Tamang Shushma v. Pizzaexpress (Hong Kong) Ltd

CAMP 174/2024, [2025] HKCA 803

On Appeal from [2023] HKDC 1328

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 174 OF 2024

(ON AN INTENDED APPEAL FROM DCPI No. 2488 OF 2021)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.On 22 December 2016, the plaintiff, an employee of the defendant, was involved in an accident at her workplace in which she slipped and fell and sustained injuries to her back.  In January 2019 the plaintiff commenced an action in the High Court against the defendant for damages for personal injuries.  The defendant disputed both liability and quantum.  The case was transferred to the District Court in July 2021.

2.After a 6-day trial in March 2023 (in addition to 2 days of deposition of a witness before an examiner in November 2021), on 22 September 2023 His Honour Judge Andrew Li entered judgment for HK$1,741,764.28 plus interest and costs in favour of the plaintiff (“Judgment”).[1] The defendant’s application for leave to appeal was refused by the judge in his decision of 23 August 2024 (“Leave Decision”).[2]  The defendant has renewed its application for leave to appeal in this court.

3.Pursuant to section 63A(2) of the District Court Ordinance (Cap 336), leave to appeal shall not be granted unless the court is satisfied that the appeal has a reasonable prospect of success or there is some other reason in the interests of justice why the appeal should be heard.

4.We consider it appropriate to determine the defendant’s application based on the written materials only pursuant to Order 59 rule 2A(5) of the Rules of the High Court (Cap 4A).  This is our judgment on the defendant’s renewed application for leave to appeal.

5.There is incidentally a summons dated 11 November 2024 issued by the plaintiff for extension of time to lodge her written statement opposing leave to appeal.  The written statement is in substance only 3 pages long and simply cross-refers to the plaintiff’s previous written submissions lodged before the judge to resist leave to appeal, and is therefore of little additional significance.  We shall deal with this time summons at the end.

Background

6.The relevant background matters are set out in [2] to [18] of the Judgment.  The plaintiff claimed she sustained personal injuries while retrieving a container of pizza dough from the upper compartment of a freezer in the cleaning room of the defendant’s restaurant in Yuen Long.  She alleged that the area in front of the freezer was narrow and cluttered with large trays of defrosted dough and other items, the ceramic tiled floor was wet and slippery, and a drainage cover, which was movable and therefore defective by design, was located near the freezer.  The accident occurred when she struggled to pull out the dough container which was obstructed or stuck by frost inside the freezer.  While exerting all her strength, her right foot slipped on a wet patch of the floor and the drainage cover, resulting in back injury.

7.The defendant denied any breach of duty, and asserted that the accident was wholly caused or contributed to by the plaintiff’s negligence.

8.At trial, the plaintiff and two of her former colleagues, called Rai and Thapa, gave evidence for the plaintiff.  The defendant’s witnesses were Au, the deputy manager of the restaurant at the time, and Lee, the loss adjuster engaged by the defendant or its insurers in relation to the accident.  Chan, a supervisor or deputy manager at the restaurant at the time, also gave evidence for the defence by deposition before an examiner in November 2021, as she had to emigrate to a foreign country before the trial.

9.The Judgment is 99 pages long with 69 pages devoted to liability.  To make sense of the discussion below of the proposed grounds of appeal, it is necessary to summarise broadly some of the judge’s findings and conclusions.

10.At [32] to [42] of the Judgment, the judge recorded his views on the credibility of the witnesses. The judge was much impressed by the plaintiff as a witness who had in his view generally given honest, credible and believable evidence, and accepted her evidence in relation to the accident and most parts of her claims.  The judge also considered Rai and Thapa to be sincere, genuine and honest witnesses and accepted their evidence.  The judge found that Au was basically an honest witness who had tried his best to assist the court but the judge also noted that he was still working for the defendant and some of the answers he gave were guarded.  In contrast the judge was not impressed by Lee, the loss adjuster, who he said was the most unhelpful and unbelievable witness in the case.

11.As regards the accident and its cause, the judge on the whole accepted the plaintiff’s case and evidence on the balance of probabilities.  He found that the plaintiff slipped on a patch of water when retrieving a dough container stuck on the sides of the freezer.  In order to regain her balance, the plaintiff stepped back on the drainage cover which was loose and caused her to slip further away, resulting in the injury.  See Judgment, [134].  The judge found inter alia that the defrosting system in the freezer was not functioning properly and frost or ice was allowed to be built up inside the freezer: [102]-[109]; that the floor in the cleaning room was, both generally and at the time of the accident, wet and slippery, due to water from defrosting dough: [110]-[124]; that the drainage covers were defective in that they could move when someone stepped on them: [125]-[134]; that the training provided to the plaintiff was inadequate: [154]-[159]; and that the footwear provided or recommended to the plaintiff and her co-workers, namely, Bristo Clog Crocs, were not suitable or sufficient for the purpose: [160]-[167].  In the result the judge concluded that the defendant had breached its duty of care to the plaintiff by failing to provide a safe system of work, a safe place of work, adequate and safe equipment, and adequate training and supervision: [178]-[187].

12.The judge declined to hold the plaintiff responsible for any contributory negligence, mainly because in his view she had been placed in a situation where she had to work unsafely due to the unsafe system of work and the inadequate or defective equipment and facilities and the inadequate training she received: [188]-[195].

13.On quantum of damages, the judge held that the plaintiff was unable to return to her pre-accident job and that she suffered inter alia post-trial loss of earnings in the estimated sum of $10,021 per month (being the difference between the salary she would have been earning ($25,021) and the notional earnings she actually made ($15,000)).  With a multiplier of 21.46 (the plaintiff being 34 years of age at the time of trial), this translated into a lump sum of $2,580,607.92.  Applying a 50% reduction on account of the plaintiff’s own pre-existing medical condition, the judge awarded $1,290,303.96 under the head of future loss of earnings, which formed the main part of the overall award of damages.

The intended appeal

14.In this renewed application for leave, the defendant has raised the same grounds of appeal as in the leave application made to the judge.  The defendant’s counsel have described these 10 grounds, spanning over 16 pages, as falling into 5 categories:

(1)  Palpable errors in assessing credibility (Ground 1) and disparity of treatment of the evidence of the parties (Ground 2) as manifested in the lack of reasons in preferring the plaintiff’s evidence, which is indicative of errors or inadvertence in the unprincipled taking of “judicial notice” and the unwarranted drawing of adverse inference;

(2)  Errors in the findings pertinent to the 3 essential and inseverable factual elements in the plaintiff’s pleaded case (Grounds 3 to 6), resulting in a finding of liability on an unpleaded case and without proper regard for the reasonable measures or system implemented by the defendant;

(3)  Relying on irrelevant or non-probative matters relating to the anti-slippery footwear (Ground 7) and alleged cluttered floor (Ground 8);

(4)  Failure to find contributory negligence in all the circumstances (Ground 9); and

(5)  Assessing “Future Loss of Earnings” on the basis of expert evidence without having proper regard to the actual facts (Ground 10).

15.It will be seen that much of the argument raised seeks to challenge the judge’s assessment of the evidence and findings of fact.  Before dealing with these grounds in turn, we remind ourselves of the well-established principles governing an appeal against a trial judge’s findings of fact.  The threshold faced by an appellant is high.  The appellate court will only intervene when it is satisfied that the trial judge’s findings are “plainly wrong”.  The court has to be satisfied that the trial judge had fallen into palpable error in his finding of fact, such as where the finding was one (a) which there was no evidence to support; (b) which was based on a misunderstanding of the evidence; or (c) which no reasonable judge could have reached.  See Ting Kwok Keung v Tam Dick Yuen (2002) 5 HKCFAR 336; Yu Pak Kan v Busy Firm Investment Ltd [2023] HKCA 105 at [19]; China Gold Finance Ltd v CIL Holdings Ltd (CACV 11/2015, 27 November 2015) at [11] ‑ [22]; and ZJW v SY (CACV 10/2017, 1 December 2017) at [28] ‑ [34].  As explained in Cheung Yuk Ying Engracia v Macgregor Isabella [2023] HKCA 749, [2023] 2 HKLRD 164 at [28] (footnotes omitted):

