Au Man Ming v. Goldwell Property Management Ltd
Read the full judgment text of DCPI 636/2010 on BabelCite. This District Court judgment was delivered on 2 September 2011.
1. The Plaintiff (“ Au ”) was a building attendant employed by the Defendant (“ Goldwell ”). For injury during patrol along the rear staircase of a building on 21 February 2008, Au commenced the present action against Goldwell for damages. Both liability and quantum are in dispute.
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DCPI 636/2010 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION PERSONAL INJURIES ACTION NO. 636 OF 2010 ____________
Coram: His Hon Judge Leung in court Date of hearing: 8; 9 August 2011 Date of judgment: 2 September 2011 J U D G M E N T 1.The Plaintiff (“Au”) was a building attendant employed by the Defendant (“Goldwell”). For injury during patrol along the rear staircase of a building on 21 February 2008, Au commenced the present action against Goldwell for damages. Both liability and quantum are in dispute. Background 2.Since 2001, Au had worked as a security guard or building attendant for several companies until he was employed by Goldwell in July 2007. He had since been assigned to station at Cameron Centre at Tsimshatsui, Kowloon (“the Building”). 3.The Building is a commercial building. Exclusive of the basement, it is 16-storey tall. Each floor was at the material time let to a tenant. Besides the lifts, the Building has 2 staircases, one at the front and one at the rear. The front staircase provides access to and egress from odd number floors whereas the rear staircase provides access to and egress from even number floors. 4.On 21 February 2008, Au was on night shift together with another attendant Poon (“Poon”). Au’s shift started at 7:30 pm and lasted until 7:30 am the following day. Among other things, the 2 attendants took turn to patrol the staircases of the Building at an interval of 2 hours during the shift. Poon took the first turn at about 8:00 pm. At about 10:00 pm, it was Au’s turn to patrol the staircases while Poon was stationed at the management office at the lobby of the Building. 5.About half an hour later, the telephone at the management office rang. It was a call from Au who reported a fall accident at the rear staircase on the 12th Floor. Poon proceeded to the scene, helped Au descend to the lobby. Au then telephoned to report the accident to the control centre of Goldwell. 6.Au left the Building for Queen Elizabeth Hospital afterwards. He returned from the hospital at about 2:00 am and made another telephone report to the control centre. He left the Building again at about 2:37 am. 7.The above background is not in dispute. I find the same to be fact according to the evidence in any event. Issues 8.Au attributes his fall to the alleged obstruction by 2 pots of mandarin plant placed on the landing of the rear staircase on the 12th Floor at the material time. On this basis, Au pleads negligence and breach of implied duty as the employer on the part of Goldwell. 9.The major issues in dispute are:
How the accident happened 10.There is dispute as to whether there were the 2 pots of mandarin plant on the landing of the rear staircase on the 12th Floor as alleged; and how Au came to fall at the time. Mr Szeto for Goldwell, and I think understandably, stressed that Au has not been entirely consistent in his version of the accident. 11.In his Employees’ Compensation Application filed by his solicitors in July 2008, Au alleged that he was tripped over by pots of plant and fell on the staircase. 12.In the letter before action from his solicitors in November 2009, Au alleged that he slipped and fell as a result of Goodwell’s breach of duty to prevent the staircase from being wet and slippery. There was no mention of any pot of plant or that it caused Au to fall. 13.Not surprisingly, the solicitors for Goldwell requested for a signed statement from Au to explain exactly what had caused his injury and why he could not have avoided it had he reasonably exercised due care and attention of his way ahead when patrolling the staircase. According to the reply by Au’s solicitors some 5 months later in April 2010, Au reverted to his version stated in the Employees’ Compensation Application. 14.When it came to his pleading, reference to the 2 pots of plant was made but the accident was said to have happened when Au stepped over the plants and in the course of that he lost balance and fell. No tripping was alleged. Likewise, in his statement, which he adopted at trial, Au elaborated that while he was stepping over the 2 pots of plants, his left foot stepped into the void (or in his own words “踏空”) and lost balance. Therefore he fell. 15.Mr Szeto also referred to the record of how the accident happened in the medical expert joint report. In my view, that was relatively less significant than the above documents that actually reflect Au’s instruction to his legal advisors. 