Ho Ka Yin v. Express Security Ltd
Read the full judgment text of HCPI 344/2008 on BabelCite. This High Court CFI judgment was delivered on 21 July 2011.
1. In this case the plaintiff claims damages for injuries caused to her when she fell from her wheelchair on two separate occasions.
Cited by 4 cases · Cites 4 cases
|
HCPI 344/2008 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PERSONAL INJURIES ACTION NO. 344 OF 2008 ____________ BETWEEN
____________ Before : Hon McWalters J in Court Dates of Hearing : 24 to 26 May 2011 and 15 to 16 June 2011 Date of Judgment : 21 July 2011 _______________ J U D G M E N T _______________ Introduction 1.In this case the plaintiff claims damages for injuries caused to her when she fell from her wheelchair on two separate occasions. 2.The first accident happened on 3 February 2006 at about 4.30 pm whilst the plaintiff was using a wheelchair lift operated by staff of the defendant. The plaintiff was pushing herself off the platform of a wheelchair lift that she had used to ascend a set of stairs in order to gain entry to Lung Cheung Shopping Mall. 3.In respect of this accident the plaintiff fell from her wheelchair as she exited from the lift and the plaintiff says that whatever was the cause of the accident, and the plaintiff cannot, from her personal knowledge, identify just precisely what was the cause, it cannot have been caused other than by the negligence of the defendant. To the extent that it may be necessary to do so the plaintiff relies upon the doctrine of res ipsa loquitur. 4.The plaintiff suffered a second fall from her wheelchair on 8 December 2006 and though the circumstances of this fall did not involve the defendant she claims that contributing factors to the occurrence of the second accident were hip and limb stiffness and an exaggerated anxiety of falling from her wheelchair, both being conditions from which she was then suffering as a result of the first accident. 5.On both the occasions that the plaintiff had these accidents she was using the same wheelchair. This wheelchair had a seat belt and the plaintiff claims that on both occasions she had secured the seat belt. However notwithstanding this, on both occasions the seat belt separated and failed to restrain her within the wheelchair. 6.After the second accident, the plaintiff changed her wheelchair and her replacement had a different type of safety harness. Consequently when she testified in court the plaintiff was using a different wheelchair with a different restraint system from the one she was using at the time of both accidents. 7.In her Statement of Claim the plaintiff claims damages in negligence for the defendant’s breach of a duty of care that she claims was owed by it to her and for breach of the common duty of care under the Occupier’s Liability Ordinance, Cap 314. 8.In respect of the first accident, the defendant denies that it owed a duty of care to the plaintiff and that if it did the accident was due to its breach of any such duty, and further that if it was the plaintiff was guilty of contributory negligence. 9.In respect of the second accident, the defendant says it cannot be causally connected to the first accident and therefore the defendant is not liable for the injuries the plaintiff suffered as a result of it. The Plaintiff 10.Most of us can look back on a happy childhood in which we ran around with our friends, playing games together and participating in sport. Occasionally our physical activity might have caused skinned knees, sprained ankles or bruises about our bodies. More rarely some of us may have suffered fractures of our bones. But more often than not these injuries were but mild interruptions to a lifestyle where we took for granted our good health and our robust body’s ability to heal itself. 11.That was not a childhood that the plaintiff could enjoy for she was born with a condition called osteogenesis imperfecta. Osteogenesis imperfecta is more commonly known as brittle bone disease and leaves its victims with weak bones which are very susceptible to fracture. For such persons fractured bones are a regular occurrence and as they grow into adolescence they may find themselves spending more time in hospitals than in playgrounds. Their education is affected and they may have to receive tutoring from their hospital beds or at home. Thus it was with this plaintiff. 12.Persons suffering from osteogenesis imperfecta need very gentle handling for pressure or force applied to them clumsily or inappropriately may result in a fracture. There is no more dramatic illustration of how careful such persons must be treated than that even the doctor examining her for this litigation refused to assist in her transfer from wheelchair to examination bed for fear of injuring her. Her condition adds a whole new dimension to our understanding of the word “fragile” and the phrase “handle with care”. 13.The plaintiff was born on 1 July 1983 and so has just turned 28 years of age. Within weeks of her birth she was being treated by the staff at the Duchess of Kent Children’s Hospital at Sandy Bay for fractures of her femurs and radius. Persons in the position of the plaintiff face a life where they will always be at a much higher risk of bone fractures than persons without the condition and when such misfortune befalls them they will have to endure a much more protracted and difficult recovery. In the course of her childhood, the plaintiff suffered fractures of her bones on numerous occasions but they became much less frequent after 1996. 14.An indication of just how much of her childhood was spent in hospitals can be gained from the following list of her factures which I have taken from the medical records:
15.It was also necessary for her to undergo operations to correct limb deformities and these took place on 21 July 1995 and 14 September 1995. Since then the deformed condition of her limbs has greatly improved and since adolescence the development of her bones has matured and stabilized. 16.Persons with the plaintiff’s condition also suffer from curvature of the spine and this is treated by fusing the spine. Such an operation is delayed as long as possible for once it is done it prevents further growth. The operation was performed on the plaintiff on 2 July 1996 when she was an adolescent and accounts for her small stature. It also limits flexion of the spine and allows for only movement of the back at the hips. Despite being an adult, the plaintiff, as a result of her congenital illness and the operations she has undergone, is only 110 cm tall and weighs only 60 lbs. 17.From her birth the plaintiff has been treated at Duchess of Kent Children’s Hospital and that is where she continues to be treated notwithstanding that she is now, in terms of her age, an adult. This is not surprising given that the staff there are very familiar with her and her condition. Furthermore, the reality is that, in terms of her physical size, she has the body of child. 18.Prior to the first accident her most recent fracture was in March 2004 when she was admitted to Duchess of Kent Children’s Hospital for a right scapular fracture as a result of her falling from her wheelchair and landing on her right shoulder. This fall occurred when one of the front wheels of the wheelchair was blocked by a drainage cover and became stuck as she was being pushed down the pathway of her church. On this occasion, the whole wheelchair also toppled over despite being under the control of another person. This was the first occasion that she ever fell from her wheelchair and no such incident took place again until the first accident in February 2006. 