Tang Kwok Ming v. Daxprofit Scaffolding Ltd.

CACV000005/1998

Civil Appeal No. 5 of 1998

HEADNOTE

Restatement of approach of Court of Appeal to appeals on fact.

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1998, No. 5
(Civil)

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Coram: Hon Nazareth, V-P, Godfrey and Rogers, JJ.A. in Court

Date of Hearing: 10 December 1998

Date of Judgment: 10 December 1998

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J U D G M E N T

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Nazareth V-P:

1. This is an appeal by the appellant ("the employee") against the judgment of His Honour Judge Muttrie dismissing his application for employee's compensation. The facts are relatively straightforward.

2. The appellant was employed by the respondent ("the employer") as a scaffolder. He had served his apprenticeship with a Mr Chan Ping Kwong ("Mr Chan"), who was one of the owners of the respondent company and was himself a skilled scaffolder. The employee had a seizure on 1 January 1995 while taking morning tea with Mr Chan, and some of his fellow workers. He lost consciousness and was taken to hospital where he recovered. He was found to have a blood clot in his brain. Subsequent medical advice was that he should no longer work as a scaffolder because of the possibility of his suffering another seizure. So he was not able to follow his previous occupation as a scaffolder. That was what gave rise to his claim for employee's compensation.

3. He claimed to have suffered an accident arising out of and in the course of his employment on 31 December 1994, the day previous to his seizure. He claimed this accident was the cause of the blood clot

4. The respondent did not admit that any such accident occurred. Its stance was to dispute it. Medical experts on both sides agreed that the blood clot caused his sick leave and the continuing disability. There was however a dispute as to the cause of the blood clot.

5. The judge identified three matters he had to consider. The first was whether there had been an accident and whether the employee had fallen as he claimed. The second was an allegation that the applicant was seen working in March 1995 which, of course, would tend to contradict his claim that he was unable to work as a scaffolder. The third was the matter of the medical evidence.

6. In addressing the first matter, the judge set out the employee's account of the accident. What he had said was that he was working on the site in question on scaffolding and he went to collect some materials from the employer's vehicle. It had been drizzling. The bamboo poles and the back of the vehicle appeared to have been wet. He slipped off the back of the vehicle and fell on to the ground, but on the way down his head struck a pole. He did not say clearly which part of his head was struck by the pole. He pointed to the left side of the back of his head. He said he felt giddy and saw dark things drifting around. He squatted for a while. He said that Mr Chan came up and asked him what he was doing. He said he was all right. He then got up, took the materials to where they were needed. But he did not mention the accident to anyone because no one had seen it and because he was all right then. He went on working and in fact spent the night at Mr Chan's home because his own home was being redecorated.

7. The employee called some of his co-workers to give evidence but as the judge observed none of them had seen the accident and they did not contribute much to the point.

8. The judge at that point paused to examine the second matter. His understandable reason was that whether or not the applicant was seen working in March 1995 which he denied, would affect his credibility which was crucial in resolving the question of whether the accident had occurred.

9. This second matter arose from the fact that Mr Chan had received a report as a result of which he asked his girl friend, Miss Au, to take a taxi to Aberdeen and get some photographs of the applicant if he was working there. Her evidence was that she bought a camera, got the shop assistant to load it and set the date. She then went to the site in site in Aberdeen and there, her evidence was, she saw the employee working as a scaffolder. She took some pictures which were produced in evidence.

10. The judge then turned to address the medical evidence. The employee had been seen by a number of doctors who were called. A Dr King who saw him when he was first taken to the Kwong Wah Hospital after having his seizure. His own doctor, Dr Lam, who had attended to him for a long time before and after mainly for headaches and dizziness. Dr Kwok Shing Kong, a consultant neurosurgeon at the Kwong Wah Hospital. Dr Robert Ho who examined him in March 1996. The respondent's medical expert, Dr Edmund Cheung, was also called.

11. For the purposes of the appeal, I need be concerned only with the evidence of Dr Kwok and Dr Cheung who gave slightly divergent opinions as to whether the blood clot that it was not disputed was found, was caused by trauma or caused spontaneously.

12. The judge then turned to evaluate all the evidence. He noted that there were no witnesses to the fall. He approached the matter as one of credibility. He identified certain points which he saw as difficulties in accepting the credibility of the employee. He then went on to address the evidence of Miss Au. What he said about her evidence was this:

"Having heard Miss AU I have no doubt that she saw the Applicant working on the scaffold in Aberdeen on a date in March. This of itself is perhaps not very important to the case as a whole and certainly not as to quantum. If he had agreed that he had, without fully understanding the medical advice given to him, or even in the teeth of that medical advice, taken on a day's casual labour, one could hardly have faulted him. What would stop him working as a scaffolder is not any inability to do it, post-accident, but the risk of epilepsy while he is doing it, and if he took that risk on one day it might lose him his sick pay for that day but I cannot see why it should do more. But the point is that the Applicant denies it, and I cannot accept that that denial is the truth; and this must weigh against his credibility on the issue of whether the accident happened at all."

The judge then turned to the medical history and having gone through that history, not dealing with the effect of the experts' opinion, he went on to say:

"There is nothing in the factual evidence to support the Applicant's evidence of the accident, but there is ample evidence for the Respondent to suggest that the Applicant could not have met with the accident as he says. Further, when the Applicant first said on 1 January that he had had the accident the day before Mr Chan, according to his own evidence and that of AW4 [Miss Wong], was surprised to hear it. That shows consistency on the part of Mr Chan and suggests that his evidence that the Applicant never came down from the scaffold is to be believed.

On any sensible reckoning, it would be difficult on this evidence alone, and leaving aside the medical evidence, for any court to be satisfied that the Applicant met with any accident any accident on 31 December."

He then turned to the divergent opinions of Dr Cheung and Dr Kwok. I will return to that matter in the context of Mr Kwok's submissions. But he concluded in these words:

"On the whole it seems to me that Dr Cheung's opinion is to be preferred. But even if I am wrong on that, it seems to me that in the absence of clear agreement that the cause of the clot could only have been trauma, the medical evidence would not assist and I would in any event be driven back to the factual evidence."

He gave his conclusion on the application in the following way:

"I have indicated that it would be difficult on this evidence alone for any court to be satisfied that the Applicant met with any accident on 31 December 1994. I am not so satisfied, on the balance of probabilities."

Accordingly he dismissed the applicant's application.

13. Mr Kwok pursues the numerous points in the amended notice of appeal in the following way. He submits, first of all, that the judge was wrong in accepting the evidence of Miss Au and attaching considerable weight to it. His ground is nothing more or less than this, that the photographs are not clear. They indicate, he submits, that Miss Au could not have been in a position to have seen the employee working on the scaffolding clearly. The weakness in that submission is that the judge primarily relied on the evidence of Miss Au and not on the photographs. He observed that the photographs were not very clear. Moreover Mr Kwok's point that Miss Au was herself not in a position to see, does not follow from an examination of the photographs. It does not follow that Miss Au remained throughout in the position that she took the photographs. There is, therefore, nothing in this point.

14. Mr Kwok's second point is that the judge was wrong in using his commonsense, as it were by himself giving evidence on medical matters in resolving the conflict between Dr Kwok's experts evidence and that of Dr Cheung. This turns largely on the following passage in the judgment:

"Dr Kwok was quite sure that the clot was caused by trauma. Dr Cheung's view was that it could be caused by trauma or spontaneous but he favoured the latter cause because there was no external injury and the clot was quite deep below the brain surface.

