Wong Yuk Foon v. Nice Property Management Ltd

DCPI No. 1025/2006

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO. 1025 OF 2006   

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BETWEEN:

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Coram :      HH Judge Lok in Court

Date of hearing: 28 September & 3 October 2007

Date of handing down of Judgment: 8 November 2007

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JUDGMENT

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1.This case arises out of a “slip-and-fall” accident.  On 15 November 2004, the Plaintiff was a security guard employed by one Express Security Limited working at Chuk Yuen House, Chuk Yuen North Estate (“the Estate”), Wong Tai Sin, Kowloon.  The Defendant was the management company responsible for managing the Estate.  At about 7:55am, the Plaintiff was about to finish her shift of duty which ended at 8am.  It is the Plaintiff’s case that when she was walking into a female toilet in the Estate near the security office (“the Toilet”) to get changed, she slipped on some soapy water near the entrance of the Toilet and fell on the ground.  The Plaintiff was then sent to hospital by ambulance.  Upon examination, it was found that there was a fracture of the bone in the small toe of her left foot.  The Plaintiff therefore brought the present action to claim damages against the Defendant for negligence and breach of occupier’s duty.

2.The Defendant does not dispute that the Plaintiff fell on the ground during the accident, but the Defendant claims that the floor of the Toilet was dry at the material time.  The Defendant also disputes that it was the occupier of the Toilet under the provisions of the Occupiers Liability Ordinance, Cap. 314.

3.I will deal with these issues in turn, and I start with the factual dispute about the accident.

The facts of the accident

4.The Plaintiff testifies at the trial.  According to her, she entered the Toilet with a view to get changed after her shift of duty.  That was her daily routine.  When she entered the Toilet, she noticed that a large area of the floor near the entrance was wet.  She therefore exercised caution in entering the Toilet.  But when the Plaintiff took the first step inside, the water on the floor was so slippery that the Plaintiff slipped and fell on the ground.  There was a wet mop placed on the wall near the entrance, and so the Plaintiff believed that the soapy water on the floor came from the wet mop.  According to the Plaintiff, the floor was usually wet when she went into the Toilet to get changed after her shift of duty everyday, and there was also no sign in the Toilet to warn the users that the floor might be wet and slippery.

5.After the fall, the cleaning worker of the Toilet, Madam Li Lin, came to her rescue.  At first, the Plaintiff thought that her injury was not serious, and so she went into a cubicle in the Toilet to get changed.  After changing into plain clothes, the Plaintiff found that her left foot was very painful.  A report was made and she was then taken to hospital for treatment.

6.The Defendant has also subpoenaed Madam Li to testify at the trial.  According to Madam Li, she had been the cleaning worker in the Estate for about 10 years.  She started her daily duty at 7am.  There were all together 3 toilets near the security office of the Estate: one for males, one for females (i.e. the Toilet) and the third one for disabled persons.  Her daily routine would start with the cleaning work at the Toilet first.  But on the day of the accident, she found that there was someone inside the Toilet, probably the Plaintiff, and so she started with the cleaning work at the male toilet first.  She used the mop to clean the male toilet, and after that, she dried the mop and placed it on the wall near the entrance of the Toilet.  She then went back to the male toilet to carry on with her other work.  After a while, she heard a scream from a lady in the Toilet.  She went there and found that the Plaintiff was lying on the floor.  By that time, the Plaintiff was in plain clothes and not in the uniform of the security guard.

7.During cross-examination, Madam Li agrees that she had used detergent to clean the floor in the male toilet.  After that, she used water to rinse the mop.  When the same mop was later placed in the Toilet, it should have been dry by that time.  Further, the floor in the Toilet was also dry.

8.After hearing their evidence, I find the Plaintiff to be an honest and truthful witness.  She gives a clear account about the occurrence of the accident and her evidence has remained unshaken after cross-examination.  I therefore accept that the accident happened in the way as described by her.

9.Mr. Yip, counsel for the Defendant, tries to attack the creditability of the Plaintiff’s evidence.  He submits that in paragraph 6 of her witness statement, the Plaintiff mentioned that she tripped over a wet mop placed near the entrance of the Toilet, whereas in her oral testimony, she maintains that she slipped because of the water on the floor.  However, I do not find that this affects the creditability of her evidence.  Indeed, the Plaintiff in paragraph 7 of the same witness statement denied that she had ever tripped over the mop, and so I accept that the mistake made in paragraph 6 of the statement was probably caused by the miscommunication between the Plaintiff and her legal advisers, and she in fact slipped because of the soapy water on the floor.  Further, I see no logical reason as to why the Plaintiff had to make up a different version about the occurrence of the accident.

