RANA BIMLA v. HONG TAK (SHING FAT) HOME FOR THE AGED CO LTD

HCMP 621/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 621 OF 2010

(ON AN INTENDED APPEAL FROM DCPI 74 OF 2009)

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BETWEEN

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RULING IN RESPECT OF
AN APPLICATION FOR LEAVE TO APPEAL

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1.  This is an application for leave to appeal.  It is brought by the plaintiff in the first instance proceedings.

2.  In those proceedings, the applicant sought damages for personal injury.  She was awarded damages but seeks to appeal on the basis that they were inadequate.

3.  The applicant was employed as a nursing aide in an old age home run by the defendant.  One of her regular duties was to help patients out of (and into) bed for various purposes, for example, to take showers.

4.  In respect of this task, the court found that the defendant had given clear instructions that it was only to be performed by two employees working together. 

5.  On the day in question, it was admitted by the applicant that she had set about the task alone.  While helping a patient to a shower, the applicant slipped and injured her back.  It was in respect of that injury that she sued.

6.  While the judge found that clear instructions had been given for two employees working together to perform the task that caused the applicant’s injury, he was silent as to other matters such as training, monitoring and sufficiency of manpower.  The clear inference, however, was that the defendant was negligent in failing to set up and monitor a safe system.

7.  That being said, the judge found that the applicant’s negligence in working alone had contributed to her own injury.  He estimated her contributory negligence to be 20%.

8.  It is against this finding that the applicant seeks to appeal.

9.  As to the issue of contributory negligence, the judge said:

“The Plaintiff alleged she did not understand those instructions in the meeting held by the Defendant and attended by her. She said it was because of her language barrier. I do not accept that. She understood what was going on in other meetings when some employees were criticised for their behavior. The instructions were simple and she should have no problem in understanding them. Indeed, she knew about the procedure. She explained she did it alone on the day of accident because she did not think others would help her. She said if two persons were to carry the inmates, she could not finish the showering job before 11 am. Looking at the procedures of taking the inmates to shower, I do not believe her. Though the risk of injuring her back is not great, such risk is obvious. She failed to take reasonable care for herself. I find she is 20% contributorily negligent. I would have found her share of blame higher if not for the slippery floor. The slippery floor had a part, though a very small part, to play in the causation of the accident.”

10.  On behalf of the applicant, it is argued that, on a study of the transcript of proceedings, it is clear that the applicant was simply not given the necessary help to comply with her instructions.  Yet the task had to be done.  However, while there may be evidence to that effect, it was also the applicant’s evidence that she did not seek help that morning although she had asked for help in the past and had on occasions been given the help.  Put simply, the judge found that the applicant knew what her instructions were and indeed accepted that in the past she had attempted to comply with those instructions by asking fellow employees to assist her; sometimes getting that help.  On this particular morning however she had not.  She had proceeded therefore at her own risk.

11.  The judge, in my view, was entitled to find that there was a degree of contributory negligence in those circumstances.  The law is clear.  Apportionment for contributory negligence is a discretionary exercise and an appellate court is justified in interfering only in exceptional circumstances. 

12.  I do not think it can be said that the degree of contributory negligence determined in the present case was so far outside as the parameters of the exerciseof the judge’s proper discretion as to be plainly wrong. 

13.  I would add that it was for the judge to make the primary findings of facts and the Court of Appeal has to accept that it does not have the advantage enjoyed by the trial judge who receives the evidence at first hand.

14.  I am not satisfied therefore that it is arguable that the judge fell into error in setting a degree of contributory negligence at 20%.  

15.  The second ground relates to loss of pre-trial earnings.  In this regard, it is argued that the loss of earnings that was sought and which were rejected by the judge related only to the period of time when the applicant was on sick leave.  That sick leave was granted to her by Government doctors.  The fact of the matter however is that it was for the applicant to prove her loss. 

16.  The judge was clearly unimpressed with the credibility of the applicant.  The applicant was found to have been telling an untruth when she said that she had not resumed work other than to work for the defendant.  In this regard, she admitted that there was a time in July 2006, within a matter of three weeks or so of being granted sick leave, when she worked in a hair salon.  The judge was simply not prepared to accept that because she was on sick leave she had therefore shown that she did no work during that period of time.  In this regard in para 22 of his judgment, he said:

“In fact she was caught out in cross-examination that she in fact at one time she worked in a hair saloon. Her evidence is not reliable and she failed to discharge the burden of proof. No award should be made under this head.”

17.  The judge may, ideally, have been fuller in his reasoning but his reasoning does in a broad sense speak for itself.  He was not prepared to rely on her assertions of what in fact was the truth unless it was supported in some way by external evidence.  In short, he could not trust her evidence.  That again was a matter for him and a matter which the Court of Appeal should be slow to disturb.

18.  The second ground is not arguable. 

19.  The application must therefore be refused.