Chu Pui Hung v. The Secretary for Justice (Sued for and on behalf of the Commissioner of Police)
Read the full judgment text of DCPI 641/2016 on BabelCite. This District Court judgment was delivered on 24 January 2019.
1. The plaintiff was a station sergeant before he retired on 24 December 2014.
Cites 12 cases
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DCPI 641/2016 [2019] HKDC 87 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION PERSONAL INJURIES ACTION NO 641 OF 2016 ------------------------------------
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-------------------------- JUDGMENT -------------------------- Introduction 1.The plaintiff was a station sergeant before he retired on 24 December 2014. 2.On 28 August 2013, he attended Arsenal House, the Police Headquarters for a disciplinary hearing against him. It was the 4th or 5th day of the hearing. The hearing took place at Room 1317 of Arsenal House. 3.The plaintiff claims that, at around 3:54 pm he tripped over some cable wires lying on the floor inside Room 1317, sustaining injuries to his head and back as a result (“the Accident”). 4.The plaintiff claims that the Accident was caused by the defendant’s negligence and/or breach of its common duty of care as an occupier under the Occupiers Liability Ordinance (Cap 314) (“the OLO”). The Accident 5.Room 1317 was rectangular in shape:-
6.The disciplinary hearing had a break at around 3:54 pm on 28 August 2013. Most people left Room 1317. Mr Lau stayed behind, as he was tasked to take care of the papers of the prosecuting officer. 7.There is no dispute that the plaintiff then came into the room. He went over to the laptop placed on the chair near the prosecutor side. He kneeled down to try out a DVD in his possession. It is the plaintiff’s evidence, and there appears to be no challenge to this, that he was making sure that the video clips in that DVD could be played on the laptop and the 32-inch TV, as he would seek to do so when the disciplinary hearing resumed. 8.After the plaintiff finished working with the laptop, he stood up and would like to walk away. In §4(b) of the Statement of Claim, the plaintiff described what happened next as follows:-
9.The plaintiff lied on the floor afterwards. Photos taken by Mr Yeung show that the plaintiff was lying parallel to the TV cabinet, with his head pointing towards the long side wall of Room 1317 away from the adjudicating officer, and his legs pointing towards the opposite long side wall. A blue cable wire encircled the plaintiff’s right foot and ankle. 10.The defendant denies that the Accident happened at all. 11.Mr Lau claims to have been observing the plaintiff once the latter entered Room 1317 during the break. He says that the plaintiff walked a few steps towards him after standing up. By then, the plaintiff was around 4 inches away from the cable wires on the floor. The plaintiff became quiet for 1-2 seconds, and then suddenly said “I am fainting!”. He then stepped forward with his right leg, and grabbed the TV with his hands. The TV fell. The plaintiff then kneeled and turned around to lie on the floor. He also put his leg inside a loop of cable wire. All this time, the plaintiff was holding a DVD in his right hand. 12.Whilst the parties also obtain statements from other witnesses, Mr Lau and the plaintiff were the only eyewitnesses of the Accident. I have to decide whose evidence I should accept in order to find whether the Accident happened at all. Legal principles on assessing credibility 13.It is useful to start with the general principles applicable for assessment of credibility of witnesses, which are neatly summarised in Hui Cheung Fai v Daiwa Development Ltd HCA 1734/2009 (Deputy High Court Judge Eugene Fung, SC; 8 April 2014) at §77-80[2]:-
Analysis 14.Police assistance was summoned after the Accident. Police constables sought to understand what happened from various persons, and they made written records of what they were told. 15.In my judgment, only limited value can be placed on these written records:-
16.I shall next analyse the inherent likelihood of the parties’ evidence as to how the Accident happened. 17.In response to cross examination, the plaintiff demonstrated from the witness box his actions just moments prior to the Accident:-
