Priscilla Lau v. Chan Yin Hong and Another

HCMP 2536/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 2536 OF 2009

(ON AN INTENDED APPEAL FROM DCPI NO. 1777 OF 2005)

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BETWEEN

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Before: Hon Rogers VP and Le Pichon JA

Date of Decision: 29 December 2009

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D E C I S I O N

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Hon Rogers VP:

1.This is an application for leave to appeal from a judgment of HH Judge Leung given on 31 July 2009. The judge refused leave to appeal and the application is thus made to this court.

2.This action was brought by the plaintiff against the first defendant, who was a co- trainee on a course entitled “European Manicure and Hand Foot Treatment” course. This was organised by the second defendant under the Government’s Industry Skills Upgrading Scheme. As part of the course the trainees had to practice manicure on other trainees. On 31 March 2005, which was the first day of the course, the first defendant, took her turn first to practice manicure on the plaintiff. According to the judgment, the plaintiff suffered a cut on the base of the thumbnail of her left hand. The cut was about 0.5 cm long. There was a little bleeding. It was attended to very promptly by the class instructor and the practice continued with the first defendant working on the plaintiff’s right hand.

3.It would seem that on the second day of the course, which was one week later, the plaintiff arrived at the second defendant’s premises and proceeded to make claims and allegations that the first defendant had deliberately wounded her. The plaintiff’s case at trial was that the first defendant had caused the injury deliberately. The judge rejected that allegation after hearing the evidence, including a tape recording of the conversation on 7 April 2005, when the plaintiff first made her allegations.

4.Despite the fact that the plaintiff had not alleged negligence the judge went on to consider whether the first defendant had been negligent. However, the judge accepted the first defendant’s evidence that the cut had been caused because the plaintiff had been talkative whilst the first defendant had attempted to practise the manicure and, suddenly and without warning, the plaintiff moved her hand and caused the cut. In those circumstances, given the findings of fact by the judge the plaintiff can have no cause of action at all. None of the matters sought to be raised in the plaintiff’s submissions would alter that. The application for leave to appeal must, in those circumstances, be refused.

5.Although the first defendant has applied for legal aid, in the circumstances it is appropriate to lift the statutory stay and I so do.

6.I refuse this application for leave to appeal and would make an order under Order 59 rule 2A(8) that since this application is totally without merit, no party may request the determination to be reconsidered at an oral hearing inter partes. I would make an order nisi that the costs of this application be to the defendants.

Hon Le Pichon JA:

7.I agree.