Siu Man Hai v. The Link Management Ltd and Others

CACV 240/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 240 OF 2016

(ON APPEAL FROM DCPI NO 2567 OF 2012)

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J U D G M E N T

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Hon Poon JA (giving the Judgment of the Court) :

1.This is the plaintiff’s appeal against the judgment of Deputy District Judge Lawrence Hui (“the Judge”) dated 11 April 2016, dismissing his claims for loss and damage for personal injuries against the defendants.

A.  Introduction

2.On 11 April 2011, at around 4:46 pm, the plaintiff was riding his motorcycle in the Ap Lei Chau Estate multi-storey carpark.  While he was on his way out of the carpark, driving downwards on a slope between the 5^th floor and the 4^th floor (“the Slope”), his motorcycle skidded.  He fell and sustained fractural injuries to his right foot.  In the proceedings below, he sued the 1^st to 3^rd defendants, who were the owner, the management company, and the cleaning company of the carpark respectively.  His case was that his motorcycle skidded because of the sand scattered over the Slope, rendering its surface slippery.  The defendants denied liability and put the plaintiff to strict proof.  They also pleaded that their duties were fully discharged by the implementation of a safe system at the carpark.  Alternatively, they pleaded contributory negligence.

3.After trial, the Judge rejected the plaintiff’s case as to how the accident happened.  For completeness, the Judge went on to find that had liability been established prima facie, the defendants had failed to implement a safe system as alleged. He then assessed the loss and damage the plaintiff would have suffered at HK$337,155.00 without contributory negligence.  But the Judge also found that the plaintiff was guilty of 75% contributory negligence because of insufficient lookout, improper control of his motorcycle and excessive speed.

4.Subsequently, the plaintiff obtained leave to appeal from the Court of Appeal (Chu and Poon JJA) on 23 December 2016.

5.On 5 September 2017, we heard the appeal.  Essentially, the plaintiff contended that the Judge erred when (1) he rejected the plaintiff’s evidence as to how the accident happened and (2) he found that the plaintiff was guilty of 75% contributory negligence even if liability had been established.  The plaintiff asked us to set aside the Judge’s judgment and enter judgment in his favour against the defendants in the sum of HK$337,155.00 (as assessed by the Judge) with interest.  The defendants supported the Judge’s said findings but took no objection to the quantum of damages as assessed by him.

6.At the end of the hearing, we reserved our judgment, which we now hand down.

B.  Principle issues

7.As already outlined, there are two principal issues before us :

(1)  Whether the Judge was correct in rejecting the plaintiff’s case as to how the accident happened; and

(2)  Whether the Judge was correct in finding that the plaintiff was guilty of 75% contributory negligence.

8.Both issues are findings of fact.  Under the well-established principle, the plaintiff has to demonstrate that the Judge’s findings are plainly wrong before the Court of Appeal can interfere.

9.We first consider how the accident happened.

C.  HOW THE ACCIDENT HAPPENED

C1.  The evidence

10.The plaintiff gave evidence as to how the accident happened as follow :

(1)  At the material time, the plaintiff was driving his motorcycle in a straight line on the right turn marking before the give-way sign on the Slope (“the Right-turn Mark”).  He was driving at a speed of about 15 to 20 km per hour.  As he was about to make the right turn, he slowed down his motorcycle by applying the front brake.  His motorcycle then skidded, lost balance, tilted to the right and fell on the ground.

(2)  Immediately after the accident, the plaintiff could see lots of sand on the surface of the Slope where the accident took place.  The plaintiff believed that the presence of the sand was the cause of his skidding.

11.After the accident, the plaintiff telephoned Mr Chan Ching Fung (transliteration), who was his employer.  In his testimony, Mr Chan said that after receiving the plaintiff’s call, he immediately went to the scene and saw that there were lots of sand on the Slope.  Mr Chan also said that he found the Slope slippery.

12.The police officer who attended the scene right after the accident, PC9174, gave a police statement dated 20 April 2011.  His statement was admitted below without calling him. The contents of his statement were not in dispute.  According to his statement, PC9174 arrived at the scene at 4:57 pm, that is, about 11 minutes after the accident.  He found that there were lots of sand on the Slope.