18.Ms Christy Wong, counsel for the plaintiff, accepts that the plaintiff must have acted under reflex at the spur of the moment. As such, I agree with the defendant that the plaintiff’s description of his fall is illogical, and cannot represent the truth. It is the plaintiff’s evidence that when he tripped, he fell forward as a matter of gravity, and could not control the way he fell. As a matter of common sense, it would be difficult (to say at least) for him to co-ordinate both of his hands mid-air to stretch out to the left to grab the TV, when he already lost balance. It would be an acrobatic feat for him to then turn his body the other way, to land on the floor on his back. 19.Ms Wong submits that it is not helpful to analyse with hindsight whether the plaintiff’s reflex action was the best decision under the circumstances. Whilst that is correct to some extent, I think the defendant’s attack on this point is well-founded. The plaintiff volunteered the mechanism of the Accident in his witness statements. The defendant is entitled to test the inherent probability of the plaintiff’s evidence, to see if it was indeed something that a person could perform by instinct during a fall. 20.Mr Alex Lai, counsel for the defendant, also submits that the plaintiff gave inconsistent evidence on the mechanism of the Accident at different times. 21.Mr Lai first submits that, in the plaintiff’s first witness statement, there was no mention of the plaintiff pulling the TV down when he fell. He only stated that the TV was pulled down with the wire cable encircling his right leg. The plaintiff only mentioned this in his supplemental witness statement, which was filed after he had sight of Mr Lau’s witness statement. In Mr Lau’s witness statement, he stated that the plaintiff knocked the TV onto the floor before he lied down. 22.Under cross examination, the plaintiff accepted that he failed to mention that he pulled the TV down during his fall. He explained that his mind was confused at the time when he signed the first witness statement. So he did not include sufficient detail in there. 23.I do not find the plaintiff’s explanation persuasive. In his first witness statement, the plaintiff managed to state that the TV landed on him after the Accident. It was significant enough for him to include this fact, apparently to reinforce the pain and injuries he allegedly suffered during the Accident. I find it improbable that he would not be able to recall the reason why the TV fell on him at the same time. As he admitted under cross examination, he tried to grab the TV for support during his fall was the main reason why the TV fell. I find this a significant piece of fact, and the plaintiff has no good reason to omit this in his first witness statement. 24.Secondly, Mr Lai cross examined the plaintiff on how the blue cable wire encircled his right leg during the fall. 25.In his first witness statement at §11, the plaintiff stated that:-
26.I agree with Mr Lai that a fair reading of the plaintiff’s witness statement gives the impression that it was the blue cable wire that was connected to the TV, and it pulled on the TV when it encircled the plaintiff’s right leg. 27.But as can be seen from the photos provided by the plaintiff, and he also agreed, the TV was connected to the power socket by a black cable wire, which did not encircle his right leg after he fell. In response to Mr Lai’s questions, the plaintiff said he was in fact uncertain as to which cable wire(s) might have tripped him, as he did not make any observation of them before or after the Accident. 28.As a matter of inherent probability, a cable wire would only pull on the matter it connected to, if the plaintiff’s right leg pulled on that cable wire during the fall. And in order for the TV to be pulled off the cabinet, the force should be quite large and sustained. Since ultimately one can only observe the blue cable wire encircled the plaintiff’s right leg, it was unlikely for the black cable wire, even if the plaintiff was indeed tripped by it, to have been pulled with some sustained force to bring down the TV. I also agree with Mr Lai that the plaintiff’s answers on this topic during cross examination were evasive. I find the plaintiff’s evidence less than credible in this respect. 29.Mr Lai also points to the plaintiff’s evidence that his right armpit was bruised, and his occiput landed on the floor as a result of the Accident. But the medical reports never mentioned any bruising, and the plaintiff was recorded to have denied any head injury when he arrived at the A&E immediately after the Accident. 30.The plaintiff explained that he was told by the attending doctor that there was a bruise at his right armpit, and he only told doctors about the head injury because he only developed headache during his hospitalization, which became more frequent afterwards. 31.I accept that, if the attending doctor did discover a bruise under his right armpit, it would have been recorded in the medical report. And the medical report did not record any complaint of headache during the plaintiff’s hospitalisation after the Accident. In my judgment, I do not think these alone would render the plaintiff’s credibility in question. I am prepared to accept, however, that the medical evidence does not provide a strong support for the plaintiff’s credibility. 32.Considering the plaintiff’s evidence as a whole (including other points that counsel urge on me), I do not accept the plaintiff to be credible witness. 33.Mr Yeung has filed a witness statement to support the plaintiff’s case. But admittedly, he did not witness the Accident, and he only relied on the plaintiff to tell me how the Accident happened. In my judgment, Mr Yeung’s evidence carries little weight to show how the Accident actually happened. 34.On the other hand, I find Mr Lau a credible witness, and I accept his evidence in full on matters he differs with the plaintiff. There is nothing in his evidence I find improbable or illogical. 35.Ms Wong attacks Mr Lau’s evidence as inconsistent and illogical. 36.First, she submits that Mr Lau gave inconsistent evidence, when one compares his witness statement filed in the present case, and the police statement he made on 28 August 2013. I am asked to note that, in Mr Lau’s police witness statement he did not refer to the plaintiff walking a few steps towards him after using the laptop, and he did not refer to the plaintiff stopping for 1-2 seconds before he kneeled down. Mr Lau explained under cross examination that, since he made the police statement on the day of the Accident, he did not put a lot of details in. For example, he did not even mention the plaintiff using the laptop. 37.I accept Mr Lau’s explanation on this point. To him as a bystander, the most obvious matter that he needed to relay to others was the way how the plaintiff fell. In context, whether the plaintiff took a few steps, and whether he paused for a moment afterwards are, in my judgment, not something significant to him. I do not find it suspicious, therefore, that he only referred to these matters in his witness statement, when he was presumptively asked to describe what he saw in detail. 38.It is also said that the sequence of acts Mr Lau said the plaintiff did is illogical, and is different from the description contained in his police statement. The difference is that, in the police statement, Mr Lau said that the plaintiff put his right leg through the blue cable wire after lying down on the floor. Ms Wong submits that Mr Lau said in his witness statement that the plaintiff put his right leg through the blue cable wire before he lied down. 39.I think it is the best for me to set out §6 of Mr Lau’s witness statement in verbatim:-
40.I am afraid I do not read Mr Lau’s witness statement the way Ms Wong urges me to. As far as I understand it, and Mr Lau also agrees under cross examination, the plaintiff’s actions of putting his right leg through the blue cable wire and lying down on the floor were simultaneous. I would accept, technically, there is still a difference between the 2 statements, as Mr Lau said the 2 actions happened sequentially in his police statement. But in my judgment, the difference is not substantial enough for me to cast any significant doubt on Mr Lau’s credibility. 41.Next, Ms Wong submits that it was impossible for Mr Lau to be able to say that the plaintiff stood 4 inches away from the cable wires on the floor when he started to kneel down, when Mr Lau was around 4 metres away from the plaintiff. 42.I do not accept Ms Wong’s submissions in this regard. Mr Lau accepted that it was his estimate that the plaintiff was 4 inches from the cable wires. As a matter of common sense, a person often gives estimates about distances based on his/her perception and life experience. I cannot see, nor Ms Wong has shown me otherwise, how one cannot make the estimate Mr Lau gave. In her cross examination, Ms Wong put to Mr Lau that he could not have made any estimate accurately. But Ms Wong did not actually establish any factual basis showing that Mr Lau had tendency to give wrong estimates about distances. In the absence of specific factual matrix, I cannot see how one can conclude in vacuum that Mr Lau’s evidence is unreliable. I also find nothing wrong for Mr Lau to be able to observe the distance, as the plaintiff was the only other person in Room 1317. 43.Thirdly, Ms Wong submits that the sequence of events told by Mr Lau was illogical. She notes that the plaintiff allegedly did numerous things after he knocked down the TV. There would be insufficient time, she submits, for the plaintiff to do all those things before the TV landed on him lying down. 44.I am not persuaded by Ms Wong’s submissions. The fallacy, as I see it, in her submissions is that no evidence has been put before me to show the exact position of the TV on the cabinet, and its exact trajectory when the plaintiff allegedly knocked it down. Mr Lau just gave a general description that the TV fell down, and this was not pursued further. Without the evidence, it is not open for me to judge in vacuum whether Mr Lau’s description is actually impossible to be true. 45.In my judgment, I find the above evidence sufficient to allow me to come to a firm view that the plaintiff’s evidence as to how the Accident happened should not be accepted. Instead, I find that, on 28 August 2013 at around 3:54 pm, the plaintiff stood inside Room 1317 at a few inches away from the wire cables on the floor, near the TV cabinet. He suddenly said “I am fainting!”