A A
B DCPI 631/2012 B
C C
IN THE DISTRICT COURT OF THE
D HONG KONG SPECIAL ADMINISTRATIVE REGION D
PERSONAL INJURIES ACTION NO 631 OF 2012
E E
F -------------------- F
BETWEEN
G G
MA YONG MEI Plaintiff
H
and H
CHENG MUK LAM Defendant
I I
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J Coram: Deputy District Judge W K Wong in Court J
Date of Hearing: 17, 18 and 20 November 2014
K K
Date of Judgment: 4 December 2015
L L
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M M
JUDGMENT
N -------------------- N
O O
Introduction
P P
1. This is a personal injury case. The plaintiff claims loss and
Q Q
damages arising out of the defendant’s negligence in respect of an accident
R occurred to the plaintiff on 12 April 2009 at the swimming pool of Sutera R
Harbour Resort, 1 Sutera Harbour Boulevard, Kota Kinabalu, 88100 Sabah,
S S
Malaysia (“Harbour Resort”).
T T
U U
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A A
B 2. The plaintiff is unrepresented during the trial. B
C C
3. On 20 November 2014, when I was prepared to hear both
D parties’ closing submissions, the plaintiff produced her medical certificate D
and asked for time to submit her closing submission at a later day. No
E E
objection was from the defendant. As the plaintiff would go to the USA for
F about 2 months, both parties agreed to submit and deal with their closing F
submissions by papers instead of an oral hearing. In view of the plaintiff’s
G G
long holidays in the USA, I accepted this arrangement and directed that
H they were at liberty to apply for an oral hearing if necessary. H
I I
4. Due to the plaintiff’s late submission, I further extended the
J time for the defendant to make reply, ie not later than 14 January 2015. J
K K
5. On 24 December, 2014, the defendant in his reply alleged that
L the plaintiff had introduced many new assertions and documents in her L
closing submission which the defendant had not previously been made
M M
aware of, and so did not consider and cross-examine these new materials at
N trial. The defendant objected to all the new materials/evidence and had N
crossed out in red the references to the new assertions and documents in the
O O
plaintiff’s closing submission. (Copy is attached in the defendant’s reply.)
P P
6. It is unclear why the plaintiff had failed to disclose all these
Q Q
new materials before when she was legally represented. From the court
R record, the plaintiff had all along been legally represented until shortly R
before the trial dates.
S S
T T
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A A
B 7. The plaintiff was informed of the defendant’s objection by the B
defendant and she was aware that she was at liberty to ask for an oral
C C
hearing if needed.
D D
8. Up to 14 January, 2015, no such application had ever been
E E
made by either party. Therefore, I take all closing submissions of both
F
parties to be fully done. F
G G
9. Having considered the defendant’s objection and the relevant
H
circumstances in this case, I accept the defendant’s view that the plaintiff, H
though unrepresented at trial, does not entitle her to ignore the rules for a
I I
fair trial , particularly since both parties have closed their respective cases.
J I rule that all these new materials including documents attached to the J
plaintiff’s closing submission are not admitted as evidence in this case.
K K
Undisputed facts
L L
M
10. The plaintiff was born on 11 January 1965 and was about 44 M
years of age at the time of the accident.
N N
O
11. The plaintiff and the defendant were members of a tennis club O
and they knew each other through the same tennis club. They had been
P P
playing tennis with other members of the tennis club for a few years before
Q the alleged accident. The plaintiff and the defendant together with other Q
members of the tennis club frequently travelled on holidays and had done
R R
so for a number of years.
S S
12. On or about 12 April 2009, at about 11:00 am, the plaintiff
T T
and the defendant together with about 9 other members of the tennis club
U U
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A A
B and their families (“the Group”) were playing water volleyball at the B
Harbour Resort which had a tropical swimming pool with facilities for
C C
pool volleyball. The plaintiff and the defendant were separated by a net as
D they were in different teams. The game was intended to be for fun and D
leisure among friends and other holidaymakers. There were no particular
E E
set rules and the number of players on each team was different. The
F atmosphere of the game was fun and relaxed. Two photos taken at the F
scene (trial bundle Section B p 119 and 120) submitted by the defendant
G G
show the circumstances on that day when the water volleyball was played .
H H
13. The plaintiff got injured on her right eye while playing water
I I
volleyball. After returning to Hong Kong, the defendant took the plaintiff
J to see eye doctor. J
K Plaintiff’s case K
L L
14. At all material times of playing water volleyball, the plaintiff
M
was standing at a distance of about 1 foot from the net and trying to M
perform a block with both of her hands up without jumping. At about
N N
11:00 am, the defendant inadvertently extended his hand over the net and
O
spike the volleyball over the net into the plaintiff’s court, the defendant hit O
the plaintiff’s right eye by hand (“the accident”). The plaintiff lost
P P
consciousness for about 2 to 3 seconds and the defendant’s wife helped the
Q plaintiff leave the said swimming pool. As a result of the accident, the Q
plaintiff sustained serious injuries to her right eye and psychological /
R R
psychiatric impairment ensued. The accident was witnessed by the
S plaintiff’s witness, Mr. Lam Kwok Kei(林國基). Mr. Lam saw the net S
swinging after the defendant’s spiking or hitting.
T T
U U
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A A
B 15. Wan Shan Hung( 尹山紅 ) is also a member of the tennis club B
and has known both the plaintiff and the defendant since 2009. She did
C C
not go with them to the Harbour Resort. Two days after the accident, she
D met the defendant at the tennis club. The defendant admitted to her that he D
had hit the plaintiff’s eye carelessly by hand.
E E
F 16. The accident and the plaintiff’s pain, suffering and personal F
G
injuries were caused by the negligence on the part of the defendant. G
H H
17. As a result of the accident in question, the plaintiff has been
I
suffering from injuries to her right eye and psychological / psychiatric I
impairment ensured. Permanent disability is now left with her. After the
J J
accident, the plaintiff had received various medical treatments at Sabah
K Medical Centre Sdn Bhd, Hong Kong Eye Hospital, Dr Michael Y T K
Hung’s clinic, Dr Leo P W Chiu’s clinic, Hong Kong Eye Consultants, 深
L L
圳市中醫院, Dr Ng Fung Shing’s clinic and Tak Yan Dispensary Co Ltd.
M The various medical treatments she had received included but not limited M
to X-ray, MRI examination, acupuncture and medicine. Nonetheless, her
N N
injuries to her right eye and psychological / psychiatric injuries have been
O unrelieved. O
P P
18. According to the joint ophthalmic expert report prepared by
Q Dr Tsui Chung Wan and Dr Ng Wing Ho Kenneth dated 3 December 2013, Q
the plaintiff now still suffers from decreased elevation of the right eye in
R R
addition and also 2.5% impairment of the whole person as a result of the
S accident. S
T T
U U
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A A
B B
19. The plaintiff has since the accident suffered from:-
C C
(i) pain and discomfort in her right eye;
D (ii) double image; D
(iii) dizziness and nausea;
E E
(iv) limitation of right eye in elevation and depression eye
F movements; F
(v) limited field of vision;
G G
(vi) sleeping problem;
H (vii) anxiety disorder; H
(viii) concentration difficulty;
I I
(ix) negative emotions;
J (x) depression; and J
(xi) impaired memory.
K K
L L
20. Prior to the accident, the plaintiff had perfectly healthy eyes
M
with normal vision. For the 6 months immediately after the accident, the M
plaintiff had to cover up her right eye and conduct daily activities in only
N N
one eye in order to avoid diplopia and dizziness.
