DCPI79/2007 TANG BO LING v. CHAN PO t/a CORRYTRON CATERIES - LawHero
DCPI79/2007
區域法院（人身傷害）Her Honour Judge H C Wong19/8/2008
DCPI79/2007
A A
DCPI79/2007
B B
IN THE DISTRICT COURT OF THE
C C
HONG KONG SPECIAL ADMINISTRATIVE REGION
D PERSONAL INJURIES ACTION NO. 79 OF 2007 D
E E
F BETWEEN F
G G
TANG BO LING Plaintiff
H and H
I CHAN PO trading as I
CORRYTRON CATERIES Defendant
J J
K K
L Before: Her Honour Judge H C Wong in Court L
Dates of Hearing: 7-8 and 20 August 2008
M M
Date of Delivery of Judgment: 20 August 2008
N N
O
JUDGMENT O
P P
1. The Plaintiff claims against the Defendant for damages
Q suffered due to a fall at the Defendant’s restaurant on 13 July 2003. The Q
Defendant denies liability.
R R
S The Plaintiff’s Case S
T T
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A A
2. The Plaintiff and her colleagues who are kindergarten teachers
B went to the Defendant’s restaurant for a meal before the school’s B
graduation ceremony at around 11 am on Sunday, 13 July 2003. The
C C
Defendant’s restaurant is at the ground floor of Shop 17-19, Block 6, Tsui
D Ling Garden in Tuen Mun which was just across the shopping centre from D
the school. It is frequented by some of the staff and teachers of the school
E E
before the Defendant’s restaurant closed down in 2005.
F F
3. On 13 July 2003, after the meal the Plaintiff and her
G G
colleagues rose to pay the bill at the cashier. Upon following her
H H
colleagues to approach the cashier, she suddenly fell and slipped on the
I
floor injuring her left wrist. Her colleagues helped her to get up and sat her I
down on a chair nearby. After resting for a while, they accompanied her
J J
back to the school. On her way back to school, she found her left arm
K
extremely painful and she was not able to lift the arm. She was taken to K
Tuen Mun Hospital for treatment.
L L
M
4. At the hospital, she was found to have suffered a fracture of M
the left wrist, her left distal radius and ulnar styloid. She was treated with
N N
close reduction and long arm plaster. After one day of hospitalisation, she
O
was discharged on 14 July 2003. O
P P
5. She claimed she felt the Defendant’s restaurant floor was
Q greasy and slippery when she first walked into the restaurant on the day of Q
the accident, and she believed that was the cause of her accident. She
R R
claimed she was wearing her teaching uniform that day and a pair of flat-
S heeled white leather shoes as required by the school when she was on duty. S
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A A
6. She continued to receive treatments at the out-patient clinic
B over a period of 12 months and attended 13 sessions of physiotherapy B
treatments. She was given 6 months of sick leave.
C C
D 7. The Plaintiff, Miss Tang, suffered long and persistent pain and D
numbness on her left wrist after the accident and treatment at the Tuen Mun
E E
Hospital. The movement of her wrist was restricted and she slept poorly
F throughout the initial period of her recuperation. Miss Tang complained F
the strength of her left wrist has still not fully recovered and could not
G G
move her left wrist fully and freely. She was told the condition has become
H H
permanent.
I I
8. She claimed further that she suffered from continuous residual
J J
pain on her left wrist; more so, when the weather changes. Numbness and
K
stiffness of her left wrist also occurred. She is therefore not able to lift K
heavy objects. She can no longer lift or carry her kindergarten pupils due
L L
to fatigue of the left wrist and lack of strength, the restricted left wrist
M
movements had further interfered with her bathing. M
N N
9. After the accident, she reduced her social gatherings and
O
activities because she felt embarrassed about her injuries or to discuss them. O
She claimed she now seldom played basketball and badminton with her
P P
children which she used to do quite often before the accident because of the
Q injuries suffered. She had to give up playing volleyball with her team- Q
mates which she used to do once a month.
R R
S 10. Miss Tang’s evidence is supported by the evidence of her S
former colleague, Miss Lam Sau-pik, who witnessed the accident. Miss
T T
Lam also testified that on the day of the accident she visited the
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A A
Defendant’s restaurant with the Plaintiff. She also found the Defendant’s
B floor slippery. She attributed the condition to the roast meat stand next to B
the back entrance of the restaurant which Miss Lam and the Plaintiff had
C C
used to gain access to the restaurant on the day of the accident.
D D
11. She further claimed there were no warning signs or labels
E E
attached to the glass doors of the Defendant’s restaurant on the day of the
F accident or prior to the accident. Miss Lam further claimed that she had F
returned to the restaurant on the afternoon after the accident to inform the
G G
Defendant’s staff of the Plaintiff’s injuries, and she had accompanied the
H Plaintiff two days later on 15 July 2003 to the Defendant’s restaurant when H
I
they were given the details of the Defendant’s insurance agent. I
J J
The Defence Case
K
12. The Defendant admitted the accident involving the Plaintiff at K
the restaurant on 13 July 2003, but she denied the accident was due to the
L L
condition of the floor of the restaurant. She claimed the floor was cleaned
M
three times a day. The roast meat stand was also not in operation in the M
morning. And she claimed the floor was clean and dry on the day of the
N N
accident. She also claimed the Plaintiff met with the accident because she
O
was wearing a pair of high-heeled shoes which had caused her to slip and O
fall.