. He stepped forward with his right leg, and grabbed the TV with his hands. He then kneeled and turned around to lie on the floor. He also put his leg inside a loop of wire cable. 46.Mr Lai, with his usual industry, submits that the plaintiff is not a credible witness because of his disciplinary record. He argues that the plaintiff had a motive to make up the Accident as a result. He patiently takes me through the relevant record to substantiate his point. Ms Wong, in contrast, submits that the plaintiff’s credibility is not dented by the disciplinary record. With my conclusion above, it is not necessary for me to express a view on the same. I reiterate that I have come to my decision on the facts without giving weight to the fact that the plaintiff was attending a disciplinary hearing against him at the time of the Accident, and to his disciplinary record. 47.Ms Wong confirms during her closing submissions that the plaintiff is not running the alternative case that the defendant ought to be liable even if the plaintiff did not trip over the wire cables, but just fainted at the spot. Therefore, it is not necessary for me to deal with Mr Lai’s further arguments on this point. Summary on liability 48.Since I reject the plaintiff’s evidence, and accept Mr Lau’s evidence as to how the Accident happened, the plaintiff fails to show that the defendant ought to be held liable for the Accident. 49.If I were wrong on my conclusion about the factual dispute between the parties, and the plaintiff’s evidence should be accepted as to how the Accident happened, I would hold the defendant liable under the common law and the OLO. As an occupier of Room 1317, it had the duty to reasonably ensure the plaintiff’s safety in using the room. The cable wires lying on the floor created an obvious risk to a visitor. In my judgment, it would have been easy and reasonable for the defendant to carry out measures to reduce the risk. For example, the wires could be bundled up in a more organised manner, so that they would be conspicuous to a passerby. 50.Further, if the defendant should be held liable, I would find the plaintiff contributorily negligent to the extent of 15%. I do not agree with the defendant’s submissions that the present case was analogous to, say, Fazal Ahmed v MTR Corporation Limited DCPI 29/2011 (HH Judge Leung; 25 April 2012). I do not accept sufficient evidence has been adduced to show that the cable wires on the floor were conspicuous enough that a reasonable person could have easily avoided them. In my judgment, the apportionment of blame in cases like Tse So Kam v Guardian Property Management Limited DCPI 856/2005 (HH Judge C B Chan; 25 May 2006) is more apposite for the present case. 51.I shall briefly discuss the issues on quantum, in the event that the plaintiff successfully overturns my conclusion on liability. Evidence obtained from the medical reports 52.The plaintiff attended the A&E of Queen Mary Hospital (“QMH”) after the Accident. He complained of back pain radiating to his legs. He denied any head injury, but was unable to recall the exact mechanism of the injury. He claimed to be unable to walk afterwards. When he was examined, no obvious external injury could be detected. Tenderness was reported over his low back. 53.The plaintiff was admitted to the orthopaedic ward, and was discharged on 2 September 2013. The orthopaedic specialists did not detect any neurological deficit. There was no fracture or vertebral collapse. His brain had no intracranical haemorrhage. 54.The plaintiff revisited the A&E of QMH on 14 April 2014, claiming that he slipped from soft and hit his low back. He complained of tenderness over his low back. 55.The plaintiff was followed up regularly. He was noted to be able to walk unaided by September 2015. 56.The plaintiff sought treatment from the West Kowloon Psychiatric Centre in January 2014, reporting low mood with poor sleep. Despite medication, he still complained of low mood and anxiety. Improvement was seen since December 2014, and medication for anxiety stopped in September 2015. He was nevertheless still prescribed with an antidepressant at least up to June 2016. 57.I note that he was previously diagnosed in September 2012 to be suffering from adjustment disorder. By then, he was noted to have stable mood and normal sleep. 