong SC, relying on Freudenstein v Marhop Pty Ltd & ors [47] and case law in other common law jurisdictions, submitted it was a facet of the duty of care owed by D as occupier of the Restaurant that sold/supplied alcohol to be consumed thereat to take care of its patrons who might be “affected by alcohol” given the notorious consequences of the sale/supply of alcohol, ie that it might impair the judgment of those who consume it.
120. Mr Wong SC submitted the proposed Particular 6(17A), properly understood, was a plea that D had continued to serve alcohol to the Deceased “despite knowing that the Deceased might have been intoxicated from alcohol provided at the Restaurant”. It did not by itself and in isolation amount to any freestanding cause of action in negligence. But D’s erroneous fixation that it amounted to a “new cause of action” ignored the reality that such proposed particular was an additional particular of P’s existing claim in negligence and hence only 1 of multiple particulars of the cause of action in negligence pleaded in the SoC, which had to be read together with (and not in isolation of) the other pleaded Particulars, eg D’s causing/permitting the hazardous Stairway to be the only access to the Entrance when D’s patrons were reasonably expected to consume alcohol at the Restaurant.
121. Mr Wong SC contended there was need to take into account the whole factual context/matrix at the material time to determine the issues of duty, standard, breach and causation as between the alcohol serving outlet or commercial host and its patrons as the answers to these issues would depend on the factual “mix”, which in the present case would include inter alia the following:
122. Mr Wong SC submitted such approach accorded with common sense.[48] Once D’s fixation that the proposed Particular 6(17A) alone amounted to a freestanding “cause of action” in negligence was recognised to be flawed, it would be obvious that P’s proposed amendments should be allowed. After all, D was not suggesting P’s entire or existing negligence claim in the SoC was liable to be struck out, so it could not be said that introducing 1 additional particular to the many pleaded Particulars of P’s pleaded claim in negligence against D was “bound to fail”. Mr Wong SC submitted P must be entitled to raise and rely on further particulars to ensure all relevant factual issues would be fairly ventilated at trial.
123. In summary, bearing in mind that it was entirely foreseeable patrons at the Restaurant would be served with alcohol and that P’s claim in negligence should be assessed on the totality of the evidence, whether D owed a duty of care and breached such duty by its sale/supply of alcohol to the Deceased must be analysed in light of the entire factual circumstances, and any factual disputes could only be fully investigated at trial. Mr Wong SC therefore argued that P should not be shut out from putting forward the proposed Particular 6(17A), which would not render P’s claim against D “bound to fail”.
124. Common law Mr Wong SC submitted D’s essential complaint that the proposed Particular 6(17A) failed to positively plead/ show P was already “intoxicated” or “drunk” and D had “knowledge” of the same in order to raise a claim against D as seller/supplier of alcohol (which Master Kot accepted in the Master Reasons for disallowing the proposed Particular 6(17A)) was untenable and fundamentally flawed.
125. Mr Wong SC submitted “there were differing judicial attitudes in respect to claims brought by a plaintiff who had consumed alcohol supplied by a defendant alcohol provider” in the Canadian, Australian and English jurisprudence, but “none of the cases in any of the jurisdictions support the argument that P is somehow required to plead that he was “intoxicated ” or“drunk ” for the purposes of his negligence claim”.[49] Anyway, it was said the very existence of different judicial attitudes clearly showed this was not a situation in which the proposed Particular 6(17A) was “bound to fail”, and proper analysis of case law in these common law jurisdictions would show Master Kot erred in disallowing the proposed Particular 6(17A) on the basis that P had not pleaded the Deceased was at the time “intoxicated” or “drunk”. In any event, it was said there was no bright-line approach to intoxication or drunkenness. So Mr Wong SC contended that, at the very least, the proposed Particular 6(17A) was not “bound to fail” by reason that P did not positively plead the Deceased was intoxicated/drunk, and such proposed amendment should be allowed.
126. Sufficiency of particulars Mr Wong SC submitted that since D’s fixation on the alleged requirement for P to plead that the Deceased was in fact intoxicated or drunk at the time of the Accident and that D knew of his state of intoxication or drunkenness was erroneous, this would be a complete answer to D’s complaint that the proposed Particular 6(17A) was lacking in particulars. Mr Wong SC reiterated that a person’s state of “intoxication” is an inherently imprecise concept, and the influence of alcohol on a person is invariably a matter of degree, so it has been recognised that expressions like “intoxication”, “inebriation” and “drunkenness” are difficult both to define and to apply. Instead, the degree or extent upon which the Deceased was affected by alcohol would be matters to be fully explored at trial, and P should not be deprived of the opportunity to raise the proposed Particular 6(17A) which was a relevant particular of P’s claim in negligence.
127. Emergent principles Mr Wong SC submitted that overseas common law jurisprudence shows this area of law to be in the process of development, and the issues of duty of care and breach of duty depend on the factual matrix of the case, so the court should not stifle these arguments that should more properly be investigated/determined at trial by disallowing the proposed Particular 6(17A) at this early stage of the proceedings.
128. Statute law Mr Wong SC fairly pointed out that P was not relying on any freestanding 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. 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.
129. Answering Particular 6(17A) Mr Wong SC submitted D should have no difficulty in understanding and answering the proposed Particular 6(17A), which did not raise anything new as to the Deceased’s consumption of alcohol.
130. Particular 6(17) in the SoC already pleaded (a) D’s patrons (including the Deceased) would “reasonably be expected to have consumed alcohol at the Restaurant”, and (b) D had failed to safeguard/ prevent injury to the Deceased and/or failed to escort the Deceased to safety. Further, D accepted the Deceased “would reasonably be expected to have consumed alcohol at the Restaurant”, and there was evidence as to the receipt issued by D, which showed the Deceased’s purchase and consumption of significant amount of alcohol at the relevant time. Still further, Mr Wong SC noted D positively pleaded a case of contributory negligence against the Deceased in its Defence by relying on the Deceased’s “voluntary consumption of alcohol”, so the necessary factual inquiry for the Deceased’s consumption of alcohol would essentially be the same, especially when, as a matter of law, the standard to be applied to the claimant for contributory negligence (ie contributory fault) “is the same as that of the ‘reasonable person’ in negligence liability generally” (ie primary fault).[50] In the circumstances, Mr Wong SC submitted D must be capable of meeting P’s case.
131. Further, D’s Defence pleaded that the Deceased “was a mature person in control of his own faculties and reason”, and that D did not owe a duty to the Deceased “by the mere fact that he would reasonably be expected to have consumed alcohol at the Restaurant”, so D could not complain that somehow it was unable to answer to the proposed Particular 6(17A) in relation to the Deceased’s consumption of alcohol. Mr Wong SC submitted that ultimately it was for the trial judge to decide whether D did owe and/or breach such duty of care to the Deceased in light of all factual circumstances.
132. Summary Mr Wong SC submitted that for the above reasons the proposed Particular 6(17A) was not “bound to fail”. It was said that D’s sale/supply of alcohol to the Deceased (being an additional facet of P’s claim in negligence against D) must be considered together with the entire factual matrix, including (a) D causing/permitting its patrons (who were reasonably expected to consume alcohol at the Restaurant) to be exposed to a hazardous Stairway[51] as the only access to the Entrance, and (b) D failing to warn visitors of the dangers at the Restaurant, so P was entitled to plead the proposed Particular 6(17A) as relevant factual particular to support his claim in negligence so as to allow the real issues/ disputes between the parties to be fairly and properly determined by the court. Mr Wong SC argued that D failed to show any discernible prejudice arising from the proposed amendment, so P should be allowed to amend the SoC to add the proposed Particular 6(17A).
(c) Statutory framework
133. To put the discussions below as to international common law jurisprudence on alcohol liability in context, I refer to the statutory framework for liquor control legislation in Hong Kong, Canada and Australia. I omit reference to the English position since Barrett v Ministry of Defence [52] cited by senior counsel concerned obligation under the Queen’s Regulations for the Royal Navy 1967 to discourage drunkenness rather than any Parliamentary liquor control regime.
134. Hong Kong position The sale of alcohol in Hong Kong is regulated by statute. The DCLR contains provisions specifically on point, ie regulations 17(1), 21 and 23(1A)(a) as set out in footnote 34 above. Condition 2 (which provides that no person shall be allowed to become drunk in the licensed premises nor shall liquor be supplied to any person who was drunk) appeared to be a standard condition for liquor licences.
135. Canadian position The Liquor Licence Act 1990, c L 18 was the provincial legislation that governed the sale/supply of alcohol in Ontario, Canada until it was repealed on 29 November 2021 and replaced by the Liquor Licence & Control Act 2019 and the regulations thereunder which came into effect on the same day. The new legislation is said to enable the Alcohol and Gaming Commission of Ontario to modernise the way it regulates the sale, service and delivery of liquor, and to lay the groundwork for a more flexible approach to regulation. However, since the Canadian case law referred to below predated the new legislation, it is useful to refer to the previous provisions under Ontario’s Liquor Licence Act 1990.
136. Section 29 of Ontario’s Liquor Licence Act 1990 provides that “[no] person shall sell or supply liquor or permit liquor to be sold or supplied to any person who is or appears to be intoxicated”. Section 39 of such Act imposes a duty of care on alcohol serving establishments or vendors to any person who suffers injury or damages as a result of harm caused by an intoxicated patron:
“The following rules apply if a person or an agent or employee of a person sells liquor to or for a person whose condition is such that the consumption of liquor would apparently intoxicate the person or increase the person’s intoxication so that he or she would be in danger of causing injury to himself or herself or injury or damage to another person or the property of another person:
1. If the person to or for whom the liquor is sold commits suicide or meets death by accident while so intoxicated, an action under Part V of the Family Law Act lies against the person who or whose employee or agent sold the liquor.
2. If the person to or for whom the liquor is sold causes injury or damage to another person or the property of another person while so intoxicated, the other person is entitled to recover an amount as compensation for the injury or damage from the person who or whose employee or agent sold the liquor.” (my emphasis)
137. Australian position Similar legislation can be found in Australia, eg the Liquor Act 2007 and Liquor Regulation 2018 in New South Wales, and the Liquor Control Reform Act 1998 and the Liquor Control Reform Regulations 2009 in Victoria. For example, section 73 of Liquor Act 2007 provides as follows:
“(1) A licensee must not permit –
(a) intoxication, or
(b) any indecent, violent or quarrelsome conduct, on the licensed premises.
Maximum penalty—100 penalty units.
(2) A licensee or an employee or agent of a licensee must not, on the licensed premises, sell or supply liquor to an intoxicated person.
Maximum penalty—100 penalty units.
(3) A person (other than a licensee or an employee or agent of a licensee) must not, on licensed premises, supply liquor to an intoxicated person.
Maximum penalty—10 penalty units.
(4) If an intoxicated person is on licensed premises other than a vessel, the licensee is taken to have permitted intoxication on the licensed premises unless the licensee proves that –
(a) the licensee, and the licensee’s employees or agents –
(i) refused to serve the person liquor after becoming aware the person was intoxicated, and
(ii) asked the person to leave the premises, and
(iii) &if the person did not leave the premises immediately after being asked to leave or refused to leave – contacted, or attempted to contact, a police officer for help in removing the person from the premises, or
(b) the licensee, and the licensee’s employees and agents, took the steps to prevent intoxication on the licensed premises set out in the guidelines issued under subsection (5A), or
(c) the intoxicated person did not consume liquor on the licensed premises.
……
(5A) The Secretary is to issue guidelines relating to the prevention of intoxication on licensed premises. Such guidelines are to be made publicly available in such manner as the Secretary considers appropriate.”
Further, section 108 of Liquor Control Reform Act 1998 provides as follows:
“(4) A licensee or permittee –
(a) must not supply liquor to a person who is in a state of intoxication;
(b) must not permit drunken or disorderly persons to be on the licensed premises ……
Penalty: 120 penalty units.
(5) It is a defence to a prosecution for an offence under subsection (4)(b) for the accused to prove that –
(a) neither the accused nor any relevant person who was on the premises at the time of the alleged offence knew that drunken or disorderly persons were on the premises; and
(b) either the accused or a relevant person had taken reasonable steps to ensure that drunken or disorderly persons were not on the premises.
(5A) For the purposes of subsection (5), a person is a relevant person
(a) an employee or agent of the accused; or
(b) in the case of an accused that is a body corporate –
(i) &an officer of the accused; or
(ii) the nominee of the accused; or
……”
138. “Intoxication” is defined in section 5(1)-(2) of the Liquor Act 2007 and section 3AB(1) of the Liquor Control Reform Act 1998 as follows:
“(1) For the purposes of this Act, a person is intoxicated if –
(a) the person’s speech, balance, co-ordination or behaviour is noticeably affected, and
(b) it is reasonable in the circumstances to believe that the affected speech, balance, co-ordination or behaviour is the result of the consumption of liquor.
(2) Accordingly, a reference in this Act to intoxication in relation to licensed premises is a reference to the presence of intoxicated persons on the licensed premises.” (Liquor Act 2007)
“For the purposes of this Act, a person is in a state of intoxication if his or her speech, balance, co-ordination or behaviour is noticeably affected and there are reasonable grounds for believing that this is the result of the consumption of liquor.” (Liquor Control Reform Act 1998)
Pursuant to such legislation, the Liquor & Gaming NSW within the NSW Department of Customer Service and the Victorian Gambling and Casino Control Commission have both published Intoxication Guidelines to assist licensees and their employees to detect signs of intoxication.
(d) Court’s approach
139. The aforesaid disputes between P and D go to the relationship between alcohol serving outlets or commercial hosts and their patrons to whom they serve alcohol/liquor (and/or, as seen in the case law discussed below, to third parties who may be harmed by such patrons). There is no doubt such outlet/host is an occupier of the drinking premises, and has obligation to ensure (a) the condition of such premises do not pose undue risk of harm to its patrons or other entrants, (b) the facilities thereat are in reasonable condition/repair, and (c) the activities carried on thereat are safe, all in the context of reasonable foreseeability of injury which takes account inter alia the factor that alcohol is served and consumed at such premises.
140. But does the foreseeable risk of harm to patrons or others give rise to a duty of care on the part of such outlet/host as occupier/publican of such premises, which duty, if breached, may result in alcohol liability in negligence? In a nutshell, the parties’ respective case can be summarised as follows:
141. The international common law jurisprudence discussed below is divergent as to whether alcohol serving outlets or commercial hosts owe any general duty of care to patrons to whom they sell or serve alcohol/liquor and/or to third persons who may be at risk of harm by such patrons. 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 by such outlets/hosts when dealing with their patrons when they are at and/or even after they have exited the drinking premises, 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 and/or cause injury to others. Other jurisdictions (notably the Australian one although there is a strong dissenting voice) lay emphasis on the individual autonomy/privacy of the patrons as sui juris adults and on their personal responsibility for risks that accompany freedom of choice to consume alcohol, and then go on to hold that any duty of care owed by such outlets/hosts as occupiers/publicans to their patrons and/or others do not extend to any nanny-like positive step or protective obligation that would override their free will to drink save in “exceptional circumstances”.
142. In my view, it is unnecessary for present purpose to come to any firm or definitive view of the law on alcohol liability or to resolve any divergence of views as to such law, especially when (as seen in Part VII(e) below) it does not appear there is local jurisprudence directly on the subject. Bearing in mind the relevant threshold for considering the vitality of the proposed Particular 6(17A) is whether the suggested amendment is “bound to fail”, all I am concerned with at this stage is whether there is any jurisprudence (even persuasive dissenting views) that may lend some support for its legal arguability.
143. It is from such perspective that I turn to discussions on the Hong Kong, Canadian, Australian and English experience, the divergence of restrictive and expansive legal approaches to alcohol liability in these jurisdictions, and the dissenting voice in some jurisdictions. In doing so, I will also consider whether other common law jurisdictions are still refining the existence, scope and extent of any relevant duty of care, and whether any refusal of the proposed Particular 6(17A) at this stage of the proceedings will stifle more mature debate on developing law in the fullness of the factual matrix/evidence at trial.
144. I turn first to the local position.
(e) Hong Kong position
145. Mr Wong SC submitted the Hong Kong courts have not had the opportunity to review the principles in relation to alcohol liability and to the existence, scope and extent of any duty of care that may be owed by alcohol serving outlets or commercial hosts to their patrons at drinking premises (let alone the duty (if any) owed to such patrons after they have left the drinking premises or to third persons who may be at risk of injury by such patrons’ actions).
146. Mr Leung SC’s diligent research did not reveal any direct authority on the subject. However, he drew my attention to Lai Pui Ling suing by her brother and next friend Lai Hin Ho v Ho Chi Keung & anor .[53] In that case, the plaintiff suffered serious injuries in a wakeboarding incident, and sued the owner and the coxswain of the open cruiser that was towing her (paragraph 1). Default interlocutory judgment for damages was entered against the owner, and the action proceeded to trial on liability as between the plaintiff and the coxswain. Godfrey Lam J (as he then was) found the plaintiff failed to prove the coxswain breached any legal duty towards her that caused the accident, and dismissed her claim against the coxswain (paragraph 3). The learned judge also set aside the default judgment against the owner, struck out the statement of claim against the owner, and dismissed the action against him (paragraph 4). The plaintiff appealed, and the Court of Appeal dismissed her appeal (paragraph 57).
147. The facts were that (a) after the morning session 5 wakeboarders and the coxswain shared bread and beer that the wakeboarders brought with them (paragraph 11), (b) the plaintiff consumed 2 cans of beer over lunch (paragraph 11), (c) the wakeboarders continued to drink a little beer and water while on the boat in the afternoon session (paragraph 12), (d) the plaintiff felt tired, rested and then continued to wakeboard, (e) a short while later the plaintiff fell into the sea when being towed on the wakeboard, and (f) it transpired that the plaintiff suffered acute subdural haemorrhage over the left cerebral hemisphere (paragraph 13).
148. The plaintiff alleged the coxswain failed to (a) advise her not to consume any alcoholic drinks, and/or (b) prevent her from wakeboarding after consuming alcohol (paragraph 14). Kwan JA (as then was) noted the trial judge’s findings as follows:
“26. The judge rejected the plaintiff’s submission that the [coxswain] had a duty to ensure all participants in wakeboarding were sober and fit before letting them take part in the sport and was negligent in failing to ensure that nobody involved in wakeboarding had consumed alcoholic drinks. The wakeboarders were independent educated adults of full ability who could reasonably be expected to take care of themselves and to avoid taking part in water sports if they fell unwell or unfit. The [coxswain] was only hired as a coxswain. He was not responsible for giving them training or instructions. As a matter of common sense, a coxswain might suggest to a passenger he or she should not take part in wakeboarding if the passenger was obviously unfit. But save in extreme circumstances, neither the [coxswain’s] duty of care nor his contractual power extended to dictating who could and who could not wakeboard in the afternoon. In any event, there was no evidence that the plaintiff would, more probably than not, have heeded a reminder for her not to wakeboard that afternoon merely because she had had some beer.
27. Furthermore, there was nothing to suggest that the [coxswain] knew the plaintiff was unfit to wakeboard . There was no suggestion in [the owner’s] interview or statement that the plaintiff was behaving in any unusual manner or showing any symptom of unfitness such that anyone skilled in the sport would have stopped her from taking part. The judge took the view the fact that she had a headache in the afternoon but soon recovered did not amount to circumstances in which the [coxswain] could be expected to try to prevent her from wakeboarding.
……
31(4). The only hat on which to hang liability was …… the consumption of some beer on the [coxswain’s] part and the consumption of beer by the plaintiff (two cans of beer during lunch and a little beer in the afternoon). …… There was no evidence that …… the plaintiff was affected by the consumption of alcohol at the time of the accident, some two hours after lunch. The plaintiff did not behave in an unusual manner or had shown any symptom of unfitness such that any one skilled in the sport would have stopped her from wakeboarding. Nor was there anything to suggest that the [coxswain] knew that she was unfit to wakeboard after lunch .
32 …… As a hired coxswain, the [coxswain] was not responsible for giving instructions or training to the participants. We agree with the judge that save in extreme circumstances , neither the [coxswain’s] duty of care nor his contractual power extended to dictating who could or could not wakeboard in the afternoon.” (my emphasis)
149. Mr Leung SC urged this court to deduce from the above case that there is no general duty to prevent intoxication of a customer save in “exceptional circumstances”, ie that the customer has visible signs of intoxication and is inebriated to the extent of not being able to look after himself, and the defendant knew the customer is exposed to risk of injury to himself, which material facts, Mr Leung SC reminded, were missing in the proposed Particular 6(17A).
150. Whilst this court, as always, is guided by the Court of Appeal, I am not persuaded Lau Pui Ling suing by her brother and nexct friend Lai Hin Ho necessarily leads to the conclusion suggested by Mr Leung SC in the above paragraph. It must be remembered that in that case the coxswain was only hired staff who was not even responsible to give training or instructions in respect of the very activity involved in the accident. More importantly, the coxswain was not the seller/supplier of alcohol for profit, and the alcohol was not consumed on his business premises over which he had control. The relationship between a wakeboarder and the coxswain was far different from that of 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. Luen Hing Fat Coating & Finishing Factory Ltd requires the court to take a holistic view of foreseeability, proximity and the need to be fair, just and reasonable to see whether it is appropriate to impose a duty of care, and in my view this exercise can only be carried out against the relevant factual context. Indeed, Kwan JA (as she then was) referred to Rootes v Shelton ,[54] which explained that whether or not a duty of care is owed and, if a duty is owed, the extent of it, “must necessarily depend in each case on its own circumstances. They are questions to be answered by reference to the circumstances surrounding any act or omission which was considered to be a cause of the plaintiff’s injuries” (paragraph 31(1)).
151. In my view, 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. Since it is unclear at this interlocutory stage how the Hong Kong courts will eventually view this issue, all that is needed to cross the threshold requirement for allowing the proposed amendment is, in my view, arguably supportive legal analysis and/or judicial views (including any dissenting judicial opinion) that may (and not must) in future carry the day in this jurisdiction. I therefore turn next to discuss the Canadian position on such basis.
152. Although the focal concern in the present case was alcohol liability (if any) of an alcohol serving outlet or commercial host for injuries suffered by its patron as a result of his own actions within the drinking premises, I cast a wider review of the relevant case law to properly understand the jurisprudential rationale in the relevant societal/ legal context, and to see if this is an evolving area of law that should not be arrested at this interlocutory stage from mature debate and development at trial.
(f) Canadian position
153. I start with the seminal judgment of the Supreme Court of Canada in Jordan House Limited which recognised that alcohol serving outlets or commercial hosts owe a duty to intoxicated/drunken patrons to protect them from being exposed to reasonably foreseeable risk of injury. In that case, the plaintiff was a frequent but habitually badly behaved patron of a hotel beverage room, who had been previously banned from the hotel for anti-social behaviour. Eventually, the ban was lifted and the plaintiff was permitted to visit the hotel and be served alcohol provided he was accompanied by a responsible adult. On the night in question, he visited the hotel in the company of friends who then abandoned him to drink beer alone at the hotel for several hours. He became visibly intoxicated, and was thrown out for being drunk and for annoying other guests (which was a regular practice of his when he drank to excess). The hotel employees knew that for him to get home, he would have to walk along a busy highway in an intoxicated/drunken condition, but no precautions were taken to safeguard the plaintiff. While making his way home, the plaintiff was hit by a negligent motorist. The accident happened within half an hour after he was ejected from the hotel when he was staggering on the centre line of the highway. The plaintiff sued the driver and hotel owner, and sought to hold the hotel owner jointly responsible for his injuries for breach of its common law duty to protect him by serving him alcohol and not ensuring he was safe when he left the hotel. The driver and the hotel owner were held to be jointly liable for the plaintiff’s injuries, but the plaintiff was also found to be contributorily negligent.
154. Haines J adverted to the hotel owner’s:
On appeal to the Supreme Court of Canada, the concurring judgment of Martland, Spence and Laskin JJ explained that their Honours did not read Haines J’s reasons as holding mere breach of such enactments and the fact the plaintiff suffered personal injuries were sufficient to attach civil liability to the hotel owner, and instead Haines J “regarded them …… as crystallizing a relevant fact situation which, because of its authoritative source, the Court was entitled to consider in determining, on common law principles, whether a duty of care should be raised in favour of [the plaintiff] against the hotel” (page 246).
