POON CHING MAN v. LAM HOI PUN

CACV 177/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 177 OF 2015

(ON APPEAL FROM DCPI NO 1585 of 2011)

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

1.  This is an appeal against the judgment of Deputy District Judge Winnie Tsui [“the Judge”] on 11 November 2014 in a personal injuries case arising from an industrial accident. After a 9-day trial in the District Court, the Judge dismissed the Plaintiff’s claims. The Plaintiff appealed against the judgment.

2.  The Plaintiff was an employee of the Defendant as a driver-cum-transportation worker.  In the evening of 17 March 2009, the Plaintiff unloaded a container of goods from a medium size vehicle with the assistance of his colleague, Mr Sham, at the car-park of an industrial building in Fo Tan.  Mr Sham was standing on the ground operating the tailboard by a pneumatic button as the Plaintiff pulled out a hand pallet truck loaded with about 480 kg of goods.  The Plaintiff pulled out the hand pallet truck slowly in zigzag motion.  When the hand pallet truck left the compartment floor and completely entered the tailboard, the Plaintiff stepped to the right side of the hand pallet truck.

3.  The Plaintiff’s case was that the tailboard suddenly tilted downward causing the hand pallet truck and the container of goods to skid towards the outer edge of the tailboard.  The Plaintiff’s left foot was trapped by the truck at the edge.  He lost balance and fell to the ground. As a result, he suffered injuries at his right leg.

4.  MRI showed that he had a fracture of right lateral tibial plateau and lateral meniscal tear.  He underwent surgery and was hospitalized for 11 days.  Alignment of the fracture was satisfactory and he returned to work in about August 2009.  He said he had difficulties in coping with the demand of his pre-accident job and he quitted in February 2010.  He had worked as a casual driver since 2010.   

5.  The Defendant’s case was that there was no tilting of the tailboard.  He alleged that the Plaintiff had moved the goods with an improper method which was described by the Judge at §16 of the judgment:

“ For convenience, instead of placing the hand pallet truck properly within the tailboard and lowering the truck before lowering the tailboard, sometimes, a transportation worker would move the hand pallet truck towards the outer edge of a tailboard with its wheel slightly overshooting the edge and would leave it there while the tailboard is being lowered to the ground floor. That way, when lowered, the worker can then straightaway slide off the hand pallet truck to the floor. This saves the time of lowering the truck. It is not disputed that it is not a safe way to move goods as there is a risk of the hand pallet truck skidding or sliding out of control of the worker.”

6.  The Defendant was not at the scene at the time of the accident.  Apart from the Plaintiff, Mr Sham also gave evidence at the trial.  As we shall discuss below, the Judge found that Mr Sham’s evidence was inconsistent with the Plaintiff’s case.  There was another eye-witness of the accident, a Mr Ha who was a caretaker working at the car-park.  The Judge did not find his evidence to be reliable due to some inconsistencies in his own evidence and the distance at which he observed the event.

7.  The Judge did not believe the Plaintiff on how the accident happened though she did not find the defence case of improper method established.  She decided the question of liability by reference to the burden and standard of proof.  She said at §65:

“ It should be borne in mind that the accident happened very quickly. Both the plaintiff and Mr Sham said that it was only a matter of one second between the time when the plaintiff finished pulling the Goods in a zigzag motion and the time when the plaintiff fell down. I think it is just not feasible to have that one second of event be effectively re-played in slow motion (in words and diagrams) so that the court could then examine critically whether it is more likely than not that a certain position or movement did happen or not. It would be sufficient for me to say that there is nothing in the evidence to suggest that either the plaintiff’s version or the defendant’s version (namely the Improper Method) is physically impossible in theory. It is simply that in my judgment neither has been able to prove his version to the required standard.”

8.  This appeal revolves principally around the Judge’s finding on liability.  Ms Chih (counsel for the Plaintiff) also challenged the Judge’s order for costs.  The Judge ordered the Plaintiff to pay the costs of the action to the Defendant.  She explained her decision in a Costs Judgment of 22 April 2015.  Ms Chih submitted that there should be a 50% deduction on account of the Defendant’s losing some of the issues advanced at the trial.  

