Cheung Yen Elim v. Lee Yan Lam

DCPI 3058/2019

[2023] HKDC 641

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 3058 OF 2019

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JUDGMENT

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1.This personal injury claim arose out of an accident occurred at about 6 pm on 2 November 2018 on the Mezzanine Floor, Heng Hing Industrial Building, No 8 Yip Cheong Street, Fanling (“the Premises”) when the plaintiff fell off a wooden A-ladder that collapsed (“the Ladder” and “the Accident”).

2.The injuries suffered by the plaintiff were minor. Indeed, though the plaintiff is claiming damages in the total sum of HK$514,590, she has not sought to adduce any expert medical evidence to support her case on quantum.

3.It is common ground that at the material time the Premises was rented and occupied by one Globalmax (Group) Limited (“Globalmax”) to operate a beauty/massage centre (“the Business”). The defendant was a director and shareholder of Globalmax.

4.The plaintiff claims that the defendant is liable as she has breached the common duty of care of an occupier under the Occupiers’ Liability Ordinance Cap 314, and further or alternatively, as she was negligent by providing to the plaintiff’s use the Ladder which was faulty.

5.This case is somewhat unusual in that save the occurrence of the Accident in the Premises, almost each and every other factual matter is hotly disputed by the parties. The adjudication of the claim therefore falls very much on which version of facts between the two competing versions this court accepts, which in turn depends very much on the credibility and reliability of the factual witnesses.

6.The only two factual witnesses are the parties themselves.

The plaintiff’s factual case

7.The plaintiff was educated in Hong Kong up to Form 5. She was 49 years old at the time of the Accident. She said she then worked part-time as a photographer under the trade name of Heaven TV Media Company[1]. The following is her version of facts.

8.In late 2017, she and the defendant got acquainted in a business dinner. In March 2018, the defendant invited her to be the mistress of ceremony in an event held in a restaurant in Tin Hau invested by the defendant and the defendant paid her remuneration of HK$1,000. The defendant since has engaged the plaintiff in a number of photo shoots.

9.From 6 August 2018 until the soft opening of the Business on 28 October 2018, the defendant has engaged the plaintiff 4 times to shoot pictures in the Premises for use in promoting and advertising the Business, from which she received a total of HK$7,000.

10.She attended the Premises on 2 November 2018 as she was engaged by the defendant to shoot some more pictures to promote and advertise the Business. In oral evidence, the plaintiff said that she was engaged this time because the defendant was not satisfied with the pictures taken on the last occasion and asked her to re-shoot those again.

11.As to how the Accident occurred, her case as set out in her witness statement was, in gist, this. As the fluorescent tubes installed at the ceiling of the Premises were of different colour temperatures, the defendant, who was present all the time during the shoot, asked the plaintiff to change the tube(s). The defendant then instructed her staff to fetch a ladder, and the staff fetched the Ladder. While the plaintiff was on the Ladder, the string that was tied to the lower rungs on either side of the Ladder broke and the Ladder collapsed. The plaintiff fell and sustained injuries. I will say more on the plaintiff’s case regarding what happened on this occasion.

12.Accompanied by the said staff, the plaintiff took a taxi to the Accident and Emergency Department of the North District Hospital (“A&E NDH” and “NDH”) for treatment.

The defendant’s version

13.The defendant said she never knew the plaintiff in the manner as the plaintiff said. The defendant said that she and the plaintiff might have attended the same business dinner in late 2017, but they had not gotten acquainted there. The defendant has never invested in a restaurant in Tin Hau. She has never engaged the plaintiff as a mistress of ceremony in any event. She has never engaged the plaintiff as a photographer in any photo shoot, whether elsewhere for other purposes, or in the Premises for the purpose of the Business.

14.Rather, the defendant’s factual case is this.

15.In 2017, she had some spare financial resources and wanted to own and run her own business. She previously had no experience in doing so. In September 2017, she became the sole shareholder and director of Globalmax which ran the business of selling motorcycle helmets on the internet.

16.In March 2018, she came to know one Mr Chyren (朱魂)(“Chu”) in a business function. Chu introduced himself as CEO of Earth Group Limited (巨龍股份有限公司) and Globe Group Limited (中國人民控股有限公司)[2] (“GGL”) and gave the defendant his business cards[3] in which were set out impressive credentials and the telephone numbers of over 20 overseas branches of the companies. Chu claimed to be a lawyer but said he chose not to practice. Chu claimed he was experienced in and ran many businesses, including operating beauty centers and trading in beauty products.

17.Chu and the defendant met several days later. In that and subsequent meetings, Chu continued to pitch himself as experienced and well connected regarding running a beauty centre and trading in beauty products and offered to help the defendant as her consultant. In the middle of that meeting, the plaintiff and one Ms Ng (吳林蔓)(“Ng”) showed up and were introduced by Chu as his associates or staff. They gave the defendant their business cards. The plaintiff’s card[4] said that the plaintiff occupied the position of Business Development Officer and Director of Guangdong Province of GGL.

18.Eventually, Chu successfully persuaded the defendant to trust him. The defendant agreed to engage GGL as consultant to set up and run the Business. On 16 May 2018, upon Chu’s introduction Globalmax signed a tenancy agreement[5] to rent the Premises to run the Business. On 20 May 2018, Globalmax and GGL signed a 臨時總顧問合約[6] drafted by Chu in Chinese by which GGL was appointed as Chief Consultant for Globalmax to set up and operate the Business in the Premises between 20 May 2018 to 19 May 2019 (“the Consultancy Agreement”). In a nutshell, under this agreement, Globalmax was to pay GGL a total of HK$780,000 for its services, among others, in securing the rental of the Premises, the design, renovation and complete setting-up of the Premises and for providing consultancy services in the purchase, promotion and sales of beauty products during this one-year period. Globalmax duly paid up the amounts due from time to time under the Consultancy Agreement. The defendant mentioned in oral evidence that there were some other substantial charges and disbursements that she has paid Chu/GGL.

19.The renovation and preparation of the Premises was not on schedule as it took more than 5 months before the Business was able to have a soft opening on 28 October 2018. As the defendant has paid GGL to act as consultant, the defendant only visited the Premises several times. On some of the visits the defendant saw Chu, Ng and the plaintiff performing various work there. Chu gave the defendant some reasons why though as CEO he involved himself in these manual works. The defendant recalled seeing the plaintiff pasting wall papers in the Premises.

20.The defendant produced some Whatsapp messages between she and the plaintiff exchanged during the time the Premises was being renovated and some photographs showing the plaintiff working there with Chu and Ng. I will return to these messages and photos in due course.

21.On the date of the Accident which was several days after the soft opening, the defendant arrived at the Premises in the afternoon and stayed inside her office. At the time she understood that GGL would send its personnel to the Premises to carry out some touch-up or remedial works. Later at about 6pm, she heard a loud sound and came out and saw the plaintiff sitting on the floor and apparently fell and injured. The then staff of Globalmax, Zoe Kim (“Kim”), explained that the plaintiff discovered a fluorescent tube on the ceiling near the left side of the main door of the Premises was flashing and not working properly. The plaintiff then on her own initiative found the Ladder and tried to replace the tube and fell while doing so. Kim then accompanied the plaintiff to the hospital for treatment.

22.The defendant said that neither Globalmax nor her has ever purchased or kept a ladder in the Premises, and that the Ladder belonged to GGL and was brought to and kept in the Premises by GGL to facilitate its staff to perform the work under the Consultancy Agreement.

23.The defendant said that the plaintiff came to the Premises that day not because she was engaged by Globalmax or her to do any photo shoot. She has never asked the plaintiff to change the fluorescent tubes for the purpose of any photo shoot. If the plaintiff was changing a fluorescent tube at the time, it would have been doing it in the capacity of GGL’s employee or agent as part of GGL’s work under the Consultancy Agreement.

Principles applicable to fact finding and the assessing credibility

24.In the circumstances of this case, it is worth repeating these trite guiding principles, which were referred to by Mr Ngai, counsel for the defendant, and not disputed by the plaintiff:

“76. In making my findings of fact in this case, I am guided by a number of general principles which judges apply as to fact finding and the assessment of credibility.

