Yu Shee Pui v. Urban Council

HCA000252/1979

Quantum of damages

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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Coram: LIU, J. in Court

Date of Judgment: 19th May 1981

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JUDGMENT

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1. On the 25th September 1976, the plaintiff sustained injuries in a fall inside a public lavatory managed by the Urban Council within the Fa Yuen Street Market. It was one of the usual public markets for the sale of vegetables, poultry, fish and meat. It contained twenty licensed stalls with a great many hawkers inside and outside. Its opening hours were from 6 a.m. to 8 p.m.

2. The plaintiff had safely made his way in for the urinal trough. On his way out of the public lavatory, he slipped and fell on the passageway near the entrance. As a result, the plaintiff injured his left hip joint. The neck of his left femur was fractured. He had an operation on the 3rd day after his admission into Queen Elizabeth Hospital, to which he was confined for ten days. Thereafter he was sent to the Kowloon Hospital for physiotherapy. The first operation was not entirely successful, and he underwent a second operation in July 1977 in Queen Elizabeth Hospital where he stayed for a month and a half. These operations left him with a metal prosthesis for the head and the neck of his left femur and a plastic socket for his left hip joint. After his discharge, the plaintiff attended the Out-patient Clinic.

3. The plaintiff had also sought and received treatment from a bone-setter in between his two operations.

4. The plaintiff can bend his thigh only 110⁰ instead of 150⁰. He has no internal rotation in his left thigh and his external rotation is slightly increased to 40⁰ from the normal 30⁰. There is some wasting of his thigh and calf muscles. He cannot walk for a long distance or a long time without discomfort. As soon as he starts walking, discomfort is experienced. Once he settles into his walking motion, pain and discomfort would subside but for only about 15/20 minutes. He has difficulty in getting out of bed and must sit up and rest for some time before he can manage it. He cannot squat unaided. He suffers the usual ache for bone fractures from time to time. His disability had initially been assessed as 6%. There was some improvement to 4%, but it worsened finally to 8%. He would require a third operation in about 15/20 years. He is a mini-bus driver. According to the report of Mr. Wedderburn, the pain in his knee was referred from the injuries to his hip, and his performance in doing round trips would be diminished, thus bringing about a greater future loss of income. The surgeon was then told that the plaintiff was doing only 9 to 10 trips, and apparently he would not anticipate the plaintiff to reach his present 13 trips per day. Mr. Wedderburn concluded:

"In a few years, he is probably only likely to be doing 7 to 8 trips in a 9 to 10 hour day. So he has a loss of income now and the loss will tend to increase."

5. I propose to deal first with the condition of the lavatory floor and to consider whether the defendant had discharged its common duty of care i.e. to take such care as in all the circumstances of the case was reasonable to see that the visitor would be reasonably safe in using the premises for the purposes for which he was permitted by the Urban Council to be there. The plaintiff was unsure in his claim that the public lavatory was newly erected with a polished Italian-paving floor. Mr. Fung, who has been posted to the Fa Yuen Street Market as the Ganger since September 1973, testified that no structural work was done to the public lavatory for the market during his posting. Mr. Sare, the Overseer for the Fa Yuen Street Market since 1972 added his corroboration that the public lavatory had stood there unaltered since his arrival. Mr. Sare explained that the lavatory floor was constructed of concrete and sand. Evidence was given at the trial that an abrasive substance known as chloride of lime was regularly applied to the lavatory floor for removing dirt and moss. Chloride of lime was described as having a corrosive effect. According to Mr. Sare, due to age and corrosion by the application of the abrasive powder, the floor surface was "not very smooth". Mr. Sare also stated the obvious that unless the floor was dirty the surface would not be slippery. As for the lavatory and the age and condition of its floor, I prefer and accept the evidence of Mr. Fung, the Ganger and Mr. Sare, the Overseer.

