Chui Kwok Fai v. Sino Estates Management Ltd

DCPI 3911/2021

[2025] HKDC 1880

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 3911 OF 2021

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BETWEEN

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JUDGMENT

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Introduction

1.On 4 May 2021, the plaintiff slipped and fell at the southern entrance of the 2/F podium of Exchange Tower, 33 Wang Chiu Road, Kowloon Bay, Kowloon, Hong Kong (“the scene”) and sustained injuries as a result.

2.Exchange Tower was managed by the defendant. The plaintiff, as visitor of the scene, sued the defendant as the occupier thereof.

The plaintiff’s case

3.On 4 May 2021 at about 9:10 pm, the plaintiff finished dinner with his friend at Sparkling House Seafood & Oyster Bar. After leaving the restaurant, he entered the 2/F Podium. While walking past the scene, the plaintiff slipped and fell on the floor.

4.The plaintiff said that the floor at the scene was wet. The accident was caused by the negligence and/or breach of the common duty of care under the Occupiers Liability Ordinance, Cap 314 on the part of the defendant, its servants and/or agents.

The defendant’s case

5.The defendant denied that the accident occurred due to the wet floor of the scene. The defendant further denied that the accident was caused by the negligence and/or breach of statutory duty and/or common duty of care owed by the defendant, its servants and/or agents.

6.The defendant averred that if the accident occurred in the manner as alleged, it was caused and/or contributed by the negligence of the plaintiff.

Liability

7.The plaintiff said that on 4 May 2021, he had a dinner appointment with his friend, Mr Brian Chan (“Mr Chan”) at Sparkling House Seafood & Oyster Bar at Shop 203, 2/F Podium Garden, Exchange Tower, 33 Wang Chiu Road, Kowloon Bay, Kowloon, Hong Kong.

8.During the dinner at about 8:00 pm, there was a heavy rainfall. As a matter of fact, amber rainstorm warning was issued at 7:15 pm.

9.They finished dinner at about 9:00 pm. The rain had already stopped.

10.The two of them left the restaurant and walked along a covered walkway. Through the Podium Garden entrance, the plaintiff walked into the covered area on 2/F. As the floor he stepped on had standing water thereon（有積水）, he slipped at a place near the entrance (ie the scene) and sat on the floor. When he slipped on his left leg, his body weight rested on his right ankle. His right ankle was injured as a result.

11.Mr Ian Chu, counsel for the plaintiff, made reference to the CCTV footage capturing the scene and submitted that the rain began at around 20:50 hours. The door was blown wide open by the wind and some visitors between 20:51:33 and 20:53:51 hours. A lot of rain could have already entered the scene during this period. At 21:45:28 hours, another visitor in black T-shirt also slipped when he was walking on the floor near the place where the plaintiff slipped. The plaintiff observed condensing water（冷凝水）appeared on the floor of the scene. Mr Chu submitted that it is more than likely that water was brought or entered into the southern entrance which caused wetness on the floor of the scene.

12.Mr Alfred Cheng leading Mr Raymond Tsang, counsel for the defendant, submitted that the plaintiff has put forward 3 inconsistent alternative cases.

13.Mr Cheng pointed out that in the statement of claim, the plaintiff said that the accident occurred due to the wet floor at the scene. The wetness was alleged to be a patch of water（積水）(with due respect, I would prefer the description of standing water) on the floor near to the southern entrance.

14.Secondly, it is pleaded in the reply that the water absorbent carpet lining the indoor section of the southern entrance failed to absorb water when visitors walked past them.

15.Thirdly, Mr Chu put to Mr Wong, the defence witness, that the alleged wetness was caused by the rainwater blown into the indoor section through the southern entrance, as the defendant failed to keep the entrance doors shut during rainy conditions.

16.Mr Cheng submitted that it is most probable that the plaintiff slipped solely because his shoes failed to reasonably protect him from slippage.

17.To my mind, standing water on the floor is very different from condensation water on a surface.

18.By definition, condensation water is formed when water vapour in the air cools down to its dew point, causing it to condense into droplets on a surface. Therefore, condensation on the floor occurs when the temperature of the floor surface is cooler than the surrounding humid air. It is a natural process.

19.By standing water on the floor, it implies that the water was brought from an external source and stayed on the floor. In case of indoor area, the water is most likely brought by human activity. The size of the standing water depends on the amount of water that was brought to the particular spot.

20.The significance of the differentiation will be apparent below.

21.Turning to the CCTV footage capturing the scene, the following observations are relevant.

22.It can be seen that there were very few people going in and out of the southern entrance. The door through which the plaintiff and Mr Chan entered the indoor area (“the door”) was shut automatically and tightly after it was pushed open by users. However, from 20:29 hours onwards, it did shut automatically but not completely. The door was left ajar with a small opening.

23.At 20:38 hours, a female using a walking stick walked in through the door. She walked along the southern entrance back and forth and then left the CCTV capture area. She was wearing sport shoes. She did not appear to have experienced any slippery floor.

24.At 20:51:33 hours, the door opened wider until 20:53:51 hours.

25.At 21:01:13 hours, the door shut automatically and closed completely. It remained so when the plaintiff and Mr Chan entered the indoor area through the door at 21:04:03 hours.

26.After the plaintiff and Mr Chan entered the indoor area, they both stepped on and walked past the water absorbent carpet right next to the door. When the plaintiff was on his 2^nd step and stepped on the 3^rd line of tiles after passing the water absorbent carpet, he slipped and fell on the floor.

27.The moment immediately before and the manner in which the plaintiff fell are worth noting.

28.After the plaintiff and Mr Chan entered the indoor area, Mr Chan immediately walked towards his right whereas the plaintiff walked straight but slightly to his right (see 21:04:04 hours). While Mr Chan maintained his direction, the plaintiff made a manoeuvre to his right (see 21:04:05 hours). In the course of doing so, the inner side of the sole of the plaintiff’s left shoe touched the floor and slipped. When the body of the plaintiff was descending to the floor, the heel of his right shoe slided clockwise for about 90 degrees (see 21:04:06 hours).

29.In the hour prior to the accident, there were 10 individual visitors who entered the indoor area through the door stepped on the same tile on which the plaintiff slipped (see 20:23:56 hours, 20:29:56 hours, 20:44:54 hours, 20:49:27 hours, 20:50:26 hours and 20:52:54 hours). Four (one of whom was a female) of them were wearing leather shoes. None of them was holding an umbrella. Nor was any of them appeared to have been affected by rain. They all walked naturally and did not seem to have paid attention to the condition of the floor.

30.From the above observations, it is abundantly clear that no water was brought from the outside to the scene where the plaintiff fell. It is highly unlikely that there was standing water at the scene as suggested by the plaintiff. The scene was not slippery to people walking normally even in leather shoes.

31.When cross-examined, the plaintiff said that condensation water droplets were on the floor where he slipped due to the temperature difference between the outdoor area and the indoor area and the outdoor area was in high humidity.

32.What the plaintiff said is against the law of nature.

33.As commonly known, condensation occurs in high humidity environment, which, according to the plaintiff, is the outdoor area.

34.As can be seen from the CCTV footage, the 2 doors at the southern entrance were shut automatically after being pushed open by visitors. They remained shut as a matter of course save the half an hour mentioned in paragraphs 22, 24-25 above. Given the opening was small for the majority of the time (the wider opening lasted only for 2 minutes 18 seconds), I do not think this would have caused the large indoor area becoming humid and in turn led to condensation on the floor surface.

35.The gait of the visitors walking in and out of the door shows that they did not experience any slippery floor. Particularly, the female using walking stick mentioned in paragraph 23 above, who walked to and fro of the southern entrance with ease, is cogent evidence that the floor was not slippery even in the eyes of a person with walking difficulty.

36.Accordingly, I do not accept that there was condensation water at the scene.

37.The shoes the plaintiff was wearing at the time of the accident were produced as exhibit.

38.The first thing to note is that the rubber sole and heel of both shoes are quite worn out. More significantly, the inner edge of the sole of the left shoe is comparatively more worn out than its right counterpart. It has formed a slanting edge without frictional threads. Furthermore, the frictional threads of the sole of the left shoe closer to the inner side are shallower than those of the right shoe.

39.In my judgment, when the plaintiff made the manoeuvre to his right, the inner side of the sole of his left shoe touched the floor first. As such, his left shoe could not grip the floor and slipped. By reason of the sudden jerk due to the fall, the heel of the plaintiff’s right shoe also could not grip the floor and made a clockwise turn of about 90 degrees. The plaintiff’s fall was not due to the slippery floor as alleged. The alleged standing water or condensation water on the floor are both the plaintiff’s fabrication.

40.By reasons of my findings aforesaid, the plaintiff’s claim is bound to fail.

Quantum

41.For the sake of completeness, I also deal with the question of quantum.

Pain, suffering and loss of amenities (“PSLA”)

42.After the accident, the plaintiff was admitted to the Out-patient Department of St Teresa’s Hospital. Upon physical examination, gross ankle swelling was shown. X-ray examination indicated fracture right lateral malleolus and right calcaneal bony spurs. An operation of internal fixation for the fracture right lateral malleolus was performed. Screws and plate had been inserted for internal fixation of the fracture right lateral malleolus. He was discharged on 6 May 2021. A total of 3 months and 27 days of sick leave were granted. He attended follow-up treatment until 10 June 2021. In the last follow-up treatment, there was residual soft tissue ankle swelling.

43.Mr Chu asked for $300,000, citing Hui Ka Kit v Yeung Yan Wai Anson [2024] HKDC 1516, Zhao Huijun v Wilson Parking (Holdings) Ltd [2023] HKDC 591, Lam Tuen Ming v Perfect Logistics (HK) Ltd, HCPI 200/2011, 12/3/2013, unreported and Hu Wan v Sanwo International Co Ltd [2021] HKDC 237.

