HUI KIN FAI v. THE DIRECTOR OF HOUSING

IN THE COURT OF APPEAL

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RULING

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Hunter, J.A. :

1. By this application the plaintiff seeks two things: first leave to appeal against a decision of His Honour Deputy Judge Chan given on 26th August of last year: secondly an extension of time for filing a notice of appeal.

2. The plaintiff's claim arose out of an accident he suffered in a playground on a housing estate on 28th December 1984. There seems to have been a headlong conflict on the evidence led before the District Court judge. The plaintiff asserted that the particular basket ball post which caused the injury was partially vertical but in a somewhat damaged condition, and that his injury was caused when quite unexpectedly this basket-ball post fell on his head. He was supported in that by two young friends, one of whom said specifically that he lifted the post off him after the accident.

3. This was hotly denied in evidence led by the defendant. This was to the effect that the post had been damaged some days before, and had been lying on the ground ever since. There was some suggestion from the witnesses that this was a possible source of danger to young persons, and steps had been taken to surround it with red tape. A warning notice was at one time there, and it was in issue whether it was still there on the day in question.

4. The judge started by accepting the evidence of two of the defendant's witnesses to the effect that the post was on the ground shortly before the accident happened at 4 o'clock that afternoon. One of them had said, I think, that at 3:30 he had inspected it and had seen off some children who were playing on it. The aspect of seeing off the children, never seems to have been investigated with the plaintiff in the witness box at all.

5. Having accepted the defendant's evidence to that effect, the judge also seems to have accepted the plaintiff's evidence, which he regarded as supported by the plaintiff's doctor, that the injury had been caused not by a fall from the post on to the ground which had been the defendant's theory but by the post falling upon him. He then goes on in the course of his judgment:

From that inference he concluded that the plaintiff was wholly responsible for his own injuries.

6. The first point which is taken is that this was a theory which first saw the light day as far as I can see in the course of the judgment. It was never considered by the parties in the course of the case at all. It involves a finding that the plaintiff brought these injuries upon himself, upon grounds which were never even put to him in the course of the case. The first thing that I think is arguable on the face of this judgment, is that that was not a permissible approach for the trial judge.

7. The second point which the plaintiff wishes to argue on these facts is that one has to look at the totality of this situation even on the judge's findings, and consider whether, even if this post had been on the ground all the time; there was any aspect of what used to be called allurement about it; whether its presence on the ground was a source of danger to young persons using the playground.

8. Mr. Yip for the defendant seeks to persuade me that there is no argument in that, because it was a necessary inference from the judge's judgment that he accepted that the defendant had discharged its duties as an occupier in that respect. But unfortunately he does not in fact deal with this matter in his judgment at all. He makes no findings as to the facts; no findings as to the existence or otherwise of any danger; no findings as to the reasonableness of the precautions taken. On the issue of liability it seems to me that those are both arguable points.

9. There are other points which have been raised on the damages. I will say no more about them. There may be some substance in those arguments as well. So it seems to me that this is the case where it is proper to grant leave to appeal.

10. The next question is whether it is proper to extend the time. There it seems to me that the present situation under the Legal Aid Ordinance is far from satisfactory. Where an application for legal aid is made at the start of proceedings there is an automatic stay to enable the Director to consider the merits of the claim and whether or not to grant legal aid. This is a very necessary and proper provision to have to ensure that whilst he is considering whether or not the litigant should be supported, judgment is not given in default. Unfortunately as it seems to me, there is no parallel provision when it comes to an appeal.

11. The position on appeal is governed by section 16 of the Ordinance. This in effect provides that the legally aided litigant is not an effective legally aided appellant, until he is in possession of a certificate from counsel who can say that he has carefully examined the case, and is of the opinion that the appellant has good grounds of appeal. Save in the very rare, and I hope wholly exceptional case, where counsel can take one glance at the judgment and say this must be appealable, this is bound to take time. Counsel has got to investigate the matter. It is highly desirable that a proper investigation is conducted, so that legal aid certificates are not in fact issued under pressure. But sadly there is no specific time limit, or relaxation of the rules written into the Ordinance, or as far as I know into the Regulations, giving the Director a specific time with which to deal with these matters. It seems to me that that is something which could usefully be introduced.

12. In this case an awful lot of time has gone by whilst this matter was considered by different persons in the Director's office who first came to the conclusion that there was no arguable ground, I have already indicated that I think that there are arguable grounds. Therefore it necessary follows that I do not agree with the opinions then given by those persons in the Director's office. It was not I think until the second or third person considered it and gave it rather more thought that steps were taken. Even those steps were taken somewhat slowly, before this notice of motion was launched on 6th May.

13. The judge himself refused leave to appeal on 17th November. Under the rules this application to this court is meant to be lodged within 14 days. So instead of this happening at the end of November or early December it did not happen until early May. There has been a very considerable lapse of time. Part of it seems to me necessary, but not provided for by the rules, to give the Director of Legal Aid a proper chance to consider the matter. Part of it was brought about by errors in the persons who first looked at the matter in the department. In these circumstances the court is in a somewhat invidious position.

14. This is a case where for reasons I have given there are reasonable arguments in this appeal. If those arguments should hereafter prevail, they will result in a finding of damages in favour of this young man which he does not have at this moment. That will result in prejudice to this defendant, for the first time in the course of the case, as he has won it up to now. Conversely to deny the plaintiff that opportunity could be an obvious prejudice to him.

15. This case concerns a public authority. Public authorities are entitled to the same protection as individuals. But they are, I think, in a marginally different position because in this particular case they were owing duties to the public in respect of children's playground. This element of public duty may justify slightly harsher treatment.

16. The third point is that the matter is already going to come before this court, because a District Court judge, on the application of the proposed respondent made well out of time, has given leave to it to challenge the trial judge's order as to costs which was no order as to costs. That is going to come before this court in any event.

17. In all these circumstances, and whilst sympathising considerably with the Director's position, but thinking that things might in this case have been dealt with rather more expeditiously, I think that it is a proper case to extend the time for filing a notice of appeal. So I grant the plaintiff leave to appeal. I extend the time for the service of the notice of appeal until 7 days from today; and I subject to anything that may be said my inclination is to reserve the question of costs to the hearing of the appeal itself.