Mrs O.B. Grenham v. Attorney General
Read the full judgment text of HCA 31/1969 on BabelCite. This High Court CFI judgment was delivered on 30 October 1969.
1. At some time between 9.00 and 1000 a.m. on the morning of the 18th of January the plaintiff, Mrs. Grenham, a middle-aged married woman, reversed her car into a car parking space on the 7th floor of the Garden Road Multi-Storey Car Park. She then took off her shoes in which she had been driving and put on a pair of low-heeled walking shoes. The 7th floor was relatively empty at that time and Mrs. Grenham was able to park her car three car parking spaces away from the lift which would take her
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HCA000031/1969 IN THE SUPREME COURT OF HONG KONG ORIGINAL JURISDICTION ACTION NO. 31 OF 1969 -----------------
Coram: Rigby, S.P.J. Date of Judgment: 30 October 1969 ----------------- JUDGMENT ----------------- 1. At some time between 9.00 and 1000 a.m. on the morning of the 18th of January the plaintiff, Mrs. Grenham, a middle-aged married woman, reversed her car into a car parking space on the 7th floor of the Garden Road Multi-Storey Car Park. She then took off her shoes in which she had been driving and put on a pair of low-heeled walking shoes. The 7th floor was relatively empty at that time and Mrs. Grenham was able to park her car three car parking spaces away from the lift which would take her down to the ground floor. The two car parking spaces next to her and between her and the lift were also empty. 2. According to the plan produced in evidence, the distance from the near side of her parked car to the door of the lift would be about 24 feet. Mrs. Grenham walked along the continuous white line marking the outer edge of the three car parking spaces and then, instead of continuing to the end of that white line, going round the pillar at the end of the white line and then turning left-handed so as to face the door of the lift, she did what I would have done and what, I imagine, 99 out of a 100 other people would have done; she cut across the edge of the empty car parking space nearest to the lift with the object of taking the quickest way to the door of the lift. The top of the ramp up which cars proceed to the 7th floor is approximately opposite the lift to which I have referred. The cars coming up the ramp to the 7th floor (and indeed, all cars to all floors) have to turn left-handed at the top of the ramp and, for this purpose, have to make a fairly wide sweep before turning left-handed for the purpose of proceeding along the driveway to take up a position in a car parking space. 3. Persons who have parked their cars and wish to descend by the lift, have to proceed along the edge of the driveway, keeping a wary eye for approaching traffic since there is no walking space expressly set out for them. At the same time, it is to be said that the driveway is 24 feet wide and does, in fact, leave ample room for pedestrians to walk safely along the outermost edge of the parking spaces to proceed to the lift. 4. The plaintiff said that she cut across the edge of the car parking space, rather than go round the pillar, because she was aware of the speed at which cars, having come up the ramp, swing around in a fairly wide sweep and then proceed, at a fairly fast speed, down the driveway to find a car parking space, and she, therefore, thought it was safer to cut across the car parking space, as the best and safest way to get to the lift. Whilst there may be some ground for this view, I think the more likely reason why she cut across this empty car parking space was because it was, of course, the quickest way to the lift rather than going round the pillar. The next thing that she knew was that she was lying flat on her face and chest, with her right arm extended and in a position which gave her reason to believe that her arm was broken. She managed to struggle to a sitting position and called for assistance. A Chinese male, a car park attendant, came to her help, and also a European couple, a Mr. George Fournier and a Mrs. Rasmussen. Mr. Fournier drove the plaintiff to the Canossa Hospital. 5. It was found that the Plaintiff had an irregular fracture of the neck of the right humerus. There was extensive bruising of her chest. The arm was set under anaesthetic. Thereafter she was in hospital for just over a fortnight. During this time, as one might expect, she suffered considerable pain. The operation was not an entire success and another operation was carried out on the 7th of March, after which she remained in hospital for a further three weeks. There is still a limitation of movement of the right arm as a result of which she cannot, without very considerable difficulty, reach upwards to the back of her hair in order to do her hair, and she cannot, at all, reach downwards and backwards to fasten her brassiere behind her. 6. The plaintiff is the Managing Director of Grenley's Limited, a well-known china shop in Hong Kong. She is, I am fully satisfied, an energetic and able-bodied person, and I have no doubt that the limitation she has suffered by the restricted use of her right arm, a limitation which is likely to be permanent, is a substantial impediment to her both in her private life and in the course of her business. 