“ 28. It is well established that the Court of Appeal is not entitled to interfere with the trial judge’s findings of primary fact unless it is satisfied, even though it does not have the advantages of receiving the evidence at first hand, that the judge’s conclusion on the facts is plainly wrong: Ting Kwok Keung v Tam Dick Yuen (2002) 5 HKCFAR 336, §42. Often, as in the present case, the appellate court examines excerpts of the evidence without ‘a panoramic vista of the evidence as a whole’; it sees ‘a selected series of stills, rather than the complete film’. Even if there is a transcript of the entire trial, the impression left on the judge by witnesses ‘in their demeanour, in their manner, in their hesitation, in their nuance of their expressions, in even the turns of the eyelid … can never be reproduced in the printed page’. The facilities enjoyed by the trial judge go beyond the ability to watch the witnesses’ demeanour. Even reading the transcripts at length cannot give the appellate court the same immersion in the atmosphere of the trial. The judge has observed ‘the drift and conduct of the case’ and ‘has impressed upon him by hearing every word the scope and nature of the evidence in a way that is denied to any Court of appeal’. Accordingly, to succeed in this appeal the plaintiff had to meet the heavy burden of demonstrating that despite these advantages enjoyed by the judge but not by this court, we can nevertheless be satisfied that the conclusion of fact he has reached is not one that is reasonably open to him on the evidence.”.

Grounds 1 and 2

16.Grounds 1 and 2 both relate to the judge’s evaluation of evidence and credibility.  Ground 1 concerns the judge’s assessment of the credibility of the plaintiff and her witnesses regarding the circumstances of the accident.  The central complaint is that the judge failed to exercise “appropriate judicial caution” in approaching their evidence or erred in accepting their evidence despite “material discrepancies” between the plaintiff’s account presented at trial and her prior descriptions of how the injury occurred as recorded in medical consultations, including the ambulance officer’s record.  In particular it is said that the judge erred in readily attributing these discrepancies to the plaintiff’s difficulties with communicating in English.  The defendant says that there is a distinct possibility that the allegations regarding the mechanism of injury, encompassing the three factors (the defective freezer, the wet and slippery floor, and the loose drainage cover), were embellished and formulated as an afterthought with litigation in mind.  It is further submitted that the judge ought to have exercised “caution” as the witness statements of the plaintiff and her witnesses were couched in identical terms in material respects, suggesting a concerted effort to align their testimony with the plaintiff’s case.

17.We do not accept the defendant’s contention.  Assessment of witnesses’ credibility is pre-eminently a matter for the trial judge.  In essence this ground is simply a repetition of the arguments advanced in the defendant’s trial submissions.  The differences between the plaintiff’s accounts given at various occasions were a prime focus at the trial.  The judge was very conscious of them and frequently referred to them in his Judgment: see e.g. [33]-[35], [47]-[65], [214]-[216], [236]-[243]. A whole section was devoted to the plaintiff’s statement taken by the loss adjuster: [135]-[153].  The judge recognised the discrepancies as something prima facie unfavourable to the plaintiff.  Indeed, the judge said at [35]:

“ … I can fully understand why the defendant or its insurer wanted to put the plaintiff to strict proof in this case, particularly in relation to the Accident itself as there was no direct witness to it and some of her earlier versions as recorded by the government doctors and particularly the loss adjuster are not consistent with her pleaded case or the account given in her witness statements filed for the purpose of the present proceedings.”

