TAMANG SHUSHMA v. PIZZAEXPRESS (HONG KONG) LTD

DCPI 2488/2021

[2024] HKDC 1377

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO. 2488 OF 2021

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BETWEEN

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DECISION

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A. INTRODUCTION

1.  This is the defendant’s application for leave to appeal against the judgment of this court dated 22 September 2023 (“the Judgment”). At the end of the lengthy 99-page Judgment, which incidentally is the longest personal injures (“PI”) judgment that this court has ever written, I decided the issue of liability in favour of the plaintiff with an award of damages in the sum of HK$1,741,764.28, together with interest and costs.

2.  On 20 October 2023, the defendant filed a summons for leave to appeal against the Judgment (“the Leave Application”). The original hearing date for the Leave Application was fixed on 5 March 2024.

3.  On 21 October 2023, the defendant sought leave to obtain the transcript of the trial. Leave was promptly granted by this court. The transcript was prepared and ready for collection on 29 December 2023. On 2 January 2024, the defendant collected copies of the transcript.

4.  On 9 February 2024, the parties by way of a consent summons (“the Consent Summons”) jointly sought directions for paper disposal of the Leave Application.

5.  On 21 February 2024, the court approved the Consent Summons as amended, including a direction that the Leave Application to be dealt with on paper and the oral hearing originally fixed on 5 March 2024 for the application was vacated. In the Consent Summons, it has been specifically agreed by the parties that their primary submissions shall be limited to 20 A4 size pages and the submission in reply shall be limited to 5 A4 size pages only.

6.  In accordance with the terms of the Consent Summons, the defendant has lodged its written submissions and list of authorities on 17 April 2024 (“D’s Submissions”).

7.  Although D’s Submissions consisted of 20 A4 pages (as agreed by the parties under the Consent Summons), it was typed out in single line spacing which, not only made reading them difficult, it is in my view against the spirit, if not the letter, of the parties’ own agreement.

8.  The plaintiff has lodged her written submissions and list of authorities on 8 May 2024 (“P’s Submissions”).

9.  The defendant has lodged its reply submissions on 29 May 2024 (“D’s Reply”).

10.  Again, although D’s Reply consisted of 5 A4 pages as agreed by the parties, it was typed out in single line spacing and in smaller font size, with no spacing in between paragraphs and headings. Further, a lot of the substantive arguments contained in D’s Reply were placed in the footnotes in even smaller font size. It makes reading them an exceedingly difficult and unpleasant task. In my view, it is certainly against the spirit, if not the letter, of the parties’ own agreement. Such practice should not be encouraged or condoned in such applications.

B. BACKGROUND OF CASE

B.1 History leading up to the Leave Application

11.  The factual background of the case, including the parties’ relationship; the parties’ respective pleaded case; and how the Accident allegedly happened, can all be found in §§2 to 18 of the Judgment. I do not need to repeat them here.

12.  However, in order to put this matter in perspective, I would like to mention the fact that this action was initially commenced in the High Court under HCPI 22/2019 in January 2019. The original claim pleaded under the revised statement of damages (“RSOD”) dated 22 October 2019 in that action was at slightly over HK$4.4 million. After no less than 10 applications / hearings before the PI masters in the High Court over a period of 2 years, the case was eventually transferred to the District Court pursuant to the Order of Master Roy Yu of the High Court dated 26 July 2021. This was as a result of an application made by the plaintiff by summons to amend her RSOD. The amended RSOD was settled by her legal aid assigned counsel, Mr Kamesh Sadhwani, which has seen her claim substantially reduced from a sum of HK$4.4 million to a sum of just under HK$1.68 million only. The amended RSOD was filed on 28 July 2021.

13.  The defendant on the other hand placed the plaintiff’s claim at zero dollar (after deducting the employees’ compensation received by her) in both of its original answer to the RSOD dated 17 December 2019 and the re-amended answer to the RSOD dated 5 October 2021. Thus, there was a huge gap in the parties’ pleaded case on the amount of quantum.

14.  After the case was transferred to the District Court, a few months had been spent for the parties to come to an agreement on the appointment as well as the examination of the defendant’s witness Ms Chan Mei Kwan (“Ms Chan”) by way of deposition.[1]

15.  The case was eventually set down for trial at the pre-trial review hearing on 23 June 2022 before me where parties on both sides were represented by counsel.

16.  On the issue of lability, from an early stage of the proceedings up to the end of the trial, the defendant had, as it was perfectly entitled to do so, strenuously denied that the Accident happened in the way as described by the plaintiff.

17.  Thus, on both the issues of liability and quantum, there was a huge gap between the parties and a trial looked almost inevitable from an early stage of the proceedings.

18.  For the purpose of defending the case, the defendant (or its insurer) had engaged senior counsel Mr Richard Khaw SC leading Ms Vanessa Kwok, a senior junior specializing in PI cases, in conducting the defence as well as the trial on its behalf. Prior to the 6-day trial which took place in March 2023 before me, Mr Khaw SC and Ms Kwok had attended the 2-day deposition examination before Mr Martin Wong for the defendant’s witness Ms Chan who was migrating from Hong Kong to another country. The deposition hearing took place on 25 and 29 November 2021.

19.  The plaintiff was on legal aid. She was represented by Mr Sadhwani who is an experienced counsel specializes in PI litigation assigned by the Director of Legal Aid (“DLA”). Mr Sadhwani attended both the deposition examination before Mr Wong as well the trial before me.

20.  Thus, strictly speaking, this was a 8-day trial involving substantial amount of time and costs invested by both sides.

21.  It appears that the draft grounds of appeal were either drafted or settled by the team of lawyers who had originally appeared before me during the trial as they were prepared within 28 days after the Judgment was handed down on 22 September 2023. However, by the time when D’s Submissions was lodged on 17 April 2024, the defendant has engaged another senior counsel Mr Raymond Leung SC to replace Mr Khaw SC as leader to represent it for the Leave Application. Ms Kwok remains the junior in the Leave Application. The substitution of a leader at this late stage of the case means that substantial amount of additional costs will have to be incurred by the defendant as it requires the new leader to read the entire transcript of the trial and all the papers afresh in order to gain a full understanding of what took place during the trial.

22.  In view of the above observations, I shall be brief in my decision herein as I have no doubt that the defendant will take this matter to the Court of Appeal to apply for leave if I do not grant leave for some or any of the draft grounds under the Leave Application.

B.2 General observations

23.  Before dealing with the individual grounds of appeal, I would respectfully adopt the following general observations made by Mr Sadhwani in P’s Submissions which I happen to entirely agree with:-

(a) Even though there are 10 grounds of appeal, there are essentially more than double that taking into account the various sub grounds;

(b) The Judgment is 99 pages, of which 69 pages was devoted to liability;

(c) It is common ground from the plaintiff and the defendant’s respective pleaded cases that the plaintiff was an employee and sustained an injury during the course of the plaintiff’s employment with the defendant. The defendant’s stance all along is the plaintiff had sprained her back due to her own carelessness;

(d) No challenge was ever made by the defendant at trial as to the authenticity and source of the photographs and videos the plaintiff referred to in her examination in chief; and

(e) Cross Examination as to the issue of quantum of the plaintiff was very limited – 2.5 pages of transcript.

24.  Besides the above observations made by the plaintiff’s counsel, I would like to add the important point that one must not lose sight of the fact that we are dealing with an accident that had lasted no more than perhaps 5 – 10 seconds. There was no CCTV record or live witness to the Accident. Hence, the court had to make its factual findings based on the evidence produced by the parties to the court during the trial. They included photographs, videos, layout plans, diagrams, statements made to the loss adjustors, medical reports and records, etc. in order to determine how the Accident might have occurred. The court also needed to rely on the oral evidence given by the different witnesses called by the parties who testified at the trial, including the consideration of the deposition examination record taken by Mr Martin Wong.

25.  At the end of the day, however, despite all that is now heavily at stake, this is no more than a typical PI case that involves a fact-finding exercise on the part of the court. It does not involve any important or controversial principles of law. Hence, in this respect at least, this case is no different from any of the other dozens of PI cases which this court has to deal with and adjudicate upon on a daily basis in the past few years.