P P
Q 13. In paragraph 6 of the Defence, the Defendant pleaded that Q
there was no need to put up any warning signs at the restaurant because the
R R
floor of the restaurant was clean and dry. Madam Chan, the Defendant,
S further claimed the restaurant floor was fitted with non-slip floor tiles. S
Further, in her September 2007 witness statement, under paragraph 3, she
T T
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A A
claimed she had placed warning signs warning customers to take caution of
B the slippery floor at the front and back of the glass doors of the restaurant. B
C C
14. Madam Chan called her friend Madam Chan Wing-yung to
D give evidence in support of the defence. Madam Chan Wing-yung claimed D
that she was having a meal at the restaurant on the day of the accident. She
E E
admitted she did not witness the accident but she did hear a bang sound.
F Afterwards, she saw the Plaintiff got up from a chair and she had assumed F
the Plaintiff had fallen in the area where she was sitting. Therefore, she
G G
claimed the Plaintiff did not fall down at the corridor of the restaurant. She
H H
also claimed she found the floor of the restaurant on that day was not
I
slippery. After she had finished her meal, she left the restaurant. I
J J
Liability
K
15. The principle stated by Megaw LJ in Ward v Tesco Stores K
Limited [1976] 1 WLR 810 at page 815 is applicable to the issue of
L L
liability:
“It is for the plaintiff to show that there has occurred an event
M M
which is unusual and which, in the absence of explanation, is
more consistent with fault on the part of the defendant than the
N absence of fault.” N
16. The aforesaid principle has been cited to me by counsel for the
O O
Plaintiff, Mr Luk, and the legal representative of the Defendant, Mr Chan.
P The same passage has been referred and adopted by Sakhrani J in his P
judgment in the High Court of Hong Kong in the cases of So Wang Chun v
Q Q
Rainforce Limited and Others, HCPI64/2006, in his judgment on 9 January
R 2008 which referring to his own judgment in an earlier case Wat Kwing Lok R
v The Kowloon Motor Bus Company (1933) Ltd in HCPI936/2005 (date of
S S
judgment 20 November 2007) where he held:
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A A
“The mere fact of the occurrance of the accident is not sufficient
to give rise to a presumption of negligence on the part of the
B B
defendant. The burden of proof is on the plaintiff to show on a
balance of probabilities that there has occurred an event which is
C unusual and which, in the absence of explanation, is more C
consistent with fault on the part of the defendant than the absence
of fault. If, and only if, the plaintiff proves that the unusual event
D is more consistent with fault on the part of the defendant than the D
absence of fault, the evidential burden then shifts to the
defendant to show, on a balance of probabilities, that the accident
E E
happened without negligence on its part.”
F F
17. Mr Chan, representing the Defendant, referred me to the Hong
G Kong Court of Appeal case of Cheung Wai Mei v The Excelsior Hotel G
(Hong Kong) Ltd trading as The Excelsior, CACV38/2000 (date of
H H
judgment 22 November 2000) where the plaintiff slipped and fell inside the
I property of the defendant hotel. The Court of Appeal by majority allowed I
the appeal on the basis that the plaintiff had failed to prove any breach of
J J
duty on the defendant’s part.
K K
Findings
L L
18. Indeed, the burden is on the Plaintiff to show the Defendant
M was in breach of duty when an unusual event occurred which is more M
consistent with fault on the part of the Defendant than the absence of fault.
N N
In the present case, the Plaintiff and her colleague Miss Lam who
O witnessed the accident testified that in the Defendant’s restaurant floor was O
slippery and greasy on the day of the accident. Both of them noticed the
P P
phenomenon when they walked into the restaurant. Miss Lam went further
Q and said that she could feel the condition of the floor that day was different Q
from previous days she had visited the restaurant. She felt it was greasy
R R
and attributed the condition to the roast meat stand spilling grease onto the
S floor. S
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A A
19. Miss Tang, the Plaintiff, further claimed that she discovered
B after she was admitted into hospital that the back of her skirt had been B
soiled by a dark patch. She claimed it was the grease from the Defendant’s
C C
wet floor which got onto her skirt when she fell onto the floor.
D D
20. On the other hand, the Defendant’s witness, Miss Chan Wing-
E E
yung, though present at the time of the accident did not see the accident.
F She only heard a bang sound. She also wrongly believed that Miss Tang F
had fallen at the same spot where she saw her got up after the accident.
G G
She had plainly mistaken the site of the accident to be next to the table and
H H
chair where she saw Miss Tang got up after the accident. In fact, that was
I
the chair where Miss Tang was helped into after the accident. I
J J
21. Given that Miss Chan made such a mistake in her evidence, it
K
is doubtful if her evidence that the floor of the restaurant was dry and clean K
could be sustained. In any event, even if the floor where she sat was dry
L L
and clean, it does not follow the corridor where Miss Tang fell was also
M
clean and dry on the day of the accident, contrary to the evidence of Miss M
Tang and her witness Miss Lam.
N N
O
22. I also have grave doubts as to the veracity of Miss Chan Po, O
the Defendant. In her defence, she pleaded that the Plaintiff was wearing
P P
high-heeled shoes on the day of the accident which was the cause of her
Q fall. Both Miss Tang and Miss Lam testified that both of them were in the Q
school’s teachers’ uniform and wearing flat-heeled white leather shoes
R R
required by the school.
S S
23. Further, Miss Chan in her defence pleaded that no warning
T T
signs were needed in her restaurant because the floor was clean and dry. At
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A A
the trial, Miss Chan produced photographs of the front and back of the door
B showing a ‘caution’ sign warning customers of slippery floors. This is also B
contrary to Miss Lam’s evidence who said she had been frequenting the
C C
Defendant’s restaurant since 1999 and had not seen such signs on the
D restaurant stalls before the accident. D
E E
24. I find Miss Tang and Miss Lam to be honest witnesses. They
F were able to give exact details of the accident on 13 July 2003, and further, F
they gave even more details on Miss Lam’s subsequent visits that afternoon
G G
and on 15 July 2003. On 15 July, Miss Lam visited the restaurant and
H alerted the Defendant’s staff of the accident and Miss Tang’s complaint of H
I
her injuries. I
J J
25. I find the evidence of Miss Chan Po, the Defendant, to be
K
inconsistent, it is also inconsistent with her defence. I find she had K
probably made up some of her evidence and tailored it according to the
L L
defence.
M M
26. I am aware of the relevant principles enunciated in the classic
N N
judgment of Erle CJ in the case of Scott v The London and St Katherine
O
Docks Company [1865] 3 H & C page 596 at 601 where he held: O
“Where the thing is shown to be under the management of the
P
defendant, or his servants, and the accident is such as, in the P
ordinary course of things, does not happen if those who have the
management use proper care, it affords reasonable evidence, in
Q the absence of explanation by the defendant, that the accident Q
arose from want of care.”
R R
27. The same passage has been adopted in the case of Ward v
S S
Tesco Stores at pages 813 to 814 of LJ Lawton’s judgment. The present
T
case is just one of such cases where the Plaintiff had successfully shown T
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A A
that she slipped and fell down on the floor of the Defendant’s restaurant
B and the Plaintiff had also shown she found the Defendant’s restaurant floor B
greasy before the accident happened.
C C
D 28. In her own evidence which was supported by her witness Miss D
Lam, the burden then shifted to the Defendant to show that the accident did
E E
not arise from want of care. Even though the Defendant claimed the floor
F of the restaurant was cleaned three times a day, she was not present when F
such cleanings were done. She claimed that the restaurant floor was
G G
cleaned by the cleaning staff responsible for washing dishes in the kitchen
H H
at 10 am, 3 pm and 10 pm or 10.30 pm. She admitted that her shift was
I
between 4 pm and 10 pm each day while her husband would take the early I
shift in the morning. The Defendant’s husband did not give evidence.
J J
K
29. The evidence of both Miss Tang and Miss Lam was that on the K
day of accident no one from the Defendant’s restaurant came up to find out
L L
how she was. When Miss Lam returned shortly after Miss Tang was taken
M
to the hospital, Madam Chan’s husband was not present, neither was he M
there two days later when Miss Tang and Miss Lam returned for the
N N
Defendant’s insurance information. It is quite clear in the Defendant’s
O
restaurant, from the evidence, there was no routine supervision of the daily O
cleaning. Madam Chan’s evidence was not based on facts but mere
P P
speculations. It was not from her own knowledge but what she assumed
Q would have been done in her absence. Q
R R
30. Furthermore, the use of non-slip tiles do not guarantee the
S floors to be completely slip-free as there are different grades of non-slip S
tiles in the market. The Defendant had failed to identify which type of non-
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A A
slip tiles she had used and the grade of non-slip tiles was used in her
B restaurant. B
C C
31. I therefore find the Plaintiff has successfully proved the
D Defendant to be negligent and in breach of her duty to warn visitors of the D
slippery floors in the restaurant and for failing to keep and maintain the
E E
property safe and slip-free and for being in breach of section 3 of the
F Occupiers Liability Ordinance, Cap.314. F
G G
Quantum
H H
32. The findings of joint orthopaedic experts the two doctors
I
appointed by the Plaintiff and the Defendant, confirmed the Plaintiff’s I
account of the accident to be consistent with the injuries. Osteoporosis was
J J
detected by the doctors in the bone densitometry performed at the
K
rehabilitation stage. They agreed it was present before the accident. But in K
Dr Chiang’s view, the Plaintiff’s left wrist would not have fractured but for
L L
the accident. The Defendant must take the victim as she finds her, it is the
M
thin skull rule. M
N N
33. The doctors found Miss Tang has a mild decrease in the range
O
of movement of the left wrist. They found a mildly prominent ulnar styloid O
which was contributed by the mild dorsal displacement of the distal radius
P P
due to the fracture. The doctors also agreed that Miss Tang suffered from a
Q mild reduction in efficiency relating to the residual complaints of Miss Q
Tang which included persistent on and off pain on the left wrist, numbness
R R
and lack of strength and reduced range of movement of the left wrist.
