WONG HIN CHUEN v. WANG ON MAJORLUCK LTD AND OTHERS

CAMP 25/2017

[2018] HKCA 47

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 25 OF 2017

(ON AN INTENDED APPEAL FROM DCPI NO 58 OF 2015)

________________________

________________________

________________________

J U D G M E N T

________________________

Hon Kwan JA (giving the judgment of the Court):

1.  This is a renewed application for leave to appeal to the Court of Appeal brought by the 3^rd defendant against the judgment of Deputy District Judge Eric Tam on 5 December 2016 (“the Judgment”), which was given after a five‑day trial. The plaintiff’s claim is for damages for personal injuries sustained when he slipped and fell in a market at Tseung Kwan O. The 1^st defendant was the property manager of the market, the 2^nd defendant was the cleaning contractor engaged by the 1^st defendant to provide cleaning service for the market, and the 3^rd defendant was a tenant of the 1^st defendant at the market and operated a stall selling pork.

2.  The judge found the plaintiff fell because he slipped on pork residues deposited on the passageway outside the 3^rd defendant’s stall.  The 3^rd defendant was held liable for the accident, with the plaintiff contributorily negligent to the extent of 15%.  The claim against the 1^st and 2^nd defendants was dismissed.  The judge made a costs order nisi that the 3^rd defendant do pay costs, including reserved costs, to the plaintiff (including the plaintiff’s costs in pursuing the 1^st and 2^nd defendants), the 1^st defendant and the 2^nd defendant.  The 3^rd defendant applied to vary the order nisi but was not successful and the costs order was made absolute by the decision on 29 May 2017 (“the Costs Decision”).

3.  The 3^rd defendant sought leave to appeal against the Judgment and the Costs Decision.  This was dismissed by the judge with costs in a decision handed down on 29 August 2017 (“the Leave Decision”).  The 3^rd defendant renewed its application to this court by a summons in these proceedings issued on 8 September 2017.

4.  The 1^st defendant takes a neutral stance and has sought to be excused from attendance of any hearing.  The 2^nd defendant has not taken part in this application.

5.  Having considered the papers, we decided to exercise the power under Order 59 rule 2A(5)(a) of the Rules of the High Court to determine this application without a hearing on the basis of the written materials before us.

6.  The plaintiff filed a statement in opposition of this application.  Under paragraph 13 of Practice Direction 4.1, it is stipulated that a statement in opposition should not be more than five pages on A4 paper printed in no less than 14 font size and 1.5 line spacing.  The plaintiff’s statement in opposition is 11 pages.  The 3^rd defendant objected to this statement for failure to comply with the Practice Direction.  This statement exceeds the prescribed length mainly because the plaintiff’s counsel chose to use a wider line spacing and paragraph spacing and unnecessarily reproduce the title of the action which took up the greater part of the first page.  Notwithstanding this apparent disparity in the length of the statements filed by the 3^rd defendant and the plaintiff, it does not appear to us there is lack of equal opportunity for the parties to present their respective case.  We will not return the plaintiff’s statement in this instance for a compliant statement to be submitted.  In future, if parties do not adhere to the clear requirements of the Practice Direction, this may be visited with appropriate consequences if additional time and costs should be incurred.

7.  The principles for granting leave to appeal are well established.  Under section 63A(2) of the District Court Ordinance, Cap 336, leave shall not be granted unless the appeal has a reasonable prospect of success, or there is some other reason in the interests of justice that the appeal should be heard.  Reasonable prospect involves the notion that the prospects of succeeding must be “reasonable” and therefore more than “fanciful”, without having to be “probable” (SMSE v KL [2009] 4 HKLRD 125 at §17).

8.  Three grounds of appeal were advanced in the draft notice of appeal placed before us.  The first ground (that the judge made a wrong finding of fact) was formulated differently from ground 1 considered by the judge in the Leave Decision but the effect is substantially similar.  The second ground (that the judge made a finding of fact on an unpleaded case) is the same as that considered in the Leave Decision.  The third ground (that the judge erred in making a Sanderson order) is the same as the ground dealt with in the Leave Decision save that sub-paragraphs (a) to (g) sought to answer the Costs Decision paragraph by paragraph.