155. I pause here to say this would lend support to Mr Wong SC’s contention that breach of statutory obligation (extended to breach of the Licence Conditions according to the principles discussed in paragraph 84 above) 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 above), 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.
156. Returning to Jordan House Limited , Haines J held the hotel owner was in breach of the common law duty of care as it knew or ought to have known the plaintiff would be placed in a position of danger to his personal safety which was foreseeable as a result of the eviction (pages 243-244) when relatively simple alternatives would have been, eg, (a) to call the police or the plaintiff’s employer, (b) to summon taxi transport to take the plaintiff home, or (c) to have the plaintiff spend the night in a hotel room (page 248).
157. On appeal to the Ontario Court of Appeal and to the Supreme Court of Canada, the plaintiff’s claim against the driver and the hotel owner was upheld. The Supreme Court of Canada did not doubt the hotel owner owed a duty of care to a patron “who becomes intoxicated” (page 241), but the primary concern was the nature/scope of such duty.
158. Martland, Spence and Laskin JJ concluded[55] there was a close enough nexus between the hotel and the plaintiff to require the imposition of a duty of care on the hotel to take positive steps to avert potential calamity. It appears the hotel owner’s duty of care to take reasonable steps to ensure the plaintiff got home safely more or less turned on its knowledge (though the bar staff) of the plaintiff’s particular susceptibility to alcohol, the effect it had on him, and the peculiar risk he faced on being shown the exit:
“…… The hotel, however, was not in a position of persons in general who see an intoxicated person who appears to be unable to control his steps. It was in an invitor-invitee relationship with [the plaintiff] as one of its patrons, and it was aware, through its employees, of his intoxicated condition, a condition which, on the findings of the trial judge, it fed in violation of applicable liquor licence and liquor control legislation. There was a probable risk of personal injury to [the plaintiff] if he was turned out of the hotel to proceed on foot on a much-travelled highway passing in front of the hotel.” (page 248)
“Given the relationship between [the plaintiff] and the hotel, the hotel operator’s knowledge of [the plaintiff’s] propensity to drink and his instructions to his employees not to serve him unless he was accompanied by a responsible person, the fact that [the plaintiff] was served not only in breach of this instruction but as well in breach of statutory injunctions against serving a patron who was apparently in an intoxicated condition, and the fact that the hotel operator was aware that [the plaintiff] was intoxicated, the proper conclusion is that the hotel came under a duty to [the plaintiff] to see that he got home safely …… or to see that he was not turned out alone until he was in a reasonably fit condition to look after himself.” (page 249)
“The result to which I would come here does not mean (to use the words of the trial judge) that I would impose “a duty on every tavern-owner to act as a watch dog for all patrons who enter his place of business and drink to excess”. A great deal turns on the knowledge of the operator (or his employees) of the patron and his condition where the issue is liability in negligence for injuries suffered by the patron.” (page 250)
159. Whilst the aforesaid formulation by Martland, Spence and Laskin JJ suggests that a duty of care by an alcohol serving outlet or commercial host arises at a time when the patron becomes too intoxicated to look after himself and when the operator has knowledge of the patron’s particular circumstances, Ritchie J (with whom Judson J agreed) imposed a more expansive test by saying such duty of care arises at an earlier point as the obligation of an alcohol serving outlet or commercial host is not just to protect the patron once he becomes intoxicated but rather to prevent intoxication in the first place (page 251):
“For my part, however, the circumstances giving rise to the [hotel owner’s] liability were that the innkeeper and his staff, who were well aware of the [plaintiff’s] propensity for irresponsible behaviour under the influence of drink, assisted or at least permitted him to consume a quantity of beer which they should have known might well result in his being incapable of taking care of himself when exposed to the hazards of traffic. Their knowledge of the [plaintiff’s] somewhat limited capacity for consuming alcoholic stimulants without becoming befuddled and sometimes obstreperous, seized them with a duty to be careful not to serve him with repeated drinks after the effects of what he had already consumed should have been obvious .” (my emphasis)
160. The divergence of opinion on the duty of care between Laskin, Martland and Spence JJ on the one hand and Ritchie and Judson JJ on the other hand had no consequence in Jordan House Limited because the hotel owner failed (a) to prevent the plaintiff’s intoxication in the first place, and (b) to take reasonable precautions when he became intoxicated by ensuring he got home safely. But in my view, it is arguably easier to satisfy the fault element of negligence on the formulation of duty of care in the concurring judgment of Ritchie and Judson JJ because failure by an alcohol serving outlet or commercial host to take reasonable care to prevent intoxication will itself amount to breach of the duty of care, which anterior breach cannot be undone by subsequent acts of the outlet/host to help the patron (eg calling the police, arranging taxi transport, accommodating him in a hotel room, or escorting him home) should an accident later befalls the patron.
161. The wider scope of such duty of care as framed by Ritchie and Judson JJ was recognised by the Ontario Court of Appeal in Canada Trust Co v Porter .[56] In that case, a patron consumed the equivalent of between 9 and 11½ bottles of beer over a 3-hour period at a hotel, and after he left the hotel he drove through a stop sign and killed/injured various persons in another vehicle. But unlike the plaintiff in Jordan House Limited , the patron in Canada Trust Co was practically a stranger to the bar staff, and he was served behind a partition so the bar staff could not keep track of how much the patrons were drinking and/or monitor their conduct. Nevertheless, the Ontario Court of Appeal rejected the argument that the bar staff was not aware of the patron’s intoxication, and held the hotel owner must establish serving/staffing practices to ensure its patrons were not served past the point of intoxication. The hotel owner was held to be in breach of its duty of care in serving alcohol to the 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.
162. In my view, Canada Trust Co appears to have extended the duty of care of an alcohol serving outlet or commercial host (a) to control the actions of its patrons to protect third persons who may reasonably come into contact with such patrons and to whom such patrons pose risk of harm, and (b) to cover all patrons irrespective of any personal dealings with the alcohol provider.
163. Then in Schmidt v Sharpe ,[57] the patron was already intoxicated when he entered the hotel where he consumed 3 beers. He drove off in his car after leaving the hotel, and rendered his passenger a quadriplegic in a motor accident. He was held partly liable for his passenger’s loss, but the hotel owner was also partly liable for breach of duty.[58] In that case, (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. But based on the patron’s blood alcohol level, the court considered the bar staff should have noticed his intoxication and found liability on the part of the hotel owner for the patron’s conduct.
164. Alcohol serving outlets or commercial hosts often have to deal with uncommon behaviour (eg unruly or disorderly patron who has a few drinks) and/or activities (eg function, event, performance or competition held by such outlets/hosts) at the drinking premises. An example of the latter is Crocker v Sundance Northwest Resorts Ltd .[59] In that case, the plaintiff entered a “tubing” competition on the ski hills sponsored by a ski resort. The plaintiff consumed alcohol at the resort bar throughout the day of the competition and was visibly drunk at the start of the heat. He suffered a cut above the eye in the 1st heat. He consumed more alcohol from the bar, and the organiser / resort owner asked him whether he was in any condition to compete in another heat, but took no other action to dissuade him from continuing on. The resort manager also suggested to the plaintiff it was not a good idea to participate in the heat after he fell over before the 2nd heat began, but took no further steps to restrain him when he insisted on competing. The plaintiff was thrown out of his tube on the way down a steep hill, suffered a neck injury and was rendered a quadriplegic. He sued the organiser / resort owner. The Supreme Court of Canada found the plaintiff was too drunk to have voluntarily assumed risk of injury, but accepted he was contributorily negligent.
165. Wilson J, who gave the judgment of the court, raised 2 questions: (a) whether the organiser / resort owner was required, in the circumstances, to take any positive step at all (existence of duty), and (b) if yes, whether the steps it took were sufficient to discharge its obligation (standard of care). On (a) above, it was held that since the activity (ie the “tubing” competition) was under the full control of the organiser / resort owner who promoted a dangerous sport for commercial gain, it inevitably owed to the plaintiff a duty of care to take all reasonable steps to prevent him from participating in such sport when it was aware he was visibly incapacitated. In such context, injury to the plaintiff was clearly foreseeable. On (b) above, the standard of care was dependent on context, and Wilson J alluded to various precautions open to the organiser / resort owner for dissuading the plaintiff from competing,[60] but such precautions were not taken. Risk of injury was greater for an inebriated competitor, so Wilson J held that even though a ski resort may allow/encourage sober able-bodied individuals to participate in dangerous recreational activities, it should not have opened its dangerous competition to persons who were obviously incapacitated. In such circumstances, failure by the organiser / resort owner to take reasonable steps to prevent the plaintiff (who was drunk) from competing caused his injury.
166. In that case, there was no need to resort to the monitoring duty to prevent intoxication in the first place as the plaintiff was already drunk/intoxicated and exhibited visible signs of such inebriation, but the useful takeaway from this authority is that the issue of duty of care turns on “‘relationship” and the issue of standard of care turns on “conduct”, with the former depending on the circumstances of the relationship between the parties, and the latter depending on the factual circumstances of the case (see paragraph 84 above). This lends support to Mr Wong SC’s contentions that a holistic approach, as Bokhary PJ admonished in Luen Hong Fat Coating & Finishing Factory Ltd (see paragraph 83 above), should be adopted to consider whether a duty of care should be imposed and what standard of care should be applied.
167. Next, the Canadian courts considered the issue of alcohol liability where the patron sequentially visited a series of alcohol serving outlets or commercial hosts for the purpose of consuming alcohol, but an accident/injury befalls the patron or third person after the patron exits the drinking premises of the last such provider. In Hague v Billings ,[61] a victim of a motor accident (ie a third party) caused by a drunken driver sued alcohol serving outlets in negligence. 2 bars were involved with 1st bar refusing the patron a 2nd drink (after having served 1 glass of beer) when its bar staff realised he exhibited obvious signs of intoxication. The patron went to the 2nd bar where he was served 4 more glasses of beer, but the bar staff there did not notice he was intoxicated and took no steps to see that he did not drive after leaving the bar premises. The patron then left the 2nd bar, and drove into the victim’s car. The owner of the 2nd bar was found liable.
168. As for the owner of the 1st bar, the court held it was under a duty to prevent the patron from driving when it knew the patron was a danger to people travelling on the highway, which duty arose at a point when its bar staff realised the driver was drunk. It was insufficient for the bar staff to convince the patron to hand over the car keys to one of his friends. Actual control of the situation was required, and if the bar staff were unable to do so, they should have called in the police. Thus, the owner of the 1st bar was found to be in breach of its duty of care. But in the end, it escaped liability on the basis of causation, ie the motor accident would still have occurred even if the bar staff had called the police.
169. In my view, the above case law demonstrates increasing willingness by the Canadian courts to impose greater responsibilities on alcohol serving outlets or commercial hosts towards (a) patrons who consume alcohol at their drinking premises and/or (b) third persons who may reasonably come into contact with such patrons and to whom they pose risk based on foreseeability, proximity and fairness/justice. Such incremental development of Canadian case law appears to have made inroads against a restrictive approach of imposing duty of care only under “exceptional circumstances” or only where the alcohol serving outlet or commercial host has actual knowledge (eg the patron is actually intoxicated/drunk) or constructive knowledge (eg the patron exhibits visible signs of intoxication) 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). Of course, there are still cases (eg Hague ) where the judicial approach on provider duty of care is more akin to that formulated by Martland, Spence and Laskin JJ than to that framed by Ritchie J (with whom Judson J concurred) in Jordan House Limited , but that appears to be because of the particular factual matrix of the individual case law rather than the limits of the scope/extent of the duty of care under Canadian jurisprudence. In my view, this goes a long way to support the arguability of P’s stance 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” or “knowledge” to raise “exceptional circumstances” (which contention was premised on the absence of any such general duty).
170. This trend was followed in further landmark decisions of the Supreme Court of Canada in Stewart v Pettie [62] and Childs v Desormaux .[63] In Stewart , the patron and his relatives went to a dinner theatre. He had been drinking throughout the evening, and consumed between 5-7 rum-and-cokes or 10-14 ounces of liquor. Despite the amount he had to drink, the patron showed no signs of intoxication. But such appearance was deceiving because he was intoxicated by the end of the evening. The dinner theatre was aware of his condition when he and his group left because the same waitress who served him all evening had kept a running total of all alcohol ordered by his group. The group allowed the patron to drive them home notwithstanding the availability of sober persons in the group who were aware of how much he had had to drink and how he reacted when intoxicated. No evidence was tendered as to what they would have done had the dinner theatre intervened. The patron’s driving on the way home was appropriate for the slippery road conditions, but he lost control and crashed the vehicle, and as a result a sober passenger suffered serious injuries and was rendered a quadriplegic. Blood alcohol testing of the patron revealed a level of alcohol over twice the legal limit.
171. It is important to note that the patron had no visible signs of intoxication, and but for the waitress keeping a running total of alcohol ordered by the group, the dinner theatre would not have known of the patron’s condition. The trial judge found the dinner theatre could not have been aware of the patron’s degree of intoxication, and did not impose liability on the basis of the number of drinks served. But the Alberta Court of Appeal allocated 10% liability to the dinner theatre. This was overturned by the Supreme Court of Canada which held the dinner theatre did not breach the duty it owed to the injured passenger.
172. Major J, who gave the unanimous decision of the court, examined previous cases, and found the existence or otherwise of a duty of care is a question of relationship and not a question of conduct (page 144), so it would turn on (a) whether the plaintiff’s relationship with the alcohol serving outlet or commercial host is of sufficient proximity that it is reasonably foreseeable the latter’s carelessness can cause injury to the plaintiff, and (b) whether there are considerations which will negative or limit (i) the scope of the duty, (ii) the class of persons to whom it is owed, and (iii) the damages to which a breach of it may give rise (ie the 2-stage approach in Anns v Merton London Borough Council[64] ) (pages 141-142). It was said that every person who enters a bar or restaurant is in an invitor-invitee relationship with the establishment, and is therefore in a “special relationship” with that establishment, so “[the] law is clear that at common law a tavern owner …… owes a duty to take positive action to protect patrons and others from the dangers of intoxication” (page 149). On such premise, it is a logical move to find a duty of care owed by alcohol serving outlets or commercial hosts to third persons who may reasonably be expected to come into contact with such patrons and to whom such patrons may pose some risk. It was said “[there] is no question that commercial vendors of alcohol owe a general duty of care to persons who can be expected to use the highways” (my emphasis) (page 145). Thus, it was held in Stewart that there was a sufficient degree of proximity between the dinner theatre and the injured passenger to give rise to a duty of care between them (page 143).
173. I pause to note the above appears to be clear Canadian jurisprudence that accepts 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. This is re-affirmed by the Supreme Court of Canada in Childs , and is contrasted to the judgments of Gleeson CJ and Callinan J of the High Court of Australia in Cole that deny the existence of any general duty of care by alcohol serving outlets or commercial hosts to protect patrons who consume alcohol at drinking premises from injury, which view was subsequently re-affirmed by the High Court of Australia in CAL No 14 Pty Ltd & anor . Bearing in mind the threshold requirement for amending pleadings and such judicial views in Canada, I am unable to say Mr Wong SC’s contention for the existence of a general duty of care owed by alcohol serving outlets or commercial hosts (eg D in the present case) to their patrons (eg P in the present case) was “bound to fail”. This would, of course, undermine D’s fundamental contentions that (a) there is no such general duty, so (b) a duty therefore can only arise in “exceptional circumstances”, and (c) such “exceptional circumstances” being “intoxication” and “knowledge” had to be pleaded to raise a viable cause of action.
174. Since liability in tort requires (a) the risk of injury/harm be foreseeable by the defendant and (b) a causal connection between the negligence of the defendant and the injury/harm to the plaintiff,[65] the most obvious case of injury/harm to patrons of alcohol serving outlets or commercial hosts and to third persons who are injured by such patrons’ actions is where the patrons are drunk/intoxicated to the actual knowledge of the outlets/hosts, eg the patrons demonstrated obvious or visible signs of alcohol impairment. But Major J made clear this did not fix the parameters of liability in negligence. He confirmed that an alcohol serving outlet or commercial host cannot escape liability merely because a patron does not show visible signs of impairment, and that if it is foreseeable, say, such patron will drive after exiting the drinking premises, such outlet/host has a positive obligation to monitor the patron’s alcohol consumption based on the amount served (and not solely on the patron’s visible condition) so it can determine whether any intervention is necessary (page 151):
“I agree with the Court of Appeal that [the dinner theatre] cannot escape liability simply because [the patron] was apparently not exhibiting any visible signs of intoxication. The waitress kept a running tab, and knew that [the patron] had consumed 10 to 14 ounces of alcohol over a five-hour period. On the basis of this knowledge alone, she either knew or ought to have known that [the patron] was becoming intoxicated, and this is so whether or not he was exhibiting visible symptoms.”
Likewise, Major J, citing Canada Trust Co , also said the alcohol serving outlet or commercial host cannot escape liability where it has “intentionally structured the environment in such a way to make it impossible to know whether intervention is necessary” (page 152).
175. In my view, it appears from Stewart that given the unquestionable existence of the general duty of care by alcohol serving outlets or commercial hosts to take positive steps to protect their patrons (or third persons) from the dangers of intoxication, even if a patron has not shown visible signs of intoxication, such duty requires an alcohol serving outlet or commercial host to (a) monitor the consumption of its patron, (b) make reasonable assumption from the amount consumed that its patron is likely to be impaired, and (c) take positive steps to prevent its patron from doing any act or activity that is likely to cause harm. If such outlet/host fails to do so, it is, in my view, arguable (or at least not “bound to fail”) on the basis of Stewart that it not only cannot escape liability for over-serving its patron who due to his state of intoxication decides to act in a way to cause injury to himself or to others, it also cannot escape liability through ignorance of the patron’s level of alcohol impairment as its staff ought reasonably to have keep tabs of the patron’s alcohol consumption. Indeed, the absence of any appropriate monitoring system to keep tabs of the patron’s alcohol consumption and/or the structuring of the drinking premises to render effective monitoring impossible can, on the strength of Stewart , arguably lead to the conclusion that the alcohol serving outlet or commercial host should have known the patron might have been intoxicated from the alcohol provided at the drinking premises.
176. Turning back to Stewart , apart from the existence of the duty of care which the court acknowledged, the issues therein were whether the dinner theatre (a) met the standard of care required of a reasonably prudent alcohol serving outlet or commercial host, and (b) was in breach of duty (ie it was negligent) in failing to take any “positive steps” to ensure its patron did not drive on leaving the dinner theatre.
177. For (a) above, the appropriate standard of care is a question of what conduct is required to satisfy the duty (page 144). At pages 145-146, Major J said as follows:
“I doubt that any liability can flow from the mere fact that the [hotel owner] may have over-served [the patron]. To hold that over-serving [the patron] per se is negligent is to ignore that the fact that injury to a class of persons must be foreseeable as a result of the impugned conduct. I fail to see how the mere fact that an individual is over-imbibing can lead, by itself, to any risk of harm to third parties. It is only if there is some foreseeable risk of harm to the patron or to a third party that [the hotel owner] and others in their position will be required to take some action. ……”
So the mere existence of a “special relationship” between alcohol serving outlets or commercial hosts and third persons (eg the motoring public or road users) who may be affected by the conduct of the outlets’ / hosts’ actions (ie the proximity necessary to give rise to a duty of care) will not of itself necessarily permit imposition of a positive duty on such outlets/hosts to act or to preclude them from considering other relevant matters (ie the case-specific factual circumstances) in deciding whether in such context positive steps are necessary (pages 149-150). After all, the sine qua non of tortious liability is foreseeability.
178. But even though no action is required in the absence of foreseeability, it was said that the circumstances often warrant such positive duty. After all, “[tort] law does not require the wisdom of Solomon. All it requires is that the people act reasonably in the circumstances ……” (page 150). So the question on the standard of care is whether the circumstances are that a reasonably prudent alcohol serving outlet or commercial host should have foreseen an intoxicated patron will likely drive a motor vehicle, and if so, such outlet/host must take positive steps to prevent the patron from driving to avoid liability (page 151).
179. In Stewart , since (i) the dinner theatre did not take steps to ensure the patron did not drive, and if the patron intended to drive, the dinner theatre’s employees did not suggest any alternative, and (ii) remaining “vigilant” and maintaining “careful observation” of the patron did not amount to taking positive steps, the dinner theatre could only escape liability if the facts of the case did not impose any obligation to take any positive steps to ensure the patron did not drive (ie the standard of care in paragraph 176(a) above) (pages 147-148). It was held on the facts in Stewart that the dinner theatre reasonably assumed the patron would not be the one to drive (so there was no need for the dinner theatre to enquire who was driving), and it could not have reasonably foreseen the patron would be the one to drive as he was accompanied by 3 persons 2 of whom were sober (pages 151-153). Quite simply, (1) the presence of sober companions with whom the patron came to the hotel, (2) the dinner theatre staff “remaining vigilant” and (3) the release of the patron into the charge of 2 sober companions were sufficient to negate the existence of risk of injury and to preclude need for further intervention by the dinner theatre, and it had taken sufficient “positive steps” to meet the standard required for discharging its duty of care (which unquestionably did exist). Thus, the dinner theatre was not liable to the injured passenger as it had not breached its duty of care.
180. Once Stewart (which echoed the judgment of Ritchie J with whom Judson J concurred in Jordan House Limited ) is properly understood, I agree with Mr Wong SC it is arguable (or at least not “bound to fail”) to contend that (a) the duty of care owed by an alcohol serving outlet or commercial host to protect its patron from risk of harm is not necessarily limited to when the patron is intoxicated, and can arise even before that point in time, and (b) establishing occupier/provider negligence does not necessarily require intoxication or drunkenness and/or visible or obvious signs of alcohol impairment. I tend to agree with Mr Wong SC that ascertaining the standard of care and breach of duty is a fact-specific enquiry on the evidence taking into account all the circumstances. In my view, there is real possibility that D’s such contentions may eventually carry the day at trial in the present action (or at least they are not “bound to fail”) by reference to the Canadian position irrespective of Australian and English positions, 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.
181. I add here that Major J held there was no clear violation by the dinner theatre of the liquor control legislation that prohibited serving of alcohol to persons who were apparently intoxicated given the patron did not exhibit signs of intoxication, and that being in violation of legislation alone would not ground liability (page 146). I will return to the matter of liquor control legislation below, but I reiterate that Mr Wong SC had made clear that P did not seek to put forward a freestanding civil cause of action based on breach of the DCO/DCLR and/or the Licence Conditions.
182. I next refer to Childs , another landmark decision by the Supreme Court of Canada about social host liability, which drew several distinctions between social hosts and commercial hosts that are helpful in distilling the legal/policy rationale for imposing a general duty of care on the latter and to elicit the basis for the requisite standard of care. It is also useful for highlighting the difference in legal/policy rationale that underpins the divergent judicial approaches adopted in Canada and (save for dissenting judicial opinion) in Australia. In my view, this also explains why, despite Mr Leung SC’s strong reliance on the Australian case law, P’s reliance on the Canadian approach underpinned by such legal/policy rationale as explained below to support the proposed Particular 6(17A) cannot be said to fall into the category of “bound to fail” contentions.
183. In Childs , 2 social hosts hosted a pot-luck dinner in a private home to which guests were to bring their own alcohol. One of the guests was a long-time heavy drinker, and that evening he drank about 12 beers in over 2½ hours, but the social hosts did not monitor his drinking more closely than the drinking of other guests. The guest was impaired by the time he left by car, and was involved in a motor accident on his way home. One of the passengers in the other car sued the social hosts for the injuries she suffered. The issue was whether social hosts owed any duty of care to third parties who might be injured by intoxicated guests.
184. The trial judge at the Ontario Superior Court of Justice held that a reasonable person in the position of the social hosts would have foreseen that the guest might cause an accident and injure others, but refused to impose a duty of care based on public policy grounds (page 647). The Ontario Court of Appeal held the social hosts did not owe any duty of care to the injured passenger of the other car because the relationship between them was not proximate enough to ground a duty of care (pages 647-648).[66] The Supreme Court of Canada held there was no duty of care between the social hosts and third party road users injured by the guest since sufficient proximity between them was not present (pages 664-665).
