Siu Chi Cheung v. Sincere Time International Ltd T/ A Neway Karaoke Box

HCPI 606/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 606 OF 2004

____________

BETWEEN

____________

Before: Deputy High Court Judge To in Court

Dates of Hearing: 13 - 15 July 2005

Date of Judgment: 24 August 2005

_______________

J U D G M E N T

_______________

The background

1.This is a trial on liability in a personal injuries action.  The Plaintiff and his friends went to the Defendant’s karaoke at the basement of the Majestic Centre in Nathan Road to celebrate a friend’s birthday.  An accident arose at the early hours of 9 March 2003 when the Plaintiff went to the washroom where he slipped and fell, as a result of which he sustained serious personal injuries.  He alleged the Defendant of negligence and of breach of the common duty of care under the Occupiers Liability Ordinance, Cap 314.  In his Statement of Claim, he pleaded the following particulars of negligence and breach of duty:

(1)	causing or permitting the washroom floor to be wet and slippery;
(2)	failing to maintain an effective system of cleaning of the washroom floor;
(3)	failing to cover the wet washroom floor with non-slip material to render it safe; and
(4)	failing to provide warning signs that the washroom floor was wet and slippery.

2.The Defendant admitted it was the occupier of the karaoke including the washroom.  It does not dispute that an accident had occurred, but disputed where it actually occurred and put the Plaintiff to strict proof.  In addition, it raised the following specific defences:

(1)	the Defendant had taken all reasonable steps to ensure that the washroom floor was not wet and slippery;
(2)	the Defendant had installed warning signs which were adequate to ensure that the Plaintiff was reasonably safe in using the washroom; and
(3)	that the Plaintiff had consumed excessive amount of alcohol at the time of the accident which caused or contributed to the accident.

Initially, the Defendant disputed that the Plaintiff was a customer or lawful visitor of the karaoke but was a trespasser.  However, that defence was abandoned during the course of the trial.

The law and the issues

3.The duty of an occupier of this type of premises is very well-established.  The duty of care an occupier owes to his visitors is not an absolute one and the occupier is not under a strict liability to guarantee his visitors’ safety.  His duty is to take such care as is reasonable in all the circumstances of the case to ensure his visitors are reasonably safe in using the premises.  In Turner v Arding & Hobbs Ltd [1949] 2 All ER 911, Lord Goddard CJ said at 912:

“The duty of a shopkeeper in this class of case is well-established.  It may be said to be a duty to use reasonable care to see that the shop floor, on which people are invited, is kept reasonably safe, and if an unusual danger is present of which the injured person is unaware, and the danger is one which would not be expected and ought not to be present, the onus of proof is on the defendants to explain how it was the accident happened.”

4.Thus, in the instant case, the burden of proof is on the Plaintiff to show the accident was caused by the Defendant’s failure to ensure that the floor of the washroom was kept reasonably safe in that it was not wet or slippery.  Once the Plaintiff has discharged that burden, it is for the Defendant to show how it was that the accident happened without breach of duty on his part or that the danger which caused the accident is an usual and inherent danger which the Plaintiff would expect in using a washroom in that kind of premises and of which the Plaintiff was aware.  The specific defences raised by the Defendant are valid defences.

5.The issues raised in this trial are:

(1)	where the accident occurred;
(2)	if the accident did occur inside the washroom, whether the washroom floor was wet and/or slippery and/or unsafe at the time of the accident;
(3)	if it was, whether the Defendant had taken all reasonable care to ensure that the washroom floor was not wet and/or slippery and/or unsafe;
(4)	were there any warning signs showing that the washroom floor was wet and/or slippery displayed at the material time;
(5)	if yes, were these warning signs adequate in all the circumstances to ensure the safety of the users of the washroom and/or to absolve the Defendant from liability;
(6)	was the Plaintiff in a state of drunkenness; and
(7)	if yes, to what extent does that affect the Defendant’s liability.

The Plaintiff’s case

6.The Plaintiff gave evidence himself as to how the accident occurred.  He also called the doctor who treated him to corroborate his evidence that he was not drunk at the material time.  His case is very straightforward.  He went to the karaoke with his friends to celebrate one of their friend’s birthday.  He did not like alcohol and did not consume any alcoholic drink that night because he felt dizzy.  At the early hours of 9 March 2003, he went to the washroom with one of his friends, Mr So.  He asserted that the lighting of the washroom was very dark and there was a nasty smell.  He found that the washroom floor was wet and slippery and there were toilet paper discarded on the floor.  After urinating, he turned round fastening his zip fastener.  At this juncture, he suddenly slipped and fell on the floor.  He then lost consciousness.  When he came round, he found himself lying on the hallway outside the washroom and was surrounded by about ten people, among them were his friends and the staff of the karaoke.  His left eyebrow was bleeding.  One of his friends brought him a bag of ice and applied it to the bleeding area.  The staff of the karaoke did not give him any treatment.  Later, the police arrived.  An officer asked the Plaintiff to produce his identity card and if there was a fight.  The Plaintiff replied that he slipped and fell in the washroom.  Afterwards, two of his friends escorted him to St Teresa’s Hospital for treatment.

7.At 02:03 hours, Dr Ng treated the Plaintiff in St Teresa’s Hospital.  He found the Plaintiff responsive and coherent in his speech.  He recalled that the Plaintiff was not emitting smell of alcohol and did not appear to him to be under the influence of alcohol. 

The Defendant’s case

8.The Defendant called two witnesses, its manager, Mr Hoo, and the police officer, PC33140, who was summonsed to the karaoke to attend to the accident.

9.According to Mr Hoo, he was informed by a customer that someone was lying on the floor of the washroom.  He went to the washroom and saw the Plaintiff lying in the hallway outside the washroom.  He asked the Plaintiff if he was alright.  He found that the Plaintiff smelt strongly of alcohol and murmured something incomprehensible.  He then went into the washroom.  He found that there was no water or vomit on the floor of the washroom.  He did not know if it was safe to move the Plaintiff around.  So he reported to the police for assistance.

10.At 01:43 hours, PC33140 and two other police officers arrived.  PC33140 asked the Plaintiff what had happened.  The Plaintiff answered “nothing” in reply and said that he was careless and injured himself in the washroom.  He noted that the Plaintiff was conscious and there was a slightly bleeding at his left eye.  The officer went into the washroom and found no signs of criminal activities.  Then he returned to make further enquiries of the Plaintiff.  The Plaintiff told him that he was drunk and carelessly injured himself inside the washroom.  PC33140 was two to three feet away from the Plaintiff and he could smell alcohol from the Plaintiff’s breath.  He enquired if the Plaintiff wished to be taken to hospital for treatment.  The Plaintiff answered that he would seek treatment by himself.  PC33140 found the Plaintiff coherent in his speech.  He reported the result of his enquiries to his Senior Inspector.  The Senior Inspector reported back to the Police Report Centre and classified the case as a “drunken person” incident.  Then the police party left at 01:48 hours. 

Credibility

11.The Plaintiff’s case stands or falls with my finding of his credibility.  His demeanour was unimpressive.  He was soft spoken and hesitant.  In coming to this opinion, I have, as urged by his counsel, given him generous allowance because of the numb condition of his face which he suffered as a result of the accident.  However, his evidence could not stand when tested against the evidence of PC33140 whose credibility I have no reason to doubt and whose evidence I have no reason to disbelieve.  The Plaintiff was exaggerating and changed his evidence under cross-examination.  For reasons which will become apparent when I come to analyse the evidence, particularly as to whether the Plaintiff had consumed alcohol and as to the condition of the washroom, I do not find the Plaintiff credible.  I find him exaggerating and evasive. I do not accept his evidence.

12.Dr Ng is an independent and disinterested witness.  I have no doubt he is an honest witness.  He was called by the Plaintiff primarily to give evidence that the Plaintiff was not under the influence of alcohol.  However, Dr Ng’s primary concern at the time was to treat the Plaintiff’s injury and his attention had not been specifically directed to whether the Plaintiff had consumed alcohol.  He did not have independent recollection of the events.  When his evidence is considered in the light of the totality of the evidence, I consider Dr Ng’s evidence unreliable and I give no weight to his evidence, though I have no doubt as to his honesty.

13.Mr Hoo was in attendance in court as the representative of the Defendant in these proceedings while the Plaintiff and PC33140 were giving evidence.  When he started his evidence in chief, he withdrew part of his witness statement, which no doubt is the result of his having heard the evidence of PC33140.  The departures were in relation to whether he saw the Plaintiff bleeding and whether the ambulancemen ever arrived at the scene.  That the Plaintiff had an accident and suffered from injuries is not a matter in dispute and whether the ambulancemen arrived is not a material issue.  Mr Hoo was also mistaken about the time when he found the Plaintiff lying outside the washroom.  The timing is neither material nor in dispute.   I have no doubt that in respect of these matters Mr Hoo was honestly mistaken or careless when he prepared his witness statement and he was not trying to salvage his credibility by reducing inconsistencies between his evidence and PC33140’s.  Mr Hoo also voluntarily corrected his witness statement by saying that at the material time the karaoke did not employ any supervisors or assistant supervisors and agreed that the Plaintiff was one of his customers and not a trespasser.  These evidence are prejudicial to the Defendant’s defence.  It must be out of honesty that he made the corrections.  I consider Mr Hoo an honest and credible witness.  I accept his evidence.

14.PC33140 is an independent and disinterested witness.  He was summonsed to the scene of the accident.  He was vigorously cross-examined.  He gave cogent and consistent answers.  He was criticised for some minor mistakes he made in his witness statements, about the time he arrived and whether he arrived with the Senior Inspector.  These mistakes and discrepancies are not material and do not damage his credibility.  I find him an honest and credible witness.  The central issue of his evidence is about the condition of the Plaintiff when he arrived at the scene.  For reasons as I shall explain in my analysis on that issue, I accept his evidence.

The place where the accident occurred

15.The Plaintiff’s evidence is that he slipped and fell inside the washroom and lost consciousness and when he came round he found himself lying in the hallway outside the washroom.  He adduced no evidence to explain how he came to be in the hallway.  A statement given by his friend Mr So has been filed.  In that statement, Mr So said he went into the washroom with the Plaintiff, he later found the Plaintiff lying unconscious in the washroom, he removed the Plaintiff to the hallway and then summonsed the staff of the karaoke for help.  However, despite Mr So had attended court, the Plaintiff chose not to call him.  No explanation has been tendered as to why Mr So was not called.  The Plaintiff is therefore left with a gap in his evidence as to how he came to be in the hallway after he fell unconscious.  Mr Law, counsel for the Defendant, argues that the Plaintiff failed to discharge his burden of proving that the accident took place inside the washroom, while Mr Chiu, counsel for the Plaintiff, submits that this gap could be filled by inference.  Mr Chiu further submits that as Mr Law has not specifically put to the Plaintiff that the Plaintiff fell outside the washroom, the Plaintiff is entitled to assume that the location where he fell is not in dispute. 

16.In my view it is a question for the Court to decide whether in the light of all the circumstances, the inference could be drawn.  I take into account Mr Chiu’s submission.  I draw no adverse inference against the Plaintiff for failing to call Mr So to give evidence.  I take into account that the Plaintiff told PC33140 that he fell inside the washroom in answer to the officer’s enquiry.  According to the report from the Police Report Centre, Mr Hoo requested for assistance at 01:41 hours and PC33140 reported his arrival at the karaoke at 01:43 hours.  Hence, the above answer was given by the Plaintiff to PC33140 within minutes when he came round.  The Plaintiff was medically insured.  At the time, his major concern must be to seek treatment for his injuries, which were not minor.  There was no reason for him to lie about where the accident took place.  It is improbable that at the time of traumatic incident, the Plaintiff could have concocted a plan to make a claim in negligence against the Defendant and planted a lie in furtherance of that plan.  I give full weight to his answer to PC33140.  I accept the Plaintiff’s evidence that he fell inside the washroom and draw the inference that someone removed him to the hallway while he was unconscious.  But this is no finding as to the cause of the accident, but only as to where the accident occurred. 