44.Mr Cheng agreed to a sum of $250,000, citing Li Chi Sing v Equal Link Ltd, DCPI 1930/2011, 6/3/2013, unreported, Tamang Tikaram v Tong Kee Co Ltd, HCPI 19/2013, 1/4/2015, unreported and Tsui Wai Ho v Pride Glory Ltd trading as Ziti’s [2019] HKDC 657.

45.In Lam Tuen Ming (supra), the plaintiff’s right foot was run over by a forklift truck and suffered a right lateral malleolus fracture along with soft tissue crush injury of the right foot. He underwent an open reduction and plating of the right ankle operation. He was admitted for 2 further operations for removal of screw and implants. He was awarded $300,000 on PSLA.

46.The injury of the plaintiff bears close resemblance to that in Lam Tuen Ming. An award of $300,000 is justified.

Pre-trial loss of earnings

47.At the time of the accident, the plaintiff was a senior project manager. There is no dispute that his then monthly income was $79,025 and that he received full salary during the sick leave period between 5 May 2021 and 22 September 2021, a total of 141 days.

48.Mr Cheng submitted that there is a distinction between payments made as salary to which the plaintiff received as of right and ex gratia payments. The legal principles have been summarized by Deputy Judge Carlson in Chan Ka Lim v Chow Wai Kin, HCPI 727/2004, 14/11/2007, unreported:

(a) whether the amount received should be deducted depends on the nature of the payment;

(b) in determining the nature of the payment, the court looks at the substance, rather than the label, of the payment. It will consider the actual arrangements made and the particular circumstances of the case;

(c) if the payment is salary properly-so-called which the plaintiff received as of right, deduction is required;

(d) but if the payment is ex gratia or a loan only, no deduction should be made. It is sufficient if there is an “understanding” or “expectation” of repayment, or even that the plaintiff feels under a moral obligation to repay.

49.There is no counter argument from Mr Chu.

50.The plaintiff was of course entitled to sick leave allowance under the Employment Ordinance, which, is equivalent to 4/5 of his wages during his sick leave. Such pay was his entitlement as of right. Deduction should therefore be made.

51.Mr Cheng rightly accepted that the payments over and above the statutory entitlement should be treated as ex gratia in nature and is not deductible.

52.The plaintiff suffered no loss of MPF as his employer was required by law to make MPF contribution during his sick leave.

53.Therefore, the plaintiff is only entitled to $74,283.5 ($79,025 x 1/5 x 141/30) under this head.

Loss of earning capacity

54.This head of damage arises where a plaintiff is at the time of the trial in employment, but there is a risk that he may lose this employment at some time in the future, and may then, as a result of his injury, be at a disadvantage in getting another job or an equally well paid job: see the speech of Lord Browne, LJ in Moeliker v A Reyrolle & Co Ltd [1977] 1 WLR 132 at p140B.

55.After the accident, the plaintiff continued to work for the same employer for 2 more years until 18 August 2023. He was then employed by Quad-Tech Engineering (Hong Kong) Co Ltd 2 months later with similar initial pay of $75,000 which was increased to $85,000 after 3 months.

56.I do not accept that the plaintiff had suffered any loss of earning capacity.

Special damages

57.The plaintiff claimed medical expenses in the sum of $78,917, future medical expenses in the sum of $35,000, tonic food in the sum of $10,000, massage treatments in the sum of $47,640 and travelling expenses in the sum of $5,000.

58.Mr Cheng agreed to the claim of medical expenses in the sum of $78,917, tonic food in the sum of $2,000 and travelling expenses in the sum of $1,000.

59.Mr Cheng took issue with the claim of massage treatments and future medical expenses.

60.In his evidence, the plaintiff said that due to the pain in his right ankle, he put more weight on his left leg. This has caused pain in his lower back and back muscles. Therefore, he needed to have body massage.

61.Mr Cheng commented that the plaintiff only mentioned of his back pain for the first time in cross-examination. He invited this Court to only allow the expenses on foot massage in the sum of $13,060.

62.In my view, for people with ankle pain like the plaintiff, it is natural for them to put more weight on the other leg in walking. Back pain would have been caused as a result. I would therefore allow the massage expenses in full.

63.The future medical expenses relate to the removal of the metal plate in his ankle. I see no reason not to allow such claim.

64.I am of the view the $5,000 on tonic food and $2,000 on travelling expenses are reasonable.

Conclusion and Order

65.In the result, the plaintiff’s claim is dismissed.

Costs

66.I make a costs order nisi that the plaintiff shall pay the defendant the costs of this action with certificate for one counsel, to be taxed if not agreed.

67.In the absence of any application for variation by summons within 14 days from the date of this judgment, the costs order nisi shall become absolute.

Mr Ian Chu, instructed by Damien Shea & Co, for the Plaintiff

Mr Alfred Cheng leading Mr Raymond Tsang, instructed by Johnson Stokes & Master, for the Defendant