Dr Kwok had an explanation for this. He said that the area of oedema or contusion was near to a sharp skull bone at the surface of the brain. It is always difficult for a judge to disagree with, or even fail to accept what a medical expert says; but this opinion does not seem to accord with ordinary experience. Everyone knows that if one suffers a blow to the surface of the body sufficient to cause a haematoma, the haematoma appears at the point of impact and the swelling surrounds it. It is difficult to see how, if the sharp edges of bone injured the soft brain, as Dr Kwok said it could, the clot does not appear adjacent to the sharp edge.

It also has to be noted that Dr Kwok said that a 'mild to moderate' blow would be needed to cause the clot. It is well known that the scalp is easily damaged because it is a thin coating of soft tissue over the skull. It is easily lacerated or bruised by a blow. It is difficult to see how, if there was a mild to moderate blow, it would not have caused at least some bruising with concomitant swelling or tenderness, which would have been found on examination."

I have already stated the words in which the judge recorded his conclusion.

15. It is not without significance that when Dr Cheung gave his opinion in evidence, he gave a specific reason for the view he expressed in the following answer to counsel's question:

"I have to say that it is possible for it being spontaneous haemorrhage or bleeding as a result of injury, possible for both, but I would favour this being a spontaneous haemorrhage because from the film that shows the blood clot, the clot is some distance, say more than 1 inch, from the surface of the brain and this is unusual in brain injury bleeding."

16. Dr Kwok also had his reasons. He mentioned them and his came from a clinical examination. Mr Kwok makes the point that it was a clinical examination of a rather longer duration than Dr Cheung's somewhat shorter examination. That seems to me to be nothing to the point. Dr Cheung gave his reasons for his opinion and so did Dr Kwok. I can see no fault in the judge deciding to prefer Dr Cheung's evidence and opinion, as he was entitled to, in preference to that of Dr Kwok.

17. As to the judge's mention of what he would have expected to see and his view and opinion of whether the scalp is easily damaged, perhaps it was unwise of him to speak of his own experience and knowledge and to put his reasons in that way but, as I see it, they in no way derogate from the judge's preference for Dr Cheung's view and his entitlement to come to that view. I see no reason to fault his preference for Dr Cheung's opinion which, as I have said earlier, was based on a very specific reason which nothing in the evidence faults.

18. The third point that Mr Kwok made was that it was never the employer's case that the accident had never occurred. What the employer did was put the employee to strict proof and it is plain from the way the case was conducted, that they did not admit the occurrence of the accident. On the contrary, they disputed it.

19. Mr Kwok also relies on the notice the employer gave of the accident which all employers are required to give under relevant legislation. This notice by the employer dated 3 January 1995 records in the appropriate space for a description of how the accident happened, this entry "I/P slipped and hit his head while boarding the goods vehicle in the course of work" and it also records the date of the accident as 31 December 1994. That, Mr Kwok says, is an admission that the accident occurred. It is nothing of the sort. The submission ignores the evidence of Mr Chan who said that when he went to see the employee in the hospital after he had recovered consciousness, he learnt for the first time of the accident. He was surprised. But that was the employee told him and he felt he had to put it down. In those circumstances it is clearly not an admission. Again, I find nothing in this point.

20. A subsidiary point Mr Kwok made in this context related to a passage in the judgment to which I have already referred. This was the following:

"There is nothing in the factual evidence to support the Applicant's evidence of the accident but there is ample evidence for the Respondent to suggest that the Applicant could not have met with the accident as he says."

Mr Kwok's submission is, first of all, that this statement is plainly wrong because there is the medical evidence that is the evidence of the accident. However, that seems to me to misconstrue this passage. It seems to me that the judge was here addressing evidence other than the applicant's, and did not have in mind the expert evidence which was opinion evidence. In any case, if I am wrong in that view, the judge plainly gave careful consideration to Dr Kwok's evidence to the contrary. No prejudice could have been suffered by the employee in that respect.

21. At the end of the day, it can be seen that all the grounds are concerned with findings of fact. To succeed on fact, the employee would have to cross the very high threshold that applies to challenges of fact that an appellate tribunal has to meet before findings of fact can be set aside. There is no dispute about that. Both sides refer to paragraph 15/1/141 in the Supreme Court Practice 1999. I cannot see any good reason for burdening this judgment with its commonly cited contents. There is plainly no good reason to interfere with any of the findings of fact that have been challenged before us. I would have no hesitation in dismissing the appeal.