185. On the general test for a duty of care, McLachlin CJ, giving the judgment of the court, referred the 2-stage approach in Anns (pages 649-650 and see paragraph 172 above), and the elaboration in Odhavji Estate v Woodhouse[67] which affirmed the Anns test and spoke of 3 requirements, ie reasonable foreseeability (ie “conduct” as discussed in paragraph 84 above), sufficient proximity (ie “relationship” as discussed in paragraph 84 above), and the absence of overriding policy considerations which negate a prima facie duty established by foreseeability and proximity (ie “fair, just and reasonable to impose a duty of care” as discussed in Caparo Industries Plc and Luen Hing Fat Coating & Finishing Factory Ltd – see paragraphs 83-84 above) (page 650). McLachlin CJ went to say that whilst the claimant bears the ultimate legal burden of establishing a duty of care, once the claimant establishes a prima facie duty of care, the evidentiary burden shifts to the defendant to show countervailing policy considerations (pages 650-651).
186. McLachlin CJ noted Stewart held that “commercial alcohol providers …… owe a duty to third party members of the public who are injured as a result of drunken drivers of a patron …… Although the action was dismissed on the facts, Stewart affirmed that a special relationship existed between taverns and the motoring public that could require the former to take positive action to protect the latter” (page 652). The Chief Justice highlighted the following 3 matters for imposing a general duty of care on alcohol serving outlets or commercial hosts:
“The importance of this regulatory environment does not relate to the statutory requirements per se , but what they demonstrate about the nature of commercial alcohol sales and about the expectations of purveyors, patrons and the public. Selling alcohol is a carefully regulated industry. The dangers of over-consumption, or if consumption by young or otherwise vulnerable persons, means that its sale and service in commercial settings is controlled. It is not treated like an ordinary commodity sold in retail stores. The public expects that in addition to adherence to regulatory standards, those who sell alcohol to the general public take additional steps to reduce the associated risks. Furthermore, patrons are aware that these special responsibilities have very real and visible manifestations. The imposition of a “cut-off” at the bar is understood, and expected, as part of the institutionalization of these responsibilities. Similarly, in many establishments, “bouncers” both enforce admissions and assist other members of the staff who might have to deal with patrons who may have become intoxicated. ……”
“…… commercial alcohol servers have an incentive not only to serve many drinks, but to serve too many. Over-consumption is more profitable than responsible consumption. The costs of over-consumption are borne by the drinker him or herself, taxpayers who collectively pay for the added strain on related public services and, sometimes tragically, third parties who may come into contact with intoxicated patrons on the roads. Yet the benefits of over-consumption go to the tavern keeper alone, who enjoys large profit margins from customers whose judgment becomes more impaired the more they consume. This perverse incentive supports the imposition of a duty to monitor alcohol consumption in the interests of the general public.”
187. This is to be contrasted to the position of social hosts. In Childs , it was held that social host duty of care is a fact-sensitive matter. The complaint in that case was that the social hosts, having organised the party, permitted their guest to drink and then take the wheel of a car (page 658), but McLachlin CJ concluded that social hosts of parties where alcohol is served do not owe a duty of care to members of the public who may be injured by a guest’s actions unless the host’s conduct implicates him in the creation or exacerbation of the risk (pages 655 and 664):
(a)
on the question of foreseeability, the injury to the passenger in the other car on the facts was not reasonably foreseeable by the social hosts (ie although the risks of impaired driving and their consequences for road users are well known, there was no finding by the trial judge that the social hosts knew or ought to have known that the guest who was about to drive was impaired – page 656);
(b)
on the question of proximity, “[a] positive duty of care may exist if foreseeability of harm is present and if other aspects of the relationship between the [injured person] and the [social hosts] establish a special link or proximity” (page 658), but hosting a party at which alcohol is served does not, without more, establish the degree of proximity required to give rise to a duty of care on the hosts to third party highway users who may be injured by an intoxicated guest (page 664):
(i)
the courts have identified 3 such situations to elucidate factors or features of the relationship that can lead to positive duties to act, but the situation of the social host who serves alcohol to guests do not fall within these 3 categories or represent an appropriate extension of them having regard to the factors of risk-control (see (ii) below) and reasonable preservation of autonomy (see (iii) below) that animate them:
(1)
where a host “intentionally attracts or invites third parties into an inherent and obvious risk that he or she has created or controls” (pages 658-659) (but holding a house party where alcohol is served is a common occurrence and not such an activity – pages 661-662);
(2)
where there are “paternalistic relationships of supervision and control” (page 659) (but party hosts do not enjoy a paternalistic relationship with their guests nor are guests in a position of reduced autonomy that invites control – page 662);
(3)
where a host “exercises a public function or engage in a commercial enterprise that includes implied responsibilities to the public at large” (pages 659-660) (but private social hosts are not acting in a public capacity and do not incur duties of a public nature – page 662);
(ii)
holding a private party at which alcohol is served is insufficient to implicate the host in the creation of a risk sufficient to give rise to a duty of care to third parties who may subsequently be injured by the conduct of a guest because in creating a place where people can meet, visit and imbibe alcohol falls within the accepted parameters of non-dangerous conduct, and more is required to establish a danger or risk that requires positive action (pages 662-663);
(iii)
“[a] person who accepts an invitation to attend a private party does not park his autonomy at the door. The guest remains responsible for his or her conduct. Short of active implication in the creation or enhancement of the risk, a host is entitled to respect the autonomy of a guest. The consumption of alcohol, and the assumption of the risks of impaired judgment, is in almost all cases a personal choice and an inherently personal activity. Absent the special considerations that may apply in the commercial context, when such a choice is made by an adult, there is no reason why others should be made to bear its costs ……” (page 663);
(iv)
in respect of the factor of reasonable reliance, there was no evidence in Childs that anyone relied on the social hosts to monitor guests’ intake of alcohol or prevent intoxicated guests from driving, which is an important distinction between a private host and a public host who “provides alcohol to members of the public, under a strict regulatory regime. It is reasonable to expect the public provider will act to protect the public interest. There is public reliance that he will comply with the rules that prohibit serving too much alcohol to a patron and that if this should occur and the patron seeks to drive, that the public host will take reasonable steps to prevent the person from driving. The same cannot be said of the private host, who neither undertakes nor is expected to monitor the conduct of guests on behalf of the public” (pages 663-664).
188. I will return to Childs when I consider the different and almost obverse legal/policy rationale underpinning the Australian decisions in Cole and CAL No 14 Pty Ltd & anor that leaned against the existence of any general occupier/provider duty of care owed by alcohol serving outlets or commercial hosts to their patrons save in “exceptional circumstances” (although there are dissenting voices that echoed the Canadian approach). Indeed, not only does the mainstream Australian position decries any general duty to take reasonable care to protect patrons from risk of personal injury occasioned by consumption of alcohol at drinking establishments by laying emphasis on the individual freedom and the personal autonomy/privacy of mature adults, Gleeson CJ in Cole also opined there is no legal duty to rescue another or no duty by commercial providers to monitor and control the patrons’ consumption of alcohol (see paragraph 209 below). In doing so, Gleeson CJ, quite unlike the Canadian justices who regarded the aforesaid distinctions between commercial providers and social hosts as sufficient basis to pin a general duty of care on the former and not on the latter, saw no reason to distinguish between public hosts and social hosts, and the Chief Justice went further to say that, contrary to the Canadian view, a social host has “a much greater opportunity for appreciating the risks of injury, for monitoring the condition of the consumer, and for influencing the consumer’s behaviour” (paragraph 17 / page 58) (see paragraph 209 below). But again, as I have explained, the difference in legal/policy rationales that underlined divergent Canadian and Australian jurisprudence as to the existence or absence of a general duty of care to protect patrons from harm arising from their consumption of alcohol that turns on proximity / “special relationship”, foreseeability and fairness/ justice would only go to show the proposed Particular 6(17A) was not “bound to fail” (especially in the local virgin legal landscape) even though it did not expressly plead P’s “intoxication” and D’s “knowledge” thereof.
189. I bear in mind that the Canadian and local frameworks for establishing duty of care under the common law tort of negligence are not dissimilar (see paragraphs 82-84 and 185 above). Whilst the current liquor control legislation in Hong Kong may not be as progressive as it is in Canada, McLachlin CJ made clear it is not the statutory requirements per se that are important, but rather it is the fact that liquor control legislation reflects societal standards/expectations in relation to over-consumption of alcohol and risk of harm to consumers and others that has led to the imposition of a general duty of care on commercial providers. As there are no directly relevant authorities in Hong Kong that have reviewed the legal principles and societal considerations in this specific area, I cannot say the expansive Canadian approach that unquestionably accepts the “special” invitor-invitee relationship that imposes public host duty of care is wholly unarguable in this jurisdiction, especially when Luen Hing Fat Coating & Finishing Factory Ltd has placed emphasis on risk of danger to “life and limb” (instead of mere economic loss) that would involve legal policy (see paragraph 83 above). Such views of mine would necessarily disturb the primary foundation for D’s contention that an express plea of “exceptional circumstances” specifying the twin requirements of “intoxication” and “knowledge” was required to raise a viable “cause of action”, ie that there is no general duty of care owed by alcohol serving outlets or commercial hosts to their patrons or third persons who may be harmed as a result of the patrons’ alcohol consumption. In the circumstances, I am not persuaded the absence of particularity as to “exceptional circumstances” or as to the Deceased’s “intoxication” or “drunkenness” in the proposed Particular 6(17A) as presently formulated is fatal.
190. Also, it must not be forgotten that P by the 21/7/20 Letter had already given further voluntary particulars to clarify P’s case, ie that D was under a duty (as informed by the Licence Conditions) inter alia (a) to observe whether the Deceased was drunk and/or (b) not to allow its patrons (including the Deceased) to become drunk (in addition to a duty not to supply liquor to its patrons who were drunk), which fed P’s contention that the Deceased’s “degree of drunkenness” at the material time was “immaterial” to his contentions in the proposed Particular 6(17A) (see paragraph 33 above). Although public host duty of care is a fact-specific determination in the local context, P’s contentions above at the very least were not inconsistent with the Canadian jurisprudence premised on the well-known Anns approach and “special” invitor-invitee relationship, concepts which are not unknown in Hong Kong.
191. This was reinforced in Hummel v Jantzi [68] where G E Taylor J of the Ontario Superior Court of Justice held that a bar was liable for injuries sustained by passengers of a motor vehicle driven by an intoxicated patron. In that case, the patron and 5 friends visited a bar (that offered a “12 for 12 special”, ie a tray of 12 6-oz glasses of draft beer for CAD12) to watch a hockey game (paragraphs 79-80). The patron had consumed 2 beers beforehand (paragraphs 78-79), and at the bar the group consumed about 4 orders of the special, ie 42 glasses (paragraph 80). The patron had more than 1/6 share of the beer served to the group at the bar, ie about 20 glasses of beer (paragraphs 84-86). The group left after midnight, and the patron drove them to a supermarket to buy food (paragraph 81). When the patron left the bar, his blood alcohol concentration was estimated to be 220-240mg of alcohol in 100ml of blood (paragraph 83). The group returned to the plaintiff’s home, and 15-20 minutes later the patron drove the plaintiff to a gas station to buy cigarettes (paragraph 82). The patron was speeding on the way back, and failed to observe a stop sign at an intersection with the result that the vehicle veered off the roadway and crashed into a tree (paragraph 1).
192. The bar was held to owe a duty of care to the injured passenger (ie the plaintiff) even though the patron was able to drive the group safely to the plaintiff’s home after leaving the bar.[69] G E Taylor J held such duty of care arose out of both section 39 of the Liquor Licence Act 1990 (see paragraph 136 above) and the common law (see Childs at paragraph 186 above). It was reasonably foreseeable to the bar and its staff that patrons would arrive and leave in motor vehicles (paragraph 96), but the bar did not (a) have sufficient staff working that evening, ie it had only 2 servers with no one at the door and no one to check entrants’ identification to meet the legal drinking age (paragraphs 87 and 89), (b) offer food or water (paragraph 88), (c) by either server count the number of glasses consumed by each guest and simply assumed the beer was being consumed equally by everyone in the group (paragraph 88), (d) make enquiries about who in the group was driving (paragraph 89), and (e) have policy in place to monitor the number of glasses of beer any person in a group was consumed when the special was being offered (paragraph 90). The receipts confirmed the patron paid the bill, and by relying on expert evidence (that calculated back the patron’s blood alcohol level to the relevant times) the trial judge concluded that “at the time of leaving the [bar], [the patron] was exhibiting obvious signs of impairment: red eyes, staggering, stumbling, slurred speech and impaired fine motor skills” (paragraphs 83 and 92).
193. Relying on Williams v Richard[70] and Widdowson v Rockwell ,[71] the trial judge did not accept the argument that the group’s return to the plaintiff’s home terminated the bar’s liability:
“[106] …… It does not make sense that if [the patron] had been involved in an accident while driving from the [bar] to [the residence of one of the group], the [bar] would be liable to third parties such as [the injured passenger] but the [bar] is not liable to [the injured passenger] because [the patron] had driven him to his home. The same lack of judgement, induced by the consumption of alcohol, which resulted in [the patron] driving a motor vehicle upon leaving the [bar] and [the injured passenger] becoming a passenger in the vehicle also was a significant contributing factor to [the patron] and [the injured passenger] leaving the [latter’s] residence in [the patron’s] motor vehicle to go to purchase cigarettes. It was the same consumption of alcohol which impacted both poor decisions.
[107] Also, although not determinative of the issue, the Smart Serve protocols provide that the licensed establishment is responsible for the guest until he or she is sober.”
194. This case reinforces the Canadian emphasis on a publican’s general duty of care by reason of the “special” invitor-invitee relationship with its patrons as informed by liquor control legislation, and on a publican’s duty to monitor the patron’s consumption of alcohol before the point of intoxication, and it cites the use of documentary record of alcohol consumed in the relevant patron’s bill and expert opinion as to the patron’s blood alcohol level at the relevant time as evidence for the fact-sensitive enquiry (rather than as averments in pleadings) to infer the intoxication level of the patron vis-à-vis his alcohol consumption. This, in my view, echoed Mr Wong SC’s submissions before Master Kot (as helpfully summarised by Mr Leung SC in paragraph 63(b)-(d) above) and reiterated at the Appeal Hearing.
195. Another takeaway from this case concerns Mr Leung SC’s contention that in the absence of any plea of “exceptional circumstances” it was futile for P to refer to the Licence Conditions in the proposed Particular 6(17A) when the Canadian courts (and also courts in other common law jurisdictions) recognised that breach of statutory requirements under liquor control legislation (let alone licence conditions) will not give rise to civil cause of action. In the above discussions, I have dealt with the approach of the Canadian courts that does not appear to require “exceptional circumstances” to establish an “unquestionable” general duty of care. Whilst Mr Wong SC did not dispute that liquor control legislation of itself does not give rise to any standalone civil cause of action, and G E Taylor J also agreed “Smart Serve protocols” are not determinative of the issue, it was held in Hummel that the fact “Smart Serve protocols” “provide that the licensed establishment is responsible for the guest until he or she is sober” would inform on the duty of care owed by the alcohol serving outlet or commercial host. Here, even though there was no evidence there were similar local protocols like the “Smart Serve protocols”, the aforesaid observation by G E Taylor J would lend weight to P’s reliance on the Licence Conditions in the proposed Particular 6(17A) not as a freestanding cause of action (which was not P’s contention) but as a relevant factor that would inform the existence, extent/scope (and hence alleged breach) of D’s duty of care. This also echoed the statement in Clerk & Lindsell on Torts in paragraph 84 above that breach of a code of practice (or legislation) may be evidence of not conforming to the required standard of care, and also the observation by McLachlin CJ in Childs in paragraph 186(b) above that liquor control legislation does inform on the duty of care.
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.[72]
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.
198. But since Mr Leung SC strongly relied on the Australian and English positions, I go on to consider them.
(g) Australian position
199. As seen below, the legal principles on alcohol liability in Australia has developed at a more restrained pace for it seems that Australian judges have tended to proceed with greater caution than their Canadian counterparts by using tighter notion of proximity and higher degree of foreseeability, and they appear to be more willing to allow a defence of volenti non fit injuria against an intoxicated patron. But still there are some indications (especially in the dissenting/minority judgments) that Australian alcohol liability has room for development.
200. I start with Cole . In that case, the plaintiff and 3 friends (Mrs H and 2 men) went to a champagne breakfast hosted by a rugby league football club before a day of football at which free spumante (sparkling wine) was served to all comers (paragraphs 48-49 / page 64). About 100-120 persons attended the breakfast (paragraph 68 / page 67). Between 9:30am and 10:30am, the plaintiff consumed a large quantity of the free spumante[73] (paragraphs 33 and 61 / pages 60 and 66). After the free spumate ran out, Mrs H bought another bottle and shared that bottle with the plaintiff (paragraph 62 / page 66). Like other patrons, the plaintiff moved from time to time between the drinking area at the clubhouse and “the football area” where she could watch football games in the adjacent field (paragraph 67 / page 67).
201. At about noon, 2 men of the plaintiff’s group left the club (paragraph 49 / page 64). Mrs H testified that by then the plaintiff was drunk, carrying on and arguing, “flitting around and dancing”, and her speech was “a bit funny” (paragraphs 33, 67 and 114 / pages 60, 67 and 77). At/about 12:30pm, the plaintiff bought further bottle of spumante (paragraphs 6 and 63 / pages 55 and 66), and Mrs H saw her drinking straight from such bottle (paragraph 63 / page 66). By 1:30pm, the plaintiff was manifesting to some people signs of her inebriation (paragraph 114 / page 77). Mrs H testified that by about 1:45pm the plaintiff was “absolutely drunk” (paragraph 49 / page 64).
202. The plaintiff continued to drink into the afternoon though it was not shown whether or not she purchased any alcohol or was served alcohol by the club after 12:30pm, or whether it was supplied to her by the 2 men she met (paragraphs 6-7, 67 and 115 / pages 55, 67 and 77). Mrs H left at 2:20pm, but the plaintiff would not go home with Mrs H and preferred to stay with her new found friends at the club (paragraphs 6, 49 and 64 / pages 55, 64 and 66-67). Mrs H described the plaintiff’s condition at 2:15pm to 2:30pm as “very joyous and happy”, “an embarrassment” and “totally inebriated”, but the plaintiff was still able to direct a taxi driver where to take Mrs H and to make clear her decision to stay on at the club (paragraphs 6 and 101 / pages 55 and 74). At/about 3:00pm, the plaintiff went to the bar to buy another drink, but the manager’s wife, who described the plaintiff as unsteady on her feet, refused to serve her because of her state of insobriety (paragraphs 7, 33, 101 and 115 / pages 55, 60, 74 and 77). The plaintiff remained on the club premises in the company of her new found friends who, inferentially, were providing more alcohol to her (paragraph 64 / pages 66-67).
203. At about 5:30pm, the club manager said the plaintiff was “very, very drunk” or “grossly intoxicated”, and her disorderly/indecent behavior drew attention (paragraphs 22, 33, 101 and 114 / pages 58, 60, 74 and 77). At about 6:00pm (ie about 8 hours after the plaintiff arrived at the club), the club manager asked her to leave, and offered her transport home by the club’s courtesy bus or by taxi, but she refused both offers in blunt and crude terms (paragraphs 22, 50, 102 and 114 / pages 58, 64, 74 and 77). At this time, the plaintiff was in the company of the 2 men she met, and they were said to be sober. One of them told the club manager to leave the plaintiff with them, saying “we’ll look after her”. The club manager then went about his business, and a few minutes later the plaintiff and the 2 men left the club on foot (paragraphs 22, 50, 109 and 114 / pages 58, 64, 76 and 77). At about 6:20pm, the plaintiff (who was then alone) was run down by a car as she walked along the verge of the highway near the club and suffered serious injuries. She must have consumed great quantity of alcohol as her blood alcohol content was later found to be 0.238gm per 100ml or the equivalent of 16 standard alcoholic drinks (paragraphs 51 and 115 / pages 64-65 and 77).
204. The plaintiff sued the driver and the club in negligence. The trial judge Hulme J found the driver and the club liable in negligence but held there was contributory negligence, so liability was apportioned among the club (30%), the driver (30%) and the plaintiff (40%) (paragraph 52 / page 65). The New South Wales Court of Appeal unanimously allowed inter alia the club’s appeal and the driver’s cross-appeal, and dismissed the plaintiff’s claim upon setting aside the findings of negligence and rejecting a finding that the club owed the plaintiff a duty of care to protect her against risk of physical injury resulting from her behavior in consequence of her excessive consumption of alcohol (paragraph 53 / page 65).
205. The High Court of Australia by a 4-2 majority upheld the decision of the New South Wales Court of Appeal. But such decision is not easy to understand as the majority (Gleeson CJ, Gummow and Hayne JJ, and Callinan J) concluded that, if the club owed a duty of care, such duty had been discharged by what its staff had done in that case, so the majority did not explicitly deal with whether and when a duty of care may be owed by an alcohol serving outlet or commercial host to a patron/ consumer to protect him from personal injury, and because of this, the nature of any such duty was not discussed.
206. Gleeson CJ and Callinan J in their judgments did mention the club did not owe duty to take reasonable care to protect patrons against the risk of physical injury from consuming alcohol “in the circumstances of this case” (paragraph 9 / page 55).[74] McHugh J and Kirby J dissented, and concluded that a duty of care existed in the circumstances, it was breached, and such breach caused the plaintiff’s loss. Gummow and Hayn JJ did not deal with the duty of care as they considered it inappropriate to do so in abstract.
207. Turning first to the majority judgments, I start with that of Gleeson CJ. The Chief Justice said the club had no general duty to take reasonable care to protect the plaintiff from risk of personal injury occasioned by self-induced consumption of alcohol[75] on the premise that the law respects individual freedom and personal autonomy of mature adults to decide for themselves how much to drink, and unless the patrons are intoxicated to a very high degree they are responsible for their own acts and should not avoid responsibility for the risks that accompany a personal choice to consume alcohol (paragraphs 13-14 / pages 56-57). It was said that to consider imposing a duty of care or to impose liability on alcohol serving outlets or commercial hosts to prevent their patrons from becoming excessively intoxicated interferes with their freedom of action and their privacy, and fails to respect the value of personal responsibility for voluntary choices in face of obvious understanding of the dangers of drinking to excess (paragraphs 13-14 / pages 56-57).
208. But Gleeson CJ accepted there may be “extreme cases” or “a case that is out of ordinary” that may give rise to such a duty (paragraphs 13-14 / pages 56-57), and said as follows at pages 56-58:
“[13] …… The consumer knows the risk. It is true that alcohol is disinhibiting, and may reduce a consumer’s capacity to make reasonable decisions. Even so, unless intoxication reaches a very high degree (higher than that achieved by the appellant in this case) , the criminal and the civil law hold a person responsible for his or her acts. ……
……
[17] It is possible that there may be some circumstances in which a supplier of alcohol comes under a duty to take reasonable care to protect a particular person from the risk of injury resulting from self-induced intoxication [referring to inter alia Jordan House Limited that “involved knowledge of the plaintiff’s propensities, and placing him in a situation of known danger”] ……” (my emphasis)
209. Gleeson CJ highlighted the difficulty in limiting liability to situations where the patrons are highly intoxicated as it is not easy to discern such levels of intoxication:
“[10] Intoxication is an imprecise concept, but the laws concerning drink driving reflect the fact that a person in charge of a motor vehicle may be at risk of suffering, or causing, injury after three or four standard drinks. That is probably best known and most clearly foreseeable risk of injury that accompanies the consumption of alcohol. The risk does not necessarily involve a high level of intoxication. There are other forms of risk of physical injury which may accompany the consumption of alcohol, even in relatively moderate amounts. Consistently with the appellant’s argument, if she had gone home in the early afternoon, tripped on a doorstep, and suffered a broken wrist, she may have had a cause of action against the respondent.
