A A
B B
HCPI 621/2017
C [2019] HKCFI 2783 C
D D
IN THE HIGH COURT OF THE
E
HONG KONG SPECIAL ADMINISTRATIVE REGION E
COURT OF FIRST INSTANCE
F PERSONAL INJURIES ACTION NO. 621 OF 2017 F
G ________________________ G
BETWEEN
H H
OR BIK YUK Plaintiff
I I
and
J J
MAXWAY CORPORATION LIMITED trading as Defendant
CHEUNG HING FOODS MART
K K
_______________________
L L
Before: Hon Anthony Chan J in Court
M
Date of Hearing: 8 November 2019 M
Date of Judgment: 12 November 2019
N N
________________
O O
JUDGMENT
P ________________ P
Q Q
1. This personal injury action arose from a slip and fall accident
R which occurred on 18 January 2015 at around 7:15 a.m. The Plaintiff was R
the victim of the accident which took place at the pavement immediately
S S
outside a store named Cheung Hing Foods Mart at G/F, 121 to 125 Dock
T Street, Phase I, Whampoa Estate (“Store”). The Store was owned and T
operated by the Defendant.
U U
V V
- 2 -
A A
2. Both liability and quantum of damages are in dispute. On the
B B
issue of liability, the Plaintiff relies on the causes of action based on
C negligence and occupier’s liability. The Defendant does not accept the C
Plaintiff’s case on the accident and says that it is a fabrication. However, it
D D
is not in dispute that the Plaintiff was walking on the pavement in question at
E the time of the alleged accident. E
F F
3. The Plaintiff gave evidence at the trial and called her husband,
G Mr Chan Kam Shing (“Chan”) as a witness. Two witnesses testified for the G
Defendant, namely, the Store Supervisor (vegetables), Mr Wong Fat Keung
H H
(“Wong”), and the Store Manager, Mr Yeung Man Ning (“Yeung”).
I I
The accident
J J
4. The facts of the accident are quite simple. According to the
K K
Plaintiff’s evidence, she was living across the road from the Store (from
L which she used to purchase vegetables) with her family. At the material L
time, she was on her way to buy some food for breakfast. The Store had just
M M
opened. A lot of vegetables in a very wet state and other goods were placed
N outside the Store on the pavement by the Defendant. Consequently, the N
pavement was narrowed, and it was wet, slippery and littered with pieces of
O O
vegetable and unwanted food. She walked over to the Store to have a look
P at the vegetables on offer, and she slipped and fell at a location just outside P
the Store. The weather was fine and dry on that day. The Plaintiff says
Q Q
that she fell as a result of the slippery condition of the pavement.
R R
5. There are 2 photographs of the Store entrance (shop front)
S S
annexed to the witness statement of the Plaintiff. They were taken in about
T T
U U
V V
- 3 -
A A
March 2019. It appears from the photos that the Store was located in a
B B
market. The pavement in question was, according to the Plaintiff, wide
C enough to accommodate 5 to 6 pedestrians. It had a concrete surface. It C
can be seen from the photos that much of the vegetables being sold were
D D
placed at the shop front. Judging from the photos, some of those vegetables
E were partly located on the pavement (a point agreed by Wong). There was E
a corridor next to the Store, which was part of the building in which the Store
F F
was located. One of the photos showed that much of the Defendant’s
G vegetables were left in the corridor. G
H H
6. It appears from the photos that at least part of the pavement near
I the Defendant’s goods was damp or wet. Consistent with the Plaintiff’s I
evidence, the pavement outside the Store was littered with pieces of vegetable
J J
and rubbish. Although the photos were taken some 4 years after the accident,
K anyone who had been to a market would find that the scene depicted in them K
was not uncommon.
L L
M 7. According to the Plaintiff, the 2 wet floor warning signs seen in M
1 of the photos were not there at the time of the accident. Further, the
N N
condition of the pavement in question was worse than that shown in the
O photos because there were more goods placed on the pavement, and the O
pavement was wetter.
P P
Q 8. The Plaintiff called her husband after the accident. Chan Q
arrived at the scene about 15 to 20 minutes later. His description of the
R R
condition of the pavement is consistent with that of the Plaintiff. Both of
S them said that a male staff of the Store told them that he had summoned for S
an ambulance.
T T
U U
V V
- 4 -
A A
9. The fact that the Plaintiff had suffered an accident is supported
B B
by the medical record. She was taken to the Queen Elizabeth Hospital and
C was attended at the Accident and Emergency Department at 09:05 hour on C
the day of the accident. She was found to have suffered a serious facture of
D D
the left femur and was admitted to the Hospital.
E E
10. In both the Patient Admission Notes and the Clinical
F F
Management Sheet of the Hospital, it was recorded “S/F today in market, by
G vegetable”. G
H H
11. With respect, I am surprised by the dispute whether the Plaintiff
I had suffered a slip and fall accident outside the Store on the day and time in I
question. There is ample evidence in this regard, and there is no reason to
J J
doubt the evidence of the Plaintiff or her husband.
K K
12. Wong said that he was working at the Store at the time of the
L L
accident. I find it difficult to accept his evidence that he was not aware of
M any ambulance appearing outside the Store. Yeung was not at the Store at M
the material time and his evidence adds little to that of Wong.
N N
O Liability O
P 13. There is an issue of law raised by the Defendant whether the P
Plaintiff could be a visitor on a public pavement. Appeared for the
Q Q
Defendant, Mr Yiu had referred this court to Clerk & Linsell on Torts, 12th edn,
R rubric 12-20; Cheung Fung Yin v AG, unrep, HCA 2476/1975, 12 July 1977, R
pg 6; Yang Yee Man v Leung Hing Hung (No 3) [2014] 3 HKLRD 194, §§19,
S S
T T
U U
V V
- 5 -
A A
21-22. It is unnecessary to resolve this issue, which goes to occupier’s
B B
liability, because such liability overlaps with that of negligence.
C C
14. In my view, there is a convincing case that the Defendant had
D D
caused the pavement outside the Store to become hazardous by reason of the
E overflowing of its goods onto the pavement. Plainly, the Defendant had no E
right to do so. More importantly, there is no reason to doubt the Plaintiff’s
F F
evidence that the vegetables were wet and the pavement outside the Store was
G wet and littered with material which was liable to cause a slip and fall accident. G
The photos served to fortify her case.
H H
I 15. According to the Defendant’s evidence, delivery of fresh I
vegetables was made to the Store in the morning between 5am to 7am.
J J
The delivery was made via the entrance of the Store. The vegetables
K delivered had to be unpacked and put on display for sale. Cleaning would K
be carried out after the delivery. However, such cleaning would only start
L L
at 8am. I have little doubt that the wetness of the pavement was the result
M of water being sprinkled on the vegetables. I reject Wong’s evidence that M
the Defendant never wet the vegetables that it sold. His evidence
N N
contradicted the case put to the Plaintiff in cross-examination that the
O Defendant used sprayers to wet the vegetables. O
P P
16. The Defendant’s evidence was that warning signs were
Q displayed in the Store to warn its customers of slippery floor. Wong said Q
that there was concern about the presence of water or oil or rubbish on the
R R
floor. Although such evidence related to the condition of the Store premises,
S given the overflow of goods onto the pavement, there is good reason to S
believe that the pavement was liable to be contaminated in similar manner.
T T
U U
V V
- 6 -
A A
Indeed, the deployment of warning signs (after the accident) shown in the
B B
photos is consistent with the fact that the Defendant was aware of the
C hazardous condition of the pavement outside the Store. Such awareness C
must have existed at the time of the accident.
D D
E 17. In the premises, I find that the Defendant was in breach of its E
duty of care to the Plaintiff, and such breach had caused the accident.
F F
G Contributory negligence G
H 18. The high point of the Defendant’s case on contributory H
negligence is that the Plaintiff was aware of the condition of the pavement
I I
when she walked over to the Store. However, it was not explored in
J evidence as to how the Plaintiff had failed to exercise sufficient care whilst J
she was walking, and thereby caused in part her misfortune in falling.
