LAI PUI LING suing by her brother and next friend LAI HIN HO v. HO CHI KEUNG AND ANOTHER

CACV 138/2016 AND CACV 48/2017

CACV 138/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 138 OF 2016

(ON APPEAL FROM HCPI NO 464 OF 2014)

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AND

CACV 48/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 48 OF 2017

(ON APPEAL FROM HCPI NO 464 OF 2014)

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(Heard together)

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J U D G M E N T

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Hon Kwan JA (giving the judgment of the court in CACV 138/2016):

1.  This is the plaintiff’s appeal against the judgment of G Lam J on 19 May 2016 ([2016] 3 HKLRD 329) in an action for personal injuries. She sustained a severe head injury when she was wakeboarding in the waters off Sai Kung on 14 July 2010. She sued by her next friend and younger brother Lai Hin Ho (“Mr Lai”). The 1^st defendant was the registered owner of the open cruiser that was towing the plaintiff at the time and the 2^nd defendant was the coxswain.

2.  Interlocutory judgment for damages was entered against the 1^st defendant in default of notice of intention to defend.  The action proceeded to trial on liability as between the plaintiff and the 2^nd defendant, with assessment of damages against both defendants.

3.  The judge concluded that the plaintiff has failed to prove that the 2^nd defendant breached any legal duty of care towards her that caused the accident and her injuries and he is not liable to the plaintiff.  He dismissed the plaintiff’s action against the 2^nd defendant.  This is the subject of the present appeal (CACV 138/2016).

4.  In a subsequent hearing on 8 September 2016, the judge considered whether the default judgment against the 1^st defendant should be set aside. In his decision handed down on 25 January 2017 ([2017] 1 HKLRD 1248), he ruled against the plaintiff.  The statement of claim was struck out as against the 1^st defendant and the action against him dismissed.  This is the subject of another appeal of the plaintiff (CACV 48/2017) heard on the same day.

The accident

5.  As noted by the judge, no live evidence was given at the trial by any person present at the scene of the accident.

6.  The plaintiff’s side did not call her former boyfriend Ho Yat Chi Ivan (“Mr Ho”), who was interviewed by Mr Lai on 12 February 2012 (the interview was recorded) and had provided a witness statement on 8 January 2013.  The plaintiff had given a statement to Hung Chou Io (“Mr Hung”; he gave evidence on her behalf as an expert), which was not disclosed and she had a meeting with him but she did not give evidence at the trial.  And no explanation was provided to the court why none of the other persons who had participated in the wakeboarding activities at the time were not called as witnesses.

7.  The defendants did not have legal representation throughout.  The 1^st defendant did not file any witness statement.  He was not present at the scene and only took a minimum part in the trial.  The 2^nd defendant filed a defence but was barred from giving evidence because of his failure to file a witness statement in compliance with an unless order.  Both attended the hearing of these appeals in person.

8.  The relevant facts found by the judge on the available evidence may be stated as follows.

9.  The plaintiff was 27 years of age at the time of the accident.  She began wakeboarding in around 2008, learning from friends.  The judge found she knew the basic skills but was not very experienced or proficient in wakeboarding.

10.  Mr Ho started wakeboarding in 2009.  He knew that the plaintiff had not had any formal training in the sport.  He arranged the activity a week before the accident.  He contacted a person who ran a fish farm in Sai Kung to arrange for a motorboat and coxswain on the day.  He went with the plaintiff and three colleagues.  Each agreed to contribute $400 and the total sum was to be paid to the coxswain at the end of the day.  They went in the morning to the fish raft in Kai Lung Wan, Sai Kung to collect the wakeboards and boarded the boat for wakeboarding at about 11 am.  They told the 2^nd defendant, who was driving the boat, they were not too proficient in wakeboarding.

11.  The morning was uneventful.  It was sunny, not particularly windy and the sea was not rough.  After a morning’s session, they went back to the fish raft for lunch.  The five wakeboarders and the 2^nd defendant shared the bread and beer which the former brought with them.  The judge accepted Mr Ho’s statement in the interview that the plaintiff had drunk about two cans of beer during lunch.  There was dispute as to how much beer the 2^nd defendant had drunk during lunch.

12.  After lunch, they resumed wakeboarding.  The wakeboarders, but not the 2^nd defendant, continued to drink a little beer and water while on the boat.  They took turns to wakeboard, each time for about five to ten minutes.  The person who was wakeboarding wore a life jacket, but not a safety helmet.  The passengers kept a look-out on the one wakeboarding and gave the latter suggestions on movements.  The 2^nd defendant also kept a look-out in the rear mirror.

13.  After wakeboarding once in the afternoon, the plaintiff said she was tired and had a slight headache.  She rested on the boat for ten minutes or so and seemed to have recovered.  Sometime after 3 pm, she took to wakeboarding a second time.  After a short while, as she was being towed on the wakeboard, she fell forward on to the sea and cried for help.  By the time she was pulled up to the boat, she was becoming unconscious.  She was quickly taken to hospital and found to have suffered acute subdural haemorrhage over the left cerebral hemisphere.  She was in hospital for nine months and was assessed to have suffered a 39% impairment of the whole person.

The allegations of negligence against the 2^nd defendant

14.  The allegations of negligence made against the 2^nd defendant, as summarised by the judge, are as follows:

“(1) driving the boat too fast and at a speed that was unsafe in the circumstances;

(2) failing to provide the plaintiff with a safety helmet;

(3) failing to have an observer on the boat to keep proper surveillance of the participants;

(4) driving the boat whilst his ability to do so was impaired by the consumption of alcohol;

(5) failing to advise the plaintiff not to consume any alcoholic drinks;

(6) failing to prevent the plaintiff from wakeboarding after consuming alcohol;

(7) failing to provide a safe system and environment to the participants.”

The judge’s findings on the allegations of negligence

15.  The judge’s findings that the plaintiff has failed to establish negligence on each of the above allegations may be stated as follows:

(1) Speed of the boat

16.  There was no evidence that the boat was being driven by the 2^nd defendant at an excessive speed.  The judge found Mr Hung’s opinion on the boat’s speed inadmissible and, in any event, not probative of anything.  Mr Ho, who gave the only eyewitness account, had never suggested that the boat was travelling too fast.

17.  There is no appeal against this finding.

(2) Safety helmet

18.  There was little to support the allegation that the 2^nd defendant fell below the applicable standard of care in failing to provide the plaintiff with, or to ensure that she wore, a safety helmet. In any event, it was not the duty of the 2^nd defendant as the coxswain (who did not hold himself out to be an instructor or coach) to supply any personal equipment such as non-slippery shoes, gloves and safety helmets.

19.  There is no appeal against this finding as well.

(3) Observer on the boat

20.  Mr Ho and his friends were performing the function of observers to keep a look-out of the person wakeboarding.  In any event, there was nothing to suggest that the 2^nd defendant failed to stop the boat soon enough after the plaintiff fell and nothing to suggest that the absence of a designated observer was in any way causative of the accident or the plaintiff’s injuries.

21.  This finding was not challenged on appeal.  The remaining four findings formed the subject of this appeal.

(4) Driving the boat whilst his ability was impaired by consumption of alcohol

22.  The judge accepted Mr Ho’s evidence in the recorded interview that the 2^nd defendant had drunk beer during lunch.  The 2^nd defendant did not deny that he had consumed beer, what he asserted in the defence was that he was not “affected by alcohol” when he was driving[1].

