Wong Shiu Ping v. Secretary for Justice for and on behalf of the Director of Leisure and Cultural Service
Read the full judgment text of DCPI 2039/2014 on BabelCite. This District Court judgment was delivered on 3 August 2017.
1. This is a personal injury case where the plaintiff sues the Secretary for Justice for and on behalf of the Director of Leisure and Cultural Services Department (“LCSD”) for damages as a result of the injuries sustained by him at the Siu Sai Wan Promenade (“the Promenade”).
Cited by 2 cases · Cites 5 cases
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DCPI 2039/2014 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION PERSONAL INJURIES ACTION NO 2039 OF 2014 ------------------------------------
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-------------------------- JUDGMENT -------------------------- 1.This is a personal injury case where the plaintiff sues the Secretary for Justice for and on behalf of the Director of Leisure and Cultural Services Department (“LCSD”) for damages as a result of the injuries sustained by him at the Siu Sai Wan Promenade (“the Promenade”). BACKGROUND 2.There is no dispute that on 16 September 2011, at about 2:00 pm, the plaintiff, whilst walking alone on a path near the water pumping station in the Promenade, he fell and sustained injuries to his head and shoulder. As a result, the plaintiff suffered serious injuries to his forehead and pain to his left shoulder (“the Accident”). 3.There is also no dispute that the plaintiff was a lawful visitor to the Promenade and that the Promenade is under the control and management of LCSD. Further, there is no dispute that the maintenance of the Promenade was contracted out to the term contractor, namely, the Architectural Services Department (“ASD”). 4.The plaintiff claims that, at the time of the Accident, while walking on a gentle downhill path near the water pumping station, he tripped over the uneven road surface, lost his balance, stumbled down the steps and hit his forehead against the sharp edge of the kerb at the bottom of the steps. Amongst other injuries, he sustained a 10 cm laceration wound on his forehead. Layout of the locus in quo 5.The Promenade was designed by external consultants engaged by the ASD in 1999 and its design was said to have complied with all prevailing technical requirements and standards under the Buildings Ordinance and its subsidiary regulations at the time. The ASD engaged outside contractors to build and develop the Promenade in December 1999 in accordance with the designs provided by the external consultants. Maintenance works were carried out by the term contractors engaged by the ASD. Since 2002, the LCSD was responsible for the maintenance of the Promenade. 6.The Promenade itself is opened to the public on a 24-hour basis since 2002. 7.The path where the plaintiff was walking just before the Accident was a wide (approx 3 to 4 metres in width) gentle downhill slope, running from an east to west direction, parallel to the sea front (“the Path”). Next to the Path, there was a staircase which consisted of about 5 to 6 long and wide steps, descending from a south to north direction, perpendicular to the edge of the Path, with a bed of plants and short scrubs situated at the bottom (“the Steps”). 8.At the top of the Steps where the top step met the edge of the Path, there was a clear difference of elevation which was not demarcated by any warning signs or railings. 9.According to the defendant, the pavement and the paving blocks (approx 100 mm x 200 mm in size each) on the Path were built and laid since the opening of the Promenade in 2002. No alternation in the profile of the pavement had been made since the opening and up to the time when the Accident occurred. However, the Steps abutting the pavement were newly repaved as part of the maintenance works just prior to the Accident. 10.According to the plaintiff, he had tripped over the uneven surface along a gap created by the paving blocks laid near to the edge where the Path met the Steps. In the series of the photographs taken by the plaintiff and a district board member who was assisting the plaintiff at the end of September 2011 (ie approximately 2 weeks after the Accident), uneven surface created by the paving blocks near to where the plaintiff fell could be clearly seen. DISCUSSION LIABILITY How the Accident happened? 11.The plaintiff is the only witness who gave evidence regarding the Accident. It was not witnessed by anybody else. The 2 witnesses who gave evidence on behalf of the defendant did not witness how the Accident occurred. 12.I find the plaintiff to be an honest, truthful and straight-forward witness. Despite at the age of 76, he is of robust health and possesses a very sharp mind. I accept his evidence when he says that while he was walking on the Path at the gentle downhill slope, he tripped over an uneven surface created by the different levels of paving blocks laid on the Path. This caused him to lose his balance. While trying to regain his balance, he stumbled down the Steps and dashed towards the direction of the scrubs. He landed on all fours and his forehead was split opened by the sharp edge of the kerb at the bottom of the Steps. 13.The defendant submits that the court should not accept the pleaded case of the plaintiff which was different from the previous accounts given by him. This included allegedly “the earliest version” given by the plaintiff in his letter to LCSD dated 26 November 2011. In the letter, the plaintiff stated the following:-
14.With respect, that was not the “earliest version” given by the plaintiff about the Accident. In a letter dated 30 September 2011 written by a district board member on his behalf, the plaintiff, through the district board member, complained to the LCSD that “due to the uneven road surface, (it has) caused him to fall and his head hit against the new paving stone on the ground” (「因地面不平，導致跌倒，頭撞向地下新石礐」)[1] . The letter concluded by saying that there were many uneven surface in the newly repaved area and would ask LCSD to improve the surroundings in order to avoid similar accidents in future. In my view, this “earliest version” of the plaintiff is entirely consistent with his pleaded case and the version given by him in court. 15.Similarly, the defendant submits that since the doctor at the Accident & Emergency Department (“A&E”) at the Pamela Youde Nethersole Eastern Hospital (“Eastern Hospital”) recorded that the plaintiff had “missed step – fell forward”, it must have come from the plaintiff himself and most likely was how the Accident happened. The defendant also relies on a written note made by an artisan from LCSD dated 25 September 2011 purportedly recorded a different account given by the plaintiff suggesting that he had “stepped into the void” between the Path and the Steps. However, I note that the artisan was never called to give evidence at trial and his evidence was never put to the test. Hence, anything allegedly stated by him must be treated with caution and should be attached very little weight. 16.As to the different versions given by the plaintiff to the LCSD and to the doctor at the hospital, I do not think one should treat them as having equal status as the pleadings and/or the witness statements (which are accompanied by statements of truth). There are many things that plaintiff might have said to LCSD or to the doctor at the hospital. They however only gave a partial or abbreviated account of what happened in the Accident. They were not meant to be a comprehensive account. In this regard, I prefer the evidence given by the plaintiff in court which was based on the account in his witness statement for which the defendant was able to test extensively by way of cross examination. 17.Further, I do not regard the accounts of “missed step” and/or “stepping in the void” mentioned by the plaintiff to the doctor at the A&E and LCSD are necessary inconsistent with the account given by the plaintiff in court. From the plaintiff’s evidence, it is clear that after he had tripped over the uneven surface of the paving blocks, he lost his balance and “missed his step” in between the Path and the Steps before stumbling down to the bottom. To me, this is entirely consistent with the descriptions he has given in court. 18.In the circumstances, I find the Accident has occurred in the way as described by the plaintiff in court. Issues to be determined 19.On the issue of liability, the court has to decide whether the Accident was caused by the negligence/all the breach of the common duty of care under the Occupiers’ Liability Ordinance, Cap 314. In particular, whether the defendant has:-
(i) Whether there was any uneven surface or whether the paving blocks had been smoothly paved 20.In this respect of the case, I prefer the evidence of the plaintiff’s than the defendant’s. In his evidence, the plaintiff was able to point out that he had tripped over at the uneven surface at “more or less” the same location as he was standing in one of the photographs shown in the bundle[2]. I accept his evidence that he fell somewhere along the same line where his left leg was standing in that photo. It was about 2 to 3 paving blocks further down from the light pillar shown in the middle of that photo. Although the plaintiff was not able to pin point the exact location where he had tripped over the uneven surface, this in my view is understandable given the fact that the Accident happened very suddenly; he had lost consciousness immediately after the Accident; and he did not have the chance to return to the site until days later. 21.What cannot be denied however is that there was clearly an uneven surface created by the paving blocks laid along that same line near the edge of the Path close to the Steps. This could be seen in some of the photographs taken by the plaintiff and/or the district board member who was then assisting the plaintiff in the case at the end of September 2011, ie within 2 weeks of the Accident. 