77. Generally speaking, contemporaneous written documents and documents which came into existence before the problems in question emerged are of the greatest importance in assessing credibility: Onassis v Vergottis [1968] 2 Lloyd’s Rep 403 at 431 (Lord Pearce). It is right to point out, however, that some of the documents in this case are alleged by the Son to be shams and those documents obviously cannot be used to assess the credibility of the parties.

78. In deciding whether to accept a witness’ account, importance should also be attached to the inherent likelihood or unlikelihood of an event having happened, or the apparent logic of events: eg Lam Rogerio Sou Fung v Tan Soon Gin George (unreported, HCA 2576/2005, 5 May 2011) §39 (Chu J).

79. In determining a witness’ credibility, I have also attached importance to the consistency of the witness’ evidence with undisputed or indisputable evidence, and the internal consistency of the witness’ evidence. The latter type of consistency is often tested by a comparison between the witness’ oral testimony and his or her witness statement.

80. I have cautioned myself against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses (Ting Kwok Keung v Tam Dick Yuen (2002) 5 HKCFAR 336 at §§36-37 (Bokhary PJ)), or from the assessment of the witnesses’ character (Esquire (Electronics) Ltd v HSBC [2007] 3 HKLRD 439 at §135 (Stock JA)).”

(per DHCJ Eugene Fung SC in Hui Cheung Fai & Another v Daiwa Development Ltd & Others HCA 1734/2009, unrep, 8 April 2014)

25.Moreover, if a witness has told lies on a central issue, that may have a significant adverse impact on the credibility of his or her evidence as a whole (Progetto Jewellery Co Ltd v Lau Chiu Ying [2020] HKCFI 209 at §§28-31; Pc Enterprises (HK) Ltd and Another V. Chan Wai Ching [2021] HKDC 966).

Discussion and my findings

26.I will begin by examining the documentary evidence, and the obvious lack thereof.

27.As mentioned, the defendant produced the business cards of Chu, Ng and the plaintiff, the tenancy agreement, the Consultancy Agreement, photos and text messages. The background matters of the defendant’s version are well supported by them. Particularly, I find that clauses 2(A), 3(B), 3(C) and 3(D) of the Consultancy Agreement obligated GGL to renovate the Premises, to purchase and install therein 14 air-conditioning units, to purchase furniture and to completely set-up the Premises for the purpose of operating the Business. Thus, and this was not seriously challenged by the plaintiff, I find that, as the defendant said, at the material time GGL was obligated to set-up the Premises which included performing remedial or touch-up works.

28.Regarding the plaintiff’s GGL business card, the plaintiff denied she was in any way connected to GGL and denied knowing that the business card existed at the time or having given it to the defendant. The plaintiff said in oral evidence that she had no idea how it existed and suggested someone must have faked it. In light of the evidence mentioned below that showed that the plaintiff was involved in the renovation and setting up of the Premises, I find the plaintiff’s explanation over this business card unconvincing and untruthful.

29.The only 2 pieces of documentary evidence on liability produced by the plaintiff were (a) the Business Registration Record of Heaven TV Media Company and (b) pages of a small notebook described in the index page of the Trial Bundles as “The Plaintiff’s record of her income covering the period from January 2018 to November 2018”.

30.The Business Registration Record of Heaven TV Media Company however showed that Heaven TV Media Company only commenced business on 9 April 2019, which was some 5 months after the Accident. The plaintiff explained that she traded under the name Heaven TV Media Company in 2018 even though it was not registered.