23.  The judge noted it was mentioned in Mr Ho’s witness statement that the 2^nd defendant drank four to five cans of beer during lunch.  Having considered the evidence, he found this “inherently improbable”.  There was no evidence that the 2^nd defendant was affected by the consumption of alcohol.  The judge declined to resolve the dispute of whether the 2^nd defendant had consumed four to five cans of beer by drawing adverse inferences against him.  On the evidence, all he could fairly find is that “the 2^nd defendant did drink some beer during lunch but it is not known how much.  More likely than not it was not a remarkable amount.”[2]

24.  In the absence of evidence of how much the 2^nd defendant actually drank, there was no proper basis for finding him negligent in driving the boat after having drunk some beer during lunch, or that his breath or blood alcohol exceeded the limit proposed by the Marine Department for legislation or that he was in any way adversely affected by the effect of alcohol at the time of the accident[3].

(5) & (6)  Failing to advise the plaintiff not to consume any alcoholic drinks; failing to prevent the plaintiff from wakeboarding after consuming alcohol

25.  The judge accepted Mr Ho’s evidence in the interview and the witness statement that the 2^nd defendant did not tell the passengers they could not wakeboard after drinking alcohol, and that he did not prevent them from wakeboarding in the afternoon.  The judge did not accept the 2^nd defendant’s assertion in his defence that he did advise the plaintiff, presumably including other passengers, not to drink too much beer[4].

26.  The judge rejected the plaintiff’s submission that the 2^nd defendant 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 2^nd defendant was only hired as a coxswain.  He was not responsible for giving them training or instructions on wakeboarding.  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 2^nd defendant’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[5].

27.  Furthermore, there was nothing to suggest that the 2^nd defendant knew the plaintiff was unfit to wakeboard.  There was no suggestion in Mr Ho’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 2^nd defendant could be expected to try to prevent her from wakeboarding[6].

(7) Failing to provide a safe system and environment to the participants

28.  The judge found it difficult to identify a part of the system that was particularly and inherently unsafe.  Even now the precise cause of the accident remained unclear.  He referred to Luen Hing Fat Coating & Finishing Factory Ltd v Waan Chuen Ming (2011) 14 HKCFAR 14 at §30.  Taking a holistic view of foreseeability, proximity and the need to be fair, just and reasonable to impose a duty of care, he held that it would not be right to impose on the 2^nd defendant a duty in effect to see to it that the participants were not injured.  The participants were not the 2^nd defendant’s employees. Rather, he was their contractor engaged to provide services of a limited scope.  If the plaintiff failed to establish negligence on the basis of the more particular allegations discussed above, there was no basis to impose a general duty and to hold that it was breached simply because the plaintiff had sustained injuries[7].

29.  The judge further held that the maxim res ipsa loquitur does not assist the plaintiff.  This is because wakeboarding is a sport with inherent risks and the accident that happened is not such that from its occurrence alone one can infer negligence on the part of the 2^nd defendant[8].

The appeal in CACV 138/2016

30.  Mr Meyrick Wong, who appeared for the plaintiff at the trial and before us, argued that if the judge had taken 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, he should have held that the 2^nd defendant owed the plaintiff a duty of care as a passenger and participant of the wakeboarding activities provided by the 1^st and 2^nd defendants.  His arguments ran as follows:

(1)  In the case of personal or physical injury (in contrast with pure economic loss), reasonable foreseeability of harm is usually enough, in accordance with the principle in Donoghue v Stevenson [1932] AC 562, to generate a duty of care, quoting Lord Hoffmann in Customs and Excise Commissioners v Barclays Bank plc [2007] 1 AC 181 at §31.  The fact of personal safety being at stake is always significant and there can be no doubt that the policy considerations in favour of personal safety are naturally very powerful, particularly so where the person is in a vulnerable position, quoting Bokhary PJ in Luen Hing Fat at §§42 and 43.

