Cheung Wai Mei v. The Excelsior Hotel (Hong Kong) Ltd. t/a The Excelsior

CACV000038/2000

CACV 38/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 38 OF 2000

(ON APPEAL FROM HCPI NO. 1048/1998)

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Coram: Hon Mayo VP, Rogers VP and Stock JA in Court

Date of Hearing: 29 September 2000

Date of Judgment: 22 November 2000

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J U D G M E N T

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Hon Mayo VP:

1. This is an appeal from a judgment of Seagroatt J. He awarded substantial damages to the plaintiff who sustained injuries to her back following an accident which occurred on the evening of 1 October 1997 at the side entrance of the defendant's hotel.

2. On the evening in question the plaintiff had arranged to meet a friend at the Excelsior Hotel. There were more people than usual in the vicinity of the hotel as there was a fireworks display in the harbour to celebrate National Day. The plaintiff had given evidence before the Judge that at the time of the accident she had been hurrying up the steps leading to the side entrance. Immediately prior to entering the hotel she had slipped and knocked her face against the glass door. She had then fallen backwards down the steps. Although she was in considerable pain she had noticed that the back of her dress had been wet and from this she had assumed that there must have been a pool of water or some other liquid at the top of the steps and that she must have slipped on this. She had not however at any time seen any liquid on the ground. Following the accident she had been taken to hospital for treatment.

3. The issues on this appeal are confined to the Judge's findings of fact and as to whether if the findings are upheld there was sufficient evidence to prove that the defendant had been in breach of any duty of care.

4. The Judge said at p. 70 of the transcript:

"COURT: The factual issue must be extremely, extremely straightforward in terms of the ambit of the evidence. Was there a pool of water or was there not a pool of water, or a puddle of water or the presence of water, however you describe it in quantity, in the position in which the plaintiff describes it. That, as I see from the pleadings, is the issue. As far as the factual issue, if there was, why was it there, and what duty is there on the defendants? Did they discharge that that duty on a reasonable basis?"

5. At p. 2 of his judgment he said:

"Precisely what caused her to slip and fall remains, to some extent, a mystery. She did not see any liquid or water but then, after she had fallen, she was in no condition to go searching around and inspecting the area. That was a matter to be left to others. One item of her evidence, on which she was not challenged, was her comment to the effect that she was aware that her dress was wet. I regard this as a significant feature. She said that she pointed that out to her friend when she arrived. Her friend, Madam Qi did not give evidence."

and then at p. 6 of his judgment he said:

"I am satisfied that she did slip either on the wet marble surface, - it may only have been a small area - or her shoe was made wet by contact with a wet area of the coconut mat and she slipped on the transfer of the foot and shoe to the marble surface. I think the latter is more likely as this would account for her dress being wet when she fell backwards onto the mat on the landing, before falling down the stairs."

6. Mr Sarony SC for the defendant made a powerful submission that on the evidence which was before the Judge it would have been a physical impossibility for the accident to have occurred in the manner described by the plaintiff.

7. In particular he pointed to the fact that the area of marble between the coconut mat and the door was only 6(. As the plaintiff's shoe would be more than this it was very difficult to see how she could have slipped in the way she described.

8. What also has to be borne in mind is how close the plaintiff would have been to the door when she claimed to have slipped. However one thing that does appear to be clear is that the plaintiff's face did come into contact with the glass door. After the accident traces of lipstick were seen on the glass.

9. The fact that the accident may have occurred in a rather different way to the description given by the plaintiff does not of itself justify an appellate court in rejecting the Judge's findings of fact.

10. The Judge himself noted that it was difficult to reconstruct exactly what happened. It must however have been the case that the whole accident would have lasted only a few seconds and it is hardly surprising that the plaintiff should encounter difficulty in recollecting the exact sequence of events and the position she was in act any particular point of time.

11. As the Judge saw it he accepted the evidence that the lady's dress was damp and he could infer from this that when she fell to the ground she came into contact with an accumulation of some form of liquid. I consider that he was entitled to come to this conclusion and also that the plaintiff had slipped and fallen down.

12. What has to be borne in mind is that the Judge had the great advantage of hearing the plaintiff giving evidence and observing her demeanour. An appellate court should be very slow to interfere with findings of fact which have been made by a Trial Judge unless it can clearly be demonstrated that he has been in error. See Shieh Shin Jim v Mak Shiu Kei & Others unreported CA 174 of 1997.