K K
L 19. According to the Plaintiff’s evidence, which I accept, the L
pavement outside the Store was frequently in a slippery condition. I do not
M M
therefore accept that walking over to the Store to look at what was on offer
N notwithstanding the condition of the pavement would, per se, constitute N
contributory negligence.
O O
P 20. In the premises, I find that the Defendant is wholly liable for the P
accident.
Q Q
R Quantum of damages R
S 21. The Plaintiff was born on 26 September 1955. She was 59 S
years old at the time of the accident and is now 64. At the time of the
T T
U U
V V
- 7 -
A A
accident, she was a part-time cleaner working in a clinic earning on average
B B
HK$1,500 per month.
C C
22. The Plaintiff suffered a comminute fracture of the mid-shaft of
D D
the left femur with sizable butterfly fragments. It was treated with closed
E reduction and fixation by intramedullary nail followed by fitting of orthotic E
device.
F F
G 23. The Plaintiff was discharged from Hospital on 26 January 2015 G
with advice of non-weight bearing walking for 6 weeks. She attended
H H
14 sessions of physiotherapy from 11 February to 20 May 2015. She was
I discharged from the Physiotherapy Department on 20 May 2015 with home I
exercises.
J J
K 24. On 28 May 2015, the Plaintiff was re-admitted to Hospital for K
1 day for removal of one locking screw under local anaesthesia.
L L
The Clinical Treatment Sheet recorded: “… delayed union L femur # x
M removal of locking screw for dynamization”. She was referred for further M
physiotherapy from 5 to 12 June 2015 (3 sessions). Upon discharge, the
N N
Plaintiff still required the use of an elbow crutch for support.
O O
25. The Plaintiff’s sick leave only covered the period from 18
P P
January 2015 to 27 May 2015. Her evidence was that such certificate was
Q not relevant to her as a part-time worker. In light of the continued treatment Q
stated above, it was submitted by Mr Szeto, who appeared for the Plaintiff,
R R
that her condition would not have allowed her to return to work.
S S
T T
U U
V V
- 8 -
A A
26. It was at the final follow up on 25 May 2016 that the fracture
B B
was shown to be healed and the Plaintiff was discharged from the Department
C of Orthopaedics and Traumatology. At that time, she still complained of C
residual pain over the fracture site. On this evidence, it was submitted by
D D
Mr Szeto that the appropriate sick leave for the Plaintiff should at least
E continue up to 18 September 2016 (20 months from date of accident), E
allowing her 4 months to find work after the healing of the fracture.
F F
G 27. The Plaintiff’s claim for loss of earnings is further supported by G
the evidence of her medial expert, Dr Andrew Miu. According to the Joint
H H
Medical Report of Dr Miu and Dr Albert Wong (instructed on behalf of the
I Defendant), the Plaintiff was examined on 9 October 2018. During I
examination, it was found that she had marked left gluteal muscle wasting,
J J
multiple scars, tenderness over the lateral hip and the greater trochanteric area,
K and 1 cm muscle wastage over the left thigh. K
L L
28. Dr Miu opined that the muscle wasting observed more than 3
M years after the accident indicated muscle disuse. It was likely that the M
Plaintiff was suffering from left hip and thigh weakness which would affect
N N
her walking ability and tolerance. Dr Miu advised that the Plaintiff would
O require frequent symptomatic treatment on a need basis, including O
physiotherapy from the private sector.
P P
Q 29. Dr Wong’s view was that the Plaintiff had recovered well from Q
accident. She is able to resume work as a part-time cleaner notwithstanding
R R
the possibility of mild residual left hip pain. Both doctors assessed that the
S Plaintiff had 3% impairment of the whole person as a result of the accident. S
T T
U U
V V
- 9 -
A A
Pain, suffering and loss of amenities
B B
30. Mr Szeto contends that the appropriate general damage for pain,
C C
suffering and loss of amenities in this case should be in the region of
D HK$350,000 to HK$450,000. Four comparable cases (with inflation D
adjustment) were cited in support: Ho Man Wa v Wong Shui Fun,
E E
DCPI 730/2009, §§11, 12 and 19; Wong Hing Chuen v Wang On Majorluck
F Ltd, DCPI 58/2015, §§45-49; Cheung Kwok Keung v Yip Man Buildings F
Materials Co Ltd, DCPI 2738/2009, §§104, 105, 113-119; and Cheung Yuet
G G
Har v Force Team Ltd, DCPI 44/2009, §§36-44.
H H
31. In the light of the above comparable cases, I award HK$400,000
I I
for such general damage in this case.
J J
Loss of earnings
K K
32. I believe that the claim for pre-trial loss of earnings of 20 months
L L
at HK$1,500 per month is reasonable. Accordingly, a sum of HK$30,000 is
M awarded. M
N N
33. As for the post-trial loss, the Plaintiff’s claim is based on a
O retirement age of 70 and a partial loss of HK$300 per month (based on loss O
of 20% of HK$1,500). The partial loss is supported by the medical evidence.
P P
The Plaintiff said that she was in reasonable health but for the accident, which
Q is consistent with her appearance in court. She found it boring to stay at Q
home and prefer to work and earn some money for the family. Given that
R R
evidence and the modesty of the claim, I allow it in full without discount on
S accelerated receipt (the income of HK$1,500 per month was not adjusted for S
inflation): HK$300 x 108 months = HK$32,400.
T T
U U
V V
- 10 -
A A
Special damage
B B
34. I allow the claim for pre-trial cost of care by family in the sum
C C
of HK$25,000 in light of the evidence that the Plaintiff was looked after by
D her husband during her recovery. As an example, Chan said that he had to D
take his wife to the toilet with a wheelchair in the middle of the night.
E E
F 35. I do not agree with the claim for loss of ability to render services. F
It has not been adequately proved, and is inconsistent with the acceptance that
G G
the Plaintiff is able to return to her pre-accident occupation, albeit with
H reduced capability. Further, to some extent, this claim overlaps with the H
preceding one given the evidence that Chan became responsible for the
I I
household chores during the time of his wife’s incapacity.
J J
36. There is a claim for medical expenditure (HK$30,000), tonic
K K
food (HK$18,000) and travelling expenses (HK$10,000), totalling
L HK$58,000. The only challenge is that the expenses are not fully supported L
by the documents. I believe that the lack of adequate documentary proof for
M M
such claim is not uncommon. Unsophisticated people like the Plaintiff are
N not used to keeping a good record of the supporting documents. These are N
expected expenses, the quantum appears reasonable and I allow them in full.
O O
P Future medical expenses P
Q 37. Finally, there is a claim for future medical expenses of Q
HK$50,000. I am not satisfied that the Plaintiff will require any medication
R R
other than pain killer from time to time. According to Dr Miu, she may have
S the need for physiotherapy. However, the evidence does not adequately S
T T
U U
V V
- 11 -
A A
support the need for further surgery to remove any metal implants. I believe
B B
that an award in the sum of HK$25,000 would be sufficient under this head.
C C
Interest
D D
38. The claim for interest set out in paras 54 and 55 of the Revised
E E
Statement of Damages are not in dispute.
F F
Disposition
G G
39. Judgment should be entered in favour of the Plaintiff against the
H H
Defendant in the sum of HK$570,400, with interest in accordance with para
I 38 above. I
J J
40. I make an order nisi that the costs of this action be paid by the
K Defendant. The Plaintiff’s own costs be taxed in accordance with Legal Aid K
Regulations.
L L
M
41. I am grateful to counsel for their assistance. M
N N
O O
P (Anthony Chan) P
Judge of the Court of First Instance
Q Q
High Court
R R
S
Mr Patrick Szeto, instructed by L & L Lawyers, for the Plaintiff S
Mr Austin Yiu, instructed by Collin Ng & Co, for the Defendant
T T
U U
V V
OR BIK YUK v. MAXWAY CORPORATION LTD t/a CHEUNG HING FOODS MART
A A
B B
HCPI 621/2017
C [2019] HKCFI 2783 C
D D
IN THE HIGH COURT OF THE
E
HONG KONG SPECIAL ADMINISTRATIVE REGION E
COURT OF FIRST INSTANCE
F PERSONAL INJURIES ACTION NO. 621 OF 2017 F
G ________________________ G
BETWEEN
H H
OR BIK YUK Plaintiff
I I
and
J J
MAXWAY CORPORATION LIMITED trading as Defendant
CHEUNG HING FOODS MART
K K
_______________________
L L
Before: Hon Anthony Chan J in Court
M
Date of Hearing: 8 November 2019 M
Date of Judgment: 12 November 2019
N N
________________
O O
JUDGMENT
P ________________ P
Q Q
1. This personal injury action arose from a slip and fall accident
R which occurred on 18 January 2015 at around 7:15 a.m. The Plaintiff was R
the victim of the accident which took place at the pavement immediately
S S
outside a store named Cheung Hing Foods Mart at G/F, 121 to 125 Dock
T Street, Phase I, Whampoa Estate (“Store”). The Store was owned and T
operated by the Defendant.
U U
V V
- 2 -
A A
2. Both liability and quantum of damages are in dispute. On the
B B
issue of liability, the Plaintiff relies on the causes of action based on
C negligence and occupier’s liability. The Defendant does not accept the C
Plaintiff’s case on the accident and says that it is a fabrication. However, it
D D
is not in dispute that the Plaintiff was walking on the pavement in question at
E the time of the alleged accident. E
F F
3. The Plaintiff gave evidence at the trial and called her husband,
G Mr Chan Kam Shing (“Chan”) as a witness. Two witnesses testified for the G
Defendant, namely, the Store Supervisor (vegetables), Mr Wong Fat Keung
H H
(“Wong”), and the Store Manager, Mr Yeung Man Ning (“Yeung”).
I I
The accident
J J
4. The facts of the accident are quite simple. According to the
K K
Plaintiff’s evidence, she was living across the road from the Store (from
L which she used to purchase vegetables) with her family. At the material L
time, she was on her way to buy some food for breakfast. The Store had just
M M
opened. A lot of vegetables in a very wet state and other goods were placed
N outside the Store on the pavement by the Defendant. Consequently, the N
pavement was narrowed, and it was wet, slippery and littered with pieces of
O O
vegetable and unwanted food. She walked over to the Store to have a look
P at the vegetables on offer, and she slipped and fell at a location just outside P
the Store. The weather was fine and dry on that day. The Plaintiff says
Q Q
that she fell as a result of the slippery condition of the pavement.
R R
5. There are 2 photographs of the Store entrance (shop front)
S S
annexed to the witness statement of the Plaintiff. They were taken in about
T T
U U
V V
- 3 -
A A
March 2019. It appears from the photos that the Store was located in a
B B
market. The pavement in question was, according to the Plaintiff, wide
C enough to accommodate 5 to 6 pedestrians. It had a concrete surface. It C
can be seen from the photos that much of the vegetables being sold were
D D
placed at the shop front. Judging from the photos, some of those vegetables
E were partly located on the pavement (a point agreed by Wong). There was E
a corridor next to the Store, which was part of the building in which the Store
F F
was located. One of the photos showed that much of the Defendant’s
G vegetables were left in the corridor. G
H H
6. It appears from the photos that at least part of the pavement near
I the Defendant’s goods was damp or wet. Consistent with the Plaintiff’s I
evidence, the pavement outside the Store was littered with pieces of vegetable
J J
and rubbish. Although the photos were taken some 4 years after the accident,
K anyone who had been to a market would find that the scene depicted in them K
was not uncommon.
L L
M 7. According to the Plaintiff, the 2 wet floor warning signs seen in M
1 of the photos were not there at the time of the accident. Further, the
N N
condition of the pavement in question was worse than that shown in the
O photos because there were more goods placed on the pavement, and the O
pavement was wetter.