18.There is nothing to suggest that the judge did not exercise “appropriate judicial caution” in approaching the evidence.  The judge went to great lengths in explaining his decision to accept the plaintiff’s evidence despite the previous inconsistent records.  The judge was entitled to reach his conclusion regarding the plaintiff’s proficiency in English, based on the totality of the evidence — including oral and documentary evidence, as well as his own observations — such as outlined in [40] and [242] of the Judgment.  The judge’s evaluation of the plaintiff’s evidence was a holistic exercise that also took into account other evidence including the evidence of Au and the photographs and video footages.  This proposed ground of appeal is in the ultimate analysis simply a complaint that the judge did not agree with the defendant and reject the plaintiff’s evidence.  As such it has no reasonable prospect of success.

19.Further, the fact that the statements of the plaintiff’s witnesses were in similar terms did not escape the judge’s notice – it was the subject matter of cross-examination by the defendant’s counsel (see e.g. pp 303-305 and 307-308 of the transcript).  The judge was entitled, with his wealth of experience in personal injuries litigation, to place such weight on this as regards the credibility of the witnesses as he considered appropriate in the circumstances of the case.  The defendant’s assertion of a “concerted effort” is not the only inference that could reasonably be drawn.

20.Ground 2 complains that the judge erred in accepting the excuse proffered by the plaintiff and her witnesses regarding their incompetence in English as the explanation for the discrepancies in their various accounts.  In contrast, the judge was unduly critical in his approach in assessing the credibility of the defence witnesses.

21.The contention under this ground that the judge “failed to properly assess the bare assertions” by the plaintiff and Thapa about their English proficiency is itself a bare assertion.  The judge plainly gave careful consideration to the witnesses’ English abilities: see e.g. [36], [39]-[40], [53], [135], [138], [158], [236], [238]-[242] of the Judgment.

22.The defendant also submits that during the trial the judge erroneously relied on his personal experience with doctors in the public sector and opined that doctors in the A & E Department generally did not have a good command of English or could not be expected to accurately record the mechanism of injury report by a patient, and that consequently the defendant was precluded from pursuing this line of cross-examination.

23.We find no merit in this ground.  Having reviewed the transcript (e.g. pp 297 & 610-611), it is clear that the judge was well aware that he could not generalise from his personal experience with some A & E doctors. Nor was the defendant’s leading counsel prevented from carrying on with any cross-examination he thought fit.  We do not consider that the judge’s off the cuff remarks from his personal experience tainted his reasoning.  He accepted the plaintiff’s explanation of the discrepancies between her case and the ambulance and A & E records for the reasons expressed in [241] of the Judgment which are in our view unassailable:

“ Firstly, all the communicators mother tongue were highly likely not English. Secondly, the focus of the questioning is not to get to the root of the circumstances and cause of the Accident but rather as to the immediate treatment and care of the plaintiff. Thirdly, it is evident the plaintiff was in extreme pain on both occasions and this may have distracted the person recording the information inaccurately.”

24.As to the two workers, Rana and Bura, who each gave a statement for the plaintiff, the judge did make a fleeting reference to their statements (Judgment, [54]-[55]) which were presumably not admitted into the evidence as they were not called to testify at trial, but it does not appear to us that they carried any real weight in the overall evaluation and reasoning of the judge.

25.The defendant also contends that the judge was unduly critical as regards the credibility of the defendant’s witnesses.  In relation to Au, we consider that in evaluating his evidence, the judge was entitled to take into account that he was still employed by the defendant rather than a wholly independent witness.  This is not something that had to be expressly put to Au in cross-examination.  In fact the judge found him basically an honest witness.  As to Lee, the judge has clearly set out his reasons for finding Lee unreliable in [137] to [153] of the Judgment, which were not based on any alleged general distrust of such professionals.

26.With regard to the adverse inference drawn against the defendant for failing to call Kang, the manager of the restaurant, who ceased employment on 20 March 2018, the judge provided his reasoning in [43] and [139] to [141] of the Judgment.  Although Miss Kang did not witness the accident, she was in the restaurant on the day and, as the judge thought, would have made initial inquiry as to how it happened.  Also, the judge accepted that the plaintiff’s interview with the loss adjuster took place in Kang’s presence, that conversations between Kang and Lee occurred in Cantonese (which the plaintiff did not understand), and that most of the information during this interview was provided by Kang.  As stated in Mohammad Rafiq v Kin Hong Transportation Co Ltd [2023] HKCA 185 at [21]: “Whether an adverse inference should be drawn in a particular case is a matter of discretion for the trial judge based on all the relevant circumstances of the case including the quality of the other evidence.  The grounds for appellate interference with such a decision are limited.” See also Tjang Siu Thu v Profield Construction Engineering Ltd [2015] 5 HKC 22 at [31]-[36].  The defendant has failed to show any prospect of persuading this court to interfere with the judge’s adverse inference.

