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DCPI73/2004
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
PERSONAL INJURIES ACTION NO. 73 OF 2004
BETWEEN
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LUK CHUN WING
formerly
known as
LUK CHUNG LIT |
Plaintiff |
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and |
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INTERCONTINENTAL
HIRE CARS LIMITED |
1st Defendant |
Coram: Deputy District Judge W.C. Li in Chambers
Date of Hearing: 21 September 2005
Date of Delivery of Decision: 21 September 2005
D E C I S I O N
1. The plaintiff’s claim was for damages for personal injuries arising from an accident which as alleged, was caused by him working inside the luggage compartment of a coach and when a luggage handle came off suddenly when he pulled the luggage. His hand was injured when it hit a metal pillar behind him. I dismissed the plaintiff’s claim after trial and found that the cause of his hand injury was not caused by a suitcase handle coming off but by the plaintiff accidentally getting his hand caught by the luggage compartment door, and that the plaintiff knew that the accident was due to his own inadvertence and not arising from breach of duty of care by his employer.
2. The plaintiff seeks leave to appeal against my finding on the facts. My finding of facts was based on the entry in the defendant company’s log book, the nurse’s record, the doctor’s notes on the cause of the accident and the record on the Form 2. Also I considered the likelihood of such an accident occurring to the plaintiff when he was crouching inside the luggage compartment. Also I considered the likelihood of the injury to the part of his hand and as to how it was caused, as he described, with his hand flying across chest and hitting a pillar a foot behind him to his right. Rather, I found the unlikelihood of such an accident occurring as described. The plaintiff’s complaint is that I should not rely on these evidence. These evidence were cogent and consistent evidence which showed that the plaintiff had fabricated the story as to how his hand injury was caused.
3. The principle set out in Smith v Cosworth Casting Processes Limited [1997] WLR 1538 by Lord Woolf provided guidance on whether leave to appeal should or should not be granted. Leave should be granted unless the court is satisfied that the plaintiff or the applicant had no realistic prospect of succeeding on the appeal. And even so, the court could still grant leave where public interest is concerned and calls for closer scrutiny on the issue of the appeal.
4. Here there is no public interest involved. All the issues in the trial had been considered and my judgment had dealt with all the points raised by the plaintiff and the defendant. The plaintiff’s complaint is that I should not draw the conclusion I drew, that his injury was not caused in the manner he alleged, and that I was wrong to rely on the log book entry, the nurse’s and doctor’s records and the evidence in Form 2. The intended appeal is on facts. The facts were based on cogent evidence that had been carefully considered by me before I accepted them. I disbelieved the plaintiff’s evidence. I found against the plaintiff that he had fabricated the story. I do not think the plaintiff has any reasonable and realistic chance or prospect of success in an appeal.
5. On this basis I therefore refuse the plaintiff’s application for leave to appeal.
Application to vary costs order
| 1. |
This is an
application by the defendant to vary the order for costs made,
which was an order nisi for costs of the action with certificate
for counsel, to be taxed if not agreed. The variation
sought is that the costs should be on an indemnity basis rather
than on a party and party basis on taxation. |
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| 2. |
I found, in
this case, the plaintiff knew the cause of his hand injury was
due to his own inadvertence in getting his hand caught in the
luggage compartment door and that he knew that it was unlikely
that he could get compensation for an accident that was not due
to the fault of his employer. Hence, he made
up a story of a suitcase handle coming off when he pulled the
suitcase inside the luggage compartment of the coach and his
hand swung backward and struck a metal piece behind him. |
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| 3. |
On this
crucial issue on the facts, I found for the defendant, and my
finding of facts was based on the defendant company log book
entry, made by a staff who received the plaintiff’s complaint of
the accident on the phone just shortly after the accident; the
nurse’s and the doctor’s notes on the cause of the accident, as
were related to them by the plaintiff, and on the Form 2
submitted by the plaintiff. All these documents showed
that the plaintiff caught his hand in a door rather than what he
alleged, that a suitcase handle came off when he pulled it. |
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| 4. |
It does
appear that the plaintiff’s claim was unmeritorious. He
brought the personal injury claim against the defendant in an
oppressive manner and with an ulterior motive. The
plaintiff’s claim was misconceived at the outset. |
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| 5. |
Having
heard the defendant solicitor and the plaintiff having nothing
to say on this application by the defendant for variation of
costs order, I do, in my judgment, find that the order for costs
should be varied. This is an appropriate case to
make an order for costs, to be taxed on an indemnity basis and I
so vary the order to provide that the costs be to the defendant
with certificate for counsel, to be taxed on an indemnity basis. |
6. The defendant’s solicitors agreed that the costs for today’s hearing is to be taxed on a party and party basis. I order that costs for today’s hearing, that is, on the application for leave to appeal and on the application to vary costs order, be to the defendant, to be taxed on a party and party basis.
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(W.C. Li)
Deputy District Judge |
Plaintiff, In person, present
Ms P S Cheung of Messrs So, Lung & Associates, for the Defendant
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