7. The plaintiff claims that her fall was directly due to an oily patch on the surface of the empty car parking space on which she slipped. 8. The Garden Road Multi-Storey Car Park is a car park operated by and under the control and occupation of the Urban Council and Urban Services Department, a Department of Government. 9. The plaintiff was, at the material time, the holder of a monthly car parking ticket enabling her, as an invitee, to use and occupy the car park. She now claims damages against the Government of Hong Kong, as represented by the Attorney General, for negligence and breach of the statutory duty of care on the part of the Car Park Management and their attendants. That duty of care, as broadly defined in Section 3(2) of the Occupiers Liability Ordinance (Cap 314) is:
In my view there are three main questions for consideration and determination namely,
It is clear that the plaintiff herself thought the cause of her downfall was due to her having slipped on an oily patch because, indeed, she herself said so at an early stage to Mr. Fournier when he first appeared on the scene. However, after the accident Mr. Grenham, the plaintiff's husband, having first gone to the hospital and seen the plaintiff, returned to the 7th floor Car Park between 11.30 and 12.00 noon that same day. The plaintiff's car was still parked where she had left it on the third car parking space from the lift. Mr. Grenham examined the first car parking space - the one nearest the lift. According to his evidence, in that car parking space he found a large patch of oil and immediately around it was an oily patch - not readily discernible because the light was not good - covered with dust. Mr. Grenham - although he made no attempt to do so - said that in several places he could have scooped up oil and dust with his fingers and, I think, he estimated it to be 1/8'' thick. The 18th of January was a Thursday. Mr. Grenham went to the same place again on Friday and Saturday - partly, as he says, through curiosity and partly to see whether any attempt had been made to clear the mess up. On both days the condition was the same, except possibly there was a greater accumulation of dust. On Sunday Mr. Grenham went there with a photographer who took the six photographs which have been produced in evidence in court. Although the photographs are of very considerable assistance in showing the immediate scene of the accident and the discolorations on the particular car parking space it is quite impossible to tell from those photographs whether the dark patch to which Mr. Grenham referred - and which is clearly visible in the photographs - is in fact a patch of standing oil or simply a black patch on the floor indicating where oil has fallen but has dried up. The car park attendant responsible for the cleaning of the 7th floor was at the scene almost immediately after the incident and whilst the plaintiff was still there. He, together with the foreman who is responsible, among other things, for the cleaning arrangements of the car park, both said that they inspected the car parking space nearest to the lift shortly after the accident had occurred. Whilst admitting - as is, indeed, apparent from the photographs themselves - that the floor was discoloured, both of them denied that there was any standing oil, or slippery patch due to standing oil, on that car parking space. Mrs. Grenham herself said that when she got to the hospital her left-hand was covered with "muck" which had to be washed off. If there was "muck" on her hand that is, of course, consistent with her having fallen on a slippery, oily, surface. Two points of some importance were taken by Mr. Keil, Crown Counsel, who appeared for the defence. Mr. Grenham admitted that when he went there he found no mark on the ground; it is said one would have expected to find some such mark if a person had slipped or fallen there on an oily surface. Secondly, the plaintiff was wearing a fur coat at the time of the accident. The plaintiff said that after the accident the coat was dusty, but the dust was brushed off and it was unnecessary to send it to the cleaners. There was apparently no oil on the coat. It is said by Mr. Keil that if a person slips and falls on an oily surface one would at least expect to find some traces of oil on the person's outer garments after that fall. I am not convinced that that is necessarily so, since it must depend upon the nature of the fall and the person's actual position when falling. The plaintiff said that her feet must have completely slipped from under her, her knees were not even bruised and she was thrown forward on her face, the upper part of her body, her chest, coming hard into contact with the ground. The fur coat that she was wearing was of finger-tip length. In such circumstances it might well be that, being thrown forward, her coat would have avoided any immediate contact with the oily surface upon which she had slipped. 