WONG SIU PUI v. LAU TAK CHI

DCPI 2711/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 2711 OF 2013

--------------------

--------------------

---------------------

RULING

---------------------

INTRODUCTION

1. This is the plaintiff’s application for leave to appeal against the judgment and order of this court dated 31 December 2015 (“the Judgment”) that (i) the plaintiff’s claim against the defendant be dismissed; and (ii) the plaintiff do pay the defendant’s costs of the action, to be taxed if not agreed.  As apparent from the grounds of appeal contained in the summons of the present application,[1] the plaintiff also seeks to challenge the assessment of damages which this court made in case this court was wrong on the issue of liability.

2. The case arose from a traffic accident on the third (outermost) lane of Ching Cheung Road on which the plaintiff’s scooter was hit from behind by the medium goods vehicle (“mgv”) driven by the defendant.  This court found as a fact that the accident occurred because the plaintiff cut into the third lane without giving any prior warnings and then decelerated, giving the defendant virtually no time to avoid collision.  This court also found that there was no negligence on the part of the defendant.

GROUNDS OF APPEAL

3. As regards the issue of liability, many of the grounds relied upon by the plaintiff are overlapping and they can be summarised and grouped as the following complaints:-

(a)  this court failed to apply res ipsa loquitur in favour of the plaintiff and failed to find that the defendant had not discharged his burden of proving that he was not negligent (Grounds 1(a) & (b));

(b) this court erred in finding that certain aspects of the plaintiff’s evidence was supportive of the defendant’s case (Ground 3);

(c)  this court erred in relying on the defendant’s evidence (Ground 2);

(d) this court’s findings as to how the accident had occurred was against the weight of the evidence in favour of the plaintiff and was not supported by any credible evidence and (Grounds 1(d), 4 & 7) ; and

(e)  this court erred in finding that that the defendant was not negligent on the defendant’s pleaded case and his evidence (Grounds 1(c), 5 & 6).[2]

4. As regards the issue of damages, the plaintiff’s complaints are that:-

(a)  this court erred in not finding that the plaintiff’s left transverse process fractures were caused by the accident;

(b) this court erred in not finding that the plaintiff’s bilateral shoulder pain was directly caused by the accident; and

(c)  this court under-assessed the degree of permanent sufferings and disabilities suffered by the plaintiff as a result of the accident.

CRITERIA FOR GRANTING LEAVE

5. Under section 63 of the District Court Ordinance, Cap 336, an appeal to the Court of Appeal from a judgment, order or decision of a District Judge in any civil cause or matter may only be made with leave.  Section 63A(2) goes on to provide that leave to appeal shall not be granted unless the judge or the Court of Appeal hearing the application is satisfied that the appeal has a reasonable prospect of success or there is some other reason in the interests of justice why the appeal should be heard.

6. It is well established that leave to appeal under section 63A(2) is not lightly granted.  A reasonable prospect of success involves the notion that the prospects of succeeding must be reasonable and therefore more than fanciful, without having to be probable: see SMSE v KL[3]; see also Yuen Oi Yee Lisa v Charoen Sirivadhanabhakdi & Others.[4]

7. Insofar as the grounds of the appeal are about the findings of fact, the plaintiff has an onerous burden to discharge in seeking to overturn the findings of primary fact, where the findings were reached based on an evaluation of the oral evidence and this court’s assessment of the credibility of the witnesses.  It is well established the appeal court should only intervene if it was satisfied that the trial judge’s conclusion on the facts was “plainly wrong”, even thought the appeal court did not have the advantages enjoyed by the trial judge of receiving the evidence at first hand.  If the appeal court was not so satisfied, it should defer to the trial judge’s conclusion even if in some doubt as to the correctness of the judge’s decision on the facts: see Ting Kwok Keung v Tam Dick Yuen.[5]

8. In Pang Ketian Sally v Tam Yuk Hung Annie,[6] Cheung CJHC, who gave the judgment of the Court of Appeal, explained the distinction drawn by Bokhary PJ in Ting Kwok Keung between “findings of primary fact” and “findings of fact made by a process of inference”.  As Cheung CJHC pointed out, the reality is that no judge can afford to be complacent about his ability to arrive at the truth by assessing demeanour; but, likewise, no judge can afford to be complacent about his ability accurately to say which story is more probable.  Therefore, in practice, almost invariably trial judges are expected to and indeed do take into account both demeanour and inherent probability in arriving at their findings of fact, save in those exceptional circumstances falling within either of the two extremes explained above.  His lordship said that the “plainly wrong” test is applicable unless the finding of fact is based purely on inferences, or otherwise has nothing to do with the witnesses’ demeanour or the trial judge’s having received the evidence at first hand.  However, a finding of primary fact includes a finding of fact which is partly based on demeanour and partly based on inherent probabilities, which is the commonest of all situations.  To challenge such a finding of primary fact, the appellant must succeed in persuading the Court of Appeal that the finding is “plainly wrong”.