6. Both Mr. Sare and Mr. Fung explained that the public lavatory was scheduled to be cleaned five times daily at 8.30 a.m., 11.30 a.m., 2 p.m., 3 p.m. and 6 p.m. There was a slight discrepancy as to the scheduled time of 3 p.m. A subordinate of Mr. Sare and Mr. Fung referred to "3.30 p.m." Mr. Fung, the Gonger further told the court that in addition whenever the lavatory was found dirty, he would instruct his subordinates to have it cleaned and whenever it was slippery, he would give instructions for the floor to be scrubbed with chloride of lime. Mr. Fung maintained that he checked the lavatory every hour. Mr. Sare explained to the court that it was his responsibility to inspect the public lavatory and that he carried out his inspection once or twice daily. Furthermore, the lavatory was the only public convenience for men in the market which Mr. Sare and his staff had inevitably to share with the public. Therefore apart from routine check and inspection, Mr. Sare and Mr. Fung must have frequented the men's lavatory themselves.

7. Mr. Sare told the court that instructions were given for the lavatory floor to be scrubbed with chloride of lime once every other day. He explained that a quantity of 100 1bs. of chloride of lime was issued per month for the scrubbing of the floor of the market generally, including the floor of the lavatory once every other day and that the issued quantity was calculated to be sufficient for the purpose. The lavatory was for the general use of the public, hawkers and licensed stall-holders in the Fa Yuen Street Market. It would not be difficult to visualize that the lavatory floor would be wet and soiled fairly constantly. On hearing Mr. Sare's evidence on the frequency of application of chloride of lime, the question immediately leapt to mind was whether scrubbing once every other day was really adequate, particularly when Mr. Fung readily admitted:

"It is necessary to clean the toilets very often because they get very dirty and wet."

8. The lavatory floor was "not very smooth" due to age and the corrosive effect of chloride of lime, and it would not become slip ...(illegible) unless its dirt had not been properly cleaned off. With that sceptical approach to the official instructions for the application of chloride of lime to, inter alia, the lavatory floor, I turn next to the alleged execution of such instructions by Mr. Sare's subordinates, Mr. LEUNG Bor (DW1) and Mr. YIN Sai-tei (DW2). Mr. Leung is a 10-year man in the Fa Yuen Street Market, and Mr. Yin a 6-year man. Their cleaning duty included the public lavatory. They each had a day off in the week, and their duties were taken over by substitutes. Mr. Leung was short-sighted but used no visual aid. Mr. Leung would have the court believe that he scrubbed and cleaned the lavatory floor with chloride of lime at 6 p.m. every day. He said he swept the floor, wetted it with water, sprinkled chloride of lime over it, scrubbed it, hosed it down with water, swept away the excess moisture and mopped it up. But in cross-examination as well as in re-examination, it transpired that in fact he applied chloride of lime every other day. The significance really lies in his unambiguous version in chief that he used chloride of lime every day at 6 p.m. The other U.S.D. labourer, Mr. Yin explained that he cleaned the lavatory four times at 8.30 a.m., 11.30 a.m., 2 p.m. and 3.30 p.m. He maintained categorically that he used chloride of lime once a day at 8.30 a.m.

9. Instructions were to scrub the market floor and the lavatory floor with chloride of lime once every other day, and an appropriate quantity of powder was issued per month for that purpose. Mr. Yin and Mr. Leung in his examination-in-chief would have this court believe that the lavatory floor was cleaned and scrubbed with chloride of lime not once every two days, not just once a day but twice a day. Even with the modified version of Mr. LEUNG Bor, these labourers painted a picture of chloride of lime being applied at least once a day with one more time every other day.

10. Subordinates on the level of that of Mr. Leung and Mr. Yin as U.S.D. labourers can hardly be expected to volunteer making more contribution than their official duties demand. None of these U.S.D. labourers gave evidence that they were ever instructed to carry out extra cleaning as it was testified to by Mr. Fung, the Ganger that routine cleaning aside, chloride of lime was instructed to be applied to the lavatory floor whenever it was found to be slippery.

11. The plaintiff described the lavatory floor as wet and slippery. Taking a bird's eye view of the entire evidence in this case, I have come to the conclusions that indeed the lavatory floor would require to be cleaned "very often because they got very dirty and wet", that unless these was dirt the "not very smooth" lavatory floor surface would not become slippery, that instructions were given for the application of chloride of lime to the lavatory floor once every other day, that in fact the U.S.D. labourers never scrubbed the lavatory floor with such abrasive powder more frequently than their official instructions required i.e. once every other day; nor had they ever been instructed to apply chloride of lime outside the routine scrubbing and cleaning, that the U.S.D. labourers endeavoured to exaggerate the frequency of scrubbing and cleaning the lavatory floor with their abrasive powder, that such blatant exaggeration was motivated by their realization that application of chloride of lime once every other day was wholly inadequate, that on the occasion when the plaintiff used the public lavatory on the 25th September 1976 this floor was unusually dirty and slippery and that the Urban Council failed to discharge its common duty of care towards the plaintiff by failing to take such care as in all the circumstances of the case was reasonable to see that the plaintiff would be reasonably safe in using the public convenience.

12. I do not accept the state of the concrete and sand lavatory floor as being inherently unsafe or in need of re-surfacing. The plaintiff himself testified that lighting was adequate. The alleged want of care in providing for hand-rails along the passageway was, in my view, unsubstantiated. Installation of hand-rails in public lavatories cannot be said to be common. If a lavatory floor is kept reasonably clean, it will not be slippery and there would be no hazard calling for the installation of hand-rails which may constitute impeding protrusions. A warning notice would serve little purpose in the obvious case of a wet floor. If a man were to be oblivious of a shiny wet floor, he would likely alsofail to notice or read the warning. The damp surface of a lavatory floor is unlike the latent defect of a broken lavatory lock, for which a warning notice would be desirable. All users of public lavatories especially those attached to a market must realise that even with the best intention and effort, the floor may not at all times be kept completely free from dirt or moisture. Thus a degree of care must be exercised by all users. The negligence on the part of the defendant in this case was not that it did not ensure that there was never a slippery floor but rather that chloride of lime must, in the awareness of those in charge, have been applied to the lavatory floor with less than adequate frequency and that the floor was left in a more slippery condition and for a longer duration.

13. I will now consider the conduct of the plaintiff in the light of the alleged contributory negligence. On the 25th September 1976 at about 2.30 p.m., the plaintiff was using the public lavatory in question. He made his way in safely as he told the court that he walked very slowly and he was very cautious. The plaintiff suggested, though he was unsure of himself, that the lavatory was newly completed. But that very suggestion is important as regards the plaintiff's own impression of the condition of the floor at that time. With the impression of a well polished Italian-paving floor, there was more the reason to exercise care. He also conceded that he had used the lavatory probably once or twice before and had prior knowledge of its condition. Moreover, general knowledge of the usual floor condition of a public lavatory attached to a market should have put him on notice of its hazards. He testified that in fact he knew the place was wet and dirty. He further added that "everybody must be cautious on a wet floor". At one point of his evidence, he claimed that he did not notice that the lavatory floor was slippery, but in the latter part of his evidence he categorically testified that the whole floor was slippery.

14. Being aware of the wet and slippery lavatory floor, he managed to approach the urinal trough with sufficient care on his way in. In no less realization and with the same slippery floor, one would wonder how the plaintiff could have fallen down using the same passageway on his way out had he not been careless.

15. The plaintiff explained that on his way in he found the floor wet and dirty and the whole place slippery. He was every cautious and walked very slowly. Later in his evidence he told the court that when he was walking in, he did not feel slippery underneath. That probably had given him some false sense of security and made him regain some of his lost confidence. He went on to say "I did not realize it would be so slippery". He had earlier said of course that he had never seen as wet and as slippery a floor such as that he encountered on that fateful day. It seemed as if he had been saying that if he had known the floor to be "so slippery", he would have been more cautious. If he could have admittedly been more cautious, he must have been less careful on his way out than he was on the way in. From his description of the events coupled with the fact that he did not fall on the same surface on his way in, I find that in fact that was the position. There was a lack of sufficient care when the plaintiff returned from the urinal trough on his way back to his mini bus stand. It was not that he exercised no care at all, but it was a case that he did not maintain the same usual caution on his way out. He had been "very cautious" and walking "very slowly". He was therefore either not exercising sufficient care or not walking slowly enough, probably both. I find that on his way out the plaintiff did not exercise such proper care as was required or necessary in the circumstances to ensure his own safety.

16. The plaintiff slid a considerable distance but he told the court that when he found that one of his feet slipping, he was trying to grab hold of something by his right hand but in vain. The contact of his right arm with the tiled wall pushed his body to the left. The momentum of both contributed to the force of his subsequent imbalance and slide forward half way out the doorway. I cannot deduce from the distance, at which he slipped, alone that he was travelling too fast in the circumstances as alleged. The plaintiff described his motion as "like an aeroplane without any broke lashing forward". But taking all the evidence into consideration and in the light of his description of the events, there was, in my judgment, evidence that the plaintiff was probably also not walking slowly enough in the circumstances.

17. All in all, giving the matter my most careful and concerned consideration, I have ultimately arrived at the conclusion that the plaintiff was himself 40% to blame leaving 60% on the shoulders of Urban Council.

18. I come lastly to the claim for special damages which has caused immense difficulties. I was not assisted on the precise calculations which had taken meendlesshours in speculating on and crosschecking the mathematics, and I cannot emphasize too strongly that judges should be spared from such an unrewarding task.

19. No evidence was led on the alleged hospital and physiotherapy fees or the medical fees. Thus, they have not been proved. As for the bone-setter's fees and Chinese herbs, the plaintiff was not precluded from continuing with his treatment in Government hospitals. In fact, his condition did not improve as a result of his consultations with the bone-setter. There was no material progress. Having been treated with the herbs, ultimately he had to return to hospital and was advised to undergo a further operation. It is not suggested that the bone-setter's treatment or the prescription of Chinese herbs would, in no case, yield any benefit. Such treatment and prescription may well be less scientific, but they have been and are being held in high regard in more territories than one. The practice of bone-setters and the sales of Chinese herbs are permitted in Hong Kong. I cannot subscribe to the view that reasonable bone-setter's fees and reasonable expenses for Chinese herbs dispensed are not claimable items. But in this case, no expert evidence was tendered on the nature of these treatments and the effect of the herbs, none of which brought proven result. There is every indication that they were unwarranted duplicate expenses. For these reasons, I do not allow such apparently overlapping expenditure.

20. There is a claim for additional food and nourishment. The plaintiff and his wife were great believers in the snake head fish soup, the alleged value of which has not been verified in this case. According to the wife, the plaintiff lost appetite, and a tempting soup would build up his strength. I would allow $10 out of the claimed $20 every other day.

21. I allow the plaintiff's and his wife's travelling expenses as claimed in full. Such visits by a spouse brought comfort and supply of daily necessities. They are conducive to recovery. The probability is that they were paid out of the plaintiff's pocket. There was evidence that the wife spent slightly more than the unit rate pleaded for the hospital visits and out-patient treatment attendances. But in this regard, the plaintiff should be bound by his pleadings, and I do not propose to award more than what is being claimed as the fare.

22. As for loss of earnings, I allow the same up to June 1977 at the rate as claimed i.e. $49,086.00. But from July 1977 to March 1980, the plaintiff told the court that he was making $20 instead of the $28 per round trip as pleaded and the calculation should therefore be only $47,385 instead of the claimed $74,601. $47,385 is arrived at by multiplying $20 by 14 round trips per day giving a turn-over of $280 per day; taking $85 expenses from this $280 would leave a net income of $195 per day; $195 per day multiplied by 27 working days in a month would give $5,265 as the net monthly income; $5,265 per month times 9 months would give the total loss for 9 months up to March 1978 at $47,385.