10. There is, undoubtedly, a direct conflict of evidence as to the actual condition of the parking space and whether or not there was the bare patch of standing oil and a dust-covered oily surface around it. There is, however, the additional evidence of Mr. Fournier the driver who arrived on the scene and drove the plaintiff to hospital. Mr. Fournier is a retired banker. He said that he asked the plaintiff what had happened and she replied to him but, not unnaturally, he did not examine the scene at the time, being more concerned in getting her to hospital. However, he said that when he again parked there on the 7th floor - either later that same day or the next day - he saw "a spot of oil" at the space where he had seen the plaintiff sitting after the incident, and he noticed that it was still there a few days later. That evidence, if true, strongly corroborates the testimony of Mr. Grenham, not only that he saw a patch of oil shortly after the incident, but that it remained there, unattended to, for some days afterwards. Both on the issue of credibility and on the balance of probabilities, I am satisfied that the plaintiff's fall was directly due to her slipping on an oily patch on this car parking space - the space nearest to the lift - and that this oily patch remained there, and was visible there, for some days afterwards. 11. Evidence was given in some detail as to the arrangements then in force for cleaning the car parking spaces. The car park holds 720 cars. There are three attendants responsible for cleaning the seven floors. They commence work at 8.00 a.m. The first attendant is responsible for cleaning the ground floor car parking spaces - and that floor generally -, the second for floors 2, 3 and 4, and the third for floors 5, 6 and 7. 12. There were 30 plastic cones in use. At the end of the day, either the night duty attendant or the foreman in charge, would inspect all floors and place a cone - one of the 30 - in any car parking space where oil had leaked from a parked car or which, for any other reason, he considered required particular attention. Cars coming in the next morning would, therefore, be precluded from parking in that particular space and it would be the duty of the attendant responsible for that floor, when he came on duty in the morning, to ensure that these particular car parking spaces were cleaned before he then turned his attention to cleaning other parking spaces. The paraphernalia used for cleaning apparently consisted of a sharp-edged shovel and/or scraper, a mop, cotton waste, a broom and a dust-bin. In addition, on two consecutive Sundays every four weeks a water wagon came to clean the floors with high pressure hoses. But - and herein lies the rub (or perhaps the lack of it) - the high pressure hoses were only long enough to extend to the first four floors, and the remaining three floors had to be washed down with rubber hoses - with a very much reduced water pressure - manipulated by hand by the labourers themselves. 13. Expert evidence was adduced by the plaintiff, as part of her case, in the form of the Sales Manager of the Shell Company of Hong Kong, a person very fully qualified to speak as to libricants and the method of cleaning surfaces fouled by libricants. He expressed his opinion that a concrete surface fouled by used engine oil dripping on to it would require to be cleaned by a high pressure of water together with the use of some detergent and then washed down with a stiff brush. By high pressure of water he indicated a pressure in excess of 100 pounds per square inch. He expressed his view that domestic water supply would vary, according to the location, from 20 to 50 pounds per square inch. I accept that evidence. No suggestion was made by the defendants that any form of detergent was used at any time in the washing down of these car parking spaces. Whatever may have been the position with regard to the first four floors I would think it unlikely, to put it at its lowest, that the cleaning arrangements were really adequate for the top three floors. But it is unnecessary for me to make any general finding of fact on this aspect of the matter. It is sufficient for me to say, and I do so find, that the Management of the Car Park, through their employees, were negligent in regard to the cleaning of the particular car parking space upon which the plaintiff slipped and fell, and that their negligence was directly responsible for the plaintiff's fall and her injury resulting therefrom. 