13.Various photographs taken at the scene by another police officer, PC6345, were also admitted as evidence without dispute and without calling him.  One of the photographs showed the presence of some sand on the Right-turn Mark (“the Photo”).  A pen was placed on the Mark to indicate the presence of the sand.

14.Another piece of documentary evidence which is of significance is a hand-drawn sketch attached to the plaintiff’s statement given to the police dated 30 June 2011 (“the Sketch”).  The Sketch was not drawn to scale.  On it, the Right-turn Mark was represented by a “↱” mark (“the L-Mark”), although in reality the Right-turn Mark had a certain width, which can be seen from the Photo.  The plaintiff’s motorcycle was drawn next and parallel to the right hand side of the vertical line of the L‑Mark.  An arrow was drawn pointing near to the beginning of the vertical line of the L-Mark, with words saying “because of the presence of sand on this location, the skidding began to occur” (transliteration).

15.The defendants called 4 factual witnesses.  None of them had any personal knowledge as to whether sand were present on the Slope when the accident took place or how the accident actually happened.  In other words, the defendants had adduced no evidence to counter the plaintiff’s case on the presence of the sand on the Slope, in particular, on the Right-turn Mark, and how the accident happened.

C2.  The Judge’s findings

16.After summarizing the witnesses’ evidence, the Judge found that apart from the plaintiff himself, all the other witnesses were truthful and honest.  He then repeated what he considered to be the plaintiff’s version as to how the accident happened at [94] – [98] of his judgment.  In gist, according to the Judge’s understanding of the plaintiff’s case, the plaintiff was (1) travelling in a straight line and (2) was not travelling above the Right-turn Mark.  Based on his understanding of the plaintiff’s case, the Judge then said :

“ 99. From the above, it is clear that it is the plaintiff’s version of facts that he was not in the course of making a right turn, when his motorcycle skidded. Thus, I find the plaintiff’s explanation for the accident caused by the presence of the sand inherently implausible, improbable and absurd for the following reasons: -

(a) If he was not in the course of making a right turn but travelling in a straight direction and if he was only travelling at the speed of 15 to 20 km per hour, I doubt the amount of sand, as depicted in the photographs taken by the police, would have caused the plaintiff’s motorcycle to skid;

(b) Furthermore, even if there was sand, it seems that the sand was only located in the middle of ‘the Right-turn Mark’. This is because according to ‘the Photo’, a black pen was placed (subsequent to the accident) on the slope to mark the location of the sand;

(c) Alternatively, it may be possible for the skidding to take place (even with no sand on the slope), if the plaintiff was travelling at a much higher speed, perhaps 2 to 3 times of what he asserted…But this has never been the plaintiff’s case; and

(d)  Only if he was in the course of making a sharp U-turn … at a very high speed, could his motorcycle skid with the amount of alleged sand (even assuming he was travelling on ‘the Right-turn Mark’, contradictory to the police sketch) on the slope.  But this has never been the plaintiff’s case too.”

17.The Judge then went on to reject the plaintiff’s case in these terms :

“ 100. It would have been a physical improbability for the accident to have occurred in the manner described by the plaintiff. Indeed, the plaintiff had never confirmed the cause of the skidding and never explained (apart from the sand) why the slope was slippery. He was only told by Mr Chan that the presence of the sand ought to be the cause. Although the photographs taken by the police may also confirm the presence of the sand, whether the accident was caused by the sand is unknown and a mystery.”

18.The Judge therefore found that the plaintiff had failed to discharge his burden of proof in establishing the cause of the accident as alleged.

19.When the Judge dealt with the issue as to whether the defendants had discharged their duties as occupiers if a prima facie case had been established, he made further findings on the presence of sand :

“ 110. … Although one may say photographs could be deceiving depending on their quality, angle and lighting, by looking at the photographs of the [Slope] taken on the day of the accident, I do not find that there was so much sand or dirt to a level that is unusual, rendering it to be an ‘unusual event’. The live evidence of the plaintiff and Mr Chan regarding the ‘quantity of sand’ was not of much assistance too, as they just agreed with the photographs and said ‘lots of sand’… I find the plaintiff, Mr Chan and PC 9174’s description of the quantity of the sand rather subjective and not much weight could be placed thereon.”