B.3 Defendant’s draft grounds of appeal

26.  According to D’s Submissions, the 10 draft grounds of appeal fall into 5 categories, viz:-

(1) Palpable errors in assessing credibility (Ground 1) and disparity of treatment of the evidence of the parties (Ground 2) as manifested in the lack of reasons in preferring plaintiff’s evidence, which is indicative of errors or inadvertence in the unprincipled taking of “judicial notice” and the unwarranted drawing of adverse inference;

(2) Errors in finding the pertinence of the 3 essential and inseverable factual elements (i.e. the “three legs stool” – see below) in the plaintiff’s pleaded case (Grounds 3 to 6) resulting in a finding of liability on an unpleaded case and without proper regard for the reasonable measures or system implemented by the defendant (as proven);

(3) Relying on irrelevant or non-probative matters relating to the anti-slippery footwear (Ground 7) and alleged cluttered floor (Ground 8);

(4) Failure to find contributory negligence in all circumstances (Ground 9); and

(5) Assessing “Future Loss of Earning” on the basis of expert evidence without having proper regard to the actual facts (Ground 10).

C. DISCUSSION

C.1 Ground 1: Assessment of credibility

27.  I agree with the plaintiff’s counsel submission that this general ground of appeal is against a finding of fact and the Court of appeal do not usually interfere unless they find the trial judge is plainly wrong: See Ting Kwok Keung v Tam Dick Yuen & anors (2005) 5 HKCFAR 336 at §42; Mak, Rachel Wing Nam v Ching Kai Chung, unreported, DCPI 3510/2021 at §6; and Shine Grace Investment Ltd v Citibank NA & anor [2022] HKCA 1341 at §60(2).

28.  I further agree with the plaintiff that the defendant has failed to identify any “palpable errors” in their draft grounds of appeal. While I for one will not hesitate to admit that the findings in the Judgment are not perfect, and even might have consisted of some minor mistakes, they are far from the “palpable errors” that the defendant needs in order to overturn a decision on appeal that is essentially a fact-finding exercise made by the trial judge.

29.  I would like to repeat the following passage I have stated in Mak, Rachel Wing Nam, supra at §16 which was cited by Mr Sadhwani in P’s Submissions:-

“...while the plaintiff complains about my reasoning in a ‘microscopic’ manner, namely, bit by bit and paragraph by paragraph, the plaintiff fails to appreciate that the factual findings of a trial judge are made after due consideration of all aspects of the evidence, including the internal consistency of their evidence; the consistency of witnesses’ evidence with undisputed or indisputable evidence especially contemporaneous documents; the inherent likelihood or unlikelihood of an event having happened; the apparent logic of events; and the witnesses’ demeanour in court. In other words, it is a holistic and not a piecemeal approach.”

30.  By putting the Judgment under the microscope and going through a forensic exercise of examining every word and every sentence written by the court, I think it runs the danger of “failing to see the forest for the trees”. With respect to the defendant’s counsel, I think I have carefully considered the plaintiff and her witnesses’ evidence as well as those given by the defendant’s witnesses and did justice to the case. Where appropriate, I think I have deal with their credibility; the strength and weakness of their evidence and the inconsistencies in their evidence. By nit-picking the Judgment, the defendant in my view is really trying to making a closing submissions for the trial in the Leave Application again. It is, with greatest respect to the defendant’s counsel, like having a second bite of the cherry when their first attempt had failed.

31.  I do not wish to go into each and every allegation of the supposed failures or errors made by this court as raised by the defendant under this ground. I merely would like to state that I agree with Mr Sadhwani’s submissions stated under §§9 to 18 of P’s Submissions and disagree with those allegations made by defendant’s counsel in D’s submissions.

C.2 Ground 2: Apparent disparity in assessing credibility and drawing adverse inference

32.  With respect to the defendant’s counsel, I do not agree with their submissions and criticisms made under this ground.

33.  I do not wish to deal with the defendant’s very elaborated criticisms made against the findings of the court under this ground here. I would like to say that I entirely agree with the submissions made by the plaintiff’s counsel contained in §§19 to 28 of P’s Submissions and have nothing further I wish to add here.

C.3 Ground 3: The Freezer

34.  This issue is a classic factual finding exercise for a trial judge. No matter how the defendant has dressed this up, this is not rocket science. The trial judge goes by the evidence presented by the parties at the trial. I think that was exactly what I did. At the end of the day, with greatest respect to the defendant’s counsel, it is a matter for the court, after taking into account of all the relevant evidence and balancing them out before reaching a conclusion on the matter. I therefore cannot agree with the very “microscopic” analysis advanced by the defendant under this ground of appeal.