The first ground

9.  The first ground is centred on §§ 17 to 19 of the Judgment and §§18 and 19 in particular.  These paragraphs read as follows:

“17. The plaintiff’s evidence was that as he was walking past the stall, he stepped on something slippery. He was unable to maintain his balance and fell as a result. Immediately after the fall he saw pig skin and other pork residues on the floor near his feet. The floor was wet and his trousers got wet. He then said to Cheung [the 3^rd defendant’s witness], “師傅你今次累死我啦，我起唔到身”. Cheung’s response was “我都唔想架!” Cheung then got hold of a folding chair from a nearby stall and helped the plaintiff to get up and sit on the chair. Cheung then went and got a broom to sweep away the pig skin and other debris. The plaintiff tried to stop him but Cheung went ahead and said, “你咁自私!滑倒第二個就慘啦!”

18. In paragraph 8 of the plaintiff’s witness statement, he said that before the accident, he noticed that Cheung would tidy up the pork by cutting off some skins, small bones and meat from the pork and dispose those parts around the floor of the stall.

19. As I accept the evidence of the plaintiff and reject those of Cheung, I find that the plaintiff fell because he stepped on pork residues. Such residues were left there by the 3^rd defendant’s staff. Such finding is also supported by the conversations between the plaintiff and Cheung after the fall, and the fact that Cheung hurriedly cleaned up the floor after the accident.”

10.  In the Leave Decision, judge accepted in §9 that in light of the plaintiff’s testimony in court, paragraph 8 of his witness statement should be “modified” as the plaintiff did not actually see when Cheung cut off some skins, small bones and meat from the pork, those parts were disposed around the floor of the stall.

11.  Mr Ho submitted that in view of this “modification” there is (1) no direct evidence on how pork residues were left on the passageway, whether by the 3^rd defendant’s staff or otherwise; and (2) no evidence leading to the inference that the plaintiff’s slip and fall was due to his stepping on pork residues and not just the wet floor.  Similar submissions were made to the judge and were rejected in the Leave Decision.

12.  We are in agreement with the judge.  Even with the modification of paragraph 8 of the plaintiff’s witness statement, the judge had stated clearly in the latter part of §19 of the Judgment that he also based his finding on the conversations between the plaintiff and Cheung immediately after the fall and the fact that Cheung hurriedly cleaned up the floor after the accident.

13.  In our view, there is ample evidence to support the finding in §19 of the Judgment that the plaintiff slipped and fell because he stepped on pork residues.  The stall was the only stall that sold fresh meat within that passageway[1]. There is the plaintiff’s evidence he saw the 3^rd defendant’s staff chopping pork before he fell[2], that he slipped and fell near the 3^rd defendant’s staff[3], and that immediately after the fall he saw pig skin and other pork residues on the floor near his feet[4].

14.  There was evidence from Cheung that the 3^rd defendant’s staff dismembered pig carcasses twice a day and would use a hose to wash away the debris and residues.  The worker of the stall would wash the floor at around 10 a.m. and the accident happened at around 11 a.m.[5]. It was admitted by Cheung that the water would flow outside the stall onto the passageway[6].

15.  In light of all the evidence, the judge is entitled to find in §21 of the Judgment that “the wet floor also contributed to the slippery floor and fall of the plaintiff.  But the main reason for the accident was the presence of pork residues on the floor.”  It can hardly be said that the judge was wrong, let alone plainly wrong, in this finding.  There is no basis for the appeal court to interfere with the judge’s finding of fact.

16.  There is no merit in the first ground.

The second ground

17.  The second ground may be dealt with shortly.

18.  This relates to §22 of the Judgment in which it was found that the floor of the passageway was wet because the 3^rd defendant’s staff washed the floor of the stall in the morning and as the water flowed outside the stall it was also likely that debris and residues were flushed onto the passageway and were deposited there.  Mr Ho complained this allegation was not pleaded in the statement of claim.

