LEE YIU v. THE KOWLOON MOTOR BUS CO LTD

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

SMALL CLAIM APPEAL NO. l7 OF 1984

(Claim No. H-859 of 1983)

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JUDGMENT

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1. This is an appeal from a decision by Mr. Adjudicator Mok given on the 28th of March 1984 and made with leave of Mr. Justice Mayo which was granted on the 4th of July this year. It arises out of a minor traffic accident in the Ma Tau Chung Road on the 21st of September 1981 when, as I understand the facts, though they do not directly concern me, a public light bus cut in front of a Kowloon Motor Bus. There was a collision and minor accident damage was sustained by both vehicles. I can given some idea of the extent of the damage if I say that the claim in the Small Claims Tribunal which was brought by the Kowloon Motor Bus Company was approximately S4,200, and it is now considered though the matter was never ventilated before the Adjudicator, that the public light bus sustained damage costing approximately $3,000 to repair.

2. There were a number of hearings for reasons which do not appear clearly from the papers, spread over a number of months which seems surprising since the issues involved do not appear to be complicated. The driver of the public light vehicle never appeared in those proceedings (apparently he could not be traced) but the owner of the public light vehicle was made defendant and in the event it was against the owner that the respondent in this appeal succeeded and it is by the owner of that vehicle this appeal is now made.

3. The principal question before the Adjudicator was this: "Was the driver of the public light vehicle the servant or agent of the owner?" If he was, then of course the claimant could fix the owner with liability on a vicarious basis; if he was not, then no liability would attach.

4. The Adjudicator's first view was I think correct. It was that the driver was not the agent or servant of the owner and he so found. At that point the individual who appeared on behalf of the Kowloon Motor Bus Company presented to the Adjudicator two decisions in the District Court which seemed to run counter to his view as a result of which he revised his opinion as I think he was bound to do so having accepted that those decisions held good. What he was not told was that both those cases had gone to the Court of Appeal and had been reversed and had he been told that at the time I have absolutely no doubt that he would have held to his original view: but he was not and he therefore found that the driver of the public light bus was indeed the agent of the owner at the relevant time. Appeal lies from that decision.

5. The position of someone who hires a vehicle to use on his own account is well settled by authority, the most recent in the House of Lords being Morgans v. Lauchbury and others⁽¹⁾, which is, I would have thought, all the authority one needs but there is also the Court of Appeal's unreported decision in Hong Kong in Chan Yau Yik's⁽²⁾ case decided in 1982 which overturns the two decisions in the District Court to which I have referred. In that case the Court of Appeal did not give leave to the respondent to argue a further point based on certain statutory provisions and those have been raised by Mr. Poll before me today. His argument depends upon the statutory obligation imposed upon the owner of a public light bus, both in relation to the obtaining of a licence and thereafter. It seems to me that none of the statutory provisions bear upon the central question here is to whether or the driver who has taken a vehicle on hire thereby becomes agent or servant of the owner. That argument fails. The appeal must be allowed which means that the judgment which was obtained in the Small Claims Tribunal by the respondent against the appellant will be set aside.

6. One further matter arises. The learned Adjudicator that responsibility for this accident lay in the proportion sixty to forty per cent; 60% resting with driven of the public light ta vehicle; 40% resting with driver of the bus. The appellant says that he has in those circumstances a counterclaim. That is undoubtedly the can and is not contested by Mr Poll.

7. His counterclaim as such was not raised before the Adjudicator and the Adjudicator did not himself take the point. It involves a question of quantum because there has been no evidence given at to the cost of repairing of the public light vehicle and there is also the question of a claim for loss of use. I have already made an order that the matter should be remitted to the learned Adjudicator to the tribunal for evidence to be heard on that point. No question of principle arises. It is solely a question of amount.

8. There is a further question as to whether or not the appellant has a claim against his hirer. I think it is probably best that I express no view on that other than I have done so already.

9. Costs of the application for leave and of this hearing to be the appellants.

(1)    [1972] 2 All ER 606

(2)    Civil Appeal No. 7 of 1982