Cham Cheung Sing v. Yung Pak Wa and Others

CACV 224/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 224 OF 2007

(ON APPEAL FROM HCPI NO. 206 OF 2003)

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Before: Hon Tang VP, Yeung JA and Kwan JA in Court

Date of Hearing: 5 February 2010

Date of Judgment: 5 February 2010

Date of Reasons for Judgment: 5 March 2010

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REASONS FOR JUDGMENT

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Hon Tang VP (giving the reasons for judgment of the Court):

1.The 1^st defendant was the operator of a restaurant known as the “328 Kitchen” (“the restaurant”) situated at the Ground Floor and Mezzanine Floor (“the Cockloft”) of Shop B, Wing Wah Mansion, Nos.26, 28 and 30, Kam Wa Street, Shaukeiwan, Hong Kong.  Access to the Cockloft from the Ground Floor was through a metal staircase which was about two feet wide.  The metal staircase is fairly steep with a handrail running along one side.  The defendant had a license to operate a restaurant on the Ground Floor.  The Cockloft was not part of the licensed premises.  Although the 1^st defendant had public liability insurance in respect of the Ground Floor the coverage did not extend to the Cockloft. 

2.On 1 April 2001, the plaintiff together with his family and friends, went to the restaurant.  The Ground Floor was full so they were taken to a table at the Cockloft.  There they were served food and bottles of beer by a waitress.  After dinner at about 10 pm, the plaintiff left the Cockloft through the staircase.  He slipped and fell on the top of the staircase.  The plaintiff was taken by ambulance to the Pamela Youde Nethersole Eastern Hospital (“PYNEH”).  As a result of the fall, he has become tetraplegic.

3.At trial, the plaintiff was on legal aid and was represented.  The 1^st defendant, however, appeared in person.  After trial Poon J awarded damages of HK$12,528,093.74 in favour of the plaintiff.  The plaintiff, however, had in separate proceedings, namely, HCPI 222 of 2004, recovered HK$2.5 million.  After that was deducted, judgment was entered against the 1^st defendant in the sum of HK$10,028,093.74.  We were told that the 1^st defendant was unable to pay any part of the judgment.  In fact the 1^st defendant was and remains a recipient of public assistance.

4.On appeal, the 1^st defendant has been granted legal aid and he was represented by Ms Alice Mok, SC, and Mr Alvin Y H Cheung.  The plaintiff, however, was denied legal aid.  Fortunately, he was able to obtain the help of the Bar Association’s Free Legal Service Scheme.  He was represented by Mr Robert Whitehead, SC and Mr Simon Ho.  The court is indebted to them for their assistance.

5.By an order made by consent by Cheung JA on 24 June 2009, leave was granted to the 1^st defendant to adduce additional evidence on appeal.  The additional evidence are:

“(1)  a Discharge Summary issued to the Plaintiff by Pamela Youde Nethersole Eastern Hospital (‘PYNEH’) dated 13 June 2003;

(2)    an Ambulance Journey Record of the Plaintiff dated 24 January 2006;

(3)    a Nursing Assessment Form that recorded the assessment made against the Plaintiff at 2300 hours dated 1 April 2001;

(4)    Integrated Progress / Treatment Sheet that was recorded at various dates;

(5)    3 copies of Request for Consultation from various departments at PYNEH dated 2 April 2001;

(6)    a Request for Consultation signed by Dr. L. Chan of PYNEH on behalf of Dr. I. Tan of PYNEH on 3 April 2001;

(7)    3 Nursing Notes / Checklist on Internal Transfer of Plaintiff dated 2 and 4 April 2001;

(8)    a Psychosocial Spiritual Service Referral Form dated 3 April 2001; and

(9)    a Physiotherapy In-Patient Referral Form dated 4 April 2001.”

6.In Ms Mok’s skeleton submission, she submitted:

“6.   The various documents (the Documents), as particularized in para. 6 of the Affirmation of the 1^st Defendant of 27/4/09 (B1, 19), were all relevant and vital for a proper determination of whether the Plaintiff was intoxicated at the time of the accident. The relevant parts of the record are as follows:-

(i)    The Discharge Summary of 13/6/03, B1, 42 to 45 which recorded the following:-

‘Diagnosis Toxic effect of alcohol (980.9 E 860.9)’

‘Chronic Drinker’

‘Drunk on 1/4/01 S/F rolled over the stairs about 3m with H1, facial injuries

? neck injury, chest abrasion, O/E alcohol intoxication GCSE3M5V4.......’

The reference to 980.9 and E860.9 are ‘ICD-9 Codes’, part of a classification used in assigning codes to diagnoses, the International Classification of the Diseases and Related Health Problems, published by the World Health Organization. Both the codes 980.9 and E860.9 refer to a diagnosis of alcohol poisoning by an unspecified alcohol.

(ii)  The Ambulance Journey Record of 1/4/01, B1, 46 & 47 which recorded:-

‘  Level of    Consciousness

Initial  Condition

Condition    at

A&E

Verbal response’

‘Remark     醉酒受傷’

(iii)  Nursing Assessment Form, B1, 48 to 51 which recorded:-

‘ Time of Assessment   2300

Informant   Relative

Drinking Habit    2-3 cans of beer

Cause of Admission   S/F Drunk

Consciousness   Conscious

Emotional state   Calm’

(iv) Integrated Progress/Treatment Sheet, B1, 52 to 70 which recorded:-

(a)	‘1/4/01 2300	GCS E3M5V5............S/F at stairs after drinking of 5 cans of beer........... limbs power cannot be assessed but patient is uncooperative’ at page 52
(b)	‘2/4/01 9:55am	Drunk last night S/F from one flight of stairs.......& loosening of teeth......’ at page 55
(c)	‘3/4/01 0900	Chronic drinker Admitted x drunk & fall & roll over stairs’ at page 60

(v)   Request for Consultation, B1, 71 to 74 which recorded:-

(a)   ‘Date 2/4/01    Time 0845

Drunk →roll over stairs with HI, .......’ at page 71

(b)   ‘Date 2/4/01    Time: 715p

S/F from one flight of stairs after drunk last night.......’ at page 72

(c)   ‘Date 2/4/01

Drunk →Roll over stairs.......’ at page 73

(d)   ‘Date 3/4/01

was admitted because drunk & slip & fall.......’ at page 74

(vi)  Three Nursing Notes dated 2/4 and 4/401, B1, 75 to 80 which recorded, inter alia:-

(a)  ‘.......Drinker.....Drunken 1/4/01 S/F and rolled over the stairs.......

Neurological conscious

Communication Barrier Nil    ’ at page 75

(b)  ‘1/4 Drunk H1 strong alcohol smell in admission fell & roll over the stairs in restaurant.......

Neurological conscious

Communication Barrier Nil    ’ at page 77

(c)  ‘ ....... 1/4/01 Drunk S/F and rolled over the stairs.......

Neurological conscious

Communication Barrier Nil    ’ at page 79

(vii)  A Psychosocial Spiritual Service Referral Form dated 3/4/01, B1, 81 which recorded:-

‘drunk & slip & fell........’

(viii)  A Physiotherapy In-Patient Referral Form of 4/4/01, B1, 82 to 86, which recorded:-

‘4/4/01    Drunk on 1/4/01 night, S/F from one flight of stairs....... chronic drinker.....’ at page 82

7.However, it is clear from the 1^st defendant’s affirmation filed on 7 May 2009 that items (1) and (2) of the additional evidence were included in the Pre-trial Review (“PTR”) bundle given to him for the PTR before Poon J on 26 June 2006.  The learned judge was aware of these documents.  Indeed, the discharge summary was mentioned in item 28 in the plaintiff’s list of documents. 

8.Aninitial notice of appeal dated 20 July 2007was prepared by the 1^st defendant, when he was acting in person.  Later, a supplementary notice of appeal dated 20 January 2010 was filed, asking, inter alia, that the plaintiff’s claim be dismissed.  Alternatively, that the 1^st defendant be held only partly liable for the plaintiff’s injuries and that further alternatively for a new trial.  By a summons dated 26 January 2010, the 1^st defendant applied for leave to file a 2^nd supplementary notice of appeal.  Essentially, the 1^st defendant’s case on appeal is that the additional evidence showed that the plaintiff was drunk at the time of the accident, and that it was the drunkenness which was the cause of the accident.  Hence, the plaintiff’s claim should be dismissed or that he should be held to be contributorily liable for the accident.  Alternatively, having regard to the additional evidence, there should be a new trial.

