Wu Wai Lam Bebi v. Bat Chan

DCPI 3978/2022

[2025] HKDC 1419

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 3978 OF 2022

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JUDGMENT

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A.  INTRODUCTION

1.This is the trial of the Plaintiff’s claim against the 2^nd Defendant for personal injuries which she allegedly sustained as a result of taking a stretching class taught by the 2^nd Defendant. At the material times, the 2^nd Defendant was a stretching instructor, whereas the 1^st Defendant was a company carrying on the business of providing fitness sessions.

2.By Order dated 17 August 2023, leave was granted by the Court for the Plaintiff to discontinue the present action against the 1^st Defendant. Hence, the present trial only concerns the Plaintiff’s claim against the 2^nd Defendant.

3.The 2^nd Defendant together with the 1^st Defendant were originally represented by Messrs Chan & Ho (“C&H”). Pursuant to the Order dated 11 September 2023, C&H ceased to act as the 2^nd Defendant’s legal representative upon compliance with the requirements of Order 67, Rule 6 (1) RDC. Since then, the 2^nd Defendant has been acting in person.

4.Apart from the Defence dated 3 April 2023 (“Defence”) which the 2^nd Defendant filed together with the 1^st Defendant when he was still being represented by C&H, the 2^nd Defendant has not filed any List of Documents or Witness Statement as required by the Order dated 11 May 2023. As the 2^nd Defendant has failed to indicate his stance as to whether he would adduce and rely on medical evidence within the prescribed time provided under the Order dated 14 March 2024, the 2^nd Defendant is debarred from adducing or relying on medical expert evidence in this action. The 2^nd Defendant was absent from the trial.

5.Given the above procedural history, the present trial is proceeded on the basis that the 2^nd Defendant has not adduced any evidence before this Court.

B.  THE PARTIES’ CASE

B1.  The Plaintiff’s Case

6.The Plaintiff’s case can be summarised as follows.

7.The Plaintiff is a female. She was born on 2 July 1974 and was 43 years old at the time of the Accident (as defined below). She worked as a clerk/receptionist with duties including lifting objects and heavy documents for the office. Before the Accident, the Plaintiff was in good health and did not have any permanent injury.

8.The Plaintiff participated in a stretching session on 5 March 2022 at around 3pm (“the Class”). The 2^nd Defendant was the fitness instructor of the Class.

9.The Class took place in a room at 27/F, KP Tower, 93 King’s Road, Hong Kong (“the Premises”). The Premises was of the size of 30 to 50 sq ft.

10.The 2^nd Defendant, being the fitness instructor, owes duties of care under common law to the Plaintiff in that he would (“the Duties”):

(a)  Exercise due care and skill in taking all necessary precautions for the safety and well-being of the Plaintiff while she was attending the Class at the Premises;

(b)  Maintain a safe place and system for the Class;

(c)  Not to expose the Plaintiff to any risk of injury which the 2^nd Defendant knew or ought to have known in the conduct of the Class.

11.During the Class, an accident took place (“the Accident”):

(a)  As the Premises was a small room of approximately 30 to 50 sq feet, the Plaintiff could barely extend her body as instructed by the 2^nd Defendant without being obstructed by the walls;

(b)  The only equipment provided by the 2^nd Defendant to the Plaintiff was a relatively thin yoga mat and a pillow for her. As the Premises was small, the Plaintiff could hardly move her body properly during the Class;

(c)  While the Plaintiff was attempting a stretching posture following the 2^nd Defendant’s instructions (“the Stretch”), she experienced sudden serious pain on her right chest and right shoulder. She immediately informed the 2^nd Defendant who then stopped the Class;

(d)  As the pain persisted, the Plaintiff sought medical examination and treatment. She was diagnosed to have suffered from, inter alia, fractured anterior axillary portion of right 5^th rib and dorsal scoliosis convex to the right. The Plaintiff’s injuries are particularised in more detail in her Statement of Damages dated 23 November 2022 (“the SOD”).

12.The Plaintiff contends that the Accident was caused by the 2^nd Defendant’s negligence or breach of the Duties owed to her. Amongst other things, the Plaintiff alleges that the 2^nd Defendant failed to:

(a)  Give any sufficient instructions and assistance to her to carry out the stretching posture in the Class;

(b)  Explain and teach her the steps necessary to avoid such danger;

(c)  Ensure that she performed the stretching posture safely;

(d)  Take any or any sufficient precaution for the safety of her when she was doing the stretching;

(e)  Take any or any sufficient regard or reasonable care of the Plaintiff’s safety, and/or exposing her to a risk of injury or damage of which the 2^nd Defendant known or ought to reasonably have foreseen;

(f)  Provide any or any sufficient supervision;

(g)  Implement or have in place a safe/proper system for the Class;

(h)  Provide safe or adequate equipment for stretching and core support;

(i)  Ensure and provide any or any sufficient physical support to the Plaintiff’s head and/or neck and/or core whilst stretching.

B2.  The 2^nd Defendant’s case

13.In the Defence, the 2^nd Defendant denies the Plaintiff’s claim.

14.The 2^nd Defendant admits that the Class was conducted by him in his personal capacity.

15.The 2^nd Defendant does not admit that he owes the Duties to the Plaintiff. He puts the Plaintiff to proof of the same.

16.The 2^nd Defendant admits that the size of the Premises was around 30 - 50 sq feet. The 2^nd Defendant says that:

(a)  The size of the Premises is sufficient for an adult individual to conduct full body stretching exercises with ease;

(b)  The stretching does not require any particular equipment. Nevertheless, the 2^nd Defendant provided the Plaintiff with a pillow for her neck, a yoga mat of sufficient thickness and a towel for the Plaintiff to clean herself;

(c)  With the space of the Premises and the provision of proper equipment, the Plaintiff was more than able to move her body properly and was able to extend her body at ease in accordance with the 2^nd Defendant’s instructions.

17.The 2^nd Defendant does not admit that the Plaintiff experienced sudden serious pain on her right chest and right shoulder. He denies that the Plaintiff had informed her of the pain, whether at the time or at all.

18.The 2^nd Defendant pleaded that the following took place during the Class:

(a)  Before the Class, he massaged the back of the Plaintiff’s neck and shoulders in order to relax her muscles;

(b)  Thereafter, the 2^nd Defendant instructed the Plaintiff to independently perform gentle stretches to warm up her body and assess her fitness to participate. Upon the Plaintiff’s completion of the above, the 2^nd Defendant asked the Plaintiff if she felt any uncomfortable stiffness or whether there was any injury which the 2^nd Defendant should be aware of, but the Plaintiff replied in the negative;

(c)  Relying on the Plaintiff’s confirmation of her fitness, the 2^nd Defendant commenced the Class. The Class was conducted in accordance with the curriculum of the Stretching Therapy Instructor Certificate issued by the National Bodybuilding and Fitness Academy;

(d)  During the Class, whenever the 2^nd Defendant noticed certain muscles of the Plaintiff appeared tense, he would advise the Plaintiff to perform gentle stretches on the muscles and to avoid overexerting herself;

(e)  The Plaintiff never informed the 2^nd Defendant that she felt and pain and/or was feeling unwell, whether before, during or immediately after the Class.

19.Even if the Accident did take place as alleged by the Plaintiff, it was not caused by the negligence or breach of common law duty of care by the 2^nd Defendant. Further, even if the 2^nd Defendant did owe the Duties to the Plaintiff, the 2^nd Defendant has discharged them by:

(a)  Providing sufficient equipment and/or space to allow the Plaintiff to participate in the Class safely and/or with ease;

(b)  Providing the Plaintiff with sufficient opportunities to inform the 2^nd Defendant of any pain and/or discomfort felt by the Plaintiff;

(c)  Providing the Plaintiff with a massage and opportunity to conduct gentle stretches before the Class in order to avoid and/or minimise the risk of injury; and

(d)  Advising the Plaintiff to avoid any overexertion in view of the Plaintiff’s body condition as it appeared to the 2^nd Defendant.

20.Further or alternatively, the 2^nd Defendant alleged that the Accident was solely caused or contributed by the Plaintiff’s negligence.

