WAH KEE SEA LAND TRANSPORTATION LTD. v. LAU WING

IN THE COURT OF APPEAL

1996, No. 196
(Civil)

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J U D G M E N T

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Liu, J.A.:

1. On 19 June 1993, the respondent attended the Accident and Emergency Department, Caritas Medical Centre, complaining of back pain. Bruises were observed on his back. The respondent was then in the employ of the appellant company. He claimed that while he was at work a forklift truck struck him from behind on 17 June 1993. After the accident, he was refused sick leave. He was told to take a rest. The next day, so the respondent testified, he was instructed to carry heavy loads. In the 4th round, the respondent allegedly sprained his back with a unusually heavy box containing metal parts. In his application for compensation, the respondent was awarded by the judge, Her Honour Judge Chan, over $400,000. From that award, the employer company appeals.

2. Before us counsel for the appellant company confines herself to Grounds 1 to 6 in the Notice of Appeal. The appellant did not seriously contest before the judge that the respondent did sustain injury from an accident. But the respondent was put to strict proof that there was a forklift accident and that it occurred within 24 months prior to the respondent's application for compensation made on 29 May 1995, that is to say, the respondent was put to strict proof that the alleged forklift accident occurred after 29 May 1993. As to the back sprain accident, the respondent was likewise put to strict proof that it did occur on 18 June 1993 and that it in fact caused or contributed to the respondent's injury. That is in fact Ground 6 in the Notice of Appeal. It reads:

"The learned Judge erred in finding as a fact that the [back sprain] accident alleged to have occurred on the 18 June 1993 caused the Respondent's injury."

3. There is no appeal against quantum.

4. It is unnecessary for me to deal specifically with the six grounds. In essence, it is argued that the judge was wrong in finding the two accidents as occurring in June 1993. Counsel further challenges the judge's acceptance and evaluation of documentary and oral evidence. These challenges were with respect to medical records, doctors' evidence, work records, and dates of the alleged accidents as originally pleaded in the application for compensation. The remaining complaint of the appellant company is that the judge had not given the appellant company a fair trial because of her extensive questioning of witnesses. Counsel is also critical of the conduct of the judge who is said to have been "generally partial".

5. This is, in the main, an appeal against the judge's findings of fact. Given the advantages of a seeing judge, unless it can be shown that the trial judge was plainly wrong, we should not interfere.

Doctors' Evidence and Medical Records

6. On 19 June 1993 and 17 February 1994, the respondent attended the Accident and Emergency Department of Caritas Medical Centre. On the latter date, Dr Fernando provided him with a referral letter for treatment at the Tuen Mun Hospital Orthopedic Unit. In between 19 June 1993 and 17 February 1994, the respondent was seen by Dr Ho at the Outpatient Department of the Caritas Medical Centre on 29 June 1993. On 20 July 1993, he was seen by Dr Lai in the Orthopedic Unit of the same centre. The appellant company relied on the evidence of Dr Ho and Dr Lai as well as that of Dr Chiang. The respondent placed before the judge the evidence of Dr Fernando, Dr Lee and Dr Chung. The respondent gave evidence himself and called his co-worker Ng Kwai-sum who claimed to have witnessed the accident on 17 June 1993. The appellant called Mr Kwok who was the leader of the lorry team and Miss Chan, the company's secretary. No other officer or employee of the appellant company called.

7. Dr Ho saw the respondent on 29 June 1993. He made an entry in the medical record, which included this complaint of the respondent: "Being hit by truck and a sprain injury 3 months ago. There was another twisting injury on 19 June 1993." Dr Ho amended the date to 19 June 1993 from 18 June 1993. He told the court that the respondent could not recollect the date, either 18 or 19. He observed bruises all over his back in this examination on 29 June 1993. In my view, it was open to the judge on the bruises the doctor observed on 29 June 1993, to place the date of the forklift accident closer in time than some 3 months from the respondent's first visit to the Accident and Emergency Department on 19 June 1993.

8. Dr Lai also made an entry in his medical record when he saw the respondent on 20 July 1993. That record included the following "History of Traffic Accident back pain in March 1993 and later pain subsided." Dr Lai explained that he in fact had no independent recollection of the case. He did not exclude the possibility that he had obtained the information from the patient's record.

9. Dr Ho, Dr Lai and other doctors serving an enormous public demand could not really be expected to be able to retain any independent recollection of the entries they made. More probably than not, such entries would have been conveniently taken from the patient's record, if available. If indeed precious time had been wasted on obtaining direct information from the respondent himself, the respondent was, as found at the trial, less than precise on dates. The judge noted all this.

10. The other doctors called were, first of all, Dr Fernando. He did not mention any traffic accident in his referral letter, but he told the court that he noticed the bruises. Dr Lee told the court that the conditions of the respondent were "consistent and commensurate with" the two accidents described. Dr Yung recorded the accident as one which happened in June 1993. A Specialist Clinic Referral Form dated 29 June 1993, exhibit A2, was also produced. It contained the entry: "Sprain back on 19 June 1993 now still pain and difficulty in walking". The maker of this form was not in attendance. The judge had regard to his absence. These records I have just referred to were of course made later, but the judge was alive to these relevant circumstances.

11. Having been refused sick leave on the date of the alleged accident on 17 June 1993, the respondent was instructed to take a rest, which he did - a long rest. In the evening, he consulted a bone-setter. He was criticised at the trial for not producing any receipt of the bone-setter's fees. The trial judge accepted his evidence of consultation with a bone-setter in the same evening. Together with the bruises, the bone-setter's visit and the respondent's attendance at the Accident and Emergency Department of Caritas Medical Centre for treatment must be also good evidence of a recent injury. And the judge relied on it. The judge also explained away the earlier entries in the medical records.

Work Records and Alleged Accident Dates

12. Work records were produced. Mr Kwok-yau, the lorry team leader, gave evidence for the appellant company. These work records comprised transportation time slots. On the face of what were produced, the respondent was shown to be driving a vehicle almost the whole day, away from the warehouse of the appellant company on 17 June 1993. Mr Kwok-yau also testified that he was accompanying the respondent the whole time that day. It was submitted that it was impossible for the respondent to have met with the forklift accident on 17 June 1993 inside the appellant's warehouse. But on perusing the records of the appellant in conjunction with the evidence on Mr Kwok-yau, the judge concluded that there were sufficient brief periods to allow the respondent to fall victim of the forklift accident inside the warehouse on 17 June 1993. The respondent told the court that after he had been refused sick leave, he took a long rest as instructed. The judge was apparently troubled by the evidence of this long rest as against the evidence of the so-called brief periods on that day, in which the forklift accident could have occurred. Perhaps, that accounted for the judge's alternative findings that "the forklift accident could have happened on the 17th June 1993 as stated by the [respondent] in evidence or it could have happened one or two days earlier in mid June as stated by Mr Ng Kwai-sum AW4". The judge rejected the evidence of Kwok-yau for the six matters set out at pages 13 and 14 of his judgment (pages 26 & 27 of Bundle C). Miss Chan, the company secretary, was only able to say that she had not been told of the forklift accident. The applicant himself maintained, of course, that the forklift accident did occur on 17 July 1993. The judge accepted his evidence. The eye-witness, a co-worker Mr Ng Kwai-sum (AW4) was called by the respondent. He testified that the forklift accident occurred a day or two before 17 July 1993. Mr Ng's court evidence was inconsistent with part of his witness statement. The judge had not overlooked these discrepancies. In the final analysis, he had no difficulty in accepting and relying on the evidence of Mr Ng. For the judge's reasoning I am about to set out, she did not consider the entries in the earlier medical records as accurate. Hence the judge made different findings.

13. The applicant himself was described by the judge to be a man who was "not particular about dates". He was not educated and was unable to provide other details, for instance, whether or not he had a substitute on the day of the accident. He told the doctors that he could not remember when the forklift accident happened. Although he gave vivid and clear evidence of it, his performance before the Legal Aid Department officers was no better. He told the court that he could only manage to recall that the forklift accident occurred a day before the back sprain accident after the Legal Aid officials had severely admonished him and after checking with his own documents.

14. Dr Lee explained to the court the busy schedule of doctors providing public medical service. There was scarcely time enough for these doctors to consult their patients. In such circumstances and with a man such as the respondent, it is easy to understand why errors on details were not infrequently made. The judge did not consider damaging entries in the earlier medical reports as conclusive. She clearly rejected the suggestion that the story told by the respondent was a concocted one.

The Amended Dates in the Employee's Compensation Application Form

15. The pleaded dates in the application formed another subject-matter of criticism. In the original application, the dates for the forklift accident and the back sprain accident were given as 10 June 1993 and 19 June 1993 respectively. Later, they were amended to 17 June and 18 June. In her judgment, the judge drew attention to the personal inadequacies of the respondent. It must have been trying for the Legal Aid Department officials. Amendments of formal applications are common place. The judge was not impressed by the criticism levelled at the initial incorrect dates given in the application. I share her view.

Evaluation of Witnesses

16. Mr Cheng Ching-yu who was allegedly responsible for the forklift accident was not called as a witness. He was the forklift operator. At the time of the trial he was still with the appellant company. After the forklift accident, the respondent told the court that he reported it to Lee Shun and thereafter was personally refused sick leave by Mr Fan Wing Shan. Fan and Lee, both in the Personnel Department, were said to have left the appellant company. But no evidence was led as to what reasonable efforts had been made to secure their attendance or procure their evidence. On the other hand, the inadequacies of the respondent and his co-worker Mr Ng Kwai-sum AW4, the witness to the accident, were fully exploited. The task of the trial judge was made doubly uncomfortable. She considered the evidence of the witnesses in depth and came to what I regard as well-balanced conclusions on various aspects as well as on their veracity and reliability. There was an obvious need for the judge to ask questions particularly from the medical witnesses in overcoming the difficulties for which the appellant company must also be held responsible.

Fair Trail; Alleged Bias

17. It is further complained that the judge displayed partiality. No less than five examples were given. The rest are said to be of a similar nature. First, it concerned the admission of the Outpatient Department Card. But in the end, that card was admitted into evidence. Secondly, much play was sought to be made of Dr Chiang's answer with respect to the Baker's cyst. But Dr Chiang did manage to give evidence that such a cyst did not arise from trauma. Thirdly, it is complained that the x-ray of wedging was sidelined by the judge and the doctor was driven to draw a diagram. We have not heard counsel say that a diagram would not be of better assistance to the judge than the x-ray plate. Again, I see nothing in this point. Reference is also made to the American Medical Association guide for gauging the degree of impairment. It is complained that unlike Dr Chiang, Dr Lee was spared from having to answer how he arrived at his percentage and on the guide he used. Judges are often more receptive to some witnesses than others. This is very peripheral and cannot be a good ground for complaint, less so for alleged bias. Fifthly, the judge is said to have asked too many questions on the test of pain. Subjective tests and objective tests apparently interested the judge. We have been led through the questions of the court, and I am unable to find any sign of partiality or disruptive intervention from the bench at the trial. Lastly, it is submitted that a marked disparity was shown in the judge's reception of evidence between Mr Kwok and Mr Ng. The judge provided explanations for her rejection of the evidence of Mr Kwok and her acceptance of the evidence of Mr Ng, the eye-witness to the accident. Counsel also suggests that the evidence of Dr Chiang did not receive proper consideration. The judge summarised the evidence of Dr Chiang as saying that the CTMN (CT Myelography) revealed no abnormal findings, but that a prolapse in the region of L 4/5 disc was detected. The judge noted Dr Ho as having given a contrary version. In fact, Dr Chiang's report did not exclude the possibility of the injury as coming from the alleged accidents. For the reasons the judge gave, she accepted the evidence of Dr Ho in preference to that from Dr Chiang. There is nothing in the matters to which our attention has been drawn to allow us to interfere with the judge's preference.

18. It became ill from this former employer to insinuate fraud in the alleged false claim submitted by its former workman when it had itself chosen not to put forward its forklift operator as a witness in the case. It is unfair to suggest that there was any display of partiality at and during the hearing. The judge certainly did not so conduct herself in the proceedings as to deprive the appellant of a fair trial.

19. In my view, the conclusions reached by the judge have not been shown to be wrong. I would dismiss this appeal.

Godfrey, J.A. :

20. The appellant here ("the employer") complains that the judge below ought not to have accepted (as she did) the evidence of the respondent ("the workman") that the workman was the victim of two accidents at work, on different days in the middle of June 1993, as a result of which he suffered quite serious injuries to his back.

21. The employer's case has been presented to us by Miss Winnie Chan, who also appeared for the employer below, and who conducted this appeal with great pertinacity and courage. On behalf of the employer, she takes, in essence, two points. First, the workman's story was a concocted story and that on the evidence before her the judge should so have found; and secondly, that, because of what the employer alleges was her partiality towards the workman, the judge sacrificed the opportunity she would otherwise have had, after seeing and hearing the witnesses, of making a proper assessment of the workman's credibility.