S S
Pain, Suffering, Loss of Amenities
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A A
34. The Plaintiff now asked for $250,000 to compensate her pain,
B suffering and loss of amenities. Mr Luk, counsel for the Plaintiff, relied on B
a number of authorities including the case of Ho Bing Cheung v Lam Yin
C C
Tuk trading as Ocean Fast Food, DCPI66/2004, where District Judge C B
D Chan awarded the plaintiff in that case $220,000 under PSLA. The D
plaintiff was a 61-year-old man who fell on an oily patch underneath a fast
E E
food shop’s exhaust vent. He suffered a fracture of the distal radius and
F ulnar on the right wrist and mild tenderness to his mid lumbar spinal region. F
G G
35. In the case of Chan Cheuk Yiu v Chan Ho Kwan,
H H
HCPI879/2000, an assessment of damages by Master Mary Yuen on 30
I
June 2001, where she awarded $145,000 to the 22-year-old plaintiff who I
suffered a fracture to the distal radius of the right wrist and laceration to her
J J
right knee at a traffic accident. The plaintiff’s daily activities were said to
K
be unaffected by the injuries. K
L L
36. In the case of Chung Hok Sung v Li Kam Ming, HCPI393/1995,
M
Master Chung (as he then was) awarded on 19 May 1997 the 32-year-old M
plaintiff a sum of $200,000 where the plaintiff suffered fracture to the left
N N
ulnar radius, and the disability included the development of tennis elbow
O
and loosening of the distal radioulnar joint. O
P P
37. After careful consideration of the Plaintiff’s pain, suffering
Q and loss of amenities at and after the accident, and taking into account the Q
authorities cited to me, I also took into account the discomfort and
R R
disability Miss Tang suffered from now including her loss of enjoyment of
S sporting activities. I consider an award of $200,000 to be an appropriate S
award under this head.
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A A
Loss of Earnings
B Pre-trial Loss B
38. The Plaintiff though given 6 months of sick leave by the
C C
doctors only took 3 months’ leave for she did not wish to be absent during
D the start of the school term in 2003. She is now asking for one month’s D
loss of earnings plus the sum of $558.85 as her sick leave pay and the MPF
E E
retirement benefits. In total, she asks for $11,735.85. I accept that her
F claim is reasonable. F
G G
Loss of Earning Capacity
H H
39. The Plaintiff is working at the same job she was in at the time
I
of the accident is not claiming loss of future earnings, but she is claiming I
for a loss of earning capacity because of the injury suffered at the accident.
J J
She was 43 years old at the time of the accident. She is now 46 years old.
K
She claimed that she had received complaints because she stopped picking K
up her kindergarten pupils due to her left wrist had been weakened and was
L L
painful whenever she lifted heavy weights. She claimed that this has
M
created a handicap in the labour market. M
N N
40. I accept this is a genuine concern. However, I do not agree
O
with Mr Luk that this loss would attract an award of 12 months’ income. O
She would possibly be required to go through a period of re-training should
P P
she lose her present job as a kindergarten teacher. I would therefore give
Q her an award equivalent to 4 months of her present income to compensate Q
the period she will be taking for a re-training programme and for looking
R R
for new employment. I believe 4 months should be sufficient for that
S purpose. With the present monthly salary of $11,900, 4 months come to S
$47,600.
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A A
Future Medical Treatments
B 41. The Plaintiff asked for the sum of $15,000 under this head. I B
am satisfied that she would require medical attention from time to time due
C C
to the persistent pain and weakness of her left wrist and loss of range of
D movement. I find the sum of $15,000 to be a reasonable sum. D
E E
Special Damages
F (i) Medical Expenses of $3,770 F
42. I find this to be reasonable and justified.
G G
H H
(ii) Travelling Expenses of $4,477.60
I
43. This, I find to be also reasonably incurred. I
J J
(iii) Tonic Food
K
44. This item was not supported by any receipts or breakdowns. K
The Plaintiff merely claimed a monthly sum of $2,000 for a period of 2
L L
years. She claimed that her mother had prepared such tonic foods at her
M
request since the accident, and this was on average twice a week. However, M
she admitted she did not pay her mother any extra sums of money other
N N
than her usual monthly contributions that she had been giving to her mother.
O
I find this to be rather extraordinary because her mother is the one who O
should be compensated for the loss. And as no receipts had been produced
P P
and without any medical evidence in support of the use of Chinese
Q medicine or such herbs, I would award the sum of $10,000 to be Q
reimbursed to the Plaintiff’s mother by the Plaintiff.
R R
S (iv) Damage Done to Clothing, Personal Articles and Wristwatch S
45. I find these to be reasonable and I allow the sum of $1,184
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claimed.
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A A
B Summary B
Pain, suffering, loss of amenities: $200,000.00
C C
Pre-trial loss of earnings: $ 11,735.85
D Loss of earning capacity: $ 47,600.00 D
Future medical expenses: $ 15,000.00
E E
Special damages: $ 19,431.60
F TOTAL: $293,767.45 F
G G
Interests
H H
46. Interests on PSLA at 2% per annum from the date of writ to
I
the date of judgment. Interests on special damages at half judgment rate I
from the date of accident to the date of judgment, thereafter at judgment
J J
rate until full payment.
K K
Costs
L L
47. Costs should follow the event and I order costs to be borne by
M
the Defendant to the Plaintiff, to be taxed if not agreed, with certificate for M
counsel. Plaintiff’s own costs to be taxed in accordance with Legal Aid
N N
Regulations.