Godfrey, J.A.:

22. I agree; but I propose to add some observations on my own to those of my Lord, the Vice-President concerning appeals on fact.

23. This appeal demonstrates the need for a re-statement of the function of the Court of Appeal in cases of this nature.

24. The approach of an appellate court to appeals on fact is well-established. An appeal to this court is by way of re-hearing. Accordingly, it is the duty of this court to re-consider all the materials before the judge, to make up its own mind, not disregarding the judgment below but carefully weighing and considering it, not shrinking from overruling it, if on full consideration, it comes to the conclusion that the trial judge's finding was wrong.

25. But that does not mean that this court will re-try the case. The re-hearing is a re-hearing on the papers. This court will not usurp the function of the trial judge, i.e. to find the facts. It will certainly not disturb his findings of primary fact where these are based on the credibility of the witnesses or the preference of the evidence of one witness for that of another (although of course it may be willing to disturb inferences of fact drawn from the primary facts, because an appellate court is in as good a position as the trial judge to draw such inferences).

26. It is important for counsel and solicitors (and for the legal aid authorities) to remember the very limited extent to which this court will interfere in a case in which the appellant seeks to dispute the judge's findings of fact. If it is necessary to disturb an adverse finding of primary fact, the appellant has to demonstrate either (1) that there is no evidence to support it; or (2) that it is contrary to documentary or other incontrovertible evidence which the judge overlooked. It is not enough to show there is little evidence to support the judge's finding, or that it was "contrary to the weight of the evidence". The weight of the evidence is a matter for the trial judge. It does not matter how many witnesses say one thing, and how few say the contrary. The judge is perfectly entitled to prefer the evidence of the few to that of the many.

27. The important consideration for an appellant who seeks to challenge the judge's findings of fact is the judgment itself. It is for the appellant to show why he says the judge was wrong. The present case is another example of a practice, all too common in Hong Kong, of trying to pick holes in the judgment, and treating these as grounds of appeal. There is simply no point in setting out in 20 numbered paragraphs (as here) every conceivable error of which the appellant accuses the judge.

28. Members of this court are not impressed by being told that "the learned judge" misdirected himself, or "the learned judge" misunderstood the evidence, or "the learned judge's" findings were unsupported by any evidence, or were "against the weight of the evidence", or "the learned judge" misunderstood the authorities, or "the learned judge" wrongly preferred the respondent's submissions to those of the appellant.

29. The reaction of members of this court to that sort of thing is to say to themselves, "Well, if the judge really made all those errors, he cannot be so learned after all." There is simply no point in trawling through a judgment in order to find any statement of fact which can possibly be controverted. It is essential for the appellant to identify concisely and precisely exactly what went wrong with the judgment. Only if that is done can this court's business be sensibly and efficiently dispatched.

30. In his judgment, my Lord, the Vice-President, has performed this court's duty indicated above, to re-consider all the materials before the judge. Having done so also for myself, not disregarding the judgment below, but carefully weighing and considering it, and having concluded that it cannot be faulted, I too would dismiss this appeal.

Rogers, J.A.:

31. I agree.

32. I would only add that this case is far from one where I would say merely that I see nothing which would warrant the conclusion of the Judge's decision as to facts should be interfered with. The passages in the transcript, to which Mr. Bharwaney has drawn our attention in his skeleton argument, show, very clearly, that the Judge below approached this case, with an open mind, not to say with a healthy scepticism as to the respondent's case. In my view, his conclusion must be affirmed.

Nazareth, V.-P.:

33. The appeal is accordingly dismissed.

Representation:

Mr Tim Kwok (DLA) for the Appellant

Mr Mohan Bharwaney (M/s Hastings & Co) for the Respondent