CHAN WING HO v. NANJING LTD

CHAN WING HO v. NANJING LTD

The exemption clause was declared void and ineffective insofar as it purported to exclude liability for negligence because it was excessively wide and, applied to a consumer monthly parking licence, failed the reasonableness test under Cap.71 (notably ss.7 and 13 and Schedule 2); the presiding officer's finding of defendant negligence in failing to maintain the generator stands and the appeal is dismissed.

Citation
CHAN WING HO v. NANJING LTD
Parties
Claimant (respondent): Chan Wing Ho; Defendant (appellant): Nanjing Limited
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
25 May 2009
Case Number
HCSA14/2008
Procedural Posture
Small Claims Tribunal Appeal (sctc 20706 of 2007) on Appeal to the High Court (court of First Instance) / Judgment on Appeal (reasons for Judgment)
Outcome
Appeal dismissed
Legal Topics
Exemption Clause, Reasonableness Test Under Cap.71, Liability for Negligence, Monthly Parking Licence, Enforceability of Exclusion Clauses
Source Language
EN
Contract Tort Consumer Law Statutory Interpretation Exemption Clause Reasonableness Test Under Cap.71 Liability for Negligence Monthly Parking Licence +1 more

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Parties

Chan Wing Ho

Claimant (respondent)

Nanjing Limited

Defendant (appellant)

Procedural Posture

Small Claims Tribunal Appeal (sctc 20706 of 2007) on Appeal to the High Court (court of First Instance) / Judgment on Appeal (reasons for Judgment)

Legal Issues

  1. 1 Whether the exemption clause in the monthly parking licence excludes liability for negligence causing fire
  2. 2 Whether the exemption clause is reasonable and enforceable under the Control of Exemption Clauses Ordinance (Cap.71)
  3. 3 Whether the consumer status and relative bargaining power render the clause unenforceable

Ratio Decidendi

The exemption clause was declared void and ineffective insofar as it purported to exclude liability for negligence because it was excessively wide and, applied to a consumer monthly parking licence, failed the reasonableness test under Cap.71 (notably ss.7 and 13 and Schedule 2); the presiding officer's finding of defendant negligence in failing to maintain the generator stands and the appeal is dismissed.

Court Disposition

Appeal dismissed

Orders

  • Appeal dismissed and judgment of the Small Claims Tribunal presiding officer upheld
  • Costs to claimant/respondent to be taxed on a gross sum assessment basis by a Master if not agreed