O O
P P
(H C Wong)
District Court Judge
Q Q
R
Mr Victor Luk Ying-wah, instructed by Messrs C H Chan & Co., assigned R
by DLA for the Plaintiff
Mr Chan Shu-yung, of Messrs Raymond Cheung & Chan, for the
S S
Defendant
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A A
DCPI79/2007
B B
IN THE DISTRICT COURT OF THE
C C
HONG KONG SPECIAL ADMINISTRATIVE REGION
D PERSONAL INJURIES ACTION NO. 79 OF 2007 D
E E
F BETWEEN F
G G
TANG BO LING Plaintiff
H and H
I CHAN PO trading as I
CORRYTRON CATERIES Defendant
J J
K K
L Before: Her Honour Judge H C Wong in Court L
Dates of Hearing: 7-8 and 20 August 2008
M M
Date of Delivery of Judgment: 20 August 2008
N N
O
JUDGMENT O
P P
1. The Plaintiff claims against the Defendant for damages
Q suffered due to a fall at the Defendant’s restaurant on 13 July 2003. The Q
Defendant denies liability.
R R
S The Plaintiff’s Case S
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A A
2. The Plaintiff and her colleagues who are kindergarten teachers
B went to the Defendant’s restaurant for a meal before the school’s B
graduation ceremony at around 11 am on Sunday, 13 July 2003. The
C C
Defendant’s restaurant is at the ground floor of Shop 17-19, Block 6, Tsui
D Ling Garden in Tuen Mun which was just across the shopping centre from D
the school. It is frequented by some of the staff and teachers of the school
E E
before the Defendant’s restaurant closed down in 2005.
F F
3. On 13 July 2003, after the meal the Plaintiff and her
G G
colleagues rose to pay the bill at the cashier. Upon following her
H H
colleagues to approach the cashier, she suddenly fell and slipped on the
I
floor injuring her left wrist. Her colleagues helped her to get up and sat her I
down on a chair nearby. After resting for a while, they accompanied her
J J
back to the school. On her way back to school, she found her left arm
K
extremely painful and she was not able to lift the arm. She was taken to K
Tuen Mun Hospital for treatment.
L L
M
4. At the hospital, she was found to have suffered a fracture of M
the left wrist, her left distal radius and ulnar styloid. She was treated with
N N
close reduction and long arm plaster. After one day of hospitalisation, she
O
was discharged on 14 July 2003. O
P P
5. She claimed she felt the Defendant’s restaurant floor was
Q greasy and slippery when she first walked into the restaurant on the day of Q
the accident, and she believed that was the cause of her accident. She
R R
claimed she was wearing her teaching uniform that day and a pair of flat-
S heeled white leather shoes as required by the school when she was on duty. S
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A A
6. She continued to receive treatments at the out-patient clinic
B over a period of 12 months and attended 13 sessions of physiotherapy B
treatments. She was given 6 months of sick leave.
C C
D 7. The Plaintiff, Miss Tang, suffered long and persistent pain and D
numbness on her left wrist after the accident and treatment at the Tuen Mun
E E
Hospital. The movement of her wrist was restricted and she slept poorly
F throughout the initial period of her recuperation. Miss Tang complained F
the strength of her left wrist has still not fully recovered and could not
G G
move her left wrist fully and freely. She was told the condition has become
H H
permanent.
I I
8. She claimed further that she suffered from continuous residual
J J
pain on her left wrist; more so, when the weather changes. Numbness and
K
stiffness of her left wrist also occurred. She is therefore not able to lift K
heavy objects. She can no longer lift or carry her kindergarten pupils due
L L
to fatigue of the left wrist and lack of strength, the restricted left wrist
M
movements had further interfered with her bathing. M
N N
9. After the accident, she reduced her social gatherings and
O
activities because she felt embarrassed about her injuries or to discuss them. O
She claimed she now seldom played basketball and badminton with her
P P
children which she used to do quite often before the accident because of the
Q injuries suffered. She had to give up playing volleyball with her team- Q
mates which she used to do once a month.
R R
S 10. Miss Tang’s evidence is supported by the evidence of her S
former colleague, Miss Lam Sau-pik, who witnessed the accident. Miss
T T
Lam also testified that on the day of the accident she visited the
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Defendant’s restaurant with the Plaintiff. She also found the Defendant’s
B floor slippery. She attributed the condition to the roast meat stand next to B
the back entrance of the restaurant which Miss Lam and the Plaintiff had
C C
used to gain access to the restaurant on the day of the accident.
D D
11. She further claimed there were no warning signs or labels
E E
attached to the glass doors of the Defendant’s restaurant on the day of the
F accident or prior to the accident. Miss Lam further claimed that she had F
returned to the restaurant on the afternoon after the accident to inform the
G G
Defendant’s staff of the Plaintiff’s injuries, and she had accompanied the
H Plaintiff two days later on 15 July 2003 to the Defendant’s restaurant when H
I
they were given the details of the Defendant’s insurance agent. I
J J
The Defence Case
K
12. The Defendant admitted the accident involving the Plaintiff at K
the restaurant on 13 July 2003, but she denied the accident was due to the
L L
condition of the floor of the restaurant. She claimed the floor was cleaned
M
three times a day. The roast meat stand was also not in operation in the M
morning. And she claimed the floor was clean and dry on the day of the
N N
accident. She also claimed the Plaintiff met with the accident because she
O
was wearing a pair of high-heeled shoes which had caused her to slip and O
fall.