C.  WHETHER THE 2^ND DEFENDANT WAS LIABLE TO THE PLAINTIFF FOR BREACH OF THE DUTIES

21.Those who provide coaching in sport owe a duty to exercise reasonable care in so doing, which will usually require an assessment of the ability of the participant to execute what is being required safely: see Charlesworth & Percy on Negligence (15th ed.) §8-28.

22.In Wai Yip Hin v Wong Bo Kit [2009] 3 HKC 362 at §§31-42, the Plaintiff was a student of a Kendo class. He suffered personal injuries during the class and sued the defendant, the teacher of the class, for damages. The Court set out the following principles in relation to teachers’ duties to students:

“31. It is well established that a teacher owes a duty of care to his students. It is a teacher’s duty to take all reasonable and proper steps to prevent any pupil suffering injury (para. 8-181 Charlesworth & Percy on Negligence 11^th Ed.)

32. In Smith v Horizon Aero Sports Ltd et al (1981) 130 DLR (3d) 91, it was held that the high degree of care required by the law in a teacher-student relationship does not depend simply on the student being a young person. It may apply where the student is an adult and it depends upon many factors which include the relationship of the student to the teacher, the student’s relative inexperience in the area of activities as known to the teacher, the magnitude of risk associated with the activity and the degree of harm that may reasonably be expected to flow from the risk if it materialises.”

23.In deciding whether there was a breach of duty, it was held in Wyong Shire County Council v Shirt and others (1980) 29 ALR 217 at 221, cited in §63 of Wai Yip Hin (supra), that:

“…the tribunal must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have…” (Emphasis added).

24.The Plaintiff attended trial to give evidence in Court. The Plaintiff adopted her Witness Statement dated 1 December 2023 (“the Witness Statement”) which supports the matters pleaded in the SOC. During her oral evidence, she further explained to the Court the following:

(a)  She was instructed by the 2^nd Defendant to lie on the thin mat facing downwards, while the 2^nd Defendant will press her back and stretch her body from her neck to her leg. Apart from lying on the mat, the 2^nd Defendant did not need to move. According to what the 2^nd Defendant told the Plaintiff, this would allow her muscles to stretch and relax (see illustration of the stretching at p. 196 of the Trial Bundle), i.e. the Stretch;

(b)  When the 2^nd Defendant pressed the area of the Plaintiff’s back near her chest, the Plaintiff experienced great pain and she screamed. She told the 2^nd Defendant that it was very painful. The 2^nd Defendant said he will try pressing again and he tried once more, but the pressing resulted in pain again. The 2^nd Defendant then stopped the Stretch;

(c)  Each class will last for around 45 minutes. This was the fifth or sixth lesson in which she did the Stretch. In the previous classes, the Stretch did not result in any pain. The class before the one in which the Accident happened was one week ago;

(d)  After the Accident took place, the Plaintiff texted the 2^nd Defendant a few days later to inform him that she was still experiencing pain. The 2^nd Defendant suggested the Plaintiff to do a few stretching exercises herself. However, those exercises could not relief the Plaintiff’s pain;

(e)  As to the Plaintiff’s current condition, she referred to paragraphs 25 of her Witness Statement and supplemented that she has difficulty exerting force using her right arm and she usually uses her left arm and hand now. She has difficulty and will experience pain when bending her right wrist. Her right breast cannot withstand force, so she can only sleep on the bed turning right for one or two minutes, and then she has to change her posture to face the ceiling. When she leaves her bed, she can only use her left body to exert force to bring her body up. When she sneezes, her right chest will sometimes experience mild pain.

25.The Plaintiff’s evidence is consistent with the Whatsapp communication between her and the Defendant, which shows in a photograph sent by the 2^nd Defendant to the Plaintiff that there were only 2 very thin mats on the floor of the Premises. Further, the Whatsapp recorded that on 7 March 2022 (2 days after the Accident), the Plaintiff informed the 2^nd Defendant that she experienced pain in the chest bone area in the morning. In the Whatsapp messages between the Plaintiff and the 2^nd Defendant from 22 March 2022 to 26 April 2022, the Plaintiff said that she screamed when the Accident happened and complained about the equipment in the Premises. The 2^nd Defendant did not deny any of the Plaintiff’s above complaints.

