WAT KWING LOK v. THE KOWLOON MOTOR BUS CO (1933) LTD

HCMP 1001/2008

in the high court of the

hong kong special administrative region

court of appeal

MISCELLANEOUS PROCEEDINGS no. 1001 of 2008

(on AN INTENDED appeal from hcpi NO. 936 of 2005)

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D E C I S I O N

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1.  This is an application for leave to appeal out of time from a judgment of Sakhrani J given on 20 November 2007.

2.  On this application, Mr Marshall, SC, who has appeared on behalf of the Plaintiff, has said everything that could be said on this application.

3.  The action concerned a claim by the Plaintiff who was injured when he trod on what appears to have been a cylindrical battery that had been discarded on to the floor of a motorbus owned and operated by the Defendant.

4.  At the trial, the judge upheld that, first of all, whilst the Plaintiff relied upon the doctrine of res ipsa loquitur and indicated that it was his view that the accident would not have occurred had the Defendant maintained its bus in a clean condition, the judge approached the matter on the basis of a proposition of law that derived from American decisions and from the case of Ward v Tesco Stores Limited [1976] 1 WLR 810.  There is a well-known passage of Megaw LJ in which he said:

“It is for the Plaintiff to show that there has occurred an event which is unusual and which, in the absence of explanation, is more consistent with fault on the part of the Defendant than the absence of fault”.

5.  The judge considered the evidence of the witnesses, which included the Plaintiff, a passenger who had been on the upper deck of the bus where the Plaintiff had fallen, from the person who was in charge of the maintenance of the buses and from the driver of the bus himself.  He went through the evidence with great care and came to the conclusion that as regards when the batteries must have been thrown on to the floor, it was by no means clear that it must have happened prior to the bus starting the particular journey.  In those circumstances, he came to the conclusion, in paragraph 52 of his judgment:

“I am not satisfied that the Plaintiff has proven that the discarded battery was on the bus before the final inspection by Lam at the Po Lam Terminus.  The answer to issue (1) is ‘no’.  The Plaintiff has not discharged its burden of proof to show that the unusual event is, in the absence of explanation, more consistent with fault on the part of the defendant than the absence of fault.  That being so, the evidential burden to show that the accident happened without negligence on the part of the defendant does not shift to the defendant.  The other issues do not arise.  The plaintiff’s claims fail.”

6.  This application for leave to appeal out of time is, of course, made, by its nature, late.  Matters which this Court should take into account when there is an application for leave to appeal out of time are, of course, first of all, the length of the delay and the reasons for it and, finally, the chances of the appeal succeeding.  That last matter is, in my view, the most important of all the matters that the Court has to consider.

7.  The delay in this case is lengthy on any ground.  The reasons for it are this, that the Plaintiff first of all applied for legal aid for the appeal; that was refused.  Then there was an appeal to the Deputy Registrar and that appeal failed and the Deputy Registrar gave his decision on 22 February.  Thereafter, the delay has been caused, quite clearly, by the Plaintiff trying to raise money in order to bring this appeal.  One has a great deal of sympathy for the Plaintiff, no doubt, and one always has sympathy for those who do not have sufficient funds to finance their own litigation if they have meritorious litigation.

8.  However, that then brings the Court to the question of the chances of the appeal succeeding.  In my view, I do not consider that this appeal has such chances of success on appeal that leave to appeal out of time should be given.  In that respect, I apply a low standard for the chances of success.  Having considered the judgment of the judge below, there is, at any rate, at the moment, no reasonable prospect of disturbing any of his findings of fact.  Although it was suggested that a transcript may have already been obtained, it transpired that one has not been obtained.  In any event, given the care with which the judge approached the questions of fact, I cannot see very much likelihood that any of his conclusions of fact could be disturbed.

9.  In those circumstances, his ultimate conclusion that the burden had not shifted to the Defendant because the Plaintiff simply had not got his case off the ground seems to me to be, in all likelihood, unimpeachable.

10.  I simply say at this stage that I consider that had I considered that there were merits in the appeal, I would have given leave to appeal but, on the other side of the coin, I think it is a kindness, in a way, to the Plaintiff to refuse leave to appeal because it would only be running up costs which he would have to bear, in the circumstances, himself, or at least from funds which he raised.

11.  In those circumstances, I do not consider that it would be right to give leave to appeal.  I therefore refuse leave.