Whether the Plaintiff had consumed alcohol

17.The Plaintiff said he did not like alcohol.  Though he had been a bar tender before, he did not drink liquor, wine, beer or any alcoholic drinks.  He said he had been drinking ginseng honey and had taken no alcohol at all that night.  He emphasised himself as a man strictly of no alcohol.  His evidence was supported by Dr Ng who examined him half an hour after the accident.  Dr Ng said he found the Plaintiff’s speech coherent and that he did not smell of alcohol.  But it should be noted that under cross-examination, Dr Ng admitted that he had no independent recollection whether the Plaintiff smelt of alcohol and his evidence was based on his medical notes.  He said had he suspected the Plaintiff to have been drinking, he would have made an enquiry of it and have his observations and findings recorded in his notes.  He saw the Plaintiff half an hour after the accident, by then the Plaintiff’s condition would have improved especially with no further intake of alcohol.  As the Plaintiff was sober and responsive, Dr Ng could not have entertained any suspicion that the Plaintiff was under the influence of alcohol and accordingly made no record in his notes to that effect.  Whether the Plaintiff smelt of alcohol or had other signs of intoxication was something that could have easily gone unnoticed by the doctor.  I therefore give little weight to Dr Ng’s evidence.

18.On the other hand, both Mr Hoo and PC33140 found the Plaintiff smelt strongly of alcohol shortly after the accident.  According to Mr Hoo, the Plaintiff murmured in response to his questions.  However, according to PC33140 who arrived about ten minutes later, the Plaintiff was coherent.  Mr Chiu criticised Mr Hoo of painting a picture that the Plaintiff was badly drunk.  Likewise, he also attacked PC33140 of being incredible.  I think their evidence is not irreconcilable as the Plaintiff could have regained more control of himself during the intervening period and spoke coherently.  His smelt of alcohol is a striking feature which these two witnesses could not have been mistaken.

19.PC33140 had experience handling cases of drunken persons.  He was given the duty to make investigation.  He classified drunken persons into three categories.  If a person claimed to have taken alcohol but appeared to him to be sober, the officer would classify the person as “having reported to have been drunk”.  If a person smelt of alcohol but was sober, he would classify him as “smelt of alcohol”.  If a person smelt of alcohol and was not sober, he would classify him as “unconscious”.  He considered the Plaintiff sober but smelt of alcohol.  That was what he noted down in his notebook.  He made enquiries from the Plaintiff.  He reported his finding to his Senior Inspector who classified Mr Hoo’s report as a case of “drunken person” incident and reported back to the Police Report Centre.  PC33140 was there to make enquiries.  He saw the Plaintiff bleeding.  He made enquiries of the Plaintiff.  He went into the washroom to check for any signs of criminal activities.  He could not have made mistake about the smell of alcohol from the Plaintiff, which he noted down in his notebook and which he reported to his Senior Inspector.  I give full weight to PC33140’s evidence that he smelt alcohol from the Plaintiff’s breath.

20.I therefore come to the conclusion that the Plaintiff lied about not having consumed any alcoholic drinks that night.  I accept Mr Hoo’s and PC33140’s evidence that when they found the Plaintiff, the Plaintiff smelt strongly of alcohol from his breath.  It is just common experience that a person would not smell of alcohol unless he has consumed a substantial quantity of alcohol.  Accordingly, I find that the Plaintiff had consumed a substantial quantity of alcohol before the accident. 

21.The above finding does not necessarily lead to the conclusion that at the time of the accident the Plaintiff was in a drunken state in the sense that he was not conscious of what he was doing or that he could not maintain his balance.  This is because alcohol tolerance varies from person to person.  However, the above finding seriously undermines the credibility of the Plaintiff.  He deliberately lied on an important issue, which he must have known would be contradicted not only by Mr Hoo who attended to him when he was coming round but also by the police officers who came to the karaoke to make enquiries.  Yet, he chose to lie regardless.  This casts a real doubt on his honesty and on the genuineness of his claim.