P P
Q 13. In paragraph 6 of the Defence, the Defendant pleaded that Q
there was no need to put up any warning signs at the restaurant because the
R R
floor of the restaurant was clean and dry. Madam Chan, the Defendant,
S further claimed the restaurant floor was fitted with non-slip floor tiles. S
Further, in her September 2007 witness statement, under paragraph 3, she
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A A
claimed she had placed warning signs warning customers to take caution of
B the slippery floor at the front and back of the glass doors of the restaurant. B
C C
14. Madam Chan called her friend Madam Chan Wing-yung to
D give evidence in support of the defence. Madam Chan Wing-yung claimed D
that she was having a meal at the restaurant on the day of the accident. She
E E
admitted she did not witness the accident but she did hear a bang sound.
F Afterwards, she saw the Plaintiff got up from a chair and she had assumed F
the Plaintiff had fallen in the area where she was sitting. Therefore, she
G G
claimed the Plaintiff did not fall down at the corridor of the restaurant. She
H H
also claimed she found the floor of the restaurant on that day was not
I
slippery. After she had finished her meal, she left the restaurant. I
J J
Liability
K
15. The principle stated by Megaw LJ in Ward v Tesco Stores K
Limited [1976] 1 WLR 810 at page 815 is applicable to the issue of
L L
liability:
“It is for the plaintiff to show that there has occurred an event
M M
which is unusual and which, in the absence of explanation, is
more consistent with fault on the part of the defendant than the
N absence of fault.” N
16. The aforesaid principle has been cited to me by counsel for the
O O
Plaintiff, Mr Luk, and the legal representative of the Defendant, Mr Chan.
P The same passage has been referred and adopted by Sakhrani J in his P
judgment in the High Court of Hong Kong in the cases of So Wang Chun v
Q Q
Rainforce Limited and Others, HCPI64/2006, in his judgment on 9 January
R 2008 which referring to his own judgment in an earlier case Wat Kwing Lok R
v The Kowloon Motor Bus Company (1933) Ltd in HCPI936/2005 (date of
S S
judgment 20 November 2007) where he held:
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“The mere fact of the occurrance of the accident is not sufficient
to give rise to a presumption of negligence on the part of the
B B
defendant. The burden of proof is on the plaintiff to show on a
balance of probabilities that there has occurred an event which is
C unusual and which, in the absence of explanation, is more C
consistent with fault on the part of the defendant than the absence
of fault. If, and only if, the plaintiff proves that the unusual event
D is more consistent with fault on the part of the defendant than the D
absence of fault, the evidential burden then shifts to the
defendant to show, on a balance of probabilities, that the accident
E E
happened without negligence on its part.”
F F
17. Mr Chan, representing the Defendant, referred me to the Hong
G Kong Court of Appeal case of Cheung Wai Mei v The Excelsior Hotel G
(Hong Kong) Ltd trading as The Excelsior, CACV38/2000 (date of
H H
judgment 22 November 2000) where the plaintiff slipped and fell inside the
I property of the defendant hotel. The Court of Appeal by majority allowed I
the appeal on the basis that the plaintiff had failed to prove any breach of
J J
duty on the defendant’s part.
K K
Findings
L L
18. Indeed, the burden is on the Plaintiff to show the Defendant
M was in breach of duty when an unusual event occurred which is more M
consistent with fault on the part of the Defendant than the absence of fault.
N N
In the present case, the Plaintiff and her colleague Miss Lam who
O witnessed the accident testified that in the Defendant’s restaurant floor was O
slippery and greasy on the day of the accident. Both of them noticed the
P P
phenomenon when they walked into the restaurant. Miss Lam went further
Q and said that she could feel the condition of the floor that day was different Q
from previous days she had visited the restaurant. She felt it was greasy
R R
and attributed the condition to the roast meat stand spilling grease onto the
S floor. S
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19. Miss Tang, the Plaintiff, further claimed that she discovered
B after she was admitted into hospital that the back of her skirt had been B
soiled by a dark patch. She claimed it was the grease from the Defendant’s
C C
wet floor which got onto her skirt when she fell onto the floor.
D D
20. On the other hand, the Defendant’s witness, Miss Chan Wing-
E E
yung, though present at the time of the accident did not see the accident.
F She only heard a bang sound. She also wrongly believed that Miss Tang F
had fallen at the same spot where she saw her got up after the accident.
G G
She had plainly mistaken the site of the accident to be next to the table and
H H
chair where she saw Miss Tang got up after the accident. In fact, that was
I
the chair where Miss Tang was helped into after the accident. I
J J
21. Given that Miss Chan made such a mistake in her evidence, it
K
is doubtful if her evidence that the floor of the restaurant was dry and clean K
could be sustained. In any event, even if the floor where she sat was dry
L L
and clean, it does not follow the corridor where Miss Tang fell was also
M
clean and dry on the day of the accident, contrary to the evidence of Miss M
Tang and her witness Miss Lam.
N N
O
22. I also have grave doubts as to the veracity of Miss Chan Po, O
the Defendant. In her defence, she pleaded that the Plaintiff was wearing
P P
high-heeled shoes on the day of the accident which was the cause of her
Q fall. Both Miss Tang and Miss Lam testified that both of them were in the Q
school’s teachers’ uniform and wearing flat-heeled white leather shoes
R R
required by the school.