31.The small notebook recorded on each page, in Chinese words handwritten by the plaintiff, the information of each occasion consisting of the date, a person identified by his/her surname only, a brief description of the occasion, rough location, the time, and a dollar amount. There were 5 pages containing these handwritings (“the Notebook Records) :

“2018/8/6 李小姐 產品照片 粉嶺業暢街 10am-5pm $2,000”[7]
 

“2018/8/15 李小姐 產品照片(第二批) 粉嶺業暢街

1pm-4pm $2,000”[8]
 

“2018/9/15 李小姐 產品照片(第三批)* 粉嶺業暢街

6pm-9pm $2,000”[9]
 

“2018/10/28 李小姐 公司開張攝影及錄影 粉嶺業暢街

9am – 3pm $1,000”[10]
 

“2018/11/2 李小姐 場地宣傳照 粉嶺業暢街4pm-8pm $1,500”[11]

32.In oral evidence, the plaintiff said that the Notebook Records recorded the 5 occasions that the plaintiff was engaged to do photo shoot in the Premises. The authenticity and weight of the Notebook Records were challenged by the defendant. I will come back to them in due course.

33.However, what is particularly telling, in my view, is the plaintiff’s inability to produce other documentary evidence.

34.In her homemade Defence filed in person on 18 September 2020 (“the Homemade Defence”)[12], the defendant already averred positively her case as narrated above, particularly that she personally did not know the plaintiff and that the plaintiff was never engaged to shoot photos in the Premises; and such part of the plaintiff’s case was continually denied in subsequent versions of the Defence. Thus, these matters have all along since the very beginning been put in hot dispute. One would expect the simplest yet surest way to resolve this dispute is by the plaintiff producing the photographs (and it does not need to be all, just some will do) taken during the other photo shoots the defendant has engaged her since March 2018 and those taken in the Premises on the earlier 4 occasions. Upon production of such photos, the dispute would easily be resolved in the plaintiff’s favour. However, none whatsoever has been produced by the plaintiff. Not only that, despite the defendant highlighting the complete lack of such evidence at the beginning of trial, no explanation whatsoever was even attempted to be proffered as to why she did not or could not produce any.

35.Moreover, if the plaintiff were on such friendly terms with the defendant and the defendant has engaged her in all these numbers of photo shoots, as she alleged, no doubt the plaintiff would have been able to produce at least some records of communication between them (such as emails, text messages or phone records) relating to all these engagements. Indeed, the defendant has so expressly challenged the plaintiff in paragraph 4 of the Homemade Defence : “原告人張炎出現在本人公司店舖前，本人用甚麼通訊途徑方式聯繫張炎，請提供證據 (包括所有電話記錄，電郵，WhatsApp及任何通訊軟件資料)”. Yet again, none whatsoever was produced by the plaintiff. Again no explanation whatsoever was even attempted to be proffered as to why she did not or could not produce any.

36.In the circumstances, I draw a strong adverse inference against the plaintiff’s version as a result of the plaintiff’s inability to produce not a page of such documentary evidence and her complete lack of explanation.

37.The defendant produced 2 sets of photographs taken respectively in the Premises and on the street nearby, and in the staircase leading to, the Premises. The first set were taken by the defendant and the second by Kim. They were all taken before the soft opening of the Business.

38.The first set consists of 2 photos taken on the same occasion in the Premises[13]. It is common ground that the first photograph depicted Ng standing on a wooden ladder and the back of the plaintiff who was handing something to Ng. The second photograph depicted Chu (who was half-naked) using a power drill to drill a hole on the wall and the plaintiff standing behind him handling some artificial plants. In both pictures the plaintiff was wearing a yellow T shirt and shorts. In cross-examination the plaintiff denied she was working there together with Chu and Ng. In re-examination, she said to the effect that she had given Chu and Ng some advice on a prior occasion that hanging some artificial plants from the ceiling would be a nice decoration and on that occasion she checked the artificial plants out as they have arrived.

39.It is not disputed that the second set consists of 10 photographs taken on the street outside the Premises, in the stairwell and the stairs and in the Premises, and that they depicted the plaintiff (wearing a blue T-shirt and shorts), Chu and Ng unwrapping and checking some sofa chairs, and together carrying them up the stairs and into the Premises. In oral evidence, though denied working with Chu and Ng, the plaintiff said that she was checking whether the sofa chairs were of the right quality. She said she volunteered to help Chu and Ng on that day.

40.In oral evidence, the plaintiff denied that Chu or Ng or anyone else arranged with her to attend the Premises on those 2 occasions. Apart from the explanation given in paragraph 38 above, she also said at some stage of her oral evidence that on the first occasion she went to the Premises to check Chu out to see if he really knew how to run a business as she was in negotiation with him; and that on the second occasion she just happened to stroll by the Premises.

41.From looking at the photos, it seems very clear to me that the plaintiff knew Chu and Ng well and that they have been working together to decorate and set up the Premises. The explanation given that she had on a prior occasion advised Chu and Ng to decorate by hanging artificial plants and then upon the arrival of the artificial plants went to check them out did not sit well with her other explanation that she went to the Premises to check out whether Chu knew how to run that business. Moreover, on the second occasion, if it were true that the plaintiff merely happened to stroll by, it is hard to understand why she was so involved in unwrapping and checking out the quality of the sofa chairs and then helping Chu and Ng carrying them upstairs. I find the plaintiff’s explanations as to how and why she attended the Premises and as to what she was doing there on those two occasions disingenuous, totally unbelievable and are made-up excuses. I unhesitantly reject them.

42.While still dealing with these photos, I would interject this. In oral evidence, the defendant identified the ladder depicted in the first series of photos – the one that Ng was stepping on - as the Ladder. She also said that it was brought to the Premises and used by GGL, and that Globalmax or her has not purchased or kept any ladder in the Premises.

43.When cross-examined, the plaintiff admitted that on one occasion she was seen pasting wall papers in the Premises, but gave the explanation that she was merely demonstrating to Ng how that should be done; while she did not say why she was in the Premises on that occasion and the circumstances leading to demonstrating the same to Ng. I find such explanation totally unconvincing.

44.I turn next to consider the text messages the defendant exchanged with the plaintiff between 25 August 2018 to 17 January 2019, a print-out of which was produced[14] by the defendant. The fact that they were authentic and a complete record of the text messages exchanged during that period were not disputed by the plaintiff.

45.I would first observe that

(a)  There were but a few short exchanges between the plaintiff and the defendant in this period; and

(b)  There was nothing mentioned whatsoever that has anything to do with any photo shoot or photos;

46.The defendant relied on 2 series of messages to show that the plaintiff was involved in the renovation of the Premises as personnel of GGL.

(a)  The first was sent by the plaintiff to the defendant at 2:26 pm on 25 August 2018 by which the plaintiff sent to the defendant a picture and asked “要边个啡色?”. It is common ground that the picture was one depicting certain colour samples of different brown colours and the defendant was asked which colour of paint she would pick. To which the defendant replied : “中間”.

(b)  The second was sent 2 days later on 27 August 2018 at 2:58pm by the defendant who said : “送咭机人在楼下，請开門”, to which the plaintiff answered at 3:14pm : “已收” and then the defendant answered 3 minutes later “thx”.

47.The defendant said in oral evidence that (a) she usually communicated with Chu regarding matters of the renovation of the Premises. However, on the first occasion, Chu told her that the plaintiff would contact her about choosing the colour of certain paint and hence the first series of messages. On the second occasion, as the defendant was informed that the credit card machine she ordered would be delivered to the Premises, she messaged the plaintiff to make sure someone would open the door to receive the machine.

48.When cross-examined on those two series of messages, the plaintiff said that (a) the first series of message was exchanged because the defendant telephoned her to ask her to help buy some paint and (b) the second message was sent to her because the defendant was wary that the decoration workers might mishandle the credit card machine, the defendant therefore messaged her to go and help receive the package, and she so happened to be nearby and she therefor went.

49.I find the plaintiff’s version inherent improbable and unbelievable:

(a)  It was highly improbable that the defendant would be involved in renovation to the level of buying paint for the workers’ use, nor was it probable that the defendant was knowledgeable as to what kind and brand of paint to buy and the volume required. Such ought to have been the renovation contractor’s job. Moreover, as the text messages did not contain such details, it would mean that the defendant would have informed the plaintiff all these details orally in an earlier telephone call, and the plaintiff well understood them, and the plaintiff was so kind as to help by finding the shop, messaging the defendant to ask her which colour, then buying the paint and taking it to the Premises. The plaintiff’s version is so very far-fetched.

(b)  Regarding the second message, the circumstances alleged by the plaintiff simply did not match with what was communicated. Looking at what was said : “送咭机人在楼下，請开門”, the defendant’s message was clearly sent to one who was already at the Premises, and not to one who was nearby and was being requested to go to the Premises to help.

50.Thus, I accept the defendant’s version, and reject the plaintiff’s, regarding the circumstances surrounding the exchange of these 2 series of messages.

51.Furthermore and importantly, I find that there are clear inconsistencies in the plaintiff’s allegations regarding what happened immediately prior to her fall :

(a)  In paragraph 5 of her Statement of Claim filed on 2 June 2020, the plaintiff pleaded :

“At about 1800 hours, the Defendant asked the Plaintiff to replace one of the fluorescent tubes installed at the ceiling of the Premises, which was about 3 meters high from the ground level, for better photography lighting of the Defendant’s products. The Defendant then provided a wooden A-ladder to the Plaintiff for replacement of the said fluorescent tube …” (my emphasis)

(b)  In paragraph 5 of the Homemade Defence dated 18 September 2020, it was pleaded by the defendant:

“被告人不承認原告人發出日期2020年6月2日的申索書內容第五段，原告人張炎到本店時，發現大門入口左邊天花光管閃爍，原告人張炎自行拿來木梯更換光管，沒有正確使用下導致意外產生。”

(c)  In response, the plaintiff (who has been legally represented all along by the same firm of solicitors) pleaded in paragraph 5 of the Reply filed on 15 October 2020 :

“Save it is admitted that one of the fluorescent tubes installed at the ceiling was blinking, paragraph 5 is denied. The Plaintiff repeats that she was requested by the Defendant to replace the fluorescent tube by using the wooden A-ladder provided by the Defendant.” (my emphasis)

(d)  Thus, up to October 2020, the plaintiff’s own allegation was that she was asked to replace one of the tubes and she has admitted the defendant’s allegation that the tube required replacement because it was blinking.

(e)  A year later on 29 November 2021, the plaintiff obtained leave to file her Amended Reply in which the original paragraph 5 (quoted in (c) above) was completely deleted and replaced with :

“Paragraph 5 of the Amended Defence is categorically denied. The Plaintiff repeats her averment pleaded in paragraph 2 above.” (my emphasis)

(f)  The original paragraph 5 of the Homemade Defence was not changed in the Amended Defence. While paragraph 2 of the Amended Reply pleaded the usual joinder. Thus, the plaintiff withdrew her admission concerning the blinking and maintained her averment in paragraph 5 of the Statement of Claim that the plaintiff was asked to replace one of the tubes.

(g)  In paragraphs 8 and 9 of her witness statement filed on 12 January 2022, the plaintiff said:

“8. … 直至上述意外發生的時間，我在該場地的大堂拍攝時，被告人表示該大堂處的數個天花燈盤內因有分別黃色及白色的光管，所以燈光的顏色不一致會令照片的質素欠佳，為此被告人要求我將各燈盤其中黃光管拆下換上白色光管，務求令燈光的顏色一致而達至最佳效果。

9. 由於燈盤安裝在天花頂部，當時被告人指示她的員工從該場地的辦公室附近取來一張共有4層的A字型木梯，該木梯約4呎高，梯級下方則有繩連繫著。當時我穿著波鞋，我沿木梯攀爬至其中一方的第3梯級上，便將其中一個燈盤的黃光光管拆下，並由另一燈盤取出白光光管鑲嵌入內。完成後再亮燈時，經被告人觀察後認為光線仍然不理想，她叫我將已拆出的另一燈盤安裝回白光管，於是我再次循木梯攀上並踏在第3梯級上，並打算將該支白燈光管安上燈盤時，我踏上的木梯兩面梯腳突然向外呈一字形滑出…”

(h)  Thus, the case the plaintiff spoken to in the witness statement was completely different than the one pleaded, which was changing one of the tube. Instead, it was said in the witness statement that the defendant asked that the yellow tubes be replaced by white ones so that the colour temperature would be uniformly white. However, after having done that, the defendant was not satisfied and asked that certain white tubes be put back, and then the Accident occurred.