O O
21. Whilst the plaintiff can now still participate in usual sporting
P P
activities, she is forced to avoid sports that are more intense due to her eye
Q injury. As such, the plaintiff can no longer participate in surfing and skiing Q
which she enjoyed prior to the accident. Further, the plaintiff can no longer
R R
join sports competitions as she is now afraid of playing sports with
S strangers. S
T T
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-7-
A A
B 22. Prior to the accident, the plaintiff also enjoyed travelling B
around, visiting tourist spots and meeting new people. As a result of her
C C
eye injuries, however, the plaintiff can no longer enjoy her trips as she
D would suffer from diplopia without warning. D
E E
23. Because of the eye injury, the plaintiff has difficulties in
F
cooking, dining, driving, watching TV, reading books, etc. Her daily life is F
deeply affected.
G G
H
24. The plaintiff’s earning capacity has been as a result thereof H
and will continue to be impaired and affected by the said injuries and
I I
therefore suffers and will continue to suffer a handicap in the labour
J market. She could not find a job until she set up her company in October J
2010.
K K
L 25. In summary, the plaintiff claims for:- L
M M
(1) Pain, suffering and loss of amenities HK$450,000.00
N (2) Loss of earnings HK$196,800.00 N
(3) Loss of earning capacity/handicap
O O
in the market HK$200,000.00
P (4) Medical expenses HK$ 23,015.95 P
(5) Travelling expenses HK$ 10,000.00
Q Q
(6) Tonic food HK$ 5,000.00
R (7) Loss of pension/mandatory provident R
Fund HK$ 9,840.00
S S
(8) Interest To be assessed
T Total: HK$894,655.95 T
plus interest
U U
V V
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A A
B B
Defendant’s case
C C
D 26. The defendant did not call any witness other than himself to D
give evidence.
E E
F 27. In gist, the defendant alleged that:- F
G G
(a) The water depth at the area of the pool for playing
H water volleyball was shallow enough for standing and H
both the plaintiff and the defendant were standing in
I I
the pool while they were playing water volleyball.
J (b) The incident happened in the middle of the water J
volleyball game, when the plaintiff and the defendant
K K
together with the other members of the Group and other
L L
holidaymakers who had been playing the game for
M
sometime. Both sides had been striking and blocking M
the ball for a while.
N N
(c) At the time of the incident, the plaintiff was standing
O
quite close to the net with both her hands raised up. O
The defendant was standing opposite her, which was
P P
on the other side of the net.
Q (d) Just before the incident, the ball came near the Q
defendant and he jumped and reached up to hit the ball.
R R
Subsequently, the plaintiff got injury on her right eye.
S The defendant denied that his hand had extended over S
the net and inadvertently hit the plaintiff’s right eye.
T T
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A A
B (e) Jumping to reach the ball and attempting to hit it over B
the net is part and parcel of the game of volleyball and
C C
is a natural and instinctive reaction to the ball coming
D close to the defendant. The plaintiff had experienced D
such actions many times during the game in question.
E E
(f) The defendant was playing the game in a friendly and
F relaxed manner and did not know and could not have F
reasonably known that his actions might cause injury to
G G
the plaintiff, if it did.
H (g) The participants of the water volleyball game were H
high-spirited and having fun and the defendant had no
I I
intention to cause any harm or injury to anyone.
J J
28. Regarding to the damages issues, the defendant avers that the
K K
plaintiff’s injury is extremely minor. He, if found liable to pay damages,
L agrees to pay the following damages but subject to the plaintiff’s strict L
proof:
M M
N PSLA HK$50,000 N
Loss of earning HK$24,000
O O
Loss of earnig capacity Nil
P Medical expenses HK$5,000 P
Travelling expenses HK$3,000
Q Q
Tonic food HK$1,500
R Loss of pension/MPF HK$1,200 R
Interest Nil
S S
Total: HK$84,700
T T
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A A
B 29. The defendant also claims for damages to be reduced because B
of the plaintiff’s contributory negligence and tax issues.
C C
D Facts finding D
E E
30. The main facts in dispute in this case is whether the defendant
F had extended his hand over the net and hit the plaintiff’s right eye with F
hand while he was jumping to spike the volleyball.
G G
H 31. From the photos produced by the defendant which are not in H
dispute, I am satisfied that the plaintiff was always standing quite close to
I I
the net (about one foot away). The depth of pool was 1.4 meters. The net
J was relatively tall and the the top of the plaintiff’s head was significantly J
below the top of the net. The photos also show the water extended to about
K K
the defendant’s chest level and it was unlikely that the defendant could
L L
have jumped very high. The net was not fastened very tightly on either side.
M
I accept the defendant’s estimation that the net was about 7 feet high. M
During the game, players who were close to the net might jump and spike
N N
or block the volleyball.
O O
32. The plaintiff alleged that at the material time of the accident
P P
occurred, she was standing at a distance of about 1 foot from the net and
Q trying to perform a block with both of her hands up without jumping. If that Q
was the case, considering the defendant’s height and the water resistance
R R
force, if the defendant did jump to spike or hit the ball which was on his
S side of the net, he would not have needed to extend his arm across to the S
other side. Even if his hand had crossed over , it is unlikely the defendant’s
T T
hand would have struck the plaintiff’s eye if at the material time she was
U U
V V
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A A
B not jumping and just standing there. Besides, it would be very difficult for B
the defendant to extend his hand over the net and hit the plaintiff’s eye
C C
without pressing down the net low. If the defendant really hit the plaintiff’s
D eye by extending his hand over the net, the defendant must inevitably lost D
his balance after spiking the ball, which must be seen by everyone in the
E E
pool.
F F
33. Right after the accident, the plaintiff was taken to the
G G
treatment room in the hotel. According to the record of guest incident
H report dated 12.4.2009, the plaintiff told the hotel guard that her right eye H
was hit by the ball. The plaintiff during the cross–examination tried to
I I
explain that away by saying her ability to use English is not good and she
J had expressed herself wrongly. This is unacceptable because the words J
“ball” and “hand” are both commonly used terms and someone having a
K K
secondary education level could not possibly mix them up. I do not accept
L L
her explanation.
M M
34. Both witnesses of the plaintiff do not help the plaintiff’s case
N N
much.
O O
35. Mr Lam while giving evidence in court admitted that he could
P P
not see how the accident occurred clearly as he did not pay full attention to
Q the plaintiff. Mr Lam later also saw the shaking of the net and therefore Q
drew the inference that when the defendant was spiking the ball, the
R R
defendant’s hand went beyond over the net and hit the eye of the plaintiff.
S The inference drawn by Mr Lam is at odds with the circumstantial S
evidence at the time. It is common knowledge that when the depth of water
T T
reaches one’s chest, jumping up from the water will meet with the water’s
U U
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A A
B resistance. It is difficult to jump up even about 0.5 metre from the water. In B
other words, even though the defendant is someone who exercises
C C
regularly, in the circumstances, at most he would have touched the top of
D the net when he jumped up to spike the ball. It is impossible that his hand D
would have gone beyond over the net and hit the eye of the plaintiff who
E E
was standing about one foot from the net and without jumping up. The
F reason is very simple. The eye of the plaintiff was about one metre from the F
top of the net (see photos). The plaintiff’s evidence is that at the moment of
G G
the accident, she did not jump up but only raised her arms to intercept the
H ball. In the circumstances, the defendant’s hand could not possibly have H
come into contact with the eye of the plaintiff. If there were contact, then
I I
the better part of the defendant’s body must have pressed on the net,
J causing him to lose his balance. And Mr Lam would certainly have seen J
the defendant’s body pressed on the net. All Mr Lam saw was the shaking
K K
of the net. Such shaking could be caused by the contact between the net and
L
the ball or the defendant’s hand after he spiked the ball. Furthermore, Mr L
M
Lam admitted that he had talked about the case with the plaintiff before M
writing his witness statement. I have reason to believe that Mr Lam’s
N N
evidence is partial and cannot be believed entirely.
O O
36. The plaintiff’s witness, Madam Fong, was not present at the
P scene at the time when the accident occurred. She said firmly that after the P
defendant returned to Hong Kong, the defendant admitted to her in person
Q Q
that the hand of the defendant had injured the eye of the plaintiff. The
R defendant denied that and said he was only expressing regret for having R
injured the plaintiff. The defendant’s version is credible because as
S S
analysed above, in the circumstances of what happened at the time, the
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A A
B defendant’s hand could not possibly have come into contact with the eye of B
the plaintiff.
C C
D 37. All in all, I find the plaintiff’s case is illogical and against D
common sense. I reject her version.
E E
F
38. Having considered all evidence before me, I accept the F
defendant’s version and find that at the material time when the plaintiff got
G G
hurt, her right eye was hit by the water volleyball spiked by the defendant.
H H
Liability
I I
39. The law is very clear. The standard of care in sporting context
J is different than a non-sporting context. J
K K
40. In Blake v Galloway [2004] 1 WLR 2844, Dyson LJ said , at
L para 8-11: L
“ that participants in sport games generally owe each other
M M
a duty of care and that the standard of care depends on all
N the circumstances of the case, and that the threshold for N
liability is high (see para 11)”
O O
“there will be no liability for errors of judgement,
P oversights or lapses of which any participant might be P
guilty in the context of a fast-moving contest. Something
Q Q
more serious is required”
R R
41. Diplocks LJ (as he then was) had said in Woolridge v Summer
S S
& another [1963] 2 QB 43:
T T
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A A
B “ a person attending a game or competition takes the risk B
of any damage caused to him by any act of a participant
C C
done in the course of and for the purposes of the game or
D competition notwithstanding that such acts may involve D
an error of judgement or lapse of skill, unless the
E E
participant’s conduct is such as to evince a reckless
F disregard of the spectator’s safety” F
G G
42. The above principle was also applied in Hong Kong in Chan
H Kin Bun v Wong Sze Ming & another (HCPI1549/2014), Deputy Judge H
Saunderss (as he then was) followed the same English cases and dismissed
I I
the plaintiff’s claim who was hurt during a mock sword flight using
J T-square rulers. J
K K
43. Under normal circumstances, the participants who willingly
L L
engaged in a vigorous sport must have impliedly consented to assuming
M
certain risk of injury [see Charlesworth & Percy on Negligence, 10th ed., M
paras. 3-76a to 3-77, p.209].
N N
O O
44. The standard of care owed by a professional player in a
P contest might be high. In Condon v Basi [1985] 2 ALL ER 453, Sir John P
Donaldson M.R. said ,“Thus there will of course be a higher degree of care
Q Q
required of a player in a First Division football match than of a player in a
R local league football match.” R
S S
45. I notice that the scenario in this case is partly different to the
T above quoted cases. Firstly the defendant was not the organizer of the T
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A A
B game and he was one of the players only. Secondly, there was a net to B
separate these two teams players. However, by willingly taking part in the
C C
game, the plaintiff impliedly consented to any contact which could
D reasonably be expected to occur in the course of it (Woolridge v Summer & D
Another [1963] 2 QB 43, Mullin v Richards & Another [1998] 1 All ER
E E
920).
F F
46. As to what are reasonable precautions, Mason J (as he then
G G
was) in Wyong Shire County Council v Shirt and others (1980) 29 ALR 217
H
saidat page 221: H
"In deciding whether there has been a breach of the duty of
I I
care the tribunal of fact must first ask itself whether a
J reasonable man in the defendant's position would have J
foreseen that his conduct involved a risk of injury to the
K K
plaintiff or to a class of persons including the plaintiff. If
L the answer be in the affirmative, it is then for the tribunal L
of fact to determine what a reasonable man would do by
M M
way of response to the risk. The perception of the
N reasonable man's response calls for a consideration of the N
magnitude of the risk and the degree of the probability of
O O
its occurrence, along with the expense, difficulty and
P inconvenience of taking alleviating action and any other P
conflicting responsibilities which the defendant may have.
Q Q
It is only when these matters are balanced out that the
R tribunal of fact can confidently assert what is the standard R
of response to be ascribed to the reasonable man placed in
S S
the defendant's position. The considerations to which I
T have referred indicate that a risk of injury which is remote T
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A A
B in the sense that it is extremely unlikely to occur may B
nevertheless constitute a foreseeable risk. A risk which is
C C
not far-fetched or fanciful is real and therefore foreseeable.
D But, as we have seen, the existence of a foreseeable risk of D
injury does not in itself dispose of the question of breach
E E
of duty. The magnitude of the risk and its degree of
F probability remain to be considered with other relevant F
factors."
G G
H 47. It is normal and foreseeable while playing water volleyball in H
the pool, a player who is close to the net jumps and reaches up to hit the
I I
ball to the opponents’ court . In fact, jumping to reach the ball and
J attempting to hit the ball over the net is part and parcel of the game of water J
volleyball and is natural and instinctive reaction to the ball coming close
K K
to the defendant. The plaintiff should have experienced such actions many
L L
times during the game in question. All these actions were foreseeable by
M
the plaintiff. M
N N
48. Having further considered the game was intended to be for
O
fun and leisure among friends and other holidaymakers and no particular O
rules were set for the game, I find that the defendant was not acting
P P
recklessly when he spiked the ball and the ball inadvertently hit the
Q plaintiff’s right eye. In such circumstances, according to the above legal Q
principle, I find that taking to the highest, it is an error of judgement or
R R
lapse of skill on the defendant’s part, hence, the defendant is not liable to
S the plaintiff’s injury of her right eye. S
T Quantum T
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A A
B 49. Having found against the plaintiff on liability, her claim B
stands to be dismissed and it is strictly unnecessary to deal with the issue of
C C
contributory negligence and the quantum of the claim. However, in case I
D am wrong on the issue of liability, I briefly set out below my views on D
contributory negligence and the various heads of damages claimed.
E E
F 50. If I had accepted the plaintiff’s case, I would not have found F
that there was any contributory negligence on her part.
G G
H H
51. The plaintiff was born in 1965 and at the time the accident
I occurred she was 44 years old. I
J J
PSLA
K K
52. The plaintiff claims that because of her eye injury, she could
L L
no longer participate in surfing and skiing and join sports competitions as
M M
she is now afraid of playing sports with strangers. Furthermore, prior to the
N
accident, she always travelled around, visiting tourist spots and meeting N
new people, but now she gives up her trips as she would suffer from
O O
diplopia without warning. Her daily life is deeply affexted by blurred
P image. P
Q Q
53. The plaintiff asks for the award under this head is
R HK$450,000.00. R
S S
T T
U U
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A A
B 54. The defendant objects to the plaintiff’s claim as he alleged B
that the injury suffered by the plaintiff is extremely minor and any damages
C C
payable under this head would not be more than HK$50,000.00.
D D
55. The defendant mainly relies on the joint ophthalmic expert
E E
report of 3 December 2013(“the joint expert report”). Both experts agree
F that the plaintiff has exaggerated her alleged visual impact. They also F
opine that the allegation that the plaintiff has to raise books and
G G
newspapers when reading is inconsistent with her injury as she should
H experience more double vision when looking upward. Besides, both H
experts also agree that the plaintiff should be able to carry out her activities
I I
of daily living with no restriction.
J J
56. Both experts in paragraph 7 of the joint expert report clearly
K K
states that the plaintiff could have exaggerated her symptoms of diplopia.