Condition of the washroom

22.The central issue in dispute in this case is the condition of the washroom.  The washroom in which the accident occurred was located in the public area of the basement of Majestic Centre which was accessible to the customers of the karaoke as well as to the public visiting the building and to the general public in Nathan Road who had knowledge of the availability of the facility.  It was not for the exclusive use by customers of the karaoke, though the Defendant was responsible for its cleaning and maintenance.  Next to this washroom was a washroom for female visitors.  In addition, there were another male washroom and female washroom inside the karaoke exclusively for the use of its customers. 

23.The Plaintiff’s pleaded case is that the floor of the washroom in which he fell was wet and slippery.  In his evidence in chief, the Plaintiff made the further allegations that the lighting condition inside the washroom was very dim, the floor was covered with discarded toilet paper and there was a nasty smell inside the washroom.  He said in evidence that the floor was so wet and the lighting so dim that he could see clear reflections from the wet floor.  However, when cross-examined about the clear reflections, he changed his description of the lighting condition from “very dim” to “not very bright”.  He said the lighting was about half as bright as the court room and he could see his way and the objects inside clearly.  That is by any standard more than adequate for a washroom.  The photographs taken by the Defendant of the washroom show that there were at least six recessed light housings installed inside the washroom.  These lights would provide adequate lighting for the washroom.  The Plaintiff’s evidence about the dim lighting condition is an obvious exaggeration, which he made deliberately and regardless of the incontrovertible evidence of the photographs showing the lighting installation inside the washroom.

24.The Plaintiff described the floor as slippery and wet as if it was after a rain and there were reflections from the wet surface.  He disagreed that it was just the ordinary wet condition one would expect of a washroom caused as a result of ordinary use of the urinals and water basins.  He said there were discarded toilet paper on the floor and a nasty smell inside the washroom.  Mr Chiu seeks to support the Plaintiff’s evidence by arguing that the washroom must be very wet and slippery as it had been subject to very heavy use by customers of the karaoke, by members of the public in Majestic Centre and by pedestrians from Nathan Road.  Though this washroom was accessible to the public, it was highly unlikely that there were a lot of visitors to the Majestic Centre at the time of the accident, as most of the shops were closed by then.  It was also highly unlikely that there were a lot of pedestrians in Nathan Road who would visit that washroom at that time of the day.  In my view, the customers of the karaoke were the major users of the washroom and there were four washrooms altogether.  I do not think the scenario described by Mr Chiu at all likely.

25.The Plaintiff’s evidence was contradicted by the evidence of Mr Hoo.  According to Mr Hoo, after attending to the Plaintiff, he went into the washroom but found it was neither wet nor slippery and he saw no vomit on the floor.  In addition, Mr Hoo said that the Defendant employed three woman cleaners to clean the four washrooms at least once every half hour and as and when complaints were received to ensure the washrooms were clean, dry and safe.  If necessary, the washrooms were cleaned three to four times an hour.  While the washroom was being cleaned, a sign prohibiting entry was displayed outside the washroom.  After cleaning, a yellow coloured plastic stand with the words “Caution: Wet Floor” in English and Chinese was displayed on the floor.  A supervisor or assistant supervisor or captain or assistant captain would check the cleanliness of the washroom.  In the course of his evidence, Mr Hoo volunteered that back in 2003 when the accident occurred, the Defendant did not employ any supervisors or assistant supervisors because the karaoke was not in full operation, but the captains and assistant captains were responsible for checking the cleanliness of the washrooms and he also double check occasionally.  In addition, there were independent surprise inspections of the karaoke including the washrooms by staff of the head office from time to time.  Mr Chiu criticised Mr Hoo of changing his evidence when he said the karaoke did not employ any supervisors or assistant supervisors in 2003.  I think the criticism unfair as the change is to the Defendant’s detriment and made voluntarily.  On the contrary, I consider that fairly demonstrated Mr Hoo was a responsible witness who was serious in telling the truth.  I have no reason to doubt his honesty.  Thus, I am satisfied that there was a system in place in the karaoke to ensure that the washrooms were regularly cleaned.  This supports Mr Hoo’s evidence that when he checked the condition of the washroom after the accident, he found it satisfactory. 

