Leung Kin Fai v. Ids Logistics (Hong Kong) Ltd

DCPI 2223/2007

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO. 2223 OF 2007

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Before:  Her Honour Judge Mimmie Chan in Chambers (open to public)

Date of Hearing:  8 July 2009

Date of Delivery of Decision:  8 July 2009

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D E C I S I O N

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1.The Plaintiff seeks leave to appeal against my judgment of 11 May 2009.  After reviewing the grounds of appeal set out in the draft Notice of Appeal and after hearing counsel’s submissions, I am not satisfied that the Plaintiff has an arguable case with reasonable chance of success on appeal, or a good arguable case for the appeal. 

2.Res ipsa loquitur was not pleaded nor argued at trial.  In any event, I do not accept the Plaintiff’s argument that the fact of the existence of the oily stain on the footrest inside the truck is by itself sufficient basis to infer negligence on the part of the Defendant, and that by operation of res ipsa loquitur, the Plaintiff does not need to prove that the existence of the stain was caused by any negligence or fault on the part of anyone, as it is for the Defendant to disprove negligence, as the Plaintiff argues.

3.There was insufficient evidence to draw the necessary inference, as counsel for the Plaintiff suggests, that the stain was caused by the negligence of the Defendant.  I am not satisfied that it is reasonably arguable on appeal that the matter complained of, namely, the injury as a result of the existence of the oily stain, does not ordinarily occur in the absence of someone’s negligence and that the injury falls within the sphere of the Defendant’s responsibility to take due care of the Plaintiff.  An employer is not liable for any danger of the workplace which is occasioned by a transient and exceptional condition.

4.I do not consider that the doctrine of res ipsa loquitur applies to the present case, but even if it does, the authorities on res ipsa loquitur are clear.  The burden of proving negligence rests throughout the case on a plaintiff.  At most, the effect of res ipsa loquitur is that when faced with a prima facie case of negligence, the Defendant would be found negligent unless he produces evidence that is capable of rebutting the prima facie case.  But if the Defendant adduces evidence, that evidence must be evaluated to see if it is still reasonable to draw the inference of negligence from the mere fact of the accident.  It is at the end of the day the duty of the judge to examine all the evidence and to decide whether, on the facts, he is satisfied that negligence has been established.

5.On the facts of this case and on the evidence as it stands at the relevant time, I have found that there is no basis on which I could conclude that the accident or the existence of the stain was caused by any negligence or fault on the part of the Defendant.  That was my assessment of the effect of the evidence given at trial, and I am not satisfied that there is a good arguable case that on appeal, those findings can be set aside.

6.Accordingly, I refuse leave to appeal, and the Plaintiff must pay the Defendant’s costs of the application for leave, with certificate for counsel.

Mr Edward Poon, instructed by Messrs B Mak & Co, for the Plaintiff

Mr Samuel Chan, instructed by Messrs Clyde & Co, for the Defendant