L L
Both experts admit that according to the joint assessment conducted on 21
M
August 2013, the plaintiff was found to suffer from decreased elevation of M
the right eye in adduction . The clinical findings and progress of the
N N
plaintiff are consistent with the clinical diagnosis. Both experts estimate
O
that the plaintiff has suffered around 10% loss of ocular motility as a result O
of the accident.
P P
57. I accept the findings of the joint medical report.
Q Q
R 58. In any events, the plaintiff admitted that she could now still R
participate in usual sporting activities. The plaintiff was fond of sports , but
S S
she was not an amateur athlete . In view of her diplopia problem, I believe
T T
U U
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A A
B it will affect her performance in joining sports competitions and B
participate in surfing and skiing.
C C
59. In the absence of a head injury evidence, I do not accept that
D D
the plaintiff had lost consciousness.
E E
F
60. In Leung Moon Sing v Yu Hon Kuen [2006] HKLRD (Yrbk) 374, F
the plaintiff suffered eye injury (spray paint exploded into eyes, eyes
G G
padded after saline irritation, epithelial effect healed with no scar,
H
impairment of tear secretion resulting in dry eyes), Deputy Judge Wong H
awarded a sum of HK$65,000 to the plaintiff under PSLA.
I I
J 61. In Chan Yim v Shing Cheong Construction Ltd [2007] J
HKLRD (Yrbk) 411 , the plaintiff got bruises over medial corner of right
K K
upper eyelid, mild diplopia, mild right hypertropia. Deputy District Judge
L Longley awarded the plaintiff a sum of HK$230,000 under PSLA L
M M
62. Having taken the above cases into consideration, I consider
N that an appropriate award for PSLA would have been HK$150,000. N
O O
Loss of earning
P P
63. The plaintiff claims that prior to the accident, she secured a
Q Q
job with a company to work as a clerk and the monthly salary was about
R HK$12,000. As a result of the accident, the plaintiff was unable to work R
and had to turn down the aforesaid job offer. The plaintiff had been unable
S S
to return to work until 26 October 2010 when she set up a limited company
T in Hong Kong. T
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V V
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A A
B B
64. The plaintiff’s loss of earnings from 12 April to 25 October
C C
2010 would be HK$196,800. ( HK$12,000 x 16.4 month)
D D
65. The burden of proof is on the plaintiff, but under this head, the
E E
plaintiff did not produce any proof neither written documents nor witness
F statements from the offeror to prove that at the material time a job was F
offered to her. According to the joint expert report, sick leave of two
G G
months given to the plaintiff is reasonable. In other words, the plaintiff is
H entitled to have two months’ loss of earnings. However, the plaintiff fails to H
prove that during the sick leave period she had earning capacity. The
I I
plaintiff claims that she is a freelance worker in advertising field, but the
J letters from Inland Revenue Department dated 12 September 2013 clearly J
stated that there is no record of the plaintiff’s income from 2007 to 2013.
K K
In such circumstances, I do not believe that the plaintiff had secured any
L L
employment at the time of the accident and has suffered any loss of
M
earnings during the sick leave period. No award would have been granted M
under this head.
N N
O
Loss of earning capacity/ handicap in the market O
P P
66. The plaintiff alleges that both experts estimate she suffers 5%
Q loss of earning capacity. She further claims that by reason of the Q
permanent disability suffered by her, a sum of HK$200,000 should be
R R
awarded to her under this head.
S S
67. The plaintiff does not give a full account how this figure
T T
arrives at .
U U
V V
- 21 -
A A
B B
68. Having carefully studied the joint expert report, I note that
C C
both experts clearly say that the 5% loss of earning capacity is purely for
D the parties’ reference. In their conclusion , the plaintiff was found to have D
depressed ocular motility of the right eye and now still suffers from
E E
decreased elevation of the right eye in adduction. The plaintiff suffered
F 2.5% impairment of the whole person as a result of the said accident. F
Regarding to the loss of earning capacity, the experts’ view is that the
G G
plaintiff has been suffering from diplopia only on extreme upgaze, and she
H should be able to work as a clerk since reading and writing involve mainly H
downgaze, her diplopia in extreme upgaze should impose little restriction
I I
or limitation on her working capacity as a clerk.
J J
69. The plaintiff claims that she had worked in the field of
K K
advertising and had also worked at the sales department of Sing Tao Daily
L L
before the accident occurred. In 2010, she started her own trading business.
M
Other than Mr Lam’s evidence that the plaintiff had been his colleague M
when he was with Sing Tao Daily, the plaintiff fails to produce any proof
N N
regarding to her occupation and income. It is a bare allegation only.
O O
70. The burden of proving damages is on the plaintiff ( see Chan
P P
Siu Youn v Ng Kam Man & others HCPI533/1999). The plaintiff is not
Q entitled to put figures before the Court and seek them without proper Q
evidence (see Yim Fat Fong v Wong Kim Hung & another
R R
HCPI1173/1996).
S S
71. The plaintiff admitted she did not try to return work after the
T T
reasonable period of sick leave.
U U
V V
- 22 -
A A
B B
72. Having considered all the evidence before me, I am not
C C
satisfied that the plaintiff has suffered any loss of earning capacity.
D D
Medical expenses
E E
73. I find the medical expenses sated in the plaintiff’s revised
F statement of damages are necessary and reasonable. The plaintiff would F
have been awarded HK$23,015.95 for medical expenses.
G G
H
Travelling expenses H
74. The plaintiff claims for a sum of about HK$10,000 without
I I
any documentary proof, I notice that the plaintiff went to Shenzhen, China
J 11 times for medical treatment, and the rest of consultation places were all J
in Hong Kong.
K K
L L
75. Having considered that there may be difficulties for the
M
plaintiff to produce documentary proof for taking public transport by using M
Octopus card, in any events, the necessity of travelling expenses is not in
N N
doubt. However, I do not believe that the plaintiff did spend a sum of
O
HK$10,000 as travelling expenses. I consider that an award of HK$5,000 O
would have been appropriate.
P P
Tonic Food
Q Q
76. No documentary proof has been produced by the plaintiff as
R R
to the necessity and reasonableness of buying tonic food. I decline to grant
S any sum to the plaintiff under this head. S
T Loss of pension/mandatory provident fund T
U U
V V
- 23 -
A A
B 77. The plaintiff totally fails to prove that she has been a member B
of any pension scheme and / or mandatory provident fund. I find that she
C C
has suffered no loss under this head. Her claim under this head must fail.
D D
E E
Summary on quantum
F F
78. The total award, excluding interest, would have been
G HK$178,015.95 as tabulated below: G
H H
PSLA HK$150,000.00
Medical expenses HK$ 23,015.95
I I
Travelling expenses HK$ 5,000.00
Total: HK$178,015.95
J J
K Interest K
L L
79. The interest should be awarded on the PSLA award at 2% p.a.
M from the date of writ to the date of judgment and that interest on all pre-trial M
loss of earnings should be awarded at half of the judgment rate from the
N N
date of accident to the date of judgment.
O O
Conclusion
P P
Q 80. As I have determined the issue of liability against the plaintiff, Q
the action is dismissed.
R R
S S
T T
U U
V V
- 24 -
A A
B 81. I make an order nisi that the plaintiff pay the defendant’s costs B
of the action, to be taxed if not agreed, with certificate for counsel.