13. This then brings us to the second limb of this appeal namely the extent to which the defendant owed the plaintiff a duty of care and whether this has been discharged.

14. The Judge does not appear to have been overly impressed by the evidence given by various members of the staff of the hotel in relation to the accident.

15. He deals with it in some detail and gives reasons for rejecting important parts of it. He entirely rejects the evidence of Mr Wong Chi-wai a security officer to the effect that when he attended upon the plaintiff she had told him that she had lost her footing while listening to her mobile telephone. He was also highly sceptical of the evidence given by the witnesses who claimed to have inspected the relevant area and having been unable to find any accumulation of liquid.

16. He did however view the evidence of the housekeeper Ms Liu more favourably. She gave evidence concerning the measures which were taken to keep the hotel foyer and its precincts in a clean and safe condition. She gave evidence that the services of cleaners were retained and when they were called upon to do so they would attend and undertake such cleaning duties as may be required. Normally they would respond to requests made by staff in the lobby including such personnel as security guards. The main problem with Ms Liu's evidence was that she was not physically in attendance that evening.

17. The Judge was also critical of the actual measures taken by the cleaning ladies. He remarked that if the coconut matting became wet simply applying a cloth might not be sufficient. It may be necessary to also use some form of suction device.

18. At this stage it would seem to be helpful to consider what the defendant needs to establish to prove that it has sufficiently discharged its duty of care. This can conveniently be divided into two separate parts.

19. The first is what reasonable steps have to be taken to ensure that the floor and steps are in a safe condition. There is the evidence of Ms Liu that members of the staff were required to make a report to the cleaners if they saw that their services were necessary.

20. The problem in the instant case is that no one including the plaintiff ever saw any accumulation of liquid at the relevant area. It would seem that if any of the members of the staff had minutely examined the coconut matting they may have seen some discolouration. Ms Liu gave evidence that if the matting was wet it would be a different colour.

21. What is not clear is whether even if a person had been stationed at the entrance they would necessarily have detected the discoluration when exercising a reasonable degree of vigilance. While I accept the validity of the submission made by Mr Griffiths SC for the plaintiff that once it has been established that there has been a degree of negligence on the part of a defendant a burden is placed on it to show all reasonable steps have been taken I am by no means convinced that it ever was proven that the defendant had been guilty of any negligence.

22. This issue was considered by the Court of Appeal in Ward v Tesco Stores Ltd [1976] 1 WLR 810. Megaw LJ had this to say at p. 815:

"It seems to me that the essence of the argument put forward on behalf of the defendants in this appeal is this: never mind whether the defendants had any system of any sort to protect their customers against the risk of slipping on the floor of the supermarket as a result of breakages or spillages - which on their own evidence happened about 10 times a week: even if they had no system of any sort to guard against such a risk to their customers, nevertheless, when an accident happens such as the accident in this case, a lady customer who undoubtedly slips, through no fault of her own, on such a spillage on the floor, she cannot recover against the defendants. And why can she not recover? Because she is unable to prove that the spillage did not take place within a matter of a few seconds before she slipped and fell on it. So that, however perfect a system the defendants had had, it would not have enabled them to prevent this particular accident.

With great respect to those who support that proposition, it appears to me to be contrary to the law as I understand it to be. It is for the plaintiff to show that there has occurred an event which is unusual and which, in the absence of explanation, is more consistent with fault on the part of the defendants than the absence of fault; and to my mind the judge was right in taking that view of the presence of this slippery liquid on the floor of the supermarket in the circumstances of this case: that is, that the defendants knew or should have known that it was a not uncommon occurrence; and that if it should happen, and should not be promptly attended to, it created a serious risk that customers would fall and injure themselves. When the plaintiff has established that, the defendants can still escape from liability. They could escape from liability if they could show that the accident must have happened, or even on balance of probability would have been likely to have happened, even if there had been in existence a proper and adequate system, in relation to the circumstances, to provide for the safety of customers. But if the defendants wish to put forward such a case, it is for them to show that, on balance of probability, either by evidence or by inference from the evidence that is given or is not given, this accident would have been at least equally likely to have happened despite a proper system designed to give reasonable protection to customers. That, in this case, they wholly failed to do. Really the essence of Mr. Owen's argument - and he did not shrink from it - was: 'Never mind whether we had no system at all: still, as the plaintiff has failed to show that the yoghurt was spilt within a few seconds before the accident, she must fail.' As I have said, in the circumstances of this case, I do not think that the plaintiff, to succeed, had to prove how long it was since the defendants' floor had become slippery."

23. A deposit of yoghurt on the floor of a supermarket is very different from an accumulation of liquid which no one saw and which could only be inferred to exist as a consequence of a damp patch being found on the plaintiff's dress.

24. What steps would it be necessary to take to obviate this risk. It would appear that it would be necessary for staff to be posted at every entrance to the hotel and for them to be equipped with cleaning utensils capable of removing any liquid detected on either the marble or more likely coconut matting at short notice. To state this proposition in this way is to virtually state that the hotel in the present case had an absolute duty to ensure the safety of the plaintiff. Or to put the matter another way all the plaintiff would have to establish is that she slipped and fell and suffered injury for her to recover damages. This is not the law.

25. The other limb of the case relates to the measures taken by the defendant to effectively deal with cleaning up after something has been deposited on the floor. Although a considerable amount of time was spent on this I do not think that the system adopted by the defendant was in any way defective. The complaint that there was insufficient evidence as to what in fact transpired is not to the point. If no one had been aware of the deposit on the coconut mat the question as to what remedial measures should have been taken becomes hypothetical.

26. Be that as it may in my view this appeal should be allowed as the plaintiff has been unable to prove any breach of duty of care on the part of the defendant. Costs should follow the event.

Hon Rogers VP:

27. The first matter which falls to be determined is whether the conclusion to which the judge arrived, as to the manner in which the plaintiff came by her accident and fell, is a conclusion which is challengeable on this appeal and, if so, whether it is sustainable.

Findings of primary fact

28. The findings of primary fact made by the judge below may be summarised as follows:

1. That the weather in the evening of 1 October 1997 was fine and dry.

2. That there was an unusually high amount of pedestrian traffic in the hotel because it was a holiday.

3. That probably between 10:00 and 10:30 p.m. (although the plaintiff put it earlier at about 9:30 p.m.) the plaintiff, Madam Cheung Wai Mei, mounted the marble steps of the side entrance to the hotel foyer or lobby of the Excelsior Hotel. The plaintiff was on her way to meet her friend.

4. (Although not specifically mentioned, but clear from the photographs, there were 5 steps in all. Probably the landing in front of the door was about 3-4 feet above pavement level. From the photographs it would appear about level with the top of the boot of a medium sized car.)

5. The plaintiff crossed part of the landing. (There is no dispute that the landing was just over four feet wide.)

6. On the landing level was a coconut, or hessian, carpet (or mat) which covered almost all the area leaving a margin of about six inches all around.

7. The plaintiff slipped.

8. The plaintiff was conscious of one of her feet slipping on the marble surface as if water were present.

9. The plaintiff pitched forward to strike the glass side door with her face. (A lipstick mark was left on the surface at a level approximately equivalent to her height.)

10. (Although not explicitly found but implicit) the plaintiff was just about to put out her hand to touch the door handle but did not do so.

11. The plaintiff recoiled backwards, falling down the steps.

12. Neither the plaintiff nor anyone else saw any liquid or water either before or after she had fallen.

13. After she had fallen the plaintiff was aware that her dress was wet.

29. Those, it seems to me, were the findings of primary fact which the judge made. There was indeed no challenge as to those findings of primary fact.

The conclusion and inferences drawn from the primary facts

30. In coming to his conclusion as to how the plaintiff slipped, the judge said in particular "Precisely what caused her to slip and fall remains, to some extent, a mystery." Several pages later he said:

"I am satisfied that she did slip either on the wet marble surface, it may only have been a small area - or her shoe was made wet by contact with a wet area of the coconut mat and she slipped on the transfer of the foot and shoe to the marble surface. I think the latter is more likely as this would account for her dress being wet when she fell backwards onto the mat on the landing, before falling down the stairs."

31. In giving her evidence, the plaintiff mentioned an uneven surface which she felt when she was recoiling backwards. During the evidence it appears that the judge was inclined to discount any unevenness of surface as being part of the causative factors in the accident. In any event the judge did not hold that the surface of the mat, or any part of the landing, was uneven. It is not part of his findings of negligence that it was so.

32. The conclusion to which the judge arrived as to the manner in which the accident occurred is therefore, it seems to me, an inference or deduction from the primary facts. In so far as the conclusion was that the plaintiff fell on the mat, that does not appear to be supported by the plaintiff's evidence.

The approach of appellate courts to findings of primary fact

33. An Appeal Court is extremely slow to disturb a judge's finding as to primary fact. The judge has a unique advantage in seeing and hearing the witnesses. There is, of course, jurisdiction to retry the case on the transcript, including in such retrial the appreciation of the relative values of the witnesses, because the appeal is a rehearing under the rules. But judges on appeal have a distinct disadvantage as against the trial judge. Unless, therefore, it is clear that the judge has come to a wrong conclusion as to fact, an Appeal Court will not reverse a judge's findings as to fact. I bear in mind in particular the speeches and the House of Lords in Owners of Steamship Hontestroom v. Owners of Steamship Sagaporack [1927] AC 37 and in particular that of Lord Sumner at pages 47-48. The speeches in Powell v. Streatham Manor Nursing Home [1935] AC 243 are also highly pertinent in this regard. However, as indicated above, the Appellant does not seek to disturb the judge's findings of primary fact.

The approach of appellate courts in relation to conclusions and inferences drawn from primary facts

34. In relation to inferences and conclusions which are drawn from findings of primary or specific fact, as Lord Reid said in Benmax v. Austin Motor Co. Ltd [1955] AC 370 at 376 an Appeal Court is generally in as good a position to evaluate the conclusions to be drawn from the findings on the evidence as the trial judge and ought not to shrink from that task, though it ought, of course, to give weight to his opinion.

The conclusion drawn in this case

35. In assessing the conclusion to which the judge arrived, I have had grave difficulty in trying to understand how the accident could have occurred in the manner which the judge held to have been most likely. The judge considered that the plaintiff had slipped on the marble between the edge of the carpet and the door. That, indeed, was the place which the plaintiff marked on the plan during the course of her evidence. Based on the fact that the plaintiff's dress was found to be wet after she fell the judge concluded that it was probably the carpet that was wet and that the plaintiff's shoe had become wet when she stepped on the carpet and that, thereafter, that caused the plaintiff to slip on the marble. If the plaintiff's foot (and it is not known which foot) was on the marble between the carpet and the door it would have entailed the sole of the foot only, as the marble itself is only about six inches. The plaintiff must therefore have reached the door for her to be in such a position. I find it difficult to understand how it was therefore the plaintiff had not touched the door handle with her hand. I can understand a person stumbling forward across the platform and then hitting their face and head against the door, particularly if they are moving fast at the time. It is difficult to envisage how a person can slip when their foot treads within less than 6 inches of a door; but I cannot understand how, if a person is walking normally, a slip in such circumstances can cause the person to recoil backwards enough to fall down stairs which are 4 feet to the rear.

36. The judge did not suggest that the plaintiff slipped on the mat itself. Indeed that would be particularly surprising unless, of course, she tripped as sometimes happens through pure accident.

37. In all the circumstances I consider that the conclusion that the sole cause of the accident was moisture from the carpet which transferred to the plaintiff's shoe and caused her to slip on the marble is not sustainable. As the judge said, precisely what caused the plaintiff to slip and fall remains a mystery.

38. Although the judge said that the plaintiff was wearing sensible shoes we were informed during the course of the hearing that they were platform shoes. Apparently, some photograph was available at the trial but that does not appear to be in the court file.

39. The judge scarcely accepted any of the evidence called on behalf of the defendant. Specifically he did not accept that the plaintiff had said she was talking on her mobile telephone at the time of her accident.

40. One factor which the judge did not apparently mention, was the speed at which the plaintiff was walking. During the course of her cross-examination she was asked:

"Would you not accept when you are as close to the door as you have said you were, by that time your hand would be moving towards opening the door?"

41. That was by no means a question leading to an answer that she was walking fast but the plaintiff replied:

"I'm the kind of person who needs to do things in a quick manner. I mean, I'm the kind who will stretch out a hand before I reach the door. I've worked in my family's restaurant from the age of 11 to 24. You know, one has to work very fast in a restaurant. One has to walk very fast and do everything very fast, otherwise we will not manage it.

Court: It sounds like Hong Kong.

Q. You do accept, though, that given where your foot was your body must have been extremely close to the door at that time?

A. The body should not be far away.

Q. You've said on a number of occasions you were doing things very quickly. Were you running or moving faster than a normal walk?

A. I was not running, I was walking, but walking very quickly."

42. In my view the most likely conclusion which should be drawn from all these facts is that when the plaintiff reached the top of the stairs she was going very fast. On all these facts I would have concluded that the plaintiff had simply tripped and fallen forwards: One of her feet may well have landed on the six-inch piece of marble between the carpet and the door and if she was in the process of stumbling it would not have been a firm footing.

43. Whilst, my initial and prolonged consideration of the matter has been that the conclusion drawn was wrong and fell to be overruled, because of the importance of adhering to the findings of fact of a trial judge unless they can be conclusively shown to be wrong, I am persuaded that the inference that it was wetness that caused her foot to slip on that six-inch section of marble should not disturbed.

44. However, that is not an end of the matter. The Plaintiff herself proffered, unencouraged, the evidence that she was going fast. Whether she was late to meet her friend was never explored. But the judge did not mention the speed in the judgment. In my view the way in which this accident occurred is only explicable if the plaintiff was indeed moving fast. Not only is the manner of the slipping difficult to understand but the recoiling backwards off the door, possibly falling on the mat and then falling down the stairs 4 feet to the rear of the door can, it seems to me, only be understood, if at all, on the basis that the plaintiff was moving too fast for her own safety.

45. Giving full respect to the finding as to the slipping, I consider that the plaintiff must have been at least 50% responsible for the accident.

46. There is authority for the proposition that contributory negligence must be specifically pleaded. That, however, is a facet of the rule that a party must not be taken by surprise. The defence has always been conducted on the basis that the accident could not have happened in the way that plaintiff alleged. It has always been the defendant's case that the plaintiff was the author of her own misfortune. To take one example, the judge below specifically dealt with and rejected the suggestion that the plaintiff was using her mobile phone and that caused her to collide with the door. That point was raised again in the grounds of appeal. In the course of argument in this court the defendant challenged the holding of the judge as to how the accident happened. It was an inevitable conclusion of the defendant's arguments and the way they were put that the plaintiff herself was responsible for her own accident. If an argument is put, the logical conclusion of which is that a person is wholly responsible for an accident it must be included in that an allegation that the person is at least partially responsible for that accident.

47. In the circumstances of this case, to hold that a finding of contributory negligence is not open without an amendment to the pleadings, would not only be unjust but a misapplication of the rules of pleading relating to surprise. At a minimum, therefore, I would hold that the plaintiff should be held to have been 50% contributory negligent.

48. In relation to the question of the duty owed by the defendant in relation to spillages or other factors giving rise to accumulation of liquid on the floor I have had the advantage of reading the judgment of Mayo Acting CJHC and I agree with it. It seems to me that the plaintiff is attempting to put far too high an onus on the defendant not merely to remove any spillages if and when they occur but in terms of stationing people, presumably at all corners of the hotel, at all times, to guard against spillages. The evidence was that there was at least one cleaner on duty that night. In my view that would have been sufficient. Furthermore, in the absence of there being any evidence that anybody, at all, saw any water, moisture or any slippery substance at or near the scene of the accident, it cannot be said that there was a hazard which should have been seen and cleaned before the plaintiff arrived.

49. I therefore agree that this appeal should be allowed.

Hon Stock JA:

50. There are two aspects of the first instance judgment that fall for our consideration :

(1) the trial judge's findings as to the cause of the accident; and

(2) the judge's conclusions as to the standard of care required and whether that standard was met.

The accident

51. I have had the advantage of reading in draft the judgment of Rogers V-P and I, too, have had considerable difficulty in understanding how it is that the plaintiff could have slipped on the narrow wedge of marble between the mat and the side door of the hotel. Given the fact that that wedge extended for only six inches, that the plaintiff's own lipstick mark was found at about the plaintiff's own standing height, and that there was her own testimony that she was walking very quickly, my inclination was to conclude that she must have walked into the door, not having paid proper attention. Her case was firmly wedded to slipping on the marble, rather than on the mat. Had she slipped on the mat itself, or on the marble which was at the edge of the top of the short flight of steps, I could have understood the mechanics of the matter more readily, save that a fall from one of those positions would not, I think, have sat very well with the location of the lipstick marks.

52. I was, accordingly, tempted to say that the judge's conclusion as to the place and cause of the accident could not be supported. Yet, upon further reflection, I recognise that the judge's conclusion was not based merely upon inferences drawn from primary facts. His conclusion had, to a material degree, to be based upon an acceptance of key assertions made by the plaintiff in her oral testimony. The plaintiff had asserted in her evidence that, at the time of her fall, she felt "it was slippery", that immediately after her fall, she told someone that "there was some water, it was slippery, so I fell", and, that although she could not see the water "... I felt slippery. So in my mind, what caused something to be slippery would be water.". There was also evidence from the hotel staff that it was not unknown for guests, when coming into the hotel, to drop liquid in the area. The judge referred in his judgment to her evidence that "she was conscious of one of her feet slipping on the marble surface as if water was present". It is implicit in his judgment that he accepted that evidence, which was supported, he found, by the fact that her dress was wet.

53. It is, I believe, worthwhile to rehearse a fairly lengthy passage from the speech of Lord Sumner in Owners of Steamship Hotenstroom v. Owners of Steamship Sagaporack [1927] AC 37, 47-49 :

"What then is the real effect on the hearing in a Court of Appeal of the fact that the trial judge saw and heard the witnesses? I think it has been somewhat lost sight of. Of course, there is jurisdiction to retry the case on the shorthand note, including in such retrial the appreciation of the relative values of the witnesses, for the appeal is made a rehearing by rules which have the force of statute : Order LXVIII., r.1. It is not, however, a mere matter of discretion to remember and take account of this fact; it is a matter of justice and of judicial obligation. None the less, not to have seen the witnesses puts appellate judges in a permanent position of disadvantage as against the trial judge, and, unless it can be shown that he has failed to use or has palpably misused his advantage, the higher Court ought not to take the responsibility of reversing conclusions so arrived at, merely on the result of their own comparisons and criticisms of the witnesses and of their own view of the probabilities of the case. The course of the trial and the whole substance of the judgment must be looked at, and the matter does not depend on the question whether a witness has been cross-examined to credit or has been pronounced by the judge in terms to be unworthy of it. If his estimate of the man forms any substantial part of his reasons for his judgment the trial judge's conclusions of fact should, as I understand the decisions, be let alone. In The Julia (1) Lord Kingsdown says : 'They, who require this Board, under such circumstances, to reverse a decision of the Court, below upon a point of this description, undertake a task of great and almost insuperable difficulty ... We must, in order to reverse, not merely entertain doubts whether the decision below is right, but be convinced that it is wrong.' Wood L.J., in the The Alice (1), says : 'The principle established by the decision in The Julia (2) is most singularly applicable ..... We should require evidence that would be overpowering in its effect on our judgment with reference to the incredibility of the statements made.' James L.J. thus laid down the practice in The Sir Robert Peel (3) : 'The Court will not depart from the rule it has laid down that it will not overrule the decision of the Court below on a question of fact in which the judge has had the advantage of seeing the witnesses and observing their demeanour, unless they find some governing fact which in relation to others has created a wrong impression.'

Again, in The Glannibanta (4) the Court of Appeal, after referring to The Julia (2) and The Alice (1), say that they would not be disposed to reverse, 'except in cases of extreme and overwhelming pressure,' but, being of opinion that the trial judge (contrary to what is the fact here) did not proceed at all on manner or demeanour, but proceeded on inferences, which the Court of Appeal could draw as well as he could, they formed their own view of the facts and decided accordingly. I am not aware that this rule has ever been disowned and, if it has too often been neglected, still the current of authority on the subject runs all the other way.

My Lords, this appeal illustrates in two ways the unsatisfactory results which follow from disregard of this settled practice. On the question of seamanship the learned President finds the Sagaporack alone to blame; the Court of Appeal (Bankes L.J. on one ground, Scrutton L.J. on another, Atkin L.J. generally) find the Hontestroom alone to blame. One of your Lordships finds that they were both to blame, and another is of opinion that the facts condemn the Hontestroom much more conclusively than the Court of Appeal did. These questions must always be very difficult, when the data can only be ascertained from evidence tainted by the frailty and fallibility of human nature, in the person of a pilot whose navigation is impugned. At least we should not make further difficulties for ourselves by assuming that the trial judge has not understood the case, if his views do not agree with our own, or by overruling his estimate of the witnesses on a paper review of their words, stripped of the material colour, which hesitation or promptitude, shiftiness or candour may well have given them. It is, of course, true that the trial judge may have been imposed upon, but I think it is more useful, that we should be on our guard against imposing on ourselves."

54. In the present case, the judge had the advantage of the oral testimony of the plaintiff, testimony that extended for over one day, and the fact of the matter is that a material part of his finding rests, it seems to me, upon his acceptance of the plaintiff's evidence that not only did she slip but that something watery on the marble surface made her do so. That being so, the fact that I entertain severe reservations about the inherent probability of her account is not sufficient to warrant interference with the judge's finding and I recognise that, improbable though the suggestion may be, of slipping at the point she describes, with the results which were evident, there must, I think, given the almost infinite variety of ways in which falls may occur, and in which people may be propelled, remain the possibility that she slipped as she contends. One should recognise also that the factors now said to render the plaintiff's account impossible to accept were fully before the judge in argument, and we should hardly assume that this very experienced judge did not have them in mind when deciding whether, nonetheless, to accept the plaintiff's evidence.