……
[12] Some consumers of alcohol respond quickly to its effects, while others can consume a large quantity without much change of appearance or demeanour. People in both categories may be at risk if they drive a car. ……
……
[17] …… Depending upon the circumstances, a guest who has had a few drinks and intends to drive home may be at greater risk than a guest who is highly intoxicated but intends to walk home ……”
The Chief Justice also added that it is difficult to see a basis in legal principle, as distinct from legislative edict, by which a duty of care can be confined to an alcohol serving outlet or commercial host as opposed to a social host given the latter’s “much greater opportunity for appreciating the risks of injury, for monitoring the condition of the consumer, and for influencing the consumer’s behaviour” (paragraph 17 / page 58). It was also said that to impose on commercial suppliers of alcohol a general duty to protect consumers against risks of injury attributable to alcohol consumption involves burdensome practical consequences (page 56):
“[12] …… It provides no answer to say that such a duty comes into play only when a consumer is showing clear signs of a high degree of intoxication. The risk sets in well before that. The appellant argued that there is a duty on a supplier to “monitor” alcohol consumption. The capacity of a supplier of alcohol to monitor the level of risk to which a consumer may be expected is limited. If a restaurant proprietor serves a bottle of wine to two customers at a table, the proprietor may not know what either of them has had to drink previously, the proportions in which they intend to share the bottle, or what they propose to do when they leave the restaurant. Few customers would take kindly to being questioned about such matters.”
Gleeson CJ observed the general rule that a person has no legal duty to rescue another is premised on sound reasons of autonomy and privacy (paragraph 15 / page 57), and if the club’s duty was to monitor and control the plaintiff’s behaviour, this would have involved interference with her freedom of action and her privacy when she was of mature age without physical or mental infirmity. There was no basis for finding an exceptional duty in the circumstances of the case, and in any event, (a) there was no evidence the club served alcohol to the plaintiff after 12:30pm and (b) at that time there was no reason for the club’s employee who supplied the bottle of wine to regard the plaintiff as significantly intoxicated. After that time, the plaintiff had access to drink in addition to what was supplied by the club, and when she next sought to buy a drink at 3:00pm she was refused (paragraph 21 / page 58).
210. Gleeson CJ also found that even if there was any such duty owed by the club, the efforts by the club manager were reasonable and sufficiently discharged such duty by offering the plaintiff use of a courtesy bus, offering to ring for a taxi, and obtaining assurances from the plaintiff’s reasonably sober male companions that they would take care of her (paragraphs 23-24 / page 59). As for causation, the Chief Justice found the plaintiff’s intoxication was never so extreme that she was not responsible for her actions, and the efforts of the club manager were reasonable (paragraph 25 / page 59).
211. Callinan J held even if the club owed a duty of care to the plaintiff as suggested, there was no breach in the circumstances as the club manager reasonably asked her to leave, and she left the club with her male companions after refusing offer of transport. Further, it would have made no difference if the police had been called (paragraphs 125-126 / pages 79-80). His Honour also found the evidence did not establish (a) the plaintiff’s state of intoxication was apparent to the club’s employee when he sold a bottle of supmante to her at 12:30pm, or (b) no further alcohol was supplied by the club to her thereafter (paragraph 128 / page 80).
212. But Callinan J then went further than Gleeson CJ in finding that save in exceptional cases (paragraph 131 / page 81) the law should not recognise a general duty of care to protect patrons “from self-induced harm caused by intoxication” “following a deliberate and voluntary decision on their part to drink to excess” (paragraph 121 / page 78). He agreed with the observations by Heydon JA in the New South Wales Court of Appeal that placed emphasis on the values of individual autonomy and personal responsibility, and also on the concern that any duty to monitor/control patrons will infringe their privacy and liberty (pages 81-82):
“[131] I am also of the opinion that in general – there may be some exceptional cases – vendors of products containing alcohol will not be liable in tort for the consequences of voluntary excessive consumption of those products by the persons to whom the former have sold them. The risks begin when the first drink is taken and progressively increases with each further one. Everyone knows at the outset that if the consumption continues, a stage will be reached at which judgment and capacity to care for oneself will be impaired, and even ultimately destroyed entirely for at least a period.
[132] It follows that I would disagree with any propositions to the contrary deducible from the Canadian cases referred to in argument: Stewart v Pettie and Jordan House Ltd v Menow .”
213. Gummow and Hayne JJ gave a concurring judgment confining their decision to the case as pleaded (page 65):
“[57] The present litigation was pleaded and conducted in such a fashion as to conflate asserted duty and breach of that duty and to make it inappropriate to decide on this appeal any issue respecting the existence or content of a duty of care.”
Their Honours disposed of the appeal on the basis that even if there was a duty on the part of the club to take reasonable care to ensure the plaintiff did not leave the club in an intoxicated state except by a safe means of transport, there was no breach of that duty since it took reasonable steps to make safe transport available to her (paragraph 80 / page 69). They disagreed there was any additional duty (a) to “counsel” the plaintiff before she left to impress upon her the dangers that might await her “when she was willingly in the company of two apparently sober men offering to look after her” (paragraph 77 / page 69), or (b) to call the police (paragraph 79 / page 69). But even if there was duty to take reasonable care to monitor and moderate the amount of liquor the plaintiff drank and there was breach of such duty, it was not a cause of the injuries the plaintiff sustained (pages 68-69):
“[76] …… The fact remain that, before turning the [plaintiff] out of its premises, the club offered her safe transport home. This she refused and once she refused it, the club could do nothing more to require her to take care. In particular, it could not lawfully detain her. If, as happened here, she left the club and was injured, any carelessness of the club selling her liquor was not a cause of what happened. ……”
214. Their Honours suggested that considerations for the existence and scope of any such duty will be informed by the fact the patrons are adults who should not be ignorant of the intoxicating effects of alcohol voluntary consumed, and by the difficulties for alcohol serving outlets or commercial hosts to know/monitor alcohol consumption by the patrons and the state of intoxication they have reached (paragraphs 69-73 / pages 67-68). On the evidence of the case, they doubted whether there was any duty of care as (a) the source of alcohol consumed by the plaintiff in the afternoon was uncertain, (b) the evidence about the club knowing her alcohol intake that day was thin, and (c) there was no evidence to show the club staff could have observed how much she drank in the morning as there were about 100-120 persons at the champagne breakfast (paragraphs 65-68 / page 67). In short, Gummow and Hayne JJ found it impracticable for the club to monitor and observe patrons’ behaviour.
215. In the end, their Honours did not find it necessary or appropriate to articulate about the existence of a duty of care when the facts were inadequate to establish such duty, and considered any attempt to do so at a high level of abstraction would present more questions than answers and was apt to mislead (paragraph 81 / page 69), and they went on to say as follows (page 70):
“82. Here, as in so many other areas of the law of negligence it is necessary to keep well in mind that the critical question is whether the negligence of the defendant was a cause of the plaintiff’s injuries. The duty that must be found to have broken is a duty to take reasonable care to avoid what did happen, not to avoid what did happen, not to avoid “damage” in some abstract and unformed sense. Thus asking whether it is careless to sell liquor to an obviously intoxicated patron may, when the question is cast in that abstract form, appear to invite an affirmative answer. And giving an affirmative answer may be thought to conduce to the careful and responsible service of a product which, if misused, can be dangerous. But as the events which give rise to this appellant’s claim demonstrate, the simplicity of a question framed in the way described serves only to obscure the complexity of the problems that lie beneath it.”
216. In their dissenting judgments, 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.
217. In line with the Canadian approach, McHugh J explained at page 60 as follows:
“[31] The duty of an occupier is not confined to protecting entrants against injury from static defects in the premises. It extends to the protection of injury from all the activities on the premises. Hence, a licensed club’s duty to its members and customers is not confined to taking reasonable care to protect them from injury arising from the use of the premises and facilities of the club. It 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. It must extend to injury that is causally connected to ingesting beverages as well as to internal injury that is the result of deleterious material, carelessly added to the beverages.
[32] If the supply of intoxicating alcohol by a club to a customer gave rise to a reasonable possibility that the customer would suffer injury of a kind that a customer who was not under the influence of liquor would be unlikely to suffer, the club is liable for the injury suffered by the customer provided that the exercise of reasonable care would have avoided the injury. That statement is subject to the qualification that the injury must be of a kind that was reasonably foreseeable. However, 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.”
218. Kirby J explained at pages 71-72 that the plaintiff (and patrons of alcohol serving outlets or commercial hosts) was “potentially vulnerable to harm as a result of [the club’s] commercial activities”, so the club had a duty in terms as explained by McHugh J as follows:
“[91] The law of tort exists not only to provide remedies for injured persons where that is fair and reasonable and consonant with legal principle. It also exists to set standards in society, regulate wholly self-interested conduct and, so far as the law of negligence is concerned, to require the individual to act carefully in relation to a person who, in law, is a neighbour. The club had a commercial interest in the supply of alcohol to its members and their guests, including the [plaintiff]. Doing so tended to attract them to an early morning breakfast, to induce them to use profitable gambling facilities in the club’s premises and to encourage them to use the restaurant and other outlets where alcohol would continue to be purchased or supplied to the profit of the club. 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 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 .
[92] In such circumstances, to hold that the club owed no duty of care by the standards of the common law of negligence to patrons such as the [plaintiff], is unrealistic . Such 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 its commercial activities. Such harm was reasonably foreseeable in the given circumstances. The [plaintiff] was within the proximity of the club in a physical sense . The policy reasons, concerned with free will and personal autonomy that might in other circumstances justify withholding the imposition of a duty of care are overridden, in the case of the club, by the commercial interest it had in the presence of the [plaintiff] on its premises and the known propensity of the alcoholic product, made available there, to expose at least some individuals to the risk of serious harm.
[93] With all respect to those with doubts or holding contrary views, I therefore have no hesitation in concluding that the club owed the [plaintiff] a duty of care of the kind deposited. There is much support for this proposition in Canada: Jordan House Ltd v Menow and Stewart v Pettie . There are many decisions elsewhere that support the general proposition that a person in control of licensed premises owes a duty of care in negligence to take reasonable precautions in the circumstances not to contribute to a danger to others: Chordas v Bryant (Wellington) Pty Ltd and Munro v Porthkerry Park Holiday Estates Ltd . The withered view of community and legal neighbourhood propounded by Gleeson CJ and Callinan J is one of that I would reject.” (my emphasis)
219. As regards the majority’s concerns over “monitoring” of alcohol consumption, McHugh J noted that monitoring had already occurred and was inherent in the positive duty to take care, and monitoring was also required to fulfil the occupier’s duties to prevent patrons causing injury to one another (pages 61-62):
“[35] 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. It is not to the point …… that this might require the club to constantly survey the condition of those drinking alcohol on the premises. The need to monitor the conduct of others and to intervene by advice, warning or more drastic action are frequent characteristics of affirmative duties. No one could plausibly deny that, if a club’s failure to monitor the conduct of persons on the premises led to a club member sustaining injury, the club would be liable in negligence for its failure. 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. Not much experience of clubs and hotels is needed to know that, in many – probably most – of them, management is constantly monitoring the conduct and condition of those on the premises. Indeed, many clubs and hotels employ personnel for no other purpose than to monitor and, where necessary, control the conduct of patrons.”
Thus, it was said the club had a duty to monitor the behaviour/condition of those present, and it had numerous opportunities throughout the day to observe the plaintiff’s increasingly intoxicated condition (paragraph 39 / page 62). By lunchtime her intoxication was plain to all who cared to look (paragraph 33 / page 60), so the irresistible inference was that by early afternoon the plaintiff was reduced to a state that she would suffer harm of some kind as a result of alcohol consumption, and the more she drank the more likely she was to suffer serious harm (paragraph 34 / pages 60-61). So McHugh J was of the view that at the latest by early afternoon the club ought to have foreseen her drinking had the effect of exposing her to real possibility of injury, and it ought to have taken action to prevent it[76] (paragraph 34 / pages 60-61). “Discharge of its duty required the club to prevent her from drinking more alcohol after the time when it ought to have realised that any further drinking by her could result in her suffering harm” (paragraphs 39-41 / pages 62-63), and the club’s duty was not discharged by refusing to sell her further alcohol at 3:00pm and by the club taking no steps to prevent her drinking until probably close to 5:30pm when the club manager told her to leave.
220. McHugh J concluded that since the club had breached its duty in the early afternoon (paragraph 41 / page 63), it was irrelevant that the plaintiff later refused the club’s transport offers or that the club relied on assurances by the plaintiff’s new found companions (paragraph 43 / page 63) as these matters did not break the causal link between breach and injury. McHugh J said the plaintiff’s rude refusal of the offer of transport home was exactly the kind of response that might have been expected to flow from the club’s breach of duty in allowing her to drink alcohol (paragraph 43 / page 63). On the issue of remoteness of damage, McHugh J held it was reasonably foreseeable that the plaintiff’s state of intoxication might result in her suffering injury for up to an hour or even longer after she left the club premises (paragraphs 44-45 / pages 63-64).
221. Further, as regards difficulties in determining the levels of intoxication, McHugh J said this went to the standard of reasonableness and not to the existence of the duty of care (page 61):
“[36] Nor is it to 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, hotels, restaurants and others are held to the standard of reasonableness, not mathematical precision. It may be an axiom of business management that you can’t manage what you can’t measure. But in this area of management control, precise measurements are not required. It is not a question of whether the plaintiff had a blood alcohol reading of .11 or .15 or some other figure. 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.”
222. As regards the majority’s concern over common law values of personal autonomy and individual responsibility, McHugh J said like all common law doctrines there are exceptions, and any duty of care (especially when it extends to taking affirmative action) will curtail the autonomy of the defendant to the extent of the duty. He compared it to that of an employer who “does not escape liability for failing to laying down a proper system of work because its employee took it upon himself to do the work in a manner that caused his injury”, particularly where the duty owed extends to protect the claimant (paragraph 38 / page 62).
223. Kirby J held that in certain circumstances the values of free will and personal autonomy may be overridden by the commercial setting in which the alcohol is supplied for profit and the known propensity of the alcoholic product. His Honour also saw the recognition of a duty of care in these circumstances as sending a message to commercial alcohol providers to act responsibly, which accorded with his view that tort law exists partly to set standards in society (paragraph 91 / pages 71-72). His Honour relied on liquor control legislation and Canadian case law as supporting the imposition of a duty on the part of the club vis-à-vis the plaintiff (paragraphs 92-93 / page 72).
224. In the circumstances of the case, Kirby J found the efforts by the club manager at 5:30pm were not relevant to issue, and the club did not discharge its duty of care by offering transport at about that time, which offer was simply too little, too late (paragraph 106 / page 75). Kirby J found the club ought to have taken steps in the early afternoon to be stricter about preventing sale or supply of more alcohol to the plaintiff, and if necessary, to call the police and/or to remove her from the club premises. Had this been done, Kirby J considered “the police would, probably, have taken her in hand, put her off the premises and insisted on her taking the proffered transport home” (paragraph 108 / pages 75-76).
225. If I were to summarise Cole on the issue of duty of care in a sentence, which is hardly an easy matter, it is this: 2 justices said there was no duty, 2 justices said there was, and 2 justices said the facts were insufficient to establish a duty. McHugh and Kirby JJ held a relevant duty did exist by reason of the control by the occupier/provider (ie the alcohol serving outlet or commercial host) over the drinking premises and the activities therein, and (per Kirby J) by reason of the duties under statute and the commercial interest in the sale/supply of alcohol. Such approach reverberated nicely with the legal/policy rationale that underlined in the Canadian jurisprudence for acknowledging such general duty of care (see, eg, explanation by McLachlin CJ in Childs in paragraph 186 above). McHugh and Kirby JJ were firmly of the view that the tort law of negligence should set the standards by which society regulates alcohol serving outlets or commercial hosts to prevent or discourage them from selling/supplying alcohol to patrons for commercial gain without any eye to their safety, and to reinforce the legislative will to prohibit the liquor licensee from supplying further alcohol to the intoxicated (as echoed in McLachlin CJ’s reasoning in Childs in paragraph 186(b)-(c) above). For these reasons, they considered a general duty of care to be appropriate in this context (but standard and breach will turn on the factual matrix) without need to identify “exceptional circumstances”.
226. On the other hand, Gleeson CJ and Callinan J emphasised individual autonomy, freedom of choice and personal privacy to conclude no general duty should be imposed, and their Honours appeared to regard voluntary assumption of risk (usually regarded as a defence concept in answer to a claim in negligence) as basis to find against the existence or breach of a duty of care such that once the patrons choose to engage in an activity with known risks (eg self-consumption of alcohol with the well-known consequence of impairing one’s judgment), then gradual reduction of their decision-making ability for avoid risks due to engaging in such activity (eg the patron becomes progressively inebriated by continuing to imbibe alcohol) will not reduce their personal responsibility for exercising free choice to assume such risk. Their Honours said there were exceptions, but even though they acknowledged intoxication to be an imprecise concept, they only suggested a duty of care will arise if there is a very high degree of intoxication or an extraordinary case. Turning to the concurring judgment of Gummow and Hayne JJ, although their Honours refrained from dealing with the question of duty, their references to risks known to adults and practical difficulties in monitoring/assessing levels of intoxication also leaned towards a more circumscribed duty by alcohol serving outlets or commercial hosts that required either actual knowledge of serious intoxication or other exceptional circumstances when lesser intoxication causes significant risk to safety.
227. Thus, contrary to the Canadian jurisprudence and notwithstanding a strong dissenting voice, the majority decision in Cole suggests a restrictive rather than expansive approach for Australia on alcohol liability that embraced individual autonomy, personal responsibility, privacy protection and/or free will over social objectives (to prevent or at least not to cause foreseeable danger to proximate “neighbours”), collective responsibility and/or loss spreading (ie share liability with the direct tortfeasor or self-injured “neighbour”).
228. Callinan J had to accept the concept of no general duty save for exceptional circumstances was contrary to the principles deducible from the Canadian cases of Stewart and Jordan House Limited (see paragraph 212 above). Gleeson CJ as well as Gummow and Hayne JJ rejected any monitoring duty as burdensome (see paragraphs 209 and 214 above) and Callinan J saw such duty as interference with freedom of action and individual privacy (see paragraph 212 above), which again do not sit well with Canadian case law such as Jordan House Limited , Stewart , Childs and Hummel that affirmed such duty (see paragraphs 159, 174-175, 186(a), 192 and 194 above), but the Canadian approach (see paragraph 160 above) was in line with the minority view of McHugh and Kirby JJ that the existence of such monitoring duty meant subsequent acts by the publican cannot undo any anterior breach of such duty (see paragraphs 220 and 224 above). In my view, it is unclear at this stage whether the Canadian approach (also advocated by McHugh and Kirby JJ in Cole ) or the majority view in Cole will eventually prevail in Hong Kong, or whether having considered such overseas jurisprudence the Hong Kong courts will search for its own unique answer to the equilibrium between consumer privacy and community safety in light of local social values, factual context, legal development and legislative will. It is, therefore, difficult to see how the court can at this interlocutory stage adopt a blinkered acceptance of the majority’s approach in Cole and ignore the reasoning of the minority in Cole and the fundamental premise of Canadian case law to disallow the proposed Particular 6(17A) as a “bound to fail” averment on the basis that P did not plead “intoxication”, “knowledge” and/or “exceptional circumstances”. This is especially when Luen Hing Fat Coating & Finishing Factory Ltd admonished that when one stands back to take 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, one keeps in mind that what is at risk is the plaintiff’s body, which legal policy will regard as a powerful consideration (see paragraph 83 above).
229. I also note Mr Leung SC drew a bright line between “occupancy duty” and “activity duty”. But as explained in paragraph 101 above, it is arguably uncertain whether there is such strict demarcation under ordinary negligence in common law as distinct from occupier’s liability at common law. Indeed, McHugh and Kirby JJ said “…… 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 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” (see paragraph 218 above). This dissenting opinion (a minority view in Australia that on more mature argument at trial may well be persuasive in Hong Kong) lends weight to Mr Wong SC’s submissions that the proposed Particular 6(17A) was an additional particular for the cause of action for ordinary negligence at common law that had already been pleaded in the SoC rather than a new and as yet unpleaded cause of action.
230. As regards the intervention of statutory law, section 44A of the Registered Clubs Act 1976 (NSW) referred to in Cole provides inter alia that it was an offence for a secretary of a registered club to permit intoxication on the club premises, and for any person who sells/ supplies liquor to an intoxicated person in a registered club[77] (paragraph 127 / page 80). The majority dismissed the relevance of such provision (which Gummon and Hayne JJ found to be designed to preserve order in licensed premises rather than to protect individuals from the results of intoxication) as the action was not for breach of statutory duty (paragraphs 16, 74 and 128 / pages 57, 68 and 80) and the plaintiff was evicted when intoxication was noticed (paragraph 128 / page 80).
231. For the dissenting minority, Kirby J noted it was not argued that the statutory provision of itself gave rise to a civil cause of action. But he considered the common law duty in negligence will mould itself to the statutory obligation and parliamentary purpose:
“[94] There is no reason for this court to endorse the narrower legal principles for Australia. There is every reason for it to follow an approach similar to that taken in other jurisdictions. The social and legal environment in Australia is similar to those countries where the duty has been upheld. This conclusion is also endorsed by the indications of the purposes of Parliament in the statutory provisions regulating control of, and standards in, registered licensed clubs in the State of New South Wales where the appellant’s injuries occurred. Although these provisions do not themselves give rise to statutory cause of action (and none was alleged) they do shed light on the problems presented because they make plain the purpose of Parliament that intoxicated persons are not to be sold, or supplied with, alcohol on such club premises. Doing so is a criminal offence in proof of which the onus of establishing innocence is exceptionally placed on the club secretary, not the accuser.
[95] Statutory provisions of such a kind can only be explained by Parliament’s recognition, and acceptance, of the special risks that selling, supplying or condoning and sale and supply of excessive quantities of alcohol to sometimes vulnerable patrons on such premises occasions to them and to others. The principles of the common law of negligence remain to be expressed in the context of these realistic statutory provisions. They reinforce the conclusion, which commensense affirms, that the club owe a duty of care to the [plaintiff] as claimed. In the circumstances of this case, they help to overcome the common law’s usual reluctance to impose on strangers duties of affirmative action to take care of others. Here the [plaintiff] was not a legal stranger to the club. The Registered Clubs Act 1976 imposed duties in respect of her. To the [plaintiff], the club was, in law, a neighbour.
……
[104] Either this court accepts that the law imposes a duty of care on those in effective control in such circumstances (the club and its employees) or it transfers responsibility solely to a person whose capacity to exercise responsibility had been repeatedly and seriously diminished over a very long time by the type of conditions that existed in the club premises, as described in the evidence. If responsibility – even partial – is imposed on the club by the law of negligence a message is sent that control is not just a formal duty imposed on the club and its officers by Parliament and by statutory offences unlikely to be prosecuted often. A holding of liability in negligence would reinforce such duties by visiting civil consequences that would sound in direct liability to the injured, with a resulting increase in insurance premiums that might stimulate a desirable change of culture and conduct. The club’s eventual response to [plaintiff’s] conduct can be seen for what it was: an instance of too little, too late. By their decision, the majority of this court tolerate and perpetuate this state of affairs. I dissent from their view. It is not the concept of the law of tort that I hold.
……
[108] By the standards of commonsense the club, through its secretary/manager and employees who also had important statutory duties to observe, should have taken steps much earlier to prevent sale or supply of more alcohol to the [plaintiff]. The club, the secretary/manager and the employees should have been much more strict about it. If necessary, they should have called the police as the applicable legislation contemplates. Doing so would doubtless have put in motion a realistic and enforced procedure for taking the [plaintiff] home by transport supplied by the club. That, in my view, is what the common law required, and should require, of a vendor of alcoholic drinks in circumstances such as these. The [plaintiff] was unlikely to have responded to the police as she did to the secretary/manager of the club. Had she done so, I do not doubt that, at the least, the police would, probably, have taken her in hand, put her off the premises, and insisted on her taking the proffered transport home. Clearly, this is what would once have happened in Australia as it happened elsewhere [citing Jordan House Limited ]. I do not see that the law today condones a lesser standard of care in our community for a person substantially dependent on others for her physical safety, even her life, by the commercial operations of those with full lawful charge over the sale and supply of alcohol to vulnerable recipients.
……
[110] The majority of this court disagrees with my conclusion. However, in my opinion the expressed attitude of the club’s secretary/manager and the conduct and “blind eyes” of the other employees of the club did not reach the standards of the common law. The club was not a kindergarten. But it was not a place for substantial indifference to a person who became steadily, obviously and seriously intoxicated. Statute imposed, or implied, relevant duties on those in charge of the club and its premises. And so did the common law. It was open to the primary judge to so conclude. The Court of Appeal erred in interfering in the judgment in favour of the [plaintiff] against the club based on the trial judge’s assessment.”