14. Turning now to consider the question of contributory negligence. The plaintiff has held a driving licence for a very long time. It must surely be well within the knowledge of any experienced driver that there is always a reasonable possibility that used oil may drip from the sump of a stationary motor-car, and that that oil will remain on the surface of the place where the car has been standing, and will, in consequence, constitute some danger to any person who walks over that oily, slippery space. The evidence before me, which I have accepted, is that there was a dark patch of black oil standing on the first car parking space and that there was a thin film of dust-covered oil on the surface immediately surrounding or adjacent to it. Even allowing for the light not being too good - and that was the evidence of Mr. Grenham - the bare patch of oil should have been noticeable to anybody cutting across the parking space and should have put him, or her, on guard as to the reasonable possibility of the immediately surrounding or adjacent area being also oily and consequently slippery. The lesser the degree of light available the greater the necessity to take care. Mr. Mills-Owens, who conducted the plaintiff's case with characteristic vigour and thoroughness, referred me to several cases where the courts have held, in effect, that it is not reasonable to expect people to watch every step they take. That observation was clearly made in each case in regard to the particular circum-stances of the case. The case of Stowell v. Railway Executive(1) concerned a person slipping on an oily patch on a railway station. It was found as a fact that the oily patch ought not to have been there and that, if the railway employees had taken proper care, it could have been removed and rendered innocuous to persons using the platform. 15. In the course of his judgment - giving judgment for the plaintiff - Lynskey, J. said:-
16. The case of Turner v. Arding & Hobbs, Ltd.(2), concerned a person who had slipped and fallen on a piece of vegetable matter in the plaintiff's shop at a time when the shop was not particularly busy or crowded. In dealing with the duties of shop-keepers to keep their premises reasonably safe for persons using them, Lord Goddard, C.J., giving judgment for the plaintiff said:-
Later on he went on to say:-
It is to be observed that in both those cases emphasis is placed upon the fact that the oily patch on the railway station, or the piece of vegetable matter on the shop floor, was an unusual danger. Can it fairly and reasonably be said that, with the knowledge that stationary cars do from time to time leak oil, that a patch of oil on a space specifically provided and allocated for the purpose of parking cars can be said to be an unusual danger? There is no doubt whatsoever in my mind, both as a matter of law and in accordance with what seems to me to be the dictates of ordinary common-sense, that there was a duty placed upon the plaintiff, as a measure of simple prudence, having elected to cut across this car parking space, to exercise some measure of care when she did so. Much as my sympathies lie with the plaintiff, I am fully satisfied that she did not do so and, in failing to do so, she was herself guilty of contributory negligence. 17. Mr. Keil, Crown Counsel, in his final address to me, whilst denying that the defendants themselves were in any way guilty of negligence, in answer to a question from me, said that if I found that the defendants were in fact guilty of a breach of their statutory duty to take reasonable care, the measure and quantum of the plaintiff's own contributory negligence was 50% or, at least, 40%. Taking the most favourable view of the plaintiff's case that I can, I assess her own negligence as at 40%. 18. It remains only to consider the quantum of damages. Special damages, being medical and nursing expenses already incurred, have been agreed by the parties, subject to an initial finding of negligence as against the defendants, as at $9,992. 19. A number of cases have been cited to me as to the quantum of damages awarded, both here and in England, in cases where persons have suffered injury to limb as a result of the negligence of another party. Whilst those cases may well provide a valuable guide, it is obvious that each case must necessarily depend upon its own facts and circumstances. Doing the best that I can, and bearing fully in mind the pain and suffering that the plaintiff has undergone and the degree of limitation now imposed upon her by the restricted use of her right arm, I assess the general damages in the amount of $10,000. The Plaintiff is entitled to recover from the Defendants 3/5 of her special damages and three-fifths of the sum of $10,000, that is to say - $6,000 as general damages. 20. Subject to any argument that may be addressed to me on the question of costs, following the view of the English Court of Appeal in Waller v. Levoi(3), that:-
the order I propose to make is that the defendant pays the plaintiff's costs of this action, such costs to be on the Supreme Court scale and to be taxed. Following the view taken by Huggins, J. in O.J. 447/68, I am satisfied that this action was properly brought in the Supreme Court and that the costs should be on the Supreme Court scale.
Representation: Mills-Owens (Johnson, Stokes & Master) for Plaintiff. Keil, C.C. for Crown/Defendant. (1) (1949) 2 A.E.R. p. 193 (2) (1949) 2 A.E.R. p.911 (3) Times 19/10/68. S.J. 1/11/68 at 865 N.L.J. 24/10/68 at 1004. |