20.For completeness, the Judge went on to find that the presence of sand on the Slope was a normal occurrence of everyday life.  He would nonetheless have found that the defendants had failed to prove on the balance of probabilities that they had properly implemented a safe system in the carpark.  He reasoned at [118] and [119] of his judgment that :

(1)  It was not enough to discharge the burden by merely calling evidence to show what the general system for safety is without calling those who actually manned the accident scene and physically implemented the system to give evidence.

(2)  The defendants had not called any witnesses who actually and physically manned, controlled, patrolled and cleaned the carpark on the day of the accident.  The defendants’ witnesses had no direct and personal knowledge of what was actually done on that day, including what reasonable steps had been taken to ensure that the road surface was in a safe condition, what measures had been taken to effectively deal with or clean up after matters had been deposited on the Slope and what system for daily inspection and cleaning of the carpark was implemented.

21.The Judge concluded at [120] that he would have found all defendants liable for negligence at common law and under the Occupiers Liability Ordinance, Cap 314.

C3.  The Judges’ errors

22.The Judge’s conclusion that the plaintiff was not a truthful or honest witness is evidently based on his rejection of the plaintiff’s version as to how the accident happened. There is no additional reason why the Judge found that the plaintiff was such a poor witness.  It follows that the determinative question is whether the Judge was correct at [99] of his judgment in finding that “the plaintiff’s explanation for the accident caused by the presence of the sand inherently implausible, improbable and absurd”.

23.The Judge prefaced his reasoning at [99] of his judgment by the finding that at the time of the accident, the plaintiff’s motorcycle was not travelling on the Right-turn Mark.  So at [99(a)], the Judge must have presupposed that the plaintiff’s motorcycle skidded at somewhere on the Slope outside the Right-turn Mark.  And that is why he said at [99(b)] that even if there were sand, it was only found on the Right-turn Mark as depicted by the Photo.  In the circumstances, the Judge’s finding as to where the plaintiff’s motorcycle skidded is crucial to his reasoning in rejecting the plaintiff’s case.

24.On where his motorcycle skidded, the plaintiff’s evidence is clear.  He said he was then travelling on the Right-turn Mark when his motorcycle began to skid.  Under cross-examination, he was referred to the Sketch and confirmed that the spot on the vertical line of the L‑Mark where the arrow pointed at represented the location where skidding began to take place (transcript pp 24U-25B).  The plaintiff’s evidence on where his motorcycle skidded was not challenged.

25.However, the Judge at [97] of his judgment said according to the Sketch, the plaintiff was not travelling above the Right-turn Mark when skidding began to take place.  The Judge further said at [98] that the plaintiff repeated the same assertion when giving oral evidence.

26.With respect, the Judge erred in two aspects :

(1)  It is simply not the plaintiff’s oral evidence that he was not travelling on the Right-turn Mark when his motorcycle began to skid.  On the contrary, he said his motorcycle was at that point in time traveling right on the Right-turn Mark.  And his evidence was not challenged. The Judge had completely misapprehended his evidence at [98] of his judgment.

(2)  Contrary to the Judge’s reading, the Sketch, when properly understood, did not show that the plaintiff’s motorcycle was not travelling on the Right-turn Mark.  On the Sketch, the Right-turn Mark was represented by the L-Mark with no width.  If the drawer of the Sketch drew the plaintiff’s motorcycle above the Right-turn Mark, the diagram showing the location where skidding took place would be rather confusing with the lines overlapping considerably.  It is therefore understandable why the plaintiff’s motorcycle was drawn next and parallel to the vertical line of the L‑Mark instead.  More importantly, the Sketch must be understood in light of what the plaintiff said in his oral evidence.  As said, when he was referred to the Sketch under cross-examination, he did confirm that the spot on the L-Mark as identified by the arrow was the location where his motorcycle began to skid because of the sand there.