Ground 3 (Freezer)

27.Ground 3 complains about the judge’s findings regarding the malfunctioning of the freezer.  The judge accepted the plaintiff’s case that ice or frost accumulated in the freezer and caused a dough container to stick, necessitating extra force exerted by the plaintiff which led to her slipping. Various points are raised under this ground, including:

(1)  The defendant argues that the absence of photographic or video evidence showing any thick ice undermines the plaintiff’s claim, but the judge failed to address this in the Judgment.

(2)  The judge was wrong to take “judicial notice” that even expensive refrigerators can be faulty, suggesting the freezer might have had ice build-up.  This was wrong in principle as the reasoning relied on broad generalization rather than specific evidence about the condition of the particular freezer at the time of the accident.

(3)  Au testified that there were no complaints about the freezer until July 2017, and it was replaced in about August 2017 (for reasons not related to the ice issue).  The defendant says the judge was wrong to reject Au’s evidence on the ground that he might have been concerned to protect his job (at [103]), especially since no such bias was put to Au during cross-examination.

28.The judge addressed the freezer’s condition primarily in section E.1.1, [102] to [109], of the Judgment.  He took into account the plaintiff’s evidence, corroborated by her colleagues Rai and Thapa, who confirmed difficulties in pulling containers from the freezer due to ice build-up.  Although they did not witness the accident, their evidence supported the plaintiff’s description of the freezer’s condition.  The judge was aware there was no direct photographic or video evidence showing thick ice inside the freezer, but the photographs and videos before the court were not taken at the time of the accident.  The judge considered that there was likely frost build-up overnight which mainly affected the plaintiff as she was the first person to arrive in the cleaning room in the morning to prepare the dough for use during the day, but that there would probably be no ice and frost during the day after the overnight frozen containers had been taken out (see [104]-[105]).  Thus the photographic evidence is not inconsistent with the judge’s reasoning.

29.The judge acknowledged the defendant’s claim that the freezer had an automatic defrosting function.  Although the judge shared his personal experience of freezers with counsel during the trial (pp 212-213), there is nothing to suggest that his findings were based on “judicial notice”.  What he concluded was that the automatic defrosting system was not working properly at the time, which was a conclusion open to him on the basis of the oral evidence.  There was apparently also documentary evidence to show that there was accumulation of ice or frost in the freezer in July 2017 (approximately 7 months after the accident).[3]

30.As to Au’s evidence that he did not see any frost build-up, the judge in fact believed him.  The main reason the judge did not rely on that evidence was not Au’s lack of independence as a witness, but that it was likely there was no frost built up when Au pulled the containers out of the freezer during the day, whereas the plaintiff was the first one to do that task in the morning after frost accumulated overnight: see [104]-[105].

31.The judge who received the evidence first-hand was in a far better position than this court to evaluate the evidence and decide what the condition of the freezer was on the balance of probabilities.  The conclusion the judge came to was one that he was entitled to reach on the evidence before him and cannot be said to be plainly wrong.  There is no prospect of success in this ground.

Grounds 4 and 5 (Floor)

32.The judge found that the general condition of the floor in the cleaning room was wet and slippery, and detailed his reasoning in E.1.2 of the Judgment.  Ground 4 complains that the judge unjustifiably generalised from unreliable evidence to form a view of the unsatisfactory state of the floor.

33.The defendant’s criticism that the floor was oily can be quickly disposed of.  It was neither the plaintiff’s case nor the judge’s finding that the floor was oily.