55. So, on the question of the cause of the accident, the judge's finding is not one which, in my judgment, this court should upset on appeal.

56. I would only add that in so far as it has been suggested that the plaintiff contributed to her own injury by some negligence of her own, I do not think that it would be open to this court to reduce the damages on such a basis, for contributory negligence is one of those matters which must be specially pleaded, and in this case was not (see Halsbury's Laws of England, 4th edition, Vol.36(1), paras.15 and 55; and Charlesworth & Percy on Negligence, 9th Edition, para.3-13).

The standard of care

57. Given the finding that there was indeed wetness on the marble, or on the mat such as could be carried by shoes onto the marble, and given the evidence of the defendant's employees that spillages by those coming in and out of the hotel were not unknown, it fell for the defendant "to show that the accident did not arise from any want of care on their part" (see Ward v. Tesco Stores Ltd [1976] 1 WLR 810, 814). The facts of Ward v. Tesco were significantly different from those in the present case, but nonetheless in the light of the facts which the judge found proved in this case (that the surface was indeed wet; enough for her to slip; enough for her dress to be wet), and the likelihood of spillages, and the fact that the night in question was a particularly busy one, I think that the same principle applies.

58. The question then is whether the defendant gave an explanation which demonstrated what care had been taken, and whether the measures taken were all that could reasonably be expected in the circumstances to ensure the safety of visitors to the premises, taking into particular account the special features of the night of 1 October 1997, namely, that it was a night upon which an unusual number of visitors to the hotel were expected and encountered. Emphasis must be placed on the word "reasonably", and the standard must not be such as to impose absolute or automatic liability on a defendant in such circumstances.

59. The evidence about the hotel's system came from Madam Liu, the hotel's housekeeper. It appears to have been almost the only evidence called by the defence upon which the trial judge was prepared to rely. He had taken a dim view of the evidence of some of the others : he found that such post-accident inspection of the area of the accident which had been carried out by one security guard was perfunctory; he did not accept the evidence of another security officer who spoke to the plaintiff after the accident; and he noted that the incident report completed after the accident was one to be regarded with circumspection - words were tippexed out, and there was no mention in it of highly material matters averred to by defence witnesses. He was, in other words, unimpressed by their evidence, and also by their conduct on the night in question.

60. Madam Liu gave evidence about the system for detecting and cleaning spillages. Although her mind was directed to 1 October 1997, the fact is that she was not on duty that day or night, and it is a feature of her testimony that she was restricted to a discussion of the system designed for nights such as 1 October. Most of the questions put to her in examination-in-chief, even though under the umbrella of questions about 1 October 1997, were couched around the word "would"; for example, "How many cleaners would be on duty?", and "How frequently would a cleaner inspect the side entrance?". Her answers were similarly phrased - she spoke of arrangements that "we would have" on special days. I do not suggest that it is unusual in such cases for evidence to be given in that way, for that is how the design of a system is described. But the point has to be made in order to highlight the absence of evidence that the system she described was actually in operation on the night. To this point, I shall shortly return.

61. The evidence of Madam Liu was that the system for a night such as 1 October 1997 envisaged one cleaner inside the hotel lobby and one outside, more than the normal number because it was a public holiday with a firework display. The cleaner outside the side entrance would patrol in a clockwise or anti-clockwise direction and, if the place were busy, such a patrol would take 20 to 25 minutes but, if cleaning were required, it would take longer, and patrols were continuous. There were security guards on patrol and a supervisor on duty. As I read her evidence, it seems to me that she was conceding that if the mat was wet, and if one looked, it is likely that the wetness could be seen - she herself had noticed wet marks after the mat had been cleaned after liquid from the mat had been absorbed. In her experience, such a task would require to be done about once a fortnight. The record of which cleaners were on duty that night was no longer kept. If there was wet on the mat, a cloth, a big towel, would be used to absorb the water on the mat.

62. The judge had this to say about the evidence and about his conclusions :

"The last area of evidence comes from the hotel housekeeper, Ms Charlene Liu, a forthright lady who struck one as knowledgeable and efficient. She, however, was not on duty on that night. She described the staffing of the hotel in the relevant area: a public area supervisor working in two shifts, the second running from 3:30 p.m. until 11:30 p.m. There was no evidence given by this person.

