Leung Ka Yan v. Secretary for Justice (for and on behalf of the Director of Leisure and Cultural Services Department of the Hong Kong Special Administrative Region)
Read the full judgment text of DCPI 1236/2014 on BabelCite. This District Court judgment was delivered on 29 June 2017.
1. On 13 June 2011 at around 8:15 am, when the plaintiff walked along a footpath (“the Footpath”) inside Nga Ying Chau Garden, Tsing Yi New Territories (“the Garden”), the plaintiff fell on the Footpath (“the Incident”). The plaintiff sues the defendant for damages as a result of the injuries sustained in the Incident. The defendant does not dispute that the Incident did occur but denies liability.
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DCPI 1236/2014 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION PERSONAL INJURIES ACTION NO 1236 OF 2014 -------------------------------------
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------------------------ JUDGMENT ------------------------ 1.On 13 June 2011 at around 8:15 am, when the plaintiff walked along a footpath (“the Footpath”) inside Nga Ying Chau Garden, Tsing Yi New Territories (“the Garden”), the plaintiff fell on the Footpath (“the Incident”). The plaintiff sues the defendant for damages as a result of the injuries sustained in the Incident. The defendant does not dispute that the Incident did occur but denies liability. 2.It is not in dispute that the spot where she fell is the area coloured pink on a photograph showing the Footpath, which is marked as “Exhibit P1”. A copy of Exhibit P1 is annexed hereto as “Annex 1”. THE PLAINTIFF’S CASE 3.The plaintiff was born in 1984. She was educated up to Form 5. She has been employed by a law firm (“the Firm”) as a secretary since 2004, and she is still working in the Firm. The Firm is acting for her in these proceedings. 4.According to the plaintiff, she was walking through the Garden at about 8:15-8:20 am on 13 June 2011. She was on the way from her home (in Cheung On Estate) to Tsing Yi MTR station at that time. She intended to take the MTR to go to Central to work. It was raining. While she was walking on the Footpath, the Incident occurred. She fell on the Footpath because the floor was slippery. As a result of the Incident, she sustained injuries. 5.The plaintiff claims that the Incident was caused by the negligence or breach of the common duty of care under section 3 of the Occupiers Liability Ordinance (Cap 314) (“OLO”) by the Leisure and Cultural Services Department (“LCSD”) and pleads the following in the statement of claim:-
6.The plaintiff herself has given evidence in support of her case. THE DEFENDANT’S CASE 7.The defendant denies liability. The defendant claims that the Footpath was covered by anti-slippery granite tiles which were suitable for external open area. The defendant’s case is that LCSD has taken reasonable care to ensure the safety of the visitors to the Garden, including the plaintiff, when walking along the Footpath. 8.The defendant has called 2 witnesses to give evidence:-
THE PRINCIPLES 9.The starting point is the principle set out by Megaw LJ in Ward v Tesco Stores Ltd [1976] 1 WLR 810 at 815:-
Applied by Mayo VP in Cheung Wai Mei v Excelsior Hotel (Hong Kong) Ltd (CACV 38/2000, 22 November 2000). 10.In Wat Kwing Lok v The Kowloon Motor Bus Company (1933) Ltd (HCPI 936/2005, 20 November 2007), Sakhrani J said at [17]:-
Applied in So Wang Chun v Rainforce Ltd & Others [2008] 3 HKC 196. 11.It is clear that the mere occurrence of the Incident does not give rise to any presumption of negligence on the defendant’s part. The plaintiff bears the burden to prove that the Incident occurred as a result of the defendant’s fault. In other words, the plaintiff has to prove that (a) she fell on the Footpath because of the slippery floor, and (b) the slippery floor was the defendant’s fault. 12.Mr Leon Ho, counsel for the plaintiff, submits that as the Garden is open to the public under all weather conditions, LCSD has a duty to ensure that the tiles of the Footpath are sufficiently safe for all types of visitors under rainy conditions. Mr Ho’s point is that in the absence of any satisfactory explanation, the presence of the slippery floor on 13 June 2011 itself is evidence of the defendant’s negligence. Mr Ho relies upon the following authorities in support of his submission: Laverton v Kiapasha (t/a Takeaway Supreme) [2002] EWCA Civ 1656, Tang Chung Loi v MTR Corp Ltd [2005] 2 HKC 330, Heard v Canada Safeway Limited [2008] ABQB 439, Appleton v Cunard S S Co [1969] 1 Lloyd’s Rep 150, Raad v VM & KTP Holdings Pty Ltd as Trustee for VM & KTP Nguyen Family Trust [2016] NSWSC 888, Partridge v Hobart City Council [2010] TASSC 62, and Murphy v City of Bradford Metropolitan Council [1992] PIQR P68. 13.What has been submitted by Mr Ho does not detract from the general principles set out in paragraphs 9 and 10 above. It remains for the plaintiff to prove that the cause of the Incident was the slippery floor of the Footpath on that date. Only after the discharge of that burden, the debate on whether the slippery floor was the defendant’s fault would begin. If the plaintiff has failed to prove that the cause of the fall was the slippery floor, it would be the end of the matter. In fact, both Mr Ho for the plaintiff and Ms Katherine Chan for the defendant have agreed that if this court refuses to accept the plaintiff’s evidence, that would be the end of the plaintiff’s case. 14.Thus, the first question is whether the Incident occurred in the way suggested by the plaintiff. If yes, the second question is whether the slippery floor was the defendant’s fault. If the answer to the second question is also yes, the court would proceed to assess the quantum of damages. 15.In order to answer these questions, credibility of the witnesses is an issue. In respect of assessing credibility of witnesses, DHCJ Eugene Fung SC has provided useful guidelines in Hui Cheung Fai v Daiwa Development Ltd (unreported, HCA 1734/2009, 8 April 2014), in which the learned judge said:-
16.The reminder given by Sir John Dyson in MA (Somalia) v Secretary of State for the Home Department [2011] 2 All ER 65 on the effect of lies by a witness on a central issue is also relevant:-
THE EVIDENCE The plaintiff 17.Having seen the plaintiff and heard her evidence, I am of the view that the plaintiff is not a truthful witness and her evidence is not reliable. 18.The plaintiff described the way in which the Incident occurred in paragraph 7 of her witness statement:-
19.During cross-examination, upon Ms Chan’s request, the plaintiff coloured the spot where she fell on Exhibit P1 by pink, and coloured the area containing water by green. So, according to the plaintiff, the green area was a water puddle. 20.As shown in Exhibit P1, it is clear that there were parts of the Footpath with no water, yet the plaintiff still walked right into the water puddle. When it was put to the plaintiff that “你睇到有灘水都照踩落去?”, she answered “我睇唔到灘水”. However, in paragraph 7 of her witness statement, the plaintiff clearly and unequivocally said that “地面濕滑外，亦開始有薄薄的積水” (emphasis added). If she had paid attention to the surface of the Footpath and knew that there was/were water puddle(s) on the Footpath on that date, it would be inherently improbable that she would have failed to see the water puddle (the green area), for the water puddle was in the middle of the Footpath. If she had failed to pay attention to the surface of the Footpath, it would not be possible for her to say whether there was any water puddle on the Footpath on that date, and her evidence that the green area was a water puddle would not be reliable. 21.The plaintiff was shown photographs (“the Footpath Photos”) showing the surface of the Footpath. It was put to her that the surface of the tiles were rough（凹凸不平）and that there were cracks（坑）between the tiles, but the plaintiff disagreed. The plaintiff also disagreed that the surface of the tiles was rough upon touching them with her hands after she had fallen on the floor, and maintained her stance that the tiles were smooth（平滑）. In my view, the Footpath Photos clearly show that the surface of the Footpath was covered by tiles with rough surface and there were cracks between the tiles. The plaintiff’s answers are clearly contradicted by the Footpath Photos. 22.The plaintiff testified that she was responsible for issuing cheques and handling MPF matters. With regards to the cheques, she was the one who wrote the payees’ names and the numerical amounts on them, then they were signed by her employer. Even during her period of sick leave, she would return to the office to write the cheques for her salaries. On MPF, she said that she would upload her monthly income online to the MPF company personally on a monthly basis. The information from the cheques representing her salaries and the MPF statement disclosed by the plaintiff is summarized in the table (“the Table”) annexed hereto as “Annex 2”. 23.With regards to her tax return for the year of 2010/11, the plaintiff’s evidence is that she wrote the figure HK$285,905 representing her income in part 4.1. She was aware of the declaration of truth in part 9 and the warning about giving false information at the bottom of page 4 when she completed the said tax return. 24.The plaintiff said the following in paragraph 23 of her witness statement:-
So according to the plaintiff, at the time of the Incident, her average monthly salary from the Firm was HK$35,000, and apart from this, she would also have double pay at the end of each year. 25.It is clear that from the figures in the cheques, or from the figures in the MPF statement, or from the 2010/11 tax return, it is impossible to arrive a figure showing that at the time of the Incident, the plaintiff had an average monthly salary of HK$35,000. All these figures show that before the Incident, the plaintiff’s monthly salary was well below HK$35,000. 26.There are inconsistencies between the cheques, the incomes as shown in the MPF statement and the 2010/11 tax return. When being cross-examined on these inconsistencies, the plaintiff was clearly evasive and was unable to provide any explanation (the plaintiff said“我解釋唔到”). 