34.The defendant criticises the judge for relying on the photographs and video footages adduced by the plaintiff, saying that the plaintiff did not provide their provenance or exact dates.  As the plaintiff pointed out, however, the authenticity of the photographs and video footages was never disputed by the defendant.  Moreover, quite apart from such evidence, the judge also had the plaintiff’s oral evidence concerning the state of the floor, specifically that water accumulated overnight due to the defrosting dough left there.  There is no reasonable prospect to show that the judge’s finding based on the evidence was plainly wrong.

35.Ground 5 concerns the judge’s assessment as to the basis of liability.  The defendant submits that even if the floor was slightly wet from condensation dripping overnight, this should not automatically be equated with negligence.  The defendant says there was a reasonable cleaning system: daily inspections before closing, a twice-daily cleaning schedule, and a WhatsApp group for reporting issues.  The plaintiff, as kitchen-in-charge, was responsible for managing staff and addressing spillages, with mops readily available.  The defendant says that the judge failed to critically analyse whether this system was adequate.  It is said that the plaintiff was allowed to succeed on an unpleaded case based on wet and slippery floor alone.

36.In our view this ground is misconceived.  The judge did not hold that the presence of some water on the floor would automatically and without more found liability for negligence.  The plaintiff herself accepted “it was normal to have a little water on the floor in a cleaning room” [117].  There could be a distinction between there being a little water on the floor and it being wet and slippery.  In section E.1.4 of the Judgment the judge acknowledged that the defendant had a cleaning routine, which included cleaning the floor before closing each night.  However, he found that water from the overnight defrosting process had accumulated by the morning, creating a slippery condition when the plaintiff started work.  He inferred that no cleaners would have arrived yet at that time and considered, at [180], that the cleaning system was inadequate as it failed to address that hazard.

37.The judge’s central finding on liability was not based on a wet and slippery floor alone.  Instead, the judge found the system of work was unsafe because of (i) the wet and slippery floor, (ii) the loose drainage cover, and (iii) the accumulated ice and frost requiring additional effort in retrieving the trays of dough: see e.g. [178] of the Judgment.  There is no reasonable prospect of success in Grounds 4 and 5.

Ground 6 (Drainage Cover)

38.Ground 6 challenges the judge’s findings on the drainage cover, particularly at [128] where the judge found that the defect lay in the design of the covers, where gaps were left between adjacent panels rendering them loose and moveable when pushed.

39.The defendant’s point that there was no evidence this had caused any previous accidents is inept – this can in no way preclude a finding that the set-up was defective and could potentially cause accidents.  It is also futile for the defendant to argue that the gaps between the covering tiles were necessary, as demonstrated by their replacement with metal grille covers in 2018 which could not slide.

40.The judge was entitled to prefer and accept the plaintiff’s (and her witnesses’) evidence that she would have to step on the drainage cover in carrying out her task in taking out the containers of dough from the freezer: see [133].  The judge had analysed with detailed reasons the issues on the drainage cover at [78], [82] to [86] and [125] to [134] of the Judgment.  The defendant has not shown any reasonably arguable ground for impugning the judge’s finding that the drainage covers formed part of an unsafe system and place of work.

Ground 7 (Anti-slip Footwear)

41.Ground 7 complainsthat the judge imposed too onerous a burden on the defendant in relation to the provision of suitable footwear to the plaintiff.  It is submitted that the defendant had discharged its duty by making available the Bistro Clogs Crocs and that no footwear could prevent all accidents.

42.At [160] to [167] the judge noted that there was no evidence that the Crocs in question were able to prevent a slip, and he found that the shoes were not suitable or sufficient as they were slipper-like, did not fit tightly enough, and did not have good gripping power on the floor.  There is no reasonable ground to impugn the judge’s findings of fact.  As to whether the failure to provide more suitable shoes amounted to negligence, the question does not really arise.  The judge placed no reliance on the issue of shoes in his finding of a defective system of work at [178] to [181].  In his Leave Decision at [40], the judge recounted that the question of shoes was “not a real live issue that had been contested by the parties at trial” and was “a red herring”.  As such, this ground raises no prospect of success on appeal.