19.Persons with osteogenesis imperfecta have difficulty developing strong muscles in their limbs because they cannot do weight bearing exercises for fear of fracturing the limb. Consequently they will suffer muscle wastage and hence may not be able to walk unaided as their muscles are not able to bear their own weight. The plaintiff’s arms are stronger than her legs and this enables her to propel her wheelchair. 20.Despite suffering from this condition the plaintiff has not allowed it to overwhelm her and has made every effort to enjoy life as much as possible. She says in her statement that she is “a cheerful person, positive and optimistic”. Although wheelchair bound, she still engaged in social activities with her friends and her fellow students. She would go to the beach, attend barbecues, join in karaoke functions and attend parties. Before the first accident, the plaintiff could take public transport on her own in order to get to school or to go out. 21.Notwithstanding the limitations that her condition imposed upon her, she has sought to live a full and meaningful life and up until these accidents was able to do so without having to depend on others. She is quite a remarkable young lady and she impressed me with the way she has come to terms with the very difficult hand that life has dealt her. 22.The plaintiff is clearly an intelligent person who is committed to her studies. Before the accident, she was enrolled as an associate degree student in the Applied Social Work programme at the Hong Kong Baptist University. She was admitted to this two year course in September 2005 and had her studies not been interrupted by the two accidents, she would have graduated in mid-2007. As it was she did not graduate until June 2008. However, she was doing the associate degree as a stepping stone to enrolment in the full bachelor degree course. She had hoped that her grades in the associate degree would be sufficient to enable her to gain entry to the second year of the full degree course. But her studies were affected by her hospitalizations from the two accidents and though accepted for admission to the Bachelor of Social Work (Hons) in the 2008/2009 academic year, she only gained entry to the first year of the degree course. This course lasted from 2008 to 2011 and she is now about to graduate with a full degree. 23.Prior to the first accident, she was fairly independent in terms of her ability to perform what are known as the activities of daily life (ADL). She did not have to use the wheelchair within the home and could move around with the help of a cane. She could bathe and use the toilet on her own. The First Accident 24.On 3 February 2006, the plaintiff was being pushed in her wheelchair by a friend along a footbridge that connected Wong Tai Sin shopping Centre to Lung Cheung Centre. The plaintiff was journeying from one shopping mall to the other but Lung Cheung Centre was on a higher level than the footbridge and because they were on different levels, pedestrians would normally have to walk up a flight of stairs from the footbridge in order to enter the shopping mall. To cater for disabled persons, a wheelchair lift was installed at the stairway. 25.This wheelchair lift, which is no longer in use as an elevator has now been installed, was of the kind that ran up and down a rail beside the set of stairs and when not in use could be folded up so that it would be out of the way of other pedestrians using these stairs and walkway. The lift was essentially an enclosed platform with ramps at the front and rear which could be lowered to allow wheelchair entry and exit and raised whilst the lift was in motion. The wheelchair platform also had chest-high bars at the front and rear which are raised to allow entry and exit from the lift platform but kept lowered whilst the lift is in motion. With the ramps raised, the bars lowered and the wheelchair’s brakes on, the wheelchair and its occupant can be transported safely in the wheelchair lift. 26.Once the lift completes its journey the ramp is lowered, the bar is raised, the wheelchair brakes released and the wheelchair then moves off the lift platform onto the floor at the top of the stairs. 27.The plaintiff says that when she arrived at the bottom of the stairs she pressed the intercom button to call the security guards to come and operate the wheelchair lift. Two staff of the defendant arrived. The plaintiff says that one of those staff wheeled her onto the lift platform so that she was facing forward as the lift ascended. In this position the front wheels of her wheelchair were about three inches from the raised front ramp of the lift platform. While the lift was in motion, one of the staff members carried the hand-held console that was connected to the lift and which contained its on-and-off switch, and followed the lift from behind. The other staff member walked alongside the lift keeping other users of the stairway clear of the moving lift. 28.The plaintiff says that when she arrived in the lift at the top of the stairs the security staff raised the bar of the lift but the plaintiff believes that the staff did not raise it completely upright so that it stood at a right angle. However in cross-examination the plaintiff accepted that she did not know this as a fact. The plaintiff says she was then instructed by one of the two security staff to wheel herself out of the lift platform. She was not given any assistance by the security staff who just stood to the side. The plaintiff commenced to do as she had been told but as she did so she says two things happened. The first was that she noticed the front bar that had been raised was moving slowly downward. The bar was less than a foot from her head and she believed it would strike her head as she exited the lift. In response to this she applied sudden additional force to her wheels to avoid the falling bar. The second thing that happened was that as she urgently applied extra force to the wheels of the wheelchair in order to propel it faster, she felt an obstruction that was blocking the front wheels of the wheelchair. 29.In her witness statement she described what happened next as follows:
30.She believes that the ramp of the lift platform may not have been fully lowered and that this accounted for the obstruction. However, she did not see the obstruction and so cannot say what was in fact the cause of it. All she can, herself, say is that she felt something blocking the wheels. The combination of the sudden additional force that she applied to propel the wheelchair faster, and the sudden halt of the wheelchair as it encountered the obstruction, caused her to become unstable in the wheelchair and to lose her balance, resulting in the wheelchair falling forward and her body being pitched face forward from the wheelchair onto the ground. 31.The staff members operating the lift did nothing to prevent the plaintiff from falling out of her wheelchair but this may have simply been due to their inability to react in time to the rapidly unfolding events. 32.The plaintiff maintains that whilst seated in the wheelchair she was secured by a seatbelt which separated in the course of the accident. The plaintiff does not describe the buckle as breaking, but rather as coming loose. Upon subsequent inspection by an occupational therapist no defect in the seatbelt or its buckling device could be found and the plaintiff continued to use it after her discharge from hospital. This buckle was not changed until after the second accident when it failed again. It was then replaced by what the plaintiff described as an aeroplane buckle. There is, therefore, no explanation for why the seatbelt did not perform its function of restraining the plaintiff within the wheelchair. 33.Counsel for the plaintiff suggests that the force of the plaintiff falling must have been responsible for the seatbelt separating. Counsel for the defendant suggests that the only reasonable inference that can be drawn is that the seatbelt was not being used by the plaintiff or that the plaintiff had negligently failed to properly secure it. Either way, it is said, the plaintiff is guilty of contributory negligence, should the court find that the defendant is liable for the plaintiff’s injuries. 34.No evidence in respect of the accident was called by the defendant and the plaintiff did not call her companion who was present at the time the accident occurred. A contrary version as to how the accident occurred was put to the plaintiff in cross-examination but was rejected by her. Consequently the only evidence as to how this accident happened came from the plaintiff. The Injuries from the First Accident 35.On the day of the accident the plaintiff was sent to the Accident and Emergency Department of Queen Mary Hospital for treatment. Upon examination she was found to have suffered a fracture of the neck of the right femur and a fracture of the left femoral supracondylar. She was subsequently transferred to the Duchess of Kent Children’s Hospital where she remained for the rest of her hospitalisation. Amongst the operations she underwent and the treatments she received were closed reduction and screw fixation of her right hip, k-wire fixation of the left distal femoral and the application of a hip spica plaster cast which she had to endure for almost 3 months until its replacement on 20 April 2006 with an abduction brace. Her recovery was prolonged because of her osteogenesis imperfecta condition and she in fact spent 7 months in hospital before her discharge on 8 September 2006. 36.From 18 May 2006 until her discharge, she was receiving physiotherapy. She began walking with support in August 2006 and in September 2006 she was able to walk with a rollator for a short distance. After her discharge, she continued to receive physiotherapy and occupational therapy as an outpatient until her second accident in December. 37.In a report dated 4 April 2007, the plaintiff’s physiotherapist described her condition immediately before the second accident and contrasted it with her position before the first accident. She said:
38.The occupational therapist assessed the plaintiff’s ADL performance in November 2006. This was done by rating her ability to perform 10 tasks which make up the Barthel Index. Her pre-morbid score, out of 100, was 90 and in November 2006 it was 86. 39.Her treating doctor, Dr. Poon Tak-lun, in a report dated 16 January 2008 assessed what her post-accident position would have been had the second accident not occurred, as follows:
40.The plaintiff, through her counsel, has specifically conceded that had the second accident not occurred the plaintiff would probably have returned to her pre-first accident condition and before the second accident occurred was making good progress towards achieving that. The Impact of the First Accident Upon the Plaintiff’s Daily Life 41.After the first accident, the plaintiff found she needed to use her wheelchair to get around even at home. She needed help with the ADL and depended much more on her mother to take care of her. She could no longer go out on her own and could no longer use public transport. She had to book a rehabilitation bus to take her to and from school or elsewhere. As a consequence, she rarely went out. 42.She described her post-accident anxiety about falling from her wheelchair as follows:
43.However, she did not mention these fears until she saw a doctor on 4 August 2008. His note of what she told him is simply:
44.The plaintiff said that she was finally prompted to reveal her anxieties to this doctor and seek treatment for them:
45.She subsequently had four sessions with a clinical psychologist which provided her with some assistance by did not get rid of her fears altogether. To this day she says she is afraid of wheelchair lifts and avoids using them and avoids going to places where she would have to use them. 46.Thus at the time of her discharge, she claims that she suffered from exaggerated fears of falling from her wheelchair which resulted in her having, from time to time, episodes of anxiety when using the wheelchair. She also said that at the time of her discharge her body had not yet fully recovered and she still suffered from some residual stiffness in the hip. This remained her position when exactly 3 months after her discharge she suffered another accident that involved her again falling from her wheelchair. 47.As will become apparent from the subsequent description of this accident, the defendant had no physical involvement in it. Nevertheless the plaintiff claims that factors materially contributing to this accident happening were her heightened anxiety in respect of the risk of her falling from her wheelchair, in combination with the residual hip and limb stiffness, both of which were sequelae of the first accident. The Second Accident 48.The second accident occurred on 8 December 2006 at Baptist University where the plaintiff was studying for a degree in social work. At the time of the accident the plaintiff was seated in the same wheelchair as she was in when the first accident occurred. The seatbelt was the same and she said she secured it. She was being pushed from behind by a fellow student over a tiled pavement outside the department’s building. The tiles had not been smoothly laid. She felt anxious at the risks of falling and somewhat unstable within the wheelchair. She lost her balance and again fell out of the wheelchair with the seatbelt again failing to restrain her. In her evidence-in-chief, she described the accident as follows:
49.In cross-examination the plaintiff agreed that she had travelled on that path about 5 times before and was being pushed by a fellow student from her same class who was fully able and pushing her carefully. It was between 5 and 6 pm and not yet dark and so there was no problem with visibility. The weather was fine. There seems to be nothing about the conditions or circumstances which would justify the plaintiff becoming anxious. The following exchange took place in respect of this second accident in the course of the cross-examination:
The Injuries from the Second Accident 50.The injuries that the plaintiff suffered in the second accident were less serious than those in the first accident. This accident caused fractures to the right distal femur and the left proximal tibia and did not impact upon her previous injuries. She returned to the Duchess of Kent Children’s Hospital where she was again treated with a bilateral hip spica and discharged in March 2007. The Impact of the Accidents Upon the Plaintiff’s Studies and Future Employment 51.The first accident interrupted the plaintiff’s studies but the Baptist University allowed her to defer her studies for a period of one year. She hoped to transfer to the Bachelor degree programme and that her grades would be good enough to enable her to proceed to the second year of it. However, her studies were greatly affected by the accident and, good as her grades were in the circumstances, they were not sufficient to allow her entry into the second year of the Bachelor degree programme. However, she did gain entry to the Bachelor degree course but had to start again in Year 1. 52.The combined effect of the two accidents has been to delay her completion of her degree by two years. The plaintiff now expects to graduate this year and aspires to work as a social worker. This aspiration has been long held and notwithstanding the plaintiff’s condition this aspiration was not, pre-accident, an unrealistic one. This is because, pre‑accident, the plaintiff’s ambulatory ability was much greater than now and she expected that within the workplace she would be able to get around by the use of a cane. 53.After the first accident, it was expected that she would enjoy virtually a full recovery and return to her pre-morbid position. 54.However, after the second accident, her position changed and she now has much less ambulatory ability and can no longer use public transport or taxis or go out on her own. She also has much less ability to perform ADL. This includes an inability to transfer from wheelchair to bed or to toilet. As a result, she needs the constant care of her mother who has been accompanying the plaintiff to school. This will greatly reduce her chances of gaining employment. 55.In her second supplemental witness statement, the plaintiff described her current position as follows:
56.There is clearly a great difference between what might have been her position had the second accident not occurred and her position now after it has occurred. The irony is that the injuries she sustained in the second accident were not nearly as serious as those in the first accident but they have had a much greater impact upon her ambulatory ability and her ability to perform ADL. Her reduced abilities in these areas necessarily impacts upon her chance of obtaining employment and pursuing the career for which she has studied so long and hard. As a consequence, many of her heads of damage are claimed on the assumption that the defendant can be held liable for the occurrence of the second accident. Liability for the First Accident 57.The defendant concedes that it has a duty of care to users of its wheelchair lift but disputes that in regard to this plaintiff, who appeared to its staff to be accompanied by a companion and able to propel her wheelchair, that its duty extended to assisting the plaintiff to enter and exit the lift. Whether it had such a duty and if so whether the plaintiff’s injuries flowed from its breach of this duty are the central issues in respect of the defendant’s liability for the first accident. The duty of care owed by the defendant to users of its wheelchair lift 58.In cross-examination of the plaintiff by the defendant’s counsel the following exchange took place:
59.Relevant to this complaint is the plaintiff’s evidence that on previous occasions that she had used this wheelchair lift the staff had assisted her to enter and exit the lift. And that, she said, was her experience elsewhere when using lifts of this kind. 60.Also relevant is the plaintiff’s evidence that in order for her wheelchair to be wheeled onto the lift platform, the person pushing her had “to press down on the handle of the wheelchair to cause front wheels to go up” in order to surmount the lowered ramp. 61.Determining whether a duty of care exists in any particular situation was the subject of discussion by the Court of Final Appeal in Luen Hing Fat Coating & Finishing Factory Ltd v Waan Chuen Ming [2011] 2 HKLRD 223. In its judgment the Court of Final Appeal endorsed the “foreseeability/proximity/fairness, justice and reasonable” approach in which a trial court examines the foreseeability of damage, the relationship of the parties to each other to see whether it is so proximate as to give rise to a duty of care and whether it is fair, just and reasonable that the law should impose a duty of a given scope upon one party for the benefit of another. These are not discrete elements to be separately considered in a tick the box approach. Rather they are very much overlapping elements that should be used by a judge to guide him in exercising his judicial judgment. The Court of Final Appeal, at page 288, paragraph 30 of its judgment expressed it in this way:
62.In the present case, the defendant argues that a duty of care that extends to being responsible for the safe entry to and egress from the lift platform should not be imposed on the defendant as the risk of harm coming to a wheelchair occupant in performing these actions is not foreseeable and it would not be fair, just and reasonable to impose a duty of care of this scope on the operators of wheelchair lifts. In support of this argument, the defendant refers to the absence of any such direction in the manual provided by the manufacturer of the wheelchair lift and all the safety features associated with the lift itself. 63.The defendant has made it clear that notwithstanding that the wheelchair is capable of being used without supervision, it will only allow it to be used under the control and supervision of its staff. Consequently when a wheelchair occupant seeks the assistance of the defendant’s staff to use the wheelchair lift, they are placing themselves under the temporary control of those staff. In this situation, it seems to me that the staff would expect the wheelchair occupant to passively comply with their instructions and the wheelchair occupant would expect to have to follow those instructions. 64.In these circumstances I am of the view that a duty of care is owed by the defendant to users of its wheelchair lift in the use of the lift. And use of the lift encompasses entering onto the lift platform and exiting from it. It seems to me quite illogical to separate the entry and egress stages in the use of the lift from the general operation of the lift and that the duty must extend to the staff operating the lift being responsible for the safe entry of the wheelchair onto the lift platform before the commencement of the journey and the safe egress of the wheelchair from it at the end of the journey. In my view holding the defendant to such a duty follows inevitably from an application of the principles laid down by the Court of Final Appeal in Luen Hing Fat Coating & Finishing Factory v Waan Chuen Ming [2011] 2 HKLRD 223. 65.Of course whether there is a duty of care and what can reasonably be required of a wheelchair lift operator in discharging that duty (i.e. the standard of care) are two quite separate questions. Although the duty is only to do what is reasonable in the circumstances, one of those circumstances, if not the key circumstance, is that the person to whom the duty is owed is a disabled person. It is apposite at this point to note what is said by the authors of Clerk & Lindsell on Torts, 20th edition, at paragraph 3-70, page 220:
66.How disabled a particular wheelchair occupant may be will be unknown to the staff operating the wheelchair lift and will vary from disabled person to disabled person. I think that other than in the most obvious and clear situations it would be imprudent for the staff operating the wheelchair lift to make assessments or assumptions about the level of disability from which the wheelchair occupant may suffer or about the ability of the wheelchair occupant to fend for themselves in terms of entering or exiting the wheelchair lift platform. 67.In deciding what might be required of the defendant in fulfilment of its duty of care, regard must be had to the circumstances of each individual case. Clearly the safest course for the operators of such lifts is to take over the responsibility for placing a wheelchair user on the lift and removing them from it. If operators wish to eschew this responsibility then, in the event of an accident befalling the wheelchair user, the actions of their staff will fall to be carefully scrutinised to see whether the staff did all that could be reasonably expected of them in the circumstances to see that no harm came to the wheelchair user in that person’s use of the lift. 68.Nevertheless, I do accept that it would be quite legitimate to distinguish between the stages of placing a wheelchair user on the platform and taking the user off the platform and the stage of operating the lift in its ascent or descent mode. I say this simply because in the entry and egress stages the wheelchair occupant and any persons accompanying him or her may be involved, under the supervision of the staff, in both actions. This is in contrast to when the lift is moving in ascent or descent mode for then the wheelchair occupant is wholly in the hands of the staff. 69.In determining whether there has been a breach of the duty of care by the conduct of the staff falling below the standard of care that can reasonably be expected of them, it seems to me that it would be legitimate to take into account, amongst other matters, the following:
Was the defendant in breach of its duty of care? 70.The next issue that I must decide is whether the accident that befell the plaintiff was due to a breach by the defendant of the duty of care that it owed to the plaintiff. For me to decide this issue I must come to a conclusion about how this accident happened. The plaintiff says that if the evidence does not allow of a positive finding as to how the accident happened then I should have recourse to the res ipsa loquitur principle. 71.The only evidence that I have as to the accident comes from the plaintiff. There is, therefore, no evidence to contradict what she said. That she fell from her wheelchair is not disputed. Nor is it disputed that she did so as she was trying to wheel herself off the lift platform. 72.It is the plaintiff’s evidence that she was pitched out of her wheelchair when the front wheels of it encountered an obstruction as she was applying extra force to the wheels in order to propel the wheelchair faster. She was doing so because she apprehended the risk of harm from the bar of the wheelchair platform which she believed was slowly falling down and might hit her head. Much was made by the defendant of this perceived fear of the plaintiff and it was clearly the case of the defendant that it was not at all likely that the bar would have been falling down as the plaintiff thought and that the plaintiff was mistaken in her perception of the movement of the bar. 73.However, I believe that the questions of whether the bar was falling down or not and whether the plaintiff was mistaken, unreasonably or not, as to the movement of the bar, are really just red herrings. I say that firstly because there is no evidence that the plaintiff suddenly applying additional force to the wheels of her wheelchair caused the accident. The plaintiff says that the accident occurred because after applying the additional force her wheelchair came to a jolting halt when its front wheels encountered an obstruction. On her account it was the obstruction that caused the accident and I have no reason to believe that had the obstruction not been there, an accident would still have taken place. Secondly, the plaintiff says that she only started to propel her wheelchair to move it off the lift platform after she had received instructions to do so from the defendant’s staff. 74.The plaintiff’s explanation that she was jolted forward when her wheelchair’s front wheels met an obstruction is, I find, a perfectly credible one. Given her size and weight it would not take much to cause her to lose her balance and fall forward. I accept the plaintiff’s evidence that she only commenced moving her wheelchair once she had been told to do so and that from her position she could not see anything obstructing her way forward. 75.That brings me to the question of what caused the obstruction. Here, on the evidence, the possibilities are very limited. There is, of course, the possibility that the ramp had not been fully lowered. However there is another possibility that I should mention. Affixed to the floor at the top of stairs was a strip of rubber matting of the kind that is made up of rows of raised circles in order to alert the blind or visually impaired of the presence of the stairway. The defendant’s counsel suggested in cross‑examination that the gap between the rows of raised circles may have trapped a front wheel of the wheelchair and been the cause of the obstruction that the plaintiff felt. I find this a rather speculative scenario with no evidence that would allow me to accept it as a reasonable possibility. The front wheels may be small but there is no reason to think that they could be trapped in the way suggested. A more likely possibility is that the raised circles might have operated as an obstruction but for that to have happened the front wheels of the wheelchair must have already travelled down the ramp and that downward movement should provide enough momentum for the wheels to travel over the circles. I can’t imagine the raised circles creating such an obstruction to the wheelchair that they would cause the wheelchair to come to a complete and sudden halt and the plaintiff to pitch forward so violently that her wheelchair fell forward. Also the plaintiff is likely to have felt the downward movement of her wheelchair’s front wheels as they traversed the ramp. 76.After having reviewed the photos and the video of the operation of the wheelchair lift, I am satisfied that were the ramp not fully lowered it would obstruct the wheelchair and could bring it to a sudden and immediate halt. Were that to happen I am satisfied, on the balance of probabilities, that such a jolting stop could cause a person of the plaintiff’s diminutive size to pitch forward in the wheelchair. When viewing the video reconstruction I was struck by the difference in size of the actor portrayed in the video and the plaintiff and this, I believe, is the key to understanding how the plaintiff could be affected in such a dramatic way by what might otherwise be regarded as a comparatively small force. Coming to a jolting stop in the circumstances that happened here would probably not cause an adult person of average size and weight to fall out of the wheelchair. But of course the one thing that is quite clear about this plaintiff is that though she is an adult she has the body of small child. I am satisfied that the ramp could have been the source of the obstruction in that it was capable of having the effect upon her that was described by the plaintiff and of thereby causing the accident. 77.Of course, it could have been something other than the ramp but if so there is no evidence before me that would enable me to identify what else might have caused the obstruction. To try and find another cause would be to enter the realm of speculation and that I must not do. I accept, of course, that the absence of any evidence as to some other cause does not mean that I have to find it was the ramp but it does increase the probabilities that it was the ramp. I cannot see what else it could have been. 78.If I am wrong in my approach to making this finding of fact I should say that I would have reached the same conclusion on liability by means of the application of the res ipsa loquitur principle. The manner in which this principle is to be applied was discussed by the Court of Final Appeal in Yu Yu Kai v Chan Chi Keung (2009) 12 HKCFAR 705. At page 720, paragraph 43 Ribeiro PJ said:
79.In my view the conditions precedent to the operation of the rule are present in this case. First, the plaintiff is unable to say exactly how her injury was caused. Secondly, consonant with his duty of care, one may expect the defendant to know. Thirdly, the evidence has raised a prima facie case against the defendant. I say this because the evidence is that the accident happened when the plaintiff’s wheelchair encountered an obstruction when the plaintiff, in compliance with the instructions of the defendant’s staff who were supervising her, propelled the wheelchair to exit the lift platform. And fourthly, at the end of the day, the defendant has not dispelled that prima facie case by providing a plausible explanation for the plaintiff’s injury which is consistent with the absence of negligence on his part. The defendant made a considered decision not to call any evidence as to the accident and his cross-examination of the plaintiff did not result in evidence being adduced of a plausible explanation consistent with the absence of negligence on his part. In these circumstances, the proper inference on the balance of probabilities is that the cause, whatever it may have been, involved a failure by the defendant’s staff to take due care for the plaintiff’s safety. 80.I should mention that in the course of his cross-examination of the plaintiff, the defendant’s counsel elicited from her the fact that her companion had told her that the wheelchair ramp was not fully lowered when she propelled herself out of the lift platform. This hearsay statement explains the plaintiff’s belief that this was the cause of the obstruction. The defendant’s counsel has not objected to the admissibility of this hearsay evidence but has urged the court not to place any weight on it. 81.This statement is untested by cross-examination and so I have no idea of what this witness actually saw and to what extent her statement to the plaintiff is based upon actual visual observation as opposed to after the event reconstruction of what she thinks must have happened. Given the importance of the evidence and the uncertainty surrounding its reliability I do not think that, in the circumstances, I should place any weight on it. I have, therefore, for the purpose of making my finding on the cause of the obstruction, ignored the hearsay statement of the plaintiff as to what her companion told her. I have made my finding solely on the other evidence before me. Of course, I draw comfort from the fact that my finding that the cause of the obstruction was the ramp is not contradicted by that hearsay statement but I do not make any evidential use of that statement in reaching that finding. 82.Having made this finding, it must follow that the staff of the defendant, in instructing the plaintiff to commence moving her wheelchair off the lift platform when the platform ramp was not yet fully lowered, was in breach of the duty of care that the defendant owed to the plaintiff. Was the plaintiff guilty of contributory negligence 83.The only basis for finding the plaintiff guilty of contributory negligence is that she:
The defendant, of course, bears the burden of establishing contributory negligence but not having called any evidence as to how the accident occurred, relies upon the evidence of the plaintiff. 84.As to (i) there is no evidence that would allow of an inference that the plaintiff knew or must have known that the seatbelt was defective. The plaintiff had been involved in another accident in March 2004 when her wheelchair toppled over. On this occasion she was wearing her seatbelt and she said that it did not fail her. Between March 2004 and the first accident in February 2006 she was not involved in any accident and so, prior to the first accident, had no experience of the seatbelt failing. Furthermore after the first accident the seatbelt was checked by an occupational therapist who could find nothing obviously wrong with it. This is why the plaintiff continued to use it. Yet it also failed to perform its function in the second accident after which it was replaced when the plaintiff acquired a new wheelchair. 85.I certainly accept that part of the plaintiff’s obligation to attend to her own safety includes using the seatbelt that was attached to the wheelchair. I also accept that the plaintiff’s obligation extended to checking that it appeared to be properly secured. I say this because, of all people, the plaintiff was the one who best knew and appreciated how vulnerable she was to injury. 86.The defendant’s counsel asks me to infer that the only reasonable inference that can be drawn from these facts is that plaintiff either was not using the seatbelt or had negligently failed to properly secure it. From this his counsel says it must follow that the plaintiff is guilty of contributory negligence. However it must be borne in mind that this was not a case of the plaintiff falling out of her wheelchair. This is a case of the whole wheelchair toppling over forward, not sideways, in the course of which the seatbelt failed to secure the plaintiff within the wheelchair. For the wheelchair to topple over forward suggests to me that the plaintiff may have been initially restrained by the seatbelt so that as her body was pitched forward it carried the wheelchair with it. This seems to me a more reasonable inference than that the seatbelt was not being used or was not secured properly. Therefore, on the evidence before me I am of the view that the inference the defendant invites me to draw is not the only reasonable inference that can be drawn from the evidence and I decline to draw it. It therefore follows that I cannot be satisfied that the plaintiff has been guilty of contributory negligence and I find the defendant 100% liable for the first accident and for the injuries sustained by the plaintiff. The Liability for the Second Accident 87.As the defendant was not involved in the second accident, his liability is said to arise on the basis that but for the residual disabilities from which the plaintiff suffered as a result of the first accident, the second accident would not have occurred. 88.Before addressing any legal issues, I must first satisfy myself that the factual claims of the plaintiff are established by the evidence. These are threefold. First that she suffered a stiffness of hip and limbs and a psychological condition which manifested itself in recurring nightmares and an excessive anxiety when travelling in her wheelchair at the possibility of further falls. Secondly that these were sequelae of the first accident and that the defendant is liable for them. Thirdly that these sequelae contributed in a material way to the second accident. 89.The evidence of the physical and psychological sequelae comes from the plaintiff and the medical reports. The plaintiff was cross‑examined on why she took so long to raise the issue of her recurring nightmares and anxiety for it was not until 4 August 2008, some 2½ years after the first accident, that she raised it with those treating her. It may be that part of the explanation was that the anxiety may have worsened after the second accident. There was no evidence on this but it seems likely that if the condition existed before the second accident then the second accident taking place is only likely to have compounded her fears and anxiety. It must also be remembered that she was in hospital until September 2006 and then within a few months the second accident happened and she was in hospital again until 27 July 2007. So it was in fact only about one year that she delayed in seeking treatment and I do not think that is particularly significant. Most people are reluctant to seek help for mental health problems and it is not at all unusual for a person with the condition from which the plaintiff was suffering to think that it might gradually alleviate over time. 90.As to the stiffness in her right hip and limbs that is clearly documented by the medical reports. Her physiotherapist assessed the plaintiff’s condition before the second accident and this assessment is quoted earlier in this judgment. 