On the basis of such judicial opinion, albeit dissenting, I am hardly able to say that such view will definitely not carry the day and therefore should be disallowed at this stage, especially when even the majority view in Cole is at best persuasive and not binding in this jurisdiction. In my view, these observations lend support to Mr Wong SC’s contention that liquor licence control statutory obligations (and by analogy the Licence Conditions) will inform on the existence/scope of the duty of care even though such statute/conditions of themselves do not constitute an independent or freestanding cause of action.
232. Mr Leung SC next referred to CAL No 14 Pty Ltd & anor . In that case, the deceased and his friend went to an inn after work. The deceased rode to the inn on his wife’s motorcycle. He was a regular purchaser of liquor from the bottle shop at the inn, but was not a regular patron of the public bar (paragraph 7 / page 398). Since 5:15pm the deceased consumed 7-8 cans of Jack Daniels and Cola. Between about 6:00pm and 6:30pm, rumor circulated there was either a speed camera or police breathalyzer near where the deceased lived. The deceased’s friend suggested that the deceased should lock his motorcycle in the inn’s storeroom, and an arrangement was made with the licensee to such effect. The licensee kept the keys to the motorcycle in a petty cash tin, which was the normal place for keeping keys handed over by patrons. The licensee understood that the deceased’s wife would pick up the deceased later, and the motorcycle would be collected the following day (paragraph 8 / page 398).
233. At about 7:00pm, the wife of the deceased’s friend arrived at the bar and offered 2-3 times to drive the deceased home. The deceased refused and said he would call his wife to collect him. The friend’s wife did not consider the deceased to be intoxicated. At/about 7:45pm to 8:15pm the friend and his wife left (paragraph 9 / page 398), and at about 8:00pm the licensee refused to serve further alcohol to the deceased and told him it was time for him to go home. The licensee asked for his wife’s telephone number to call her to come and get him. As observed by a Mrs T, the deceased swore at the licensee and refused to provide the number; he was verbally aggressive, and became angry and agitated. In fact, Mrs T talked to the deceased before the unpleasantness (when he was “friendly and normal”) and afterwards (when he became “agitated, angry and stroppy ……”), but she did not notice the deceased had signs of intoxication (paragraph 10 / pages 398-399). Soon after, the deceased left the inn for a few minutes, and when he returned he asked the licensee for the keys to his motorcycle. The licensee asked him 3 times whether he was “right to ride”, and he answered he was fine. The licensee handed over the keys and unlocked the storeroom, and the deceased left on his motorcycle (without any apparent trouble) to return to his home about 7km away (paragraphs 2 and 11 / pages 397 and 399). By 8:30pm the deceased’s wife became worried, and went out in her car to look for him. She failed to find him, and returned home. In fact, at/about 8:30pm, the deceased, who was then about 700m from home, ran off the road, collided with a guardrail, and suffered fatal injuries (paragraphs 2 and 12 / pages 397 and 399).
234. The deceased’s blood alcohol level was 0.235g per 100mL, and it was common ground the accident resulted from the deceased’s alcohol ingestion. The deceased’s widow and the Motor Accidents Insurance Board of Tasmania (“MAIB ”) sued the proprietor and licensee of the inn in negligence. Blow J of the Supreme Court of Tasmania followed Cole and found the proprietor and the licensee did not owe any relevant duty of care to the deceased, but noted that if they did, they were in breach of such duty and such breach caused the deceased’s fatal injuries (paragraph 4 / page 397).
235. Evans and Tennet JJ being the majority of the Full Court of the Supreme Court of Tasmania (with Crawford J dissenting) allowed the appeal. They concluded that the proprietor and the licensee each owed a duty to take reasonable care to prevent the deceased from riding his motorcycle while so affected by alcohol that his ability to ride safely was reduced/impaired (paragraph 21 / page 401), and they agreed with Blow J there was a breach of duty that was causative of the deceased’s death (paragraph 5 / page 397).
236. On the appeal by the proprietor and the licensee to the High Court of Australia, the issue was whether they owed the deceased a duty of care under a narrow formulation, ie a duty to take the reasonable care chosen by the deceased and the licensee as the means by which to protect the deceased from facing the risks of driving the motorcycle whilst intoxicated, the means being to telephone the deceased’s wife so she could come and collect him (paragraph 32 / page 404). The majority (Gummow, Heydon and Crennan JJ) found for the proprietor and the licensee on the basis that no duty would arise on the circumstances of the case, but even if there was such a duty there was no breach of duty, and even if there was such breach of duty it was not causative of the deceased’s fatal injuries, so the appeal was allowed (paragraph 6 / page 397).
237. On the issue of duty of care, the majority in the Full Court held that the proprietor and the licensee owed the deceased the narrowly formulated duty of care set out in the above paragraph, which Gummow, Heydon and Crennan JJ noted was not a duty to restrict service of alcohol to the deceased (paragraph 31 / page 404). On the appeal to the High Court, the deceased’s widow and the MAIB, by referring to the central features of the relationship between the proprietor/licensee and the deceased[78] (paragraph 32 / pages 404-405), argued that the former owed such narrowly formulated duty of care by reason of the vulnerability of the deceased and the capacity of the proprietor and the licensee to influence events. But Gummow, Heydon and Crennan JJ disagreed with the Full Court’s view that the deceased was vulnerable, and found no duty could arise because (a) the deceased was 41 years old, (b) (according to his widow) he was an experienced moderate to heavy drinker, (c) the wives of the deceased and his friend as well as Mrs T did not notice conventional signs of drunkenness in P, (d) the licensee refused to serve alcohol to the deceased who was likely to be conscious of his own capacity under influence of drink, (e) the deceased assured the licensee he was fit to drive, (f) the deceased was able to drive the motorcycle out of storeroom without alerting the licensee to any incapacity to drive, and (g) the deceased knew the short route home very well (paragraphs 33-34 / page 405).
238. Gummow, Heydon and Crennan JJ went further to hold that even if a licensee sometimes owes a duty to take reasonable care in relation to the future service of alcohol or the consequences of having served it in the past, no duty could arise in that case (paragraph 35 / page 405) because:[79]
(a)
the arrangement for the licensee to store the motorcycle in the storeroom was just an informal one for the convenience of the deceased and was instigated by his friend to avoid the deceased being breathalyzed by the police rather than to avoid being physically injured or killed, and in particular such informal arrangement (i) gave the licensee no authority over the motorcycle, (ii) did not deprive the deceased of his right to demand immediate possession of the motorcycle, (iii) imposed no duty on the licensee to telephone the deceased’s wife, (iv) left it open to the deceased to terminate the arrangement if he wished, and (v) being a sub-bailment of the keys/motorcycle that was gratuitous and at will (paragraph36 / pages 405-406);
(b)
the formulation of the alleged duty was narrow as it selected a particular chain of circumstances leading towards the deceased’s death, and it contended that the duty was one to take care to prevent that particular chain of circumstances from occurring, which “formulation obscures difficulties in recognising duty” as follows (paragraph 37 / page 406);
(i)
the alleged duty would have conflicted with the deceased’s autonomy because the relationship between the deceased and the proprietor/licensee and the informal arrangement devised by the deceased’s friend did not impair the deceased’s autonomy (paragraph 38 / page 406);
(ii)
finding a duty of care in such circumstances (eg “a duty to threaten or to use physical force to prevent [the deceased] from obtaining the keys to the motorcycle”) would have conflicted with other torts such as assault and battery (paragraph 39 / pages 406-407);[80]
(iii)
finding a duty of care in such circumstances (eg “a duty to prevent [the deceased] leaving the premises on the motorcycle the possession of which he was entitled and which he requested”) would have clashed with the law of bailment and duty not to commit false imprisonment (paragraph 40 / page 407);[81]
(iv)
finding a duty of care in such circumstances would have lacked legal coherence with alcohol-related legislative regimes being the Liquor and Accommodation Act 1990 that imposed a statutory duty on the licensee to refuse the deceased service and not provide him with liquor if he appeared drunk, and required him to leave the inn and take reasonable steps to prevent the commission of an offence (but only on the licensed premises) because such legislation did not confer power on a citizen to forbid the deceased from driving his motorcycle, to direct the deceased to deliver up the keys, and/or to lock up the deceased’s motorcycle or put it somewhere safe (paragraph 41 / pages 407-409);[82]
(c)
the case urged by the deceased’s widow and MAIB (ie that the licensee should have refused the return of the motorcycle at all costs) conflicted with the case which Evans J in the Full Court accepted as to the breach of duty (ie that the licensee should have delayed, deflected and stalled in order to prevent the deceased from getting the keys and hence the motorcycle, and the licensee should have manifested some resistance to returning those items, which reasoning assumed that the licensee had no power to refuse return of the keys/motorcycle or to resist the deceased’s wishes) (paragraph 43 / page 410).
239. Gummow, Heydon and Crennan JJ recognised that in exceptional cases there may be a duty of care owed by alcohol serving outlets or commercial hosts to their patrons as to the consequences of serving alcohol, eg when the patron is “so intoxicated as to be incapable of any rational judgment or of looking after himself or herself, and the intoxication results from alcohol knowingly supplied by an innkeeper to that person for consumption on the premises”, or when the patron is intellectually or mentally impaired, but the situation of the deceased bore no resemblance to such an exceptional case (paragraph 44 / page 410).
240. Gummow, Heydon and Crennan JJ went on to confirm that “outside exceptional cases”, while publicans are bound by statutory duties in relation to the service of alcohol and the conduct in the premises at which it is served, they owe no general duty of care at common law to patrons that requires them to monitor and minimise the service of alcohol, or to protect patrons from the consequences of alcohol they choose to consume (paragraph 52 / page 413). Their Honours explained that any opposite view will create difficulties, and that individual freedom and personal responsibility are overriding factors that place limits on any duty of care that may be owed by the publicans to their patrons (pages 413-415):
“[53] Expressions like “intoxication”, “inebriation” and “drunkenness” are difficult both to define and to apply. The fact that legislation compels publicans not serve customers who are apparently drink does not make the introduction of a civil duty of care defined by reference to those expressions any more workable or attractive. It is difficult for an observer to assess whether a drinker has reached the point denoted by those expressions. Some people do so faster than others. Some show the signs of intoxication earlier than others. In some the signs of intoxication are not readily apparent. With some there is the risk of confusing excitement, liveliness and high spirits with inebriation. With others, silence conceals an almost complete incapacity to speak or move. The point at which a drinker is at risk of injury from drinking can be reached in many individuals before those signs are evidence. Persons serving drinks, even if they undertake the difficult process of counting drinks served, have no means of knowing how much the drinker ingested before arrival. Constant surveillance of drinkers is impractical. Asking how much a drinker has drunk, how much of any particular bottle or round of drinks the purchaser intends to drink personally and how much will be consumed by friends of the purchaser who may be much more or much less intoxicated than the purchaser would be seen as impertinent. Equally, to ask how the drinker feels, and what the drinker’s mental and physical capacity is, would tend to destroy peaceful relations, and would collide with the interests of drinkers in their personal privacy. In addition, while the relative accurate calculation of blood alcohol levels is possible by use of breathalyzers, the compulsory administration of that type of testing by police officers on the roads was bitterly opposed when legislation introduced it, and it is unthinkable that the common law of negligence could compel or sanction the use of methods so alien to community mores in hotels and restaurants.
[54] Then there are issues concerned with individual autonomy and responsibility. Virtually all adults know that progressive drinking increasingly impairs one’s judgment and capacity to care for oneself. Assessment of impairment is much easier for the drinker and it is for the outsider. It is not against the law to drink, and to some degree it is thought in most societies – certainly our society – that on balance and subject to legislative controls public drinking, at least for those with a taste for that pastime, is beneficial …… Almost all societies reveal a propensity to resort to alcohol or some other disinhibiting substance for purposes of relaxation. Now some drinkers are afflicted by the disease of alcoholism, some have other health problems which alcohol caused or exacerbates, and some behave badly after drinking. But it is a matter of personal decision and individual responsibility how each particular drinker deals with these difficulties and dangers. Balancing the pleasures of drinking with the importance of minimising the harm that flow to a drinker is also a matter of personal decision and individual responsibility. It is a matter more fairly to be placed on the drinker than the seller of drink. To encourage interference of publicans, nervous about liability, with the individual freedom of drinkers to choose how much to drink and at what pace is to take a very large step. It is a step for legislators, not courts, and it is a step which legislatures have taken only after mature consideration. It would be paradoxical if members of the public who “may deliberately wish to become intoxicated and to lose the inhibitions and self-awareness of sobriety”, and for that reason are attracted to attend hotels and restaurants, were to have that desire thwarted because the tort of negligence encouraged an interfering paternalism on the part of those who run the hotels and restaurants.
[55] A duty to take reasonable care to ensure that persons whose capacity to care for themselves is impaired are safeguarded also encounters the problems of customer autonomy and legal coherence discussed above. A further problem of legal coherence arises where legislation compels a publican to eject a drunken customer but the tort of negligence requires the person’s safety to be safeguarded by not permitting the person to drive or to walk along busy roads, and hence requires the person to be detained by some means. Even if the customer wants to leave, the publican is caught between the dilemma of committing the torts of false imprisonment or battery and committing the tort of negligence.”
241. Thus, Gummow, Heydon and Crennan JJ concluded that the licensee did not owe the deceased a duty to ring his wife for her to collect him, which conclusion they considered would accord with English authority eg Barrett v Ministry of Defence ,[83] to which I will return below. Their Honours also considered the Canadian position and discussed Jordan House Limited (which distinguished Barrett ) by setting out the respective reasoning of Martland, Spence and Laskin JJ and that of Ritchie and Judson JJ, and concluding as follows (page 415):
“[56] …… More fundamentally, however, the reasoning is unconvincing because of its failure to take into account and analyse the considerations of principle referred to above [see paragraph 240 above], particularly the consideration of legal incoherence. Australian authorities which have adopted or appear to have approved the Canadian approach should not be followed .” (my emphasis)
242. French CJ agreed with the majority, but would not decide on more general questions about the duty of care owed by publicans to their patrons or third persons, noting that the resolution of these questions in future will likely require consideration of liquor licensing laws and closer consideration of civil liability statutes of the relevant State or Territory (paragraph 1 / pages 396-397).
243. Hayne J also agreed with the majority, but noted the narrow and specific formulation of the duty of care in that case (rather than a more general duty to take reasonable care for the safety of another) merged the questions of duty of care and breach of duty, which merger “carried with it the vice of retrospective over-specificity of breach” such that the “duty alleged was framed by reference to the particular breach that was alleged and thus by reference to the course of events that had happened”, and this was sufficient for Hayne J to reject the duty of care as framed (paragraphs 66-68 / pages 417-418).
244. On the issue of breach of duty, Evans J of the majority in the Full Court found breach of duty for the licensee’s failure (a) to ring the deceased’s wife, (b) to deflect, delay or stall the deceased’s departure which was said to be “easy to do”, and (c) to manifest some resistance to the return of the motorcycle (paragraph 21 / page 401). On appeal to the High Court of Australia, the deceased’s wife and MAIB only maintained the complaint in (a) above, but the High Court found such argument unsound as the licensee had no means of telephoning the deceased’s wife (paragraph 23 / page 401 and see also paragraph 246(a) below). Also, it was said (b) above would not have been effective as these tactics would have irritated the deceased and therefore could not have lasted very long (see paragraph 24 / page 402), and (c) above would have been unlawful as it amounted to a denial of the deceased’s right to possession of the motorcycle (paragraph 26 / pages 402-403). The High Court reminded that enquiry into breach of duty is not limited to what the alleged tortfeasor thought at the time (as per Evans and Tennent JJ of the Full Court), and is premised on what a reasonable person in the circumstances would have done, so factors other than those which actually occurred to the alleged tortfeasor are also relevant (paragraph 25 / page 402).
245. Tennent J of the majority of the Full Court (who agreed with Evans J) added 2 more breaches in that the licensee could have (d) refused to return the motorcycle and (e) driven the deceased home himself (paragraph 21 / page 401). At the High Court, (d) above was not pursued but was in any event rejected because any refusal to hand over the motorcycle would have been an illegal act (paragraph 27 / page 403), and the deceased’s wife did not support (e) above which was in any event rejected because there was no evidence the deceased would have tamely agreed to be driven home by the licensee, and indeed it was doubtful whether it would have been reasonable to ask the licensee (being the sole person in charge of the inn) to go on a return journey of such distance (but this question was not investigated in evidence) (paragraph 28 / pages 403-404). A further obstacle was that (by analogy to Cole ) the duty was complied with once the licensee offered to the deceased to ring his wife (paragraph 29 / page 404).
246. On the issue of causation, Gummow, Haydon and Crennan JJ noted the deceased’s widow and MAIB had to prove that had the licensee telephoned the deceased’s wife, this would have prevented the deceased’s death (paragraph 14 / pages 399-400). The deceased’s widow testified this would have been so (paragraph 15 / page 400), but the High Court held the claimants failed to establish the accident would have been adverted if the licensee had complied with the claimed duty (paragraph 20 / page 401) for the following reasons:
For these and other reasons, the majority held that even if the licensee complied with the alleged duty to telephone the deceased’s wife, it was not shown on the balance of probabilities that the accident could have been adverted.
247. French CJ agreed with the conclusions by Gummow, Heydon and Crennan JJ on breach of duty and causation (paragraph 1 / page 396). So, for all of the above reasons, the High Court found against the deceased’s widow and MAIB on the grounds that there was no duty of care, but even if a duty of care existed, neither breach nor causation had been established.
248. In my view, the decision in CAL No 14 Pty Ltd came as no surprise in view of the presence of Gummow J and Heydon J (given their previous views in the High Court of Australia and in the New South Wales Court of Appeal (then Heydon JA) in Cole ). By that time, McHugh and Kirby JJ had departed the High Court of Australia.
249. Interestingly, in a way it could be said the claim by the deceased’s widow and MAIB in CAL No 14 Pty Ltd was probably weaker than that by the plaintiff in Cole since the deceased’s drinking in the former case was less prolonged/serious than that of the plaintiff in the latter case. But an unusual factor in CAL No 14 Pty Ltd was that the deceased surrendered the motorcycle and its keys to the licensee, which might suggest some recognition by the licensee and the deceased that would alert there might have been some intoxication (and hence risk of harm) that alcohol supplied to the deceased at the inn might bring. Having agreed to such precaution, should the licensee have returned the keys to the deceased and should he have unlocked the storeroom upon the deceased’s rude demand (which might have been perceived as impairment of sensible self-awareness / self-control upon imbibing alcohol sold/supplied to him by the inn for commercial profit)? The answer of the High Court was in the affirmative. However, had the rationale/reasoning of McHugh and Kirby JJ in Cole carried on the factual matrix of CAL No 14 Pty Ltd , and bearing in mind their strong views that the tort law of negligence requires the courts to set a social/legal standard for a duty of care that alcohol supply outlets or commercial hosts are to comply before allowing their “neighbours”/ patrons who have consumed alcohol go about the drinking premises or exit such premises if this will pose danger to such patrons (and/or third persons who may come into contact with them), the outcome in CAL No 14 Pty Ltd (at least on the issues of duty and breach) might well have been different.
250. In any event, even on the restrictive approach as stated by the majority in Cole and as stated in CAL No 14 Pty Ltd in the High Court of Australia, which is now Australian law, it must not be forgotten that their Honours clearly recognised their approach was different from the expansive Canadian position on analogous situation, and Gummow, Heydon and Crennan JJ went so far to confirm that the Canadian position should not be adopted in Australia (see paragraph 241 above). In Jordan House Limited , the Supreme Court of Canada concluded a duty of care existed on evidence of intoxication of the patron in that case. But the Supreme Court of Canada in Stewart concluded alcohol serving outlets or commercial hosts unquestionably owed a general duty of care to their patrons and third parties due to their “special” invitor-invitee relationship (as explained by McHugh J in Cole and by McLachlin CJ in greater detail in Childs – see paragraphs 217-218 and 185-186 above), which duty is enlivened in Stewart as the dinner theatre did nothing to prevent/inhibit the patron from driving his car (after leaving the establishment premises) to the danger of his passengers and the motoring public.
251. Turning back to the matter of alcohol liability under the tort law of negligence in Hong Kong, the courts will have to ask themselves which approach (or a unique approach particular to this jurisdiction) is a more desirable result in the local societal context (noting the caution of French CJ in CAL No 14 Pty Ltd in not expressing a view on any general duty of care when such issue requires consideration of liquor licensing laws and civil liability statutes – see paragraph 242 above), and the divergence of opinion between Canadian and Australian jurisprudence grounded in legal/policy rationales will require the local courts to debate how the common law in this jurisdiction will meet the societal standards, legislative will and duty to “neighbours” in a fact-sensitive enquiry as to alcohol liability, and to resolve the tension between freedom of choice and personal responsibility on the one hand and the prevention of harm upon alcohol consumption or inebriation on the other hand.
252. Putting all of the above in context against P’s intended amendment of the SoC to introduce the proposed Particular 6(17A), the evolving strands of international common law jurisprudence plainly gives support to P’s application for I cannot say that the proposed particular in support of P’s claim for ordinary negligence under common law is bound to fail. Mr Leung SC in his submissions compared the facts in various case law and asked this court to draw the conclusion that “intoxication” and “knowledge” are necessary elements for a viable “cause of action” for “activity duty”. But this contention is grounded on the basis that there is no general duty of care by publicans to patrons for the sale/supply of alcohol such that “exceptional circumstances” are required, which therefore brings in the alleged need for pleading “intoxication” and “knowledge”. Once there is arguable basis to shake this foundation (ie there may well be a general duty of care by publicans to their patrons to prevent harm due to “relationship” and “conduct”), then there must be possible argument which is not “bound to fail” that it is not necessary to rely on or plead “exceptional circumstances” of “intoxication” and “knowledge”. In any event, it is inappropriate and unnecessary for this court to delve too deeply into these arguments for the present purpose for I should only have regard to the merits if they are “readily apparent” without prolonged investigation, and it is not for this court to predict the metamorphosis of this area of law in Hong Kong.
253. In Freudenstein , the plaintiff suffered personal injuries as a result of a fall from the roof of the local hotel on Easter Sunday at 1:30am, and sued the hotel operator, the licensee and the builder responsible for renovation works at the hotel. At the time of the accident, the hotel was undergoing renovations, and the bar operated out from its 1st floor. On the evening in question, the plaintiff consumed at least 13-14 schooners of full strength beer, much of which had been purchased from the hotel. He was a patron of the hotel, and it was not unusual for him to consume that much beer. The hotel continued to serve him alcohol as it did not regard him as drunk (paragraph 1).
254. The plaintiff alleged he became curious about the renovation works, climbed through the doorway onto the roof of the hotel and fell onto soft ground about 4m below, but the defendants alleged the plaintiff to be a very determined entrant who ignored obvious risks (paragraphs 2-3). Upon evaluation of the evidence, Kirby J accepted the plaintiff’s account of the way in which the accident occurred: the fire door leading to the corridor and stairwell was wedged open; there was no warning sign on the doorway to the renovation works; there was no plywood covering the hole in the exterior wall and no props for securing plywood; and there was no security barrier or plastic mesh on the roof (paragraph 84).
255. On whether there was a duty of care, Kirby J held it was clear the defendants were under a general duty to take reasonable care to avoid foreseeable risk to the plaintiff (paragraph 99). His Honour conveniently summarised the relevant authorities and principles. The test for negligence as stated by High Court of Australia (by majority) in Australian Safeway Stores Proprietary Limited v Zaluzna ,[84] Hackshaw v Shaw[85] as follows (paragraph 88):
“…… it is not necessary, in an action in negligence against an occupier, to go through the procedure of considering whether either one or other or both of a special duty qua occupier and an ordinary duty of care was owed. All that is necessary is to determine whether , in all the relevant circumstances including the fact of the defendant’s occupation of premises and the manner of the plaintiff’s entry upon them, the defendant owed a duty of care under the ordinary principles of negligence to the plaintiff . A prerequisite of any such duty is that there be the necessary degree of proximity of relationship. The touchstone of its existence us that there be reasonably foreseeability of a real risk of injury to the visitor or to the class of person of which the visitor is a member. The measure of the discharge of the duty is what a reasonable man would, in the circumstances, do by way of response to the foreseeable risk .” (my emphasis)
256. Although the relationship between the occupier and the entrant as well as the circumstances surrounding the latter’s entry remained important (paragraph 89), Gummow J in Roads and Traffic Authority of NSW v Dederer[86] said that duties of care are not owed in the abstract, but are “obligations of a particular scope, and that scope may be more or less expansive depending on the relationship in question”. His Honour added as follows (paragraph 90):
“[44] ...... a duty of care involves a particular and defined legal obligation arising out of a relationship between an ascertained defendant (or class of defendants) and an ascertained plaintiff (or class of plaintiffs). Sometimes, the determination of that legal obligation is more complicated than it was at the time Lord Atkin announced his ‘neighbour’ principle in 1932. The law now recognises types of loss and kinds of relationships which are different from those of earlier days.”
In that case, the plaintiff was a lawful entrant, so the hotel owed him a general duty to take reasonable care to avoid foreseeable risk of injury.[87]
257. Although this duty ordinarily concerns risk of injury from the condition of the premises, Kirby J considered this is not an inevitable limitation on the scope of the duty. He said such duty “was not limited to the static nature of the premises. An important circumstance, relevant to the scope of the duty, was the activity within the premises, which involved the sale of alcohol” (paragraph 92). In South Tweed Heads Rugby League Football Club v Cole ,[88] Ipp AJA said as follows:
“[152] This duty ordinarily concerns risk of injury from the condition of the premises, but this is not an inevitable limitation on the scope of the duty. If, to the knowledge of the occupier, activities conducted on the premises bring about a risk of injury to the entrant, the circumstances may give rise to a duty of care wide enough to encompass a duty to take reasonable care to avoid a foreseeable risk of injury arising from those activities: Canterbury Municipal Council v Taylor [2002] NSWCA 24. Typically, the foreseeable risk of injury in such a case is the risk of physical injury directly caused by the known activities on the premises.”
258. In the context of a licensed restaurant, the High Court of Australia in Adeels Palace Pty Limited v Moubarak[89] identified various circumstances that pointed to a restaurant owing patrons a duty of care (paragraph 93): “[25] ...... the premises concerned were licensed premises where liquor was sold. They were, therefore, premises where it is and was well recognised that care must be taken lest, through misuse and abuse of liquor, ‘harm [arise] from violence and other antisocial behaviour’” (references omitted) (paragraph 93). Further, Gummow, Heydon and Crennan JJ in paragraph 54 / page 414 of CAL No 14 Pty Ltd also recognised alcohol may impair the judgment of those who consume it.
259. Kirby J went to say as follows, and then concluded the defendants in that case each foresaw the risk of injury to hotel patrons unless precautions were taken in respect of the renovations then underway at the hotel, so it is clear that the defendants were under a duty to take reasonable care for the safety of the plaintiff (paragraph 99):
“[95] That is not to say that the hotel owed Mr Freudenstein (unless his circumstances were exceptional) a duty to monitor and minimise the service of alcohol to him as a customer in order to protect him from the consequences of the alcohol he chose to consume (CAL No. 14 Pty Limited, supra at [52]). Nonetheless, a relevant circumstance in determining the scope of the duty was the knowledge of the occupier of the characteristics of entrants. Although dissenting as to the outcome, McHugh JA expressed the principle in these words in Romeo v Conservation Commission of the Northern Territory [1998] HCA 5; (1998) 192 CLR 431: (at 460/1)
“[76] The duty of care is owed to each entrant personally. It is not owed to entrants as a class. If, for example, the Commission knew that a blind person was about to enter the Reserve, the Commission’s duty would be measured by reference to the particular circumstances of that person’s disability. The commission was not aware that the plaintiff was adversely affected by alcohol. But it was reasonably foreseeable that a person such as the plaintiff, affected by alcohol, might come to the Reserve and go beyond the limit of the car parking area – a limit that was marked by the low posts and logs. That being so, the Commission was under a duty to exercise such care as would reasonably protect a person such as the plaintiff from the reasonably foreseeable consequences of her condition, including the possibility that she might by inadvertence or inattention expose herself to the risk of injury.” (references omitted)
[96] An illustration of the concept is provided by an unreported Full Court decision in Queensland (Hogan v Rusty Rees Pty Ltd (Supreme Court of Queensland, Connelly, Ryan and Cooper JJ, 8.6.89, unreported). The action concerned an accident on an internal staircase within the hotel involving a person staying at the hotel. Connolly J (Ryan and Cooper JJ agreeing) said this:
“The learned trial Judge concluded that the duty of care owed by a proprietor of licensed premises such as these is not limited to a duty owed to the ordinary reasonable person but that he must have in mind inebriated customers or guests, particularly as the hotel provided no desk attendant or night watch system and was at no pains to explain to its customers or guests what the keys they are given are for. In all the circumstances his Honour considered that the steps should have been as effectively sealed off at the bottom as they were at the top. His Honour did not consider that the means taken to block the stairs off went far enough, bearing in mind that people who had been drinking might wish to get back into the hotel.
[97] In Lanahmede Pty Ltd v Koch [2004] SASC 204, although dealing with an action where alcohol had excited aggression, the South Australian Full Court (Perry, Bleby and Gray JJ) dismissed an appeal. Bleby J made the following comment:
“[2] ... There can be no doubt that Lanahmede was under a common law duty of care to its patrons. The content of that duty of care must be informed by the fact that patrons will, from time to time, become affected by liquor and may become subject to aggressive, disorderly or offensive behaviour. The duty extends to taking steps to ensure that reasonable precautions are taken to ensure the safety from physical harm of those who may become so affected, as well as those who may be affected by such conduct of others.”
[98] Gray J added the following:
“[35] In the present case Lanahmede was under an admitted duty to take care with respect of its patrons. It could be expected that patrons would be affected by alcohol with an attendant risk of aggressive, offensive and disorderly behaviour. Lanahmede could also expect patrons’ attention to be diverted to the social occasion particularly having regard to the Christmas celebrations. Patrons were likely to be relaxed and to have a reduced awareness of possible dangers.””
260. As to whether there was breach of duty, upon balancing the circumstances of the case with the foreseeable risk of injury, Kirby J concluded the defendants were in breach of their duty. The primary responsibility for some aspects rested with the builder, especially in relation to blocking the hole in the external wall, but one would infer it was the hotel employees who opened the fire door (paragraph 110). Kirby J explained as follows:
“[104] Here, unless steps were taken to prevent access to the building work, there was the grave risk of serious injury, including death. As to the probability of its occurrence, it was perhaps moderate. There was believe, a real risk of injury if a patron from the hotel, and especially one affected by alcohol, entered the building site. The defendants need not foresee precisely how an accident may happen. The risk of injury could not be considered negligible or remote such that a reasonable person would reject it as unworthy of consideration (cf McHugh J in Romeo v Conservation Commission of the Northern Territory (supra ) p 461 [78]). Indeed, the hotel and the builder believed that the risk had been addressed by measures which, in fact, had not been taken.”
261. On the issue of causation, Kirby J concluded that but for the defendants’ failure to secure the doorway the accident would almost certainly not have happened, and this was the substantial and effective cause of the accident. Nevertheless, Kirby J found the plaintiff to be contributorily negligent for his succession of foolish actions, and reduced damages by 50% to reflect his culpability (paragraphs 133-137).
262. In my view, by the time Kirby J gave his judgment in Freudenstein , there was binding authority in Australia, ie CAL No 14 Pty Ltd , that overrode his minority view in Cole . This explained why his Honour had to accept the hotel would not owe the plaintiff (unless his circumstances were exceptional) a duty to monitor and minimise the service of alcohol to him as a patron in order to protect him from the consequences of the alcohol he chose to consume, a matter that Mr Leung SC seized upon to bolster D’s arguments. Hence, Mr Leung SC suggested this case was not about over-serving of alcohol even though the plaintiff was “grossly intoxicated”.
263. I need not repeat again the divergence between Canadian and Australian views, except to say that we in Hong Kong are not bound by the current state of the law in Australia. Our lens also focus on the views of other courts (including national courts of other jurisdictions) to see how they address analogous problems. In such context, it is more important to understand Kirby J’s reasoning rather than the particular factual context in Freudenstein , and a study of his judgment in Freudenstein provides another takeaway.
264. Mr Leung SC’s submissions drew a strict distinction between “occupancy duty” and “activity duty” to suggest that the proposed Particular 6(17A) was not intended to be a mere particular among other particulars of P’s cause of action for ordinary negligence under common law, but was actually a “new cause of action” based on “activity duty” masquerading as a particular on the existing cause of action premised on “occupancy duty”. I have in paragraph 229 above raised question whether a wider view of the cause of action in negligence is necessarily “bound to fail”. Here, Kirby J’s judgment in Freudenstein lent further support for a holistic approach to ascertaining the scope of duty (if any) by an occupier/provider rather than an inflexible distinction between “occupancy duty” and “activity duty”, bearing in mind the touchstone for the existence of a duty of care is reasonable foreseebility of real risk of injury to visitors (ie patrons), and for the discharge of that duty is what a reasonable occupier/provider would do to address that foreseeable risk, which matters must be determined in the context of the particular factual circumstances (including the sale/supply of alcohol at the drinking premises when it is well-known that alcohol may impair the decision-making ability or sensible self-awareness / self-control of those who consume it, and is arguably not limited to static nature of the premises) (see paragraphs 255-258 above).
265. The factual circumstances of the premises and activity thereat in each case are unique, eg the structure and layout of the Stairway, the frequency of the Deceased’s patronage at the Restaurant, and the alcohol consumed by the Deceased on this fateful occasion. The countervailing factors raised by Mr Leung SC included inter alia the absence of any Stairway-related accidents over the years, the Deceased’s familiarity of the Stairway, his and Hau’s ability to negotiate the Stairway that evening. In my view, these matters arguably called for fact-sensitive considerations of the existence, standard and/or breach of duty.
266. Mr Leung SC was not disheartened by Mr Wong SC’s strong reliance in Freudenstein for he informed this court that Kirby J’s first instance judgment had been considered by the Full Court of the Supreme Court of New South Wales in Schuller v SJ Webb Nominees Pty Ltd ,[90] in which the need for “exceptional circumstances” in order to find a duty of care was endorsed (see paragraph 269 below), and Kirby J’s views in paragraph 259 above were said to be merely obiter (see paragraph 272 below).
267. In that case, the patron, while inebriated, fell from a chair on which she was dancing at a hotel, and suffered leg injuries. She sued in negligence and for breach of statutory duty against the hotel owner for damages for her injuries on the basis that the hotel owner was at fault for selling her too much alcohol and for failing to prevent her from dancing on the chair. The first instance judge held the hotel owner did not owe her a duty of care, there was no relevant causative breach of duty, and the patron had voluntarily assumed risk of injury. The issues on appeal to the Full Court were inter alia whether (a) the hotel owner owed the patron a duty of care and breached that duty of care, (b) the defence of voluntary assumption of risk was made out, and (c) it was appropriate to reduce the patron’s damages by 90% on account of her contributory negligence. The Full Court held that it was open to the trial judge to hold that the patron consciously adverted to the possibility that the risk of falling from the chair might eventuate and decided to dance on the chair while affected by alcohol regardless of the risk in all the circumstances.
268. Stanley J (with whom Gray ACJ and Lovell J agreed) referred to CAL No 14 Pty Ltd which (a) held that outside of exceptional cases, persons in the position of the proprietor and the licensee, while bound by important statutory duties in relation to the service of alcohol and the conduct of the premises in which it is served, owe no general duty of care at common law to customers which requires them to monitor and minimise the service of alcohol or to protect customers from the consequences of the alcohol they choose to consume (paragraphs 13-16 / pages 158-159), and (b) discussed the Canadian position by distinguishing the principal Canadian authority (ie Jordan House Limited ), disapproved Australian authorities that had adopted or appeared to have adopted the Canadian approach, and expressly held that those authorities should not be followed (paragraph 17 / page 159).
269. Stanley J also said Kirby J’s observations in Freudenstein that the duty owed to hotel patrons to take reasonable care to ensure that premises are physically safe and that equipment in operation does not injure them is not limited to the static nature of the premises “must be regarded as obiter”. The duty to take reasonable care for the safety of Mr Freudenstein, which Kirby J found to exist, was a duty to protect him from the risk of injury posed by the static nature of the premises where renovations were undertaken. In any event, Kirby J acknowledged the hotel did not owe Mr Freudenstein a duty to monitor and minimise the service of alcohol to him as a customer in order to protect him from the consequences of the alcohol he chose to consume, unless his circumstances were exceptional in the sense discussed in CAL No 14 Pty Ltd . On such basis, Stanley J considered Kirby J’s judgment in Freudenstein did not qualify the principle for which CAL No 14 Pty Ltd stands or extend the duty owed by publicans to inebriated patrons beyond the static conditions of hotel premises unless it is established that it is an exceptional case (paragraph 20 / pages 159-160).
270. In the end, Stanley J considered the case before him was not an exceptional case, so the common law did not impose upon the hotel owner a duty of care to protect the patron from causing harm to herself by undertaking activities in a state of inebriation which exposed her to the risk of injury, so the trial judge did not err in finding no duty of care existed (paragraphs 21-24 / pages 160-161). In any event, even if there was such a duty, the defendants had complied with such duty by its officers maintaining sufficient observation of the patron, and by repeatedly directing her to get off the chair when she was observed dancing on the chair. On the 1st and 2nd occasions the patron did get off the chair, and after the 2nd occasion the hotel ceased to serve her alcohol and warned her that any repetition of her behaviour would result in her ejection from the hotel. On the final occasion, when she failed to respond to an officer’s direction to come from the chair, such officer sought the particular hotel employee who was authorised to eject patrons with reasonable physical force if necessary. But before this could occur, the patron fell from the chair. Stanley J said the trial judge was correct in finding the defendants were not in breach of the duty, and instead the defendants through its officers had exercised the reasonable care it owed the patron (paragraph 31 / pages 162-163).
271. On the issue of causation, the risk of injury from falling whilst dancing on a chair when drunk was an obvious risk (paragraph 40 / page 165). Pursuant to sections 36-37 of the Civil Liability Act 1936 (SA), in order to establish the defence of voluntary assumption of risk, the defendants were required to prove the patron consciously adverted to the possibility that the risk of falling from the chair might eventuate and decided to dance on the chair while affected by alcohol regardless (paragraph 54 / pages 168-169). Stanley J said this was what the trial judge found, and such finding was open to him on the evidence (paragraph 55 / page 169). But Stanley J considered the trial judge fell into error by purporting to apportion liability without identifying in what way the defendants were negligent (paragraphs 57-59 / page 169).
272. I reiterate what I have said in paragraph 262 above that by this time there was binding authority in Australia, ie CAL No 14 Pty Ltd , that Australian common law does not recognise any general duty of care and/or any monitoring duty by alcohol serving outlets or commercial hosts to protect patrons and others from harm that may be caused by patrons in some state of inebriation. So, Schuller was no more than another decision that followed CAL No 14 Pty Ltd . But that does not mean other divergent views, including the views of Kirby J in Freudenstein that Stanley J classified as obiter , are unarguable or bound to fail in this jurisdiction where Australian stare decisis is not applicable. Indeed, there are some Australian authorities in the pre-Cole era that imposed a duty of care by alcohol serving outlets or commercial hosts to entrants to the drinking premises not to be served so much alcohol when it is reasonably foreseeable that they may injure themselves or others, eg such outlets/hosts are liable to escort an inebriated patron safely to his room, or liable for the violent acts of an inebriated patron to other patrons.[91] In all the circumstances, I am not persuaded P should be disallowed from raising the proposed Particular 6(17A) at this interlocutory stage.
(h) English position
273. In Munro v Porthkerry Park Holiday Estates Ltd ,[92] the deceased and his 2 friends had been drinking at the bar and were asked to leave. The deceased went over a chain link fence and fell to his death down a sheer cliff drop. The height of the fence was such that the deceased could not fall over accidentally but had to go over it deliberately, so the fence was adequate. It was held that “[selling] large quantities of intoxicating liquor could not of itself impose a duty to take care of customers” for generally speaking the licensee can assume the patron will regulate his own alcohol consumption and will not consume intoxicating liquor in such quantity or at such rate as to become incapable of taking care of himself. But Beldam J had to consider whether the licensee knew that the deceased was not merely intoxicated, but so intoxicated that he was incapable of looking after himself. Even in such cases, the absence of an immediate hazard when leaving the premises, or the presence of companions capable of looking after the customer, may serve to absolve the licensee from any failure to take steps himself. There was no evidence the deceased had reached such a state of intoxication that he was incapable of taking care of himself and/or the licensee served him with further alcohol knowing he would become unable to take care of himself.
274. In Barrett v Ministry of Defence ,[93] the deceased who was a naval airman was posted to an isolated British base in Norway where duty-free alcohol was available. Senior officers routinely failed to take appropriate steps to curb excessive drinking and drunkenness although measures were outlined in the naval codes of discipline (pages 1219-1220). On the night in question, the deceased celebrated his birthday and also his promotion, so he drank himself into a stupor and became unconscious. He was removed to his bunk, and placed in recovery position. He was visited on for about 3 times that night, but still he asphyxiated on his own vomit (pages 1221-1222). Subsequently, a senior naval officer pleaded guilty to breach of the Queen’s Regulations for the Royal Navy 1967 which provided that it was the duty of officers to discourage drunkenness (pages 1220-1221).
275. The deceased’s widow sued the Ministry of Defence for failing (a) to prevent the deceased from becoming drunk, and (b) to protect him once he became drunk. The trial judge Phelan J found that in the circumstances it was foreseeable that the deceased would succumb to heavy intoxication, and in failing to enforce its own standards with respect to discipline, the defendant was in breach of duty to the deceased to take positive steps to protect him from his own weakness.
276. The English Court of Appeal overturned such decision. Beldam LJ (formerly Beldam J who gave judgment in Munro ), giving the leading judgment but without referring to his previous decision in Munro , held that the trial judge was wrong to equate the Queen’s Regulations and standing orders with the guidance given by the Highway Code or in the pamphlets relating to safety in factories (pages 1223-1224):
“…… The purpose of Queen’s Regulations and standing orders is to preserve good order and discipline in the service and to ensure that personnel remain fit for duty and while on duty obey commands and off duty do not misbehave, bringing the service into disrepute. All regulations which encourage self-discipline, if obeyed, will incidentally encourage service personnel to take greater pride in their own behaviour but in no sense are the Regulations and orders intended to lay down standards or to give advice in the exercise of reasonable care for the safety of men when off duty drinking in bars.
……
…… Since Anns v Merton London Borough Council …… the House of Lords has preferred the approach of the High Court of Australia in Sutherland Shire Council v Heyman …… that the imposition of additional duties to take care for the safety of others should develop incrementally and by analogy with established categories, an approach which involves consideration of whether it is fair, just and reasonable that the law should impose a duty of a given scope upon one party for the benefit of another. The mere existence of regulatory or other public duties does not of itself create a special relationship imposing a duty in private law.”
277. Beldam LJ referred to the existing categories of relationships in which a duty of care already existed (eg employer-employee, schoolmaster-pupil and occupier-visitor), and held that though the consequence of the deceased consuming a very large quantity of alcohol might be said to be reasonably foreseeable, it was not just and reasonable that a duty of care should be imposed upon the defendant to prevent it. He reasoned that the imposition on the defendant of a duty to control the actions of the deceased in order to prevent him from injuring himself would represent an unwarranted contravention of the principle of individual responsibility (ie rejection of the head of liability in paragraph 275(a) above):
“…… It was said that the defendant’s control over the environment in which om which the deceased was serving and the provision of duty-free liquor, coupled with the failure to enforce disciplinary rules and orders, were sufficient factors to render it fair, just and reasonable to extend the duty to take reasonable care found in the analogous circumstances. The characteristic which distinguishes those relationships is reliance on express or implied in the relationship which the party to whom the duty is owed is entitled to place on the other to make provision for his safety. I can see no reason why it would not be fair, just and reasonable for the law to leave a responsible adult to assume responsibility for his own actions in consuming alcoholic drinks. No one is better placed than to judge the amount that he can safely consume or to exercise control in his own interest as well as on the interest of others. To dilute self-responsibility and to blame one adult for another’s lack of self-control is neither just nor reasonable and in the development of the law of negligence an increment too far.” (page 1224)
Beldam LJ went on to distinguish the Canadian authorities of Jordan House Limited and Crocker , stating that the duty of care in those cases was “founded on factors additional to the mere provision of alcohol and the failure to enforce provisions against drunkenness” (pages 1225).
278. Beldam J held that until the deceased collapsed he himself was in law alone responsible for his condition (ie the defendant was not under a duty to prevent the deceased from drinking so much he fell into a stupor), but he found the defendant liable for failing to discharge properly the duty owed to the deceased when the defendant assumed responsibility for him after he became unconscious and the measures taken then fell below the standard reasonably expected, eg the defendant did not summon medical assistance and the supervision of the deceased was inadequate (ie acceptance of the head of liability in paragraph 275(b) above) (page 1225). Nevertheless, contributory negligence was increased from ¼ to ⅔ (pages 1225-1226).
279. The issue of the liability of the Ministry of Defence for harm suffered by intoxicated servicemen arose again in Jebsen v Ministry of Defence .[94] In that case, the plaintiff soldier was with a group of solicitors who were taken from a military camp to a nearby town for a recreational evening organised by a commanding officer. Most of the party spent 3 hours drinking before the return journey in an army lorry, by which time most were drunk. During the journey and when the lorry was moving, the intoxicated plaintiff tried to climb from the tailgate of the lorry to the canvas roof. He lost his footing, fell onto the road and suffered severe injuries. He sued the Ministry of Defence. The trial judge found it was reasonably foreseeable that some of the soldiers would return drunk, move about, sit on the tailgate and thereby injure themselves, so the defendant was in breach of its duty to supervise the soldiers, but it was not foreseeable that a soldier would try to climb on the roof. The English Court of Appeal allowed the appeal.
280. On the question of whether the duty to provide a lorry fit to carry passengers safely in an ordinary way together with a careful driver should be extended further to include or impose an obligation to supervise the drunken soldiers at the back of the lorry (particularly to ensure that a sober non-commissioned officer was at the back of the lorry to provide supervision and to maintain discipline) (page 2060), Potter LJ agreed that reasonable foreseeability was not the touchstone of liability, so a plaintiff has to show it is fair, just and reasonable for a duty of care to be imposed (pages 2065-2066). Potter LJ said that “…… in the ordinary way and in most situations, an adult (and these young men were adults) is not entitled to pray in aid his own drunkenness as giving rise to a duty or responsibility in others to exercise special care. However, that is not an invariable rule; nor is it one which it is fair just and reasonable to apply in the circumstances where an obligation to care is assumed or impliedly undertaken in respect of a person who it is appreciated is likely to be drunk” (page 2066). Potter LJ held that a failure to supervise the soldiers while in the lorry together with foreseeability of injury as a result of the drunken soldiers meant the defendant failed to fully discharge its duty (page 2066), but he assessed the plaintiff’s contributory negligence at 75%.
281. On the other question as to whether, in any event, the accident was foreseeable, Potter LJ’s reasoning echoed that of Beldam LJ in Barrett in that “…… an adult is generally to be treated as appreciative of the dangers created by his own actions and thus is likely to be held responsible for those actions when pursuing a dangerous course of conduct. None the less, the law recognizes that there may be circumstances where by reason of drunkenness or other factors foreseeably likely to affect an adult’s appreciation of danger, he may act in a childish or reckless fashion, and that in appropriate circumstances there may exist a duty on others to make allowance for those actions and to take precautions for the perpetrator’s safety ……” (page 2067). Potter LJ considered the case before him was just such a case because the defendant, having organised transport for the soldiers with knowledge that they would become intoxicated on the night out (and hence drunk on the return journey), assumed a duty of care to the plaintiff and his fellow soldiers.
