Au Juen v. Kiu Fung Investment Co Ltd

CACV000041/1972

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CIVIL APPEAL NO. 41 OF 1972

(From Workmen's Compensation Case No. 15 of 1971)

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Coram: Blair-Kerr, Huggins and McMullin, JJ.

Date of Judgment: 19th February, 1973.

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JUDGMENT

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Huggins, J.:

1. This is an appeal against a judgment of a District Judge dismissing a claim for Workmen's Compensation. The claim came on for hearing on 1st June 1971 and evidence was called, consisting of only one witness. That was a doctor who had examined the Deceased and came to the conclusion that death was due to "natural disease". The notes before us say that it was due to cerebral haemorrhage due to rupture of a blood vessel "in the hair". That is manifestly wrong. There are many other errors in the notes which are before us and I cannot but complain once more of the very poor quality of the papers which have been placed before us. The person who copied these notes has obviously not understood a word of what he was writing and the person who certified the copy has manifestly not done what he was supposed to do. I would go so far as to say that the certificate is dishonest, because there is one manifest gap in the notes where presumably the typist was unable to read what was written. Though he might be unable to read it he should have checked with the judge, and the person who certified the copy should not have certified it until that had been done. The rupture was, of course, a blood vessel "in the brain". The witness said it was unlikely that an accident such as a fall could have caused this haemorrhage and he repeated that it was caused by disease.

2. That was on 1st June 1971. According to the papers which are before us (and again they are in error) there was no further action in the matter until 1st May 1972. The judge's notes (which I have had to examine) show that there were in fact two other hearings in the mean time, although nothing effective transpired at those hearings. It thus will be seen that after eleven months the matter was reopened. Another doctor was then called. He is said to have produced "two reports", only one of which is before the court. He was unable to say more than it was a possibility either way that a bruise found on the skull might have come before or after the haemorrhage. There was a third doctor, who said "it was possible high blood pressure could have caused the accident".

3. There was no evidence whatsoever at any hearing as to how the accident occurred, or at what place or what time the Deceased died, or what work he had been doing at or before the time of his death.

4. The learned judge then dismissed the application. He gave no judgment but, when he was asked subsequently, for the purposes of this appeal, for a copy of the judgment which he had not delivered, he gave a note which is now before us, and he says at the end of it that "the application was to all intents and purposes, withdrawn". What I think the learned judge meant by that was that "to all intents and purposes the suit was not proceeded with". There was no sufficient evidence, and it was admitted by the solicitor who appeared on behalf of the Claimant that there was no sufficient evidence, to support the claim. It has been suggested before us that the learned judge did not discharge his duty and that it was his duty to call evidence if he thought that there was not sufficient material upon which he could base his decision. Counsel who appears for the Appellant before us cites s.18(2) of the Workmen's Compensation Ordinance. In my view that does not create the duty which it is suggested was upon the learned judge and no such duty is upon any judge as an inherent part of his function. A judge under our law is a referee. It is his function to listen to the evidence which is placed before him. He is given power in many cases to call evidence if he thinks fit, but in a case such as this it was manifestly not his duty to instruct the solicitor for the Claimant how the matter should be presented to the court and to call evidence which it was the duty of the solicitor to produce.

5. In my view the learned judge had no possible alternative to doing what he did, namely to dismiss the application on the ground that there was no evidence to show that the death resulted from an accident arising in the course of the employment.

6. I think this appeal must be dismissed.

19th February, 1973.

Representation: