Choi Pak Sum v. Lam Lung Ki and Another
Read the full judgment text of HCPI 529/2008 on BabelCite. This High Court CFI judgment was delivered on 3 December 2010.
1. This is an action for damages for personal injuries suffered by the Plaintiff as a result of her slip and fall accident on 9 July 2007. Her case is that the accident occurred inside the Defendants’ restaurant and was caused by the Defendants’ breach of the common duty of care under the Occupiers’ Liability Ordinance and/or negligence. She suffered fractures
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HCPI 529/2008 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PERSONAL INJURIES ACTION NO. 529 OF 2008 ____________ BETWEEN
____________ Before: Hon To J in Court Dates of Hearing: 21, 22, 24 and 27 September 2010 Date of Judgment: 3 December 2010 _______________ J U D G M E N T _______________ Introduction 1.This is an action for damages for personal injuries suffered by the Plaintiff as a result of her slip and fall accident on 9 July 2007. Her case is that the accident occurred inside the Defendants’ restaurant and was caused by the Defendants’ breach of the common duty of care under the Occupiers’ Liability Ordinance and/or negligence. She suffered fractures of her right patella and right sixth and seventh ribs. At the time of the accident, she was unemployed but was allegedly about to take up employment as a masseuse and tutor at a monthly salary of $20,000. She claims loss and damages in excess of $3 million. The Defendants deny liability on the ground that the accident took place outside their restaurant and put the Plaintiff to strict proof of the cause of the accident and her loss and damages. 2.Counsel agree that the disputes in this case are purely factual. There is no dispute that the accident occurred on 9 July 2007 and the Plaintiff suffered injury. The issues are:
The witnesses and their credibility 3.The Plaintiff was born in 1972 and was 34 years of age at the time of the accident. She was divorced and living with her two sons. She started receiving public assistance in the amount of $8,000 to $9,000 since October 2005. She used to be a masseuse but had been unemployed at least since receiving public assistance. There is no dispute that she met with an accident on 9 July 2007 and suffered injuries. She said that the accident occurred inside the Defendants’ restaurant. I have no doubt about that. She claimed that at the time of the accident she was about to commence her employment as a masseuse at a monthly salary of $20,000. On my analysis of the totality of the evidence, I consider that a concoction and disbelieve that part of her evidence. She was selective in telling the truth. 4.So Ho Long (the “son”) is the Plaintiff’s son. He was ten years old at the time of the accident. He was with the Plaintiff when the accident occurred. He corroborated the Plaintiff’s evidence. I accept his evidence. 5.Lau Wan (“Lau”) is the operator and licensee of Telbo Sauna. She corroborated the Plaintiff’s evidence in respect of the Plaintiff’s impending employment with Telbo Sauna. She impressed me as an incredible witness. I do not accept her evidence. 6.Lam Kwok Ping (“DW1”) and his elder brother, i.e. the first named Defendant, jointly operated the restaurant. He was a graduate in engineering from an overseas university. He took charge of the restaurant on alternate days with his brother. He was at the cashier counter at the time of the accident. He testified that after the Plaintiff and her son had meal in his restaurant, they left without any mishap. He said that the accident did not occur inside his restaurant. He distanced himself from his other witnesses saying that he had never seen their witness statements and other documents. I do not believe in his evidence. 7.Yu Ching Han (“DW2”) is the proprietor of a stall selling shoes in Tung Choi Street near the restaurant. She frequented the restaurant some time after 10 pm every night until about 11:30 pm. She testified that she saw no accident inside the restaurant on the night in question. She learned about this action in mid 2008 from DW1 and volunteered to give evidence for the Defendants. When her evidence is tested against the totality of the evidence, I find her incredible and do not accept her evidence. 8.Lo Ka Ming (“DW3”) is a sales supervisor of PCCW. He went to the restaurant every night at about 10 pm to wait for his junior salesmen to report to him about their sales. Some months after the incident, he heard the Defendants discussing in the restaurant about how to deal with this litigation. As he recalled there was no accident inside the restaurant, he volunteered to give evidence for the Defendants. I do not find his evidence reliable. The accident 9.It is common ground that the Plaintiff and her son had snack in the restaurant at about 11:00 pm on 9 July 2007. Then, the Plaintiff went to the cashier counter at the entrance to pay for the meal. 10.According to the Plaintiff, after making payment she turned left and just as she was about to move forward, she slipped and fell on the ground because of the wet and greasy floor. She fell face downwards with both her knees hitting the floor and with her head outside the restaurant. At the time, the glass door at the entrance was open. There was no floor mat at the entrance inside the restaurant. She got up and went out of the restaurant. She felt pain on her knees and side. A bald headed waiter who happened to be outside the restaurant told her to sit on one of the chairs outside the restaurant provided for waiting customers. She sat on the chair and rested. She noticed the floor inside the entrance of the restaurant was wet and greasy and she saw that waiter scrub the floor with his shoes. Soon, she began to feel very painful. She called her friend who was operating a small shop in Nathan Road nearby to call for the police. She was unhappy about the unconcerned attitude of DW1 in not giving her assistance after seeing her fall. She typed a message on her mobile phone and asked her son to show it to DW1. It was then that DW1 came out, gave her back her mobile phone and arranged for a waiter to buy plaster. She requested for a large plaster but was only given small ones. Then the ambulance arrived and took her to Kwong Wah Hospital for medical examination. 11.DW1’s evidence is that after the Plaintiff had paid, she left the restaurant without any mishap. A few minutes later, a waiter reported to him that someone got hurt outside the restaurant. He and the waiter went outside and saw the Plaintiff sitting on one of the chairs. He approached the Plaintiff and made inquiry. The Plaintiff told him that she slipped in the street, injured her knees and asked for plaster. He gave $10 to his waiter and told him to buy plaster for the Plaintiff. 12.The main criticism leveled by Mr Cheng, counsel for the Defendants, against the Plaintiff during cross-examination was that she omitted in her witness statement about calling her friend to call for the police, the mobile phone message to DW1 and the request for plaster. There is no dispute about the Plaintiff’s request for plaster. Her evidence that it was her friend and not she who called for the police is inconsistent with her witness statement. The inconsistency would not have been discovered but for the Plaintiff’s own disclosure. According to the police 999 report, the accident was reported by the informant’s friend. This confirmed the Plaintiff’s evidence in Court is correct. She could not be criticized for telling the truth and correcting a mistake in her witness statement. Anyway, whoever actually called for the police is not material. The evidence about the mobile phone message is new, but is also neither here nor there. I do not think these criticisms do any damage to the Plaintiff’s credibility. 13.On the other hand, DW1’s evidence and the way he conducted this litigation attracts more criticism. His evidence that he was told by a waiter about the Plaintiff’s fall a few minutes after she had left is not without difficulty. In a few minutes, the Plaintiff would have been two hundred metres away. It would be difficult to imagine her falling some distance away and then returned to sit outside the restaurant. This may not be fatal for there was a possibility that the Plaintiff fell immediately outside the restaurant and it took a few minutes before her presence was noticed by the waiter. 14.DW1 is one of the two partners of the restaurant. He was the one in charge at the time of the accident. Yet he tried to impress the Court that he had distanced himself from this litigation. A few months after the accident, the Defendants received an enquiry from the Legal Aid Department about the accident inside the restaurant. On 12 November 2007, DW1 replied denying there was an accident inside the restaurant but made no protest about the Plaintiff’s admission that she slipped in the street. Under cross-examination, he explained that that was because the letter was written by his brother and he was only asked to sign. He had not read the letter. He was a university graduate whereas his brother had only studied in primary school. The letter was fluent, well written and did not appear to have originated from the hands of someone with only a primary school education. That apart, in the light of the serious allegation and possible litigation, his evidence that he signed at the instruction of his brother without reading it is simply incapable of belief. 15.Apart from that letter there were three confirmation notes addressed to the Legal Aid Department from one of his waiters Choi Yun Chiu, Chan Chi Ming and DW2 confirming that there was no accident inside the restaurant at the material time. Despite the possibility of litigation, DW1 took no steps to obtain witness statements from two of those three potential witnesses and secure the presence of Choi Yun Chiu who presumably was the bald headed waiter who first reported to him about the accident outside the restaurant. Again, DW1’s explanation was that he had nothing to do with those notes. 16.When this action commenced, DW1 said that he was not the one who instructed solicitors for the Defendants. He was cross-examined on the inconsistencies between the defence and his evidence. The Defendants pleaded in paragraph 3 of the Defence that DW1 was the first one of the Defendants who saw the Plaintiff sitting injured outside the restaurant and had attempted to make enquiry from the Plaintiff but the Plaintiff did not respond. This is inconsistent with his evidence in Court that it was his waiter who first reported to him about the Plaintiff’s accident outside the restaurant and not that he was the first one to notice the Plaintiff sitting injured outside the restaurant. Artificial though it may be, that pleading is strictly speaking correct so far as the first of the Defendants to see the Plaintiff after the accident was concerned, but one would not understand the pleading that way. According to his evidence, the Plaintiff had actually responded to him saying that she had a fall in the street and asked for plaster. DW1’s explanation was that he did not give instructions to his solicitors and the inconsistency was a misunderstanding on the part of his solicitors. The defence was written in English which he was fluent but his brother was not. He was the partner in charge of the restaurant at the night of the accident. It is incredible that he was not the person to instruct his solicitors or his brother would not have shown him the defence or that he had no concern or interest in reading it. 17.Not only that, while saying he was concerned about the litigation, he said he had no knowledge about the content of the witness statements given by his other two witnesses and the photographs exhibited in their witness statements. Those photographs show the inside of the restaurant where the witnesses were seated and from where they observed there was no accident. If he was concerned about the litigation, and there was no reason why he should not, it is incredible that he did not read their witness statements and look at their photographs which presumably were taken by his solicitors. There is no reason why he should be unaware of them. I think he was trying to boost his credibility by distancing himself from the other witnesses. I am more than satisfied that DW1 was evasive and not telling the truth. 18.As it transpired in cross-examination, the legal representation of the Defendants is not being funded by their insurers. DW1 said that the insurers declined giving them legal representation because the accident occurred outside the restaurant. Mr Law, counsel for the Plaintiff, suggests that the true reason was because DW1 considered the accident too trivial and neglected to report which led to the insurers declining to indemnify the Defendants for their breach of the terms of the insurance policy. This is not anything which I need to consider or would consider when assessing DW1’s credibility. 19.DW2 is now sixty-six years of age, not by any means too old to be incapable of accurate recollection. She said that she was a regular customer of the restaurant. She had snack in the restaurant every night with her pet dog between some time after 10 pm and 11:30 pm before closing her stall nearby and collecting the proceeds of sale from the business. She usually sat at the booth immediately behind the cashier counter and could see clearly what happened at the counter and entrance. She was not aware of any accident inside the restaurant at the material time. Then, in a casual conversation with DW1 in mid 2008, she learned about the Plaintiff’s accusation about an accident inside the restaurant a year ago. She recalled there was an accident outside the restaurant at the time. She believed the Plaintiff’s claim was false and volunteered to give evidence for the Defendants. Her account of the casual circumstances under which she volunteered to give evidence was immediately knocked on the head by the note she had signed on 8 December 2007 in reply to the enquiry from the Legal Aid Department about six months before that casual conversation. From that note, it appears that DW2 had been identified as a potential witness and had been approached by the Defendants five months after the accident. DW2 was unable to explain the inconsistency and how she came to have signed that note. On the other hand, DW1 had distanced himself by saying that he knew nothing about that note at all. DW2’s evidence that she was informed of the accident in a casual conversation in mid 2008 is contradicted by incontrovertible documentary evidence. DW2 is a business woman. As I said, she is not too old to be unable to recollect. The inconsistency reflects dishonesty more than forgetfulness. 20.There is one important aspect of DW2’s evidence which I need to mention. She was a regular customer every night sitting usually at the same booth behind the cashier counter. DW3 was also a regular customer at about the same time every night sitting usually at about the same location behind the noodle stall opposite the cashier counter. They both sat for at least an hour in the restaurant. Both of them are conspicuous: DW2 by her pet, DW3 by his four to five junior salesmen in PCCW uniform reporting to him. It was a small restaurant. Yet, it is surprising that neither of them had any recollection of the other. This aspect of their evidence is worrying. Having considered the totality of the evidence, I find DW2 incredible and do not accept her evidence. 21.DW3 was another regular customer who frequented the restaurant every night, except on public holidays. He used to occupy the booth or table if the booth was not available, behind the noodle stall opposite the cashier counter. If he sat at the booth, part of his view of the entrance was obstructed by the lower part of the noodle stall and the posters above it. He stayed in the restaurant for his junior salesmen to report to him about their sales. He had four to five salesmen to report to him. He briefed them also. In between the reporting, he played mobile phone games. A few months prior to April 2009, he overheard the conversation between DW1 and his brother about the accident. He recalled there was an occasion at about the time in question when an ambulance arrived outside the restaurant to deliver a woman to hospital. He saw no accident inside the restaurant but was told by a waiter that the woman had an accident outside. He thought the Defendants were being framed up. He volunteered to give evidence for them. 22.Mr Law commented that if DW3 had frequented the restaurant it was most surprising that the Defendants did not ask him for assistance in November or December 2007 when they prepared the notes in reply to the enquiry from the Legal Aid Department. According to DW3, he only started frequenting the restaurant in April 2007 after his promotion to sales supervisor. By November 2007, he should have been a familiar face to the Defendants, as he went there every night and had four to five PCCW staff in uniform reporting to him. Whether to enlist his help was a matter of choice for the Defendants. I would not weigh it against DW3. 23.What is more important is whether DW3’s evidence is reliable. According to DW3, he did not notice any accident. He frankly admitted that when sitting in the booth behind the noodle stall which he more usually did, his view of the entrance was partially obstructed by the lower part of the noodle stall and the posters above it. On his evidence, while inside the restaurant, he was receiving reports from his salesmen or briefing them and during the interval he was playing mobile phone games. If so, a momentary accident such as this one could have easily escaped him. The Plaintiff fell, got up and left without making a scene. On a careful consideration of the evidence, I cannot give much weight to his evidence. 24.Another issue in dispute is whether the door at the entrance was open at the time of the accident. According to the Plaintiff, it was open. But DW1 and DW2 were adamant that it was closed. DW3 said that the door was usually closed. The significance of that issue is that the Plaintiff could only fall in the way she described if the door was open. If it was closed, she would have hit the door which would have prevented her fall and the Plaintiff was lying about the accident. It is not difficult to accept DW1’s, DW2’s and DW3’s evidence that the door was closed because of the need to contain the air conditioning during the hot summer month when the accident occurred. On the other hand, it is also not an uncommon scene to see doors of such restaurants being kept open for easy access and to make the restaurant more inviting. It is all a matter of credibility of the witnesses. 25.According to the ambulance report, the ambulance officer recorded that the Plaintiff informed him that she slipped and fell while going out of the restaurant. The officer recorded as follows: “Patient claimed that the accident occurred while she and her son finished their meal and going out the exit and slipped on floor.” According to the report, the Plaintiff was taken by the ambulance from the scene at 11:51 pm and reached Kwong Wah Hospital at 00:01 am on the following day. The above statement was made within half an hour of the accident. It was a contemporaneous statement from the Plaintiff which is consistent with her account. 26.At 5:07 am on the morning of 10 July 2007 after she discharged herself from Kwong Wah Hospital against medical advice, the Plaintiff went to Mong Kok Police Station to make a report before returning to her home in Yuen Long. In the report, it was recorded that she slipped down near the cashier counter of the restaurant, that she made the report for record purpose and that she would take civil action against the restaurant. That was six hours after the accident. Mr Law sought to rely on that report as a contemporaneous statement. A contemporaneous statement is a statement made at or near the time of a relevant event and under circumstances which make it more likely than not to be true. The Plaintiff made the report expressly for the purpose of a civil claim. Her motive was clear and there was time for her to make up a story. Though made within six hours of the relevant event, it was a self serving statement. It has lost the character of and value as a contemporaneous statement. I give no weight to her statement in that report. 27.Having considered the totality of the evidence, I accept the Plaintiff ‘s evidence and do not believe in the evidence of DW1 and DW2. I give little weight to the evidence of DW3. I am satisfied that the door of the restaurant was open and the accident occurred inside the restaurant as alleged by the Plaintiff. Breach of common duty of care, negligence and contributory negligence 28.The place where the accident occurred was also the location where cooked noodle and other food were handed over from the noodle stall to waiters for delivery to customers. According to the Plaintiff, the place was not covered by any mat and was wet, greasy and slippery. After the accident, she saw the bald headed waiter scrubbing the floor with his shoes. Though disputed by DW1, he agreed that it was possible for soup and oil to have spilled over from the noodle and food onto the floor. I accept the Plaintiff’s evidence. I find that the place where she fell was wet, greasy and slippery and that it was this condition of the floor which caused the accident. 29.There is no dispute that the Plaintiff was a customer of the restaurant and a visitor within the meaning of the Occupiers’ Liability Ordinance. There is also no dispute that the place where the accident occurred was under the control and management of the Defendants as occupiers. Under section 3(2), the Defendants owed the Plaintiff the common duty of care, which was a duty 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 premises for the purposes for which she was invited or permitted by the Defendants to be there. 30.Because of the nature of the defence, no evidence has been adduce as to what steps had been taken by the Defendants throughout the business hours to clean up the spills in the place in question or to prevent it from getting wet, greasy or slippery. There was no evidence as to how frequently would the place be cleaned or mopped. There was no warning sign about the slippery surface. There was no carpet or floor mat placed on the floor to prevent any possible accident caused by the slippery surface. I have no difficulties to find that the Defendants owed the Plaintiff the common duty of care and were in breach of that duty. Likewise, they were negligent in failing to take any reasonable steps to prevent the place from getting slippery and/or as alleged in the other particulars of negligence as pleaded in the Statement of Claim. The Defendants were in breach of the common duty of care under the Occupiers’ Liability Ordinance as well as duty of care in negligence. 31.At the time, the Plaintiff was wearing high heel flat bottom shoes. Though they were not particularly safe for use on slippery surface, there was no evidence that she was walking hurriedly over the place in question or behaving otherwise than normally. There was no evidence of contributory negligence on the part of the Plaintiff. 32.Accordingly, the Defendants are wholly liable to the Plaintiff for the injury suffered as a result of the accident. Injuries, treatment and disabilities 33.The Plaintiff sustained fracture of her right patella, the sixth and seventh ribs in her right chest. She was taken to Kwong Wah Hospital where the fractures were diagnosed. She refused in-patient treatment as she had to attend to her children. Later that day, she was admitted into Tuen Mun Hospital for treatment. The Plaintiff was treated conservatively with long cylinder leg cast and discharged with walking aid. After six weeks, the casting was removed and she was put on physiotherapy and occupational therapy. The fractures showed good union. 34.The Plaintiff was examined by Dr Lam and Dr Wong, medical experts of the Plaintiff and Defendants respectively, on 27 March 2009, about twenty months after the accident. Both experts agreed that the injuries were consistent with the accident as described by the Plaintiff and were most likely to have been caused by the accident. They both agreed that the rib fractures had united satisfactorily and there was no residual pain, impairment or disability. 35.In respect of the Plaintiff’s complaints of persistent pain and swelling in the right knee, the two experts had slightly different opinion. According to Dr Lam, there was still genuine swelling in the Plaintiff’s right knee with increase in temperature, suggesting some residual inflammation and genuine residual pain and disability. He found mild muscle wasting in the right thigh. He opined that the Plaintiff suffered 4% whole person impairment in respect of the patella fracture. 36.Dr Wong agreed that the Plaintiff had localized soft tissue inflammation in her right knee but disagreed that there was muscle wasting of the right thigh. He ignored Dr Lam’s finding of the 1 cm difference in thigh girth and considered the Plaintiff only suffered marginal restriction on the right knee movement. He estimated that the Plaintiff suffered 3% impairment only. Prior to the accident, the Plaintiff weighed 120 pounds, but weighed 200 pounds at the time of the examination. Dr Wong argued strongly that the extra weight of 80 pounds put on by the Plaintiff in the interim period could have affected her ambulation. 37.I would bend in favour of Dr Lam’s opinion that the Plaintiff suffered 4% impairment but I agree with Dr Wong’s opinion that the Plaintiff’s weight increase might affect her ambulation. Pain, suffering and loss of amenities (“PSLA”) 38.Mr Law submits that an award of $400,000 for PSLA is appropriate. He argues that injury to the knee is more serious than injury to the elbow. He referred to three cases. 39.In Cheng Kwok Sang and Maxim’s Caterers Limited HCPI 237/2001 (7 February 2003), a restaurant captain, aged 43, fell from a ladder and sustained injuries to his head, leg and arm. He sustained fractures of the right patella and left radial head which were treated conservatively. He suffered temporary blurred vision. He was given physiotherapy for six weeks. Master Woolley awarded him $350,000 for PSLA. The injuries involved in that case was more serious than that suffered by the Plaintiff. They included head injury and temporary loss of vision. 40.In Lee Chun Fat and Chan Kin Wo and Chan Kin Sing HCPI 1306/2000 (29 May 2002), the plaintiff was assaulted by two defendants and suffered a fractured patella. He was hospitalized for five and half months and underwent four operations. He was subject to a high risk of osteoarthritis due to total displacement of the patella. Bokhary J awarded $300,000 for PSLA. Obviously, the injury suffered by the plaintiff in that case was much more severe than that suffered by the Plaintiff. I consider that award on the low side and would not consider that award in my assessment. 