26.I have no reason to doubt Mr Hoo’s evidence.  The Defendant regarded cleanliness of the washrooms as one of its priorities.  It was in the business of providing entertainment and catering services.  It was in its interest to maintain the premises in a tidy, clean and presentable condition so that customers will be pleased to patronise its services.  In that connection, it was important that it maintained the washrooms in a clean condition.  It organised surprise inspections of its karaoke including the washrooms.  It was one of Mr Hoo’s responsibilities to double check the work of his cleaning workers.  I have no doubt about his evidence.  On the other hand, the Plaintiff’s evidence was shaky.  He lied about not having taken any alcohol.  He exaggerated about the dim lighting condition of the washroom.  He was prepared to add on new allegations, to exaggerate and make blatant lies to further his cause.  I consider him a most unreliable witness.  I do not accept his evidence.  I accept Mr Hoo’s evidence and reject the Plaintiff’s.  I find that the washroom was cleaned at least once every half hour and as and when necessary.  The washroom was air-conditioned, which had the effect of drying minor wetness on the floor.  Taking also into account that there was another male washroom in the karaoke and the probable extent to which the washroom was being used at the time of the accident, I find it unlikely that the washroom was so wet and slippery as the Plaintiff would wish me to believe.  Because of the very unfavourable view I formed of the Plaintiff’s credibility, I am unable to accept his evidence that the washroom floor was wet and slippery.  Of course, on his own evidence, he admitted that the washroom was well lit.  That must necessarily mean the Plaintiff has failed to discharge his burden of proof.

The cause of the accident

27.In view of the above finding, it is not necessary for me to make any finding as to the cause of the accident for the purpose of determining whether the Plaintiff has made out a case of negligence or breach of duty against the Defendant.  I shall, for completeness, deal with that issue as far as the available evidence permits.  There is no direct evidence whether the Plaintiff was in a drunken state at the time of the accident.  The Plaintiff said he was not in a drunken state but became unconscious as a result of the fall.  On the other hand, Mr Law suggests that the Plaintiff was in such a drunken state that he lost balance and fell or that he was careless in failing to watch where he was going.

28.According to PC33140’s witness statement made two years after the incident, the Plaintiff told him that he was drunk and carelessly slipped and fell on the floor.  In his evidence, PC33140 adamantly repeated what he said in his witness statement.  However, he had only recorded in his notebook that the Plaintiff said he slipped and fell, but had recorded nothing about his admission of being drunk or careless.  The officer must have handled many similar cases of drunken person during the intervening two years.  It is remarkable that he could have recalled such fine details about what the Plaintiff had said without having made any record to that effect in his notebook, bearing in mind that he could not recall other details such as whether the Plaintiff was seated or lying down when he saw him.  While I have no doubt as to the officer’s honesty and integrity, I cannot help wondering if what he said about the Plaintiff’s admission of being drunk and careless was just his assumption or the conclusion he drew from what he saw and heard, which in course of time he honestly mistook as if they had been said by the Plaintiff.  I give no weigh to this part of his evidence.

29.On the other hand, the Plaintiff has demonstrated himself as an incredible and unreliable witness.   He tried to boost his credibility by saying he was a man strictly of no alcohol and lied about not having consumed any alcohol at all that night when in fact he had consumed a substantial amount of alcohol to the extent that he smelt strongly of it.  He exaggerated about the dim lighting condition in the washroom.  He lied about the wetness and slippery condition of the floor of the washroom.  All these were done for the sole purpose of concocting a case of negligence or breach of duty against the Defendant. He suffered serious facial injury which is consistent with his falling with his face downwards.  Had the Plaintiff been conscious before the fall, he would have easily guarded himself with his hands against such serious injuries to his face or in any event avoided such serious injuries.  Also, the injuries were to his mid-face or lower face which were unlikely to have made him unconscious.  The Plaintiff could have fallen because he was so drunk that he lost his balance, or that he was careless and did not look where he was going, or a combination of both reasons.  One thing that is certain is that he failed utterly to prove the fall was due to the wet and slippery floor of the washroom.  If I have to come to any concluded view whether the Plaintiff was in a drunken state before he fell, I would disbelieve his evidence that he was conscious before he fell and I would have no hesitation to draw the inference that he was in a drunken state when he fell and that his drunken state contributed substantially, if not wholly, to the accident.  

