YAU PO SHAN v. THE EXPRESS LIFT CO LTD AND ANOTHER

CAMP 25/2020

[2020] HKCA 881

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 25 OF 2020

(ON AN INTENDED APPEAL FROM DCPI NO 2370 OF 2014)

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J U D G M E N T

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

1.  This is the renewed application of the 1^st defendant for leave to appeal against the judgment of Deputy District Judge S H Lee handed down on 8 November 2019 (“the Judgment”)[1] after a three-day trial in February 2019. The judge had refused leave to appeal in a decision on 27 March 2020 (“the Leave Decision”)[2] after considering the written submissions of the 1^st defendant and the plaintiff.

2.  The 1^st defendant issued the present summons on 8 April 2020 seeking leave to appeal from the Court of Appeal[3].

3.  Having considered the papers and the submissions of the parties, we think it is appropriate to exercise our power under Order 59 rule 2A(5) to determine this application on paper without a hearing.

4.  The plaintiff suffered personal injuries on 1 November 2011 when she was using one of the lifts serving the building where she lived. Upon reaching the 2^nd floor, the lift suddenly plunged and jerked twice before it stopped and stalled violently at approximately one to two feet below the lobby floor.  The plaintiff brought this action to recover damages for personal injuries against the lift contractor (the 1^st defendant) and the building manager (the 2^nd defendant)[4].

5.  The 1^st defendant called no witness to testify.  Not a single engineer or technician of the 1^st defendant who had examined or repaired the lift was called.  No investigation report of the accident by the 1^st defendant, the 2^nd defendant or the Electrical & Mechanical Services Department was produced. Nor was there any expert evidence on liability.

6.  On the available evidence, including the accident entry of the logbook of maintenance records kept by the 2^nd defendant and the admissions of the 1^st defendant in its pleadings and answer to interrogatories[5], the judge found it likely that the immediate cause of the accident was due to the failure of the KVAB Relay (繼電器), which was a relay for drive motion signalling of the lift.  This control equipment was situated inside the control cabinet of the machinery room and it had some contactor (接觸點) problem[6].  The accident entry in the logbook read: “KVAB 拍不好(更換)”.  The KVAB Relay was replaced by the 1^st defendant within seven hours of the accident.

7.  However, on the evidence, nothing was known as to why the KVAB Relay of the lift failed at the time of the accident or why there was contactor problem of the KVAB Relay.  Hence, the accident remained an accident of unknown cause for the doctrine of res ipsa loquitur to apply and the judge made a ruling to that effect[7], and this aspect of his ruling is not the subject of challenge of the 1^st defendant’s intended appeal.

8.  The judge found that the accident was such that it would not have happened without negligence on the part of the 1^st defendant in terms of the inspection, maintenance and repair of the lift, including the KVAB Relay[8].  The doctrine of res ipsa loquitur applied and there was prima facie evidence of negligence that called for a rebuttal from the 1^st defendant[9].

9.  On the evidence before him, the judge held that the prima facie case of negligence raised against the 1^st defendant on res ipsa loquitur was not rebutted[10].  He also concluded that the 1^st defendant failed to adduce evidence of its regular and proper inspection and maintenance of the lift, including the KVAB Relay, at all material times before the accident that is capable of rebutting the prima facie case[11]. He held that the plaintiff has proved her case in negligence against the 1^st defendant.

10.  In the intended appeal, the 1^st defendant sought to challenge these two findings: (1) the prima facie case of negligence was not rebutted; and (2) the accident was such that it would not have happened without negligence on the part of the 1^st defendant.  Three grounds of appeal were advanced:

(1)  The findings in the Judgment showed that the 1^st defendant had properly examined the lift on five occasions in October 2011 (the month before the accident).  Therefore, the 1^st defendant had exercised reasonable case and the inference of negligence raised by res ipsa loquitur was rebutted (ground (1)).

(2)  There was no expert evidence to show: (a) when the KVAB Relay became defective and whether it was defective during the five occasions of inspection in October 2011; (b) whether the problem of the KVAB Relay could have been detected before the accident by a professional technician of ordinary skill; (c) whether the accident could have been avoided by examination of the lift by a professional technician of ordinary skill in the five occasions of inspection in October 2011 (ground (2)).