9. In respect of appeals as to damages, an appellate’s court approach was encapsulated by Greer LJ in Flint v Lovell [7]. The appellate court should only reverse the trial judge as to the amount of damages if it considers that either the judge acted upon a wrong principle of law or that the amount awarded was so high or so small as to make it, in the judgment of the appellate court, an entirely erroneous estimate.  Simply because the appellate court might have awarded a different sum, it is not justified in altering the award.

CONSIDERATION

Liability

As to (a): res ipsa loquitur and burden of proof

10. It is well-known that res ipsa loquitur needs not be expressly pleaded and that it is in essence no more than a common-sense approach, not limited by technical rules, to the assessment of the effect of evidence in certain circumstances: see Hong Kong Civil Procedure 2016, at §18/8/20.  In Yu Yu Kai v Chan Chi Keung,[8] Ribeiro PJ, who gave the judgment of the majority in the Court of Final Appeal, cited with approval the following dictum of Megaw LJ in Lloyde v West Midlands Gas Board [9]:-

“I doubt whether it is right to describe res ipsa loquitur as a ‘doctrine’. I think that it is no more than an exotic, although convenient, phrase to describe what is in essence no more than a common sense approach, not limited by technical rules, to the assessment of the effect of evidence in certain circumstances. It means that a plaintiff prima facie establishes negligence where (i) it is not possible for him to prove precisely what was the relevant act or omission which set in train the events leading to the accident; but (ii) on the evidence as it stands at the relevant time it is more likely than not that the effective cause of the accident was some act or omission of the defendant or of someone for whom the defendant is responsible, which act or omission constitutes a failure to take proper care for the plaintiff's safety. I have used the words ‘evidence as it stands at the relevant time'. I think that this can most conveniently be taken as being at the close of the plaintiff's case. On the assumption that a submission of no case is then made, would the evidence, as it then stands, enable the plaintiff to succeed because, although the precise cause of the accident cannot be established, the proper inference on the balance of probability is that that cause, whatever it may have been, involved a failure by the defendant to take due care for the plaintiff's safety? If so, res ipsa loquitur. If not, the plaintiff fails. Of course, if the defendant does not make a submission of no case, the question still falls to be tested by the same criterion, but evidence for the defendant, given thereafter, may rebut the inference. The res, which previously spoke for itself, may be silenced, or its voice may, on the whole of the evidence, become too weak or muted.” (Emphasis supplied)

11. In my view, it is clear from the above that the operation of the “doctrine” of res ipsa loquitur, if applicable, is not to shift the burden of proof onto the defendant upon the plaintiff establishing a prima facie case.  The burden of proving negligence rested throughout the case on the plaintiff.  The effect of the “doctrine” was only that faced with a prima facie case of negligence, the defendant would be found negligent unless he produced evidence that was capable of rebutting the prima facie case.  This is exactly what the Privy Council said in Ng Chun Pui & Ors v Lee Chuen Tat & Another[10] which was an appeal from Hong Kong.

12. In the present, I do not think that the “doctrine” of res ipsa loquitur is applicable at all.  There was evidence as to how the accident had happened.  Even if the “doctrine” was applicable and even assuming that it could have the effect of shifting the burden of proof (which is contrary to the case authorities) as contended by Mr Chang, counsel of the plaintiff, it would not have assisted the plaintiff.  This is because this court was able to make the factual findings as to how the accident had happened: see §17 of the Judgment.  In so doing this court said expressly that it preferred the evidence of the defendant to that of the plaintiff.  That is to say that the factual findings were actually made by this court on balance of probabilities: see §14 of the Judgment.

As to (b): relying on part of the plaintiff’s evidence

13. Mr Chang has no qualm about this court rejecting the evidence of the plaintiff. The complaint is that this court accepted one part of the plaintiff’s evidence and treated it as supportive of the defence case.