P P
Q 8. The Plaintiff called her husband after the accident. Chan Q
arrived at the scene about 15 to 20 minutes later. His description of the
R R
condition of the pavement is consistent with that of the Plaintiff. Both of
S them said that a male staff of the Store told them that he had summoned for S
an ambulance.
T T
U U
V V
- 4 -
A A
9. The fact that the Plaintiff had suffered an accident is supported
B B
by the medical record. She was taken to the Queen Elizabeth Hospital and
C was attended at the Accident and Emergency Department at 09:05 hour on C
the day of the accident. She was found to have suffered a serious facture of
D D
the left femur and was admitted to the Hospital.
E E
10. In both the Patient Admission Notes and the Clinical
F F
Management Sheet of the Hospital, it was recorded “S/F today in market, by
G vegetable”. G
H H
11. With respect, I am surprised by the dispute whether the Plaintiff
I had suffered a slip and fall accident outside the Store on the day and time in I
question. There is ample evidence in this regard, and there is no reason to
J J
doubt the evidence of the Plaintiff or her husband.
K K
12. Wong said that he was working at the Store at the time of the
L L
accident. I find it difficult to accept his evidence that he was not aware of
M any ambulance appearing outside the Store. Yeung was not at the Store at M
the material time and his evidence adds little to that of Wong.
N N
O Liability O
P 13. There is an issue of law raised by the Defendant whether the P
Plaintiff could be a visitor on a public pavement. Appeared for the
Q Q
Defendant, Mr Yiu had referred this court to Clerk & Linsell on Torts, 12th edn,
R rubric 12-20; Cheung Fung Yin v AG, unrep, HCA 2476/1975, 12 July 1977, R
pg 6; Yang Yee Man v Leung Hing Hung (No 3) [2014] 3 HKLRD 194, §§19,
S S
T T
U U
V V
- 5 -
A A
21-22. It is unnecessary to resolve this issue, which goes to occupier’s
B B
liability, because such liability overlaps with that of negligence.
C C
14. In my view, there is a convincing case that the Defendant had
D D
caused the pavement outside the Store to become hazardous by reason of the
E overflowing of its goods onto the pavement. Plainly, the Defendant had no E
right to do so. More importantly, there is no reason to doubt the Plaintiff’s
F F
evidence that the vegetables were wet and the pavement outside the Store was
G wet and littered with material which was liable to cause a slip and fall accident. G
The photos served to fortify her case.
H H
I 15. According to the Defendant’s evidence, delivery of fresh I
vegetables was made to the Store in the morning between 5am to 7am.
J J
The delivery was made via the entrance of the Store. The vegetables
K delivered had to be unpacked and put on display for sale. Cleaning would K
be carried out after the delivery. However, such cleaning would only start
L L
at 8am. I have little doubt that the wetness of the pavement was the result
M of water being sprinkled on the vegetables. I reject Wong’s evidence that M
the Defendant never wet the vegetables that it sold. His evidence
N N
contradicted the case put to the Plaintiff in cross-examination that the
O Defendant used sprayers to wet the vegetables. O
P P
16. The Defendant’s evidence was that warning signs were
Q displayed in the Store to warn its customers of slippery floor. Wong said Q
that there was concern about the presence of water or oil or rubbish on the
R R
floor. Although such evidence related to the condition of the Store premises,
S given the overflow of goods onto the pavement, there is good reason to S
believe that the pavement was liable to be contaminated in similar manner.
T T
U U
V V
- 6 -
A A
Indeed, the deployment of warning signs (after the accident) shown in the
B B
photos is consistent with the fact that the Defendant was aware of the
C hazardous condition of the pavement outside the Store. Such awareness C
must have existed at the time of the accident.
D D
E 17. In the premises, I find that the Defendant was in breach of its E
duty of care to the Plaintiff, and such breach had caused the accident.
F F
G Contributory negligence G
H 18. The high point of the Defendant’s case on contributory H
negligence is that the Plaintiff was aware of the condition of the pavement
I I
when she walked over to the Store. However, it was not explored in
J evidence as to how the Plaintiff had failed to exercise sufficient care whilst J
she was walking, and thereby caused in part her misfortune in falling.