26.As the 2^nd Defendant did not attend trial, there is no evidence from the 2^nd Defendant to rebut the Plaintiff’s version of events.

27.For the above reasons, I am prepared to accept the Plaintiff’s evidence in full.

28.On the issue of liability, I find that the 2^nd Defendant owed the Duties to the Plaintiff and that he was in breach of them in causing the Accident. In particular:

(a)  I agree with the Plaintiff that the Premises of a 30 - 50 sq feet size was too small for the Plaintiff to properly move her body during the Class. Further, the mat was too thin and could not provide sufficient protection to the Plaintiff when she did the Stretch;

(b)  As the Stretch only involved the 2^nd Defendant pressing and stretching the Plaintiff’s body (without the need for the Plaintiff to do anything else apart from lying on the mat), it is more likely than not that the Accident was caused by the 2^nd Defendant’s act of pressing/stretching. Further, the 2^nd Defendant continued with the pressing/stretching even after the Plaintiff screamed out of pain;

(c)  Given the above, the 2^nd Defendant has failed to exercise due care and skill as the instructor of the Class to take all the necessary precautions or provide a safe place for the Plaintiff to take the Class in the Premises. In conducting the Class and doing the Stretch in the Premises, the Defendant had exposed the Plaintiff to risk of injury which the 2^nd Defendant knew or ought to have known in the conduct of the Class.

29.The burden of proving contributory negligence falls on the 2^nd Defendant. Without adducing any evidence, the 2^nd Defendant’s case of contributory negligence must fail.

D.  THE QUANTUM OF DAMAGES WHICH THE 2^ND DEFENDANT IS LIABLE TO THE PLAINTIFF

30.Moving on to quantum, the Plaintiff claims the following heads of damages in the SOD:

(a)  Pain, suffering and loss of amenities (“PSLA”) in the sum of HK$300,000;

(b)  Loss of earnings in the sum of HK$3,400;

(c)  Loss of earning capacity in the sum of HK$108,000 (as updated in the Plaintiff’s Opening Submissions dated 24 January 2025 (“P’s Opening”));

(d)  Special damages in the sum of HK$24,942;

(e)  Future medical expenses in the sum of HK$20,000. In P’s Opening, she indicated that she would not pursue this head of damages.

31.As the Plaintiff stated in the SOD, due to the Accident, she is suffering from the following personal injuries:

(a)  Fracture anterior axillary portion of the right 5^th rib;

(b)  Dorsal scoliosis convex to right;

(c)  Right chest wall pain;

(d)  Impulse pain with coughing;

(e)  Right shoulder pain;

(f)  Right medical scapular border tenderness;

(g)  Right lateral chest wall over the latissimus dorsi muscle pain and tenderness.

32.The Plaintiff relies on the X-Ray Report dated 15 March 2022 by Dr Lai Bing Man (“the X-Ray Report”); the Medical Report by Dr Kuan Ying Fatt, specialist in orthopaedics, dated 6 July 2022 (“Dr Kuan’s Report”); and the Medical Report of Dr James Kong, specialist in orthopaedics and traumatology, dated 3 May 2024 (“Dr Kong’s Report”).

33.As confirmed by the X-Ray Report, the Plaintiff suffered from a fracture of the anterior axillary portion of her right 5^th rib as result of the Accident.

34.According to Dr Kuan’s report, the Plaintiff’s condition has improved over time:

(a)  On 22 March 2022, Dr Kuan’s diagnosis was that the Plaintiff was improving with decreased right chest wall pain and decreased impulse pain with coughing;

(b)  On 29 March 2022, Dr Kuan diagnosed the Plaintiff to be “much better with decreased right chest wall pain” and there was not much impulse pain with coughing. On Dr Kuan’s examination, the neck AROM[1] was full. There was no tenderness over the right latissimus dorsi muscle. The right anterior chest wall was not tender.