(2)  There was no real demarcation between proximity and the requirements of fairness, justice and reasonableness to impose a duty of care.  These two headings are no more than labels under which the court examined the pros and cons of imposing liability of negligence in a particular type of case, quoting Nicholls VP in White v Jones [1995] 2 AC 207 at 221F to G.  Considerations of fairness, justice and reasonableness were an intrinsic element of the duty of care and could be employed to ground the imposition of a duty of care; either in circumstances where no such duty had previously existed, or in circumstances where a duty had previously been denied, quoting from Z v United Kingdom (2002) 34 EHRR 3 at §100 and Street on Torts (12 ed, 2007 ed) p 43.[9]

(3)  In the congested sea of Sai Kung and the busy marine activities there, it is clear that the 2^nd defendant, as a coxswain, must maintain a highly vigilant approach and working attitude in the course of his work in order not to cause hazard or safety concern to the public, which included his passengers, who relied on his steering to play the wakeboard game.  He owed a duty of care to other users in this piece of Hong Kong waters because it is plain common sense that wakeboarding is a game which carries risks of injuries.

(4)  It was reasonably foreseeable that the plaintiff would be exposed to harm as a result of the 2^nd defendant’s own consumption of alcohol and his allowing the plaintiff to consume alcohol whilst taking part in this water sport.  The mere consumption of alcohol by both the 2^nd defendant and the plaintiff would ground the imposition of a duty of care on the principles of Donoghue v Stevenson.  The Safety Manual for Water Skiing & Wakeboarding (Version 2003.3) issued by the Hong Kong Water Ski Association contained a recommendation that “Skier/wakeboarders, drivers and observers are recommended to save alcoholic drink until completing skiing/wakeboarding.”

(5)  The wakeboarding game which was propelled by the boat driven by the coxswain carried a certain degree of danger.  The wakeboard and the rope connecting it are integral parts of the boat at the mercy and control of the 2^nd defendant.  There was clear proximity between the plaintiff and the 2^nd defendant, who alone dictated and controlled the plaintiff’s wakeboarding movements.  The plaintiff had no control over her own wakeboarding styles and was completely in the hands of the driver of the boat.  She relied on the skills, judgment and assessment of the risks of the 2^nd defendant to perform the water sport.  She was completely vulnerable to and at the mercy of the driving manner of the 2^nd defendant.  If no sufficient measures of protection were in place, foreseeability of harm could easily be established.  There must be a duty of care owed by the 2^nd defendant to her.

(6)  The 2^nd defendant should know it was dangerous for him to drink alcohol before steering the plaintiff into the sea to play the game which involved danger.  Drinking alcohol would affect his judgment on the degree of danger, and also his ability in mastering the activities and safety of the plaintiff.  The 2^nd defendant should reasonably foretell that the consumption of alcohol by the plaintiff would similarly affect her ability to face or react to dangers whilst wakeboarding, typically, her ability to maintain a fine balance.

(7)  Mr Wong cited Rootes v Shelton [1968] ALR 33, in which the High Court of Australia held that a duty of care was owed by the driver of a boat to a water skier towed by the boat.

31.  The crux of Mr Wong’s submission is his contention in (4), namely that the mere consumption of alcohol by both the 2^nd defendant and the plaintiff would ground the imposition of a duty of care on the 2^nd defendant. We firmly reject his submission for these reasons:

(1)  As the High Court of Australia repeatedly emphasized in Rootes v Shelton (per Barwick CJ, Kitto J and Owen J), whether or not a duty of care was owed by one participant to another participant in a sport with inherent risks (such as water skiing), and, if a duty was 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.  Rootes v Shelton is a case in point.  The appellant, an experienced water skier, was injured in performing a “cross-over” operation with two other experienced water skiers when the towing boat drove dangerously close to a stationary boat and the driver or observer on the towing boat failed to signal to him the presence of the obstruction, with the result that the appellant was unable to avoid colliding with the stationary boat.  It was held that the appellant was entitled to have the driver exercise reasonable care in carrying out his part of the operation in which they were co-operating, namely, failure to signal the presence of the stationary boat and towing the appellant dangerously close to it.

(2)  The relevant act or omission in this instance, being the consumption of alcohol by the 2^nd defendant and/or the plaintiff, was simply not established on the evidence to be causative of the accident and the plaintiff’s injuries.  This is in marked contrast to the relevant act or omission in Rootes v Shelton.

(3)    As found by the judge, even now the precise cause of the accident remained unclear, and the maxim res ipsa loquitur does not assist the plaintiff in the circumstances of this case.  The judge has held that the allegation against the 2^nd defendant that he was driving the boat too fast and at a speed that was unsafe in the circumstances was not established.  There was no other allegation, let alone evidence, as to the manner in which the 2^nd defendant was driving or steering the boat at the material time that might possibly be regarded as constituting negligence.  There was no evidence that the stretch of water in Sai Kung in which the wakeboarding activity took place at the material time was congested or that there were busy marine activities going on at the time as submitted by counsel.

(4)  The only hat on which to hang liability was the consumption of some beer on the 2^nd defendant’s part and the consumption of beer by the plaintiff (two cans of beer during lunch and a little beer in the afternoon).  That is plainly not sufficient to ground the imposition of a duty of care and the extent to which such duty was breached to found liability.  The judge declined to find that the 2^nd defendant had consumed four to five cans of beer during lunch.  Instead he found it more likely than not that the amount of beer consumed by the 2^nd defendant was not a remarkable amount.  There was no evidence that he or 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 anyone skilled in the sport would have stopped her from wakeboarding.  Nor was there anything to suggest that the 2^nd defendant knew that she was unfit to wakeboard after lunch.

32.  The judge was clearly right to hold that in the absence of evidence of how much the 2^nd defendant actually drank, there was no proper basis for finding him negligent in driving the boat after lunch or that he was adversely affected by the effect of alcohol at the time of the accident.  As a hired coxswain, the 2^nd defendant was not responsible for giving instructions or training to the participants.  We agree with the judge that save in extreme circumstances, neither the 2^nd defendant’s duty of care nor his contractual power extended to dictating who could or could not wakeboard in the afternoon.

33.  Mr Wong sought to attack the judge’s holding in refusing to find that the 2^nd defendant had consumed four to five cans of beer during lunch.  We see no valid basis for this attack.  The judge had fully considered the evidence in Mr Ho’s interview and statement and the inherent probabilities. He was entitled not to accept the version in Mr Ho’s statement (even though there was no evidence from the 2^nd defendant to contradict this) and to conclude on the available evidence all that he could fairly find was that the 2^nd defendant did drink some beer during lunch, it was not known how much and more likely than not it was not a remarkable amount. Contrary to Mr Wong’s contention, the judge has given adequate reasons in §§32 and 33 of his judgment for all his findings.  We see no conflict between the finding that the 2^nd defendant did drink some beer of an unknown amount and the finding that more likely than not it was not a remarkable amount.

34.  Mr Wong referred to the proposals in Local Vessels Advisory Committee paper (LVAC Paper No 13/2015) dated August 2015 and the provisions in the Merchant Shipping (Seafarers) (Health and Safety: General Duties) Regulation, which came into operation on 1 December 2016, on the limit of alcohol in the breath or blood of a seafarer on board a ship.  We do not think the legislative proposals and provisions, which came into being well after the accident, would in any way advance the plaintiff’s case, for the reasons given in §§35 to 36 of the judgment.

35.  He repeated his submission before the judge that the 2^nd defendant should have advised the plaintiff not to consume alcohol or not to wakeboard after consuming alcohol.  He complained that the judge has failed to give reasons or adequate reasons for rejecting his submission.  He contended that even if reasons were given, they were plainly wrong.  There is no merit in any of these contentions.  Adequate reasons were given in §§37 to 39 of the judgment, and the judge was plainly right in holding the way he did.

36.  The appeal in CACV 138/2016 is wholly without merit.  We therefore dismiss the appeal.  The 2^nd defendant has informed the court he would not seek costs against the plaintiff.  So the only order we make is for the plaintiff’s own costs to be taxed in accordance with the Legal Aid Regulations.