S S
23. Further, Miss Chan in her defence pleaded that no warning
T T
signs were needed in her restaurant because the floor was clean and dry. At
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A A
the trial, Miss Chan produced photographs of the front and back of the door
B showing a ‘caution’ sign warning customers of slippery floors. This is also B
contrary to Miss Lam’s evidence who said she had been frequenting the
C C
Defendant’s restaurant since 1999 and had not seen such signs on the
D restaurant stalls before the accident. D
E E
24. I find Miss Tang and Miss Lam to be honest witnesses. They
F were able to give exact details of the accident on 13 July 2003, and further, F
they gave even more details on Miss Lam’s subsequent visits that afternoon
G G
and on 15 July 2003. On 15 July, Miss Lam visited the restaurant and
H alerted the Defendant’s staff of the accident and Miss Tang’s complaint of H
I
her injuries. I
J J
25. I find the evidence of Miss Chan Po, the Defendant, to be
K
inconsistent, it is also inconsistent with her defence. I find she had K
probably made up some of her evidence and tailored it according to the
L L
defence.
M M
26. I am aware of the relevant principles enunciated in the classic
N N
judgment of Erle CJ in the case of Scott v The London and St Katherine
O
Docks Company [1865] 3 H & C page 596 at 601 where he held: O
“Where the thing is shown to be under the management of the
P
defendant, or his servants, and the accident is such as, in the P
ordinary course of things, does not happen if those who have the
management use proper care, it affords reasonable evidence, in
Q the absence of explanation by the defendant, that the accident Q
arose from want of care.”
R R
27. The same passage has been adopted in the case of Ward v
S S
Tesco Stores at pages 813 to 814 of LJ Lawton’s judgment. The present
T
case is just one of such cases where the Plaintiff had successfully shown T
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A A
that she slipped and fell down on the floor of the Defendant’s restaurant
B and the Plaintiff had also shown she found the Defendant’s restaurant floor B
greasy before the accident happened.
C C
D 28. In her own evidence which was supported by her witness Miss D
Lam, the burden then shifted to the Defendant to show that the accident did
E E
not arise from want of care. Even though the Defendant claimed the floor
F of the restaurant was cleaned three times a day, she was not present when F
such cleanings were done. She claimed that the restaurant floor was
G G
cleaned by the cleaning staff responsible for washing dishes in the kitchen
H H
at 10 am, 3 pm and 10 pm or 10.30 pm. She admitted that her shift was
I
between 4 pm and 10 pm each day while her husband would take the early I
shift in the morning. The Defendant’s husband did not give evidence.
J J
K
29. The evidence of both Miss Tang and Miss Lam was that on the K
day of accident no one from the Defendant’s restaurant came up to find out
L L
how she was. When Miss Lam returned shortly after Miss Tang was taken
M
to the hospital, Madam Chan’s husband was not present, neither was he M
there two days later when Miss Tang and Miss Lam returned for the
N N
Defendant’s insurance information. It is quite clear in the Defendant’s
O
restaurant, from the evidence, there was no routine supervision of the daily O
cleaning. Madam Chan’s evidence was not based on facts but mere
P P
speculations. It was not from her own knowledge but what she assumed
Q would have been done in her absence. Q
R R
30. Furthermore, the use of non-slip tiles do not guarantee the
S floors to be completely slip-free as there are different grades of non-slip S
tiles in the market. The Defendant had failed to identify which type of non-
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A A
slip tiles she had used and the grade of non-slip tiles was used in her
B restaurant. B
C C
31. I therefore find the Plaintiff has successfully proved the
D Defendant to be negligent and in breach of her duty to warn visitors of the D
slippery floors in the restaurant and for failing to keep and maintain the
E E
property safe and slip-free and for being in breach of section 3 of the
F Occupiers Liability Ordinance, Cap.314. F
G G
Quantum
H H
32. The findings of joint orthopaedic experts the two doctors
I
appointed by the Plaintiff and the Defendant, confirmed the Plaintiff’s I
account of the accident to be consistent with the injuries. Osteoporosis was
J J
detected by the doctors in the bone densitometry performed at the
K
rehabilitation stage. They agreed it was present before the accident. But in K
Dr Chiang’s view, the Plaintiff’s left wrist would not have fractured but for
L L
the accident. The Defendant must take the victim as she finds her, it is the
M
thin skull rule. M
N N
33. The doctors found Miss Tang has a mild decrease in the range
O
of movement of the left wrist. They found a mildly prominent ulnar styloid O
which was contributed by the mild dorsal displacement of the distal radius
P P
due to the fracture. The doctors also agreed that Miss Tang suffered from a
Q mild reduction in efficiency relating to the residual complaints of Miss Q
Tang which included persistent on and off pain on the left wrist, numbness
R R
and lack of strength and reduced range of movement of the left wrist.