Ground 8 (cluttered state of the kitchen)

43.Ground 8 complains that the judge erred in finding that the morning deliveries of goods on the “busy” day had cluttered up the kitchen entrance thereby hindering the plaintiff from calling for help: see [168] to [172] of the Judgment. 

44.It is said that there was no evidence to support this finding.  This is not correct.  The plaintiff’s witness statements did refer to the overcrowding by food stock, trolleys, trays and kitchen utensils and the narrowing of space, and also mentioned that Christmas was a busy time for the restaurant with insufficient manpower.  This was apparently corroborated by Au’s oral evidence.[4]  There were also photographs and video footages taken subsequently that the judge could rely upon in conjunction with other evidence to find the condition of the relevant space on the date of the accident.  There is no basis to disturb the judge’s finding of fact.

Ground 9 (contributory negligence)

45.Ground 9 contends that the judge ought to have found contributory negligence in the range of 40% to 50% on the part of the plaintiff.  In essence, the defendant submits that the retrieval of containers of dough from the freezer was a simple task, and the plaintiff as the kitchen-in-charge could be expected to exercise common sense commensurate with her seniority and should have loosened the container from the freezer by tilting it or moving it sideways first instead of directly pulling it out.

46.The judge’s findings on contributory negligence are in [173] to [177] and [188] to [195] of the Judgment.  The judge reasoned that because of the added difficulties and the working environment and circumstances the plaintiff faced, the task was not one that was simple, uncomplicated and did not require any skill or training.  The judge found that the plaintiff had done as she was told or followed the working practice, and had been placed in an unsafe system of work which led to her injury.  Accordingly, the judge did not find any contributory negligence.

47.It is well established that the apportionment for contributory negligence is a discretionary exercise:Wishing Long Hong v Wong Kit Chun (2001) 4 HKCFAR 289 at [30].  Further, as said in General Cleaning Contractors Ltd v Christmas [1953] AC 180 at 187: “You cannot blame the man for not taking every precaution which prudence would suggest.  It is only too easy to be wise after the event.  He was doing the work in the way which the employers expected him to do it and, if they had taken proper safeguards, the accident would not have happened.”  We do not see any basis to interfere with the judge’s finding on contributory negligence.  There is no reasonable prospect of success in Ground 9.

Ground 10 (Future Loss of Earnings)

48.Ground 10 attacks the judge’s assessment of future loss of earnings as set out in [269] to [271] of the Judgment, where the judge preferred the opinion of the plaintiff’s expert, Dr Leung, that the plaintiff would suffer future loss of earnings because she would be unable to return to her previous work.  The defendant submits that the judge failed to guard against the pitfall arising from his perception of a general lack of impartiality on the part of the defendant’s expert, Dr Chun.

49.Whilst the judge did say during the opening that he had never in his entire career seen Dr Chun write a report for a plaintiff, this should be seen in the context of the entire discussions there (p 44 of the transcript).  There the judge lamented a trend of experts giving polarised opinions and expressed the view that directions on a single joint expert should be more widely used.  He believed it was generally known in the profession that a plaintiff would go to a certain pool of experts whereas a defendant would go to another pool, and mentioned Dr Chun as an example of the latter.  We do not read this as the judge expressing any predisposition to find Dr Chun to lack impartiality.  On the same page the judge was recorded as saying that he needed to be “very careful” with Dr Leung’s evidence and take it “with a pinch of salt”, and that it was very dangerous when an expert became an advocate for the client.  It is evident from the Judgment (e.g. see [229], [259] and [248] & [278]) that eventually, even though the judge generally preferred the evidence of Dr Leung, he also accepted Dr Chun’s evidence on certain points, so that the judge found the plaintiff to have embellished or exaggerated her evidence on her symptoms, made a 50% reduction of the damages on account of the plaintiff’s pre-existing medical condition, and disallowed future medical expenses.  The judge commended both experts for not seeking to make factual findings on what did or did not happen: [216].  Where he criticised Dr Chun’s evidence in the Judgment, the judge was referring to specific comments by Dr Chun where, the judge thought, the expert had assumed the role of an advocate: see [225].  There is nothing to show that the judge failed to consider the evidence of both experts impartially.