Hon Cheung JA (giving the judgment of the Court in CACV 48/2017):

Jurisdiction and procedure

37.  The Judge on his own motion and after hearing the parties set aside the default judgment entered against the 1^st defendant and struck out the plaintiff’s statement of claim and dismissed her claim (‘the dismissal order’). 

38.  In dealing with the jurisdiction to set aside the dismissal order, the Judge held that :

‘ 14. By making default in giving notice of intention to defend, a defendant is taken to admit all the allegations in the statement of claim indorsed on the writ: Cribb v Freyberger [1919] WN 22; Hong Kong Civil Procedure 2017, §13/0/10; see also Young v Thomas [1892] 2 Ch 134, 137. It seems to me the same principle applies here where the statement of claim, albeit not indorsed on the writ, was served prior to entering judgment. Although under Order 13 rule 2 interlocutory judgment on a claim for unliquidated damages may be entered without a trial, judgment should only be given on the plaintiff’s claim provided the pleaded facts give rise to the relief sought: Lam Chi Fat v Liberty International Insurance [2002] 3 HKLRD 480, §27. It follows in my view that there is ground for refusing to enter and, if it has been entered, for setting aside, a judgment in default, if the facts averred fail to support the relief sought.’

1^st defendant’s arguments

39.  Mr Wong did not challenge the jurisdiction or procedure adopted by the Judge in making the dismissal order.  Instead his case against the dismissal order is simply on the ground that the case was not plain and obvious enough for the Judge to dismiss the plaintiff’s claim.

40.  Mr Wong argued that independent of the negligence of his servants, the 1^st defendant still owed the plaintiff a duty of care because he was the owner and manager of the boat.  It is therefore misconceived that if the 2^nd defendant was found not negligent, the 1^st defendant would be exonerated.

41.  Mr Wong submitted that it is never in dispute that the 1^st defendant had accepted monetary reward in providing services to the plaintiff for wakeboarding.  It is clear that the plaintiff has a legitimate argument that the 1^st defendant owed her a duty of care in that the service and management of the activity had to be safe and reach a reasonable standard and the 1^st defendant had breached that duty.  This is independent of the negligence of the 2^nd defendant.

42.  In arguing that the case was not plain and obvious enough for the Judge to dismiss the plaintiff’s claim, Mr Wong submitted that the Judge had wrongly considered that he should first have regard to the decision in favour of the 2^nd defendant and whether those facts (which could only mean those findings of fact as against the 2^nd defendant) could reasonably support a judgment against the 1^st defendant and if not, whether it is reasonably possible that, given the opportunity, the plaintiff could have averred sufficient facts capable of support the judgment.  He submitted that the Judge was putting the cart before the horse and the Court is only required to look at the pleaded case of the plaintiff and assume that she would be able to come up to proof in order to support a proper cause of action against the 1^st defendant.

43.  Mr Wong submitted that the more proper and correct question the Judge ought to have considered is whether the allegations and facts raised by the plaintiff in support of her cause of action for negligence against the 1^st defendant was so plainly and obviously unsustainable that it raised no reasonable cause of action.

Correct approach

44.  I disagree that the Judge had adopted the wrong approach.  The Judge set out his approach as follows :

‘ 15. In the present case where the claim against the other defendant has been tried, the questions that in my view the court should ask itself are these: (1) having regard to the decision in favour of the 2^nd defendant as a matter of precedent, are the facts averred in the statement of claim reasonably capable of supporting a judgment against the 1^st defendant? (2) if not, is it reasonably possible that, given the opportunity, the plaintiff could have averred sufficient facts capable of supporting the judgment? These are in substance not dissimilar to the test put forward by Mr Kwan on behalf of the plaintiff, namely, that a default judgment should not be set aside unless the reasons for the failure of the plaintiff at the trial against the defendant who appeared are so overwhelming as to make the plaintiff’s case against the defendant who did not appear completely unarguable.’

45.  In my view the issue of approach has to be considered in its context.  By the time of the hearing leading to the dismissal order, the case (although between the plaintiff and the 2^nd defendant) had gone beyond the stage of pleading and evidence had been heard and adjudicated upon between the plaintiff and the 2^nd defendant.  The Judge gave judgment against the 2^nd defendant on 19 May 2016 and he directed the hearing of the dismissal order which was then heard on 8 September 2016.  The plaintiff’s lawyer was given ample time to deal with the application.  In resisting the dismissal order, the plaintiff did not reformulate her claim against the 1^st defendant nor relied on any new evidence that she might have against the 1^st defendant not previously adduced at the trial on liability of the 2^nd defendant. Even up to now, Mr Wong has not relied upon any new allegations of negligence or evidence not already adduced before.  In the circumstances, I cannot detect any fault on the part of the Judge to pay regard to his decision on the liability of the 2^nd defendant.

The allegations

46.  Of the seven allegations of acts or omissions on the part of the 1^st defendant which constituted negligence, four of them were based on vicarious liability by reason of the negligence of the 2^nd defendant (namely, paragraph 4, particulars (i), (ii), (iv) and (v)).  They had been conceded by the lawyer acting for the plaintiff (not Mr Wong who did not appear on the hearing of the dismissal order) to be not sustainable against the 1^st defendant.  The remaining three allegations as pleaded are that :

1)    The 1^st defendant, as the employer/principal of the 2^nd defendant failed to instruct the 2^nd defendant not to tow anyone for the purpose of wakeboarding when the person had consumed alcohol (paragraph 4, particular (iii));

2)    The 1^st defendant failed to provide the 2^nd defendant with any or any adequate supervision as to how to perform his works safely; (paragraph 4, particular (vi));

3)    Exposing the plaintiff or suffering the plaintiff to be exposed to a risk or injury or loss in which the 1^st defendant knew of or ought reasonably to have known (paragraph 4, particular (vii)).

47.  The Judge held against the plaintiff on these three allegations.  Mr Wong now challenges his view on two of them.  The first was particular (vi).

Particular (vi)

48.  In respect of particular (vi), the Judge held that :

‘ 18. As for particular (vi), namely, that the 1^st defendant failed to provide the 2^nd defendant with any or any adequate supervision as to how to perform his work safely, the essence of what would allegedly be “safe” is to be found in the various allegations made against the 2^nd defendant, such as the failure to provide a helmet and driving too fast, which have been rejected in my previous judgment. Although this allegation is framed as a breach of an independent duty, it is analogous to vicarious liability in that it is premised on the implied allegation that the 2^nd defendant had performed his work in an unsafe manner — an allegation that I had rejected in §40 of my previous judgment. Accordingly it would also in my opinion be contrary to principle and justice to allow judgment to stand against the 1^st defendant on this ground, when the 2^nd defendant has been exonerated after trial on all the specific allegations that he had performed in unsafe ways.’

49.  Mr Wong argued that the Judge had in fact not addressed the real complaint of the plaintiff, namely, the 1^st defendant had a duty to ensure that the 2^nd defendant did not consume any alcohol at all given that he was going to operate a motorized boat towing passengers on wakeboards.  He submitted that this was an issue that was not further broached by the Judge.

50.  I disagree.  In effect Mr Wong is submitting that the discharge of this duty requires the 1^st defendant when he allowed the 2^nd defendant to use his boat, to specifically tell the 2^nd defendant that he should not drink alcohol when he is operating the boat.

51.  The starting point of the 1^st defendant’s duty is that he should only allow the boat to be driven by a competent driver. The plaintiff had failed to establish incompetency on the part of the 2^nd defendant in operating the boat and there is no allegation or evidence that the 1^st defendant knew or was aware that the 2^nd defendant was prone to drink.  There is also no allegation or evidence that at the time of the accident on 14 July 2010 there were many cases of water sports accidents caused by the consumption of alcohol by the boat driver which impaired his ability.  This being the context of this case, we have grave doubts whether the duty now advocated by Mr Wong should be imposed on the 1^st defendant in the first place.

