Read the full judgment text of CACV 177/2015 on BabelCite. This Court of Appeal judgment was delivered on 21 June 2016 before Lam VP, Kwan JA and G Lam J.
Civil appeal – personal injuries – industrial accident – appeal against findings of fact and credibility – whether trial judge made palpable errors in rejecting Plaintiff's evidence that tailboard tilted – whether res ipsa loquitur applies where neither party's version of accident proved – whether trial judge erred in exercise of discretion on costs – Plaintiff employed by Defendant as driver-cum-transportation worker injured while unloading goods from medium-sized vehicle on 17 March 2009 – Plaintiff alleged tailboard suddenly tilted causing hand pallet truck to skid and left foot to be trapped – sustained right lateral tibial plateau fracture and lateral meniscal tear – Defendant alleged no tilting and that Plaintiff used improper method of moving goods – trial before Deputy District Judge lasted 9 days with claim dismissed – first issue whether trial judge erred in rejecting Plaintiff's evidence on two grounds namely Mr Sham did not see any tilting and Plaintiff did not inform Defendant of tilting after accident – held no palpable error warranting appellate intervention – assessment of credibility is primary fact-finding and appellate court will not lightly interfere – second issue whether res ipsa loquitur should be applied once defence case of improper method not established – held res ipsa loquitur has no proper basis – judge did not rule out improper method but found neither version proved on balance of probability – evidence of Mr Lai truck mechanic properly excluded as unadmitted expert opinion outside Section 58(2) Evidence Ordinance – evidence of Mr Lai was opinion evidence requiring expert directions under Part IV of Order 38 RHC – Plaintiff failed to apply for expert directions – third issue whether trial judge erred in ordering Plaintiff to pay Defendant's costs despite Defendant failing on three issues – held costs is matter of discretion and appellate court will only interfere if wrong in principle or plainly wrong – Re Elgindata Ltd (No 2) does not establish mandatory deprivation of costs when successful party fails on some issues – judge considered both factors in favour and against deprivation and concluded 'against' factors outweighed 'for' factors – appeal on liability dismissed – appeal on costs dismissed – Plaintiff to pay Defendant's costs of appeal including costs of application for leave to appeal – Plaintiff's own costs to be taxed according to Legal Aid Regulations.
Legal issues: Whether the trial judge made palpable errors in rejecting the Plaintiff's evidence on the cause of the accident · Whether res ipsa loquitur should be applied to infer the Defendant's liability · Whether the trial judge erred in her exercise of discretion on costs
Outcome: Appeal on both liability and costs dismissed. The Plaintiff's claim remains dismissed and the order that the Plaintiff pay the Defendant's costs of the action stands.
Cites 10 cases