282. Griffiths v Bowen [95] raised a question as to duty of care beyond the usual scope of commercial provider and patron. In that case, the taxi-driver dropped off his passenger at a particular location. The passenger was inebriated but was able to walk without staggering and to give instructions to the driver. He alighted from the taxi at the requested location. He then attempted to cross the road to go to a cashpoint, and was hit by a car. As a result, he suffered personal injuries. The plaintiff sued the driver of the car that hit him and also the taxi-driver. For the driver of the car that hit the plaintiff, the question was whether he was also negligent as the plaintiff conceded he was at fault. Judge Jones found he was, but the plaintiff was found to be ⅓ contributorily negligent. For the taxi-driver, Jones J considered any duty of care owed by a taxi-driver to his passenger is the same whether his passenger is drunk or sober, and “[that] duty is to take reasonable care (a) to carry his passenger safely during the journey to the stated destination and (b) to stop at the conclusion of the journey, or part of it if the journey is in stages, in a place where the passenger can safely alight”. Jones J disagreed the taxi-driver in that case owed the plaintiff a duty of care not to let him alight at a hazardous crossing while knowing that he was drunk.
283. Jones J drew support from inter alia Barrett and Munro , and distinguished the Canadian authorities of Jordan House Limited and Crocker in a similar way as Beldam LJ did in Barrett , ie the particular circumstances that gave rise to the duties in those cases were not present in the case before him, and he concluded that “it would be an increment too far to impose the duty contended for upon taxi drivers”. But if (contrary to his view) there was a duty upon the taxi-driver to set the plaintiff down directly outside the cashpoint (ie the place where the plaintiff wanted to go) or not to set him down elsewhere than directly outside the cashpoint because he was foreseeably at greater risk of injury in crossing the road to the cashpoint than a sober passenger would be as a result of the alcohol he had consumed, Jones J held there was no breach of such duty in the circumstances. For Jones J, such a duty would only exist where a passenger had reached such a state of intoxication as to be plainly incapable of taking care of his own safety,[96] and hence this was the only circumstances in which the duty could be breached. In that case, the plaintiff had about 12-13 pints of beer and lager (10 of those pints being strong lager), so he was obviously very drunk, but he was still able to walk without staggering and to give instructions to the taxi-driver as to his destination, which evidence showed he still retained some degree of control over himself. Hence, there was no breach of duty.
284. Griffiths appears to be in line with Barrett , and these cases seem to suggest that the English position is as follows: an undertaking to provide a service or to come to the aid of an individual who is so intoxicated as to be incapable of taking care of his own safety will be held to amount to an “assumption of responsibility” for that person’s safety and to give rise to a duty to protect, as illustrated by the examples cited by Jones J:
“Of course, to take an example put forward in argument, it would be negligent to drop a blind passenger immediately adjacent to an unprotected manhole. It would also be negligent to drop a sighted passenger in such circumstances, at least without warning him. The potential harm is within the scope of the duty, as is the potential harm arising from passengers invited by the master of a vessel to disembark at the site of quicksand. Other examples put forward of a young child or a mentally handicapped person are not, I think helpful. A young child would travel alone in a taxi only under some special arrangement; in other words the taxi driver would assume added responsibility to him . If the child was a young person old enough to engage and use the taxi himself, the duty to him would be no different, in my judgment, than that owed to an adult. A mentally handicapped person, who could not take proper care for his own safety because of his handicap , wold also be carried only under some special arrangement. There would be an assumption by the taxi driver of added obligation in those circumstances .
A further example given was that of a man intending to drink heavily and pre -ordering a taxi to take him safely home at the end of the evening’s drinking. In my view, in such circumstances, if the intended drinking were communicated to a particular driver and the arrangement with that driver was that the passenger was to be taken to his home after his drinking bout, no doubt that driver’s duty would be to deliver him as arranged. But the duty would arise because of what had been agreed or arranged and the express or implied assumption of added responsibility by the driver ” (my emphasis)
285. But one naturally has to ask what constitutes an “assumption of responsibility”, and Potter LJ gave little illumination other than to refer to an express or implied “undertaking”, which suggests that the question is approached on the basis of implied “undertaking” as between service provider and customer on individual case basis, ie whether the particular defendant in a particular factual matrix can prevent risk of injury through reasonable measures in circumstances considered appropriate for him to provide such protection. Again, this suggests that a fact-sensitive holistic view has to be taken to consider the existence/scope of any duty of care and its breach.
286. But that said, English tort law apparently shares the Australian antipathy towards duties of positive protection or affirmative action on the basis that: (a) the courts consider it too much of an inroad to the individual’s free will/choice to require the commercial provider to take positive steps to protect another from harm not inflicted by him, which is said to sit uncomfortably with tort principles and notions of justice/fairness, and (b) this may also cause problem in establishing causation to attach liability to the commercial provider for non-feasance or inaction (but often complaints in negligence combines both act and omission). Indeed, for (b) above, although the judgments in Barrett , Jebsen and Griffiths refer to omissions, there is more than a hint of positive acts, eg the defendant in Barrett was responsible for supplying alcohol and thereby encouraging drunkenness, the defendant in Jebsen organised the night out, supplied the transport and knew excessive amount of alcohol would be consumed, the defendant in Griffiths contributed to the risk of harm by dropping the plaintiff off at a location opposite the cashpoint, and the courts in Barratt and Jebsen did recognise a duty to take affirmative action. These cases suggest that at times persons other than the alcohol providers (notably the victims themselves) would contribute, perhaps even more substantially, to the harm inflicted so that it is not fair, just and reasonable to impose a duty on the provider.
287. The English jurisprudence, like the Australian one, reflected the tension between personal autonomy and individual responsibility on the one hand and societal concerns and communal cooperation on the other hand, which ultimately reflected stronger attachment to the former in rejecting any notion of “special” relationship between the provider and the patron and in disagreeing that it is fair, just or reasonable to impose any duty of care except in “exceptional circumstances”. But Canadian jurisprudence and Australian minority views appear to be more progressive, and are fairly ready to favour holding alcohol serving outlets or commercial hosts to be a class of persons with responsibility to take positive steps to safeguard others on the basis that they hold themselves out commercially to the public as willing to provide service (ie sale/ supply of alcohol for profit). In my view, 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. That being the case, I am also persuaded to acknowledge that at this 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 (see eg Beldam LJ’s reasons for distinguishing the Canadian authorities – see paragraph 277 above), or by reference to stare decisis of national court decisions in other jurisdictions), 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.
(i) Summary
288. For all of the above reasons and subject to the discussions in Part VIII below, I conclude that leave should be granted for P to amend the SoC by introduction of the Agreed Amendments and the proposed Particular 6(17A).
VIII. TIME BAR
289. D’s stance As seen in paragraph 98 above, it was D’s case that the proposed Particular 6(17A) raised a new cause of action. Paragraphs 3(2), 4(1) and 28 of Mr Leung SC’s written submissions claimed “such new cause of action is prima facie time-barred” or is “now time-barred”, but this time-bar point was not further developed at all in Mr Leung SC’s written/oral submissions.
290. P’s stance Mr Wong SC in his oral submissions contended that (a) the proposed Particular 6(17A) merely introduced an additional particular to the existing cause of action in negligence and did not raise any “new cause of action”, but (b) if the proposed Particular 6(17A) did raise a “new cause of action”, then the proposed amendment was permissible as it arose out of the same facts or substantially the same facts as a cause of action in respect of which relief had already been claimed in the action by P, ie the cause of action for ordinary negligence at common law (see Order 20 rule 5(5) of the RHC). Mr Wong SC further submitted one should look at the matter broadly with a degree of common sense in judging whether the alleged “new cause of action” fell within Order 20 rule 5(5) of the RHC,[97] which probably explained why the limitation issue was not further developed by Mr Leung SC in his submissions.
291. Legal principles The relevant provisions are section 35 of the Limitation Ordinance Cap 347 (“LO ”) and Order 20 rule 5 of the RHC. Where the effect of any proposed amendment triggers a limitation point by adding or substituting a “new claim” which is time-barred, section 35(5)-(6) of the LO and Order 20 rule 5(5) of the RHC provide that the court has discretion to allow the proposed amendment only if the “new cause of action” arises from the same or substantially the same facts as an existing cause of action in respect of which relief has already been claimed in the action. This is a jurisdictional requirement.[98]
292. A 4-stage test is applicable:[99]
[100]
[101]
[102]
[103]
293. So, if the proposed amendment does not bring in any “new cause of action” or if the “new cause of action” meets the requirements under section 35(5)-(6) of the LO and Order 20 rule 5(5) of the RHC, it remains the court’s usual discretion to decide whether it is just to allow the proposed amendments.
294. Limitation period Leave to amend should not be given if its effect is to deprive the defendant of an accrued limitation defence, which will be lost as a result of the operation of the “relation back” rule in section 35(1)(b) of the LO, and the correct approach is to refuse leave to amend unless the plaintiff can show the defendant does not have a reasonably arguable case on limitation or the new claim meets the requirements under section 35(5)-(6) of the LO and Order 20 rule 5(5) of the RHC.[104] Here, there cannot be any dispute that if the proposed Particular 6(17A) amounted to a “new cause of action” that did not meet the aforesaid requirements, it would be statute-barred by now given the expiry of the 3-year primary limitation period for pursuing a fatal accident claim for damages.
295. “New cause of action” In Shenzhen Futaihong Precision Industry Co Ltd & ors v BYD Company Limited & ors ,[105] Kwan JA (as she then was) explained as follows:
“81. For the definition of a “cause of action”, one has regard to various dicta in the following cases:
“A cause of action is simply a factual situation the existence of which entitles one person to obtain from the court a remedy against another person.”
(Letang v Cooper [1965] 1 QB 232 at 242 to 243)
“A cause of action is that combination of facts which gives rise to a legal right.”
(Berezovsky v Abramovich [2011] 1 WLR 2290 at §59)
““Cause of action” has been held from the earliest time to mean every fact which is material to be proved to entitle the plaintiff to succeed, every fact which the defendant would have a right to traverse.”
(Cooke v Gill (1873) LR 8 CP 107 at 116)
“Every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. It does not comprise every piece of evidence which is necessary to prove each fact, but every fact which is necessary to be proved.”
(Read v Brown (1888) 22 QBD 128 at 131)
“The language I used obviously means this: the plaintiff in order to make out a cause of action must assert certain facts which, if traversed, he would be put to prove. … In former times, if he failed to assert any of those facts, his declaration was demurrable as shewing no cause of action.”
(Coburn v Colledge [1897] 1 QB 702 at 706 to 707)
82. One should bear in mind that a cause of action in this context is “not so much the label attaching to a claimant’s claim (for example ‘breach of statutory duty’ or ‘money paid under a mistake of law’)”, but it is the set of facts which entitles the plaintiff to relief (Hoescht UK Ltd v Inland Revenue Commissioners [2004] STC 1486 at §24; Sorata Ltd v Gardex Ltd [1984] RPC 317 at 326). “The assessment is objective and the consideration must be of the substance of what is pleaded, rather than the form.” (ISP Consulting Engineers Ltd v Body Corporate 89408 [2017] NZCA 160 at §22)
83. As to how one should approach the question whether the proposed amendment constitutes a new cause of action, Tomlinson LJ gave useful guidance in Co‑operative Group Ltd v Birse Developments Ltd (2013) 148 Con LR 264:
“[20] In the quest for what constitutes a ‘new’ cause of action, ie a cause of action different from that already asserted, it is the essential factual allegations upon which the original and the proposed new or different claims are reliant which must be compared. Thus ‘[t]he pleading of unnecessary allegations or the addition of further instances or better particulars do not amount to a distinct cause of action’: see Paragon Finance plc v Thakerar & Co, Paragon Finance plc v Thimbleby & Co (a firm) [1999] 1 All ER 400 at 405 per Millett LJ. ‘So in identifying a new cause of action the bare minimum of essential facts abstracted from the original pleading is to be compared with the minimum as it would be constituted under the amended pleading’: see per Robert Walker LJ in Smith v Henniker-Major & Co [2002] EWCA Civ 762 at [96], [2002] 2 BCLC 655 at [96], [2003] Ch 182.
[21] The court is therefore concerned with the comparison of ‘the essential factual elements in a cause of action already pleaded with the essential factual elements in the cause of action as proposed’: see per David Richards J in Revenue and Customs Comrs v Begum [2010] EWHC 1799 (Ch) at [32], [2011] BPIR 59 at [32]. ‘A change in the essential features of the factual basis (rather than, say, giving further particulars of existing allegations) will introduce a new cause of action’: [2011] BPIR 59 at [30].
[22] Where an amendment pleads a duty which differs from that pleaded in the original action, it will usually assert a new cause of action: see per Sir Iain Glidewell in Darlington Building Society v O’Rourke James Scourfield & McCarthy [1999] PNLR 365 at 370. However as Sir Iain went on to observe, where different facts are alleged to constitute a breach of an already pleaded duty, the courts have had more difficulty in deciding whether a new cause of action is pleaded. … In the former case [Steamship Mutual Underwriting Association Ltd v Trollope & Colls Ltd (1986) 6 Con LR 11] May LJ offered the guidance that one must look not only to the duty, but also to the nature and extent of the breach relied upon, as well as to the nature and extent of the damage complained of in deciding whether, as a matter of degree, a new cause of action is sought to be relied upon. The question to be resolved is therefore one of fact and degree. For my part I am not convinced that one needs to look further than for a change in the essential features of the factual basis relied upon, bearing in mind that the factual basis will include the facts out of which the duty is to be spelled as well as those which allegedly give rise to breach and damage. …”
84. In PJSC Tatneft v Bogolyubov [2017] 1 All ER (Comm) 833, after quoting the above extracts in Co-operative Group Ltd v Birse Developments Ltd , Picken J summed up the position in this way in §92:
“Accordingly, in order to determine whether a proposed amended claim is a new claim involves comparing ‘the essential factual elements in a cause of action already pleaded with the essential factual elements in the cause of action as proposed’. The amendment will introduce a new cause of action if there is a ‘change in the essential features of the factual basis’ relied upon. This will include consideration of whether the amendment introduces a duty which was not previously pleaded, or relies on a new distinct act said to have caused a loss at a different time from the loss originally pleaded. …””
296. But the definition of “cause of action” is not to be applied literally for otherwise any new fact to be added to the plaintiff’s case would be treated as raising a new of cause of action. As Recorder Paul Shieh SC in Arta Properties Limited v Li Fu Yat Tso & ors said as follows:[106]
“22. However, that does not mean that no material fact could ever be added or amended after the expiry of limitation period. The concept of a “new cause of action” had been explained further by Holroyd Pearce LJ in Robinson v Unicos Property Corp. Ltd [1962] 1 WLR 520 at 525 as meaning “a new claim made on a new basis” (applied in Hong Kong in Red Sea Insurance Ltd. v Bouygues SA & others [1993] 2 HKLR 161 at 167 per Sir Derek Cons VP, a point unaffected by the subsequent appeal to the Privy Council).”
297. An amendment will be refused when it seeks to advance, after the expiry of a limitation period, a fundamentally different claim based on facts not originally pleaded. But there is no “new cause of action” if the proposed amendment (a) pleads an alternative claim for relief out of the same facts previously pleaded without relying on new facts, (b) amounts to different legal conclusion drawn from the same facts, or (c) provides particulars of an allegation already pleaded or further facts upon which the original right of action is based. I have in paragraph 73 above explained the underlying purpose for pleading particulars that elaborate on and explain the pleaded cause(s) of action to enable a party to know the case his opponent intends to make, and to prevent confusion, prejudice and/or expense at trial if he were taken by surprise.
298. Whether the proposed amendment merely seeks to clarify existing issues (by extending or varying the particulars of a cause of action) or seeks to add a new cause of action involves a question of fact and degree at the “highest level of abstraction” by which the plaintiff’s case is described, ie “the bare minimum of essential facts abstracted from the original pleading is to be compared with the minimum as it would be constituted under the amended pleading”.[107] Further, the existing pleading and the proposed amendment must be read in a functional way, ie bearing in mind the role of pleadings is to give notice of the lis between the parties, and not in a unduly literal/pedantic manner with some allowance for drafting deficiencies, and such comparison is made on a fairly broad brush basis.
299. I refer to the discussion in Part VII above in which I have come to the view that the proposed Particular 6(17A) was meant to be an additional particular to P’s existing cause of action in ordinary negligence under common law, and it was not bound to fail. On a factually-oriented approach to the concept of “cause of action”, I find Mr Wong SC raised sufficient basis to contend the proposed Particular 6(17A) did not plead a duty different from that pleaded in the SoC, and the proposed amendment merely gave further particulars or factual basis without fundamental changes that constituted a new cause of action. As Longmore LJ said in Berezovsky v Abramovich said,[108]
“…… A cause of action is that combination of facts which gives rise to a legal right. A cause of action in tort has, as its essential ingredients, a plea of duty, breach of duty and consequent damage to the claimant. If it happens to be the case that an element of one of those essential ingredients is misstated, misdescribed or omitted, it does not mean that a correct statement, description or inclusion is a new cause of action; even if the formal result of such a misstatement, misdescription or omission might technically be that an unaltered claim would have to be dismissed, that still does not mean that a corrective alteration involves or constitutes a new cause of action.”
Bearing in mind that the question to be resolved now is one of fact and degree, on P’s contentions that underlied the proposed Particular 6(17A), which I have accepted to be arguable, such proposed amendment was no more than either inclusion of further factual basis for breach of the previously pleaded duty or, at most, a different breach of the previously pleaded duty that arose out of the facts already in issue on the pleaded claim. I am not persuaded the proposed Particular 6(17A) amounted to a new claim. In any event, even if the Australian and/or English approach should prevail at the end of the day, it is not a point that can be taken now to arrest P’s proposed amendment and had to be resolved in its proper factual context at trial.
300. Same or substantially same facts Given my conclusion on the above criterion, there is no need to deal with the issue as to whether the proposed Particular 6(17A) arose from the same or substantially the same facts as already pleaded. But in case I am wrong, I shall briefly discuss this aspect.
301. In Shenzhen Futaihong Precision Industry Co Ltd & ors , Kwan JA (as she then was) explained as follows:
“86. Lastly, as to how the Stage 3 test (“arising out of the same or substantially the same facts”) should be approached, the relevant propositions have been summarized in Diamandis v Wills [2015] EWHC 312 (Ch) at §49:
“(1) “Same or substantially the same” is not synonymous with “similar”.
(2) Whilst in borderline cases, the answer to this question is or may be substantially a “matter of impression”, in others, it must be a question of analysis: Ballinger v Mercer Ltd [2014] 1 WLR 3597 at§§35 and 36.
(3) The purpose of the requirement at Stage 3 is to avoid placing the defendant in a position where he will be obliged, after the expiration of the limitation period, to investigate facts and obtain evidence of matters completely outside the ambit of and unrelated to the facts which he could reasonably be assumed to have investigated for the purpose of defending the unamended claim.
(4) It is thus necessary to consider the extent to which the defendants would be required to embark upon an investigation of facts which they would not have been concerned to investigate: Ballinger §38. At Stage 3 the court is concerned at a much less abstract level than Stage 2; it is a matter of considering the whole range of facts which are likely to be adduced at trial: Finlan v Eyton Morris Winfield [2007] 4 All ER 143 at §§56 and 57 citing Smith v Henniker-Major at §96.
(5) Finally, in considering what the relevant facts are in the original pleading a material consideration are the factual matters raised in the defence: see Berezovsky v Abramovich §73 and Goode v Martin [2002] 1 WLR 1828 where the Court of Appeal interpreted CPR 17.4(2)[109] so as to produce a just result where an amendment involved the introduction of no new facts. There the facts in question had been raised in the defence, though not in the original statement of claim.””
302. At this stage, the “highest level of abstraction” approach no longer applies, and:
“…… The proper approach is to consider the entire range of facts which would have to be investigated at trial if the amendments are to be allowed, even though many of them may not be essential to the establishment of the plaintiff’s cause of action (Finlan v Eyton Morris Winfield at §57). The question here is what is the whole range of facts which could reasonably be assumed to have been investigated for the purpose of defending the claims in [existing pleading]. The objective is to avoid obliging a defendant, after the expiry of the limitation period, to investigate matters that are completely outside and unrelated to the facts which could reasonably be assumed to have been investigated for the purpose of defending the existing claim.”[110]
303. “Invariably, a spectrum of possibilities will have to be addressed on a case by case basis. “Some will obviously involve (or not involve) substantially the same facts; some less so.” For a new claim or new cause of action to fall within Order 20 rule 5(5) of the RHC, there need not be a complete overlap of the material facts supporting the new cause of action with those supporting the originally pleaded cause of action, ie the new cause of action could arise out of “substantially the same” facts as the cause of action originally pleaded. Ultimately whether it is so depends inter alia on the nature of the causes of action concerned, and the nature/importance of the new facts averred. There is no hard and fast rule.”[111]
304. In Shenzhen Futaihong Precision Industry Co Ltd & ors , the existing claim was for breach of confidence (paragraph 70), and it was held that in respect of the main allegations in the existing pleading,[112] the defendants would reasonably be assumed to have to investigate a whole range of facts and documents for the purpose of defending the existing claims.[113] Indeed, the defendants did make some investigation as postulated and disclosed some such documents (beyond what had been expressly pleaded in the existing claim) in discovery. Thus, the Court of Appeal concluded the facts that had to be investigated for the purpose of defending the existing claims and the facts to be investigated to defend the disputed amendments would substantially overlap upon comparing the whole range of facts likely to be adduced at the trial (paragraphs 113-119).
305. In Siberian Mining Group Company Limited (formerly known as Rontex International Holdings Limited) v Cheung Keng Ching & ors ,[114] the plaintiff sued its former directors in relation to 3 transactions which resulted in substantial losses, alleging they were accountable for such losses. It was held that the original pleading raised an unequivocal plea that the defendants acted fraudulently and that sufficient particulars had been provided in support of the alleged fraud or fraudulent breach of trust (paragraph 22(h)), and whilst part of the disputed amendments served to provide particulars to support the plaintiff’s original case that the defendants had acted dishonestly (paragraphs 25-27), the allegation of dishonest concealment was absent from the plaintiff’s original pleaded case and raised a new cause of action (paragraphs 28-31 and 33). However, DHCJ Lee (as he then was) concluded that the original claim of dishonest misapplication of company property and the new claim of dishonest concealment of the misapplication of company property arose out of the same or substantially the same facts as (a) they had the same factual origin and concerned the same transaction, (b) there would be overlap of potential witnesses and documents, and (c) the fact that (if proved) the defendants concealed the actual purchase price of shares from the shareholders would be relevant to and would be important evidence of them having acted dishonestly in the transaction (paragraphs 34-37).
306. In Darlington Building Society & anor v O’Rourke James Sourfield and McCarthy (sued as a firm) ,[115] although the English Court of Appeal found the proposed amendments amounted to a new or additional cause of action, upon considering the un-amended claim and the facts sought to be added by way of amendment, there was a clear impression that the second set of facts are not the same or substantially the same as those originally pleaded. In Lorenzo Mario Borsato v Alexander Denis Campbell ,[116] it was held that whether the new cause of action (ie failure to warn of risks of surgery as opposed to negligent surgery) arose out of substantially the same facts involved a question of degree, and “it should not be answered in the plaintiff’s favour”. In Bank of China (Hong Kong) Ltd v Leong Mei Yong ,[117] which concerned a claim by a bank against solicitors who prepared a mortgage on its behalf, leave to introduce a statute-barred claim was declined because allegations of misrepresentation and undue influence on one of the mortgagors and constructive notice of the Bank were not substantially the same facts as those already pleaded, ie that the mortgage was void under the Housing Ordinance Cap 283.