C C
D D
E E
( W K Wong )
Deputy District Judge
F F
G The plaintiff appeared in person G
H Mr Ashok Sakhrani instructed by Kennedys, for the defendant H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V
A A
B DCPI 631/2012 B
C C
IN THE DISTRICT COURT OF THE
D HONG KONG SPECIAL ADMINISTRATIVE REGION D
PERSONAL INJURIES ACTION NO 631 OF 2012
E E
F -------------------- F
BETWEEN
G G
MA YONG MEI Plaintiff
H
and H
CHENG MUK LAM Defendant
I I
--------------------
J Coram: Deputy District Judge W K Wong in Court J
Date of Hearing: 17, 18 and 20 November 2014
K K
Date of Judgment: 4 December 2015
L L
--------------------
M M
JUDGMENT
N -------------------- N
O O
Introduction
P P
1. This is a personal injury case. The plaintiff claims loss and
Q Q
damages arising out of the defendant’s negligence in respect of an accident
R occurred to the plaintiff on 12 April 2009 at the swimming pool of Sutera R
Harbour Resort, 1 Sutera Harbour Boulevard, Kota Kinabalu, 88100 Sabah,
S S
Malaysia (“Harbour Resort”).
T T
U U
V V
-2-
A A
B 2. The plaintiff is unrepresented during the trial. B
C C
3. On 20 November 2014, when I was prepared to hear both
D parties’ closing submissions, the plaintiff produced her medical certificate D
and asked for time to submit her closing submission at a later day. No
E E
objection was from the defendant. As the plaintiff would go to the USA for
F about 2 months, both parties agreed to submit and deal with their closing F
submissions by papers instead of an oral hearing. In view of the plaintiff’s
G G
long holidays in the USA, I accepted this arrangement and directed that
H they were at liberty to apply for an oral hearing if necessary. H
I I
4. Due to the plaintiff’s late submission, I further extended the
J time for the defendant to make reply, ie not later than 14 January 2015. J
K K
5. On 24 December, 2014, the defendant in his reply alleged that
L the plaintiff had introduced many new assertions and documents in her L
closing submission which the defendant had not previously been made
M M
aware of, and so did not consider and cross-examine these new materials at
N trial. The defendant objected to all the new materials/evidence and had N
crossed out in red the references to the new assertions and documents in the
O O
plaintiff’s closing submission. (Copy is attached in the defendant’s reply.)
P P
6. It is unclear why the plaintiff had failed to disclose all these
Q Q
new materials before when she was legally represented. From the court
R record, the plaintiff had all along been legally represented until shortly R
before the trial dates.
S S
T T
U U
V V
-3-
A A
B 7. The plaintiff was informed of the defendant’s objection by the B
defendant and she was aware that she was at liberty to ask for an oral
C C
hearing if needed.
D D
8. Up to 14 January, 2015, no such application had ever been
E E
made by either party. Therefore, I take all closing submissions of both
F
parties to be fully done. F
G G
9. Having considered the defendant’s objection and the relevant
H
circumstances in this case, I accept the defendant’s view that the plaintiff, H
though unrepresented at trial, does not entitle her to ignore the rules for a
I I
fair trial , particularly since both parties have closed their respective cases.
J I rule that all these new materials including documents attached to the J
plaintiff’s closing submission are not admitted as evidence in this case.
K K
Undisputed facts
L L
M
10. The plaintiff was born on 11 January 1965 and was about 44 M
years of age at the time of the accident.
N N
O
11. The plaintiff and the defendant were members of a tennis club O
and they knew each other through the same tennis club. They had been
P P
playing tennis with other members of the tennis club for a few years before
Q the alleged accident. The plaintiff and the defendant together with other Q
members of the tennis club frequently travelled on holidays and had done
R R
so for a number of years.
S S
12. On or about 12 April 2009, at about 11:00 am, the plaintiff
T T
and the defendant together with about 9 other members of the tennis club
U U
V V
-4-
A A
B and their families (“the Group”) were playing water volleyball at the B
Harbour Resort which had a tropical swimming pool with facilities for
C C
pool volleyball. The plaintiff and the defendant were separated by a net as
D they were in different teams. The game was intended to be for fun and D
leisure among friends and other holidaymakers. There were no particular
E E
set rules and the number of players on each team was different. The
F atmosphere of the game was fun and relaxed. Two photos taken at the F
scene (trial bundle Section B p 119 and 120) submitted by the defendant
G G
show the circumstances on that day when the water volleyball was played .
H H
13. The plaintiff got injured on her right eye while playing water
I I
volleyball. After returning to Hong Kong, the defendant took the plaintiff
J to see eye doctor. J
K Plaintiff’s case K
L L
14. At all material times of playing water volleyball, the plaintiff
M
was standing at a distance of about 1 foot from the net and trying to M
perform a block with both of her hands up without jumping. At about
N N
11:00 am, the defendant inadvertently extended his hand over the net and
O
spike the volleyball over the net into the plaintiff’s court, the defendant hit O
the plaintiff’s right eye by hand (“the accident”). The plaintiff lost
P P
consciousness for about 2 to 3 seconds and the defendant’s wife helped the
Q plaintiff leave the said swimming pool. As a result of the accident, the Q
plaintiff sustained serious injuries to her right eye and psychological /
R R
psychiatric impairment ensued. The accident was witnessed by the
S plaintiff’s witness, Mr. Lam Kwok Kei(林國基). Mr. Lam saw the net S
swinging after the defendant’s spiking or hitting.
T T
U U
V V
-5-
A A
B 15. Wan Shan Hung( 尹山紅 ) is also a member of the tennis club B
and has known both the plaintiff and the defendant since 2009. She did
C C
not go with them to the Harbour Resort. Two days after the accident, she
D met the defendant at the tennis club. The defendant admitted to her that he D
had hit the plaintiff’s eye carelessly by hand.
E E
F 16. The accident and the plaintiff’s pain, suffering and personal F
G
injuries were caused by the negligence on the part of the defendant. G
H H
17. As a result of the accident in question, the plaintiff has been
I
suffering from injuries to her right eye and psychological / psychiatric I
impairment ensured. Permanent disability is now left with her. After the
J J
accident, the plaintiff had received various medical treatments at Sabah
K Medical Centre Sdn Bhd, Hong Kong Eye Hospital, Dr Michael Y T K
Hung’s clinic, Dr Leo P W Chiu’s clinic, Hong Kong Eye Consultants, 深
L L
圳市中醫院, Dr Ng Fung Shing’s clinic and Tak Yan Dispensary Co Ltd.
M The various medical treatments she had received included but not limited M
to X-ray, MRI examination, acupuncture and medicine. Nonetheless, her
N N
injuries to her right eye and psychological / psychiatric injuries have been
O unrelieved. O
P P
18. According to the joint ophthalmic expert report prepared by
Q Dr Tsui Chung Wan and Dr Ng Wing Ho Kenneth dated 3 December 2013, Q
the plaintiff now still suffers from decreased elevation of the right eye in
R R
addition and also 2.5% impairment of the whole person as a result of the
S accident. S
T T
U U
V V
-6-
A A
B B
19. The plaintiff has since the accident suffered from:-
C C
(i) pain and discomfort in her right eye;
D (ii) double image; D
(iii) dizziness and nausea;
E E
(iv) limitation of right eye in elevation and depression eye
F movements; F
(v) limited field of vision;
G G
(vi) sleeping problem;
H (vii) anxiety disorder; H
(viii) concentration difficulty;
I I
(ix) negative emotions;
J (x) depression; and J
(xi) impaired memory.
K K
L L
20. Prior to the accident, the plaintiff had perfectly healthy eyes
M
with normal vision. For the 6 months immediately after the accident, the M
plaintiff had to cover up her right eye and conduct daily activities in only
N N
one eye in order to avoid diplopia and dizziness.
