RAI PABITDARA v. VEGETABLE MARKETING ORGANIZATION

HCMP 921/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 921 OF 2011

(ON AN INTENDED APPEAL FROM DCPI NO. 2473 OF 2009)

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BETWEEN

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Hon Fok JA (giving the Reasons for Judgment of the Court):

1.  By a summons dated 19 May 2011, the applicant sought leave to appeal against the judgment of Deputy District Judge Kot dated 23 December 2010 dismissing her action for personal injuries.

2.  An application to the Deputy Judge below for leave to appeal was dismissed on 6 May 2011 and this summons was the applicant’s renewed application to this court for leave.

3.  At the conclusion of the hearing, we dismissed the application for leave to appeal, indicating that we would give our reasons later, which we now do.

4.  It was not in dispute that, on an application to this court for leave to appeal, leave will only be granted if the court is satisfied that the proposed appeal has a reasonable prospect of success.

5.  The summons annexes a draft notice of appeal and is supported by an affirmation of the applicant, stating the background to the application and asserting the belief that on the basis of the grounds of appeal in the draft notice of appeal there is a reasonable prospect of success in the proposed appeal.

6.  In the action leading to the judgment sought to be appeal against, the applicant claimed damages for personal injuries against her former employer.  She alleged that she had suffered a sprained back when lifting a basket of rubbish onto a trolley on 17 October 2006.  This was referred to as the 1^st accident.  After resuming work after the end of a period of sick leave, the applicant claimed she suffered a further sprain to her back on 16 December 2007 whilst moving a stack of baskets.  This was referred to as the 2^nd accident.  It was the applicant’s case at trial that the two accidents were caused by common law negligence or breach of statutory duty on the part of her employer.

7.  In her reserved judgment following the conclusion of the trial, the Deputy Judge identified the issues in the action and the witnesses who testified before her or whose evidence was agreed and admitted in written form.  She recited the undisputed facts and then summarised the evidence in relation to the two accidents and the evidence concerning what the applicant had been told regarding work safety.

8.  Before dealing with the issue of liability in her judgment, the Deputy Judge summarised the medical opinion evidence that had been adduced by the parties.  Both experts agreed that there was a certain degree of over-expression of symptoms and signs by the applicant and that the disk desiccation and facet joint hypertrophy noted on the applicant’s MRI scan could be pre-existing.  However, it was the applicant’s medical expert’s opinion that she had sustained a soft tissue sprain injury to her back attributable to the two accidents.  The employer’s medical expert’s opinion, on the other hand, was that she had a recurrent attack of a pre-existing low back pain.  He referred to an MRI scan in June 2008 which showed only degenerative change without any nerve root compression and opined that these changes were not caused by the two accidents.  Crucially, the Deputy Judge then indicated that she preferred the evidence of the employer’s medical expert, noting that there was nothing in the applicant’s medical expert’s opinion to justify his conclusion that her injury was attributable to the two accidents.

9.  In the light of the medical expert evidence, it was plainly necessary for the applicant to be able to prove to the satisfaction of the Deputy Judge that the injuries to her back had been sustained by her by reason of some event or events in the course of her employment.  If that were established, it would then fall to consider whether the event or events in question was or were due to the negligence or breach of statutory duty of her employer.

10.  The Deputy Judge then addressed the issue of liability in her judgment.  She said that she did not find the evidence of the applicant to be reliable.  She noted that the account given by the applicant in her testimony of the two accidents was different to that pleaded in the statement of claim, her witness statement and her statement to the loss adjuster after the 2^nd accident.  The Deputy Judge considered that no satisfactory explanation had been given to explain the inconsistent accounts.  In the case of the 2^nd accident, she concluded that the three different versions described by the applicant involved totally different causes that were simply irreconcilable.

11.  At paragraph 24 of her judgment, the Deputy Judge concluded on the issue of liability:

“Considering the Plaintiff’s evidence on the whole, I do not find her to be a truthful or reliable witness and I am not satisfied that the Plaintiff had sustained injuries in the manner she asserted so as to give rise to any claim against the Defendant. In the premises, the Plaintiff’s claim shall be dismissed.”

(Emphasis added)

12.  In the draft notice of appeal, in respect to the issue of liability, five grounds of appeal are sought to be advanced.

13.  First, it is alleged that the Deputy Judge failed to consider relevant material which sufficiently supported the applicant’s claim regardless of her reliability.  The material relied upon is said to demonstrate that the applicant did indeed suffer a back injury by reason of the 1^st accident.  It is also sought to rely on material demonstrating the lack of instructions given to the applicant.

14.  However, we do not think the material relied upon demonstrates that, regardless of the applicant’s reliability, she did in fact sustain her back injury as a result of the 1^st accident.  The reference to a sprained back in a sick leave certificate dated 17 October 2006, the date on which the 1^st accident allegedly occurred, says nothing as to when and how the sprain may have occurred.  Similarly, the doctor’s consultation note of the same date referring to low back pain after carrying a heavy object, does not describe the mechanism by which the pain was caused.  The fact that the attendance records of the employer show that the applicant left work part-way through her regular working hours on 17 October 2006 may indicate that she left work early to seek medical attention but does not demonstrate that this was because she had sustained an accident at work rather than the fact that she had merely experienced back pain brought on as a result of a pre-existing condition.  Finally, payment of a portion of the applicant’s wages during a period of sick leave from 17 October 2006 to 24 October 2006 also does not provide any indication that the 1^st accident occurred as claimed by the applicant.  In any event, it is clear from the judgment that the Deputy Judge was aware of this period of sick leave.

15.  So far as the material demonstrating the lack of instructions given to the applicant is concerned, this would only be material in the event the Deputy Judge concluded that the applicant sustained an injury by reason of an accident at work.  In any event, the Deputy Judge referred to, and therefore had in mind, the applicant’s evidence that she was never told what to do concerning work safety and was never shown how to carry baskets.

16.  Secondly, the draft notice of appeal contends that, if the Deputy Judge considered the above material, she failed to give reasons why this did not sufficiently support the fact that the applicant met with an accident on 17 October 2006 whereby she suffered a sprained back injury.

17.  However, for the reasons set out above, we do not think that the material in question undermines the Deputy Judge’s conclusion that the 1^st accident did not occur as alleged.  In the circumstances, we do not consider that the complaint that the Deputy Judge failed to give reasons as alleged gives rise to a ground of appeal with a reasonable prospect of success.

18.  Thirdly, it is contended that the Deputy Judge failed to consider that the employer had failed to make discovery of documents, in the form of the daily reports prepared by its supervisors, which would support the applicant’s case.  The existence of such daily reports was only made known to the applicant in the course of the oral evidence of one of the respondent’s witnesses at trial.  It was submitted, in reliance on the principle in Armory v Delamirie (applied in Tullett & Tokyo International Securities Ltd v APC Securities Co Ltd [2001] 2 HKLRD 356 at 365-366) that the failure to produce these reports should lead to an adverse inference against the respondent that the daily report for 17 October 2006 would support the occurrence of the 1^st accident.

19.  The difficulty with this argument is that it does not appear that any attempt was then made to seek discovery of the relevant daily report.  It would have been open to the applicant to request the production of the document but this was not done.  In the circumstances, we do not think that it would be appropriate to draw the adverse inference we were invited to draw, namely that the report or reports in question would support the applicant’s case that she injured her back as a result of the 1^st accident.

20.  Fourthly, a complaint is made that the Deputy Judge placed excessive reliance on the inconsistency in her evidence as to who filled the baskets which she alleges she was carrying at the time of the 1^st accident and on the applicant’s inability clearly and accurately to describe the 2^nd accident.

21.  This complaint is plainly an attack on the weight attached by the Deputy Judge to particular matters of evidence leading to a primary finding of fact, i.e. that the applicant did not sustain any back injury by reason of the 1^st accident and 2^nd accident as alleged.

22.  It is well-established that, unless an appellant can show that the judge has misunderstood the evidence, or failed to appreciate its effect, or has overlooked some documentary evidence, or other indisputable evidence, which should have compelled him to a different conclusion, this court will not interfere with his findings of primary fact.

23.  In our view, the applicant has failed to demonstrate an error of this nature on the part of the Deputy Judge.

24.  Fifthly, the draft notice of appeal contends that the Deputy Judge failed to consider material which should have led to a finding that one of the defendant’s witnesses, Mr Lee Siu Man, was not an honest or reliable witness.

25.  However, regardless of whether Mr Lee’s evidence was truthful or reliable, this cannot and does not provide any support for the applicant’s case that she sustained a sprained back by reason of the 1^st accident or the 2^nd accident.  That case depended on a combination of the medical evidence and the applicant’s own evidence.

26.  We are not satisfied that any of the proposed grounds of appeal on the issue of liability in the draft notice of appeal has a reasonable prospect of success and it therefore follows that the necessary pre-condition for the grant of leave does not exist.

27.  Since it would be necessary for the applicant to succeed on the issue of liability on appeal for the issues relating to quantum to be relevant, it is unnecessary to address the proposed grounds of appeal on the issue of quantum in the draft notice of appeal.

28.  For these reasons, we dismissed the applicant’s summons seeking leave to appeal against the judgment below with costs to the respondent.

29.  By way of postscript, we note that the applicant’s initial skeleton submissions in support of this application for leave to appeal ran to 24 pages (although it was subsequently replaced by one limited to 5 pages in compliance with the practice direction by the time of the hearing) and the respondent’s skeleton submissions ran to 21 pages.  Part B of Practice Direction 4.1 deals with applications for leave to appeal and paragraph 15 of that part stipulates that the skeleton arguments referred to in that part of the practice direction “should not normally exceed 5 pages on A4 paper in no smaller than 14 pt. size”.  Practitioners should therefore ensure that, unless there are special circumstances (in which case it would be prudent for counsel to write to the court to seek a suitable direction) skeleton arguments are limited to this length.