(3)  Replacing the KVAB Relay within seven hours of the accident cannot be used as evidence of negligence of the 1^st defendant (ground (3)).

11.  The above grounds of appeal are the same as those advanced unsuccessfully before the judge and were considered by him thoroughly in the Leave Decision. In this renewed application, the 1^st defendant’s counsel, Mr Jackson Poon, did not address the judge’s reasons for rejecting the intended grounds of appeal.  He simply persisted in his arguments notwithstanding that the judge had pointed out a number of instances in which he misread particular paragraphs in the Judgment[12].

12.  Under section 63A(2) of the District Court Ordinance, Cap 336, leave to appeal shall not be granted unless the intended appeal has a reasonable prospect of success, or there is some other reason in the interests of justice that the matter should be heard by the Court of Appeal.

13.  We are in complete agreement with the reasons given in the Leave Decision that there is no reasonable prospect of success in any of the three grounds of appeal.  It is unnecessary to set out the detailed reasoning of the judge.

14.  In short, it is totally misconceived for the 1^st defendant to rely on the five inspections of the lift in October 2011 to rebut the prima facie inference of negligence (ground (1)), as these inspections did not show the 1^st defendant’s staff had inspected the KVAB Relay or how the staff had gone about the inspections[13].

15.  The complaint that the judge relied on the mere fact of replacement of the KVAB Relay within seven hours of the accident as evidence of negligence of the 1^st defendant (ground (3)) is likewise misconceived.  The 1^st defendant owed a duty of care at common law to all passengers of the lift to inspect the lift (including the KVAB Relay) properly and keep it properly maintained to protect the health and safety of the passengers[14]. The judge had found that before the accident, the 1^st defendant had recognised problems with the control system of the lifts of the estate including the KVAB Relay.  It had suggested renewal works in its report to the incorporated owners on or about 8 March 2010, and had introduced specific provisions to arrange periodic examination of the KVAB Relay in the Tender Documents to the incorporated owners on 17 August 2011[15].  The replacement of the KVAB Relay within seven hours of the accident was not made as an improvement or additional precaution to guard against similar accident in future, but was evidence showing that the defect in the KVAB Relay was plainly discoverable, and the 1^st defendant had failed to detect the defect[16].

16.  As for the absence of expert evidence on the matters referred to in ground (2), we do not think that would constitute a proper basis for attacking the finding that the accident was such that it would not have happened without negligence on the part of the 1^st defendant.  The judge has given cogent reasons for this finding.  The manner in which the accident occurred went beyond mere fall and stopping of the lift and was an apparent abnormal functioning of the lift[17].  The KVAB Relay was situated inside the control cabinet of the machinery room and was unlikely to be subject to interference[18].  As mentioned earlier, the 1^st defendant had recognised the conditions of the KVAB Relay and had suggested renewal works and agreed to undertake periodic examination of the KVAB Relay.  Its staff could discover and had discovered the contactor problem of the KVAB Relay which caused the accident and replaced this equipment within seven hours on the same day.

17.  Having rightly held that the doctrine of res ipsa loquitur applied in this instance, albeit the legal burden of proving negligence rested throughout on the plaintiff, the effect of the doctrine is that this gave rise to a prima facie case of negligence that called for a rebuttal from the 1^st defendant.  There was no need for the plaintiff to adduce expert evidence of the kind mentioned in ground (2).  The 1^st defendant chose not to adduce evidence on how the five inspections were carried out in the month before the accident.  Mr Poon’s submissions on the standard of care and professional negligence are of no relevance[19].

18.  The proposed grounds of appeal are wholly devoid of merit. We refuse to give leave to appeal.

19.  Further, since this application is totally unmeritorious, we make an order under Order 59 rule 2A(8) that no party may request for an oral hearing to reconsider it.

20.  The plaintiff seeks costs on an indemnity basis in view of the lack of merit and the failure to pay heed to the Leave Decision, citing Man Lin Heung v 梁根林 & Ors [2019] HKCA 846 at §27 and the cases there cited. We think there is basis to award indemnity costs.  Having considered the statement of costs filed by the plaintiff on 18 May 2020, we make a summary assessment of the costs that would be allowed to the plaintiff at $96,719.

21.  The costs order and summary assessment are in the nature of orders nisi and will be made absolute if no application for variation is made by any party within 14 days of the handing down of this judgment.