Mak Yiu Nam v. Unitress Ltd

Case No.CACV 166/1982

Court

Court of Appeal

Date25 Feb 1983

Judge—

Case Document

100%

CACV000166/1982

IN THE COURT OF APPEAL

1982, No. 166

(civil)

BETWEEN

	MAK YIU NAM	Appellant
	and
	UNITRESS LTD.	Respondent

----

Coram: Sir Alan Huggins, V.-P., Leonard, V.-P. and Fuad, J.A,

Date of Judgment: 25th February 1983.

________

RULING

________

Sir Alan Huggins, V.-P. :

1. The Applicant brought an application under the Employees' Compensation Ordinance as a result of an accident while he was at work. The Employer filed grounds of opposition. The matter came to trial. Liability was admitted and an assessment of compensation was made. Subsequently, there was an application for a review and the learned judge confirmed his original order.

2. The Employer lodged a document which appeared to be a Notice of Appeal. That Notice purported to set out grounds of appeal and stated that the learned District Judge "erred in law and in fact in assessing the percentage of permanent incapacity suffered by the Appellant as a result of the accident which gave rise to the Application". That and that alone was the statement of grounds of appeal.

3. Speaking for myself, I am at a loss to understand how there could have been an error in fact if the facts were, as appears from the record, all agreed. In any event, we all regard that as a totally inadequate statement of grounds of appeal. To state that a judge has erred without giving particulars of the alleged error is, on the one hand, an insult to the judge whose decision is being attacked and, on the other, is of no assistance whatsoever either to the appellate court or to the opposing parties who have to meet the appeal in the appellate court.

4. Application was made before us to strike out the appeal as being incompetent, and, alternatively, to set aside the proceedings under 0.2 r.2. The first of those applications has properly been abandoned. In support of the second application counsel has referred us to Leung Kin-hung v Cheng Mui 1982 H.K.L.R. 383. That was an application to the Court of Appeal for leave to appeal. The notice of application purported to set out grounds of appeal and, like the alleged grounds in the present case, they were totally inadequate. Mr. Justice Cons in delivering the leading judgment, with which both the other judges agreed, said:

	" Time and time again this court has emphasized the need to comply with Order 59 r.3(2) and directed attention to the notes in the White Book at 59/3/6. Nevertheless we continue to find Notices that do not comply, even though they have been drafted by counsel or solicitor.
	In the instant case there were questions worthy of consideration and for the sake of the lay client we gave leave to appeal and, proceeding to hear the appeal itself by the consent of both parties, we treated the Notice of Appeal as though those questions had been specifically set out.
	But I would like to give due notice that, in this division at least, such laxity is unlikely to be repeated once this final warning has received due currency."

We think that the learned judge probably meant to speak of leniency rather than laxity. Having considered the merits of the present application we think that justice will be done if we do not set aside the proceedings but make the following orders: 1. that the Notice of Appeal be amended to include grounds 1 and 2 in the draft which has been handed to us and, further, to include a prayer for an order that the compensation be assessed by this court at $80,00.00; 2. that the costs thrown away as a result of the defective Notice of Appeal be paid by the Appellant in any event. (We, however, express the hope that this will not increase any contribution payable by this legally aided Appellant himself.) We disallow the inclusion of ground 3 in the draft notice because it is inconsistent with the manner in which the case was conducted in the court below. The order for amendment of the prayer is necessary because the Notice of Appeal, as lodged, was also unsatisfactory in that the primary prayer was for a retrial which appears to us to be entirely unnecessary.

5. We add only that we do not think that, by adopting the course which we are adopting, we are failing to honour the spirit of the warning given by the court in Leung Kin-hung v Cheng Mui.

25th February 1983.

IN THE COURT OF APPEAL

1982, No. 166

(Civil)

BETWEEN

	MAK YIU NAM	Appellant
	and
	UNITRESS LTD.	Respondent
	-----

Coram: Sir Alan Huggins, V.-P., Leonard, V.P. and Fuad, J.A.

Date of Judgment: 1st March 1983

________________________

REASONS FOR JUDGMENT

________________________

Sir Alan Huggins, V.-P. :

6. Having allowed the appellant to amend his Notice of Appeal we now find that we have, inadvertently, allowed him to raise an argument which was never raised before the trial judge.

7. The matter arises in this way. The Applicant lodged an application for workman's compensation under the Employees' Compensation Ordinance. Form 1 required him to state "the nature" of his injury. All he was disposed to disclose was that they were "injuries sustained from a fall from height". What possible help that could be to any one it is impossible to imagine. It is suggested that there might have been difficulty in pleading the injuries with complete particularity at that stage. That could be no excuse for giving no particulars at all. Moreover, the matter came to trial without further particulars' having been given. The Respondent might have been wise to demand particulars, but did not do so.

8. At the trial the sole matter in issue was the quantum of compensation and the only medical evidence was that adduced by the Employer. The evidence of the Workman was that he could not walk even one step. That was disputed by the neuro-surgeon called by the Employer: he accepted that both feet were paralysed but was firmly of opinion that the Workman had the power to walk, The case was left to the judge on the basis that the Workman's ability to walk was material and the judge concluded that, as he believed the surgeon, the compensation should be assessed at less than 100'% of that which would have been payable in the event of permanent total incapacity. No one appears to have appreciated that the Workman was putting his case unnecessarily high and that, if he proved total permanent loss of use of both feet, it mattered not whether lie retained some residual use of his legs: see Item 3 of the First Schedule and Note (1) thereto.

9. Counsel for the Respondent not unnaturally objected that it was unjust that, having put his client to the expense of meeting at the trial a case which had never been particularised, the Applicant should be allowed on appeal to advance a case which had never been advanced before. It is, of course, answered that it was the Respondent's own witness who testified to the loss of use of both feet and that when that evidence became available the Respondent should not have continued its opposition. Whilst there is a measure of force in that argument, it seems to us that a person against whom a claim is made should not be expected to advise the claimant how to formulate his claim to the best advantage. At the trial the claim was based upon loss of use of both legs and that was all that the Employer should have been expected to meet.

10. Had we noticed that the amended grounds of appeal which were tendered at the hearing before us contained a reference to the loss of use of feet, we would not have given leave to amend the Notice save on terms that the Workman paid all the costs if he succeeded only on that basis. However, we did give leave to argue the point and Mr. Bunting very properly concedes that there is no answer to it.

11. In the result we allowed the appeal and assessed the compensation at $80,000 but directed that the Appellant should pay 2/3rds of the Respondent's entire costs of the appeal and that the order as to costs which we made on granting leave to amend the Notice of Appeal be rescinded.

1st March 1983.

Representation: