Lord Slynn of Hadley J:

On 4 August 1988 Miss Ho Shui Yee, a resident of Hong Kong, was drowned whilst on holiday in the People's Republic of China. Her mother, the present appellant, brought proceedings in the High Court of Hong Kong against Kwan Kin Travel Services Company, whose registered office is in Hong Kong, China Travel Services Company and Pak Tang Lake Travel Services Company, both of which carry on business in China. As administratrix of her daughter and on behalf of herself and other dependants the plaintiff claimed damages for breach of contract and for negligence. The second and third defendants entered defences contending that the proceedings ought to have been brought in China and not in Hong Kong. On 15 March 1991 interlocutory judgment was given against them for damages to be assessed, but it seems that no further steps had been taken in respect of those two defendants under those judgments.

On 25 October 1993 after trial Mayo J gave judgment against the first defendant and assessed the damages at HK$575,050. He ordered that such sum should be payable by the first, second and third defendants and he made a further order that the third defendant should contribute 100% towards the damages awarded under the Civil Liability (Contribution) Ordinance Cap. 377 on the basis that as between the three defendants the third defendant was the most culpable. The Court of Appeal on 31 May 1994 set aside the judgment holding that on the facts found the first defendant was not in breach of duty to the deceased but the Court gave the appellant leave to appeal to Her Majesty in Council.

In outline the facts found by the trial Judge were these. Miss Ho and two school friends contracted to take a package tour to Pak Tang Lake offered by the first defendant. They left Hong Kong as part of a group of 24 persons first by ferry and then by coach. They were accompanied by a tour leader employed by the first defendant (a Miss Chan). At the border they were delayed for various reasons but on leaving the border they were accompanied by a Mr. Ho, an employee of the second defendant, who said that he was their tour guide. The coach took them to the Shanghai Guest House where they were to spend the first night. Because of the delays which had occurred Mr. Ho told them that they should leave their luggage at the guesthouse quickly so that they could go to visit the Ethnic Village at the lake. When they got to the pier at the lake they were told by Mr. Ho that the coach and ferry had already gone and that there was no alternative for the group but to cross the lake in a speedboat. Since the speedboat took only eight persons, three trips were involved, the return trip across the lake taking about fifteen minutes. Mayo J had no hesitation in accepting that the group had no practical alternative but to take the speedboat across the lake and he rejected the written evidence of Mr. Ho that the whole idea of going by speedboat had been suggested by members of the group and that it was outside the arrangements for the package tour. The learned Judge said:

... there can be no doubt in my mind that the journey on the speedboat was an integral part of the guided tour provided by the 1st defendant.

The speedboat, driven by an employee of the third defendant, made the first two trips successfully. When it returned from taking the second group of eight people, that employee refused to do the third trip. A "volunteer", another employee of the third defendant, was found to drive the boat on the third trip. Miss Ho, her two friends and Mr. Ho, the guide, were part of the third group. It seems that the boat went very fast, perhaps racing another speedboat. It hit a fishing junk which, because of the angle of the boat to the water, the driver probably never saw. The occupants were thrown into the water. Two were drowned, one of whom was Miss Ho; the others, including Mr. Ho, managed to get onto the junk and were taken to safety.

Mayo J did not consider tha