10.On the other hand, the evidence of Madam Li is far from satisfactory.  Firstly, when Madam Li testifies at the trial, she maintains that the mop had been rinsed and there was no soapy water in the mop when the same was placed in the Toilet.  However, this is in direct contradiction to the account given in her statement dated 5 November 2005.  In the latter, Madam Li mentioned that there should still be soapy water or detergent in the mop when she placed the same in the Toilet, as she had not fully rinsed the mop by that time.  As I see it, this contradiction is a material one.  Whether the mop had been fully rinsed before the accident is in substance the crux of this case.  If the mop had not been fully rinsed and there was still residual detergent in it, the soapy water on the floor of the Toilet would probably have come from the mop itself, for which Madam Li would be directly responsible.  Madam Li should have appreciated the significance of such fact, and it is difficult to understand why she has given inconsistent accounts about the same.  This certainly undermines the creditability of her evidence.

11.Further, if the floor of the Toilet was dry and the mop was placed by the wall at the material time, Madam Li cannot give an explanation as to why the Plaintiff fell down and injured herself so badly.  In fact, the Plaintiff’s fall is consistent with her account that the floor was extremely slippery at the time of the accident.

12.According to my observation, Madam Li is simply too obsessed with the idea that she had not made any mistake on the day of the accident, and as a result, contrary to the facts, she maintains that the floor of the Toilet was dry and the mop had been fully rinsed at the time of the accident.  However, as admitted by her in the statement made in 2005, there was actually soapy water and detergent in the mop and that was why the floor was so slippery by that time.  Hence I accept the Plaintiff’s version about the occurrence of the accident.

Liability of the Defendant

13.The Defendant denies that it was the occupier of the Toilet under the provisions of the Occupiers Liability Ordinance.  However, under the management agreement dated 3 March 2004 made between the Incorporated Owners of the Estate and the Defendant, the Defendant was entrusted to maintain and manage all the common parts of the Estate including the Toilet.  Further according to the contract for the cleaning work of the Estate made between the Incorporated Owners of the Estate and Madam Li’s employer, Yee Hop Cleaning Company, the latter was accountable to the Defendant for the cleaning work at the Estate.  Hence by reason of its role and duty at the Estate, the Defendant had sufficient control over the Toilet so as to make it an occupier for the purpose of liability under the Occupiers Liability Ordinance.  Although there were many other persons who could use the Toilet including the staffs of the Incorporated Owners, the Defendant would still be regarded as an occupier of the subject premises.

14.I then have to consider the question whether the Defendant was in breach of the common duty of care under the Occupiers Liability Ordinance.  It is trite law that the Defendant, as an occupier of the Toilet, had a duty to take such care as in all the circumstances of the case was reasonable to see that lawful visitor would be reasonably safe in using the Toilet.  However, the Defendant had not pleaded any step taken by it in discharging such duty.  In fact, no such evidence has been adduced in this regard.

15.In his submission, Mr. Yip argues that the Defendant is entitled to rely on the defence under s. 3(4)(b) of the Occupiers Liability Ordinance, as it had entrusted the duty to take care of the safety of the Toilet to an independent cleaning contractor.  However, such defence has not never been pleaded and so the Defendant is not entitled to take up such argument.

16.Furthermore, according to the dicta in the case of Hsu Li Yun (suing as the administratrix of the estate of Lee On, deceased) v The Incorporated Owners of Yuen Fat Building [2000] 1 HKLRD 900, the Defendant can only rely on such defence provided that the following 3 conditions are satisfied:

(i)     the Defendant had acted reasonably in selecting and entrusting the work to the independent contractor concerned;

(ii)   the Defendant had taken reasonable steps to supervise the performance of the cleaning work; and

(iii) the Defendant had used reasonable care to check that the cleaning work had been properly done.

17.However, there is no evidence in the present case to show that the Defendant had taken any of these measures, either in the selection of the cleaning contractor or in the supervision of the work performed by such contractor.  In fact, the evidence suggests the contrary.  According to the Plaintiff, the floor on the Toilet was usually wet when she used the Toilet for changing everyday, and yet the Defendant had allowed such problem to continue.  In discharging its duty, the Defendant could not just rely on the contractual provisions in the cleaning contract regarding the accountability of the cleaning work, and it had to take positive measures to check whether the contractor had performed the work properly.  It might be fortunate that similar accident had not occurred in the past, but that does not mean that the Defendant was not in breach of its duty.