41.In Kwok Wing Ming And Wong Lin Lung HCPI 1341/1996 (22 October 1998), the plaintiff in a road traffic accident suffered fracture of the right patella which was reduced and fixed with wires and had since united. The post-operation recovery was uneventful. There was residual stiffness of the knee, pain and muscle wasting of the thigh. There was hyper-pressure causing symptoms of pain on going up and down slopes and stairs. He had physiotherapy for about a month. In addition, he suffered small lacerations of the arm and chest wall which healed with mild scarring. Master Chung, as he then was, awarded him $360,000 for PSLA. The injuries involved in that case were also more serious than that suffered by the Plaintiff. 42.The Plaintiff had conservative treatment with long cylinder leg cast for six weeks followed by six weeks of physiotherapy and occupational therapy. No operation was necessary. The fractures healed with good union. There was residual inflammation in the right knee. The Plaintiff’s injuries were far less serious than those in the authorities quoted. 43.The Plaintiff suffered 4% impairment. She claimed that the disability and/or suffering caused difficulties and inconvenience in her daily activities, career and life. She used to be active and participated in activities such as hiking which she had to give up as a result of the injury. Dr Lam also opined that she would have difficulties hiking since walking up and down hill would put great stress to the knees. I certainly agree with that opinion. But much I like to sympathise with the Plaintiff, I cannot overlook the drastic increase in her body weight in the interim period. Her weight had increased from 120 pounds to 200 pounds. I have seen her in Court as well as her photographs taken shortly after the accident. Even without the accident, she would have difficulties in enjoying hiking as a result of the drastic increase in her body weight. Even if the injuries had not been incurred, it is not difficult to imagine the stress she would have on her knees if she had to carry an adolescent of 80 pounds on her back while walking up and down hill. The loss of the amenity is not due to the accident, but to the drastic increase in her body weight. 44.Having regard to the Plaintiff’s injuries, the authorities quoted and the dates of those decisions, I consider an award of $150,000 for PSLA appropriate. Pre-trial loss of earnings 45.The Plaintiff’s case is that although she was unemployed, she was about to take up employment with Telbo Sauna at a monthly salary of $20,000. Hence, the second most hotly disputed issue is the Plaintiff’s impending employment with Telbo Sauna. This finding is also relevant in relation to the Plaintiff’s claim for loss of future earnings, which is the real meat in this litigation. 46.The Plaintiff used to be a masseuse. She was divorced in 2004 and since October 2005 have been receiving public assistance of about $8,000 to $9,000 a month, inclusive of rent, towards maintaining herself and her two sons. She claimed that in or about June 2007, just a month before the accident, with a view to earn more money, she reached oral agreement with Lau to work in Telbo Sauna as a masseuse and tutor at a monthly salary of at least $20,000. But for the accident, she would have taken up that job. The Defendants are very critical of this aspect of the Plaintiff’s evidence. 47.The Plaintiff said that she is a very experienced and skilful masseuse. She has developed much goodwill and was well liked by her clients. She could serve four to five clients every night. Her clients would wait for her services till day break. She had worked as a masseuse until October 2005 when she started to receive public assistance. But she could only produce very sporadic records of her employment between October 1995 and December 1997 and none thereafter. She could only produce documentary proof of her employment for five months from 9 October 1995 to 9 March 1996, for two odd months from 11 November 1996 to 21 January 1997 and for another two and half months from 23 September 1997 to 9 December 1997. She claimed that thereafter she worked for six massage parlours between December 1997 and October 2005, including Telbo Sauna. 48.The Plaintiff produced a document in Chinese dated 27 July 2007 signed by herself and Lee Nin Kwong (“Lee”) on behalf of Telbo Sauna as documentary evidence of her impending employment. The document was typed on a blank piece of paper without the letterhead of Telbo Sauna, but bore its chop. It certified that Telbo Sauna and the Plaintiff had entered into an oral agreement to engage the Plaintiff as a self-employed masseuse, that the Plaintiff could not take up the employment because of an accident and that both parties agreed not to make any claim against the other in respect of the agreement. The document went on to describe the Plaintiff’s performance as a masseuse, stating that she had at least four customers everyday, her customers would wait at least one hour for her services and sometimes until day break, that she applied her mind to her work, that she could earn in excess of $25,000 a month, that her customers would look for her once they know she started working. One thing peculiar about the document is that there were many typographical errors in the document. Some errors were clearly typographical but some were due to obvious wrong choice of characters. The document purported to be a contract mutually discharging each other from the obligation of their oral agreement but it went on as a statement praising the Plaintiff’s skill and ability in performing massage and attracting clients, which is most unusual for a discharge document. 49.The Plaintiff also produced another document in Chinese dated 15 April 2008 which was also signed by Lee with the chop of Telbo Sauna. The document was addressed to whom it may concern. It certified that Telbo Sauna had employed the Plaintiff as a masseuse and tutor with effect from 16 July 2007 at a guaranteed salary of $20,000 per month but that she could not take up the appointment as a result of the accident. That letter was not typed on the letterhead of Telbo Sauna but appeared to be a more properly written letter. The signature of Lee is different from that in the other document. 