91.I am therefore satisfied, on the balance of probabilities, firstly that the plaintiff did suffer from the conditions that I have described and secondly that these conditions were sequelae of the first accident and are therefore conditions for which the defendant is liable. I am also satisfied that these sequelae were present at the time of the second accident. That, of course, does not mean that these sequelae were the cause or a material contributing cause to the second accident happening. 92.The problem with the second accident is the plaintiff cannot really explain how it happened. On the paucity of evidence adduced it appears to be an accident that should not have happened. The plaintiff was being pushed by a fellow student and does not blame that person in any way for the accident. That person was pushing the wheelchair with apparent care and not at an excessive speed. True it was that the wheelchair was being wheeled along a path that had a rough and uneven surface. This may well have caused a certain amount of jolting to the wheelchair but it is not suggested that, as happened in the first accident, the wheels of the wheelchair met with an obstruction that caused the wheelchair to come to such a violently sudden halt that the plaintiff was pitched from it. 93.I have no evidence from the student who was pushing the wheelchair to assist me in understanding how the accident happened. The plaintiff’s explanation is:
94.On her own explanation there were a number of factors contributing to the cause of the accident. They were the unevenness of the path, her instability within the wheelchair and the failure of the seatbelt to secure her. The test that is used to identify the factual cause of an accident is referred to as the “but for” test. It has been long accepted and applied by the courts of Hong Kong, for example by the court of Final Appeal in Cheung & Anor v Tse Wai Chun (2000) 3 HKCFAR 339. It is described by the authors of Clerk & Lindsell on Torts 20th edition, at paragraph 2-09, page 57:
95.Assuming for the moment that the unevenness of the path caused her to have a jolting ride. Assuming further that her psychological condition caused her to be excessively tense within the wheelchair resulting in her becoming more susceptible to losing her balance and less able to control her body’s stability and movement within the wheelchair. Assuming all of this, what was it that really caused the accident? Surely it was the failure of the seatbelt to restrain the plaintiff within the wheelchair. I say this because on this occasion there was no toppling of the wheelchair and so if the seatbelt had properly performed its function the plaintiff would not have had this second accident and would not have suffered these further injuries. 96.There is do doubt that the sequelae, together with the uneven pathway, contributed to the plaintiff becoming unstable within the wheelchair, losing her balance and her body moving forward. But it was precisely to deal with situations such as this that the wheelchair was equipped with a seatbelt and of course it was to deal with situations such as this that the plaintiff wore the seatbelt. In my view the application of the “but for” test leads to the conclusion that it was because the seatbelt was defective that the plaintiff fell from the wheelchair, not because of the sequelae conditions from which she suffered from the first accident. 97.There can of course be a number of causes of an accident or of an injury. The plaintiff does not have to establish that the sequelae were the one and only cause of the second accident; it is enough that it was a cause in the sense of materially contributing to it. (For a decision of the relevant principles see the judgment of Sakhrani J in C M Y v Tam Siu Ching [2004] 4 HKLRD 604). Can it be said that notwithstanding that the “but for” test would appear to exclude the sequelae of the first accident as a factual cause of the second accident, nevertheless the sequelae were, legally, a material contributing cause of the second accident. 98.I accept that the sequelae contributed to making the plaintiff less stable within the wheelchair and more prone to losing her balance and that as a consequence they rendered her more vulnerable to wheelchair accidents. But there must still be a link to the injuries which, in respect of the second accident, were caused by her body falling out of the wheelchair. The sequelae created the risk that her body might fall out of the wheelchair but it was the failure of the seatbelt to restrain her that transformed risk into reality. In my view, the failure of the seatbelt constituted a novus actus interveniens that broke the chain of causation that otherwise might have linked the defendant to the second accident. The failure of the seatbelt was not a contributing cause of the second accident ‑ it was the only cause of it. 99.It is my conclusion, therefore, that the defendant is not liable for the second accident. Quantum 100.After the first accident the plaintiff’s recovery was slow but it was expected that she would return to her pre-morbid condition. That condition was that she could walk around her home with crutches and was generally able to take care of herself in terms of ADL. She could use taxis and public transport and had a reasonable chance of obtaining employment. Unfortunately that is not her position now but the changes to her condition are the result of the second accident and the defendant, I have concluded, is not liable for those changes. The plaintiff’s counsel agrees that should the defendant be found not liable for the second accident then the plaintiff cannot claim for future loss of earnings or loss of earning capacity and her loss of pre-trial earnings should only be for one year. 101.Without the defendant being liable for the second accident the plaintiff’s heads of damage are as follows:
102.However before turning to my assessment of the remaining heads of damage it is necessary to first address the issue of what discount should be made for the fact that the plaintiff suffers from osteogenesis imperfecta, which condition makes her much more vulnerable to suffer fractures of her bones. Discount for the plaintiff’s pre-existing condition 103.The law on this issue I take from the decision of the Court of Appeal in Liu Chun Kow Joe v Lee Sau Wing [2008] 3 HKC 433. At page 446, paragraph 36 the Court said:
In my view this plaintiff comes primarily within the second category though in a sense she could be said to straddle both the second and third categories. I say this because even though she is in the second category from the date of trial she was in the third category in respect of the second accident when risk of further disability became certainty. 104.In the present case I am not concerned with future economic loss but only PSLA and pre-trial economic loss. In respect of PSLA the relevance of the plaintiff’s pre‑existing disability is that it placed her at risk of suffering broken bones in the future which, should such incidents occur, would impact upon her enjoyment of the amenities of life. But given the purpose of the discount I do not see how the pre-existing disability can impact on the assessment of the pain and suffering component of PSLA or the loss of amenities of life up to the date of the second accident. 105.This assessment is ultimately one which is based on the evidence. That this must be so is a point made by Cheung JA in Liu Chun Kow Joe v Lee Sau Wing [2008] 3 HKC 443 when he said at paragraph 39, page 447 E-F:
106.When assessing the impact of the injuries on the plaintiff’s ability to enjoy, in the future, the amenities of life, I must start from the position that as a result of her condition, but not of the accident, the plaintiff is a disabled person. As a consequence of her disability she always faced a future where her ability to enjoy the amenities of life was already significantly limited. 107.Nevertheless, as I have previously mentioned, the plaintiff is an extraordinary woman in terms of the positive attitude she possesses and the great efforts that she has gone to in trying to develop a normal life for herself. Within the limitations that her condition imposed upon her, the plaintiff explored and enjoyed to the full the amenities of life. For her to suffer even a small restriction or further limitation on her amenities of life is a huge loss. 108.In looking to her future and trying to assess the likelihood of future accidents I cannot ignore the second accident. I regard the second accident as evidence that as a consequence of her condition she is vulnerable to suffering fractures of her bones as a vicissitude of her life, and these fractures could have the effect of further reducing her ability to enjoy the amenities of life. However balanced against that the plaintiff has not suffered any further accident since 2006. 109.The plaintiff accepts that a discount should be made and suggests it should be no more than 30%. The defendant submits that it should be 50%. However given the role which I understand pre-existing disability has on a PSLA award and taking account of the evidence of the plaintiff’s condition and its impact on her life before the first accident, after that accident and now, it is my view that discount of around 20% is warranted. PSLA 110.The nature of the award for PSLA was described by Cheung JA in Liu Chu Kow Joe v Lee Sau Wing [2008] 3 HKC 443. At paragraph 11 on pages 438 I – 439 A of the report he said:
111.I have described earlier in this judgment the injuries sustained by the plaintiff in the first accident on 3 February 2006. In summary the plaintiff was operated upon after which she was kept in cast until 20 April 2006 at which time the plaster cast, metal wires and screws were removed and replaced with an abduction brace. She then started training and rehabilitation which included graded mobilization and weight bearing exercises. 112.As of 10 August she was walking in the hospital with a rollator. Upon discharge on 8 September 2006, her Barthel Index score for ADL was assessed as 83, compared to a pre-morbid score of 90. By November 2006 she had improved slightly and obtained a score of 86. 113.Dr. Poon described her hospitalization as follows:
114.The slow healing of the fractures, the lengthy rehabilitation process with physiotherapists and occupational therapists all contributed to an unusually long period of hospitalization. 115.Nor should one just take into account physical matters such as the number of operations, the months spent in plaster cast etc. The psychological distress suffered by the plaintiff in the course of her recovery must have been considerable. As she waited to recover so that she could get on with her life, especially her education, she must have felt considerable frustration at the slow pace of her healing and rehabilitation. She could not rush the process as her bones have to become strong enough before physiotherapy can begin. 116.The plaintiff had the additional worry during her recovery of possible vascular necrosis of the head of the right femur. Such was her concern that she consumed Chinese traditional medicine in order to prevent this happening. 117.In my view this plaintiff’s hospitalization and rehabilitation cannot be equated with that endured by normal persons with similar injuries. Normal persons would not have encountered the difficulties in their bones healing that this plaintiff encountered. Nor would they have been subject to as lengthy a hospitalization or as prolonged a period of rehabilitation. In his book Damages for Personal Injuries and Death, John Munkman makes the point at page 37:
118.The special difficulties faced by the plaintiff were described by Dr. Poon Tak-lun in his evidence as follows:
119.In addition I must take account of the plaintiff’s residual disabilities from the first accident i.e. residual disabilities that are unconnected with the second accident. These were described by Dr. Poon as stiffness of the right hip and the left knee and the weakness of the muscles. The plaintiff in fact has only grade 3 muscle power and Dr. Poon explained that this grading means a patient is able to do no more than lift the limb against gravity and would be “barely able to stand for a very short time, may be just a split second”. 120.Dr. Poon also said that the plaintiff would now be more susceptible to fractures because she had less mobility and is less able to keep her balance. After giving this opinion the following exchange took place between the Court and Dr. Poon:
121.The doctor also mentioned that these injuries from the first accident will also, in conjunction with her previous injuries and any future injuries she may suffer, in due course contribute to her developing arthritis. 122.The doctor accepted the possibility that the plaintiff could further improve in her recovery of her residual disabilities but, given the lapse of time since the accident, did not see this as a realistic likelihood. 123.There was also the psychological sequelae from the first accident but this had largely subsided when she was assessed in August 2009. Her clinical psychologist then commented on her:
124.The plaintiff’s counsel submits that this client should be placed in the “serious injury” category laid down in Lee Ting Lam v Leung Kam Ming [1980] HKLR 657. I agree, subject to the qualification that I would regard this plaintiff’s injuries, with all that she has been through in terms of hospitalization and rehabilitation when taken in conjunction with her residual disabilities, as placing her at the high end of the “serious injury” category. I assess the plaintiff’s damages for PSLA at $520,000. This amount must be discounted to allow for her pre‑existing condition, resulting in a final amount of $420,000. Pre-trial loss of earning 125.The parties agree that the amount should be for a period of one year which the defendant calculates as amounting to $277,263, including an allowance for MPF contributions. Special Damages 126.These amount to $26,360.40 Interest 127.Interest on the award for PSLA will be at 2% per annum from the date of service of the writ to the date of judgment. Interest on special damages and pre-trial loss of earnings will be at half the judgment rate, i.e. 4% per annum, from the date of accident to the date of judgment. Conclusion 128.There will be judgment for the plaintiff in the sum of $719,623.40 plus interest. I make an order nisi that the defendant pay the plaintiff’s costs. I further order that any costs reserved in the course of this litigation be payable by the defendant. The plaintiff’s costs are to be taxed in accordance with the Legal Aid Regulations.
Mr. B.K. Ho, instructed by Messrs Lau & Chan assigned by D.L.A., for the Plaintiff Mr. Paul K.N. Wu & Mr. Martin Wong, instructed by Messrs Damien Shea & Co., for the Defendant | |||||||||||||||||||||||||||||||
Cases cited in this judgment
Other judgments that cite this case
Further hearings and rulings under HCPI 344/2008