22.I find as a fact that the uneven surface was created by the different levels of the paving blocks laid on the Path near the top of the Steps. This would create an obvious danger to the users of the Promenade. I also find that such an uneven surface constitutes to a real foreseeable risk which would likely to cause serious injury and/or accident to the users of the Promenade of which the defendant is responsible for. 23.I reject the defendant’s evidence that there was no uneven surface on the Path back on the day of the Accident. It clearly contradicts to the photographs produced by the plaintiff which were taken within 2 weeks after the Accident. 24.DW1, Mr Ngai Kwok Kwan, who is the Assistant District Leisure Manager of LCSD was not the manager of the Promenade at the time of the Accident. In fact, he has only become the manager of the Promenade in May 2015. Hence, he has no direct knowledge of the layout of the Path and the Steps at the time of the Accident. All he can say is that, according to the defendant’s records, at the time of the Accident LCSD had deployed ground staff to inspect the Promenade on a daily basis. Any defects, including irregularities of the floor surface, would be recorded in the inspection records and reported for maintenance and repairs. It is said that any areas affected by the works would be cordoned off also. No record showing any irregularity of the subject pavement was found. 25.However, Mr Ngai could not explain why there was an obvious uneven surface – which was estimated by him at about 10 mm in height but appears to be slightly taller to me -- between the levels of the paving blocks laid along the edge of the Path near to where the plaintiff had tripped over as shown on the photographs taken by the district board member soon after the Accident. 26.The above evidence of Mr Ngai is also contrary to the evidence of the plaintiff who said that there were renovation works done in that area and the same had been cordoned off until a day or two before the Accident. 27.In my judgment, the only explanation why such uneven surface existed is that the defendant had failed to ensure that the paving blocks were smoothly and evenly paved in the first place and then allowed such obvious uneven surface to continue to exist. I have no doubt that it was this uneven surface which had caused the plaintiff to trip over. I find such obvious defects were due to the defendant’s failure in carrying out regular and sufficient inspections. Otherwise, I do not see how such obvious defects could not have been detected by the defendant. 28.On this failure alone, I find the defendant liable for the Accident. (ii) Failure to give sufficient warning of the presence of the Steps 29.At the time of the Accident, there was no warning signs or bands placed on the Steps. This is confirmed by the plaintiff in his evidence. 30.Immediately after the Accident, according to DW2, Mr Paul Lau from ASD, on the request of LCSD, some bright yellow warning bands were added to the nosing of the Steps and at the edge of the adjourning Path. In his evidence, Mr Ngai from the LCSD could not explain why the yellow bands were added immediately after the Accident. I reject Mr Lau’s evidence that yellow bands were added to the nosing of the Steps simply as “improvement works” after the Accident. I also reject his evidence that just because there was no reported accident happened at the location where the plaintiff has fallen since its opening in 2002, it would mean that the place was safe at all. Equally, I reject the defendant’s submission that just because the design had complied with the building regulations prescribed at the time, it would mean that it was safe. 31.In my judgment, it is plain and obvious that the yellow bands were added to provide warning to any users of the Promenade to indicate that there was a difference in height at the level where the top of the Steps met the edge of the Path. Without the yellow warning bands, it was not obvious to the pedestrians that there was such a difference in elevation. I do not agree with the defendant’s submission that the slight difference in the colours of the Steps; the nosing of the Steps and the pavement stones had provided sufficient warning to the users of the Promenade at all. In fact, such difference in colour was not obvious to me in all the photographs taken after the Accident. In my view, any user of the Promenade who was not paying special attention while walking down the Path near the edge would have easily missed the Steps and tripped over due to the difference in height. 32.Further, in my judgment, it is clear that the defendant had acknowledged that there was a need to place the warning bands on the Steps and the edge of the Path in order to warn users of the Promenade immediately after the Accident. However, in my view, this was a reasonably foreseeable risk which the defendant should have guarded against by placing the warning bands to the nosing of the Steps and the edge of the Path prior to the Accident. 33.Had there been warning bands added to the nosing of the Steps and at the edge of the Path, I am sure that the users of the Promenade, including the plaintiff, would have stayed clear of the area or would have taken extra care. 34.I therefore have scant doubt that part of the cause of the Accident was due to the lack of such warning of the presence of the Steps and the different elevation to which the defendant should be made liable also. (iii) Failure to erect any railings or fencing around the uneven surface 35.The defendant says that the railing installed at the edge of the Path adjourning to the Steps after the Accident was one of the Barrier Free Access (“BFA”) improvement works within government premises in the Eastern District. This was allegedly done in direct response to the Equal Opportunities Commission’s formal investigation report on accessibility in publicly accessible premises released in June 2010. The defendant says that the BFA improvement works for the Promenade was endorsed in November 2010 and the subject railing was included as part of the BFA improvement works. It was designed in May 2011 and installed in June 2012. In other words, the defendant claims that it was purely coincidental that the railing was installed a few months after the Accident and it had nothing to do with the Accident. 36.In spite of both Mr Ngai and Mr Lau have testified to the above, not a single document has been produced by the defendant to verify the fact that the installation of the railing was as a direct response of the BFA improvement works. In my view, it is indeed too much of a coincident that the railing would be installed by the edge of the Path next to the Steps a few months after the Accident. This is in particular if one were to take into account of the fact that there were already railings installed on the other side of the Path next to the wall. Any disabled or elderly person who required “barrier free access” to the Promenade could make use of those existing railings. 37.Putting aside the question of whether the new railing installed in June 2012 was as a direct response of the BFA improvement work programme or not, it is my view that at the spot at or around where the Accident occurred, it cries out for some railings to be installed for 2 reasons. First, as a warning to pedestrians of the Path that there were uneven surface and different elevation next to the Steps. Second, as a natural barrier to stop pedestrians from falling off from the side of the Path. 38.In my judgment, the failure to install or fence off the edge of the Path adjourning the Steps by railings constituted to a breach of the duties owed by the defendant to the users of the Promenade, including the plaintiff. Contributory negligence 39.The defendant alleges that the plaintiff should be partially liable in contributory negligence. In particular, it points out 3 different facts to substantiate such allegation. 40.I do not agree with the defendant’s propositions. 41.First, the defendant says that the tiles of the Path, the flat area of the Steps and the border of the Steps were made with different colours / types of tiles and therefore provided “clearly demarcated” areas. With respect, I find they were of very similar colours and the difference between them were not clear at all from the photographs produced by the plaintiff which were taken soon after the Accident. The defendant has failed to produce any photographs showing that the colours / types of tiles have provided such clear demarcation. In any event, such matter has never been pleaded as part of the defendant’s case of contributory negligence against the plaintiff and is not open for the defendant to argue at the end of the case. 42.Second, the fact that the plaintiff was a frequent user of the Promenade who often went there for fishing or exercises does not make him liable for failing to notice the uneven surface created by the paving blocks. The responsibility of making the place for the users of Promenade in my view rests squarely with the defendant. 43.Third, there is no evidence to suggest that the plaintiff had failed to keep a proper lookout while he was walking on the Path. The fact that he was looking at the water front barrier trying to look for a suitable spot for fishing does not mean that he had failed to keep a proper lookout and failed to take care of his own safety. Like the duty imposed on the defendant, his duty to keep a proper lookout is a reasonable and not an absolute one. I accept his evidence that while he was looking at the water front barrier, he was watching while walking (「有行下望下，望下行下」). It was most unfortunate that while he was doing so he tripped over the uneven surface created by the poorly laid paving blocks. 44.In the circumstances, I do not find any contributory negligence on the part of the plaintiff. QUANTUM The Injuries 45.After the Accident, the plaintiff was taken to the A&E of the Pamela Youde Nethersole Eastern Hospital for treatment. The plaintiff sustained a 10 cm laceration over his forehead and also injuries to his left shoulder. The wound over his head was closed by suturing with 9 stitches. He was admitted to the emergency medical ward for further observation. He was discharged on the next day. 46.The plaintiff attended the Department of Family Medicine and Primary Health Care of Chai Wan Health Centre on 19 October 2011. On that occasion, CT scan of the brain was done which revealed mild scalp soft tissue swelling at the right frontal aspect. During his follow-up session at the clinic, the plaintiff complained of numbness sensation over his right leg. He was found to have hypertension during the follow up which was not related to the Accident. 47.The plaintiff was 70 years old at the time of the accident. He had previously worked as a cook and a hawker before he retired at 65. Before the Accident, he was said to have enjoyed good health and had led an independent life. During his retirement, sometimes he worked as a casual worker in doing odd jobs. He used to enjoy hiking and fishing. 48.Besides the pain in his right leg, the plaintiff also complains of tinnitus after the accident. He also complains of neck pain, back pain and pins and needles sensations over his body. There was however no complaint of headache after the Accident. 49.In the joint medical report of Dr Fu Wai Kee and Dr Poon Kai Ming, both experts agree with the diagnosis of head concussion following the Accident. Dr Fu for the plaintiff opines that it is common for patients to have residual symptoms such as headache and tinnitus after a head concussion. He opines that the complaint of tinnitus was as a result of the head injury. Dr Poon for the defendant on the other hand has strong reservations in prescribing the tinnitus complaint as a direct consequence of the Accident due to the delay of the complaint. He considers that tinnitus is a rather common minor health ailment of people at his age. Both experts however agree that the plaintiff has sustained minor soft tissue injury of the left shoulder as a result of the accident. It is agreed that the plaintiff has recovered fully from the left shoulder injury. 50.Given the fact that the plaintiff had not suffered from any tinnitus prior to the accident despite of his age, I am of the view that, on balance, it is more likely than not that the tinnitus was related to the Accident. I am further of the view that the soft tissue injury of the left shoulder which the plaintiff has now recovered fully was also as a direct result of the Accident. 51.The plaintiff also complaints of neck pain, back pain and lower limbs weakness after the accident. However, there was no independent contemporaneous medical records to verify such complaints except the right leg pain at the follow up treatment at the Chai Wan clinic. While Dr Fu opines that the mechanism of injury described by the plaintiff may have indicate some minor soft tissue injury to his leg, back and limbs during the Accident, however, since there is no document available to support the same, such opinion cannot be substantiated. Similarly, I do not consider that his complaints of bad temper, poor sleep, and lack of concentration could be attributed to the Accident. Pain suffering and loss of amenities 52.The plaintiff’s counsel submits that this case is comparable to the case of Lau Choi Chung v Xie Renlan & Another DCPI 468 of 2004, unrep., (Deputy Judge Wahab; 29.1.2007) where the plaintiff suffered from multiple frontal lacerations and was left with scars on the forehead. An award of $120,000 was made for PSLA back in 2007 which the plaintiff submits would be equivalent to about $160,000 today. 53.The plaintiff further relies on the case of Wu Kin Leung v Incorporated Owners of Fu Tor Loy Sun Chuen Stage I HCPI 684/2002, unrep., (Sakhrani J; 4.4.2005) where a sum of $200,000 was awarded for PSLA for plaintiff who was hit on his forehead by an object. The plaintiff suffered from no loss of consciousness but a faint scar of about 2 cm over the left forehead was resulted. The plaintiff only required 3 stitches and he was not admitted into hospital. He was only given sick leave of 3 days. However, the plaintiff suffered from post-concussion syndrome with very mild epilepsy. 54.Lastly, the plaintiff relies on the case of Yu Ka Ki v Chan Wing Sum DCPI 1819/2010, unrep., (Master I Wong; 4.11.2011) where the plaintiff sustained a 4.5 cm laceration over his forehead and dry blood staining opening of the nostrils. She had received 7 stitches but the scar was barely visible by the time of trial. The main complaint he had was an itchy scar. An award of $75,000 was made for PSLA. 55.The defendant on the other hand relies on the following cases as comparables for PSLA award:-
56.In my opinion, the plaintiff’s injuries are more serious than those suffered by the victims in the first 2 cases cited by the defendant and the case of Yu Ka Ki cited by the plaintiff. They are more akin to the injuries suffered by the plaintiffs in Chang Tsun Tein cited by the defendant and Wu Kin Leung and Lau Choi Chung relied on by the plaintiff. 57.In my judgment, a reasonable award for PSLA in this case would be in the sum of $150,000. Loss of pre-trial earnings 58.The plaintiff appears to me to be a very healthy and robust retiree. He claims that he was able to do part-time work after he retired at 65 and whenever he could prior to the Accident. This would include jobs like working as a substituted waiter or cook, distributing leaflets and as a shop assistant. He did so whenever people he knew was taking days off and whenever such work became available. He claims that he was able to earn an average of $2,000 to $3,000 per month out of such part-time jobs at the time of the Accident. 59.For obvious reasons, the plaintiff’s income from such part-time earnings are not supported by any documentary evidence and no MPF were paid. However, having heard the plaintiff’s evidence and having carefully observed his demeanour as a witness in court, I believe that he is the type of person who would not rest at home and would work whenever he could in his retirement. Given his previous pre-retirement occupations and his robust health, I believe the plaintiff was able to and on average able to earn $2,500 per month from his part-time employment. Had it not been for the accident, I believe that he could have continued with such part-time employment until at least the time of trial, ie from September 2011 to July 2017. I therefore would allow a sum of $175,000 ($2,500 x 70 months) as loss of earnings in this case. Loss of future earnings / loss of earning capacity 60.Given the plaintiff’s advanced age and the fact that he is unlikely able to continue with such part-time jobs even without the Accident, I do not consider a separate award for loss of future earnings or loss of earning capacity will be warranted in this case. Impairment of ability to provide gratuitous services 61.I do not think his helping out of daily chores like housework and cleaning at home prior to the Accident would justify a separate award for gratuitous services in this case. There is no evidence that the plaintiff or his family have to employ someone to do the housework after the Accident. I do not think his services could be quantified in monetary terms. Special damages 62.The plaintiff claims a total sum of $49,345 as special damages in this case. This included medical expenses for the $46,045 and travelling expenses at $3,300. 63.The medical expenses mainly consisted a sum of $45,000 as medical treatments received from the Chinese medical practitioner based in the Mainland. However, not a single receipt has been produced by the plaintiff to verify such claim. The plaintiff’s case that such protracted treatment was necessary and reasonable was neither supported by any documents nor any medical opinion. In other words, they are simply bare assertions made by the plaintiff. I do not consider that the plaintiff has made out such claim. In the absence of any documentary evidence, I would allow a modest sum of $5,000 as treatments by the Chinese medical practitioner in this case. 64.For the treatments received by the plaintiff at the government hospital and clinics, those expenses were supported by the medical reports and/or receipts. I would allow a sum of $1,045. 65.For travelling expenses, I would allow a sum of $1,000 in the absence of any receipts and/or explanation why travelling to the Mainland to consult the Chinese medical practitioner was necessary. 66.Therefore, the total special damages allowed would be at $7,045. Summary of calculations 67.In summary, I am of the view that the plaintiff will be entitled to the following amount as damages resulting from the accident:-
68.I therefore enter judgment against the defendant in the sum of HK$332,045. Interest 69.There will be interest for the above sums at 2% per annum for general damages from the date of service of the writ to date of trial and 4% per annum for special damages from the date of accident to date of trial. Costs 70.Costs will follow the event. I make an order nisi that the defendant pays the plaintiff’s costs of the action, such costs to taxed if not agreed, with certificate for counsel. The plaintiff’s own costs to be taxed in accordance with the legal aid regulations. In the absence of any application by the parties within 14 days from the date of this judgment, the order will become absolute.
Mr Simon HW Lam, instructed by Victor Yeung & Co., assigned by the Director of Legal Aid,for the plaintiff Miss Katherine Chan, Government Counsel of Department of Justice, for the defendant | ||||||||||||||||||||||||||||||||||||||
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