27.I regret to say that the plaintiff’s assertion that she had an average monthly salary of HK$35,000 at the time of the Incident is a lie. 28.The plaintiff was also cross-examined on the double pay. She said that each year, she would receive the double pay in the Chinese New Year. Ms Chan asked the plaintiff that the documents disclosed by her did not show any double pay to her in the Chinese New Year in 2011. The plaintiff answered that she had not disclosed the cheque concerning the double pay (“the 2011 Double Pay Cheque”), for she was under the impression that it would only be necessary for her to disclose the cheques representing her usual monthly income. I regret to say that this must also be a lie. At all times, the plaintiff is legally represented in these proceedings. In her 2nd list of documents filed on 4 September 2015, the description of item 16 is “Copy cheques as the Plaintiff’s income proof for the period from June 2010 to May 2011”. In disclosing those cheques, the plaintiff must know that she is disclosing her income proof for the period from June 2010 to May 2011. If the 2011 Double Pay Cheque exists, she must know that the cheque has to be included in the said item, for the sum in that cheque would be part of her income from June 2010 to May 2011. Further, the Firm is her employer and also the solicitors acting for her in these proceedings. If the 2011 Double Pay Cheque exists, the Firm would not miss this out in item 16 of the plaintiff’s 2nd list of documents. 29.Mr Ho submits that as evidenced from the cheques produced by the plaintiff, during the plaintiff’s sick leave period (up to the end of January 2012), the plaintiff did receive HK$28,000 each month, which was 80% of her normal monthly salary and her entitlement during the sick leave period. This is evidence showing that the plaintiff’s monthly salary was HK$35,000. With respect, all these at most show that there was an increase in the plaintiff’s monthly salary after the Incident, but these would not be evidence showing the plaintiff’s monthly salary at the time of the Incident. 30.The plaintiff said that as a result of the injuries sustained in the Incident, she was unable to get an increase of HK$2,000 in her monthly salary. However, the evidence as summarized in the Table shows that in fact there was an increase in her monthly salary after the Incident, and the increase was substantial. 31.By reason of the aforesaid, in particular the plaintiff’s lies on her average monthly income at the time of the Incident and on the double pay (which are important issues in these proceedings), I reach the conclusion that the plaintiff is an untruthful witness. Her evidence is not reliable, and I reject the evidence in its entirety. Tang 32.Tang was responsible for patrolling and managing about 20 gardens in the Tsing Yi District from July 2010 to June 2011, including the Garden. She said that she would go to the Garden to do inspection regularly and at least once every 2 weeks. During each inspection, she would check the facilities in the Garden, including the slipperiness of the Footpath. If any problem was found, she would report the matter. She said that she would check the slipperiness of the Footpath by looking at its surface and also by walking on the Footpath. She said that she had not found any problem concerning the Footpath prior to the occurrence of the Incident. 33.I would not attach any weight to Tang’s evidence, for all the documents concerning the inspection and checking done by Tang have not been produced. Without seeing these documents, one does not know how frequent the inspection was done, whether any problem concerning the Footpath has ever been found, and what remedial work has been done. It would not be prudent by merely relying on Tang’s memory in 2017 to ascertain what has happened and what has not happened in 2011. Lau 34.Lau took up the post of Assistant District Leisure Manager (Kwai Tsing) on 3 December 2012. Before that, she worked in Shatin. In other words, at the time of the Incident, Lau was not responsible for the management of the Garden. She does not have any personal knowledge in respect of matters concerning the Incident. As Lau does not have any personal knowledge concerning the Incident, her evidence is not particularly useful for the purpose of these proceedings. 35.The only document produced by Lau in her witness statement which has some evidential value is a document from the Architectural Services Department dated 4 October 2003 (“the ASD Document”) showing that the Footpath was covered by natural granite. In the light of the ASD Document, coupled with the Footpath Photos, I find that the Footpath was covered by natural granite at the time of the Incident. LIABILITY 36.I have ruled that the plaintiff is not a truthful witness, and I have rejected her evidence in its entirety. Accordingly, there is no evidence showing why the plaintiff fell on the Footpath on that date. There is no evidence showing the cause of the Incident. 