O O
21. Whilst the plaintiff can now still participate in usual sporting
P P
activities, she is forced to avoid sports that are more intense due to her eye
Q injury. As such, the plaintiff can no longer participate in surfing and skiing Q
which she enjoyed prior to the accident. Further, the plaintiff can no longer
R R
join sports competitions as she is now afraid of playing sports with
S strangers. S
T T
U U
V V
-7-
A A
B 22. Prior to the accident, the plaintiff also enjoyed travelling B
around, visiting tourist spots and meeting new people. As a result of her
C C
eye injuries, however, the plaintiff can no longer enjoy her trips as she
D would suffer from diplopia without warning. D
E E
23. Because of the eye injury, the plaintiff has difficulties in
F
cooking, dining, driving, watching TV, reading books, etc. Her daily life is F
deeply affected.
G G
H
24. The plaintiff’s earning capacity has been as a result thereof H
and will continue to be impaired and affected by the said injuries and
I I
therefore suffers and will continue to suffer a handicap in the labour
J market. She could not find a job until she set up her company in October J
2010.
K K
L 25. In summary, the plaintiff claims for:- L
M M
(1) Pain, suffering and loss of amenities HK$450,000.00
N (2) Loss of earnings HK$196,800.00 N
(3) Loss of earning capacity/handicap
O O
in the market HK$200,000.00
P (4) Medical expenses HK$ 23,015.95 P
(5) Travelling expenses HK$ 10,000.00
Q Q
(6) Tonic food HK$ 5,000.00
R (7) Loss of pension/mandatory provident R
Fund HK$ 9,840.00
S S
(8) Interest To be assessed
T Total: HK$894,655.95 T
plus interest
U U
V V
-8-
A A
B B
Defendant’s case
C C
D 26. The defendant did not call any witness other than himself to D
give evidence.
E E
F 27. In gist, the defendant alleged that:- F
G G
(a) The water depth at the area of the pool for playing
H water volleyball was shallow enough for standing and H
both the plaintiff and the defendant were standing in
I I
the pool while they were playing water volleyball.
J (b) The incident happened in the middle of the water J
volleyball game, when the plaintiff and the defendant
K K
together with the other members of the Group and other
L L
holidaymakers who had been playing the game for
M
sometime. Both sides had been striking and blocking M
the ball for a while.
N N
(c) At the time of the incident, the plaintiff was standing
O
quite close to the net with both her hands raised up. O
The defendant was standing opposite her, which was
P P
on the other side of the net.
Q (d) Just before the incident, the ball came near the Q
defendant and he jumped and reached up to hit the ball.
R R
Subsequently, the plaintiff got injury on her right eye.
S The defendant denied that his hand had extended over S
the net and inadvertently hit the plaintiff’s right eye.
T T
U U
V V
-9-
A A
B (e) Jumping to reach the ball and attempting to hit it over B
the net is part and parcel of the game of volleyball and
C C
is a natural and instinctive reaction to the ball coming
D close to the defendant. The plaintiff had experienced D
such actions many times during the game in question.
E E
(f) The defendant was playing the game in a friendly and
F relaxed manner and did not know and could not have F
reasonably known that his actions might cause injury to
G G
the plaintiff, if it did.
H (g) The participants of the water volleyball game were H
high-spirited and having fun and the defendant had no
I I
intention to cause any harm or injury to anyone.
J J
28. Regarding to the damages issues, the defendant avers that the
K K
plaintiff’s injury is extremely minor. He, if found liable to pay damages,
L agrees to pay the following damages but subject to the plaintiff’s strict L
proof:
M M
N PSLA HK$50,000 N
Loss of earning HK$24,000
O O
Loss of earnig capacity Nil
P Medical expenses HK$5,000 P
Travelling expenses HK$3,000
Q Q
Tonic food HK$1,500
R Loss of pension/MPF HK$1,200 R
Interest Nil
S S
Total: HK$84,700
T T
U U
V V
- 10 -
A A
B 29. The defendant also claims for damages to be reduced because B
of the plaintiff’s contributory negligence and tax issues.
C C
D Facts finding D
E E
30. The main facts in dispute in this case is whether the defendant
F had extended his hand over the net and hit the plaintiff’s right eye with F
hand while he was jumping to spike the volleyball.
G G
H 31. From the photos produced by the defendant which are not in H
dispute, I am satisfied that the plaintiff was always standing quite close to
I I
the net (about one foot away). The depth of pool was 1.4 meters. The net
J was relatively tall and the the top of the plaintiff’s head was significantly J
below the top of the net. The photos also show the water extended to about
K K
the defendant’s chest level and it was unlikely that the defendant could
L L
have jumped very high. The net was not fastened very tightly on either side.
M
I accept the defendant’s estimation that the net was about 7 feet high. M
During the game, players who were close to the net might jump and spike
N N
or block the volleyball.
O O
32. The plaintiff alleged that at the material time of the accident
P P
occurred, she was standing at a distance of about 1 foot from the net and
Q trying to perform a block with both of her hands up without jumping. If that Q
was the case, considering the defendant’s height and the water resistance
R R
force, if the defendant did jump to spike or hit the ball which was on his
S side of the net, he would not have needed to extend his arm across to the S
other side. Even if his hand had crossed over , it is unlikely the defendant’s
T T
hand would have struck the plaintiff’s eye if at the material time she was
U U
V V
- 11 -
A A
B not jumping and just standing there. Besides, it would be very difficult for B
the defendant to extend his hand over the net and hit the plaintiff’s eye
C C
without pressing down the net low. If the defendant really hit the plaintiff’s
D eye by extending his hand over the net, the defendant must inevitably lost D
his balance after spiking the ball, which must be seen by everyone in the
E E
pool.
F F
33. Right after the accident, the plaintiff was taken to the
G G
treatment room in the hotel. According to the record of guest incident
H report dated 12.4.2009, the plaintiff told the hotel guard that her right eye H
was hit by the ball. The plaintiff during the cross–examination tried to
I I
explain that away by saying her ability to use English is not good and she
J had expressed herself wrongly. This is unacceptable because the words J
“ball” and “hand” are both commonly used terms and someone having a
K K
secondary education level could not possibly mix them up. I do not accept
L L
her explanation.
M M
34. Both witnesses of the plaintiff do not help the plaintiff’s case
N N
much.
O O
35. Mr Lam while giving evidence in court admitted that he could
P P
not see how the accident occurred clearly as he did not pay full attention to
Q the plaintiff. Mr Lam later also saw the shaking of the net and therefore Q
drew the inference that when the defendant was spiking the ball, the
R R
defendant’s hand went beyond over the net and hit the eye of the plaintiff.
S The inference drawn by Mr Lam is at odds with the circumstantial S
evidence at the time. It is common knowledge that when the depth of water
T T
reaches one’s chest, jumping up from the water will meet with the water’s
U U
V V
- 12 -
A A
B resistance. It is difficult to jump up even about 0.5 metre from the water. In B
other words, even though the defendant is someone who exercises
C C
regularly, in the circumstances, at most he would have touched the top of
D the net when he jumped up to spike the ball. It is impossible that his hand D
would have gone beyond over the net and hit the eye of the plaintiff who
E E
was standing about one foot from the net and without jumping up. The
F reason is very simple. The eye of the plaintiff was about one metre from the F
top of the net (see photos). The plaintiff’s evidence is that at the moment of
G G
the accident, she did not jump up but only raised her arms to intercept the
H ball. In the circumstances, the defendant’s hand could not possibly have H
come into contact with the eye of the plaintiff. If there were contact, then
I I
the better part of the defendant’s body must have pressed on the net,
J causing him to lose his balance. And Mr Lam would certainly have seen J
the defendant’s body pressed on the net. All Mr Lam saw was the shaking
K K
of the net. Such shaking could be caused by the contact between the net and
L
the ball or the defendant’s hand after he spiked the ball. Furthermore, Mr L
M
Lam admitted that he had talked about the case with the plaintiff before M
writing his witness statement. I have reason to believe that Mr Lam’s
N N
evidence is partial and cannot be believed entirely.