16.In court, Au and eventually his counsel confirmed that he was not tripped; and he did not, as he could not, step over the 2 pots of plants as pleaded. According to him, the height of the plants reached his chest. 17.Amongst the evidence, there is the log book kept at the Ground Floor lobby management office, which contained the attendants’ records of the commencement and completion of each patrol as well as reports of any specific discovery. None of the attendants on duty who patrolled along the rear staircase prior to and after the accident recorded in the log book the discovery of any obstruction of that part of the rear staircase whether by pot of plant or otherwise. 18.Regarding the accident, the attendants also made their subsequent incident reports to Goldwell confirming no discovery of obstructing article in that part of the rear staircase. 19.In court, Au suggested that the pots of plant were removed by the cleaner of the building in the morning following the accident. He was not suggesting that as a possible explanation for why his colleagues did not discover the plants after the accident. He actually suggested that as a matter of fact that he had allegedly gathered from the cleaner responsible for removing the plants. He added that the cleaner just refused to testify. Such allegation of fact was made only for the first time during trial. In other words, Goldwell had no opportunity of verifying the allegation with the cleaner that Au referred to. 20.Poon, the attendant who was in the same shift of duty with Au at the time of the accident, gave evidence. He adopted his statement. He was the first one to arrive at the rear staircase to see Au, upon receipt of the telephone call from Au. He saw no pot of plant there as suggested by Au. In the log book, Poon reported that Au fell and was injured during patrol along the staircase. In his incident report in February 2008, as mentioned above, he also made no mention that it was the alleged pots of plant that caused Au to fall. 21.According to Poon, Au indeed never mentioned that he fell because of any pot of plant obstructing the staircase. What Au said to him when he arrived at the scene was that Au mistook two steps as one and therefore fell. Poon mentioned the same in his subsequent detailed report to Goldwell in August 2008. In court, Poon admitted that he made this subsequent report at the request of his employer in view of Au’s claim. 22.Au disputes what Poon said. According to Au, he did tell Poon that it was the pots of mandarin plant that obstructed the staircase that caused him to fall. In other words, Poon lied. Mr Chan for Au argued that Poon had every reason to lie because he wanted to please or to avoid upsetting his employer. But in the absence of the same being put to Poon, suggestion like that only during submission was unfair. Nothing else between Au and Poon was suggested that might cause Poon to tell such lie against Au. 23.Seeing the witness testify and considering the evidence objectively, I actually prefer the evidence of Poon to that of Au. I too doubt there were in fact the 2 pots of mandarin plant at the place and at the material time as alleged. 24.What if the alleged pots of plant did exist as alleged? Photographs of the relevant part of the staircase were produced. In my judgment, it is clear that Au must be able to see the pots of plant, if they existed, on the landing of the staircase, once he began to descend along the staircase towards that landing. Not only was there natural light from the window, but there was also a fluorescent tube right above the landing where the alleged pots of plant were placed. I reject the allegation that Au’s view of the way was blocked. 25.In court, Au confirmed that he never sought to move any of the alleged pots of plants so as to make room for him to pass by. Somehow he explained that he had no instruction to do so. Eventually, Au further confirmed that the staircase was in fact not completely obstructed; and that there was still a bit of room for him to pass by. 26.In court, Au suggested that he used his left hand to push away the branches and leaves of the plants to avoid their scratching his face when he passed by them. Judging from the photographs and the position of the alleged pots of plants on the landing as indicated by him, I have difficulty in understanding how the plants, that only reached his chest, would have scratched his face, when he passed by them. 27.All these convinced me that assuming that the alleged pots of plant existed, it did not even occur to Au that they were instrumental to his fall. The fact that he made no mention of them to Poon when Poon came to help or thereafter is therefore not surprising. 28.I find that with or without the alleged pots of plant, Au fell because he missed his steps on the staircase and lost his balance. Whether Goldwell was in breach 29.In view of the above findings, Au’s case should fail. 30.Assuming that the alleged pots of plant existed and that they substantially obstructed the staircase, Au still needs to prove the particulars of breach as alleged. His pleaded case is that Goldwell has failed:
31.Despite the fact that it is his burden to prove the alleged breach on the part of his employer, Au was completely silent in this respect in his statement. 32.There is no suggestion that Goldwell was not aware of the existence of the alleged pots of mandarin at the staircase at that time. Therefore it cannot be said that Goldwell has failed to remove the same from the staircase to prevent the accident. In his submission, Mr Chan accepted that. 33.In court, Au suggested that his employers always tolerated the occupiers of the Building in leaving garbage, big or small, at the rear staircases. He suggested that the pots of mandarin plant might have been left there because it was just past the Chinese Lunar New Year. But he did not say, and there is no evidence, that that was a common practice amongst the occupiers of the Building during similar time of every year. Au admitted that he had not encountered such kind of obstruction of staircases before during his duty. Nor did he recall any accident due to such obstruction of the staircases. 34.In court, Poon admitted that the occupier of the shop on the 12th Floor might place things at the rear staircase shortly before the shop was close for the night. He recalled having seen lunchboxes being left at the rear staircase there. He proceeded to knock on the rear door of the shop and advised the occupier to remove them. As explained in his statement, the occupier was co-operative. The occasions on which relatively large articles were found at the staircases were rare. 35.Considering the evidence, I find that the occasions on which large items were left at the staircases of the Building that amounted to obstruction were in fact rare. Insofar as the evidence of Poon and that of Au in this regard are contradictory in this respect, I prefer the former to the latter. 36.In the circumstances, it is not proved that obstruction of the staircases to the extent as that by the alleged 2 pots of plant was reasonably foreseeable by Goldwell. 37.There is no evidence that Goldwell has issued any warning to the occupiers of the Building against obstruction of the rear staircases. But the circumstances discussed above did not reasonably call for such warnings. Even assuming that the warning suggested by Au had been issued, co-operation of the occupiers of the Building would have been necessary. On a daily basis, it would have been part of the duties of the attendants, including Au, to ensure that. 38.According to Poon, one of the purposes of the patrol was to ensure that the staircases as fire escape would not be obstructed; and that people would not be harmed by the danger created by the obstruction. It would have been his duty to advise the occupiers of the Building to remove large articles from at the staircases, if he encountered them. However, Au did not agree with Poon. 39.The log book mentioned above contained an entry dated as early as August 2007 instructing the attendants to ensure that the staircases were clear of obstruction (by articles such as iron chains, ropes, wooden boards or plastic sheets) so as to eliminate the danger of tripping or obstruction of the fire escape. Attendants were instructed to inform and advise the occupiers to remove those articles from the staircases, if found. Besides Poon, Au was one of the attendants acknowledging receipt of such instruction by signing on the log book on the same day. 40.Poon’s understanding of his duty was consistent with the instruction. On the contrary, Au went so far as suggesting that such instruction served cosmetic purpose only (or in his own word “做比人睇而已”). That, in my judgment, reflects the kind of attitude he held towards his job and duties. 41.No doubt Goldwell was under a duty to ensure that the staircases, as Au’s place of work, were free from danger of obstructions. However a significant feature of the system was undoubtedly the patrol of the staircases by the attendants including Au. Goldwell counted on the attendants, including Au, in discharge of their duties as part of Goldwell’s system to achieve that condition. Possibility of encountering obstruction during patrol was a readily appreciable risk at Au’s work. 42.Assuming that this was an occasion where the occupier of the Building failed to co-operate and left the alleged pots of plant at the rear staircase, that fact itself did not prove breach on the part of Goldwell. It boils down to how Au handled the situation when faced with it during his patrol. With his past similar work experience, including posting at the Building for more than half a year prior to the accident, Au would not have required specific instruction as to whether and, if yes, how he could safely pass by the obstruction. 