37.In the circumstances, the plaintiff’s claim must be dismissed. QUANTUM 38.For the sake of completeness, I would set out my opinion on quantum in the paragraphs below. 39.The plaintiff has received various treatments after the Incident, including 3 operations and physiotherapy. She resumed work in the Firm with full duty on 1 February 2012. 40.The plaintiff was jointly examined by Dr Wong See Hoi (for the plaintiff) and Dr Yeung Sai Hung (for the defendant) on 24 November 2015 ie 53 months after the Incident. Having read the joint report by Dr Wong and Dr Yeung dated 21 December 2015 (“the Joint Report”), I am satisfied that both of them are qualified to give the expert evidence as set out in the Joint Report. 41.As recorded in the Joint Report, at the time of the joint examination, the plaintiff raised the following complaints:-
42.At the time of the joint examination, both experts observed that:-
43.The 2 experts gave the following opinion in the Joint Report:-
Contributory negligence 44.Ms Chan submits that if the defendant is liable to the plaintiff, the plaintiff also has contributory negligence on her part. It is clear from Exhibit P1 that the plaintiff had walked straight into the water puddle, and had thus slipped and fell. The plaintiff should be very familiar with the Garden and the Footpath as she had been using that route to go to Tsing Yi MTR Station for 7 years prior to the Incident. The plaintiff had failed to keep a proper lookout and hence she had contributory negligence. 45.Mr Ho submits that the defendant is not entitled to take issue on contributory negligence, for the question of contributory negligence was not put to the plaintiff during cross-examination. In my view, as set out in paragraph 20 above, Ms Chan has asked why the plaintiff would step into the water puddle, and the plaintiff has provided her answer on the question. As a result of the question asked and the answer provided, the defendant is entitled to make use of the point arising from that exchange to make an argument on contributory negligence. 46.Ms Chan submits that the deduction of damages as a result of contributory negligence should be 50%. That is in the light of Cheung Wai Mei case and the So Wang Chun case. 47.Mr Ho submits that it would not be appropriate to apply the figure in Cheung Wai Mei and So Wang Chun, for in these cases, the surrounding floor was dry, and the claimants therein did not have proper lookout and slipped on a patch of water. In this case, the plaintiff only had a choice of walking into the water puddle or walking on the floor not covered by water but was also wet due to the rainy weather. It is unclear why the former is necessarily more slippery than the latter. Mr Ho submits that the deduction for contributory negligence should be no more than 20%. He relies upon Raad (10% contributory negligence for running on wet tiles) and Partridge (20% contributory negligence for not looking carefully at the steps). 48.In my judgment, if the defendant is liable to the plaintiff, the plaintiff also has contributory negligence as suggested by Ms Chan. On the percentage of deduction as a result of the plaintiff’s contributory negligence, I accept Mr Ho’s submission. There should be a deduction of 20% as a result of the plaintiff’s contributory negligence. PSLA 49.In respect to PSLA, the parties are in agreement that the injuries suffered by the plaintiff are similar to the injuries sustained by the claimants in the following cases:-
I accept that these are the relevant authorities for the purpose of PSLA. 50.In fixing the PSLA award, I have to consider the inflation factor:-
51.Taking all the aforesaid into account, for PSLA, I would award HK$400,000. Pre-trial loss of earnings plus MPF 52.The parties are in agreement that for pre-trial loss of earnings, the sum should be the total of the plaintiff’s monthly salary for 8 months. The difference between the parties is what was the plaintiff’s monthly salary at the time of the Incident. Since I have rejected the evidence given by the plaintiff, I would approach the question by considering the figures as shown in the documents. 53.Ms Chan submits that the figures in the 2010/2011 tax return and the figures in the MPF statement should be used. Ms Chan submits that according to the 2010/2011 tax return, the plaintiff’s taxable income from 1 April 2010 to 31 March 2011 is HK$285,905.00, ie HK$23,825.42 per month. The MPF statement shows that the plaintiff’s total relevant income for the period of 1 June 2010 to 31 May 2011 is HK$214,000.00, ie HK$17,833.33 per month. Ms Chan therefore suggests that the figure of HK$20,829.38, ie (HK$23,825.42+ HK$17,833.33)/2, should be adopted as the plaintiff’s monthly salary at the time of the Incident. I accept these submissions. 