SINGH CHAMKAUR v. RICHARD ETHAN LATKER t/a SINO INDIAN TRADE ENTERPRISES

CACV 270/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 270 OF 2009

(ON APPEAL FROM DCEC NO. 796 OF 2007)

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BETWEEN

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REASONS FOR DECISION

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Hon Tang Ag CJHC (giving the reasons for decision of the Court):

1.  The applicant was a casual worker employed by the respondent to work at No. 1, Pak Fa Lam Road, Sai Kung, New Territories (“the Site”) which the respondent was renovating at the time. The applicant’s job included carrying bricks from a brick storage area to a platform next to a wall.

2.  The applicant claimed that, on 15 June 2006, in the course of such work, he was injured when a column of 4 or 5 bricks fell on his left foot.  It was the respondent’s (employer) case that the applicant was injured whilst joy riding on the employer’s vespa scooter. 

3.  After a trial which had lasted several days, Judge Chow gave judgment in the applicant’s favour.  The total compensation was assessed at $45,700.  This is the respondent’s appeal.

4.  The respondent was not in Hong Kong on 15 June 2006.  He called two witnesses on what happened on the day. 

5.  Mr Cheung Yui Hang (“Mr Cheung”) was a workman at the Site on the day of the accident.  According to Mr Cheung, he said, after the applicant had asked him repeatedly and insistently to let him ride on the vespa he felt he had no choice but to let the applicant ride it.  He said the applicant immediately rode it uphill at speed and within moments, he heard a bang.  He ran uphill and saw both the applicant and the motor cycle on the ground.  His evidence was largely corroborated by one Raghu Nath Prasad (“Mr Prasad”) who was employed by the respondent for sculpting and moulding.  His evidence was that the applicant had asked Mr Cheung if he could borrow the respondent’s vespa.  He then saw the applicant accelerating quickly and left the Site, rode up the slope for about 200 metres, lost control and crashed.  Then he saw the applicant limping down.

6.  Naturally, the respondent was unable to give any direct evidence on what happened.  However, he said the applicant had admitted to him after he had returned to Hong Kong that he had taken the scooter, damaged it and injured his foot.  He then deducted one day’s pay from the applicant’s wages to compensate in part for the damage to his motor cycle.  The applicant did not object and signed a receipt dated 23 or 24 July 2006 for payment which showed a deduction of one day’s wage for “Damage, dereliction”.  He said it was about one week later that the applicant telephoned him and claimed that he had injured his foot with a “falling brick” on the Site.  He asked about the motor cycle accident and the Applicant replied that it happened “later”.

7.  The applicant denied that he was injured whilst riding a scooter.  His case is that his injuries were caused by bricks falling on his foot.   The applicant was 66 in 2006.  He claimed to be illiterate and unable to drive a car or a scooter.  He said he had poor eye sight.  He was employed by the applicant at $350 a day.  However, at one time he had lent the respondent $17,000 to cover his workers’ wages when the respondent was away from Hong Kong.  So obviously, he was more than just an illiterate labourer.  He denied that he had ever ridden the respondent’s scooter.  He also said the respondent never explained the content of the receipt to him.  The applicant had sustained tenderness and swelling over his first and second metatarsal bones of his left foot.  There was no external wound.  X-ray examination showed fracture of head of proximal phalanx of left second toe and medial cuneiform bone.

8.  The medical record from the Accident & Emergency Department showed that the applicant was admitted on 15 June 2006 at about 17:37 hour.  The admissions record stated that his foot was crushed by “fallen machinery”, and the box on the record showing “Industrial injury” had been ticked.  Against that heading, there were hand-written words “Job injury” and “Crush”.  On 20 June 2006 there was a note made by the Department of Orthopaedics and Traumatology by the Hospital on a medical record stating:

“L foot contusion by a fallen brick”.

9.  The learned trial judge regarded the medical evidence consistent with the applicant having been injured by falling bricks. He said:

“16. … If the Applicant had fallen onto the ground, when the motorcycle fell on its left side, the left side of his body should have sustained some injuries, when the left side of his body came into contact with the surface of the ground. At this moment the motorcycle was still moving ahead and so this part of the body would grind with the surface of the ground. The injuries caused by such grinding would cover a wider area than the injuries just caused to 2 toes of the left foot. But there is no injury on the left side body of the Applicant. …”

10.  The applicant’s wife also gave evidence.  She could understand simple Chinese and speak some broken Cantonese.  She had gone to the hospital after receiving the applicant’s call. She interpreted for the applicant because he was unable to speak Punti.  The applicant told her that he was hit by a falling brick.  In return, she told the doctor what the applicant had told her. 

11.  The learned judge, after careful consideration of the evidence of the witnesses, had preferred the evidence of the applicant to the evidence given on the respondent’s behalf. 

12.  The learned judge said there was inconsistency between Mr Cheung’s oral evidence and a witness statement he had given on 20 February 2009.  Moreover, according to Mr Cheung, after the accident, he pushed the scooter back down the slope whilst the applicant limped on his left leg back to the Site, but Mr Prasad said the scooter was lying down on the ground and Mr Cheung helped the applicant back to the site without carrying anything in his hands.  Also according to Mr Prasad, the accident took place at about 3:30 p.m. to 4 p.m., but according to Mr Cheung, that had taken place between noon and 1 p.m.  Mr Prasad also claimed in evidence that he was able to see where the accident took place.  This is inconsistent with the evidence of Mr Cheung, who said that from where Mr Prasad and all the other workers  were standing, they could not see the accident.

13.  On the other hand, the learned judge found evidence given by the applicant credible and supported by what he (through his wife) had told the hospital.

14.  Essentially the trial turned on the credibility of the applicant and the respondent and his witnesses.  This is precisely the sort of case where a trial judge has an immense advantage over an appellate court.   

15.  Mr James Thomson, appearing for the respondent, has referred us to what Ribeiro PJ said in Tradepower (Holdings) Ltd v Tradepower (HK) Ltd [2010] 1 HKLRD 674 at para. 24:

“Inconsistencies between the testimony of a witness and other items of evidence had to be evaluated as part of the overall process of assessing credibility. It was not satisfactory first to form the view that the witness was generally credible and then to carve out exceptions in areas where inconsistencies with other evidence were found. Such an approach cast doubt on the initial assessment of credibility.”

16.  Also, Litton NPJ said in para. 140:

“Appellate courts had warned, repeatedly, against trial judges placing undue reliance upon demeanour and resolving factual issues by using the demeanour of witnesses isolated from the inherent probabilities of the case. It required no repetition here. The trial judge’s role was to try issues, not personalities. …”

17.  But what are the inherent probabilities of the case?  Is it inherently improbable that the applicant who had to transport bricks from one area to another was injured by falling bricks?  Is it probable that the applicant could have somehow pressed or forced Mr Cheung to let him ride the scooter and that he would ride it at speed up a slope?  Is it probable that two fellow workers should be willing to give false evidence against the applicant?  Is it probable that the applicant should made a false claim?  I can only say that this is not a case which can be decided on the inherent probabilities.  There is little on the facts to make one version more probable than the other.

18.  As for the receipt the applicant had signed, it is to be noted that prior to the date of the receipt the applicant had already told the Hospital that he was injured by a fallen brick.  Also upon admission, he had claimed that he was injured by a fallen machinery and that it was an industrial accident.  In other words, he had always maintained that his foot was injured by a falling object. So if he had already decided to make a false claim, why should he sign the receipt if he was indeed aware that he was thereby agreeing to pay compensation for the scooter.  Also, the receipt which recorded the deduction of one day’s pay is equivocal.  It is not clear what damage or dereliction was being referred to. 

19.  This is an appeal against a finding of fact and we cannot interfere unless we are satisfied that the trial judge was plainly wrong.  Ting Kwok Keung v Tam Dick Yuen and Ors (2002) 5 HKCFAR 336.  With respect, the decision which the learned judge had come to was fairly open to him.

20.  On 18 October 2010, the respondent applied for leave to adduce additional evidence on appeal.  The evidence takes the form of a medical report by one Dr Roelf S. Breederveld MD PhD dated 16 September 2010.  In the report Dr Breederveld expressed the opinion:

“… it is very unlikely that the combination of these two fractures is compatible with an injury caused by a single falling brick or bricks because of the location of these fractures and the characteristics of these fractures.”

21.  He went on to explain:

“15. In my opinion, the fracture of the ground phalange is caused by:

(a) An indirect trauma mechanism with overloading stress of the toe to the medial side or the plantar side, causing an avulsion fracture; or

(b) An axial injury through the axis of the 2nd toe, causing a disruption fracture by compression force in the 2^nd metatarsal phalangeal joint. This lesion by itself is very unlikely to be caused by a single fallen brick or bricks. This type of fracture is very common in motorcycle accidents. Typically in the case of putting a foot on the ground driving a motorcycle to prevent it from falling.