Appeal on liability

9.  The Judge rejected the evidence of the Plaintiff on two grounds, (a) it was Mr Sham’s evidence that he did not see any tilting of the tailboard; and (b) the Plaintiff did not inform the Defendant of the tilting after the accident. 

10.  This being a challenge to the findings of fact and credibility of witnesses, the Plaintiff has to demonstrate that the Judge had made some palpable errors or was plainly wrong: see Ting Kwok Keung v Tam Dick Yuen (2002) 5 HKCFAR 336 and China Gold Finance Ltd v CIL Holdings Ltd CACV 11 of 2015, 27 Nov 2015.  

11.  Ms Chih submitted that the Judge erred in finding there was no tilting of the tailboard.  She said the Judge did not have sufficient ground to reject the evidence of the Plaintiff. Counsel argued that on the facts of this case the evidential burden was shifted to the Defendant and once the Judge found that the defence case of improper method was not established, the Plaintiff should have judgment.  She argued that the court should draw the irresistible inference that the tailboard was defective and apply the principle of res ipsa loquitur to conclude that the Defendant was liable.  Counsel also said the Judge had misunderstood the evidence on the Plaintiff’s use of the vehicle in question after the accident. She further said the Judge erred in not attaching weight to the evidence of a Mr Lai, a truck vehicle mechanic.

12.  We can shortly dispose of the last point first.  The Judge considered the evidence of Mr Lai to be in substance matters of opinion and as the Plaintiff did not apply for expert directions the Judge did not attach weight to his evidence.  We agree with the Judge in the characterization of the evidence of Mr Lai as expert evidence.  Mr Lai was not a factual witness on how the accident happened.  He also had no personal experience with the maintenance and repair of the vehicle in question.  He gave evidence based on his experience in dealing with other vehicles and attempted to transpose that onto the state of maintenance and repair of the vehicle in question.  His evidence on his personal dealing with other vehicles is irrelevant but for the transposition of such experience onto to the vehicle in question.  That is a matter of opinion and the court should only entertain such opinion from a person who is qualified to give expert opinion and testifying in such capacity (observing the duty of an expert to the court).  In modern litigation practice, proper case management requires a party to apply for expert directions before such evidence could be adduced.  The Plaintiff failed to do so and it is perfectly legitimate for the Judge to decide that she should not attach weight to the evidence of Mr Lai who did not purport to give evidence in the capacity of an expert (and as such was not aware of the duty of an expert to the court).   

13.  Ms Chih’s reliance on Section 58(2) of the Evidence Ordinance Cap 8 is misplaced.  It only refers to statement of opinion made by way of conveying relevant facts personally perceived by a witness.  Thus, the witness must be able to give factual evidence relevant to the case which was personally witnessed by him.  It does not apply to a witness like Mr Lai.

14.  The relevant sub-section on pure opinion evidence is Section 58(1) and it starts with this phrase, “subject to any rules”.  The relevant rules are to be found in Part IV of Order 38 of the Rules of the High Court and the Rules of the District Court.

15.  For us, it is rather surprising that experienced lawyers like those representing the Plaintiff in this case could have overlooked such basic procedural requirement which has been in place for quite some time.

16.  The underlying premise of Ms Chih in the other parts of her submission on the finding of fact is this: once the possibility of the Plaintiff’s use of improper method had been eliminated, the Judge should have found that the tailboard tilted as deposed by the Plaintiff and whether by way of res ipsa loquitur or otherwise the Defendant should be held liable.

17.  But it is clear from §65 of the judgment that though the Judge did not find the defence case of improper method established (on balance of probability) neither did the Judge rule it out completely.  The Judge simply said the evidence before her did not persuade her to come to a particular view on the balance of probability: be it a case of tilting or improper method.

18.  Whilst a trial judge naturally (and usually) strives to reach a conclusion on the facts in light of the evidence, there are occasions where the court is left in doubt (on the requisite standard of proof) after considering all the relevant evidence before it.  In those situations, the court must decide the case by examining the burden of proof.  This appears to be what the Judge did in the present case.

19.  Unless Ms Chih could persuade us that the Judge made palpable errors in the assessment of evidence before her, she did not have the necessary foundation for her submission that this is a case where the court should have come to a finding of tilting as the irresistible inference.

20.  We are not impressed by Ms Chih’s criticism against the Judge on the assessment of credibility of the Plaintiff.  We do not think the Judge made any palpable error warranting this court’s intervention in that regard.  We are satisfied that there is proper evidential basis for the 2 reasons given by the Judge for the rejection of the Plaintiff’s evidence and these were logical and sound reasons for doing so.  Ms Chih wrongly described the Judge’s assessment of the evidence of the Plaintiff as a process of drawing of inferences.  In a layman and a very loose sense, that might be an acceptable description insofar as the evaluation of evidence inevitably involves some analysis and reasoning process on the part of the judge.  However, in the legal sense the assessment of credibility and reliability of a witness by a judge falls within the process of primary fact finding and the appellate restraints as discussed in the authorities are directly applicable. 

21.  Ms Chih said the Judge did not adequately address the question of proper maintenance of the vehicle. The Judge did consider the question at §§69 to 71 of the judgment.  The evidence before the Judge was not very helpful in that regard.  We have explained why the Judge was entitled not to attach weight to the evidence of Mr Lai.  Though the Judge also found the evidence of the Defendant to be unsatisfactory (see §71 where she described the evidence of the Defendant as an afterthought), she did not have any evidential basis for concluding that the vehicle had not been properly maintained (after she correctly excluded the evidence of Mr Lai from her consideration).  She correctly did not reach a concluded view on this question.  The Plaintiff simply failed to put forward a proper evidential basis to support the case of lack of proper maintenance and repair.

22.  Ms Chih took us to the transcript regarding the evidence of Mr Sham commenting on the unlikelihood of improper method being deployed.  But Mr Sham also gave evidence of not seeing any tilting.  Further, according to him, the Plaintiff subsequently mentioned to him there was a jerk of the tailboard (“岌咗一下”), not the tilting of the tailboard.  Though Mr Sham also tried to revert to the position that he did not pay attention to the tailboard, the Judge obviously did not believe him in that respect in light of the shift in his evidence as described at §46 of the judgment.  We do not see any basis for disturbing the Judge’s assessment of the evidence of Mr Sham.

23.  Ms Chih also referred to part of the evidence of the Defendant on skidding and submitted that the Defendant accepted that there would not be skidding unless the ground was slanted or tilted.  We have read the transcript again.  We do not think the evidence goes as far as Ms Chih suggested.  The evidence does not support a general proposition that skidding alone is indicative of the tilting of the tailboard.  It depends on the extent of skidding and its abruptness.

24.  In this connection, the Judge made these observations at §§64 and 65:

“64. Lastly, I should point out that a considerable amount of time was spent by both counsel at trial on asking the witnesses questions relating to the movement of the Goods and the hand pallet truck.  The questions related to, for instance, the positions of the handle bar or the wheel of the hand pallet truck, the angle at which the handle bar was placed against the Goods, where exactly the plaintiff stood and placed his left foot (the one which was trapped) at different points of time.  These questions went into minute detail and were apparently asked with a view to demonstrating that what the plaintiff said had happened was or was not physically possible or probable, depending on which counsel was asking the question. 

65. It should be borne in mind that the accident happened very quickly.  Both the plaintiff and Mr Sham said that it was only a matter of one second between the time when the plaintiff finished pulling the Goods in a zigzag motion and the time when the plaintiff fell down.  I think it is just not feasible to have that one second of event be effectively re-played in slow motion (in words and diagrams) so that the court could then examine critically whether it is more likely than not that a certain position or movement did happen or not. ...” 

25.  Thus, after hearing the evidence, and mindful of her assessment of the reliability of the witnesses, the Judge did not find herself as having sufficiently reliable evidence to make a specific finding on the precise movement of the pallet truck.  We have no reason to say that the Judge erred in coming to such a view.  In light of this, Ms Chih’s emphasis on unusual skidding is misplaced.

26.  Counsel submitted that the Judge “unduly” relied on the Plaintiff’s omission to relay to the Defendant about tilting.  With respect, we cannot see how this can be a ground of appeal.  Ms Chih, in her over-zealous pursuit of this line of argument, had misread the evidence on the Plaintiff’s use of the same vehicle after the accident and misquoted the same in her written submissions.  In our judgment, the Judge was entitled to place reliance on this factor in assessing the credibility of the Plaintiff.