50.The Plaintiff also called Lau to testify about her oral contract of employment. Lau and Lee are partners of Telbo Sauna. She is the licensee of the sauna and is in charge of its management and operation, while Lee is in charge of administration. She knew the Plaintiff and was well impressed by her skill as a masseuse. She said that the Plaintiff could serve four to five customers everyday, her customers would wait at least one hour for her services and sometimes until day break, and that she could earn $25,000 a month. She orally agreed with the Plaintiff over the telephone to employ the Plaintiff as a masseuse and tutor in Telbo Sauna at a guaranteed salary of $25,000 with effect from 16 July 2007. 51.Though Lau said that she knew the Plaintiff well, she did not have her telephone number. Hence, she made no inquiry when the Plaintiff did not turn up for work on 16 July 2007 and did nothing to contact the Plaintiff. She was only informed by the Plaintiff about the accident a month later. She had never seen the two documents signed by Lee until this trial. She said that she employed the Plaintiff as a masseuse and tutor in order to improve the skill of her masseuses who were not skilful enough. If so, it is surprising that she did not even have the telephone number of the Plaintiff and did nothing to get in touch with her when she did not turn up for work. According to the document dated 27 July 2007, Lee was informed of the accident ten days after the accident, yet Lau had no idea about the accident until the Plaintiff informed her a month later. Lau and Lee are partners. There was no reason why Lee would not have informed Lau of the failure of the Plaintiff to attend work if the purpose of her engagement was to improve the quality of the service of Telbo Sauna. It is also surprising that Lau knew nothing about the two documents signed by Lee and that Lee had never told her that the Plaintiff had an accident and could not report for work. The very casual manner with which Lau employed the Plaintiff over the telephone and the very carefree manner with which she handled the Plaintiff’s failure to report duty are surprising. Lau’s evidence does not impress me of the presence of any underlying contract of employment between Telbo Sauna and the Plaintiff. 52.The Plaintiff, Lau and the two documents signed by Lee emphasised the Plaintiff’s proven ability to earn $20,000 to $25,000 a month. This is contradicted by the Plaintiff’s own documented evidence that during her five months’ employment with Physical Health Centre Hong Kong Limited (“Physical”), her total salary was $11,100 per month only. That was but half of what Telbo Sauna had allegedly promised her. Her income from Physical is consistent with the monthly salaries of between $5,000 to $15,000 for massagist as advertised by the Labour Department in July 2009. To earn the salaries at the higher end of the scale, the masseuse has to possess international certificates and/or knowledge in massage treatment as well as in other related aspects such as foot massage, beauty treatment and lymphatic drainage etc. There is no evidence that the Plaintiff was competent in those areas. It is also remarkable that Lau, being the licensee and one of the two partners of Telbo Sauna who came to testify in support of the Plaintiff did not and could not produce a single piece of documentary evidence of the Plaintiff’s income while employed in Telbo Sauna. 53.Besides, Lau was not consistent as to the salary of the Plaintiff. In her witness statement, she said that the Plaintiff’s salary was $20,000. But in her evidence in Court she mentioned the figure of $25,000. She explained that the guaranteed salary of the Plaintiff was $20,000 but the Plaintiff had the ability to earn more and she could assign more clients to the Plaintiff. As for the salary stated in the two documents, she explained that she did not know what the Plaintiff had told Lee. 54.When asked if Telbo Sauna had filed tax returns for the Plaintiff, Lau answered that she did not know as it was not her duty but Lee’s and she would not bother. Even if it was not her duty to furnish tax returns, as one of the two partners in the business, she must have known whether tax returns for masseuses including the Plaintiff had been filed or not. I think Lau was being evasive. When she anticipated she would have difficulties in answering questions, she hid behind Lee to put an end to the line of cross-examination. When asked about record of payments made to the Plaintiff, Lau answered that she had kept records, but such records were discarded after a year. Such practice is contrary to good business practice and requirements of Inland Revenue Ordinance. I think Lau was again being evasive. I do not accept her evidence. 55.The Plaintiff was only able to produce little documentary evidence in support of her employment history and earning capacity. She explained that she was only concerned to prove her impending employment but not her former employment and income. Hence, she did not make the evidence available. As the Plaintiff was not actually employed at the time of the accident, she and her solicitors must have recognised the importance of proving her capacity to earn $20,000, her past track record and documentary evidence. There was none except that from Physical in 1995, showing that she earned about half of what she now claims she would be earning. She was not even unable to produce documentary proof of her past employment with Telbo Sauna. Lau was not offering her any documentary evidence in support either. 56.The Plaintiff bears the burden of proof. The document dated 27 July 2007 appeared to be a home-made document and not one produced in the ordinary course of business. It cast doubt on the veracity of the Plaintiff’s and Lau’s evidence. Lau’s evidence does not impress me of the presence of any underlying contract between Telbo Sauna and the Plaintiff. The Plaintiff’s own evidence is unsupported by documentary evidence. On balance, I am not satisfied that she has discharged the burden of proving her impending employment as a masseuse with Telbo Sauna at a guaranteed salary of $20,000 per month. I am surprised that the solicitors would have launched the claim on such flimsy evidence. 57.The Plaintiff was given sick leave from 10 July 2007 to 19 November 2007 and 2 January 2008 to 2 April 2008. According to the Work Capacity Evaluation Report dated 28 March 2008 from the Occupational Therapy Department of Tuen Mun Hospital, she could not resume her job as a masseuse. The Plaintiff said that but for the injury she could have taken up employment in Telbo Sauna at a salary of $20,000 per month, but now she could only take up a sedentary job at a monthly salary of $7,000. On that basis, she claimed 8.8 months’ loss of income at $20,000 per month during her sick leave period and 18 months’ loss of income at $13,000 (i.e. $20,000 - $7,000) per month pending trial. Her claim for pre-trial loss of earnings is therefore $410,000 plus 5% on that amount as loss of Mandatory Provident Fund. A proper calculation of her sick leave period was only 7.3 months since she was supposed to commence work on 16 July 2007 and that she was not given sick leave from 20 November 2007 to 1 January 2008. But that is academic. 