14. With respect, I am unable to see any merits in this complaint.  As the tribunal of fact, this court was entitled to accept part of a witness’s evidence and to reject part of it.  Moreover, this court had given reasons why it rejected the majority of the plaintiff’s evidence but accepted his admission against self-interest that he had reduced his speed upon cutting into the third lane: see §§9-11 & 15.  Mr Chang has been unable to provide any valid reasons as to why this court was wrong in so doing.

As to (c): assessment of the defendant’s evidence

15. It is difficult to understand what Mr Chang means by this court “re-constructing” the accident scenario based on the defendant’s case.  This court had not “re-constructed” anything.  The findings as to how the accident happened were based on those points of the defendant’s evidence which this Court had accepted: see §17 of the Judgment. 

16. Moreover, the court preferred the evidence of the defendant to that of the plaintiff because the former was supported by independent and circumstantial evidence in material aspects: §16 of the Judgment.  In other words, the court had regard to both demeanor and inherent probabilities.  In so doing, this court was fully aware of the criticisms levelled at the defendant’s evidence, all of which had been already made by Mr Chang at his closing submissions: see §12 of the Judgment. 

17. As discussed above, assessment of credibility and weight as a matter for the trial judge which is unlikely to be interfered with on appeal.

As to (d): weight of the evidence

18. Contrary to what Mr Chang seems to suggest, this court had actually taken into account all the relevant evidence including the photographs and sketch prepared by the police and the survey report of the scooter: see §§10(iv) & 16(b)&(c).  More importantly, as can be seen at §16 of the Judgment, the findings as to how the accident had happened were based on those parts of the defendant’s evidence which was supported by independent evidence and therefore were accepted as reliable.

19. I agree with the submission of Chow, counsel for the defendant, that in a nutshell the present complaint that the findings are against the weight of the evidence or that this court should have reached another conclusion because of points already advanced in the closing submissions are not errors coming within the realm of an appeal: China Gold Finance Limited v CIL Holdings Limited & Others.[11]

As to (e): whether defendant was negligent

20. Contrary to Mr Chang’s contention, this court had in fact considered whether the defendant could be found negligent by reference to his own case and evidence: see §18 of the Judgment.

21. This court had considered the causative potency of the defendant’s acts and omissions.  It was only after a consideration of the defendant’s evidence that this court came to the conclusion that (i) the defendant was not negligent in what he did or did not do; and (ii) the accident was caused solely by the plaintiff cutting in sharply without proper regard to the traffic behind him and then decelerated suddenly: see §§19-22 of the Judgment.  Whether the defendant was negligent was an issue of mixed law and fact depending on a host of factors and falling within a margin of appreciation.  The decision reached is one which this court is entitled to reach and therefore unlikely to be interfered with on appeal: see Biogen Inc v Medeva Plc[12], applied in Yau Kam Ching v Cheung Shun Kau[13].

Conclusion on liability

22. Based on the above, in my view the plaintiff’s proposed grounds of appeal, whether taken individual or a whole, do not give rise to any reasonable prospect of success.  Nor can I see any reason in the interests of justice that the appeal on liability should be heard.

Assessment of damages

23. In view of my assessment of the proposed grounds of appeal relating to liability, the proposed grounds relating to the assessment of damages are academic. 

24. Furthermore, with the greatest respect to Mr Chang, his present submissions on damages are simply a recital of the evidence without identifying any errors in the relevant part of the Judgment. 

25. This court had considered the relevant evidence: see §§28-37 of the Judgment and Mr Chang does not suggest that this court had missed anything. Moreover, this court had given reasons as to why the evidence of the defence medical expert was to be preferred and how the various heads of damages were assessed.  Those reasons were supported by the various reports prepared by the treating doctors and paramedical professionals: see §§38-40 & 47.  In so doing, this court had relied on the relevant case authorities and Mr Chang does not suggest that this court had made any error on the applicable law. 

26. In the circumstances, I can see no reasonable prospect of success in any of the proposed grounds of appeal.  Nor can I see any reason in the interests of justice that the appeal on damages should be heard. 

CONCLUSION

27. Based on the above, the plaintiff’s application is dismissed.

28. Following the general rule that costs should follow the event, I make an order nisi that the plaintiff is to pay the defendant’s costs of the application, with counsel certificate, to be taxed if not agreed.