16. In my opinion, the fracture of the os cuneiforme medial is caused by a force through the axis of the foot, especially the 1^st toe and 1^st metatarsal bone such that it caused a compression-fracture of the mid-foot. This trauma mechanism is more compatible with a scooter accident. A brick falling onto the Applicant's left foot would cause a transverse or impact fracture which is a different type of injury, and it would bear the characteristics of a different trauma mechanism such as an open wound or skin laceration on the dorsal side of the mid foot.

17. Putting foot down. The abovementioned lesions in themselves, and in combination, are only compatible with deceleration forces on the foot, such as those experienced by a motorcyclist putting his foot out on the ground while the motorcycle is still moving. In such a case, grinding injuries to the foot or elsewhere are not necessarily incurred.”

22.  Even at trial, there are restrictions on adducing expert evidence, and procedures which have to be followed.  See O. 38 r. 36.  Yet Mr Thomson asks for leave to adduce expert evidence on appeal, and says that no retrial is necessary because the court could decide the matter on the basis of one-sided expert evidence.  Even assuming that Dr Breederveld’s status as an expert is established, we have no doubt that the application must fail. 

23.  The respondent has made an affirmation to explain why no report was obtained for the trial.  He said, for example, that local expertise on forensic analysis of an orthopaedic foot injury “is clearly rare or non-existent”.  He said that he had not received the applicant’s X-ray films until 2008.  But the trial did not take place until mid-2009.

24.  Whether evidence of forensic analysis of the applicant’s injuries should be adduced is a decision which should have been made before trial and the proper procedure regarding adducing such evidence complied with.  It is clear from the respondent’s affirmation that he had considered adducing such evidence at trial but decided not to do so because of shortage of local experts.  He should have sought overseas expert advice then.

25.  It is an unacceptable excuse to say that the desire to adduce such evidence was prompted by what the learned judge said in his judgment, quoted in para. 9 above.  The learned judge’s judgment has to be read in the light of the evidence before him.  Indeed, we have been supplied with the employer’s counsel’s (not Mr Thomson) written submission at trial.  There was no submission that the injuries could not have been caused by falling bricks.  The submission was:

“… that 4-5 bricks falling on his foot would have resulted in more serious injuries. Therefore his account does not match his injuries” .

26.  Mr Thomson referred us to Muscat v Health Professions Council [2009] EWCA Civ 1090 and submitted that the English Court of Appeal had expressed the view that after:

“… the CPR, a decision to admit fresh evidence was not to be confined within the old Ladd v Marshall straightjacket”

27.  However, Smith LJ went on to say that:

“… consideration of the Ladd v Marshall principles would, in my view, place a very great impediment before the exercise of a discretion in the appellant’s favour.”

28.  In the end, fresh evidence was refused, and Smith LJ explained:

“… The Ladd v Marshall principles were indeed at the heart of the exercise of discretion. Even if Silber J was too dismissive of the potential relevance of the evidence, he was entitled to say that the appellant had provided no excuse for failing to obtain the evidence in time for the hearing and had shown no special reason why that failure should be overlooked. Taking all the factors into account, (that is the first and second Ladd v Marshall principles, the public interest in the correct outcome in a striking off case and the existence of the Committee’s power of review) I have no hesitation in saying that I would exercise my discretion against the admission of this fresh evidence. I would dismiss the appeal on the first ground.”

29.  Under O. 59 r. 10 we shall not admit further evidence on appeal without special grounds.  With respect, we are not aware of any better statement of special grounds than those in Ladd v Marshall.

30.  The application cannot satisfy the first of the Ladd v Marshall conditions.

31.  It is unnecessary for us to express any view on the second and third of the Ladd v Marshall conditions.  We say only that if Dr Breederveld’s evidence had been adduced at trial, we should be surprised if they were not seriously contested.  Even assuming those conditions in the respondent’s favour, we do not believe this is a case where there are special grounds for admission of fresh evidence.  Finality which lies at the heart of these conditions strongly supports the rejection of such evidence.  Indeed, the respondent is trying to raise a new point on appeal.  As Bokhary PJ has explained in the Court of Final Appeal:

“38. … where a party has omitted to take a point at the trial and then seeks to raise that point on appeal, … he will be barred from doing so unless there is no reasonable possibility that the state of the evidence relevant to the point would have been materially more favourable to the other side if the point had been taken at the trial.” Flywin Co Ltd v Strong & Associates Ltd [2002] 5 HKCFAR 356 at 369C.

32.  This is not such a case.

33.  For the above reasons, we have dismissed the appeal as well as the application to adduce further evidence with costs.  The applicant’s costs are to be taxed in accordance with Legal Aid Regulations.