58.I also note that the plaintiff consulted Dr S T Chan, a neurosurgical specialist in private practice, on 20 January 2014. The plaintiff complained of persistent dizziness, severe headache, nausea and poor concentration for 1 week. He was admitted to St Teresa’s Hospital for a brain checkup. He again complained of severe headache in July 2014. He was advised to be admitted for an MRI scan of the brain. However, no medical report has been put before me to definitively show the results of the checkup (if any) in January and July 2014. The expert evidence 59.A joint expert report dated 18 February 2017 was obtained from Dr Johnson Lam (instructed by the plaintiff) and Dr Danny Tsoi (instructed by the defendant) for the plaintiff’s orthopaedic injuries (“the Joint Ortho Report”). The experts examined the plaintiff on 6 October 2016, ie around 37 months after the Accident. The Joint Ortho Report is admitted as evidence without calling the experts to give evidence in court. 60.The experts agreed that the Accident caused head injury and soft tissue injury to the plaintiff’s low back. The plaintiff had mild pre-existing degenerative changes in his lower lumbar spine, which might or might not be symptomatic prior to the Accident. They disagreed as to the extent of the soft tissue injury. 61.A joint expert report dated 11 April 2017 was obtained from Dr Peter Ho (instructed by the plaintiff) and Dr Yu Wai Tak (instructed by the defendant) for the plaintiff’s psychiatric injuries (“the Joint Psy Report”). The experts examined the plaintiff on 29 September 2016. The Joint Psy Report is also admitted as evidence without calling the experts to give evidence in court. 62.The expert agreed that the plaintiff suffered from adjustment disorder with mixed anxiety and depressed mood. Dr Ho opined that this could have magnified the plaintiff’s perception of physical pain. On the other hand, Dr Yu opined that the plaintiff exaggerated his physical symptoms (as per Dr Tsoi’s opinion in the Joint Ortho Report), and it was the need to feign his symptoms that prolonged the plaintiff’s anxiety and stress. 63.After considering the 2 expert reports, I find that the plaintiff did suffer musculotendinous strain of his low back, rather than more significant injuries, as a result of the Accident. 64.I agree with Dr Tsoi’s opinion that the there is no objective sign that could explain the plaintiff’s chronic back pain apart from his subjective complaint. 65.I do not find Dr Lam’s opinion persuasive. Dr Lam accepted that the Accident might have caused just mild soft tissue injury, or it might have caused more significant injuries[4]. But he appeared to have simply accepted the veracity of the plaintiff’s complaints in concluding that the injury must have been more significant, without considering whether the complaints were truthful at the first place. I find this unsatisfactory as the plaintiff’s complaints have been largely subjective. 66.However, I would not go as far to conclude that all of the plaintiff’s physical complaints are not genuine. I prefer Dr Ho’s opinion that as to the psychological component of the plaintiff’s physical symptoms. This has not been excluded by Dr Tsoi[5]. I find Dr Yu’s opinion on this point a bit far-fetching, when he did not appear to be able to point to objective evidence to suggest that the plaintiff must have been feigning his symptoms. But in any event, the experts agreed that the prognosis was favourable, and considering the psychiatric illness alone, the plaintiff could have resumed his pre-Accident work. 67.I now turn to the plaintiff’s claim for damages. In the Amended Revised Statement of Damages dated 28.01.2016 (“ARSD”), the plaintiff only seeks damages under 3 heads of claim: (i) Pain, Suffering, and Loss of Amenities (“PSLA”); (ii) special damages; and (iii) future medical expenses. PSLA 68.In the ARSD, the plaintiff claims $350,000.00. This is revised down to $300,000.00 by the time of closing submissions. In its closing, the defendant submits that no more than $150,000.00 is reasonable. 69.Damages for the lower end of the serious category of injuries were raised to $530,000.00 in David John Slater v Commissioner of Police HCPI 641/2012 (Bharwaney J; 07.07.2017). It has been more than a year since that decision. In line with Bharwaney J’s judgment, I think damages for the lower end of the serious category of injury should be further adjusted to $543,000.00, given around 2.5% inflation for the past year. 70.I have considered the cases submitted to me by the parties. I agree with Mr Lai that the present case bears the most resemblance with Tam Kwok Man v The Kowloon Motor Bus Company (1933) Limited HCPI 755/2001 (Beeson J; 11 July 2003) and Cheng Liu Nei Su v Clare Environmental Services Limited DCPI 842/2008 (HH Judge H C Wong; 30 July 2009).