27.In our view, the unchallenged and undisputed evidence shows that the plaintiff was in fact travelling on the Right-turn Mark when skidding began to take place.  The Judge plainly erred in failing to make such a finding.  Since the Judge premised his reasoning in [99] of his judgment on the wrong footing that the plaintiff was not travelling on the Right-turn Mark, his finding that the plaintiff’s version as to how the accident happened was “inherently implausible, improbable and absurd” is fundamentally flawed.

28.Next, in light of the language the Judge used at [99(b)] and [99(d)] of his judgment, he seemed to have accepted that there was sand on the Right-turn Mark but the amount of the sand was so small that the sand could not have caused the plaintiff’s motorcycle to skid.

29.On the quantity of sand, the Judge erred.

(1)  The evidence indisputably shows that there were patches of sand in various places of the Slope including the Right-turn Mark. The Photo shows that there was sand on the Right-turn Mark.  The plaintiff said in evidence that there was sand further up the Right-turn Mark (transcript p 3G-3K) and at and near the area where the skidding happened (transcript pp 25T; 26V; 27J-27P; 64-65B).  According to Mr Chan, he saw lots of sand at the spot where the accident took place ([4] of his witness statement).  According to PC9174’s statement, there were lots of sand on the Slope ([9]).

(2)  While it is true that the description of the amount of sand by the plaintiff, Mr Chan and PC9174 must necessarily involve a subjective assessment, we take the view that their evidence must be the best evidence available on this point.  In particular, the amount of sand must have appeared to PC9174, the investigating police officer, to be something out of the ordinary.  Otherwise he would not have written down in his statement that there were lots of sand.

(3)  The Judge placed much reliance on the photographs taken by the police.  However, as the Judge readily recognized, photographs could be deceiving depending on their quality, angle and lighting. We have examined the photographs and do not find them helpful in terms of indicating the whereabouts and amount of sand on the Slope.  On these two important points, even Mr Gidwani, counsel for the defendants, could not make much out of the photographs.  In our view, the Judge erred by placing too much weight on the photographs in his evaluation of the evidence overall.  He also erred when he said the plaintiff and Mr Chan just agreed with the photographs when they gave evidence on the amount of sand.  When their evidence is properly understood, they did more than just agreeing with the photographs.  They gave independent evidence based on what they saw at the scene.  They just confirmed what the photographs depicted.

(4)  In the circumstances, the Judge erred when he preferred the photographs, which were of little value, over the live evidence of the plaintiff and Mr Chan and PC9174’s statement.  Such error must have also tainted the Judge’s finding that there was only small quantity of sand on the Right-turn Mark.

30.The Judge also erred when he found that the sand on the Right-turn Mark could not have caused the plaintiff’s motorcycle to skid.

(1)  He erred when he at [100] of his judgment said that the plaintiff never confirmed the cause of the skidding and that he was only told by Mr Chan that the presence of the sand ought to be the cause.  The plaintiff did say that it was Mr Chan who told him that there were lots of sand on the Slope and therefore he paid attention to it.  But the plaintiff also said that he himself saw lots of sand on the Slope and believed that it was the cause of the skidding (transcript pp 26L-27B).  The Judge had misunderstood the plaintiff’s evidence.

(2)  The plaintiff explained how his motorcycle skidded because of the sand on the Right-turn Mark.  When all the evidence is considered in the round, there is no basis for the Judge to reject his evidence.

C4.  Conclusion

31.For the above reasons, we hold that the Judge plainly erred when he rejected the plaintiff’s case as to how the accident had happened.  In our view, the evidence is overwhelming : the accident happened in the way as the plaintiff had asserted.  The plaintiff had clearly discharged his burden of proof and the Judge ought to have found that he had proved his case against the defendants on liability.

32.We next turn to contributory negligence.