50.The defendant further submits that the judge erred in disregarding the plaintiff’s evidence that she took up employment with eight different employers over various periods after the accident, some of which were in the same nature as her previous employment.  The plaintiff did however give evidence of the difficulties she had and why she could not cope with the heavy workload in the jobs.  As pointed out by the judge in [44] to [45] of the Leave Decision, defence counsel did not seriously challenge the plaintiff in cross-examination regarding quantum and did not ask questions about those difficulties.  In these circumstances, the judge cannot fairly be faulted for accepting the plaintiff’s testimony and determining the quantum of future loss of earnings accordingly.

51.We refuse to give leave to appeal on Ground 10.

The plaintiff’s time summons

52.As to the plaintiff’s time summons referred to in [5] above, it arose because in breach of [13] of Practice Directions 4.1, the plaintiff failed to lodge her statement in opposition within 14 days from the date of the defendant’s summons for leave to appeal.  Consequently, on 4 November 2024, the Registrar of Civil Appeals directed that “unless the Plaintiff lodged with the Court their written statement in opposition on or before 11 November 2024, the Plaintiff will be deemed to have abandoned their right to do so.”  On 11 November 2024, the plaintiff did not lodge her written statement but issued a summons instead seeking an extension of time until 16 December 2024. 

53.The plaintiff’s statement in opposition was eventually lodged on 18 December 2024, with an explanation that the delay was due to the “unusual length of the defendant’s Draft Notice of Appeal and the voluminous documents that the plaintiff’s legal team had to review in order to prepare the Statement in Opposition” and that the delay was not intentional or contumelious.

54.We have come to the conclusion that the plaintiff’s time summons should be dismissed.  An application for extension of time does not halt the progression of time: Schindler Lifts (Hong Kong) Ltd v Ocean Joy Investments Ltd [2002] 1 HKLRD 279 at [10].  Thus the automatic sanction under the unless order took effect upon the plaintiff’s failure to lodge her statement in opposition by 11 November 2024.  There is no application for relief from sanction under Order 2 rule 4, as the plaintiff’s summons filed on 11 November 2024 asked merely for an extension of time under Order 3 ruled 5. There was no justification offered as to why an extension of time was not applied for at the earliest opportunity and in any event before the deadline.  The plaintiff was represented by the same legal team as the trial.  The defendant’s draft grounds of appeal were apparently the same as those placed before the judge.  The plaintiff’s written statement eventually lodged in essence merely referred back to the written submissions used in resisting leave to appeal before the judge.  There was no evident explanation for the 37-day delay in filing that 3-page statement, which in the final analysis added little of substance.

Conclusion

55.For the reasons given above, we are of the view that the judge reached findings and conclusions he was entitled to reach with which this court has no proper basis to interfere. Accordingly, we refuse leave to appeal.  We make a further order under Order 59 rule 2A(8) that no party may request for the determination of this court to be reconsidered at an oral hearing inter partes. 

56.Ordinarily costs should follow the event.  But since the plaintiff failed to respond to the application in time and its late written statement was rejected for the reasons given above, we see no basis for awarding costs to the plaintiff. 

57.On a nisi basis we make no order as to costs on the defendant’s summons as well as the plaintiff’s summons.  There will be an order that the plaintiff’s own costs be taxed in accordance with the Legal Aid Regulations.

[1]  [2023] HKDC 1328.

[2]  [2024] HKDC 1377.

[3]  as referred to in [29(a)] of the plaintiff’s written submissions for resisting leave to appeal before the judge dated 8 May 2024, though the documents referred to there have not been included in the application bundles before this court.

[4]  The plaintiff’s written submissions opposing leave to appeal before the judge at [58] referred to Au’s evidence in the transcript at pp 443-445, but those pages have not been included in the application bundles before this court.