9.Ms Mok submitted that the additional documents are relevant to the issue whether the plaintiff was intoxicated at the time of the accident as they show the following:

“7.    The Documents are relevant to the issue of whether the Plaintiff was intoxicated at the time of the accident, as they showed the following:-

(a) That the Plaintiff was a chronic drinker;

(b) That he had consumed 5 cans of beer prior to the fall;

(c) That on admission he was found to have the strong smell of alcohol, and was diagnosed with alcohol poisoning;

(d) That he was drunk, fell and rolled down the stairs;

(e) That he was able to give verbal response in the ambulance, and found to be conscious upon admission at the hospital;

(f)  That he was unco-operative when his limbs' power was assessed on admission;

(g) That the information was supplied either by the Plaintiff and / or his wife who escorted him to the hospital.”

10.By intoxicated, we understood Ms Mok to mean that the plaintiff was drunk.  It is common ground that the plaintiff had been drinking and at trial the dispute was over how much and its effect on him.  The question whether the plaintiff was drunk at the time of the accident was clearly an issue before the learned judge.  Thus, in para. 40 of the judgment the learned judge identified 5 main issues, the second of which was:

“(2)  Was he drunk when he fell?”

11.At trial, the 1^st defendant relied on a statement given by one Law Huen Ling, a waitress who worked at the night of the accident, given to the loss adjuster appointed by the insurer to investigate the accident.  But as the learned judge pointed out Ms Law’s statement:

“41.  … did not assist him (the 1^st defendant) a bit for Ms Law did not describe how the accident took place at all or assert that the plaintiff was drunk at the time. …”

12.At trial, the plaintiff had given evidence and called 4 witnesses: his wife Mrs Cham, Mrs Tong and Mr Tong and Mr Cheung Hoi Wing. 

13.Mr Whitehead submitted and we agree:

“The Trial Judge made the following findings of primary fact based on eye witness accounts from witnesses whose evidence he described as clear, cogent and consistent (paras. 51 and 52).

(i) The Plaintiff arrived at the restaurant at about 7 pm and left at about 10 pm (paras. 43 and 45).

(ii)    The total number of bottles of beer ordered by the party that evening ranged from four to six (para.50).

(iii)   During the approximate three-hour period that the Plaintiff was in the restaurant, he consumed between one to two bottles of beer (para.44).

(iv)   The Plaintiff was not drunk nor was he incapacitated by drink (paras. 50 and 51).

(v)    The staircase was damp and had squashed food scraps/food residue on it which rendered it slippery (paras. 47 and 67).

(vi)   The Plaintiff slipped and fell at the top of the staircase because the surface was slippery (para.68).”

14.The learned judge dealt specifically with the question whether the plaintiff was drunk and said:

“52.  On the question if the plaintiff was drunk, I need to deal with this point for completeness.  After the accident, the plaintiff was sent to Pamela Youde Nethersole Eastern Hospital (‘PYNEH’).  The Head Trauma Case Sheet contained remarks : ‘Drunken at night 2200 after 2 bottles of beer’ and ‘Intoxicated Strong Smell of Alcohol’.  At a first glance, these remarks seemingly contradict the plaintiff’s case that he was not drunk.  However, it is undisputed that the plaintiff only regained full consciousness seven hours after admission to PYNEH.  While he was unconscious, it was impossible to verify if he was drunk at the time.  In the circumstances, I am of the view that the remark that he was intoxicated is no more than a subjective speculation by the medical officer attending him.  I will not attach any weight to it.  I prefer the clear and cogent evidence of the plaintiff and his witnesses that he was not drunk.”

15.Later, he concluded:

“67.  For the above reasons, I find that the defendant had breached his duty of care both at common law and under OLO by failing to ensure that the Staircase was safe to be used as an access to and egress from the Cockloft.  It was damp and rendered slippery by deposits of food residue.  Cartoon boxes were placed at the left hand side at the top of the Staircase.  Only a set of handrail was installed on one side the Staircase.  No warning sign was posted up at the top of the Staircase warning against wet or slippery surface.

68.   I find that the plaintiff slipped and fell at the top of the Staircase because the surface was slippery.  The accident was caused by the defendant’s breach of duty.