D.  Contributory negligence

33.It is trite that the burden lies on the defendant to prove contributory negligence.  The Judge cited three reasons why the plaintiff was guilty of 75% contributory negligence. With respect, none of the three reasons stands up to closer scrutiny.

D1.  Insufficient lookout

34.First, the Judge found that the plaintiff had failed to keep a sufficient lookout.  He said that if the sand were of a substantial amount that could have caused his motorcycle to skid, he should have noticed it even if he had his helmet on.  The Judge assumed that the amount of sand must be visibly substantial to have caused the plaintiff’s motorcycle to skid.  However, there is no evidence to support that assumption.  Further, as rightly submitted by Mr Sham, counsel for the plaintiff, when the plaintiff’s motorcycle was in motion and when the plaintiff had to keep a proper lookout for the traffic ahead, he could not have noticed the sand on the ground when driving down the Slope.

D2.  Improper control

35.Second, the Judge found that the plaintiff drove his motorcycle against the recommendations of the vehicle’s owners’ manual in braking solely with the front brake.  According to the Judge, the manual stated “ride slowly down a hill, as braking downhill can be very difficult” and “apply both front and rear brakes simultaneously while gradually increasing the pressure.”  The Judge also said that common sense “tells us that braking only with front brake for a motorcycle, which is a rear-wheel drive, is dangerous and may cause the motorcycle to lose balance.”

36.Under cross-examination, the plaintiff explained from his own experience as a motorcyclist (transcript 35A-G) (transliteration) :

“ When the motorcyclist applied the brakes, it would create a downward pressure on the wheels. If there was sand on the surface of the road, the tyres would loose the ‘grip’ and hence skid. Therefore if the surface of skidding was the presence of sand on the surface of the road, skidding would still happen even if he used the front and rear brakes simultaneously.”

37.The plaintiff’s evidence on this point was not challenged by the defendants.  Nor had they adduced any evidence to contradict him.  The Judge had not dealt with the plaintiff’s evidence on this point, let alone explaining why he rejected it.

38.That being the state of evidence and bearing in mind the burden of proving contributory negligence is on the defendants, we consider the Judge erred when he found that the plaintiff was guilty of improper control of his motorcycle.

D3.  Excessive speed

39.Third, the Judge found that the plaintiff was driving at an excessive speed because there was a speed limit sign of 8 km per hour at the carpark.  The plaintiff said that he had to travel at about 15 to 20 km per hour at the time of the accident because it would be difficult for a motorcycle to maintain proper balance when travelling at a constant speed of 8 km per hour (transcript pp 13K and 20E-K).  The plaintiff’s explanation was not challenged.  Again, the Judge had not dealt with this part of the plaintiff’s evidence or explained why he rejected it. Further, as rightly submitted by Mr Sham, the defendants had not adduced any evidence to explain (a) the basis of the recommended speed limit of 8 km per hour; (b) whether it applied to all types of vehicles; (c) if it does, whether it is safe to apply to motorcycle when it may be difficult for it to maintain a proper balance.

40.In the circumstances, the Judge plainly erred when he found that the plaintiff was driving at an excessive speed.

D4.  Conclusion

41.In our view, the defendants had failed to discharge their burden of proving any contributory negligence against the plaintiff.  The Judge plainly erred when he found that the plaintiff was guilty of 75% contributory negligence.

E.  DISPOSITIONS

42.For the above reasons, we allow the plaintiff’s appeal, set aside the Judge’s order and enter judgment in favour of the plaintiff against the defendants in the sum of HK$337,155.00 with interest.

43.Costs should follow the event.  We order the defendants to pay the plaintiff costs of the appeal including the costs of the application for leave to appeal and below, to be taxed if not agreed.  The plaintiff’s own costs are to be taxed in accordance with the Legal Aid Regulations.

Mr Walker Sham, instructed by W K To & Co, assigned by the Director of Legal Aid, for the plaintiff

Mr Victor Gidwani and Mr Jason Smith, instructed by W H Chik & Co, for the 1^st and 2^nd defendants

Mr Victor Gidwani and Mr Jason Smith, instructed by Leung & Lau, for the 3^rd defendant