IN THE COURT OF APPEAL v SIU LAI, SO

CACV000030/1987

BETWEEN

Coram: Silke, V.-P., Clough & Power, JJ.A.

Date of Hearing: 27th May 1987

Date of Judgment: 27th May 1987 (P.I. file)

__________

JUDGMENT

__________

Silke, V. -P. :

1. This is the judgment of the Court.

2. An accident took place on the 6th August 1986. The Appellant was a customer at a self-service fast food shop owned and operated by the Cafe' de Coral. He was with two friends and purchased for them some drinks, having gone to a counter in order to buy tickets for that purpose. He then returned to his chair and there fell from the tray of a passing customer a metal plate used for keeping food hot. This struck him on the outer part of his right ankle. He felt some pain and said he was frightened.

3. Having sat for a short time to allow the pain to subside - which it did not - he went to speak to the supervisor. He was given some ointment by her to apply to the ankle. The manager was absent, so the supervisor gave the Appellant the telephone number of the manager. After about an hour had passed the Appellant left the Cafe and went to the Tang Sui Kin Hospital.

4. There he says he was x-rayed, no fracture was found but he was given some pain killer. He returned home.

5. Having rested for some days he then felt the recurrence of rheumatic fever from which he had previously suffered and, in particular, pressure behind his eye. Thinking it would go away, he did nothing about it.

6. The ankle itself improved and it caused no further problem but stemming from that simple incident the Appellant, alleging that it caused the recurrence of the rheumatic fever, went on to say that the end result was that he now cannot read, or hear or speak properly. He has also developed arthritis. All these are a direct result of that which he describes as the injury to his ankle and for which he seeks to hold the Defendants responsible.

7. He claimed at trial that his earning capacity, which he has now lost, could well have been as high as $10 billion but stated that he had no real idea what the figure should be.

8. His claim for special damages amounted to $8,298.40 and he also made a claim, quantified at $300,000, for an assistant. The purpose of the assistant was to help him in some secret work in which he was then involved, details of which were not provided to the Court and which he was not prepared to provide other than in confidence.

9. In seeking to found his claim for negligence the Appellant placed reliance upon the Occupiers Liability Ordinance, Cap. 314 which relates, replacing the Common Law, to the duty which an occupier of premises owes to his visitors, or to his licensees, in respect of dangers due to the state of the premises or to things done or omitted to be done on them.

10. There is no suggestion that the "state of the premises" is involved here for there was clear evidence, which the trial judge accepted, that the floor of the shop was dry, that there was nothing in the nature of a trap and that there was no defect found on the premises.

11. It was, therefore, necessary for the Appellant to show a breach of the common duty of care. His Honour Judge Ryan, sitting as a Deputy Judge of the High Court, found no evidence of negligence on the part of any of the staff of the shop nor in the system which there operated.

12. Having so found, he held the Appellant to have failed on the issue on liability. He went on that had he found for the Appellant on liability then, in the absence of any form of expert medical evidence to support the Appellant's claim to financial remedy, any award of damages would have been but nominal.

13. The Appellant seeks to appeal both these findings and has filed a Notice of Appeal running to some 50 pages and a further document entitled "Supplementary Notice of Appeal" which consists of 21 pages.

14. These contain attacks upon the judge, a reiteration of the basis for the negligence claim, an elaboration of the claim for damages - the latter circumscribed by the Appellant's preceived need for secrecy as to the details of the work upon which he was engaged at the time of the incident - and a multiplicity of argument.

15. We have considered the contents of these documents in full - in places with some difficulty- and it is sufficient, I think, to say that they cause us no disquiet as to the correctness of the findings of the trial judge nor do we think the criticisms levelled at him to be justified.

16. We have today heard the Appellant address us suggesting that the attitude of the Defendants, in seeking to minimize the injury and in criticising the Appellant's failure to call medical evidence at trial, were indicative of the acceptance by them of their negligence: for they would not have taken the attitude they did unless they were apprehensive of a finding to be made against them.

17. Further he invokes before us, as he did in the Court below, the doctrine of res ipsa loquitur. But the incident here was not an unexplained one.

18. Nothing that has been said to us alters our view that the trial judge was correct in finding that the Appellant failed on the issue of negligence. We think he was right in the conclusions to which he came. In those circumstances, the appeal is dismissed.

Representation:

Appellant in person.

Andrew Cheung, Esq. (Deacons) for Respondent/Defendant.