27.  It is not part of the Plaintiff’s case at the trial that the accident was caused by Mr Sham’s maladjustment of the tailboard and there is no evidence to such effect.  We cannot understand why Ms Chih saw fit to refer to this scenario at paragraph 4 of her skeleton submissions.

28.  As we see it, the whole case turns on whether the Judge accepted the Plaintiff’s version as to how the accident happened.  After assessing the evidence, the Judge found that she could not do so.  She held that it was equally possible that the accident was attributable to the use of improper method, though she did not find that proved on the balance of probability.  There is no proper basis for the application of the doctrine of res ipsa loquitur in the present case.

29.  For these reasons, we dismiss the Plaintiff’s appeal on liability.  

Appeal on costs

30.  The Judge’s reasons for her decision on costs are two-folded:

(a) She had no jurisdiction to entertain an application for variation of costs order nisi after such order had become an order absolute; and

(b) Even if she had jurisdiction to do so, on the facts of the present case, she would exercise her discretion against the Plaintiff.

31.  We shall focus on (b) since we have come to the conclusion that it is sufficient to dispose of the appeal on costs.  We hesitate to offer a concluded view on (a) as we do not have the benefit of arguments from Mr Cheung on that aspect of the appeal.

32.  The crux of the Judge’s reasoning on (b) can be found at §§60 to 81 of the Costs Judgment.  The Judge acknowledged that the Defendant failed on three issues.  However, the Plaintiff was also guilty of conduct increasing the costs of the trial.  In the round, she decided at §79:

“ In conclusion, there are both factors which are in favour of and against depriving the defendant’s costs of the action. When the matter is looked at in the round, I consider that the “for” factors are far outweighed by the “against” factors and therefore the appropriate thing for me to do in the circumstances is not to deprive the defendant of any of his costs.”

33.  She also declined to order the Defendant to pay the Plaintiff’s costs in respect of those three issues.

34.  This court has stressed repeatedly that costs is very much a matter of discretion for the trial judge and the Court of Appeal would be very circumspect in intervening with such a decision with high discretionary content: see Ho Shu Kwong v Chiang Chun Yuan [2002] 3 HKLRD 419; IO of King Yip Factory Building v Kwun Wah Flower and Plant Manufactory Ltd CACV 128 of 2003, 13 Nov 2003; Hung Fung Enterprises Holdings Ltd v Agricultural Bank of China [2012] 3 HKLRD 679; Bonnie Blair Ltd v Witmore Ltd HCMP 1546 of 2015, 7 Aug 2015; Chan Shun Kei v Hong Kong Construction (HK) Ltd CACV 192 of 2014, 7 March 2016.  In the last case, the court said at §22:

“22. It must be stated at the outset that this court should acknowledge that costs is very much a matter of discretion of the judge and we should be circumspect in interfering with the same.  The established approach is that this court will only interfere when it is satisfied that the decision of the judge is either wrong in principle or plainly wrong, see Ho Shu Kwong v Chiang Chun Yuan [2002] 3 HKLRD 419.  The rationale for this approach was explained by Woo JA (as he then was) in Ho Shu Kwong.  The trial judge is the best person to exercise the discretion on costs because he is most familiar with the conduct of the case at the trial and the impact of the success and failure on each issue canvassed before him.  In a way it is like an appeal against findings of fact.  As explained in numerous judgments (see e.g.  China Gold Finance Ltd v CIL Holdings Ltd CACV 11 of 2015, 27 November 2015), an appellate court is institutionally disadvantaged from re-assessing a decision of this nature as if it is hearing the matter in the first instance.  Thus, this court should examine whether a primary judge committed any palpable error in the exercise of the discretion on costs.  In the absence of such an error, the mere fact that the appellate judges might have exercised the discretion in a different manner is not a sufficient ground to warrant interference with the decision of the primary judge.” 

35.  Ms Chih’s attempt in the present appeal fell considerably short of showing that the Judge erred in principle or in law or took account of irrelevant matters in her exercise of discretion.  She also failed to show that the Judge failed to take account of relevant matters or that the Judge was plainly wrong.