307. I have cited the above case law not for their direct relevance to the present action, but to illustrate that each case is fact-specific. Here, I start with the fact that Mr Leung SC did not address this point or make any submissions (written or oral) to the effect that the facts raised in the proposed Particular 6(17A) did not arise out of the same or substantially the same facts as the originally pleaded cause of action in negligence. On the other hand, Mr Wong SC submitted that they did. In my view, Mr Leung SC’s reticence is understandable for it would be hard for D to challenge P’s stance given the underlying factual basis for the proposed Particular 6(17A) was not dissimilar to that already averred in the Particulars (especially Particular 6(17)), ie the Deceased’s (and other patrons’) consumption of alcohol served at the Restaurant, which would feed the need for protection from danger by, say, being escorted to safety. The proposed Particular 6(17A) referred to continued serving of alcohol and Condition 2 of the Licence Conditions (that concerned serving/ consuming alcohol at the licensed premises), but I note there need not be a complete overlap of the material facts supporting the proposed Particular 6(17A) with those supporting the originally pleaded cause of action in negligence, and all that was required was for the facts supporting new cause of action to arise out of “substantially the same” facts as the originally pleaded cause of action. Upon considering the nature/importance of the facts supporting the proposed Particular 6(17A) and the originally pleaded cause of action in negligence, I find it quite obvious they arose of substantially the same facts.
308. Exercise of discretion Since the proposed Particular 6(17A) was not statute-barred, for allthe reasons discussed in Parts VI and VII above, I should exercise my discretion to allow the proposed amendment.
309. Summary For all of the above reasons, the proposed amendment to add Particular 6(17A) to the SoC should be allowed.
IX. CONCLUSION
310. In my view, the Appeal must be allowed. The Master Order is set aside. I grant leave for P to amend the SoC in the manner marked in red as per the Draft ASoC (which included the Agreed Amendments and the proposed Particular 6(17A)). I further direct P to file and serve the Amended Statement of Claim within 14 days from the date hereof.
311. There is no reason why costs should not follow event. I grant a costs order nisi as follows:
312. As for costs reserved under the Reserve Cost Order, I grant a cost order nisi that P shall pay such costs to D to be taxed if not agreed. I find D’s proposal to defer the Split Trial Summons reasonable, and by the 2/2/21 Order this court disagreed with P’s proposal to have the Split Trial Summons and the Appeal heard together. D should have a fair opportunity to consider whether it would continue to pursue or if so, how it would pursue the Split Trial Summons upon knowing the outcome of the Appeal, especially in the situation (as here) that the Appeal is allowed. After all, the proposed Particular 6(17A) went to the issue of liability, and may (if not must) have impact on the Split Trial Summons. P should not have resisted D’s request to have time to re-consider the Split Trial Summons and to re-group if necessary.
313. As for further case management of the Split Trial Summons, I direct both parties to jointly write to the court within 21 days from the date hereof to propose case management directions to bring such summons to hearing or other disposal.
(Marlene Ng)
Judge of the Court of First Instance
High Court
Mr Anson Wong SC and Mr Martin Kok, instructed by Robertsons, solicitors for the plaintiff
Mr Raymond Leung SC and Mr Eric Tsoi, instructed by Clyde & Co, solicitors for the defendant
[1] the Liquor Licence provided that such licence was granted for sale of intoxicating liquors for consumption at the Restaurant subject to the conditions specified thereunder and overleaf, and the note overleaf stated “[this] Licence is issued subject to the provisions of the Dutiable Commodities Ordinance (Cap 109) and its subsidiary legislation and to the conditions specified in this licence ……” with the following conditions: “2. No person shall be allowed to become drunk in the premises, nor shall liquor be supplied to any person who is drunk [ie Condition 2] …… 4. The licensee shall personally supervise the premises. …… 9. The licensee shall not permit drunkenness ……”
[2] the Licence Guidelines explained that in accordance with Regulation 17(2) of the Dutiable Commodities (Liquor) Regulations Cap 109B, the Licensing Board shall not grant a liquor licence unless it is satisfied that (a) the applicant is a fit and proper person to hold the licence, (b) the premises to which the application relates are suitable for selling or supplying intoxicating liquor having regard to (i) the location and structure of the premises and (ii) the fire safety and hygenic condition in the premises, and (c) in all the circumstances the grant of the licence is not contrary to the public interest (paragraph 2), and further explained that the Licence Guidelines were developed with a view to facilitate the public and the trade to understand the major factors that the Licensing Board takes into account when assessing liquor licence applications, but the Licence Guidelines do not carry the force of law and, as such, are not meant to bind the Licensing Board members (paragraph 1)
[3] see Particular 6(17), paragraph 12 of the Defence and paras 6 and 12(b) above
[4] see paragraph 15(h) and (i) of the Defence and para 14 above
[5] see item 8 of D’s List of Documents
[6] [1974] RCS 239
[7] HCA1587/2017 (unreported, 31 October 2018)
[8] HCPI838/2015 (unreported, 15 April 2019)
[9] see Order 18 rule 7(1) of the RHC
[10] see Order 18 rule 15(1) of the RHC
[11] see Jacob and Goldrein, Pleadings: Principles and Practice (1990) pp 71-72
[12] see Jacob and Goldrein, Pleadings: Principles and Practice (1990) pp 47-49
[13] see Hong Kong Civil Procedure 2019 Vol 1 para 18/12/1 at pp 461-462 (see also Aktieselskabet Dansk Skibsfinansiring v Wheelock Marden & Co Ltd [1994] 2 HKC 264, 269-270)
[14] Hong Kong Civil Procedure 2022 Vol 1 para 18/12/24 at p 513
[15] HCPI1420/2016 (unreported, 3 June 2020)
[16] HCCL8/2013, Ng J (unreported, 22 October 2014)
[17] see Hong Kong Civil Procedure 2022 Vol 1 para 18/19/5 at p 541 which states that “It has been held by the Court of Appeal in Natamon Protpakorn v. Citibank NA [2009] 1 H.K.L.R.D. 455, [45], [48], [50], that an amendment will survive objection provided that it cannot be demonstrated that it is bound to fail. In effect, an opposition to the application for amendment is the mirror image of an application to strike out a pleading on the basis that it discloses no cause of action pursuant to RHC, O.18, r.19 see also Global Bridge Assets Ltd v. Sun Hung Kai Securities Ltd [2011] 4 HKC 9, [37], [53], [59].”
[18] CTA1/2018 and CTA2/2018, Au-Yeung J (unreported, 29 May 2020)
[19] CACV477/2020, CACV478/2020, CACV621/2020 and CACV622/2020 (unreported, 11 March 2021)
[20] Hong Kong Civil Procedure 2022 Vol 1 para 20/824 at p 589
[21] CACV59/1985 (unreported, 13 June 1985) (see also Montgomery v Chung Cheuk Hung Hero [2018] 5 HKLRD 158,167-168, Shell Hong Kong Limited (first instance) at para 97 and Shell Hong Kong Limited (Court of Appeal) at para 53 – see para 78 above)
[22] HCA744/2013, DHCJ Keith Yeung SC (unreported, 21 February 2019)
[23] [1990] 2 AC 605, 617-618
[24] (2011) 14 HKCFAR 14
[25] [1995] 2 AC 207
[26] HCPI338/2017 (unreported, 31 August 2021)
[27] see Clerk & Lindsell on Torts 23rd ed para 7-158 at p 539
[28] see Tort Law and Practice in Hong Kong 3rd ed para 4.211 at p 249
[29] Mr Leung SC submitted that D produced inter alia 10 Transaction Summary Reports covering the period of 10 years before the Accident from 4 September 2005 to 3 September 2015 to demonstrate the Stairway was safe in that (a) there were approximately 1,158,420 users of the Stairway throughout the 15-year operation of the Restaurant without any accident whatsoever, and (b) on the very day of the Accident 319 customers used the Stairway without any accident and/or complaint
[30] [1996] 1 WLR 1089, 1110
[31] 23rd ed para 11-03 at p 868
[32] 23rd ed para 11-05 at p 870
[33] (2004) 207 ALR 52
[34] regulation 17(1) of the DCLR provides inter alia that upon application the Licensing Board may grant a liquor licence subject to such conditions as it thinks fit, regulation 21 of the DCLR provides that a liquor licence shall be subject to any conditions imposed under regulation 17, and regulation 23(1A)(a) of the DCLR provides inter alia that the Licensing Board may revoke or suspend or refuse to renew a liquor licence if in its opinion the person holding the licence has failed to comply with any condition of the licence
[35] 23rd ed para 8-13 at pp 607-608
[36] (2009) 239 CLR 390
[37] [2010] 3 HKLRD 417
[38] the first instance judge struck out the employee’s claim by holding that (a) the courts should not construct a common law remedy based on an implied anti-avoidance term as it was contrary to the legislative intention as expressed in sections 6-7 and Part VI of the Employment Ordinance Cap 57 not to provide for remedies for loss flowing from the manner in which an employee was dismissed, and (b) it could not be incorporated into the employment agreement as it was inconsistent with the express and unrestricted right of termination without cause under clause 13 thereof and the express condition for eligibility for consideration under the performance incentive programme in clause 1 (page 418)
[39] [2012] 4 HKC 445
[40] “Where any person suffers damage as a result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage ……”
[41] “In this section - …… fault means negligence, breach of statutory duty or other act or omission which gives rise to a liability in tort or would, apart from this section, give rise to the defence of contributory negligence”
[42] [2001] QB 167 (upheld on appeal to the House of Lords in [2003] 1 AC 959) (cited with approval in Silverlink (Hong Kong) Finance Limited v Zhang Sabine Soi Fan & ors HCA2783/1998, DHCJ Muttrie (unreported, 23 October 2003) para 17)
[43] para 76 at p 318
[44] [1989] AC 852, 862
[45] [1980] 2 NZLR 550, 555-556
[46] (2015) 124 SASR 152
[47] [2010] NSWC 724 (8 July 2010)
[48] Mr Wong SC submitted that “[for] instance, one can well imagine that the precautions which a defendant may be required to take would be different in the context of a grocery store, as compared with a restaurant with a liquor licence and a very steep stairway at its entrance,” and even in relation to an alcohol serving outlet or commercial host, whether duty of care would be imposed, and if so, what would be the standard of care might well be different in different factual contexts, eg (a) if a patron had been drinking minimally before he negotiated a properly lit stairway made of light-coloured anti-slip materials with wide/easy steps to depart from the drinking premises, foreseeable risk of injury might be low and might not attract any duty of care or (even if it did) low standard of care would be imposed, but (b) if a patron who had been drinking steadily for some time was supplied more alcohol before he negotiated a dark-coloured and slippery stairway with narrow steps and steep gradient in dim lighting, the risk of injury would be enhanced and might attract a duty of care with higher standard (such as a duty to escort the patron when he negotiated the stairway to leave the drinking premises)
[49] Mr Wong SC submitted that (a) the Canadian case law does not require a patron to be intoxicated (still less showing visible signs of intoxication) for an alcohol serving outlet or commercial host to be liable, and instead it is in essence a fact-specific inquiry as to whether such outlet/host has breached its duty to its patrons, taking into account all the circumstances, (b) the Australian cases do not stand for any rigid proposition that a patron must necessarily plead/show he was intoxicated or drunk for mounting a negligence claim against such outlet/host, (c) the English cases do not provide support to the argument that the patron is somehow required to plead that he was intoxicated or drunk to sue such outlet/host in negligence, and (d) Hong Kong has no decided case on the precise point in issue
[50] see Markesinis and Deakin’s Tort Law 8th ed p 750
[51] eg the slippery nature of the materials used, the insufficient lighting at the material time, the steep gradient of the Stairway, the narrowness of the steps
[52] [1995] 1 WLR 1217
[53] CACV138/2016 and CACV48/2017 (unreported, 28 August 2017)
[54] [1968] ALR 33 (which raised the question of duty of care (if any) owed by one participant to another participant in a sport with inherent risks such as water skiing)
[55] Martland, Spence and Laskin JJ disagreed that the hotel owner by taking positive action to eject the plaintiff from the hotel assumed a duty of care to ensure his safety was not endangered by the hotel’s action (page 244), and found the plaintiff was too intoxicated to have any voluntary assumption of risk (page 250)
[56] (1980), 2 ACWS (2d) 428 (referred to in Stewart v Pettie [1995] 1 SCR 131, 148 and 152)
[57] (1983) 27 CCLT 1 (referred to in Stewart at p 141)
[58] the court rejected the defence of volenti non fit injuria as the injured passenger had not been aware the patron had been drinking before they met and therefore could not have consented to the risk of injury
[59] [1988] 1 SCR 1186 (referred to in Stewart at pp 146-147)
[60] eg disqualifying the plaintiff when he was drunk, declining to supply him with a fresh tube when he fell down on the slope before the 2nd heat, and attempting to bring home to him the risk of serious injury in competing while drunk
[61] (1989) 13 OR (3d) 298 (CA)
[62] [1995] 1 RCS 131
[63] [2006] 1 RCS 643
[64] [1978] AC 728
[65] in Stewart it was alternatively held that the injured passenger’s claim would fail for lack of causation because the court drew the inference that had the dinner theatre intervened, the patron’s group would still have allowed the patron to drive (pages 153-154)
[66] ie the social hosts did not assume control over the supply or service of alcohol, they did not serve alcohol to the guest when he was visibly impaired (and indeed they did not know the guest was intoxicated), they had no statutory duty to monitor the consumption of alcohol or to control the premises where alcohol was served, and they did not otherwise assume responsibility for the guest’s safety (pages 647-648)
[67] [2003] 3 SCR 263
[68] 2019 ONSC 3571 (13 June 2019)
[69] which appeared to be an extension of Jordan House Limited that held an alcohol serving outlet or commercial host owes a duty of care to ensure intoxicated patrons arrive home safely
[70] 2018 ONCA 889 (7 November 2018) (a case where the Ontario Court of Appeal dismissed a summary judgment application and ordered that a trial was necessary to determine whether a social host owed a duty of care to an intoxicated guest for harm caused after such guest had safely returned home)
[71] 2017 BCSC 385 (8 March 2017) (a case where Kent J of the Supreme Court of British Columbia in dealing with the issue of whether the pub in question had any legal responsibility for injuries suffered by a pedestrian, who was hit by a motor vehicle driven by a patron of the pub, who (together with his co-workers) in turn was served alcohol and was intoxicated at the time of the accident, held at paras 76-86 that there was little logic to the suggestion that a safe arrival home would break the chain of causation or would otherwise discharge the pub’s duty of care)
[72] eg arranging rides, ringing for taxi transport, putting the patron into the care of sober companions, providing accommodation to inebriated patrons, and/or having a system of ensuring inebriated patrons avail themselves of those services (see also other examples of “general standards of conduct [of a commercial provider] that could well apply as a matter of common sense” in para 47 in Widdowson )
[73] the plaintiff would not have drunk less than her friend Mrs H who had about 8 glasses of free spumante
[74] Gleeson CJ said at para 5 / page 55 that “[it] is unnecessary, for the purposes of the present case, to endeavour to formulate, in abstract terms, some general proposition as to whether in any, and if so what, circumstances a supplier of alcohol, in either a commercial or a social setting, is under a duty to take reasonable care to protect a consumer of alcohol against the risk of physical injury resulting from consumption of alcohol. The question is whether there was such a duty in the circumstances of this case ……”
[75] Gleeson CJ said at para 17 / page 58 that “[however] the appellant cannot succeed in this case unless there is a general duty upon a supplier of alcohol, at least in a commercial setting, to take such care. I do not accept that there is such a general duty ……”
[76] eg by refusing to serve her alcohol, by ensuring she was not served further alcohol purchased by her companions, by giving advice and warnings and/or by ejecting (forcibly if necessary) her and her companions from the club premises
[77] section 44A(3) of the Registered Clubs Act 1976 (NSW) provides that if a person on the premises of a registered club is intoxicated, the secretary is taken to have permitted intoxication on the premises unless it is proved that the secretary and all employees selling or supplying liquor took all reasonable steps to prevent intoxication on the premises
[78] “…… Those features were said to be as follows. Comfortably with the commercial self-interest of the Proprietor and the Licensee, it was repeatedly stressed, intoxicating drinks were being served to [the deceased]. [The deceased] was known to have arrived on the motorcycle. The Licensee understood that the drinks had the capacity to impair, and had probably already affected, [the deceased’s] capacity to ride the motorcycle home safely. The rumoured deployment of a breathalyser check led to the Licensee and [the deceased] arranging for the motorcycle to be locked away because it was likely that [the deceased] would break the law if he were to ride it away. The arrangement permitted the Licensee to continue serving intoxicating drinks to [the deceased], if [the deceased] so chose, because he would not be trying to ride away drunk on the motorcycle. The contemplated impairment of the [deceased’s] capacity to ride safely included a diminished capacity to make sensible judgments. The solution reached by the arrangement was for [the deceased’s wife] to be contacted when [the deceased] was ready to go home. Eventually, the Licensee decided, reasonably, that [the deceased] had enough to drink. [The deceased] then announced his changed judgment, such as it was, that he would try to ride home”
[79] as a matter of stare decisis , Cole was not an authority binding on the Tasmanian courts to hold that publicans owe no duty of care to patrons in relation to the amount of alcohol served and the consequences of its service save in exceptional cases because “Callinan J upheld that proposition. Gleeson CJ decided that in the circumstances of that case there was no duty of care, but did so in terms consistent with the proposition upheld by Callinan J. On the other hand, McHugh J denied the proposition. So did Kirby J. Gummow and Hayne JJ expressly declined to decide the point” (paragraph 49 / pages 411-412)
[80] Gummow, Haydon and Crennan JJ referred to the observations by the majority (Gleeson CJ, Guadron, McHugh, Hayne and Callinan JJ) in Sullivan v Moody (2001) 207 CLR 562, 576 that “to conclude that the law of negligence created a duty in the present circumstances “would subvert many other principles of law, and statutory provisions, which strike a balance of rights and obligations, duties and freedoms”” (para 42 / page 410)
[81] see para 238(a) above
[82] see para 238(a) above
[83] [1995] 1 WLR 1217
[84] (1987) 162 CLR 479
[85] (1984) 155 CLR 614, 662-663
[86] (2007) 234 CLR 330, 345
[87] see CAL No 14 Pty Ltd at para 31 / page 404
[88] (2002) 55 NSWLR 113, 137
[89] (2009) 239 CLR 420, 436
[90] (2015) 124 SASR 152
[91] eg Chordas v Bryant (Wellington) Pty Ltd (1988) 91 ALR 149 (referred to by Kirby J in Cole – see para 218 above) and Hay v Sheargold (unreported judgment of Dunford J in the New South Wales Supreme Court on 18 April 1996)
[92] (1984) The Times LR, 9 March 1984
[93] [1995] 1 WLR 1217
[94] [2000] 1 WLR 2055
[95] (1998) The Times, October 23, [1998] Lexis Citation 1677
[96] Jones J said “[consideration] of the question of breach of such a duty further underlines its impracticality. It is of course not the amount which the passenger has actually had to drink which is material, unless the taxi driver has actual knowledge of that amount, but the apparent effects of the intoxicating drink. Persons vary widely in their response to alcoholic drink and its effect very widely. In my judgment, such a duty could only be feasible and a breach would only arise in circumstances where it is apparent that the passenger, in the words of Beldam J, as he then was in Munro “had reached such a stage of intocxication that he was incapable of taking care for his own safety” ……”
[97] see Hong Kong Civil Procedure 2022 Vol 1 para 20/5/3 at p 575
[98] see Shenzhen Futaihong Precision Industry Co Ltd & ors v BYD Company Limited & ors CACV63/2017 and CACV76/2017 (unreported, 18 July 2018) para 80
[99] see Shenzhen Futaihong Precision Industry Co Ltd & ors at para 74 that referred to a 3-stage test in para 292(a)-(c) herein (see also Ballinger & anor v Mercer Ltd & anor [2014] 1 WLR 3597, 3606), but Hyde v Nygate [2019] EWHC 1516 (Ch) (18 June 2019) para 26 broke the test down to 4 stages by adding the element in para 242(d) herein
[100] if not, then the proposed amendments fall to be considered in accordance with the general principles governing amendment applications
[101] see footnote 97 above
[102] if not, the proposed amendments cannot be allowed as a limitation point is normally a matter of right so the court has no residual discretion to exercise to permit a statute-barred claim to be raised (see Lam Sik Ying, Administrator for the Estate of Lam Tim alias Stan Lam Tim, deceased v Lam Sik Shi & anor HCA4713/2001 (unreported, 21 September 2015) para 33 and para 294 below)
[103] see Moulin Global Eyecare Holdings Limited v Olivia Lee Sin Mei (2014) 17 HKCFAR 466, 479
[104] see Global Bridge Assets Ltd v Sun Hung Kai Financial Ltd [2012] 4 HKLRD 474, and Shenzhen Futaihong Precision Industry Co Ltd & ors at para 79
[105] CACV63/2017 and CACV76/2017 (unreported, 18 July 2018)
[106] HCA2741/1998, Recorder Paul Shieh SC (unreported, 5 January 2007)
[107] see Smith v Henniker-Major [2003] Ch 182, 210 (see para 295 above)
[108] [2011] 1 WLR 2290, 2309
[109] equivalent to Order 20 rule 5(5) of the RHC
[110] see Shenzhen Futaihong Precision Industry Co Ltd & ors at para 113
[111] see Lam Sik Ying, Administrator for the Estate of Lam Tim alias Stan Lam Tim, deceased at paras 41-42 and 69
[112] including (a) the defendants wrongfully received the plaintiffs’ confidential information through the plaintiffs’ employees (particularly 2 of them who were the prime movers), and (b) the defendants wrongfully modified or copied the confidential information and established a product production line strikingly similar to the plaintiffs’ system by using such information
[113] including (a) the plaintiffs’ documents received by the defendants through the plaintiffs’ employees (particularly 2 of them who were the prime movers), and the documents to be investigated in this respect should cover (other than the documents pleaded in the existing claim) all documents received by the defendants through the 2 employees who were the prime movers, including those documents mentioned in the disputed amendments, and (b) the plaintiffs’ documents such as those pleaded in the un-amended Schedule 14, which were alleged to have been modified or copied by the defendants or used in establishing the defendants’ own production line, and the documents to be investigated in this respect should cover the defendants’ documents which bore striking similarity to the plaintiffs’ documents, including those documents mentioned in the disputed amendments (para 117)
[114] HCA706/2010, DHCJ Lee (as he then was) (unreported, 10 February 2017)
[115] [1999] PNLR 365 (in that case, the purchasers bought a property with 2 mortgages from 2 mortgagees who were not told by their solicitors (who also acted for the purchasers/mortgagors) about the loan by and mortgage to the other plaintiff which could have affected their decision to lend or the amount they would have lent, and in their claim against the solicitors the pleaded duty of care was to act/advise with reasonable skill and care, and to tell the plaintiffs and each of them information within their knowledge that would/might affect the decision of a reasonable lender to lend and the terms on which a reasonable lender might lend, so it was held that the proposed amendments to allege (i) the solicitors would as part of their retainer act in accordance with professional rules, custom and practice (including various ways in which solicitors acting for both parties to a transaction should act when they knew or had strong prima facie evidence of fraud by the borrower), and (ii) further facts disclosed in discovery to show the solicitors knew or had such strong prima facie evidence that the mortgagors were seeking to commit fraud on the plaintiffs amounted to a new or additional cause of action)_
[116] [2006] QSC 191 (3 August 2006) (the original statement of claim alleged negligence in the performance of surgery, and it was held that the proposed amendment alleging a duty to warn the plaintiff of the risks involved in surgery introduced a new cause of action as (a) it required the plaintiff to prove a distinct fault necessarily prior in time to the alleged breach in the course of the surgery, and then to prove the likelihood of some sequence of events in response to a property warning, and (b) it would sound in damages (ie the difference, if any, between the plaintiff’s actual position and the position in which he would be had he been warned) different from that for negligent surgery (ie the difference between the plaintiff’s actual position and that which he would enjoy had he had the benefit of a fault-free surgery))
[117] [2008] 3 HKLRD 221 (a bank sued its solicitors who prepared a mortgage on its behalf on the basis that the mortgage was void under the Housing Ordinance Cap 283, and it later sued the mortgagors one of whom pleaded that the mortgage was voidable for misrepresentation by the solicitors’ clerk, so the bank applied to amend its claim against the solicitors on the basis of such ground (ie that if the mortgage was voidable as against such mortgagor, the solicitors were in breach of their duty to the bank), but the proposed amendment was held to add a new but statute-barred cause of action as the breach of duty asserted was different and the result was also different (ie (a) if the mortgage was void, the bank could enforce the personal covenants against the mortgagors, but (b) if the mortgage was voidable against one of the mortgagors and it was avoided by her, it would still be valid against the other mortgagor in respect of his share of the property and his personal covenant))