(i)  In oral evidence, the plaintiff changed and expanded her case and allegations yet again. In oral evidence she said that because the tubes in some of the panels were not uniform in colour – containing white as well as yellow tubes, she switched and replaced them such that the colour in the same panel became uniform, either all white or all yellow. By so doing, the colour of the tubes in each particular panel was made uniform – either white or yellow. However, the defendant was not satisfied and asked her to change the tubes such that all the tubes in all the panels in that area would be either yellow or white – and which one she did not say – and while doing this second round of switching the tubes, the Accident occurred.

52.In my view,

(a)  after the Homemade Defence was filed, it has become more than apparent that (a) what the plaintiff was asked to do by the defendant immediately prior to the Accident and (b) what the plaintiff actually did immediately prior to the Accident were disputed;

(b)  These two issues of fact are important, if not central - as changing one blinking tube supports that it was remedial work; while switching the tubes to produce certain colour temperature effect would suggest that the change was made to facilitate a photo shoot;

(c)  That factually whether the plaintiff was asked to replace one tube that was blinking as opposed to being asked to switch them elaborately to achieve certain colour uniformity and what actions have been taken to achieve the switch and whether to achieve white overall colour or yellow overall colour should be straight forward factual matters that a witness would be able to remember without confusion.

(d)  Yet and as I set out in detail above, the plaintiff has been changing and expanding her case and evidence over these important but straight forward factual matters time and again.

53.I come to the clear conclusion that the plaintiff has not been truthful to the court as to what actually happened immediately prior to the Accident.

54.Though in the circumstances I consider it the least weighty, I have also considered the demeanour of the witnesses when giving evidence. I am much more favourably impressed by the defendant than the plaintiff as a witness as the former gave evidence spontaneously and in a direct manner, while the plaintiff was thoughtful and sometimes paused as if to think out what best to answer, and she would sometimes give answers rather bluntly and loudly (as if to dissuade further follow up questions). However and as said, I only accord these matters minor weight.

55.By reason of what I said above, I come to the clear view that I am not satisfied that the plaintiff is an honest and reliable witness and I do not find her evidence credible or reliable, while I find the defendant’s evidence reliable and creditable and well substantiated by documents. As I do not find the plaintiff an honest witness, I also do not place weight on the Notebook Records as it was a self-serving record written by her.

56.In the round, I accept the defendant’s version of facts and reject the plaintiff’s. Particularly, I find that (a) the plaintiff worked for GGL and attended the Premises on the date of the Accident to perform remedial or touch-up work on behalf of GGL and not because the plaintiff was engaged by the defendant to do a photo shoot, (b) the Ladder was owned and brought to the Premises by GGL for use by its employees or agents to perform its work under the Consultancy Agreement and the Ladder was not owned or provided by the defendant or Globalmax to the plaintiff, (c) at the time of the Accident, the plaintiff used the Ladder to perform work on behalf of GGL, (d) the plaintiff fell off the Ladder while she was replacing a fluorescent tube which was blinking and not working properly, and such work was part of the remedial work that GGL was obligated to do under the Consultancy Agreement.

Liability not established

57.Further to my findings above, I hold that the defendant did not owe the plaintiff a duty of care or has breached any in relation to the plaintiff’s performance of the said remedial work. I do not find the defendant negligent.

58.Further to my findings above, I hold that at the time of the Accident Globalmax was merely letting the plaintiff retrieve and use the Ladder, brought and kept there and owned by GGL, to perform GGL’s work. Thus, I also find that neither Globalmax nor the defendant has breached any common duty of care under the Occupiers’ Liability Ordinance.

