Lobo, Helena George v. Bhagwandas K. Kripalani

CACV000066/1998

1998, No. 66
(Civil)

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

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Headnote

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An appeal against the judge's finding of fact.

A misunderstanding of the role of the Court of Appeal in appeals on fact. No proper grounds advanced.

Comments upon,

1998, No. 66
(Civil)

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

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J U D G M E N T

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Rogers, J.A. :

1. This is an appeal from a judgment of Seagroatt, J. given on the 23rd January this year. He gave judgment for the sum of $219,276 for the Plaintiff.

2. The brief facts are that the Plaintiff who is about 50 years old was employed as a domestic servant by the Defendant.

3. The Defendant lived in a flat which was owned by his own employer and he moved there in about early 1994. When the Defendant moved into the flat he had some kitchen cupboards installed. In the second week of October, the Plaintiff went to work for the Defendant. A few weeks later on a Saturday afternoon in November, the outer glass door of the kitchen cabinet fell out. It nearly injured the daughter of the Defendant. The daughter and the Plaintiff managed to catch the door on that occasion and no harm was done. They put the glass door in a corner. At the trial below, the Defendant disputed that event had ever happened. But the Judge found that it did happen and there is no basis for this Court to come to any different conclusion.

4. A few days later on 11th November 1994 the door had been replaced. The Plaintiff asked the Defendant's wife whether the door was "OK" and she was told that it was. The Plaintiff then started to clean the door. The outer door fell out. The Plaintiff's ankle was injured by the glass as the door shattered. Her achilles tendon was severed and she had to go to hospital. The Plaintiff spent eight days in hospital.

5. The Judge found that the Defendant had failed to provide the Plaintiff with a safe place to work. He held that the Defendant had become aware of this defective door and held that it was the Defendant's duty to ensure that when the door was replaced it was done without risk of injury to the Plaintiff.

6. The Judge then went on to consider whether the Plaintiff herself had been negligent or had failed to follow instructions. He said that there was no evidence to support any of the allegations which had been made against the Plaintiff and he said that the Plaintiff was entitled to succeed in full.

7. It is against those findings that this appeal is brought. We have before us the Notice of Appeal and we have also listened to submissions made by the Defendant assisted by Mr. Jhurani who was advising the Defendant during the submissions. Many of the points raised by the Appellant go to credibility, if they go to any relevant point in this appeal at all. For example, it was said that the fact that the Plaintiff was found to have inflated her claim in the Labour Tribunal should have been taken into account by the Judge in assessing her evidence. However the fact that a person has been unsuccessful in a claim in another Court and may have inflated a claim there does not mean that a Judge should disbelieve that person in a subsequent case.

8. It is said that the Judge interfered too much in the conduct of the Defendant's case and he confined the Defendant to asking relevant questions. Having read through much of the transcript myself I can only say, for my own part, the Judge did attempt to keep control of the case. He did that in a wholly fair and proper manner. Nevertheless, the Judge only appears to have had partial success in achieving the laudable objective of preventing irrelevant questions.

9. The Appellant feels that his case has not been fully presented because he was unsuccessful in obtaining legal aid. However having been through the papers myself, I can see nothing that would be of assistance to the Appellant nor, on reading the transcript, could I see any substance in the Appellant's complaint that questions were not fully translated.

10. In relation to the medical evidence relating to the Plaintiff's injury, the Judge heard from two doctors. They were Dr. Ali and Dr. Lau. After they had been examined and cross-examined the difference between them was very little, indeed this is recorded in the judgment where the Judge says that Dr. Ali had accepted that there is a wasting in the calf muscle and that his examination now showed that the Plaintiff's condition was consistent with her complaint of moderate pain and discomfort.

11. In summary, in my view, the Judge was perfectly correct from all that has been shown to us to find in the way he did.

12. The award of damages which the Judge made, which was $150,000 for pain and suffering, was, from what can been seen, entirely appropriate and the other damages which he assessed also appear to be entirely correct.

13. In the circumstances, in my view, this appeal must be dismissed.

Godfrey, J.A. :

14. I agree that this appeal must be dismissed but I wish to add a few words of my own on two subjects. One is the nature of this appeal, which is an appeal on fact; and the other the "representation" of the appellant, below and in this court.

Appeals on fact

15. It is not a proper ground of appeal that the judge preferred the evidence of the respondent's witnesses to the evidence of the appellant's witnesses. It is for the judge, not for us in this court, to weigh the evidence, and to decide whose case is to be preferred. All we consider is the judgment, and the evidence before the judge. Unless an appellant can show that the judge had 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.

16. In the present case, it has not been possible for the appellant to do any more than to contend that the judge should have preferred his case to that of the respondent. As I have said, that is not enough.

"Representation"

17. I turn now to the matter of representation in this court and below. The appellant does not speak, or claims not to be able to speak, the English language. At the trial he appeared in person, although he had originally been represented by solicitors. The judge described the position at the trial as follows :-

18. The reference made by the judge to a "McKenzie friend" (see McKenzie v. McKenzie [1971] P.33) needs some explanation. A litigant in person is allowed to have sitting with him someone who can give him advice and help him with the presentation of his case; but it is still the litigant in person who has to present that case to the court. I do not suggest that the judge was wrong, in the special circumstances of the present case, to allow Mr. Ashok "to address the court". A judge is entitled to exercise a reasonable degree of flexibility in the manner in which he allows proceedings to be conducted before him. But I must express my concern at what the judge did here in allowing Mr. Ashok in effect to represent the appellant. Certainly, it is only in most exceptional cases that a High Court judge should permit that course to be taken. A "McKenzie" friend does not have a right of audience in our High Court.

19. In this court, it became apparent at the outset of the hearing that the appellant assumed that, as a matter of course, Mr. Ashok, who had no right of audience, would nevertheless be entitled to present his appeal. It would be, in my opinion, wholly inappropriate to allow a friend of a litigant in person to present that litigant's appeal to this court. In fact, we refused Mr. Ashok leave to do so.

20. As I have said, I also would dismiss this appeal; and there is nothing further I wish to add.

Mortimer, V.-P.:

21. I also agree that this appeal must be dismissed. I agree with everything that has been said in the two previous judgments.

22. The appellant is in person. He therefore can be forgiven for his complete misunderstanding of the role of this Court as a Court of Appeal. That misunderstanding, however, is one which we face frequently. Those who seek to present their cases on the basis that the judge found the facts wrongly and ought to have preferred another witness to the one contended for, without being able to demonstrate properly that the judge's decision was wrong, will not be welcomed in this Court.

23. As it is, there is no suggestion - nor could there be - that the judge erred in law. The case therefore turns entirely upon questions of fact. Nothing has been advanced to demonstrate that the judge erred in his assessment of the evidence, his findings of fact or upon his conclusion on the effects of the injury. Nor has it been demonstrated that his assessment of the quantum of damages was wrong.

24. This is an appeal which is lacking in merit and is a waste of this Court's time.

25. The appeal is dismissed.

26. The respondent will have the costs of the appeal to be taxed if not agreed. The respondent's costs will be taxed in accordance with the Legal Aid Regulations.

Representation: