FAZAL DAD v. FEDERAL SECURITIES LTD

CACV 111/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 111 OF 2008

(ON APPEAL FROM DCEC NO. 288 OF 2006)

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J U D G M E N T

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Hon Rogers VP:

1.  I agree with the judgment of Le Pichon JA.  I would only emphasise that although the court itself canvassed an alternative case that the applicant might have returned sometime after 5.30 am and then sustained injury, there was nothing other than this court’s own speculation which gave rise to that suggestion.

2.  I would also mention that although the judge showed a commendable desire to progress the hearing before him, it seems to have been at the expense of interrupting the evidence.  A reading of the transcript shows extensive interruptions from the court during the evidence.  As with the matter of the uniform referred to in Le Pichon JA’s judgment, it can be dangerous to refuse to permit the giving of evidence on the grounds of irrelevance unless the matter is clear beyond any peradventure.  Hindsight may show that it is better to let the evidence in and determine its relevance following submissions.  Whereas it is right to curtail repetitive evidence, courts should always bear in mind that interruptions during the giving of evidence can be off putting to the parties and their lawyers, who may be distracted by having to deal with the court’s interjections rather than concentrating on making sure all the evidence for their case is put forward.

Hon Le Pichon JA:

3.  This is an appeal from a judgment of Deputy District Judge Eddie Yip dated 14 December 2007 dismissing the applicant’s employee compensation claim.  At the conclusion of the hearing judgment was reserved which we now give.

Background

4.  The respondent through its managing director, a Mr Saif, engaged the applicant as a security guard under a written temporary service agreement for the period from 15 March 2005 to 14 May 2005.  He was assigned to work as a nightshift security guard at a private residential site in Tuen Mun.  The site consisted of an unoccupied three-storied house with a yard in a remote part of the New Territories.

5.  The applicant’s shift was from 7 p.m. to 7 a.m. and he was instructed to telephone the respondent’s office at two hourly intervals during that time.

6.  The applicant’s case below and before this court was that on 14 May 2005, his last day, he was injured at work.  In the application for compensation filed in the District Court, the particulars stated that the accident happened at about midnight on 14 May 2005 while the applicant was on duty working at a construction site in Tuen Mun and that he fell about 15 feet down into the basement, sustaining injuries to his left hip.

7.  The applicant’s evidence was that the piece of plywood covering the opening of a ventilation pillar situated in the yard gave way and he fell 15 feet down into the basement.  He injured his left shoulder, arm and leg.  It took him two hours to get to the basement staircase (which was some 25 feet away) and up 15 steps to the top of the staircase situated about 10 feet from the ventilation pillar.  He could move no further and remained there until the dayshift security guard, Mohammed Suleman, found him some five hours later.

8.  The respondent’s case was that the applicant was not at the site at the time he said he sustained his injuries.  Mr Saif gave evidence to the effect the applicant’s call to the office at about 11 p.m. was taken by Ms Lee who told Mr Saif that she noted the sound of television and children in the background.  Mr Saif became suspicious as to whether the applicant was at work and personally went to the site at about midnight when he found the gate locked from the outside.  He unlocked the gate, patrolled every part of the site including the basement, shouted the applicant’s name, rang his mobile number but could not hear any phone ringing and stayed there guarding the site until 5:30 a.m.

9.  The judge accepted Mr Saif’s evidence outlined above.  He found that Mr Saif was present at the site between midnight and 5:30 a.m. and could not locate the applicant there.  The judge concluded that the applicant was not at the site when the accident was said to have occurred.  He dismissed the applicant’s claim.

This appeal

The judge’s finding

10.  Mr Clough who appeared for the applicant sought to challenge the judge’s finding that the plaintiff was not a site at about midnight, which was when, according to the plaintiff, accident was supposed to have occurred.  He submitted that the respondent’s case was broader than the judge’s finding and so must be looked at as a whole.  The respondent’s case was that the applicant’s injuries were self-inflicted, that they were sustained somewhere else although consistent with a fall of 15 feet and that the applicant was transported back to the site in order to claim compensation from the respondent.  It was further alleged that the motive was to get even with the respondent who, two days earlier, had refused to extend the applicant’s contract.

11.  Mr Clough submitted that the judge’s finding was wrong because the judge had isolated and singled out only one particular aspect of the evidence on which he made a finding and failed to consider the evidence as a whole, ignoring mutually inconsistent evidence of the applicant and Mr Saif on various issues which went to credibility.  Those issues related to the uniform and the padlock.

12.  It was common ground that each security guard was provided with one uniform.  Mr Saif’s witness statement stated that he found the applicant’s uniform hanging at the house (the suggestion being that the applicant was not at work) while the applicant maintained that he was wearing his uniform at the time of the accident.  Mr Clough submitted that since the two accounts were mutually exclusive and went to credibility, the judge should have resolved the conflict and made a finding.  Instead, the judge considered the issue of the uniform irrelevant to the question of liability that he had to determine and did not allow the applicant to lead evidence on that issue. 

13.  I agree that the judge ought not to have excluded evidence relating to the uniform.  Evidence that the applicant was wearing his uniform at the time he was found injured went to Mr Saif’s credibility and might have affected the judge’s overall evaluation.

14.  On the second issue relating to the padlock on the gate at the site, the applicant’s evidence was that it was a lock that operated with a key.  Mr Saif’s evidence was that it was a combination lock.  Mr Clough submitted that the judge should have, but failed to, resolve that issue which, again, went to credibility.

15.  In my view, the type of padlock is irrelevant.  What is crucial and relevant is Mr Saif’s evidence (given in-chief) that if the site door (which must have meant the door or gate of the entrance to the site) was padlocked from the outside, it meant that whoever was inside had left the site.  In other words, the fact that the entrance to the site was padlocked from the outside excluded the possibility of the applicant being at the site when Mr Saif arrived.  The difficulty that Mr Clough faces is the absence of any cross-examination of Mr Saif on that issue.  It went unchallenged.

16.  Thus, although the judge was wrong not have allowed evidence to be led relating to the uniform, in my view, that is insufficient to warrant the setting aside of his finding that the applicant was not at the site between the time of Mr Saif’s arrival at about midnight and his departure at 5.30 the following morning.  There was ample and cogent evidence, specifically, the padlock issue and the matters outlined in paragraph 8above to support the judge’s finding.

An alternative case?

17.  It is common ground that the applicant was found at the site with injuries.  He was taken to Tuen Mun Hospital and diagnosed as having fractured his left femur and pubic rami.  According to the witness statement of Mr Suleman, he was unable to move the applicant on his own and had to call two other staff members to assist him.

18.  How was his presence then to be explained?  During the course of the hearing, the court canvassed the possibility of the applicant returning to the site sometime after Mr Saif’s departure at 5:30 a.m. and before Mr Suleman’s arrival at about 7:30 a.m. and sustaining his injuries after his return.  The alternative scenario canvassed would explain the applicant’s presence at the site when Mr Suleman arrived for the dayshift and would not be inconsistent with the judge’s acceptance of Mr Saif’s evidence.  It is possible that the applicant, being reluctant to admit to not being at the site all night, had invented the version put forward at trial.  However, it was not an alternative case put by the applicant below nor, it has to be said, in this court, notwithstanding the fact that it had been canvassed at some length.  At no stage did Mr Clough inform the court that the applicant wished to advance the alternative case.

19.  Mr Clough submitted that given the seriousness of the applicant’s injuries and the fact that the injuries were such that Mr Suleman was unable to move the applicant by himself but needed assistance, the court should infer that it was more probable than not that the accident did take place at the site.  Mr Lim who appeared for the respondent submitted that as the applicant has never advanced an alternative case, there is simply no evidence that would have entitled the judge to have found the alternative case.  Further, even if one were to assume that the accident did occur at the site, it would not necessarily follow that it must have arisen in the course of employment.

20.  I am inclined to agree with Mr Lim.  The existence of an alternative case would necessarily entail remitting the matter back to the District Court for a retrial but, as matters stand, its existence is no more than ‘speculation’ since it is not the applicant’s case even now that he has an alternative case to advance.  In my view, absent any evidence to found the alternative case, it would not be right for this matter to be remitted for a retrial.

21.  For the reasons stated, I would dismiss this appeal.  I would also order nisi that the costs be to the respondent, to be taxed in accordance with the Legal Aid Regulations.

Hon Cheung JA:

22.  I agree.

Hon Rogers VP:

23.  There will accordingly be an order in terms of paragraph 21.