23. The plaintiff returned to driving his Public Light Bus from the month of April 1978. He was doing 9 round trips at $28 per round trip per day; that makes a daily turn-over of $252; $252 minus daily expenses of $78 would leave $174 as the net daily income. He worked 10 days in a month; that would give him $1,740 per month, and for a period of 3 months from April to June 1978 his net income was $5,220. If he had worked full time, he would have made $24,867, calculated as follows: 14 round trips at $28 per round trip would give a turn-over of $392. His daily expenses should have been $85 for hire and petroleum. I have given the plaintiff the benefit of the doubt that the figure of $85 was given for a full 14 round trips usage, and I have adopted earlier the $78 pleaded as daily expenses for 9 round trips by reason that less petroleum would be required. $392 less the stated $85 daily expenses would leave $307 net income per day. With that net income, for 27 days in a month the plaintiff would make $8,289 per month, and for 3 months that would come to $24,867 net. The income the plaintiff would have made with 14 round trips per day i.e. $24,867 minus his actual net income of $5,220 made in the same period for only 9 round trips per day would give $19,647, being the loss of earnings during the three months from April to June 1978 in his reduced earning capacity.

24. For 6 months from July 1978 to December 1978, the plaintiff was doing 11 round trips per day; at $28 per round trip that would give a daily turn-over of $308. $308 less $85 as daily expenses would leave a net daily income of $223. The plaintiff told the court that his daily expenses for hire and petroleum were $100 during this period. Again, I have given the plaintiff the benefit of the doubt that the $100 was for 14 round trips a day, and for 11 round trips a day I am prepared to adopt the $85 daily expenses indicated. With $223 net income per day, working 15 days a month for the 6 months from July to December 1978 the plaintiff would make $3,345 net per month. At $3,345 per month, for 6 months the net income would be $20,070. I have calculated above the 14 round trips per day income at $28 per round trip as giving a total net income of $24,867 for 3 months; that means $49,734 for 6 months, and six months' net income of $49,734 at that rate with that expenses less the actual net income of $20,070 would give the claimed figure of $29,664. The plaintiff claimed in his evidence that the fares were $36 per round trip with $100 daily expenses. If one calculates $36 per round trip as the plaintiff testified at this trial, for this period from July to December 1978 at 14 round trips of $36 per round trip it would give a turn-over of $504; $504 less what the plaintiff gave as daily expenses of $100 would leave a net daily income of $404. $404 per day for 27 days in a month would give $10,908 as net monthly income. For six months, that would yield $65,448. On the same basis as given in evidence by the plaintiff, $36 per round trip for 11 round trips per day would give a turn-over of $396. That $396 less the daily expenses of $85 would leave a $311 net daily income. 15 days of $311 per day would give $4,665. For six months, $4,665 net income per month would give $27,990. If this $27,990 actual net income for 6 months calculated on the plaintiff's figures given in his evidence is deducted from the earnings the plaintiff would have made again on the same set of figures i.e. $65,448 ($65,448 - $27,990), that would give a net loss of earnings of $37,458. But that exceeds the amount sought by the plaintiff in his claim, and I am not prepared to allow a higher figure beyond the sum of $29,664 as claimed.

25. From January 1979 onwards the plaintiff was doing 13 round trips per day at $36 per round trip with daily expenses of $135. The plaintiff told Mr. Wedderburn, the surgeon, at an interview recorded in P2(3), a report dated the 10th March 1981, that due to traffic congestion most drivers were then only doing 13 round trips. I would therefore take maximum round trips done by Public Light Buses as from January 1979 to be only 13 round trips. The plaintiff was doing 13 round trips from January 1979 and therefore he was not less efficient than the rest of the drivers, but he could work for only 22 days. Therefore, he lost 5 out of the 27 working days in a month. Five days would attract a loss of $16,650 made up as follows: At $36 per round trip for 13 round trips would give a turn-over of $468; $468 less daily expenses of $135 would leave a net income of $333 per day. For 5 days, that would be $1,665, and that was his loss per month. For 10 months, that would be $16,650. From November 1979 to end of 1979 a period of 2 months at $1,665 loss per month would give $3,330.

