Case Document

100%Judiciary

DCPI 625/2003

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO. 625 OF 2003

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BETWEEN

	LEUNG SEE NING CLARA	Plaintiff
	and
	SHUN TAK PROPERTY	Defendant
	MANAGEMENT LTD

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Coram: H.H. Judge Wong in Court

Dates of Hearing : 3^rd, 4^th and 5^th January 2005

Date of Handing down Judgment : 24^th January 2005

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Judgment

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1.The Plaintiff claims against the Defendant as occupier of the private residential property known as The Belchers for injuries to her ankle when she slipped and fell to the ground in that property.

Liability

2.There is no issue that as occupier the Defendant is under a duty of care. The only issue is whether the surface where the accident took place was reasonably safe for the Plaintiff to walk on as a lawful visitor.

3.The Plaintiff’s evidence is that she was a resident of Lady Ho Tung Hall. On 18 December 2001 at about 5 p.m. she intended to go to Welcome Supermarket in the Westwood by going through the Belcher. The pavement in Belcher was wet she was very careful when walking. When she reached the area where there were tiles she suddenly slipped and fell. She was in great pain. A male pedestrian helped her to get up and helped her to walk slowly towards Lady Ho Tung Hall. She could only hop with her right leg as her left ankle was injured.

4.On the way she met two hall attendants at the vehicle entrance of Belchers. One stayed behind to look after her while the other went back to the Hall to look for assistance. Eventually another hall attendant Phosuan Thaweeporu arrived and took her to Queen Mary Hospital for treatment.

5.She said that the floor where she fell was wet as there was rain that day. According to the record of the Hong Kong Observatory the hourly rainfall recorded at Knowks Building of Hong Kong University which is very near to the place where she fell, at 3 p.m. the rainfall recorded was 0.5 mm at 4 p.m. 0.0 mm and at 5 p.m. 0.5 mm and that rainfall less than 0.5 mm could not be detected. So when at 4 p.m. 0.0 mm did not mean there was no rainfall. As it was a cloudy day and the relative humidity was on average 92%, the ground could not dry up easily. Based on the information available on balance I find that the ground was wet at the material time when she was injured.

6.The Defence is that the tiles were non-slip and for common industry usage and that the tiles were used all over Hong Kong in open public areas. In addition slippery floor warnings plates were put up at two places. The two plates were put up at places which were away from the path the Plaintiff walked.

7.Though the tiles were so called non-slip they are not slip proof and the fact that slippery floor warnings were issued support my view that they are not slip proof.

8.I accept the Plaintiff’s evidence that she found the floor was wet and she walked carefully. I find on balance that she slipped because of the wet surface.

9.For those reasons I find the Defendant is liable to the Plaintiff for her injuries.

Contributory Negligence

10.The Defendant in the Defence claimed that the Plaintiff had contributed to her fall but there is no evidence to support the particulars set out in the Defence. Hence I rule that there was no contributory negligence on the part of the Plaintiff. The Defendant is therefore 100% liable.

The Injuries

11.The Plaintiff was admitted to Queen Mary Hospital where she was found to have fracture of left distal fibula. Open reduction and internal fixation was performed on 21 December 2001 and she was discharged on 29 December 2001. Follow up X-ray showed good alignment of the fracture site. On 26 February 2002 during follow-up examination there was no pain except occasional mild pain at the fracture site. In June 2003 she had another operation to remove the screw and metal plate. She has a scar at the ankle measuring 8½ cm long.

Quantum

12.The Plaintiff was a law student because of the accident her study was deferred for one year. Before the accident she was in the swimming team practicing for 2-3 times a week, she also went to scuba diving and hiking. There was no serious effect except when walking on slope and when there was a change of weather she easily lost her balance.

13.After her graduation she applied and is now working in the Department of Justice earning $27,308 per month.

(i) PSLA

In Ng Wah Chung v Cheng Wing Chung & ors HCPI 164 of 2001 the Plaintiff suffered a fracture of right os calcis was awarded $200,000.

In Cheng Hei Kwong v Kwong Key Construction and Engineering Ltd HCPI 7260 of 1999 the Plaintiff suffered a fracture of the distal fibula. Three years later the Plaintiff still complained of swelling of ankle and could not walk for more than ½ hour and walked with a mild limp. He was awarded $200,000 under PSLA.

In Wong Wing Chow v Lee Wing Hang Patrick t/a Wing Shun Construction co. and anor HCPI 244 of 2002 the Plaintiff suffered a displaced fracture of the calcaneum of the right foot. He had an operation involving open reduction and internal fixation and was hospitalized for 18 days. He was awarded $200,000 under PSLA.

The Plaintiff suffered similar injuries and I am of the view that $200,000 should be awarded under PSLA. However because of her scar I award a further sum of $30,000 because of her scar. So I award $230,000 under this head.

(ii) Loss of earnings

Because of her injuries she had to defer her examination for 1 year. She is now earning $27,308 per month. So her loss of earnings should be $27,308 x 12 = $327,696 plus $12,000 for MPF totaling $339,696.00.

(iii) Trainer’s service

She claims that she had sought trainer service to train the ankle to make it more flexible. It costed her $4,800.00. I find that this is strictly not necessary. In any event I have taking this into consideration when assessing PSLA. I disallow this item.

Special Damages

14.This has been agreed by the Plaintiff at $9,251.20.

15.The total award is therefore

1) PSLA $230,000.00

2) Loss of earnings $339,696.00

3) Special damages $9,251.20

Total $578,947.20

16.For those reasons there be judgment for the Plaintiff in the sum of $578,947.20 with interests at ½ judgment rate from date of writ until judgment and thereafter at judgment rate. Costs to the Plaintiff. Certificate for Counsel.