C.4 Ground 4: The Kitchen Floor

35.  Again, this is a pure factual dispute. In my view, there are very good and probable grounds to believe why the floor had become wet and slippery in the morning due to the way the doughs were being defrosted overnight. I have gone into great length to discuss this in the Judgment. There is no need for me to repeat them here. However, it needs no reminding that the plaintiff who bears the burden of proof at the trial, only needs to do so on a balance of probabilities, not a criminal standard of beyond any reasonable doubt. With greatest respect, the nit-picking exercise by the defendant’s counsel contained in D’s Submissions is really trying to find faults with the Judgment in a very pedantic way. This is not what I understand the standard expected of a trial judge in a civil case.

36.  The findings on the general condition of the kitchen floor, which were based on the photographs and video footages produced by the plaintiff at trial, were never seriously challenged by the defendant’s then leading counsel at trial. I do not see how they can now say that the court’s findings on the state of the kitchen floor was merely based on “bare assertions” of the plaintiff just because they have changed to a new leading counsel.

C.5 Ground 5: Wet and Slippery Floor

37.  Again, this issue involves a pure finding of facts. No matter how eloquently it has now been dressed up under this ground of appeal as the supposed errors or faults made by this court in the Judgment, I agree with everything stated by the plaintiff’s counsel under §§33 to 43 of P’s Submissions and reject those statement in D’s Submissions and D’s Reply. I reject this ground of appeal also.

C.6 Ground 6: Defective Drainage Outlet

38.  This is yet another factual issue that the court had to resolve after hearing extensive oral evidence from the witnesses on both sides and watching the video evidence produced by the parties. The findings were made only after a careful analysis of the evidence. While it is by no means perfect, I think they are fair and just findings that were open for the court to make. Hindsight is 20/20. It is always easy for a party to nit-pick and criticize the findings made by a court after the event. However, I think one must look at the court’s findings on this issue, as on other factual issues, as a whole rather than dissect every word and sentence under the microscope.

39.  On this issue, I echo with the submissions made by the plaintiff’s counsel under P’s Submissions at §§44 to 55.

C.7 Ground 7: Anti Slippery Shoes

40.  In my view, this is a red herring and not a real live issue that had been contested by the parties at trial. As the plaintiff has pointed out in P’s Submissions, there is simply no evidence to suggest that the Crocs in question would have prevented the slip. Further, there is nothing to indicate that the Crocs the plaintiff was wearing at the time of the Accident are the same ones which are subject to the “certifications” and BSI Standards Publications.

41.  I therefore do not agree with the submissions made by the defendant’s counsel on this issue.

C.8 Ground 8: Cluttered state of the Kitchen

42.  Again, this is a purely factual finding for the trial judge. There is plenty of evidence, both in terms of photographs and videos, to support this finding. I do not see anything wrong with my findings contained in the Judgment in relation to this issue.

C.9 Ground 9: Contributory Negligence

43.  I have already made the reasoning clear in the Judgment of why I did not think there should be any contributory negligence on the part of the plaintiff. I maintain my view on this. Hence, I do not agree with the submissions of D’s counsel contained in D’s Submissions and D’s Reply.

C.10 Ground 10: Lack of impartiality in relation to Dr Chun and future loss of earnings

44.  In my view, this is another unwarranted and unnecessary attack on the court’s integrity for unrelated remarks made during the trial. The remarks cited by the defendant’s counsel were made completely out of context and unrelated to the ultimate findings of the court on the causation or alleged impact or consequences of the injuries sustained by the plaintiff. With respect, this shows how desperate the defendant is in trying to find faults with the Judgment.

45.  Given the fact that the original leading counsel who conducted the trial had failed to seriously challenge the plaintiff on those very important matters she had stated in her witness statement, I think it is not open for the defendant to try to challenge them under the disguise of an appeal.

D. CONCLUSION

46.  In conclusion, I do not consider there are “palpable errors” contained in the Judgment and I do not think the defendant has an arguable case with reasonable prospects of success for leave to appeal to be granted.

47.  I therefore will dismiss the defendant’s Leave Application with costs in favour of the plaintiff, such costs to be taxed if not agreed with certificate for counsel. The plaintiff’s own costs to be taxed in accordance with the Legal Aid Regulations.