59.Insofar as necessary, I also find for the defendant’s defence that it was Globalmax who was the occupier of the Premises and not the defendant who was merely its shareholder and director. In §11-12 Clerk & Lindsell on Torts 23^rd Ed., the learned authors wrote :

“A corporation can of course be an occupier, acting through its employees. Indeed, where commercial premises are vested in a private one-person company, it is likely that the latter will be regarded as occupier to the exclusion of the owner of the shares, even if the latter is in practice in physical control of the building concern (See the Privy Council decision in Shtern v Cummings [2014] UKPC 18)”

60.In the premises, I find that the plaintiff has failed to establish liability.

Quantum

61.Though liability has not been established, for completeness I will briefly state my finding on the issue of quantum.

62.In A&E NDH, the plaintiff was only found to have tenderness and swelling over right upper arm. There was no complaint of other injuries, especially no complaint that her head or eye was involved. She was discharged at 19:12 and was given sick leave up to 7 November 2018. According to the medical records, her right upper arm swelling was only followed up once on 22 November 2018 in Shek Wu Hui Government Out-patient Clinic and she was given sick leave of 3 days.

63.On 7 November 2018, the plaintiff attended A&E NDH complaining only of seeing black dots in left eye for 2 to 3 days. Visual acuity was 20/20 for both eyes. She was diagnosed to have left eye floaters. No sick leave was given. Thereafter, she attended Department of Ophthalmology of Alice Ho Miu Ling Nethersole Hospital for 12 times relating to her eye (some were said to be for “eye disease”)[15].

64.On 1 April 2019, the plaintiff attended A&E NDH complaining of chronic bur vision over left eye but flashing of light and then blacken vision transiently over left eye. She was then urgently referred to Department of Ophthalmology of Alice Ho Miu Ling Nethersole Hospital for assessment. She was followed up there another 5 times until last seen on 22 January 2020.

65.Regarding her eye condition, the plaintiff was given intermittent sick leave from 12 November 2018 to January 2020 of a total of 19 days[16].

66.The plaintiff first attended the psychiatric outpatient clinic of NDH on 24 January 2019 and was diagnosed to suffer from Adjustment Disorder. According to the plaintiff, she attended the same clinic on 27 August 2019 and 22 October 2019 and was last seen on 21 April 2020.

67.The main bulk of the damages claimed by the plaintiff arose from her eye condition, which she said was part of the injury she sustained by the fall in the Accident.

68.As noted, there was no indication of head or eye injury when she was examined in the evening of the date of the Accident. While the report of A&E NDH on the plaintiff’s attendance on 1 April 2019[17] and the report of Department of Ophthalmology of Alice Ho Miu Ling Nethersole Hospital[18] both mentioned the Accident, there was no opinion expressed whatsoever that even suggested that the plaintiff’s eye condition was caused by the Accident. Indeed, the report of Department of Ophthalmology of Alice Ho Miu Ling Nethersole Hospital merely set out the ailments complained by the plaintiff and the results of various examinations, but the doctor did not say what the diagnosis was.

69.That being the medical evidence regarding the eye condition, there is no evidence showing, and I do not find it proven, that the eye condition was caused by the Accident. I cannot accept the plaintiff’s submission that merely because the plaintiff complained of the eye conditions days after the Accident, without more and particularly without medical evidence and expert opinion, I can infer that the eye condition was caused by the Accident.

70.The right arm swelling and the psychiatric condition suffered by the plaintiff were clearly very minor.

71.The amount claimed in the plaintiff’s closing submission for PSLA of HK$100,000 is clearly excessive, as was the sick leave of 2 to 3 months.

72.Just very broadly, given what I find above, I would have awarded as reasonable PSLA HK$40,000, loss of earnings of one month, therefore HK$11,140, and special damage of HK$4,000. They total to HK$55,140.

Disposal

73.In the premises, I dismiss the plaintiff’s claim with a costs order nisi that the plaintiff do pay the defendant her costs of this action, including any costs reserved, with certificate for counsel, to be taxed if not agreed. This is a nisi order which will become absolute after 14 days unless any party applies to vary within that period.

74.I thank counsel for their assistance.

Mr Wing So instructed by B Mak & Co, for the plaintiff

Mr Lawrence L K Ngai instructed by Chung & Kwan, for the defendant