Wong Wai Hay Thomas v. Hong Kong Housing Authority and Another

HCPI 636/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 636 OF 2012

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J U D G M E N T

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1.This is an action for damages for personal injuries. The plaintiff asserts that he slipped and fell and suffered personal injuries that were caused by the negligence of, and breach of duty as occupiers by, the 1^st and 2^nd defendants. After the plaintiff had completed his oral evidence, I directed that there be a split trial on liability and quantum and that I would determine liability before proceeding to deal with quantum at a future date.

2.The alleged accident occurred on the morning of 24 August 2009 inside the parking area of Sheung Wing House, Upper Ngau Tau Kok Estate. At the time of the accident, the plaintiff was employed as a Senior Police Constable by the Hong Kong Police Force and was attached to the Sau Mau Ping District Headquarter Squad 1.  The 1^st defendant was responsible for the management of the Upper Ngau Tau Kok Estate, including the place of the alleged accident. The 2^nd defendant was the property management company providing property management services to the Upper Ngau Tau Kok Estate, including the place of the alleged accident. 

3.On the morning of the alleged accident, the plaintiff was on duty and was making his way through the parking area to the Upper Ngau Tau Kok Temporary Police Station.  A plan of the area has been produced[1]. Red arrows marked on the plan show the path that would be taken by the plaintiff and his colleague in order to reach the Temporary Police Station.  The location of the alleged accident has been marked with a “X” on this plan. This is the kerb of the pavement that surrounded the parking area. 

4.Various photographs had been taken of this location and can be found in Bundle G[2]. The photographs included a number of photographs taken on behalf of the plaintiff on 29 August 2009, 5 days after the alleged accident on 24 August 2009[3].  As can be seen from the photographs, there was a drain by the side of the kerb which was covered by a long continuous metal grille.  This metal grille covering the drain was in good condition, well placed and did not pose any danger to any pedestrian walking from the road surface of the car park onto the pavement. 

5.As can also be seen from these photos, the kerb of the pavement was elevated from the road surface. The elevation is clearly shown on the photographs on p.1349.  The bottom photograph on that page shows a portion of the pavement that is not elevated but is level with the roadside.  This common feature of modern pavements enables wheeled carts, trolleys, luggage on wheels and wheelchairs to access a pavement easily from the road surface. That feature did not exist on that portion of the pavement where the plaintiff and his colleague were headed that morning. That portion of the pavement is shown on the photograph on p.1342 and on the bottom photograph on p.1350.  Instead, some boards were placed on the kerb of the pavement at that location to enable wheeled carts to access the pavement from the road surface.  These boards are shown on the photographs on p.1344[4].  One end of the boards was resting on the road surface and the other end of the boards was resting on some wooden battens that had been placed on the road surface alongside the kerb, with the result that the surface of the boards at that end was flush with the kerb of the pavement.  The edges of the boards looked frayed and worse from wear and tear but the surfaces of these boards remained smooth.

6.These boards are a ubiquitous feature of Hong Kong where construction never ceases and building materials and decoration fittings are forever being wheeled into and out of buildings.  Indeed, the photographs show that some construction work was being carried out at the estate. Piles of sand and other construction materials can be seen at one side of the car park in the photographs on pp.1334 and 1335.

7.The best evidence in the case surfaced some time later, after the proceedings had already commenced, when a CCTV recording of the events of that morning was found.

8.The CCTV recording shows that, at 8:30:43, a young lady is walking across the car park heading towards the pavement where the boards are located[5]. When she reaches the boards, she steps with her left foot on the road surface that is exposed in a gap between the 2 boards whose edges are frayed and not contiguous with each other. She then deftly steps onto the pavement with her right foot.  As can be seen from the CCTV recording, the boards do not move during this manoeuvre, suggesting that her left foot has not touched any part of these boards as she walks past them.  Indeed, she could easily have avoided the boards altogether by walking slightly to the right of these boards to step directly onto the pavement from the road surface of the car park.