Because of the special occasion of this evening there were two cleaners on duty; one inside the lobby, and one outside, each on continual patrol of her area. We have not heard from either of them in this trial.

The method of cleaning and/or drying areas was mop, suction machine and cloth. If the coconut mat was wet the liquid would have to be absorbed by a cloth. It is not difficult to realise that a cloth is not likely to be able to absorb all such liquid and that the mat would remain damp. It would have to be dried out, cordoned off or replaced by a dry mat. Wetness could be picked up on a shoe and walked onto the marble surface. It was practice to place a warning sign on the area of marble floor affected. Using a cloth to mop an area of carpet is not an adequate system.

On a night such as this she expected there to be more to-ing and fro-ing of guests. There would be an increased risk of rubbish being dropped. One can reasonably assume that that may include liquid. Therefore the onus would be upon the hotel to be prepared to deal quickly with any material dropped which constituted a hazard for visitors. This is particularly the case in view of the marble floor. A small amount of liquid renders many marble floor surfaces treacherous. This marble surface tends to be somewhat slippery naturally to the leather shoe. Having visited that scene in the past and more recently, the surface is one on which the foot slides readily, and this Plaintiff was wearing leather-soled shoes of a sensible shape and heel.

.....

The evidence of Mr Yau, and the two security men, and the complete absence of evidence from the supervisor, cleaners and acting housekeeper on the night in question, indicate to me an inadequate system of cleaning and drying on the night in question. It was clearly an occasion when the risk of discarded liquid falling on the matting or marble tiles was greater and special measures were called for as the housekeeper Ms Liu indicated. The nature of the system actually in operation that night is unknown. None of the material witnesses to it has been called, and this confirms my reservations about the evidence of Mr Yau and the Security Officers about the inspection. Any inspection was perfunctory at best. The housekeeper made all the inquiries one would expect of an efficient housekeeper, as she is, the next day when she came on duty and heard of the incident. It seems that all she was provided with was the hotel incident report with its now apparent odd features."

63. I do not quite understand the basis upon which the judge concluded that the use of a cloth would leave the mat damp and that if it was left damp, there was no system for drying out, cordoning off or replacing the mat. I say that because there was unchallenged evidence to the contrary. The evidence of the housekeeper was that "the cleaner would soak it dry and if the public area supervisor found that the area of wetness was large and it would take a long time for it to dry up, then the supervisor would change it with a spare coconut mat".

64. Furthermore, I would not hold as an unreasonable system for safeguarding visitors, the system described by Madam Liu.

65. That said, my query about the judge's conclusion regarding the system for cordoning off or replacing the mat, and my comment about the adequacy of the system as it was designed does not, in the defendant's favour, answer the judge's point, evident I believe from his judgment, that he had no evidence about the system in fact operated that night. There was cause, in his mind, to seek satisfaction that the system was not only designed, but was properly operated that night. He was unimpressed with the evidence of the staff who were on duty; there were indicia, he thought, of functions perfunctorily performed, of records not properly kept, and I think that in the circumstances he was entitled to credible evidence from at least one person charged with detection of spillages and with cleaning, or the supervision of cleaning, on the night in question, simply to say, if it was the case, that this was the routine that was followed that night, that the area of the side entrance was inspected every 20 minutes or so, and nothing was amiss. According to the evidence, Madam Liu had spoken to one of the cleaners the next day, but that cleaner was not called. The judge was entitled to conclude that "the nature of the system in operation was unknown", and that, accordingly, the defendant had not shown that there was in operation a reasonable system to ensure the safety of visitors to the hotel; and he was also entitled to nurture the reservations he did nurture about the implementation on that night of such system as may have been intended to operate. This is not, in my opinion, a question of requiring from the defendant an unrealistic standard of care. It is a different question altogether, namely, a failure to adduce satisfactory evidence that a reasonable system was in fact in place that night.

Conclusion

66. For the reasons I have given, I would dismiss the appeal.

Hon Mayo VP:

67. The appeal is therefore by a majority allowed. We make an order nisi that the defendant will have its costs of the appeal and the costs below.

Representation:

Mr John Griffiths, SC, CMG, QC and Mr Ashok Sakhrani, instructed by Messrs Masons, for the plaintiff

Mr Neville L Sarony, SC and Mr John D Kerr, instructed by Messrs Barlow Lyde & Gilbert, for the defendant