69.   I also find that the plaintiff was not drunk and was not guilty of any contributory negligence as alleged.

70.   Finally, I find that it was the defendant who alone dragged the plaintiff to the back alley after the accident while he was still unconscious without first having supported or immobilized his neck.  I accept the submission of Mr Leung, appearing for the plaintiff, that common sense dictates that the 1^st defendant ought not have dragged the plaintiff to the back alley and it was foreseeable that the mishandling of the plaintiff in such a way was likely to aggravate his injury.  Indeed, according to Dr Yu Yuk Ling (‘Dr Yu’)    (Neurologist), this dragging incident materially contributed to the spinal cord injury that the plaintiff suffered.  And I so find.”

16.These are primary findings of fact.  In Ting Kwok Keung v Tam Dick Yuen & Ors (2002) 5 HKCFAR 336, Bokhary PJ in delivering the main judgment of the Court of Final Appeal explained the limited basis upon which an appellate court may interfere with a primary finding of fact.  There is no basis upon which we can interfere with the learned judge’s finding of fact.  The learned judge was satisfied after seeing and hearing the plaintiff and his witnesses that the plaintiff was not drunk at the material time.

17.We turn to consider the medical evidence which was available to the learned judge.  He had a medical report provided by Dr Yu Yuk Ling dated 20 October 2003.  In that report, under item 2.7, Dr Yu stated that the documents made available to him included:

“2.7  Medical records from Pamela Youde Nethersole Eastern Hospital (PYNEH)”

18.In para. 5 presumably relating to what he had been told by the plaintiff, Dr Yu said:

“5.    … Beer was ordered and consumed by Mr. Cham, Mr. and Mrs. Tong. Mr. Tong’s recollection was that the amount of beer ordered was not excessive. …”

19.Later, in the report, Dr Yu said:

“7.    He was taken by ambulance to Pamela Youde Nethersole Eastern Hospital (PTNEH). According to the medical records, in June 2000 Mr. Cham was under care of the neurosurgeons at PYNEH because of right frontal contusion. Serial computed tomography (CT) showed that the contusion was resolving. Mr. Cham defaulted follow-up. He was a ‘Chronic drinker’ but otherwise healthy. At the time of the accident on 1.4.2001, he slipped and fell, and rolled over the stairs about of about 3 meters. There was an entry in the medical notes ‘? Drunk at night 2200’. He sustained injuries of the head, face, neck and chest. Examination revealed ‘strong smell of alcohol’, facial and upper lip lacerations, and loose upper jaw teeth. The Glasgow Coma Scale (GCS) score of 12/15 [E3M5V4], pupils equal (5mm) and reactive to light, and absent tendon reflexes. CT brain showed old right frontal contusion, but no intracranial haemorrhage or skull fracture. X-ray cervical spine revealed good alignment and no fracture.

He regained full consciousness after 7 hours and complained of paralysis and loss of sensations in his limbs. Reassessment showed quadriplegia with a sensory level at C5 and urinary retention. CT of cervical spine showed spinal stenosis from C3 level downwards. Magnetic resonance imaging (MRI) of the cervical spine revealed spinal cord compression at C3/4, C4/5 and C5/6 levels due to spondylotic tissues on top of spinal stenosis. Spinal cord contusion was diagnosed and the orthopaedic surgeons took over his care.”

20.It is important to note that the learned judge had the discharge summary and the ambulance journey record as well as the head trauma case sheet.  The ambulance journey record recorded the ambulance journey at about 22:35 hours on 1 April 2001.  The head trauma case sheet was probably prepared at about 22:53 on 1 April 2001.  So they were the earliest documents.  He referred to the head trauma case sheet (item 19 in the plaintiff’s list of documents) specifically in para. 52 of the judgment.  We note that in the head trauma sheet under motor function there were the handwritten words “cannot be illicited because intoxicated”.  It is clear that the plaintiff’s spinal injury was not diagnosed until 7 hours after his admission.  So the fact that he had no motor function was initially misdiagnosed as a result of intoxication. 

21.Mr Whitehead submitted and we agree that those documents showed the following:

“(a)  ‘drunk at night 22:00 after two bottles of beer;

(note the ? next to the word drunk)

(b)   fell and rolled over the stair;

(c)    dizzy and vomited in the ward;

(d)   conscious since injury – ‘impaired’;

(e)    under social history – ‘chronic drinker’;

(f) under cerebellar signs – ‘intoxicated’;

(g)    under further remarks – ‘intoxicated, strong smell of alcohol’;

(h)    verbal response – ‘confused conversation’.”

22.When the contents of these documents are compared with the contents of the rest of the additional documents so helpfully summarised by Ms Mok, it is clear that the rest of the additional documents add little on the issue whether the plaintiff was drunk at the time.  The rest of the additional documents consist of a number of other internal medical memos prepared during the extensive treatment of the plaintiff.  It is sufficient to refer to two of them.  First, in term of time, is a nursing assessment form prepared at about 23:00 hours, at about the same time as the head trauma case sheet.  Mr Whitehead pointed out this form was prepared in consultation with a relative who told the hospital that the plaintiff’s drinking habit was 2 to 3 cans of beer a day (not that he had drunk 2 to 3 cans of beer).  Secondly, the Integrated Progress/Treatment Sheet where against the date of 1 April 2001, there was a reference to the fact that the plaintiff had slipped and fell:

“… after drinking of 5 cans of beer.”

23.But as Mr Whitehead pointed out the plaintiff was served beer in bottles not cans at the restaurant.  It is also not clear when he was supposed to have consumed 5 cans of beer.  Nor is the source of this information known. 

24.In our view, there is nothing in the rest of the additional documents which is materially different from the ambulance journey record, the head trauma case sheet, or the discharge summary. 

25.It was complained that there has been a deliberate suppression of material evidence by the Director of Legal Aid.  Item 28 in the plaintiff’s list of documents stated:

“Item No.	Date	Particulars of Documents
28.	13.6.2003	Medical Record of Pamela Youde Nethersole Eastern Hospital and Discharge Summary

26.Ms Mok pointed to the fact that only a single date was given and submitted that only the discharge summary was covered by item 28.  So the other documents were suppressed.  But item 28 referred to both medical record and discharge summary and not merely the discharge summary.  There is also evidence from the Legal Aid Department that item 28 included other medical reports.  Moreover, as noted above, the learned judge was aware of the ambulance journey record and commented specifically on the head trauma report.  Of course, he also had the discharge summary.

27.Ms Mok referred to the case of Meek v Fleming [1961] 2 QB 366, where the fresh evidence did not relate directly to an issue but only to credit but because the judge had been misled in a material particular, the judgment was not allowed to stand. 

28.There is no basis for the suggestion that there has been deception or impropriety at trial.  Nor had the learned judge been misled.  The subsequent medical reports add little to what the other reports have provided.  In the circumstances of this case, the best evidence on whether or not the plaintiff was drunk at the material time was the evidence of the eye-witnesses. 

29.We note that the additional evidence was admitted by consent.  But for the consent, we doubt whether they should have been admitted at all.  They do not satisfy conditions 1 and 2 in Ladd v Marshall [1954] 1 WLR 1489.  The conditions are:

“ … first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; secondly, the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; thirdly, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible.”

30.By the 2^nd supplementary notice of appeal, Ms Mok sought to challenge certain primary findings of fact made by the learned judge.  Quite rightly she made no separate submission in relation to them.  We are satisfied that there is no basis upon which we could disagree with the learned judge’s findings.  In other words, the 1^st defendant’s appeal depended entirely on the additional evidence.  For the reasons given above, we were satisfied that the appeal had no merit and have dismissed the appeal.  That being the case it is unnecessary for us to deal separately with contributory negligence.  The question of a new trial naturally would not arise. 

31.Lastly, in the original notice of appeal filed by the 1^st defendant, he said:

“三、  …我懷凝梁偉文大律師及韋燕璇律師提供利益俾潘兆初法官，這純屬個人推測，並無實質証據支持。

……

五、 …我有一種感覺，一個反中亂港的反動勢力，在HCPI206/2003之案件中，法援署長委派之韋燕璇律師，起了重大作用，犯下滔天罪行。我將向保安局長李少光先生舉報，並愿意提供更多資料，把一切犯罪分子繩之於法。”

32.None of these allegations has any basis and we just mention them for the sake of completeness. 

Ms Alice Mok, SC & Mr Alvin Y H Cheung, instructed by Messrs Au Yeung, Cheng, Ho & Tin, assigned by the Director of Legal Aid, for the 1^st Defendant

Mr Robert Whitehead, SC & Mr Simon Ho, instructed by Bar Free Legal Service Scheme of the Hong Kong Bar Association, for the Plaintiff