22. As to the first point, the proper approach for this court to take, in a case in which, in effect, the successful party below had been charged with fraud, or (as here) conduct equivalent to fraud, is indicated in the judgement of Cross LJ in Gross v. Lewis Hillman Ltd [1970] Ch. 445, where he says this (at p. 459) :

"A Court of Appeal is not entitled to disturb findings of fact made by the trial judge, which depend to any appreciable extent on the view that he took as to the truthfulness or untruthfulness of a witness whom he has seen and heard, and the Court of Appeal will not do so unless it is completely satisfied that the judge was wrong. It is not enough that it has doubts, even grave doubts, as to the correctness of the judge's finding. It must be convinced that he was wrong."

23. In the present case, the employer put in evidence at the trial medical records which showed that, in relating his complaints to a number of doctors, the workman gave them a number of different versions as to the date of the first alleged accident, and as to the true cause of his injuries. And indeed the workman's own evidence at the trial was less than completely convincing on these matters. I am satisfied that it would therefore have been open to the judge, as Miss Chan submitted, to reject the workman's evidence, and to hold that he had not proved his case so as to entitle him to compensation.

24. But in fact, having seen and heard the workman, the judge accepted his evidence. The judge refused to accept that the first accident never happened. Nothing I have seen has come near to convincing me that the judge was plainly wrong to accept the workman's evidence; and the fact that the judge would or might have been justified in rejecting it is not nearly enough to entitle the employer to succeed in the appeal on this point.

25. As to the second point, Miss Chan has taken us to the transcript of the evidence, which discloses that the judge did put what seems to have been an inordinate number of questions to the employer's medical witness; at any rate, when compared to the number of questions which she put to the workman's medical witnesses. And Miss Chan has suggested that from the start of the trial the judge generally seemed to adopt, towards the workman's witnesses, an attitude more favourable than that which she adopted towards the employer's witnesses. But it is only where it unmistakably appears from the evidence that the judge has not taken proper advantage of his having seen and heard the witnesses that the matter will become at large for an appellate court : see Watt (or Thomas) v. Thomas [1947] AC 484, per Lord Thankerton at pp.487, 488. I am nowhere near satisfied that it so appears here.

26. I would only add this, echoing the words of Dillon LJ in Winter v. Boynton, 1 February 1991, reported in "The Times" newspaper for 6 February 1991, that there appears at present to be what Dillon LJ called "a growth industry" among counsel to endeavour to challenge in the Court of Appeal findings of fact on the credibility of witnesses whom the judge had seen and heard at the trial. Such a course, said Dillon LJ, is to be strongly discouraged. I agree. The sooner counsel come to appreciate this, the better.

27. I, too, would dismiss this appeal.

Nazareth, V.-P.:

28. I agree with my Lords.

29. As to the complaint of partiality on the part of the judge, there is nothing I would wish to add to what has already been said.

30. Miss Winnie Chan's main complaint was against the judge's findings of fact. Any look at the respondent employee's claim, its prosecution and his evidence raises immediate questions about his credibility. These were apparent to the judge and she addressed them. They have been detailed by my Lords. Any appellant seeking to challenge findings of fact made by a trial court, particularly findings of primary facts, which are the significant findings in this case, has a very heavy task indeed, see e.g. the judgment of this Court in Hongkong and Shanghai Banking Corp v Chan Yiu-wah and another [1988] 1 HKLR 457, in which Fuad JA (as he then was) reviewed the authorities.

31. Having carefully considered Miss Chan's oral submission and also having studied her very full written submission, I am far from persuaded that she has crossed the very high threshold applicable. True, she has pointed to a number of unsatisfactory features in the employee's evidence, in particular the shifting and uncertain dates of the two accidents and to his possible failure to have mentioned the earlier accident in his visits to the Caritas Medical Centre, at any rate if the records of that Centre are accurate and comprehensive, which is another matter. But the judge did not overlook those matters. She had to weigh them against the evidence in particular that given by the employee. This she did and she had the benefit of seeing and hearing the witnesses. In those circumstances it is difficult to see how this Court can meet the high threshold necessary to intervene. That threshold has been expressed in a wide range of judgments. I would content myself only with saying that it has not been shown that the judge was plainly wrong in her findings of fact especially when one considers that those findings must have been made on the judge's own assessment of the witnesses and, as I say, the applicant.

32. For those reasons I would also dismiss the appeal. The appeal is accordingly dismissed.