FAZAL AHMED v. MTR CORPORATION LTD

HCMP 1752/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 1752 OF 2012

(ON AN INTENDED APPEAL FROM DCPI NO. 29 OF 2011)

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BETWEEN

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J U D G M E N T

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Hon Fok JA (giving the Judgment of the Court):

1.  On 25 April 2012, Simon Leung DJ gave judgment in favour of the defendant and dismissed the plaintiff’s claim in this personal injury action.

2.  The plaintiff, who acted in person at the trial below, being dissatisfied with the judgment, applied to the Judge for leave to appeal by summons filed on 26 June 2012.

3.  By his Decision dated 12 July 2012, the Judge dismissed the application concluding that the intended appeal had no reasonable prospect of success, that being the threshold required by s. 63A(2) of the District Court Ordinance (Cap. 336), and further that it did not fall under the alternative “interests of justice” limb of that section.

4.  By summons dated 20 August 2012, the plaintiff has renewed his application for leave to appeal to this Court.  He has filed an affirmation in support of the application. We shall treat this affirmation as the plaintiff’s written submissions in support of the application for leave.  The defendant has filed a skeleton submission in opposition to the application.

5.  The application to this Court is late since the plaintiff’s summons should have been issued within 14 days of the Judge’s refusal of leave (RDC O.58 r.2(4A)).  By an undated letter, the plaintiff says that he was unable to apply in time due to his disabilities and injuries and because he did not have legal advice.  In its submissions, the defendant has not taken any issue as to the lateness of the application for leave to appeal.  Since the merits of the proposed appeal are material to any extension of time, we shall proceed to consider those merits before determining whether an extension should be granted.

6.  The action arose out of an accident in which the plaintiff, who was employed as a security guard at the Tsim Sha Tsui MTR Station, slipped and fell on a staircase in the station.  The Judge found the cause of the accident to be a substance that made the staircase wet and slippery and which caused the plaintiff to slip and fall.  However, the Judge held that the defendant was not negligent or in breach of duty in failing to discover the presence of the substance and removing it before it caused the plaintiff to slip and fall.

7.  The plaintiff’s affirmation attacks the Judge’s conclusion that the defendant was not liable in three respects.

8.  First, the plaintiff complains that the defendant failed to disclose, and destroyed, a CCTV recording of the lower landing of the staircase.  Although the defendant disclosed CCTV footage of the upper landing of the staircase where the plaintiff’s accident occurred, this did not show anyone slipping prior to the accident.  The existence of the other CCTV of the lower landing was first raised during the trial but by then the recording was no longer available.  The Judge accepted (at §25) the defendant’s evidence that that CCTV camera could not actually capture that part of the staircase where the accident happened.  The plaintiff has not put forward any material to challenge that finding, in the light of which there is no substance in this first complaint.

9.  Secondly, the three-monthly meeting between the defendant and its cleaning contractor was a quarterly review of the contractor’s service.  The plaintiff says this shows the defendant was negligent and in breach of duty.  However, the Judge considered the system of cleaning and regular inspections in the Judgment (at §§17-18), which included regular daily inspection at various intervals.  The Judge was satisfied that the contractor’s record of only three accidents from slipping in 2007 and one in 2008 (being the plaintiff’s) was a fair testament to the effectiveness and reasonableness of the system in place (§22).  In the circumstances, there is no substance in this complaint either.

10.  Thirdly, the plaintiff appears to complain that the substance which caused him to fall was almost inconspicuous to him (although the thrust of §4 of his affirmation is not entirely clear).  If that is his point, it is not one referred to in the Judgment.  The defendant says that is because the point is a new one taken by the plaintiff.  Be that as it may, it is not an allegation reflected in the Judgment, which instead refers to the plaintiff’s admission that it was part of his duty to report any dirty substance and that he failed to notice the substance in question because he was “not thinking at that time” (§29).  In any event, we are satisfied that the plaintiff has not put forward any proper basis for challenging the Judge’s finding of fact that, had the plaintiff taken reasonable care of himself and in the discharge of his duty to keep a proper lookout as a security guard, he could have avoided the accident (§31).

11.  The Judge drew the inference that the substance which caused the plaintiff to slip and fall came to exist on the staircase very shortly prior to the plaintiff stepping on it and noted the plaintiff’s acceptance that the time gap between its existence and his coming upon it might be a small one (§12).  In these circumstances, we are satisfied that the Judge’s conclusion that the defendant discharged its reasonable duty of care to ensure the cleanliness of, and to prevent danger to visitors to, its station was correct and that the proposed appeal against that conclusion does not enjoy a reasonable prospect of success.  Nor do we consider there to be any other reason in the interests of justice why leave to appeal should be granted.

12.  In the circumstances, we decline to grant an extension of time and dismiss the plaintiff’s summons for leave to appeal.

13.  Further, since we consider the application to be totally without merit, we make an order pursuant to RHC O.59 r.2A(8) that no party may request the determination to be reconsidered at an oral hearing inter partes.

14.  The defendant is entitled to its costs of resisting the application for leave to appeal and we make an order nisi to this effect.  We propose to assess such costs summarily on a gross sum basis and, for that purpose, we direct the defendant’s solicitors to submit a bill of costs within seven days hereof and we give leave to the plaintiff to submit his response within seven days thereafter.