S S
Pain, Suffering, Loss of Amenities
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34. The Plaintiff now asked for $250,000 to compensate her pain,
B suffering and loss of amenities. Mr Luk, counsel for the Plaintiff, relied on B
a number of authorities including the case of Ho Bing Cheung v Lam Yin
C C
Tuk trading as Ocean Fast Food, DCPI66/2004, where District Judge C B
D Chan awarded the plaintiff in that case $220,000 under PSLA. The D
plaintiff was a 61-year-old man who fell on an oily patch underneath a fast
E E
food shop’s exhaust vent. He suffered a fracture of the distal radius and
F ulnar on the right wrist and mild tenderness to his mid lumbar spinal region. F
G G
35. In the case of Chan Cheuk Yiu v Chan Ho Kwan,
H H
HCPI879/2000, an assessment of damages by Master Mary Yuen on 30
I
June 2001, where she awarded $145,000 to the 22-year-old plaintiff who I
suffered a fracture to the distal radius of the right wrist and laceration to her
J J
right knee at a traffic accident. The plaintiff’s daily activities were said to
K
be unaffected by the injuries. K
L L
36. In the case of Chung Hok Sung v Li Kam Ming, HCPI393/1995,
M
Master Chung (as he then was) awarded on 19 May 1997 the 32-year-old M
plaintiff a sum of $200,000 where the plaintiff suffered fracture to the left
N N
ulnar radius, and the disability included the development of tennis elbow
O
and loosening of the distal radioulnar joint. O
P P
37. After careful consideration of the Plaintiff’s pain, suffering
Q and loss of amenities at and after the accident, and taking into account the Q
authorities cited to me, I also took into account the discomfort and
R R
disability Miss Tang suffered from now including her loss of enjoyment of
S sporting activities. I consider an award of $200,000 to be an appropriate S
award under this head.
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A A
Loss of Earnings
B Pre-trial Loss B
38. The Plaintiff though given 6 months of sick leave by the
C C
doctors only took 3 months’ leave for she did not wish to be absent during
D the start of the school term in 2003. She is now asking for one month’s D
loss of earnings plus the sum of $558.85 as her sick leave pay and the MPF
E E
retirement benefits. In total, she asks for $11,735.85. I accept that her
F claim is reasonable. F
G G
Loss of Earning Capacity
H H
39. The Plaintiff is working at the same job she was in at the time
I
of the accident is not claiming loss of future earnings, but she is claiming I
for a loss of earning capacity because of the injury suffered at the accident.
J J
She was 43 years old at the time of the accident. She is now 46 years old.
K
She claimed that she had received complaints because she stopped picking K
up her kindergarten pupils due to her left wrist had been weakened and was
L L
painful whenever she lifted heavy weights. She claimed that this has
M
created a handicap in the labour market. M
N N
40. I accept this is a genuine concern. However, I do not agree
O
with Mr Luk that this loss would attract an award of 12 months’ income. O
She would possibly be required to go through a period of re-training should
P P
she lose her present job as a kindergarten teacher. I would therefore give
Q her an award equivalent to 4 months of her present income to compensate Q
the period she will be taking for a re-training programme and for looking
R R
for new employment. I believe 4 months should be sufficient for that
S purpose. With the present monthly salary of $11,900, 4 months come to S
$47,600.
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A A
Future Medical Treatments
B 41. The Plaintiff asked for the sum of $15,000 under this head. I B
am satisfied that she would require medical attention from time to time due
C C
to the persistent pain and weakness of her left wrist and loss of range of
D movement. I find the sum of $15,000 to be a reasonable sum. D
E E
Special Damages
F (i) Medical Expenses of $3,770 F
42. I find this to be reasonable and justified.
G G
H H
(ii) Travelling Expenses of $4,477.60
I
43. This, I find to be also reasonably incurred. I
J J
(iii) Tonic Food
K
44. This item was not supported by any receipts or breakdowns. K
The Plaintiff merely claimed a monthly sum of $2,000 for a period of 2
L L
years. She claimed that her mother had prepared such tonic foods at her
M
request since the accident, and this was on average twice a week. However, M
she admitted she did not pay her mother any extra sums of money other
N N
than her usual monthly contributions that she had been giving to her mother.
O
I find this to be rather extraordinary because her mother is the one who O
should be compensated for the loss. And as no receipts had been produced
P P
and without any medical evidence in support of the use of Chinese
Q medicine or such herbs, I would award the sum of $10,000 to be Q
reimbursed to the Plaintiff’s mother by the Plaintiff.
R R
S (iv) Damage Done to Clothing, Personal Articles and Wristwatch S
45. I find these to be reasonable and I allow the sum of $1,184
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claimed.
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A A
B Summary B
Pain, suffering, loss of amenities: $200,000.00
C C
Pre-trial loss of earnings: $ 11,735.85
D Loss of earning capacity: $ 47,600.00 D
Future medical expenses: $ 15,000.00
E E
Special damages: $ 19,431.60
F TOTAL: $293,767.45 F
G G
Interests
H H
46. Interests on PSLA at 2% per annum from the date of writ to
I
the date of judgment. Interests on special damages at half judgment rate I
from the date of accident to the date of judgment, thereafter at judgment
J J
rate until full payment.
K K
Costs
L L
47. Costs should follow the event and I order costs to be borne by
M
the Defendant to the Plaintiff, to be taxed if not agreed, with certificate for M
counsel. Plaintiff’s own costs to be taxed in accordance with Legal Aid
N N
Regulations.
O O
P P
(H C Wong)
District Court Judge
Q Q
R
Mr Victor Luk Ying-wah, instructed by Messrs C H Chan & Co., assigned R
by DLA for the Plaintiff
Mr Chan Shu-yung, of Messrs Raymond Cheung & Chan, for the
S S
Defendant
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