9.The CCTV recording shows that, at 8:34:21[6], the plaintiff and his colleague are walking across the carpark towards the pavement. The plaintiff’s colleague is in front and easily steps onto the pavement to the right of the boards.  The plaintiff, walking behind his colleague, does not follow him onto the pavement but walks towards the boards.  He places his left foot on the corner of the end of the board that is resting on the road surface.  He then raises his right foot and, as he does so, his right foot turns inwards and his body starts to fall forwards.  During this falling motion, the left foot is firmly planted on the board. There is no indication that his left foot slips or that the board moves during the time the plaintiff is falling.  The plaintiff’s left foot only starts to move, and the board only starts to move, when the plaintiff’s right knee almost reaches the surface of the pavement.

10.The above account of what the CCTV recording shows from 8:34:21 to 8:34:31 is the result of my viewing this portion of the CCTV recording countless number of times in normal speed, slow motion and frame by frame.  I do not agree with the account given by the joint orthopaedic experts in their report dated 21 September 2013 of the CCTV recording[7] that:

“(v) The further next moment of 8:34:29 hr – he appeared to be more near the ledge with right foot toe on ground (push off phase of walking).

(vi) The further next moment of 8:34:29 hr – his right (sic) foot stepped on a loose thin board on the ground at the ledge and appeared to touch the edge of the ledge, the loosened board moved backwards and he fell and he was falling quickly forwards to the right side half way down.”

The reference to the “right” foot in §(vi) is a typographical error for the left foot. The board did not move backwards when he stepped on it. It did not move at all until after the plaintiff’s right knee almost reached the surface of the pavement.

11.My account does not differ from my initial reaction when I first saw this portion of the CCTV recording on the first day of trial when I remarked[8]:

“COURT: You can’t fast-forward? Can you fast-forward to 8.33?

MR POON: Yes, yes. Forward to 8.33, 8.33, and pause there. Yes.

MR SAKHRANI: Pause, pause.

MR POON: Pause.

MR SAKHRANI: Yes.

COURT: Yes.

MR SAKHRANI: This is the scene.

COURT: Yes.

MR POON: Yes, carry on. Stop. That’s the fall.

COURT: That’s the board he steps on, yes.

MR POON: Yes. Carry on. Yes. Your Lordship wants to see again?

COURT: Yes.

MR POON: Yes, please. Stop.

COURT: What makes him fall?

MR SAKHRANI: My Lord will see the board has not moved yet.

COURT: I know. What makes him fall?

MR POON: We say that the sand on it and the -- because the board was so soft it sank a little bit. Perhaps we can play it again.

COURT: Yes, please play it again.

MR POON: Right. Yes, yes. Stop.

COURT: Yes.

MR POON: Then -- yes, yes, and then of course the board had moved.

COURT: If the board moved, causing him to lose his balance...

MR POON: That is part of the...

COURT: ...the foot that is placed on the board and putting the pressure on the board, that’s the one that would buckle, right, and slip.

MR POON: Yes.

COURT: Why is the other foot slipping?

MR POON: But if the board was being firmly secured to the ground, he would not have fallen.

COURT: Why should the other foot slip?

MR POON: Yes.

COURT: It seems to me that he fell because the other foot gave in.

MR POON: Yes.

COURT: Not the one that stepped on the board.

MR POON: Yes, because of the sand and the board is too soft, we say.

MR SAKHRANI: Well, in fact, my Lord...

COURT: Play that again. Play that again, Mr Poon.

MR POON: Yes, yes.

COURT: I’m trying to...

MR POON: Yes, sure.

COURT: ...tell you what I’m seeing.

MR POON: Yes.

MR SAKHRANI: My Lord, may I suggest one thing? You’re quite right to note that the left foot is placed on the corner, bottom left corner of the board.

COURT: Yes, it’s not -- it’s not giving in.

MR SAKHRANI: No, it’s not.

COURT: It’s not giving in.

MR SAKHRANI: That’s what I want to say, and it’s firmly placed down. At all times it’s firmly placed down and these are police shoes, so they’re not casual shoes which laypeople wear, and at the time his forward-falling momentum starts...

COURT: Why would his other foot give way?

MR SAKHRANI: His -- well, his...

COURT: Why would his other foot give way?

MR SAKHRANI: Well, his other foot is actually not even on the ground. It’s lifted up in the step and it starts to buckle. It’s the...

COURT: Why?

MR SAKHRANI: I don’t know.

COURT: Play that again.”

12.The next relevant images from the CCTV recording appear at 8:36:19[9] onwards when a man with a yellow umbrella walks across the carpark and nearly trips over one of boards that was to the left of the boards had been shifted by the plaintiff when he had fallen down. The last images from the CCTV recording that are of relevance appear at 8:37:20[10] onwards when a man in a short sleeved shirt[11] came to the location in question and picked up the boards that had been stepped on by the plaintiff and which had shifted when he had fallen down.  Although the boards in question appear, at first sight, to be 2 boards, these images clearly show that the 2 boards, in fact, were one large piece of thick cardboard that had been folded previously.  Similar looking boards appear in the photographs taken by the plaintiff on 29 August 2009 at pp.1335-1336[12]. The relevant photographs captured from the CCTV recording have been compiled together and attached as P-1 to P-5 to a covering sheet entitled “Plaintiff’s Summary of CCTV Captures”. This summary describes what the CCTV recording shows at various times from 8:30:01 to 8:43:56.

13.Instead of picking himself up and getting on with his duties, the plaintiff lay where he had fallen. The Police Incident Report dated 26 August 2009 stated[13]:

“Description of Accident & Injury/Disease/Dangerous Occurrence

…

3. While the witness[14] walked passed the loading and unloading area of Sheung Wing House, he heard the subject officer shouted ‘Yah’ at his back. He turned around and found the subject officer, who was at his back in the distance of about two meters, had fallen down on the pavement of Sheung Wing House. There was no other person in the vicinity. The witness asked but the subject officer who was lying on the ground did not reply what had happened. When the witness asked whether the subject officer needed ambulance, the subject officer pressed the emergency button of his beat radio.

4. Officers of EU car 59 and SSGT LAW attended scene for enquiry. SSGT LAW checked the subject officer and found no superficial injury on his body. The subject officer [was] lying on the ground and expressed severe painful (sic) on his rear right head, both elbows and waist. He did not answer any question on the incident and was escorted to United Christian Hospital. He was admitted after initial medical examination. His medical finding at A&E was ‘Redness at Back’.

5. Enquiry was conducted at scene but no witness located.  The condition of the ground and the uniformed shoes of the subject officer were checked with nothing unusual noted. …”

14.The medical report from the United Christian Hospital dated 28 October 2010[15] stated that the plaintiff had attended the Accident and Emergency Department of the hospital at 9:21 a.m. on 24 August 2009 for headache and back pain after an accidental fall on the same day. On examination, there was tenderness over his lower back. Bedside ultrasound showed no evidence of intra-peritoneal bleeding. X-ray of the chest, pelvis, cervical and lumbosacral spine showed no fractures. He was admitted to the orthopaedic ward for further management.

15.Dr Hsu of the Department of Orthopaedics and Traumatology of the United Christian Hospital reported on 3 December 2009 as follows[16]:  

“1. History of Present Illness:

- Date of Admission: 24 August 2009

- Date of Discharge: 4 September 2009

- Date of First Related OPD Attendance: 25 September 2009

- Date of Last Follow-up: 20 November 2009

2. Type of Injury and Date:

- Slipped and fell on 24 August 2009 while working (policeman)

- Fell forwards, landed on outstretched hands

- Cannot remember any head injury or loss of consciousness

- Complained of right occipital pain, left shoulder pain and low back pain

- Bilateral lower limb weakness, no numbness

3. Physical Examination:

- Stable, afebrile, Glasgow Coma Score 15

- Tenderness over right occipital region, no external wound

- Tenderness over lumbosacral spine and bilateral paraspinal muscle

- Upper limb power full

- Lower limb power: grade 3 over L2-L3, Grade 4 over L4-S1 myotome

- Muscle tone normal, reflexes normal, plantar response equivocal

- Bilateral upper and lower limbs and trunk sensation intact

- Per-rectal examination: normal anal tone and grip, normal perianal sensation

- Tenderness over left shoulder greater tuberosity

- No swelling, no deformity, range of motion full

4. Investigation:

- X-ray:

- No fracture over skull, shoulder

- No fracture or dislocation over cervical spine or lumbosacral spine

- No fracture over pelvis”   

16.Attempts were made by the police to obtain a statement from the plaintiff regarding the accident on consecutive dates on 24 August 2009[17], 25 August 2009[18] and 26 August 2009[19]. On each occasion, he declined to give a statement on account of the injuries he claimed he had suffered and the pain he claimed he was suffering from.  He gave a statement to the police much later on 15 January 2010[20] and stated[21]:

“8. … PC 52063 was in front of me. When we walked towards Sheung Wing House from the car park, I remembered there was an old lady at the sitting-out area on the ground floor of Sheung Wing House saying good morning to me. At that time I faced the old lady and said “good morning!” in reply. After I replied, I stepped onto something (that thing was on the kerb in the car park on the ground floor of Sheung Wing House) and I fell to the ground. I felt that my back was hit by the gear around my waist as I fell on the ground. The back of my head hit the ground. My left waist was in pain (i.e the region of the back near my waist, the back of my head and my left shoulder were painful). Subsequently, I saw the old lady who greeted me asked me whether I was fine, and said “Sir, you fell and hurt yourself?” At that time I did not reply the old lady. Subsequently, I saw PC 52063 walked back and said I just stepped onto a wooden board. (it was between the car park on the ground floor and the kerb). At that time I felt dizzy and faint. When I fell, there was sufficient light. Not many people were there. There was a lot of sand on the ground, and I believed that renovations of units were underway so there was a huge pile of sand near where I fell. I still remembered a lot of sand stained at the back of my blue shirt. I remembered at that time I wore a new pair of work shoes which had been worn for about two to three months.

9. When I regained consciousness, there was a colleague who I had no idea where he was attached (uniformed police officer) patted me to wake me up. …”

17.There is no indication on the CCTV recording that the plaintiff had been speaking to any person at or before the time he fell.   More importantly, there is no indication in the medical reports that he had lost consciousness. 

18.The plaintiff said that there was a lot of sand on the ground, and that there was a huge pile of sand near where he fell. He remembered that the back of his shirt was stained with sand.  It is common ground that there were piles of sand at the end of the car park not far from where the plaintiff had fallen, as can be seen from the photographs marked P-1 to P-5 to the Plaintiff’s Summary of CCTV Captures, and that there was construction work going on. I accept the evidence of Mr Lam Kim Hung, the defendants’ first witness who gave evidence on 12 April 2017. He was the senior housing manager of the 2^nd defendant and he gave evidence during his cross-examination on these matters[22]:

“Q. Let me repeat my question. On page 1[23], top right-hand corner, there were three piles of sand for decoration work at that time?

A. Yes.

Q. And of course decoration workers would get sand from these three piles and then took them to their workplace, you agree to that?

A. Yes.

Q. And in the course of transportation, some sand could be spilled onto the floor or ground.

A. It’s possible, yes.

Q. And they use trolleys to transport the sand.

A. Yes.

Q. You mentioned about three wooden boards placed at the pavement, remember?

A. Yes.

Q. And obviously the workers would have used trolleys to transport sand over these three wooden boards.

A. Yes.

Q. And some sand could have spilled onto the wooden boards.

A. Yes.

Q. And when some -- when a cleaner cleaned the car park and the wooden board with a broom, it’s possible that some small quantity of sand could be still left on the floor and the -- on the ground and the wooden board, you agree to that?

A. Agree.

Q. Now, you and your colleagues had never tried to remove the wooden boards?

A. That’s correct.

Q. What was the reason for that?

A. Because the wooden board had not been placed there by our office. Besides, as I have said, I guess they would have been put there by the decoration workers to facilitate them to convey the sand upstairs for their decoration work.”

I accept the evidence of Mr Lam Kim Hung and find that there was some sand on the board the plaintiff had stepped on, notwithstanding the regular cleaning that took place every morning at 7.30 a.m. and which had also taken place on the morning in question. I do not accept the plaintiff’s statement in his police statement that there was a lot of sand on the ground. As I have already found, the plaintiff’s left foot only started to move, and the board only started to move, when the plaintiff’s right knee almost reached the surface of the pavement.  Any sand that was underneath the plaintiff’s left foot did not cause the plaintiff’s left foot to slip and did not cause or contribute to his fall.

19.The plaintiff was asked further questions by the police on 28 January 2010 and he gave the following responses[24]:

“Q7: What do you think are the reasons of the incident in which you fell at Sheung Wing House?

A7: I really have no idea why this accident happened.

Q8: You said that after you fell, a police officer whom you did not know where he was attached in patted you. So, did you tell any police on the scene that you stepped on something and slipped?

A8: Can’t remember.

Q9: So do you remember how you fell?

A9: I remembered I stepped onto something (I don’t know what it was) and I fell. For the rest, I am not sure.

Q10: Anything want to add?

A10: Not for the time being.  If I remember anything, I will inform Sgt 45541.”

20.In his Statement of Claim dated 20 August 2012, before the CCTV recordings had been found, the plaintiff averred that he had stepped on a piece of wooden board[25] covered with sand causing him to slip and fall.  In his first witness statement made on 11 March 2013, also before the CCTV recordings had been found, the plaintiff said[26]:

“17. At that time, PC 52063 was walking ahead of me at brisk pace, and I followed him at normal pace. As I walked to the surrounding of the parking lot nearby the resting area on the ground floor of Sheung Wing House, I noticed that the entrances to the resting area were blocked with boards, and I took the shortest path to head for one entrance not blocked by boards. I also noticed that two boards were placed on the curb between the parking lot and Sheung Wing House, and there was a layer of sand on the surface of the roadway of the parking lot, curb, walkways and gutter, so I slowed my step and chose to step onto the slope subconsciously in order to avoid the danger of uneven drainage pit. I stepped on one of the relatively safe board. However, as my left foot stepped on the board, and I lifted my right foot forward, my left foot slipped and fell forward due to the sand on the surface of the board. Out of instinct, I turned my body and fell on the ground with my left body part, resulting in injuries in my head, left shoulder and waist.”

21.Whether or not the entrance to the resting area was blocked with boards had no causal relevance to the plaintiff’s fall.  The plaintiff’s colleague had not been obstructed, by these boards allegedly blocking the entrance to the resting area, from stepping safely and directly onto the pavement[27]. The plaintiff chose to step onto the board instead of stepping directly onto the pavement.  Whether or not the entrance to the resting area was blocked with boards had no causal connection to the plaintiff’s choice to step onto the board instead of stepping directly onto the pavement. 

22.I do not accept the plaintiff’s evidence that the drainage pit or grille posed any danger.  As I have already found, the long continuous metal grille covering the drain was in good condition, well placed and did not pose any danger to any pedestrian walking from the road surface of the car park onto the pavement. If the plaintiff had wanted to avoid danger, whether consciously or subconsciously, he would have done well to follow his colleague and step directly onto the pavement rather than stepping on the board as he did. 

23.I also do not accept the plaintiff’s evidence that, as his left foot stepped on the board, and as he lifted his right foot forward, his left foot slipped and fell forward due to the sand on the surface of the board.  I repeat my findings in §18 above. I have already found that there was some sand on the board that the plaintiff had stepped on.  The board was not covered with sand nor was it full of sand.  It is clear from the CCTV recording that the plaintiff’s left foot did not slip.  As I have found, his left foot did not slip during the time the plaintiff was falling. The plaintiff’s left foot only started to move, and the board only started to move, when the plaintiff’s right knee almost reached the surface of the pavement.

24.After the CCTV recordings had been found, the plaintiff made a supplemental statement on 18 September 2013 stating[28] that when he stepped on the board, he sensed that the board did not have much load bearing capacity and sank downwards immediately, resulting in him losing balance and being tripped over. Also after the CCTV recordings had been found, the Statement of Claim was amended on 11 February 2014 to aver, additionally, that, at the material time when the plaintiff stepped on the wooden board[29], the wooden board was too soft that it sunk and together with the presence of sand resulting in the plaintiff losing his balance and causing him to slip and fall[30]. 　At the trial, the plaintiff said under cross examination[31]:

“Once I stepped on it, the board sank. When I raised my right foot, as the board sank because it was too soft, so it would feel like as if something was there and I had no idea what was there underneath the board. Because it was too quick, once it sank, once it sank, I fell.”

He also said in re-examination[32]:

“When my left foot was on this board, the board sink downwards a little bit and slipped backwards, and that was the moment when my right foot was raised and about to be put onto it. Because the board slipped when it was first stepped upon, the board was already away from its original location. When my right foot stepped forward, I already lost my balance and my person fell forward.”

25.I do not accept the evidence of the plaintiff that the board sank when he stepped on it causing him to lose balance and to fall, or that the board sank and slipped when he stepped on it causing him to lose balance and to fall.  I have no doubt that the board in question, being made from thick cardboard, would have been pressed down by the weight put on it when the plaintiff placed his left foot on the corner of the end of the board that was resting entirely on the road surface. However, it is clear from the CCTV recording that the board did not shift when the plaintiff stepped on the board with his left foot and that the plaintiff’s left foot did not slip or shift as it rested on the board.  As I have already found, his left foot did not slip during the time the plaintiff was falling. The plaintiff’s left foot only started to move, and the board only started to move, when the plaintiff’s right knee almost reached the surface of the pavement.

26.The plaintiff was not credible. He has made long and rambling statements in his supplemental witness statement and in his answers during cross examination.  He has given different accounts of the alleged accident, each one of which I have rejected.  On the other hand, the defendants’ witnesses gave evidence in a simple and straightforward manner.  I found them to be credible and I accept their evidence in their entirety. I have already referred to the evidence of Mr Lam Kim Hung, the senior housing manager of the 2^nd defendant, which I have accepted.  I also accept the evidence of Mr Wong Wing Leung, the security guard on duty that morning, and of Mr Wong Siu, the cleaning supervisor, regarding the cleanliness and the general state of the car park and surrounding pavements at the location where the plaintiff had fallen and in the general vicinity of that location.  The 4^th witness for the defendants’, Mr Chan Chun Kau, did not remove the boards, after the plaintiff had fallen, for any sinister reason. I accept his evidence that it was his usual practice to remove any board that had been shifted or displaced and that he did so as a precautionary measure to prevent a person from tripping or falling or kicking at them[33].

27.The onus is on the plaintiff to establish on a balance of probabilities that the accident complained of was caused or contributed to by a breach of duty on the part of the 1^st and 2^nd defendants or on the part of one of them.  I am not satisfied on the evidence adduced before me that the plaintiff’s fall was caused or contributed to by any breach of duty on the part of the 1^st and 2^nd defendants or on the part of either of them.  That is sufficient for me to dismiss the plaintiff’s claims and to dispose of the action.

28.However, there is other evidence that has been adduced of the plaintiff’s past history that raises grave suspicion that the plaintiff contrived to fall down that morning, when he was on his way to work for the first time after a period of sick leave and vacation leave, in order to “earn” more sick leave, not realising that his actions were being recorded by a CCTV camera.

29.The plaintiff has suffered from back problems since 1987. He first sustained back injury in 1987 carrying heavy objects whilst on duty and he suffered another injury to the back in 1990 which resulted in low back pain and lower limb paraesthesia and numbness.  In 2007, he attended hospital on four separate occasions complaining of low back pain on each occasion[34].  He was given a course of physiotherapy from 14 August 2007 to 1 November 2007 for recurrent low back pain, and there was only mild improvement after 15 sessions[35].  He made two new, significant, complaints in November 2007 that his back was painful almost all the time and he could only walk short distances because of his back pain[36]. The complaints of back pain continued in 2008. On 24 April 2008, the plaintiff required excision of a cyst on his left thigh.  On that occasion, he complained of low back pain that he had suffered from without any injury.  The complaints of low back pain continued in 2008 with the plaintiff attending for medical treatment on 26 September 2008, when he informed the treating doctor that he had suffered low back pain for 20 years after an injury in 1987.  He also attended for medical treatment for low back pain on 3 other occasions from 15 October 2008 to 29 July 2009[37].

30.On 8 September 2008, the Plaintiff was first seen at the psychiatric clinic of United Christian Hospital.  He was seen again and he received a provisional diagnosis of Adjustment Disorder on 31 October 2008. From September 2008 to August 2009, he had significant psychiatric complaints and was receiving psychiatric medication.  On 7 August 2009, he mentioned a fear of handling a gun and he asked to be admitted to hospital on account of his poor sleep[38]. He was admitted to the Yung Fung Shee Psychiatric Centre of the United Christian Hospital for one week from 7 August 2009 to 14 August 2009[39].  The report from the psychiatric centre dated 27 May 2013 summarised his condition and treatment in these terms[40]:

“Mr. WONG was first known to our Department since 31 October 2008, presenting with low mood related to his work with insomnia, headache, chest discomfort, palpitation and abdominal pain.  He recalled a history of lower back pain for more than 20 years. He frequently requested sick leave and felt that supervisor had treated him unfairly. Therefore, he complained his supervisor in July 2008.  He felt that he was being isolated by his colleagues afterwards and developed depressive mood, insomnia with nightmares and rumination that his supervisor would take his working mistake for a revenge to him. After referral to our clinic since 31 October 2008, Mr. Wong was diagnosed to be suffering from “Adjustment Disorder” and was treated with antidepressant.  He had one past psychiatric admission at United Christian Hospital (UCH) from 7 August 2009 to 14 August 2009.”

31.After his discharge, he used his accumulated vacation leave to take extra time off work before he returned to work on 24 August 2009.  In his unnecessarily long and rambling witness statement, he said[41]:

“15. On the date of accident, I went to Sau Mau Ping Police Station to change uniform at around 0655 in the morning, and I sensed a sore pain in the lumbar spine. After changing into my uniform, I held my leather belt and cap in hand and headed for the First Sub-unit Office in the first floor to check my shift on the bulletin board, during which time, I encountered my superior Station Sergeant LAW K.C. outside the First Sub-unit office, so I asked him about my shift period on that day. Station Sergeant LAW K.C. replied that I was assigned to the temporary police post on the ground floor of Sheung Fu House in Upper Ngau Tau Kok Estate together with PC 52063. I mentioned to Station Sergeant LAW K.C. at that time that I felt uncomfortable in my waist, but he did not respond. I also asked him whether I needed to take my gun and equipment to work, and he replied to me by asking whether I had been granted sick leave. I answered no. Station Sergeant LAW K.C. said to me that I should then take my gun to work without sick leave, and then asked if I needed to go to the doctor at that time. As civil servants may take four hours each day during working time to visit the doctor, and I had made to follow-up appointment with Robert Black Hospital that afternoon, so I thought I should be able to be on my duty in the morning and answered no to him. Afterwards, I met SGT 7058, and reported to him that I would go for a follow-up visit in Robert Black Hospital that afternoon to listen to doctor’s report on the X-ray I took three weeks earlier. SGT 7058 replied that there was sufficient manpower and he would make arrangements.”

32.On the morning of 24 August 2009, he had felt back pain and wanted to return to work without having to carry a gun and his equipment.  Clearly, he was unhappy with his superior for insisting that he carry his gun.  I do not accept his answer to my direct question that he felt “nothing”[42]:

“COURT: Do I understand this to be your evidence in this - in this witness statement that that morning when you reported to work you felt pain in your lower back?

A. Yes.

COURT: And you were trying to persuade your superior to let you work without having to carry your gun and the equipment that went with the gun. But he refused because you did not have a sick leave certificate.

A. Correct.

COURT: And how did you feel when he refused you?

A. Nothing.”

33.The plaintiff has had issues with his superiors and his colleagues over a considerable period of time:

(a)   it was noted in the psychiatric clinical records dated 8 September 2008[43] that the plaintiff felt unfairly treated by supervisors, isolated by colleagues and had increased stress at work after he made a complaint against 2 supervisors in July 2008;

(b)   it was noted in the psychiatric clinical records dated 31 October 2008[44], that he “requested to rotate out but in vain… Felt isolated when working… Requested cmo to recommend not carrying firearms” and that there was a “relationship problem with supervisors, [history] of beating supervisor on provoking 10+ years ago”;

(c)   it was noted in the psychiatric clinical records dated 12 November 2008[45], that the plaintiff wished to be rotated out of his posting after a colleague had written an anonymous letter against him;

(d)   it was noted in the psychiatric clinical records dated 10 December 2008[46], that the plaintiff was transferred to a posting near his home and he felt “happy”; and

(e)   it was noted in the psychiatric clinical records dated 7 August 2009[47], that on 24 July 2009, he had scolded a colleague for being unfairly treated and that the plaintiff had received a verbal warning.

34.The discharge summary from the Psychiatric In-patient Department of the United Christian Hospital dated 13 August 2009 stated[48]:

“He had long standing history of back pain and he requested sick leave frequently. He felt that he was treated unfairly by senior colleague because of the sick leave issue since 2008. He made complains about his senior colleague concern the unfair issue. He felt stressed with the situation with sleep disturbance. He developed excessive worries about the job and afraid of making mistakes at work. He was then transferred to another district after his complain.

He felt subjective improvement after the transfer. However, condition deteriorated since [April]. He attributed the deterioration due to onset of back pain, resume of night [shift] and fear of handling the gun. Difficulty in initiating sleep and fragmented sleep was noted. Mood was occasionally but not pervasively depressed. He was worried about carry the gun because of the back pain. He was worry about losing job because he had to apply sick leave for the back pain issue. He was still able to cope with current job. There was no negative cognition or suicidal ideation.

He had history of ?PID with persistent back pain for >20 years. He also developed multiple somatic complain of headache, chest discomfort, palpitation and abdominal pain since this year.

He had a recent argument with colleague on 24/7/09 on minor issues on night food arrangement. However, he developed temper outburst and scolded his colleague. The incident was stopped by senior colleague and he received verbal warning afterwards.

He was concerned about the persistent worry on losing the job and sleep problem.  He was also distressed about the back pain and the fear of carrying the gun.  Finally, he requested for admission for management of sleep problem as well as the back pain.”

35.The plaintiff’s low back pain and his problems with his superiors were at the forefront of his mind on the morning of 24 August 2009.  In cross examination, he was referred to the said discharge summary which highlighted 3 precipitating factors of his mental condition[49] before the following questions were put to him[50]:

“Q.   ...where it says “PPT”, I understand to be the precipitating factors, and 1 -- 1 -- and it refers to your relationship issues; number 2, your persistent back pain; and, number 3, worrying about carrying a gun.  Now, do you agree, sir, that these three were significant stressors which were contributing to your adjustment disorder at the time of your admission and after admission?

A.   That’s correct.

Q.   And I put it to you, sir, that when you went back to work on 24 August [2009] you clearly were unhappy with your duties as a senior police constable on beat duty, and not light duty.

A.   Agree.

Q.   I’d like to move to the incident itself and read your past history.”

36.It was submitted on behalf of the defendants that the above matters indicated that[51]:

“31. … even before the incident the Plaintiff was probably seeking ‘an escape’ from his normal police duties for a less demanding post. One would justifiably be concerned that this fall incident was a conscious or unconscious attempt to achieve this goal. The court, of course, need not make a finding of fact on this.”

37.The defendants were right not to ask me to make findings of fact on these matters. It was never pleaded in their defences or put to the plaintiff in cross examination that he contrived to fall that morning or that he fell in a conscious or unconscious attempt to achieve his goal of obtaining a less demanding post.  I refrain from making any findings of fact on these matters. All I would say is that the evidence of the plaintiff’s history that I have set out above raises a grave suspicion that his fall was not accidental.

38.For the reasons set out in §27 above, I dismiss the plaintiff’s action.  I make orders nisi as to costs that the plaintiff pays the costs of the action to the 1^st and 2^nd defendants to be taxed, if not agreed, and that the plaintiff’s own costs be taxed pursuant to the Legal Aid Regulations.

Mr Jackson C.P. Poon, instructed by L & L Lawyers, assigned by Director of Legal Aid, for the plaintiff

Mr Ashok K Sakhrani, instructed by Deacons, for the 1^st and 2^nd defendants