43.Considering all the circumstances of the case, I do not find that Goldwell was in breach of its duty to Au. Contributory negligence 44.Mr Chan referred to various cases on liability and contributory negligence; but each case must be decided on its own facts. 45.It was part of Au’s duties to react to situations where articles were found at the staircases. As mentioned above, the part of the staircase that Au was patrolling was well lit at the material time. He should be able to see the alleged pots of plant on the landing when he was descending the staircase towards them. Au suggested that he was not supposed to do anything about that situation but to simply continue his patrol. The reason he gave was that there was never instruction to do anything about that. This was extraordinary. 46.Au admittedly never considered moving the pots or either of them a bit so as to make room for him to pass by safely. There is no suggestion that it was difficult, let alone impossible, to do so. However Au gave the same explanation, namely that he was never instructed to do so. This was again extraordinary. 47.Further, Au was not holding the handrail when he was descending the staircase. He missed his step and fell. 48.In the circumstances, assuming that Goldwell is somehow liable for causing the obstruction of the staircase, Au should be no less than half responsible for passing by it in the manner abovementioned. Quantum 49.For completeness, I proceed to determine the quantum of damages, assuming that liability is established. Injuries and treatment 50.As mentioned, Au went to Queen Elizabeth Hospital by taxi after the accident. Medical examination revealed tenderness over his left foot and ankle; tenderness over his anterior chest wall; and abrasion over his forehead. X-ray showed no bone injury. The clinical diagnosis was sprained left foot. He was treated and discharged with analgesics. 51.Since then, Au had attended HAD Health Medical Centre and Human Health Medical Centre several times. He had also attended the Accident and Emergency Department of the Prince of Wales Hospital; the General Outpatient Clinics at Yuen Chau Kok, Lek Yuen and Ma On Shan. The medical records show no significant findings, notwithstanding Au’s complaint about persistent ankle pain. 52.Au had been given sick leave until March 2009. After resuming work, he had been given intermittent sick leave 4 to 5 times a month on account of residual left ankle pain. Form 7 53.By Form 7 dated 19 November 2008, the Employees’ Compensation (Ordinary Assessment) Board certified that Au suffered left foot injury resulting in pain. Loss of earning capacity for the purpose of employees’ compensation was assessed at 0.25%. Afterwards 54.4 months after his resumption of work, Au sustained a slip and fall injury in the street on 19 July 2009 resulting in left wrist fracture. He was treated with a plaster cast, followed by physiotherapy and occupational therapy. His sick leave on that account lasted until 18 February 2010. 55.Au was dismissed by Goldwell with effect from 1 March 2010. 56.In January 2011, Au had a heart attack; and cardiac surgery was performed. 57.Au has been unemployed since his dismissal; and remained so as at the date of trial. Medical expert opinion 58.On 17January 2011, Au was examined by the orthopaedic experts engaged on behalf of the parties, namely, Dr Ko Put Shui Peter and Dr Poon Kai Ming. They produced their joint report dated 7 March 2011. 59.Amongst other things, the report recorded the following complaints by Au about his left ankle:
60.There was subjective complaint about mild swelling; but no complaint about stiffness. Normal footwear creates no problem. He is able to manage his usual activities of daily living and self-care. 61.During physical examination of Au, the experts found no obvious swelling, deformity or muscle wasting. X-ray shows no significant bone abnormality. The experts considered that Au has recovered to a relatively satisfactory functional extent. Clinically there is no instability. Having viewed the surveillance recording of Au on 17, 25 and 27 May 2010, the experts observed that his activities of daily living are quite satisfactory. 62.The experts agree that the treatment and rehabilitation received by Au was appropriate and reasonable. He has reached maximal medical improvement for his left ankle. Except for intermittent pain once in a while, his condition is static. There should be no significant problem in managing his usual activities of daily living and self-care. 63.The experts also agree that Au should be able to resume his pre-accident job as a security guard with mild decrease in his work efficiency. His condition was simply further adversely affected by his subsequent injury to the left wrist in 2009 and heart attack in 2011. 