O O
36. The plaintiff’s witness, Madam Fong, was not present at the
P scene at the time when the accident occurred. She said firmly that after the P
defendant returned to Hong Kong, the defendant admitted to her in person
Q Q
that the hand of the defendant had injured the eye of the plaintiff. The
R defendant denied that and said he was only expressing regret for having R
injured the plaintiff. The defendant’s version is credible because as
S S
analysed above, in the circumstances of what happened at the time, the
T T
U U
V V
- 13 -
A A
B defendant’s hand could not possibly have come into contact with the eye of B
the plaintiff.
C C
D 37. All in all, I find the plaintiff’s case is illogical and against D
common sense. I reject her version.
E E
F
38. Having considered all evidence before me, I accept the F
defendant’s version and find that at the material time when the plaintiff got
G G
hurt, her right eye was hit by the water volleyball spiked by the defendant.
H H
Liability
I I
39. The law is very clear. The standard of care in sporting context
J is different than a non-sporting context. J
K K
40. In Blake v Galloway [2004] 1 WLR 2844, Dyson LJ said , at
L para 8-11: L
“ that participants in sport games generally owe each other
M M
a duty of care and that the standard of care depends on all
N the circumstances of the case, and that the threshold for N
liability is high (see para 11)”
O O
“there will be no liability for errors of judgement,
P oversights or lapses of which any participant might be P
guilty in the context of a fast-moving contest. Something
Q Q
more serious is required”
R R
41. Diplocks LJ (as he then was) had said in Woolridge v Summer
S S
& another [1963] 2 QB 43:
T T
U U
V V
- 14 -
A A
B “ a person attending a game or competition takes the risk B
of any damage caused to him by any act of a participant
C C
done in the course of and for the purposes of the game or
D competition notwithstanding that such acts may involve D
an error of judgement or lapse of skill, unless the
E E
participant’s conduct is such as to evince a reckless
F disregard of the spectator’s safety” F
G G
42. The above principle was also applied in Hong Kong in Chan
H Kin Bun v Wong Sze Ming & another (HCPI1549/2014), Deputy Judge H
Saunderss (as he then was) followed the same English cases and dismissed
I I
the plaintiff’s claim who was hurt during a mock sword flight using
J T-square rulers. J
K K
43. Under normal circumstances, the participants who willingly
L L
engaged in a vigorous sport must have impliedly consented to assuming
M
certain risk of injury [see Charlesworth & Percy on Negligence, 10th ed., M
paras. 3-76a to 3-77, p.209].
N N
O O
44. The standard of care owed by a professional player in a
P contest might be high. In Condon v Basi [1985] 2 ALL ER 453, Sir John P
Donaldson M.R. said ,“Thus there will of course be a higher degree of care
Q Q
required of a player in a First Division football match than of a player in a
R local league football match.” R
S S
45. I notice that the scenario in this case is partly different to the
T above quoted cases. Firstly the defendant was not the organizer of the T
U U
V V
- 15 -
A A
B game and he was one of the players only. Secondly, there was a net to B
separate these two teams players. However, by willingly taking part in the
C C
game, the plaintiff impliedly consented to any contact which could
D reasonably be expected to occur in the course of it (Woolridge v Summer & D
Another [1963] 2 QB 43, Mullin v Richards & Another [1998] 1 All ER
E E
920).
F F
46. As to what are reasonable precautions, Mason J (as he then
G G
was) in Wyong Shire County Council v Shirt and others (1980) 29 ALR 217
H
saidat page 221: H
"In deciding whether there has been a breach of the duty of
I I
care the tribunal of fact must first ask itself whether a
J reasonable man in the defendant's position would have J
foreseen that his conduct involved a risk of injury to the
K K
plaintiff or to a class of persons including the plaintiff. If
L the answer be in the affirmative, it is then for the tribunal L
of fact to determine what a reasonable man would do by
M M
way of response to the risk. The perception of the
N reasonable man's response calls for a consideration of the N
magnitude of the risk and the degree of the probability of
O O
its occurrence, along with the expense, difficulty and
P inconvenience of taking alleviating action and any other P
conflicting responsibilities which the defendant may have.
Q Q
It is only when these matters are balanced out that the
R tribunal of fact can confidently assert what is the standard R
of response to be ascribed to the reasonable man placed in
S S
the defendant's position. The considerations to which I
T have referred indicate that a risk of injury which is remote T
U U
V V
- 16 -
A A
B in the sense that it is extremely unlikely to occur may B
nevertheless constitute a foreseeable risk. A risk which is
C C
not far-fetched or fanciful is real and therefore foreseeable.
D But, as we have seen, the existence of a foreseeable risk of D
injury does not in itself dispose of the question of breach
E E
of duty. The magnitude of the risk and its degree of
F probability remain to be considered with other relevant F
factors."
G G
H 47. It is normal and foreseeable while playing water volleyball in H
the pool, a player who is close to the net jumps and reaches up to hit the
I I
ball to the opponents’ court . In fact, jumping to reach the ball and
J attempting to hit the ball over the net is part and parcel of the game of water J
volleyball and is natural and instinctive reaction to the ball coming close
K K
to the defendant. The plaintiff should have experienced such actions many
L L
times during the game in question. All these actions were foreseeable by
M
the plaintiff. M
N N
48. Having further considered the game was intended to be for
O
fun and leisure among friends and other holidaymakers and no particular O
rules were set for the game, I find that the defendant was not acting
P P
recklessly when he spiked the ball and the ball inadvertently hit the
Q plaintiff’s right eye. In such circumstances, according to the above legal Q
principle, I find that taking to the highest, it is an error of judgement or
R R
lapse of skill on the defendant’s part, hence, the defendant is not liable to
S the plaintiff’s injury of her right eye. S
T Quantum T
U U
V V
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A A
B 49. Having found against the plaintiff on liability, her claim B
stands to be dismissed and it is strictly unnecessary to deal with the issue of
C C
contributory negligence and the quantum of the claim. However, in case I
D am wrong on the issue of liability, I briefly set out below my views on D
contributory negligence and the various heads of damages claimed.
E E
F 50. If I had accepted the plaintiff’s case, I would not have found F
that there was any contributory negligence on her part.
G G
H H
51. The plaintiff was born in 1965 and at the time the accident
I occurred she was 44 years old. I
J J
PSLA
K K
52. The plaintiff claims that because of her eye injury, she could
L L
no longer participate in surfing and skiing and join sports competitions as
M M
she is now afraid of playing sports with strangers. Furthermore, prior to the
N
accident, she always travelled around, visiting tourist spots and meeting N
new people, but now she gives up her trips as she would suffer from
O O
diplopia without warning. Her daily life is deeply affexted by blurred
P image. P
Q Q
53. The plaintiff asks for the award under this head is
R HK$450,000.00. R
S S
T T
U U
V V
- 18 -
A A
B 54. The defendant objects to the plaintiff’s claim as he alleged B
that the injury suffered by the plaintiff is extremely minor and any damages
C C
payable under this head would not be more than HK$50,000.00.
D D
55. The defendant mainly relies on the joint ophthalmic expert
E E
report of 3 December 2013(“the joint expert report”). Both experts agree
F that the plaintiff has exaggerated her alleged visual impact. They also F
opine that the allegation that the plaintiff has to raise books and
G G
newspapers when reading is inconsistent with her injury as she should
H experience more double vision when looking upward. Besides, both H
experts also agree that the plaintiff should be able to carry out her activities
I I
of daily living with no restriction.
J J
56. Both experts in paragraph 7 of the joint expert report clearly
K K
states that the plaintiff could have exaggerated her symptoms of diplopia.