58.On the evidence, I am not satisfied that the Plaintiff has proved her impending employment with Telbo Sauna at $20,000 per month. According to Dr Wong, if the Plaintiff could not resume her pre-injury occupation as a masseuse, it would most probably be due to her weight problem than her injury. I accept that opinion. Her weight problem did not hit her overnight. Her weight must have increased gradually and stabilised at some stage during the twenty months’ period before the examination by Dr Lam and Dr Wong in March 2009. It was most unlikely to have been an issue in November 2007. It would most probably have started to be a problem by the time of the Work Capacity Evaluation Report on 28 March 2008. Even if it had not, the question is what would have been the salary she was able to fetch. There was a wage decline in the employment market in 1998 following the Asian financial crisis and then SARS. In view of the employment market as reflected by the Labour Department advertisements and the Plaintiff’s qualification or lack of it, I think at the highest, the Plaintiff would have earned what she earned in Physical in 1995 and 1996, i.e. $11,100. But then the question is would she have the incentive to work in view of the amount of public assistance she was receiving. She had never worked since October 2005. She claimed that she wanted to take up the employment with Telbo Sauna, but that was on the basis of a fictitious employment at $20,000 which I rejected. Had she wanted to work, she would have done so well before the accident. I am not satisfied that she had the incentive to work during the sick leave period. After that period, I think she would be unable to work as a masseuse because of her weight problem. If she wanted to take up other employment, she would not have earned more than what she was receiving by way of public assistance. Accordingly, the Plaintiff would have no incentive to work whatever and would have suffered no loss of income and Mandatory Provident Fund during the pre-trial period. Post-trial loss of earnings 59.The Plaintiff claims post-trial loss of earnings on the basis of her employment as a masseuse and tutor with Telbo Sauna. She is now aged 36 and would continue to work up to the age of 55. Mr Law adopts a multiplier of 13, which is not unreasonable. The questions are could she have worked as a masseuse had there been no accident and what would have been her salary, if she could. 60.According to Dr Lam, she would have difficulty in returning to the full duties of a masseuse which required rather heavy physical demand on the knees especially kneeling and climbing. According to the Work Capacity Evaluation Report, she could not resume her job as a masseuse. 61.However, according to Dr Wong, if the Plaintiff could not resume her pre-injury work as a masseuse, it would most probably be due to her weight problem rather than the injury. He further said that leaving aside the weight problem, stepping on a client’s back did not present any difficulty save and except some inconvenience if she were to kneel on the back and apply force with her right knee. Her own expert did not differ from that opinion and said that she could perform massaging with hands and even stepping but just had decreased endurance and work capacity. Indeed the Plaintiff also said that she only needed to use subtle force during massaging. I agree with Dr Wong. Even if the Plaintiff had not suffered the injuries, she could not perform massaging with the drastic increase in her body weight. One can well image the difficulties she would have standing on her feet for an hour performing massaging while carrying an adolescent of 80 pounds on her back. It is impossible for her to climb on her client’s back while carrying that extra load and perform stepping. Besides, I would not even think anyone in his proper senses would allow someone weighing 200 pounds to step on his back or backbone. 62.I find that but for her drastic increase in weight, the Plaintiff could resume to her work as a masseuse or take up any other form of employment she would be capable of, such as shop assistant, messenger and office assistant. If she would work as a masseuse, what she could earn as a masseuse is not relevant. But given the high level of public assistance she is receiving, she could have no incentive to take up those other form of employment. Accordingly, I find that she suffered no post-trial loss of earnings and Mandatory Provident Fund arising therefrom. Loss of earning capacity 63.For the same reason, the Plaintiff would only suffer little disadvantage or handicap in the employment market. If she suffers any disadvantage, it must be caused by her body weight rather than the injuries. Her disability of 4% impairment might be felt by herself but could not even be noticed by her employer or potential employer. I would, however, award her a nominal sum of $50,000 under this head. Medical expenses 64.The Plaintiff claims $350 for the deposit in respect of the loan of a pair of elbow crutches and $500 for the medical fees from Dr Cheung. These claims amounting to $850 are not disputed by the Defendants. I award her this sum, though I would have thought she could have recovered the deposit from the hospital upon returning the crutches. Nourishment food 65.The Plaintiff claims $8,448 for nourishment food to ease her pain, disabilities and discomfort. The Defendants would agree to an award of $3,000. I do not think nourishment food would be of any help, other than psychological, for injuries of the kind suffered by the Plaintiff. She had a casting for six weeks and the fractures had healed completely. I would award her $3,000 under this head. Travelling expenses 66.The Plaintiff claims $8,000 for travelling expenses to enable her to travel from home to hospital and clinics for consultations, out-patient treatments, physiotherapy etc and return. She produced some taxi receipts. The Defendants would agree to a sum of $2,000. For the six weeks while wearing casting, she had difficulties in travelling. But she would not have many occasions to visit the hospital or clinic for treatment during that period. She might have the need for travelling on a few occasions to attend to her social or other affairs. She might need the convenience or comfort of travelling in a taxi for the first week or so after the casting was removed. I think an award of $3,000 would be appropriate. Other expenses 67.The Plaintiff claims $160 for the purchase of a walking stick. That is not opposed by the Defendants. I make the award accordingly. Domestic helper expenses 68.The Plaintiff claims $9,000 as two months’ wages for a domestic helper to help her looking after her two sons and herself. It was reasonable to employ a domestic helper to assist her for the six weeks while she was wearing casting. The question is whether she did so employ someone to assist her and what was the amount of wages she paid. The Plaintiff produced a typewritten note and receipt from someone claiming herself to be Yuen Yee with a certain Hong Kong identity card number, acknowledging receipt of $9,000 as two months’ wages. She did not know the full name of Yuen Yee who was not even called to give evidence. 