36.  Counsel submitted the Judge should have deprived the Defendant of costs on the 3 issues in accordance with Re Elgindata Ltd (No 2) [1992] 1 WLR 1207, 1214.  She submitted that the Defendant acted unreasonably in alleging that the Plaintiff was a partner and about one third of the trial was spent on that issue.  She also said the Defendant failed miserably on the issue of maintenance and the evidence was overwhelming against the Defendant on his case of improper method.  Lastly, she also said the Judge erred in finding adverse conduct on the part of the Plaintiff.                     

37.  It should be stated again that Re Elgindata Ltd (No 2) [1992] 1 WLR 1207 does not establish that as a matter of law there should be deprivation of costs or separate costs orders for different issues whenever a successful party fails on some issues.  It is still a matter of discretion to be exercised by reference to the facts and circumstances of the case in question.  See for example Yiu Hon Lam v Chan Yu Chun CACV 383 of 2007, 15 Jan 2009; Chinachem Charitable Foundation v Chan Chun Chuen HCAP 8 of 2007, 16 April 2010 where the discretion was exercised by not depriving a successful party of costs.

38.  We have read Ms Chih’s submissions on the Plaintiff’s conduct in light of paragraph 3 of the Supplementary Notice of Appeal of 11 Sept 2015.  With respect, we do not find her comparison in tabular forms to be of assistance.  The Judge was in the best position to assess the use and misuse of court time and the significance of the conduct of the parties in the overall scheme of the action.  She had sat through a 9-day trial.  Notwithstanding Ms Chih’s efforts, we do not see any valid basis for disturbing the Judge’s finding that the Defendant had not acted unreasonably in raising the 3 issues and that the conduct of the Plaintiff’s case should be penalised. 

39.  For the reasons given in our judgment on the appeal against liability, we do not agree with Ms Chih’s bald assertion that the Defendant failed miserably on the maintenance issue and the improper method issue.  There was simply insufficient evidence and the Judge did not make any positive finding against the Defendant in those regards.

40.  On the whole, we are not persuaded that the Judge erred in concluding in the way she did at §79 of the Costs Judgment.

41.  For these reasons, the costs appeal must also be dismissed.

42.  In light of what had been said, we shall confine ourselves to the following brief comments on the jurisdiction point:

(a) There are 2 Court of Appeal judgments suggesting that the court has jurisdiction to extend time for varying a costs order nisi after it had become absolute: Ma Wan Farming Ltd v Chief Executive in Council (No 2) [1998] 2 HKLRD 314; Tang Man Kit v Hip Hing Timber Co Ltd CACV 137 of 2002, 8 June 2006;

(b) At the same time, in both instances, the courts actually refused to vary the costs order;

(c) Also in both instances, the applications for variation were made within a relatively short period after the expiry of the 14-day limit.

(d) It is not clear from the judgments whether the costs order absolute had been perfected.  There was no discussion in Ma Wan  and the majority’s decision in Tang Man Kit on the implication of the court being functus officio after sealing of the order (if the costs order absolute had been sealed) though Chung J (who would have decided differently in Tang Man Kit but for Ma Wan) adverted to it at paragraph 28, citing his own judgment in Syed Haider Yahya Hussain v Registrar of Births and Deaths HCAL 73 of 1999, 12 July 2005;

(e) The functus officio point was taken up again by Anthony Chan J in RTX Products v Li Yiu Fai HCA 1777 of 2009, 12 Nov 2014 in refusing to entertain an application for variation of a costs order nisi after the sealing of the order;

(f) In the present case, the Judge considered herself to be bound by the decision of Anthony Chan J but she also opined that an application for variation might fall within the principles discussed in Re Good Idea International Investment Ltd [2012] 4 HKLRD 186 and Re L& B [2013] 1 WLR 634 by way of exception to the general principle of functus officio; and

(g) For reasons we have canvassed earlier, without proper arguments before us, we shall not express any concluded view on the controversy.  However, we would add that even assuming that the court has jurisdiction to entertain the application, it may not be just an application to extend time.  Rather, it also involves the setting aside of the order absolute that had been entered.  If the nature of the application is viewed in that way, it is at least arguable that the considerations in Order 2 Rule 5 should also be relevant.

Disposition 

43.  We shall dismiss the appeal and order the Plaintiff to pay the costs of the Defendant in this appeal, including the costs of the application for leave to appeal.

44.  The Plaintiff’s own costs shall be taxed according to Legal Aid Regulations.