18.The Defendant also relies on a few authorities such as Cheung Wai Mei v The Excelsior Hotel (Hong Kong) Limited t/a The Excelsior, unreported, CACV No. 38 of 2000 (decision of the Court of Appeal on 22 November 2000), Lee Kit Ha v The Kowloon Motor Bus Co. (1933) Ltd., unreported, HCPI No. 539 of 2000 (decision of Deputy High Court Judge Carlson on 7 Octover 2002) and  Ho Bing Cheung v Lam Yin Tuk t/a Ocean Fast Food & ors., unreported, DCPI No. 66 of 2004 (decision of HH Judge C.B. Chan on 3 December 2004), and argues that the Defendant is not liable because the accident could have happened even if a proper and adequate system had existed.  However, the facts in those cases are quite different.  The defendants there had adopted various systems of work to clean the floors of the premises.  As the accidents could not have been avoided even with adequate systems of work, the courts accepted that the defendants had discharged their duties as occupiers.  In our present case, there is simply no evidence that the Defendant had adopted any system to check whether the cleaning contractor had performed its work properly.  If it had done so, it would probably have found out that the floor on the Toilet was usually wet and slippery after the worker performed the cleaning work each day.  Neither did the Defendant put up any sign to warn the cleaning worker and the users of the Toilet about the danger of slippery floor.  In fact, a carpet was placed at the entrance of the Toilet after the occurrence of the accident, and this clearly shows that there were indeed measures that could have been taken by the Defendant to avoid the occurrence of the accident.  If the Defendant had properly discharged its duty, the accident could have been avoided in the present case.

19.I also do not find that there is any contributory negligence on the part of the Plaintiff.  According to the Plaintiff’s evidence of which I fully accept, she did notice that the floor was wet before she entered the Toilet.  Despite the caution exercised, she did not expect that the floor was so slippery, probably caused by the detergent or soapy water flowing out from the wet mop, and she still slipped and fell on the ground.  This is certainly different from the other cases where the users of the premises are expected to have noticed the water on the floor and yet they had failed to do so.  In such circumstances, the Plaintiff cannot be accused of not having taken reasonable step to protect herself, and I find no contributory negligence in the present case.

20.Based on the aforesaid reasoning, I find in favour of the Plaintiff on the issue of liability, and the Defendant is fully liable for damages suffered by the Plaintiff.

Quantum

21.The Plaintiff was aged 46 at the time of the accident.

22.After the accident, the Plaintiff was found to have fracture in the 5^th metatarsal bone in the left foot.  The fracture was treated conservatively with medicine and splintage.  After the accident, the Plaintiff was granted sick leave from 15 November 2004 to 3 January 2005, a total of 48 days.

23.The Plaintiff was examined by her expert in orthopaedics, Dr. Jack Wong, on 18 May 2007.  The contents of the medical report are not in dispute.  According to Dr. Wong, X-ray examination shows that the fracture suffered by the Plaintiff has healed well.  However, the Plaintiff would continue to suffer residual but permanent pain in his left foot, particularly when she sits, stands or walks for a prolonged period of time.  The pain would also disturb her sleep.  In addition, there is mild left calf muscle wasting.  Dr. Wong is of the view that the Plaintiff can resume her pre-accident occupation as a security guard, though she has to take rest from time to time after prolonged sitting, standing or walking, and she is also capable of taking many sedentary jobs such as causal worker in restaurant.

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

24.Mr. Poon, counsel for the Plaintiff, has referred me to decisions such as To Ying Wa v Cargo-Land (Warehouse) Devlopment Ltd., unreported, HCPI No. 441 of 2000 (decision of Master de Souza on 22 January 2001) and Lee Sze Wai v Law Chi Kin, unreported,DCPI No. 44 of 2001 (decision of Deputy Judge R. Yu on 10 May 2002).  The plaintiffs there suffered fractures of similar bones in their feet and they obtained damages for PSLA in the region of $150,000 and $200,000 from the tortfeasors.  On the other hand, Mr. Yip relies on the case of Wong Sam Mui, the administratrix of the estate of Tam Wan Loong, deceased v Fan Yiu Sum t/a Fan’s Stevedores, unreported, HCA No. A1817 of 1994 (decision of Master O’Donnell on 6 March 1995).  In that case, the deceased had an accident in 1984 during which he suffered fracture of the 2^nd and the 3^rd right metatarsal bones.  He died because of natural cause in 1990, and his estate was awarded $50,000 as damages for PSLA in respect of the accident.

25.Undoubtedly, the injury suffered by the Plaintiff in the present case is less serious than that suffered by the plaintiff in the case of To Ying Wa, in which the plaintiff obtained $200,000 as damages for PSLA.  On the other hand, the quantum in Wong Sam Mui is simply too low.  This is indeed an old case, and the deceased’s estate was only entitled to claim for the pain suffered by the deceased for 6 years prior to his natural death which was quite unique in that particular case.  In my judgment, in assessing the damages for PSLA, the court cannot just look at the injury suffered by a plaintiff, and instead the court should also inquire as to whether the plaintiff would suffer any long-term or permanent complications as a result of the accident.  As the Plaintiff in the present case will continue to suffer genuine pain in her left foot, I am of the view that she is entitled to claim for a higher award for PSLA.  Hence, I allow the Plaintiff’s claim of $150,000 under this head of damages.

(ii)   Loss of earnings

26.At the time of the accident, the Plaintiff’s monthly income as a security guard was $5,800 with the working hours from 8pm to 8am.  Further during weekdays, she worked as a part-time Customer Service Centre Assistant for the MTR Corporation.  She has been taking up such part-time job for about 11 years, and her income from such job was about  $2,880 a month.

27.After the accident, the Plaintiff continued to work as a security guard for the same employer until her own resignation on 28 February 2006.  She was then engaged in the job of a general worker in a restaurant in March 2006 earning a monthly salary of $1,800.  In September 2007, she started to work as a service attendant in a private club earning $6,000 a month.  All along, the Plaintiff has not ceased her part-time job with the MTR Corporation, from which she was earning the same level of salary.

28.Taking into account the medical report by Dr. Wong, it is clear that the Plaintiff could have continued to work as a security guard.  Although the Plaintiff would have to take rest after prolonged sitting or walking, this would not affect her work.  In fact, the Plaintiff had continued to work for the same employer until February 2006.  During cross-examination, the Plaintiff agrees the reason for her resignation was that her employer was going to assign her to work at a different location, and so her loss of earnings after she left Express Security Limited was not caused by the accident itself.  Hence, apart from loss of earnings suffered by the Plaintiff during the sick leave period, the Plaintiff is not entitled to claim for any other pre-trial or future loss of earnings.

29.It is common ground that the Plaintiff’s loss of earnings during the sick leave period was $14,914.17, and I allow the claim accordingly.             

(iii)   Loss of earning capacity

30.For the loss of earning capacity, the Plaintiff claims a sum of $80,000.  The Plaintiff’s injury is relatively minor, nevertheless, she has to take rest to relieve her pain after prolonged sitting, walking or standing.  Although I do find that the Plaintiff can still continue to work as a security guard earning probably the same level of income, the pain would definitely cause her some inconvenience in her work.  In the case of a dismissal, it would be more difficult for her to find another suitable job.  In such circumstances, I accept that there is a real risk that the Plaintiff will suffer financial damages in the future because of her disadvantages in the labour market, and hence I allow the Plaintiff to claim for a sum of $80,000 as loss of earning capacity, which is roughly equivalent to about 9 months of income earned by the Plaintiff at the time of the accident.

(iii)    Other special damages

31.The figures for the claims of medical expenses and traveling expenses are agreed as $1,000 and $500 respectively.  In respect of the claim for nourishing food expenses, the Plaintiff claims a conventional sum of $2,000 to $3,000 while the Defendant suggests a figure of $500.  Although the Plaintiff’s injury is relatively minor, I would still allow a lower conventional sum of $2,000 for such expenses.

32.Based on the aforesaid, the quantum of the Plaintiff’s claim is assessed as follows:

(i)	PSLA	:	$150,000.00
(ii)	Loss of earning capacity	:	$80,000
(iii)	Medical expenses	:	$1,000
(iv)	Traveling expenses	:	$500
(v)	Nourishing food expenses		$2,000
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			$233,500
	Less employees’ compensation payment	:	$9,512
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	Total	:	$223,988

33.I therefore grant judgment in favour of the Plaintiff in the sum of $223,988.  On the question of interest, I make an order nisi that the Plaintiff is entitled to interest on the damages for PSLA at the rate of 2% per annum from the date of the writ to the date hereof and interest on the medical, traveling and nourishing food expenses at the rate of 5.375% per annum, being half the existing judgment rate, from the date of the accident to the date hereof.  I also make an order nisi for the costs of the action in favour of the Plaintiff with certificate for counsel.  The order nisi shall be made absolute 14 days after the date of the handing down of this judgment.

Mr. Jackson Poon, instructed by Messrs. B. Mak & Co., for the Plaintiff

Mr. Arthur Yip, instructed by the Messrs. Simon Chan & Co., for the Defendant