71.I find the 3 cases cited by Ms Wong to be less comparable to the present case, because the injuries to the plaintiffs therein were all more serious than the plaintiff’s injuries in the present case. The extent of impairment assessed in those cases are all higher than that in the present case.
72.I would award $220,000.00 as damages for PSLA if liability were established. Pre-trial loss of earnings 73.I would accept Dr Tsoi’s assessment that sick leave of 6 months should be reasonable for the plaintiff[6]. 74.Dr Ho opined that the plaintiff might need sick leave of about 1 month during the period when the plaintiff’s mental symptoms were the most intense[7]. Based on the evidence, I find that to be around January 2014. As such, the plaintiff’s depression did not add to the sick leave he reasonably required after the accident. 75.The plaintiff accepted that he was paid in full from 28 August 2013 to 14 November 2013. 76.The parties agreed that, from 15 November 2013 to 15 May 2014, the plaintiff took half-pay sick leave, and he was paid $145,243.00 less than full salary as a result. 77.Based on my conclusions above, the plaintiff should only be reimbursed the lost salary up to the end of February 2014. He was deducted $13,602.83 in salary in November 2013, $24,005.00 in December 2013, $24,005.00 in January 2014, and $24,005.00 in February 2014. The total comes to $85,617.83. 78.I would award $85,617.83 as pre-trial loss of earnings if liability were established. Special damages 79.The defendant agrees to the plaintiff’s claim of $245.00 as medical expenses, and $2,500.00 as past travelling expenses. Future expenses 80.The plaintiff claims $1,500.00 as future travelling expenses for attending further psychiatric treatment. He accepts that, as a retired civil servant, he can obtain the treatment free at government clinics. 81.The defendant submits that the plaintiff does not need any further treatment, and thus the travelling expenses will not be required as well. 82.I prefer Dr Ho’s assessment on the plaintiff’s mental condition. Hence, I accept that the plaintiff will need to incur further travelling expenses for his future follow-up. I find the plaintiff’s claim reasonable. I would award $1,500.00 if liability were established. Interest 83.I would have awarded interest on the above sums as follows: (i) at 2% per annum on the damages for PSLA from the date of the Writ to the date of this judgment; (ii) at half judgment rate on the special damages from the date of the Accident to the date of this judgment; and at judgment rate for the above sums thereafter up to the date of payment. Summary on quantum 84.If I were to find the defendant liable, I would award the plaintiff $263,383.41 in damages (after taking into account the plaintiff’s contributory negligence), together with interest:-
85.The plaintiff received $270,000.00 as employees’ compensation. This should be deducted from the damages he would be entitled to. I leave it to the parties to calculate interest if that eventuality arises, and to see whether the plaintiff is entitled to any net damages above the employee’s compensation. Conclusion 86.The plaintiff’s claim against the defendant is dismissed. 87.There shall be an order nisi that the plaintiff is to pay the defendant’s costs (with a certificate for counsel), to be taxed if not agreed. The order is to be made absolute unless there is an application to vary the same within 14 days from this judgment. 88.I thank counsel for their assistance.
Ms Christy Wong, instructed by Yip, Tse & Tang, for the plaintiff Mr Alex S W Lai, instructed by the Department of Justice, for the defendant [1] By the time of the Accident, Mr Yeung already retired as a station sergeant. [2] Also applied in Mo Ying v Brillex Development Ltd [2014] 3 HKLRD 224 [3] I note that the defendant argues that the plaintiff’s description of the mechanism of the Accident changed with time. This will be dealt with in latter parts of this Judgment. [4] See §11 at page 23 of the Joint Ortho Report [5] See page 30 of the Joint Ortho Report [6] See §12 at page 31 of the Joint Ortho Report [7] See §76 at page 210 of the Joint Psy Report | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment
Further hearings and rulings under DCPI 641/2016