64.Dr Poon assessed that Au suffers from 0.25% impairment of the whole person. Dr Ko assessed that to be 1-2%. 65.As to the sick leave, Dr Koo considered the duration until March 2009 to be acceptable and reasonable. Dr Poon opined that the sick leave until 2 July 2008 and subsequent intermittent sick leave from 10 July 2008 until 4 November 2008 were reasonable. Pain suffering and loss of amenities (PSLA) 66.Au is 58 years old and married. 67.Contrary to Au’s subjective complaint, the objective medical evidence suggests that his injury was minor. I should actually be careful with Au’s evidence. In court, he even sought to suggest causative link between the injury to his left ankle and the severity of his wrist injury from the subsequent accident in the street in 2009. That suggestion must be rejected. 68.Considering the medical evidence and the surveillance recording (which was also played in court), I have no reservation in accepting the medical experts’ opinion that Au has recovered satisfactorily. As observed by the experts, Au was seen quite able with his four limbs, including riding a bicycle. No difficulty could really be detected. 69.Mr Chan reduced the damages claimed for PSLA from the pleaded amount of HK$200,000 to HK$120,000. He relied on Lee Sze Wai v Law Chi Kin, DCPI 44/2001 (10 May 2002); and Cheung Man Fu v Great Vantage Development Ltd, DCPI 1165/2005 (7 March 2008). On the contrary, Mr Szeto submitted that a sum between HK$30,000 and HK$80,000 suffices as damages for minor injury such as that suffered by Au. 70.Considering all the evidence, I would have awarded HK$100,000. Loss of earnings 71.The pre-accident monthly income of Au is agreed at HK$6,630. 72.Notwithstanding some difference between the medical experts as to the appropriate sick leave period, Goldwell is prepared to agree to the sick leave period to last from the accident until 15 March 2009. The loss of earnings, as pleaded, was HK$6,630 x (153/30) = HK$33,813 during this period. This amount is not controversial. 73.Au resumed work after the sick leave until his dismissal in February 2010. Now he also claims full loss of earnings since his dismissal until now at the rate of his previous monthly income. 74.As can be seen from the report (paras.5.1; 5.2; 10.8), the experts obviously knew the circumstances in which the accident happened and the work demand when recommending that Au should be able to resume his pre-accident job as a security guard working in the night shift in the commercial building with mild decrease in efficiency. 75.Whether the injury in 2009 and the heart attack in 2010 come into play in affecting his work capacity, it is clear that his left ankle injury as a result of the accident in 2008 did not cause his unemployment since his dismissal by Goldwell until now. 76.Au further claims future partial loss of earnings. This is based on an alternative job that would have produced a monthly income of HK$3,000 to Au. Au claims for the shortfall in income for the rest of his working lifespan. But it became clear at the trial that the basis of such claim is simply arbitrary without evidential support. That also goes contrary to what I said above in respect of Au’s working capacity. 77.In conclusion, no claim for loss of earnings since the end of the sick leave in March 2009 is allowed. 78.There is no claim for loss of mandatory provident fund benefits. Loss of earning capacity 79.In view of the above discussion, I see no basis for making an award for loss arising out of any handicap of Au in the labour market as a result of the accident. Miscellaneous special damages 80.The sum of HK$2,975 and HK$1,000 claimed for medical and travelling expenses respectively are agreed. Summary 81.In summary, the quantum would be as follows:
82.Interest until today would have been awarded at 2% per annum on damages for PSLA from the date of writ; and at half judgment rate on the other special damages from the date of the accident. 83.Account would have to be taken of 50% contributory negliegence and employees’ compensation received in the sum of HK$70,625.40. Order 84.Liability not being established, the claim is dismissed. I make a nisi order that Au do pay Goldwell costs of this action, including any costs reserved. I certify the engagement of counsel. Au’s own costs shall be taxed in accordance with Legal Aid Regulations. In the absence of application within 14 days to vary, this costs order shall become absolute.
Mr Alwin CHAN instructed by Messrs Au & Vrijmoed for the Plaintiff upon the assignment by the Director of Legal Aid Mr Patrick SZETO instructed by Messrs Cheng Yeung & Co for the Defendant | |||||||||||||||||||||||||||||||||||||||
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