L L
Both experts admit that according to the joint assessment conducted on 21
M
August 2013, the plaintiff was found to suffer from decreased elevation of M
the right eye in adduction . The clinical findings and progress of the
N N
plaintiff are consistent with the clinical diagnosis. Both experts estimate
O
that the plaintiff has suffered around 10% loss of ocular motility as a result O
of the accident.
P P
57. I accept the findings of the joint medical report.
Q Q
R 58. In any events, the plaintiff admitted that she could now still R
participate in usual sporting activities. The plaintiff was fond of sports , but
S S
she was not an amateur athlete . In view of her diplopia problem, I believe
T T
U U
V V
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A A
B it will affect her performance in joining sports competitions and B
participate in surfing and skiing.
C C
59. In the absence of a head injury evidence, I do not accept that
D D
the plaintiff had lost consciousness.
E E
F
60. In Leung Moon Sing v Yu Hon Kuen [2006] HKLRD (Yrbk) 374, F
the plaintiff suffered eye injury (spray paint exploded into eyes, eyes
G G
padded after saline irritation, epithelial effect healed with no scar,
H
impairment of tear secretion resulting in dry eyes), Deputy Judge Wong H
awarded a sum of HK$65,000 to the plaintiff under PSLA.
I I
J 61. In Chan Yim v Shing Cheong Construction Ltd [2007] J
HKLRD (Yrbk) 411 , the plaintiff got bruises over medial corner of right
K K
upper eyelid, mild diplopia, mild right hypertropia. Deputy District Judge
L Longley awarded the plaintiff a sum of HK$230,000 under PSLA L
M M
62. Having taken the above cases into consideration, I consider
N that an appropriate award for PSLA would have been HK$150,000. N
O O
Loss of earning
P P
63. The plaintiff claims that prior to the accident, she secured a
Q Q
job with a company to work as a clerk and the monthly salary was about
R HK$12,000. As a result of the accident, the plaintiff was unable to work R
and had to turn down the aforesaid job offer. The plaintiff had been unable
S S
to return to work until 26 October 2010 when she set up a limited company
T in Hong Kong. T
U U
V V
- 20 -
A A
B B
64. The plaintiff’s loss of earnings from 12 April to 25 October
C C
2010 would be HK$196,800. ( HK$12,000 x 16.4 month)
D D
65. The burden of proof is on the plaintiff, but under this head, the
E E
plaintiff did not produce any proof neither written documents nor witness
F statements from the offeror to prove that at the material time a job was F
offered to her. According to the joint expert report, sick leave of two
G G
months given to the plaintiff is reasonable. In other words, the plaintiff is
H entitled to have two months’ loss of earnings. However, the plaintiff fails to H
prove that during the sick leave period she had earning capacity. The
I I
plaintiff claims that she is a freelance worker in advertising field, but the
J letters from Inland Revenue Department dated 12 September 2013 clearly J
stated that there is no record of the plaintiff’s income from 2007 to 2013.
K K
In such circumstances, I do not believe that the plaintiff had secured any
L L
employment at the time of the accident and has suffered any loss of
M
earnings during the sick leave period. No award would have been granted M
under this head.
N N
O
Loss of earning capacity/ handicap in the market O
P P
66. The plaintiff alleges that both experts estimate she suffers 5%
Q loss of earning capacity. She further claims that by reason of the Q
permanent disability suffered by her, a sum of HK$200,000 should be
R R
awarded to her under this head.
S S
67. The plaintiff does not give a full account how this figure
T T
arrives at .
U U
V V
- 21 -
A A
B B
68. Having carefully studied the joint expert report, I note that
C C
both experts clearly say that the 5% loss of earning capacity is purely for
D the parties’ reference. In their conclusion , the plaintiff was found to have D
depressed ocular motility of the right eye and now still suffers from
E E
decreased elevation of the right eye in adduction. The plaintiff suffered
F 2.5% impairment of the whole person as a result of the said accident. F
Regarding to the loss of earning capacity, the experts’ view is that the
G G
plaintiff has been suffering from diplopia only on extreme upgaze, and she
H should be able to work as a clerk since reading and writing involve mainly H
downgaze, her diplopia in extreme upgaze should impose little restriction
I I
or limitation on her working capacity as a clerk.
J J
69. The plaintiff claims that she had worked in the field of
K K
advertising and had also worked at the sales department of Sing Tao Daily
L L
before the accident occurred. In 2010, she started her own trading business.
M
Other than Mr Lam’s evidence that the plaintiff had been his colleague M
when he was with Sing Tao Daily, the plaintiff fails to produce any proof
N N
regarding to her occupation and income. It is a bare allegation only.
O O
70. The burden of proving damages is on the plaintiff ( see Chan
P P
Siu Youn v Ng Kam Man & others HCPI533/1999). The plaintiff is not
Q entitled to put figures before the Court and seek them without proper Q
evidence (see Yim Fat Fong v Wong Kim Hung & another
R R
HCPI1173/1996).
S S
71. The plaintiff admitted she did not try to return work after the
T T
reasonable period of sick leave.
U U
V V
- 22 -
A A
B B
72. Having considered all the evidence before me, I am not
C C
satisfied that the plaintiff has suffered any loss of earning capacity.
D D
Medical expenses
E E
73. I find the medical expenses sated in the plaintiff’s revised
F statement of damages are necessary and reasonable. The plaintiff would F
have been awarded HK$23,015.95 for medical expenses.
G G
H
Travelling expenses H
74. The plaintiff claims for a sum of about HK$10,000 without
I I
any documentary proof, I notice that the plaintiff went to Shenzhen, China
J 11 times for medical treatment, and the rest of consultation places were all J
in Hong Kong.
K K
L L
75. Having considered that there may be difficulties for the
M
plaintiff to produce documentary proof for taking public transport by using M
Octopus card, in any events, the necessity of travelling expenses is not in
N N
doubt. However, I do not believe that the plaintiff did spend a sum of
O
HK$10,000 as travelling expenses. I consider that an award of HK$5,000 O
would have been appropriate.
P P
Tonic Food
Q Q
76. No documentary proof has been produced by the plaintiff as
R R
to the necessity and reasonableness of buying tonic food. I decline to grant
S any sum to the plaintiff under this head. S
T Loss of pension/mandatory provident fund T
U U
V V
- 23 -
A A
B 77. The plaintiff totally fails to prove that she has been a member B
of any pension scheme and / or mandatory provident fund. I find that she
C C
has suffered no loss under this head. Her claim under this head must fail.
D D
E E
Summary on quantum
F F
78. The total award, excluding interest, would have been
G HK$178,015.95 as tabulated below: G
H H
PSLA HK$150,000.00
Medical expenses HK$ 23,015.95
I I
Travelling expenses HK$ 5,000.00
Total: HK$178,015.95
J J
K Interest K
L L
79. The interest should be awarded on the PSLA award at 2% p.a.
M from the date of writ to the date of judgment and that interest on all pre-trial M
loss of earnings should be awarded at half of the judgment rate from the
N N
date of accident to the date of judgment.
O O
Conclusion
P P
Q 80. As I have determined the issue of liability against the plaintiff, Q
the action is dismissed.
R R
S S
T T
U U
V V
- 24 -
A A
B 81. I make an order nisi that the plaintiff pay the defendant’s costs B
of the action, to be taxed if not agreed, with certificate for counsel.
C C
D D
E E
( W K Wong )
Deputy District Judge
F F
G The plaintiff appeared in person G
H Mr Ashok Sakhrani instructed by Kennedys, for the defendant H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V
DCPI631/2012 MA YONG MEI v. CHENG MUK LAM - LawHero