K K
L 19. According to the Plaintiff’s evidence, which I accept, the L
pavement outside the Store was frequently in a slippery condition. I do not
M M
therefore accept that walking over to the Store to look at what was on offer
N notwithstanding the condition of the pavement would, per se, constitute N
contributory negligence.
O O
P 20. In the premises, I find that the Defendant is wholly liable for the P
accident.
Q Q
R Quantum of damages R
S 21. The Plaintiff was born on 26 September 1955. She was 59 S
years old at the time of the accident and is now 64. At the time of the
T T
U U
V V
- 7 -
A A
accident, she was a part-time cleaner working in a clinic earning on average
B B
HK$1,500 per month.
C C
22. The Plaintiff suffered a comminute fracture of the mid-shaft of
D D
the left femur with sizable butterfly fragments. It was treated with closed
E reduction and fixation by intramedullary nail followed by fitting of orthotic E
device.
F F
G 23. The Plaintiff was discharged from Hospital on 26 January 2015 G
with advice of non-weight bearing walking for 6 weeks. She attended
H H
14 sessions of physiotherapy from 11 February to 20 May 2015. She was
I discharged from the Physiotherapy Department on 20 May 2015 with home I
exercises.
J J
K 24. On 28 May 2015, the Plaintiff was re-admitted to Hospital for K
1 day for removal of one locking screw under local anaesthesia.
L L
The Clinical Treatment Sheet recorded: “… delayed union L femur # x
M removal of locking screw for dynamization”. She was referred for further M
physiotherapy from 5 to 12 June 2015 (3 sessions). Upon discharge, the
N N
Plaintiff still required the use of an elbow crutch for support.
O O
25. The Plaintiff’s sick leave only covered the period from 18
P P
January 2015 to 27 May 2015. Her evidence was that such certificate was
Q not relevant to her as a part-time worker. In light of the continued treatment Q
stated above, it was submitted by Mr Szeto, who appeared for the Plaintiff,
R R
that her condition would not have allowed her to return to work.
S S
T T
U U
V V
- 8 -
A A
26. It was at the final follow up on 25 May 2016 that the fracture
B B
was shown to be healed and the Plaintiff was discharged from the Department
C of Orthopaedics and Traumatology. At that time, she still complained of C
residual pain over the fracture site. On this evidence, it was submitted by
D D
Mr Szeto that the appropriate sick leave for the Plaintiff should at least
E continue up to 18 September 2016 (20 months from date of accident), E
allowing her 4 months to find work after the healing of the fracture.
F F
G 27. The Plaintiff’s claim for loss of earnings is further supported by G
the evidence of her medial expert, Dr Andrew Miu. According to the Joint
H H
Medical Report of Dr Miu and Dr Albert Wong (instructed on behalf of the
I Defendant), the Plaintiff was examined on 9 October 2018. During I
examination, it was found that she had marked left gluteal muscle wasting,
J J
multiple scars, tenderness over the lateral hip and the greater trochanteric area,
K and 1 cm muscle wastage over the left thigh. K
L L
28. Dr Miu opined that the muscle wasting observed more than 3
M years after the accident indicated muscle disuse. It was likely that the M
Plaintiff was suffering from left hip and thigh weakness which would affect
N N
her walking ability and tolerance. Dr Miu advised that the Plaintiff would
O require frequent symptomatic treatment on a need basis, including O
physiotherapy from the private sector.