52.  At best Mr Wong can only point towards the Safety Manual for Water Skiing and Wakeboarding issued by the Hong Kong Water Ski Association (apparently published in 2007) that skier/wakeboarders, drivers and observers are recommended to save alcoholic drink until completing skiing/wakeboarding. But there is no allegation or evidence that this recommendation (which no doubt is a sensible one) is well known amongst boat owners at the time of the accident.  The criminal sanction imposed on seafarers who drank was not then in force.

53.  But more importantly, even if one was to proceed on the existence of a duty by the 1^st defendant to warn the 2^nd defendant not to take alcohol when he is on the job, what is fatal to the plaintiff’s case is the Judge’s finding that there is no evidence which showed the 2^nd defendant’s ability to drive was impaired by alcohol.  This is the stark fact of this case.  In fact the real complaint of Mr Wong boils down to his challenge that the Judge’s finding that there was no evidence that the 2^nd defendant was affected by consumption of alcohol was based on circumstantial evidence bordering on conjecture, in that the Judge could only say that ‘on the evidence all I can fairly find is that the 2^nd defendant did drink some beer during lunch but it is not known how much’.

54.  As discussed earlier in our judgment in CACV 138/2016 the Judge had properly made a finding on this issue.

Particular (vii)

55.  Mr Wong’s argument on this issue is similar to his last point except the argument is not confined to the 2^nd defendant, but extends to the plaintiff as well.  Again the formulation of this duty will require the 1^st defendant to tell the 2^nd defendant that he should ensure nobody should drink before wakeboarding.  What we have said earlier about our doubts on the 1^st defendant’s duty in relation to the 2^nd defendant applies to this issue as well. Furthermore, the evidence is that even according to the plaintiff’s own expert, he would not put an absolute ban on wakeboarders from drinking alcohol.  In the light of this, it is farfetched to impose the duty on the 1^st defendant.

56.  Again what is more important is the finding made by the Judge on the issue of drinking by the plaintiff which Kwan JA had addressed in paragraph 31(4) of this judgment.  It is further worth repeating what the Judge said :

‘ 19. Particular (vii) complained that the 1^st defendant exposed the plaintiff or allowed the plaintiff to be exposed to a risk of injury or loss of which the 1^st defendant knew or ought reasonably to have known. Although framed as a particular breach of duty, this is in truth a general allegation without any additional averment of fact. In §40 of my previous judgment, I concluded:

“It is in my view difficult to identify a part of the system that was particularly and inherently unsafe. It is easy to say with hindsight that the plaintiff would not have sustained injury at all if she was prevented from wakeboarding, or that her injuries might have been less severe if she had put on a helmet. But even now the precise cause of the accident is not clear. It does not seem to me right to impose on the 2^nd defendant a duty in effect to see to it that the participants were not injured. As Bokhary PJ said in Luen Hing Fat Coating & Finishing Factory Ltd v Waan Chuen Ming (2011) 14 HKCFAR 14 at §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. The passengers were not the 2^nd defendant’s employees. Rather, he was their contractor engaged to provide services of a limited scope. If the plaintiff fails (as in my opinion she has) to establish negligence on the basis of the more particular allegations of negligence discussed above, there is no basis to impose a general duty and to hold that it was breached simply because the plaintiff had sustained injuries.”

20.    On the facts averred by the plaintiff, the same legal conclusion is in my view inescapable.  Ownership of the vessel by the 1^st defendant alone could not impose on him any relevant additional duty to those of the 2^nd defendant.’

Conclusion

57.  The Court has sympathy for the misfortune of the plaintiff but the Judge was clearly right in dismissing the plaintiff’s claim against the 1^st defendant.  Accordingly the appeal is dismissed.

Costs

58.  The 1^st defendant has indicated that he would not seek costs against the plaintiff.  We will only order that the plaintiff’s own costs are to be taxed in accordance with the Legal Aid Regulations.