26. From 1980 the plaintiff collected $42 per round trip, and for 13 round trips that would be a turn-over of $546 per day; $546 per day less $150 daily expenses would yield a $396 net income per day. For 5 days' loss of income in a month, that would be $1,980 per month; for 16 1/2 months from January 1980 to mid May 1981, net loss at $1,980 per month would make $32,670.00.

27. The plaintiff is now 48/49. Due to the late retiring age of PLB drivers and the plaintiff's diminished future earning capacity, I would allow a slightly higher 8 years' purchase from mid May 1981. For 8 years i.e. 96 months, at his present loss of $1,980 per month (being 5 days' loss of income out of 27 days per month), that would give a sum of $190,080.

28. In addition, I would award a sum of $50,000 for pain and suffering and loss of amenities.

29. The plaintiff claimed to have charged $70 per passenger in 1976. From a full bus-load of passengers in one round trip, he could have collected 28 fares at $70 each totalling $19.60. Possibly, a passenger or two might have alighted making room for extra fares, a collection of $20 per round trip would not have been impossible, although such alleged maximum utilization reflected an obvious exaggeration.

30. The plaintiff testified that between September 1976 to March 1978, he earned $5,265 net per month at $20 per round trip less all running expenses.

31. From April 1978 to June 1978, the plaintiff claimed to have earned $8,289 at $28 per round trip. That is clearly gross exaggeration.

32. Even without cross-examination, from such of the local circumstances as widely known, any amount substantially over and above a net monthly income of $5,000 for a Public Light Bus driver is highly improbable. It is for comment that the whole of the loss of earnings was generously inflated.

33. I can just about refrain from disturbing the alleged net monthly earning of $5,265, although it seems hardly realistic. That as well as rest of evidence on loss of earnings was left challenged, but I am driven by sheer common sense to regard any net amount substantially over $5,000 as unbelievably high. No court is bound to accept or act on uncontradicted evidence which is inherently unreasonable or improbable. However, the absence of any effective challenge to the data advanced for the alleged loss of earnings would have the effect of pitching the plaintiff's claim at a much higher range.

34. From July 1979 to October 1979, the plaintiff claimed to have made $10,908 per month net charging $36 per round trip. Here again, the plaintiff explained that he was asking for $1.50 each for the return trip to Chi Wan Shan and $1 each for coming down. With a full bus-load of 28 fares, in one round trip he could have made only $35 and not $36 as alleged. Again, with a passenger or two disembarking making room for more, a taking of $36 per round trip might possibly have been achieved. But the alleged maximum utilization was manifestly an attempt to magnify his loss. From 1980 onwards, he claimed to have made $10,692 per month net. The slight decrease was due to traffic congestion allowing 13 round trips instead of 14 after 1980. The figures $8,289 per month net and over $10,000 per month net are incredible! Although without cross-examination, I feel justified in not accepting any inflated figure of substantially over $5,000 per month for the net income of a PLB driver. That would mean that for the alleged earnings of $8,289 per month net, there was an inflated element of over 3/5ths and for the alleged earnings of over $10,000 per month net there was an inflated element of 100%. In other words, I will take 62.5% of the figures on $8,289 per month and 50% of the figures or over $10,000 per month. I would therefore deduct the amount calculated on these exaggerated figures by 37.5% and 50% accordingly.

35. In conclusion, the calculations are as follows:

36. 60% of $300,369.58 is $180,221.75. I would therefore give judgment in that sum to the plaintiff plus interest on 60% of the figures in items (1) to (13) at 6% per annum from the date of the injury to today and interest on 60% of the $50,000 in item (15) at 12% per annum from the date of service of the writ to the date of judgment. The plaintiff will have costs against the defendant taxed in accordance with the Legal Aid Regulations.

Representation:

Miss Ester Toh instructed by Rowdget W. Young & Co. assigned by Legal Aid Department for Plaintiff.

Mr. Adams, counsel for the Defendant.