35.Dr Kong interviewed and examined the Plaintiff on 25 April 2024 before he prepared the Dr Kong’s Report. In the said report:

(a)  Dr Kong confirmed that the Accident resulted in the Plaintiff suffering right chest injury with undisplaced facture of right 5^th rib;

(b)  He recorded that at the examination which he conducted with the Plaintiff, the latter complained of mild soft issue right chest residue with tightness and pulling sensation;

(c)  He recorded that X-ray of chest and right chest ribs revealed that the undisplaced facture of right 5^th rib has healed with satisfactory alignment;

(d)  He opined that the medical evidence is consistent with satisfactory degree of recovery after conservative treatment of medications and physiotherapy. The Plaintiff has mild right chest soft tissue residue after the Accident;

(e)  He opined that the Plaintiff should be able to resume her previous occupation as a clerk/receptionist. She may experience increase in soft tissue chest residue on stretching and lying down. There will be mild soft issue chest residue with reasonable reduction of working efficiency and endurance because of her residual orthopaedic impairments;

(f)  He took the view that the Plaintiff’s social activities should not be affected;

(g)  He opined that orthopaedically, the Plaintiff has mild soft issue right chest residue. Making reference to the 6^th Edition of AMA Guide to Evaluation of Permanent Impairment, Dr Kong opined that the Plaintiff suffered 1% whole person impairment and 1% loss of earning capacity.

36.I will deal with each of the Plaintiff’s heads of claim below.

PSLA

37.Having considered the Plaintiff’s evidence, including the Witness Statement, her oral evidence and the medical reports adduced by her, I will grant HK$200,000 for PSLA.

38.The Plaintiff provided the following 3 authorities for this Court’s reference in assessing the amount to be awarded for PSLA.

39.In Yung Wai Lok v Wah Koon Design Engineering Ltd [2024] HKDC 983, the plaintiff was 45 when the subject accidence took place. He was a general worker carrying out decoration work at the time of the accident. The plaintiff was diagnosed to have right humerus and right rib injuries resulting in right shoulder greater tuberosity with 2% loss of earning capacity. He was awarded PSLA in the sum of HK$350,000.

40.In Chow Ka Kat v Yiu Hsing Development Limited (unrep, HCPI 495/2010, 19 June 2012), the plaintiff was 53 when the subject accident befell him, and he was a restaurant manager at that time. The plaintiff fell from a steep and narrow staircase onto the floor. He was unconscious for around 5 minutes. He received medical treatments which involved short periods of hospitalisation with follow-up management and physiotherapy and occupational therapy sessions. He sustained a severe right shoulder contusion injury complicated by frozen shoulder. The Court found that the plaintiff ought to be able to return to managing a restaurant without limitation. The Court awarded HK$250,000 for PSLA.

41.In Wong Ching Ha v Manbright Company Limited trading as Ngan Lung Restaurant (unrep, DCPI 886/2007, 31 March 2008), the plaintiff suffered from blunt trauma to the right shoulder with the injury affecting her dominant upper part. There was also bone bruising and swelling inside the bone (bone oedema) and inflammation of the rotator cuff tendons. At the time of the trial, she continued to suffer from right shoulder pain. She was awarded HK$200,000 for PSLA.

42.I consider the plaintiff’s condition in the present case to be less serious than those suffered by the victims in the above cases. The Plaintiff’s own expert Dr Kong confirmed that the Plaintiff only experienced mild soft issue chest residue with tightness and pulling sensation. Dr Kong opined that the Plaintiff would be able to resume her previous occupation of acting as a clerk/receptionist (although with reduced efficiency) and that she should be able to resume her social activities without impairment. Taking into account all the circumstances and inflation, I consider the appropriate amount for PSLA to be HK$200,000.

Loss of earnings

43.Dr Kuan granted 14 days sick leave from 15 March 2022 to 28 March 2022 to the Plaintiff, see Dr Kuan’s Report.

44.As shown in the Monthly Salary Account (僱員每月薪金結算表) (“Monthly Salary Account”) of the Plaintiff for the period 1 March 2022 to 31 March 2022, the monthly salary of the Plaintiff for March was HK$14,500.

45.The Plaintiff accepts that she has received 80% of her salary during her sick leave. Her loss of earnings during the sick leave period was therefore 20% of her salary, being HK$1,353.33 (round off to HK$1,353) (HK$14,500 X 14 days/ 30 days X 20%).