19.  This submission was made at the trial and was rejected in the Judgment at §§23 to 24.  It was repeated in the leave application and rejected in the Leave Decision at §§18 to 20.  We agree entirely with the judge.  The pleading of negligence in this respect (Amended Statement of Claim §§2(b), 3Ba, c and d) is adequate. Only material facts are required to be pleaded.  It is not necessary to plead how the pork residues were discarded or left on the floor outside the stall as this is a matter of evidence.

20.  This ground is wholly devoid of merit.

The third ground

21.  The contention here is that the judge erred in the exercise of his discretion in ordering the 3^rd defendant to pay the costs of the successful defendants, i.e. the 1^st and 2^nd defendants.

22.  This is the subject of a very full discussion in the Costs Decision, in which the judge mentioned the relevant legal principles and quoted the relevant cases (Chong Ngan Seng v China Harbour Engineering Co Ltd and Ors, CACV 54/2012, 25 September 2013 at §§6 to 7; Fung Chun Man v Hospital Authority [2012] 1 HKC 531 at §§6 to 7).  It was also considered at some length in the Leave Decision at §§23 to 33.

23.  It is well established that the appeal court will not interfere with the exercise of a judge’s discretion in the award of costs unless it was shown that he failed to exercise the discretion, or had exercised it upon a false principle, or did not exercise it judicially, or the exercise of discretion was demonstrably flawed.

24.  We are wholly unpersuaded there is any valid basis to interfere with the judge’s exercise of discretion.  The 3^rd defendant sought to answer the Costs Decision paragraph by paragraph in the draft notice of appeal.  This is just an attempt to find fault by praying in aid inconsequential matters, such as the absence of pleading of certain allegations, the alleged differences in the causes of action against the various defendants, the fact that the notices of indemnity and contribution were issued by the 3^rd defendant only six days before trial.  There is no basis for the contention that the judge was mechanically making a Sanderson order without considering the individual circumstances of the case.

25.  It was reasonable in all the circumstances for the plaintiff to sue the 1^st and 2^nd defendants.  It was alleged that the floor of the market was wet and not clean.  The wet floor was one of the factors that contributed to the accident (Judgment §21; Costs Decision §12).  The 3^rd defendant had denied liability, and it did try to shift blame to the 1^st and 2^nd defendants (Costs Decision §§13 to 15).  The finding of the court after trial that there was no duty to keep the floor of the market dry at all times did not contradict the view it was reasonable to join the 1^st and 2^nd defendants in the first place.  As Bharwaney J has stressed in Fung Chun Man v Hospital Authority at §7: “In making its decision, the court must be careful not to lose sight of the uncertainties surrounding the case before its conclusion.”

26.  We reject the third ground as well.

Conclusion and costs

27.  The threshold requirement for granting leave to appeal is plainly not met. We dismiss the application for leave to appeal.

28.  As the leave application is wholly without merit, we make a further order pursuant to Order 59 rule 2A(8) that no party may under rule 2A(7) request the determination to be considered at an oral hearing inter partes.

29.  We order the 3^rd defendant to pay the plaintiff’s costs of this application.  Having considered the statement of costs of the plaintiff for summary assessment, we assess the reasonable costs recoverable by the plaintiff at $101,527.  In making the reduction, we have regard to the fact that the same legal team was involved in the leave application before the judge and must have been familiar with the arguments involved as the present application did not rely on new grounds.  Further, costs are generally not allowed for the preparation of a statement of costs for summary assessment (Practice Direction 14.3 paragraph 13).

30.  We further order the plaintiff’s own costs be taxed in accordance with the Legal Aid Regulations.

31.  The costs order and gross sum assessment are orders nisi.  Any party seeking to vary the orders nisi shall lodge a written submission within seven days of the handing down of this judgment, failing which the orders shall become absolute.