54.Accordingly, taking the MPF factor into account, the pre-trial loss of earning would be HK$20,829.38 x 8 x 1.05 = HK$174,966.79 Post-trial loss of earnings plus MPF 55.Based upon the evidence accepted by this court, the plaintiff did not suffer any loss of earnings after the Incident. In fact, her salary was increased and not decreased after the Incident. There is no evidential basis justifying an award under this head. Loss of earning capacity 56.The parties agreed that the award under this head should be a figure equivalent to the plaintiff’s monthly salary at the time of the Incident for 3 months. I have found in the above that the plaintiff’s monthly salary at the time of the Incident should be HK$20,829.38. Accordingly, the award under this head should be HK$20,829.38 x 3 = HK$62,488.14 Special damages 57.The parties agreed that there should be HK$82,759 as medical expenses. 58.As regards the travelling expenses, Ms Chan submits that the plaintiff has not provided any evidence in support of the claim and the defendant would only accept HK$1,000.00 for travelling expenses. Mr Ho submits that the plaintiff has produced some taxi receipts, and given the nature of the injuries suffered by the plaintiff, it would be reasonable for the plaintiff to take taxi to see doctors. I accept Mr Ho’s submissions on this point. I would allow HK$2,000 for travelling expenses. 59.As to tonic food, Ms Chan submits that there is no evidence showing any tonic food has been purchased or was necessary. Ms Chan draws my attention to Chan Hung Hang v Fat Kee Marine Repairing & Engineering Co. Limited & Anor (DCPI 2328/2007, 3 September 2008), in which the claimant claimed for tonic food expenses in the sum of HK$4,000.00 without providing any evidence for the same, and it was held that following Yu Ki v Chin Kit Lam [1981] HKLR 419 and judging from the mild nature of the plaintiff’s injuries, a global sum of HK$2,000.00 was allowed for tonic food expenses. Ms Chan submits that HK$1,000.00 would be appropriate for tonic food expenses in the present case. In my view, in the light of Chan Hung Hang and taking inflation into account, the appropriate sum for tonic food is HK$3,000. 60.Accordingly, the award under this head would be HK$82,759 + HK$2,000 + HK$3,000 = HK$87,759. Future medical expenses 61.In the Joint Report, the 2 experts expressed the following view in paragraph 38 of the report:-
Relying upon this, the plaintiff claims HK$200,000 under this head. 62.Ms Chan draws my attention to Lam Kwong Ting v Ho Yau Yuen [1990] 2 HKC 381, in which the court set out the following principles:-
63.Ms Chan submits that there is no evidence suggesting that total knee replacement operation is anticipated, and there is no evidence suggesting that such surgery is likely to take place in the near or reasonably foreseeable future. Ms Chan submits that the claim under this head should be disallowed. 64.Mr Ho does not dispute the principles in Lam Kwong Ting. However, Mr Ho refers me to Leung Yun Keung v Citybase Property Management Ltd (HCPI 457/2008, 30 April 2010), in which the claimant had two operations on his right eye before the trial, and the second operation was performed to rid of the gradual developments of complications arose from the first operation. The experts opined that the future operations would be similar to the second operation if there are complications. Master Levy then concluded that the test for claiming future medical expenses for the potential third operation is justified for reasons given at [69]:-
65.Relying upon Leung Yun Keung, Mr Ho submits that the requirements in Lam Kwong Ting can be satisfied even as at the time of trial, no definite date can be given for the future medical treatment. 66.In this case, the 2 experts opine that the plaintiff may require total knee replacement operation at around 10-15 years. The 2 experts have not stated how likely that the operation is necessary. Unlike Leung Yun Keung, there is no occurrence of any complication affecting the plaintiff in this case. In my judgment, there is no sufficient evidential basis justifying a conclusion that the total knee replacement operation is anticipated or likely to take place in the near of reasonably foreseeable future. The claim under this head is declined. Employee’s compensation 67.The parties agreed that the plaintiff has received HK$280,004.67 as employee’s compensation, which should be deducted from the award (if any) in these proceedings. Summary on quantum 68.For the reasons above, if the plaintiff succeeds in establishing liability, I would award to the plaintiff the following:-
69.Further, if I am with the plaintiff on liability, I would award the following interests:-
70.However, since I have ruled against the plaintiff on liability, the plaintiff’s claim would be dismissed. CONCLUSION 71.I dismiss the plaintiff’s claim. 72.Mr Ho and Ms Chan have agreed that costs should follow the event, with a certificate for counsel. I order that costs of these proceedings (including all costs reserved, if any) be to the defendant, with a certificate for counsel, to be taxed if not agreed. 73.I thank Mr Ho and Ms Chan for the helpful assistance provided to the court.
Mr Leon Ho, instructed by Michael Pang & Co, for the plaintiff Ms Katherine Chan, Government Counsel of Department of Justice, for the defendant | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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