Defence

30.The above finding is sufficient to dispose of the matter before me without going into the Defendant’s defence.  The Plaintiff has utterly failed to discharge his burden of proof and failed to launch his case off the ground.  I shall, however, make a few brief observations about the Defendant’s defence. 

31.The question in the instant case is what was reasonable to expect of the Defendant in the circumstances.  The place where the accident occurred was a washroom frequented by customers of the karaoke, visitors to Majestic Centre and some pedestrians from Nathan Road.   The washroom would be used frequently and some wetness was to be expected as a result of using the urinals and the water basins.  But this cuts both ways.  Wetness does increase the risk of slipping and it is reasonable to expect the Defendant to do something to prevent and control it.  Equally, the visitors are also expected to take reasonable care of themselves in a washroom open to the public, especially if the risk is obvious.  If the washroom was so wet as to be slippery so that no one could walk on it with reasonable safety, the Defendant should close the washroom for a short while and have it cleaned and mopped dry.  If that was not possible for whatever reason, the Defendant should have the washroom closed down for maintenance and repair and divert its visitors to the other washroom.  However, the facts of the present case go nowhere near that.  Indeed, I am not sure what the Plaintiff case is as his evidence was full of exaggeration and incapable of belief. 

32.The washroom was well-lit.  Even according to the Plaintiff, he could see the objects inside the washroom clearly.  On the evidence, I am also satisfied that the Defendant had put up adequate notices inside the washroom warning visitors of the danger of wet and slippery floor.  If washroom was of the usual wetness that one would find in an ordinary washroom in a restaurant, it is the usual danger one must expect in using such a washroom and one which the Defendant must be aware of in view of the adequate lighting condition and the warning notices.  In those circumstances, the steps taken by the Defendant were adequate.  Regular cleaning every half hour and as and when complaint was received is adequate to ensure the safety of its users, given the type and nature of business the Defendant was operating and the likely extent to which the washroom would be used for that type of business.  Where the traffic is particularly heavy as in the case of a toilet in a busy shopping mall during peak hours, stationing a cleaner inside the toilet to mop up excessive water may be necessary.  But I do not think the circumstances of the present case called for such a high standard of care.  In the circumstances, the notices together with the system of cleaning, are in my view sufficient to ensure the visitors are reasonably safe in using the washroom.  After all, visitors are also expected to take reasonable care of their own safety.  I am satisfied that the Defendant has discharged its duty of care.

33.As for the need to place non-slip matting on the floor, the Plaintiff has not shown that this is effective or it is a standard required by the Building Regulations or it is a standard commonly adopted by restaurant operators.  In any event, there is no evidence to suggest that the washroom was so wet and slippery that the system of cleaning was inadequate as to require the Defendant to take other measures.

34.Thus, even if the Plaintiff has established a prima facie case of negligence or breach of duty, the Defendant has successfully raised a valid defence.

Conclusion

35.The Plaintiff’s claim is premised on the fact that the floor of the washroom was wet and slippery.  In view of my finding above, the Plaintiff has failed discharge his burden of proof that the Defendant was negligent and in breach of duty in failing to maintain the floor of the washroom in a dry and non-slippery condition so as to be safe for the use of its visitors.  The Plaintiff’s claim is therefore dismissed with a costs order nisi that the Plaintiff shall pay the Defendant’s costs.

Mr C M Chiu, instructed by Messrs Oldham Li & Nie, for the Plaintiff

Mr Dennis Law, instructed by Messrs Fred Kan & Co, for the Defendant