46.As for the Plaintiff’s claim for loss of punctuality award of HK$2,000 (勤工獎), it is unclear from the documentary evidence how the above award was paid or calculated. I am not prepared to grant this amount.

47.To conclude, the amount of loss of earnings which I will award is HK$1,353.

Loss of earning capacity

48.The Plaintiff did not cite any case to support her claim under this head. According to the guiding principle for making an award for loss of earning capacity as stated in Moeliker v A Reyrolle & Co Ltd [1977] 1 WLR 132 at 141, cited in Yung Wai Lok v Wah Koon Design Engineering Ltd (supra) at §37:

“Where a plaintiff is in work at the date of the trial, the first question on this head of damage is: what is the risk he will at some time before the end of his working life lose that job and be thrown on the labour market? I think the question is whether there is a ‘substantial’ risk or is it a ‘speculative’ or ‘fanciful’ risk…If the court comes to the conclusion that there is no ‘substantial’ or ‘real’ risk of the plaintiff losing his present job during the rest of his working life, no damages will be recoverable under this head”

49.While Dr Kong in his report assessed the Plaintiff to have suffered a 1% loss of earning capacity, this was only a theoretical assessment based on the extent of the Plaintiff’s injury. On the other hand, Dr Kong took the view that Ms. Wu should be able to resume her previous occupation as a clerk/receptionist, only with reduced work efficiency and endurance. Most importantly, as a matter of actual fact, the Plaintiff has resumed her previous occupation. According to the Plaintiff’s latest Monthly Salary Account before the Court (for the month 1 March to 31 March 2023), the Plaintiff received the full amount of her salary of HK$18,000, net Mandatory Provident Fund premium payment.

50.As there is no clear that the Plaintiff has been exposed to a substantial or real risk of losing her current job or being disadvantaged in the labour market, I am not prepared to grant this head of claim.

Special Damages

51.The Plaintiff claims the following special damages:

(a)  Medical / consultation / treatment fee in the sum of HK$10,270

(b)  Traveling expenses in the sum of HK$500

(c)  Future follow-up medical / consultation / treatment fee in the sum of HK$11,172

(d)  Tonic Food in the sum of HK$3,000

52.With respect to medical/consultation/treatment fee, only the sum of HK$4,770 is supported by receipts before the Court. I will only allow HK$4,770 for this item.

53.With respect to travelling expenses, no receipts have been provided. I will not allow this item.

54.As for the future follow-up medical/consultation/treatment fee, there is no receipt in support of the claim. I will not allow this item.

55.As for tonic food, the Court may award a reasonable sum for this item even where no documentary proof has been produced: see Tang Yuet Yi, a minor by Tiu Kwai King v Leung Man Chow [2018] HKDC 985, cited in Yung Wai Lok (supra) at §44. While the sum of HK$3,000 was not supported by any receipt, I am prepared to allow it based on the Plaintiff’s oral evidence that she needs to take Panadol and calcium capsules from time to time. I accept that the sum of HK$3,000 is reasonable.

56.The total amount which I will allow for special damages is HK$7,770.

Disposition and Costs

57.I order the 2^nd Defendant to pay the following damages to the Plaintiff:

Item	Amount (HK$)
PSLA	200,000
Loss of earnings	1,353
Special damages	7,770
Total	209,123

58.Interest on special damages at half of the judgment rate from the date of the Accident to the date of Judgment, and thereafter at judgment rate until payment.

59.Interest on general damages at 2% per annum from the date of the service of the Writ to the date of this Judgment, and thereafter at judgment rate until payment.

60.I make a costs order nisi that costs of and occasioned by the Plaintiff’s claim against the 2^nd Defendant (including any costs reserved) be paid by the 2^nd Defendant to the Plaintiff, with Certificate for Counsel for the trial. The order nisi shall become absolute unless an application to vary is made within 14 days from the date of this Judgment.

Mr Kelvin Wong, instructed by Ho Kan Lawyers, for the Plaintiff

The 2^nd Defendant was unrepresented and was absent