69.The Defendants attacked the credibility of the Plaintiff’s evidence. The thrust of Mr Cheng’s attack is that as the Plaintiff has shown herself to be dishonest in fabricating her impending employment with Telbo Sauna, she would have tendency to fabricate this claim as well. 70.The Plaintiff said that Yuen Yee did not wish to come to Court to testify. The Plaintiff had an undoubted need for assistance. The question is whether she did so employ Yuen Yee for $9,000 or that she somehow coped with the difficulties and/or had others, such as friends, relatives and neighbours to assist her on a voluntary basis. That Yuen Yee was not called is not fatal to her claim as hearsay evidence is admissible. The question is weight. But I have found the Plaintiff dishonest in concocting her impending employment. She went to the length of preparing the two documents and calling Lau to give false testimony. She was unable to give the name of Yuen Yee. This claim was added in the course of the hearing without any explanation for the delay. All these considerations weigh against her. However, in view of the undoubted need for assistance in this case, a gratuity of $1,000 per week for assistance from a friend or neighbour would have been easily accepted on credible evidence, without calling the recipient and without producing a receipt. I would not punish her for her dishonesty. I am prepared to err on the side of generosity and allow her claim. But the claim for two months is excessive. A claim for six weeks would be appropriate. On that basis I award her the sum of $6,750. Total award of damages 71.Accordingly, I award the Plaintiff damages in the sum of $213,760 which comprises of the following:
Summary and costs 72.At the end of the day, what is this action all about? The Plaintiff is a divorced and unemployed housewife living with her two sons on public assistance of $8,000 to $9,000. I mention this not with the least disrespect or sense of discrimination but as part of the necessary background which explains in part the reasons for my award in damages. The Plaintiff had an accident inside the Defendants’ restaurant in Mong Kok on 9 July 2007 at 11 pm. She was taken to Kwong Wah Hospital by ambulance for treatment. She discharged herself against medical advice in order to look after her sons. On her way home to Yuen Long, she made a detour to Mong Kok Police Station to make a report expressly for the purpose of this civil action. At some stage, she must have come up with the idea of turning the misfortune into a small fortune by fabricating a claim for loss of earnings. 73.On my finding of fact, the Plaintiff went to the length of fabricating her impending employment as a masseuse and tutor at a guaranteed salary of $20,000 with Telbo Sauna, procuring Lee to sign the two documents and procuring Lau to give false testimony in support of her claim in excess of $3 million. She was only entitled to an award of $213,760. The Plaintiff obtained legal aid to launch this action in the High Court which she should have commenced in the District Court, had she acted honestly. The Defendants were made to incur excessive costs in defending the action. Of course, the Defendants also fabricated a defence that the accident occurred outside the restaurant. Basically, the case turned out to be dishonesty against dishonesty. The true facts have now been sorted out. What costs order should I make? 74.I think it appropriate to apportion the costs on the liability and ordinary damages issue and the loss of earnings issue equally and treat the Plaintiff as successful on the former and the Defendant on the latter issue. In a normal case, the costs of one successful party in one issue would cancelled out the costs of the other successful party in the other issue, resulting in no order as to costs. In the present case, had the Plaintiff honestly commenced proceedings in the District Court without the claim for loss of earnings, she would have been entitled to half of the costs she incurred from the Defendants but at the District Court scale and the Defendants would not have wasted their costs in defending both issues in the High Court. The Defendants would of course have to incur costs in defending the liability and ordinary damages issue in the District Court. They should bear those costs as they are solely to blame for defending on a defence which never existed. Those costs would be half of what they now incur for defending the two issues but at the District Court scale. Thus, the Defendants’ wasted costs is the difference between the costs they now incur at the High Court scale less half of those costs at the District Court scale. Despite the Defendants are unsuccessful on the liability and ordinary damage issue, justice would require that they be compensated by the Plaintiff for the wasted costs. In view of the conduct of the parties, all costs should be assessed on indemnity basis. The Plaintiff may set off the costs to be paid to the Defendants against the costs she is awarded. I believe, the end product of the computation will be a balance in favour of the Defendants which the Defendants would be entitled to set off against the award of damages. Conclusion 75.Accordingly, I enter judgment in favour of the Plaintiff and award her damages in the sum of $213,760 with interest at 2% per annum from 25 July 2008 until judgment and thereafter at judgment rate. 76.I make a costs order nisi that the Defendants shall pay half of the Plaintiff’s costs at the District Court scale and the Plaintiff shall pay the Defendants’ costs at the High Court scale less half of those costs at the District Court scale. All costs shall be assessed on indemnity basis, to be taxed if not agreed. The Plaintiff’s own costs shall be taxed in accordance with the Legal Aid Regulations.
Mr Dennis Law, instructed by Messrs Tung, Ng, Tse & Heung assigned by the Director of Legal Aid, for the Plaintiff Mr Sky Cheng, instructed by Messrs Patrick Mak & Tse, for the Defendants | |||||||||||||||||||||||||
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