P P
Q 29. Dr Wong’s view was that the Plaintiff had recovered well from Q
accident. She is able to resume work as a part-time cleaner notwithstanding
R R
the possibility of mild residual left hip pain. Both doctors assessed that the
S Plaintiff had 3% impairment of the whole person as a result of the accident. S
T T
U U
V V
- 9 -
A A
Pain, suffering and loss of amenities
B B
30. Mr Szeto contends that the appropriate general damage for pain,
C C
suffering and loss of amenities in this case should be in the region of
D HK$350,000 to HK$450,000. Four comparable cases (with inflation D
adjustment) were cited in support: Ho Man Wa v Wong Shui Fun,
E E
DCPI 730/2009, §§11, 12 and 19; Wong Hing Chuen v Wang On Majorluck
F Ltd, DCPI 58/2015, §§45-49; Cheung Kwok Keung v Yip Man Buildings F
Materials Co Ltd, DCPI 2738/2009, §§104, 105, 113-119; and Cheung Yuet
G G
Har v Force Team Ltd, DCPI 44/2009, §§36-44.
H H
31. In the light of the above comparable cases, I award HK$400,000
I I
for such general damage in this case.
J J
Loss of earnings
K K
32. I believe that the claim for pre-trial loss of earnings of 20 months
L L
at HK$1,500 per month is reasonable. Accordingly, a sum of HK$30,000 is
M awarded. M
N N
33. As for the post-trial loss, the Plaintiff’s claim is based on a
O retirement age of 70 and a partial loss of HK$300 per month (based on loss O
of 20% of HK$1,500). The partial loss is supported by the medical evidence.
P P
The Plaintiff said that she was in reasonable health but for the accident, which
Q is consistent with her appearance in court. She found it boring to stay at Q
home and prefer to work and earn some money for the family. Given that
R R
evidence and the modesty of the claim, I allow it in full without discount on
S accelerated receipt (the income of HK$1,500 per month was not adjusted for S
inflation): HK$300 x 108 months = HK$32,400.
T T
U U
V V
- 10 -
A A
Special damage
B B
34. I allow the claim for pre-trial cost of care by family in the sum
C C
of HK$25,000 in light of the evidence that the Plaintiff was looked after by
D her husband during her recovery. As an example, Chan said that he had to D
take his wife to the toilet with a wheelchair in the middle of the night.
E E
F 35. I do not agree with the claim for loss of ability to render services. F
It has not been adequately proved, and is inconsistent with the acceptance that
G G
the Plaintiff is able to return to her pre-accident occupation, albeit with
H reduced capability. Further, to some extent, this claim overlaps with the H
preceding one given the evidence that Chan became responsible for the
I I
household chores during the time of his wife’s incapacity.
J J
36. There is a claim for medical expenditure (HK$30,000), tonic
K K
food (HK$18,000) and travelling expenses (HK$10,000), totalling
L HK$58,000. The only challenge is that the expenses are not fully supported L
by the documents. I believe that the lack of adequate documentary proof for
M M
such claim is not uncommon. Unsophisticated people like the Plaintiff are
N not used to keeping a good record of the supporting documents. These are N
expected expenses, the quantum appears reasonable and I allow them in full.
O O
P Future medical expenses P
Q 37. Finally, there is a claim for future medical expenses of Q
HK$50,000. I am not satisfied that the Plaintiff will require any medication
R R
other than pain killer from time to time. According to Dr Miu, she may have
S the need for physiotherapy. However, the evidence does not adequately S
T T
U U
V V
- 11 -
A A
support the need for further surgery to remove any metal implants. I believe
B B
that an award in the sum of HK$25,000 would be sufficient under this head.
C C
Interest
D D
38. The claim for interest set out in paras 54 and 55 of the Revised
E E
Statement of Damages are not in dispute.
F F
Disposition
G G
39. Judgment should be entered in favour of the Plaintiff against the
H H
Defendant in the sum of HK$570,400, with interest in accordance with para
I 38 above. I
J J
40. I make an order nisi that the costs of this action be paid by the
K Defendant. The Plaintiff’s own costs be taxed in accordance with Legal Aid K
Regulations.
L L
M
41. I am grateful to counsel for their assistance. M
N N
O O
P (Anthony Chan) P
Judge of the Court of First Instance
Q Q
High Court
R R
S
Mr Patrick Szeto, instructed by L & L Lawyers, for the Plaintiff S
Mr Austin Yiu, instructed by Collin Ng & Co, for the Defendant
T T
U U
V V