FRANCES CHRISTINE KEELING v. THE HEBE HAVEN YACHT CLUB LTD

BETWEEN

______________________

J U D G M E N T

______________________

Hon Le Pichon JA:

1.  This is an appeal from the judgment of HH Judge H C Wong dated 25 October 2004 in a personal injuries action.  The judge found in favour of the plaintiff on liability in respect of the accident which occurred on New Year’s Day in 2000 but also found contributory negligence on her part to the extent of 70%.  The plaintiff subsequently sustained three further falls.  She succeeded on liability in respect of all of them but was held to have been contributorily negligent to the extent of 25% and 75% in respect of the third and fourth falls.  The defendant appealed against liability and quantum but the latter was limited to the loss of earning capacity head.  The plaintiff filed a respondent’s notice to affirm the judgment on liability on additional grounds and a cross-appeal in respect of the extent of contributory negligence for the accident and for the third and fourth falls as well as the level of award for PSLA.  At the conclusion of the hearing, judgment was reserved which we now give.

The judge’s findings

The accident

2.  The plaintiff sustained injuries when she was alighting from a yacht called the “Narnia” moored at the Hebe Haven marina managed by the defendant onto a sampan that was part of a tender service provided by the defendant to its members and visitors.  At about 6 pm on 1 January 2000, the operator of sampan No. 6, Mr Cheng Kam Hei, was summonsed by the owners of the Narnia.  The sampan came up to the stern of the Narnia to pick up passengers including the plaintiff.  A Mr Mason was already in the sampan when it approached the Narnia.  The judge found that he was sitting on the bench seat on the starboard side of the sampan close to the second fender and was holding on to the Narnia in that seated position.  Mr Keeling, the plaintiff’s husband, was the first passenger to descend from the Narnia.  Apart from finding that Mr Keeling was not holding on to the Narnia on board the sampan moments before the plaintiff fell into the sea, the judge considered that Mr Keeling’s role at the time was unclear. 

3.  She accepted the plaintiff’s evidence that as she descended the stairs of the Narnia, she was holding onto the ladder with both hands with her back to the sampan, the starboard side of which was tight against the stern of the Narnia.  She then turned and lowered her right foot onto the seating area of the sampan with her left foot and left hand still on the ladder but at this point, she felt that the sampan was starting to drift away from the Narnia.  The plaintiff tried to steady herself and the judge found that it was due to this hesitation and delay and a reluctance to let go of the ladder of the Narnia that caused the sampan to drift.  The plaintiff lacked the strength to pull the two boats together and as her legs were astride both boats, with the sampan drifting further apart, she tore the ligaments on her right knee and fell into the sea.

4.  The judge found the defendant liable on the basis that the accident could have been avoided had it given prior warnings to its members and their guests using the sampan service, that the defendant should have advised passengers to board from the bow deck, to take care while boarding and to assist one another.  She also found that the plaintiff was partly to blame for the accident in that she failed to wait for her husband to give her a hand by asking him to hold the two boats together before she descended onto the sampan.  Contributory negligence was fixed at 70%.

5.  After the accident, an arthroscopy of the right knee was performed on 28 January 2000 which revealed that there was (1) Grade III medial collateral ligament laxity; (2) 80% tear of the anterior cruciate ligament; and (3) minor incomplete tear of the lateral meniscus.  Five days later the plaintiff was discharged with a hinged knee brace and a walking frame.  She received physiotherapy treatment three times a week and after about four months, she started to use crutches for walking.

Subsequent falls

The second fall

6.  About nine months after the accident, the plaintiff suffered another fall.  The plaintiff had just taken a shower in a bath that had a shower at one end.  Her evidence was that she had to hold on to the handrail and sit on the edge of the bath in order to step out of the shower.  As she stepped out, her knee collapsed under her.  (See Tr. p. 46J-N)  At the time of the second fall, she was able to walk unaided.  She was admitted into hospital for four days after which she had to wear a knee brace for another 12 weeks.

7.  The judge appeared to have accepted the plaintiff’s evidence that she had repeated episodes of her right knee giving way under her since the accident.  She found that the cause of the second fall was that the plaintiff’s right knee had been weakened by the first fall.

The third fall

8.  About eight weeks after the second fall, the plaintiff attended her daughter’s wedding in Florida.  While walking on the beach where the wedding was being held, she experienced another episode of her right knee giving way under her and she fell.  An MRI was taken and the plaintiff was put on a knee brace for another 12 weeks, walking with crutches.  On the day of this third fall, the plaintiff had just switched from using two crutches to a single crutch and a full leg brace.  The judge found that the fall was caused by the single crutch slipping in the sand and that the plaintiff had contributed to her fall by failing to use two crutches while walking on the beach.  She held the plaintiff to be 25% responsible for that fall.

The fourth fall

9.  By April 2002, the plaintiff was able to walk unaided and had resumed almost full daily activities.  On 17 November 2002, over two years after the third fall, the plaintiff had a fourth fall at her home.  She fractured her left ankle and also injured her right knee.  The judge’s findings appear at paragraph 47 of the judgment:

“The cause of this fall 2 years later at her home according to Mrs. Keeling was her putting weight on her right knee which gave way under her as she stepped on the lip of the door on the threshold of the patio.  Though Miss Molloy questioned the cause of the fall and attributed it to her tripping over the door lip on the floor, we have only Mrs. Keeling’s evidence on what really happened.  Taking into consideration Mrs. Keeling’s evidence on this incident, it is obvious that she should know better than to place weight on her right knee when crossing uneven surfaces such as the door lip on the floor to the patio.  I find Mrs. Keeling contributed 75% to this fall by her failure to take care.”

Liability

10.  The appeal on general liability was on the ground that as warnings had not been pleaded, warnings had not been an issue canvassed at trial.  It was therefore not open to the judge to find that such warnings should have been given, that they were not given and that had they been given, they would have prevented the accident.  Mr Wright who appeared for the plaintiff did not seek to challenge this submission made by Ms Molloy for the defendant.  The issue before this court is whether the finding on liability could be affirmed on other grounds. 

11.  It was common ground that on the question of liability, the three questions that arise are (1) whether the defendant owed a duty of care to the plaintiff; if so, (2) what the scope of that duty was; and (3) whether the defendant had discharged that duty.  After some initial reluctance, Ms Molloy accepted that the defendant did owe a duty of care to the plaintiff, although the duty being no more than “such care as in all the circumstances of the case is reasonable”.  As regards the scope of that duty, she referred to the formulation propounded by Lord Hoffmann in paragraph 34 of his speech in Tomlinson v Congleton Borough Council [2004] 1 AC 46:

“… the question of what amounts to ‘such care as in all the circumstances of the case is reasonable’ depends upon assessing, as in the case of common law negligence, not only the likelihood that someone may be injured and the seriousness of the injury which may occur, but also the social value of the activity which gives rise to the risk and the cost of the preventative measures.  These factors have to be balanced against each other.”

12.  It was submitted that the fact that there was a foreseeable risk of injury did not mean that the defendant was under a duty to do what was necessary to prevent it.  It was said that Mr Cheng, for whose acts the defendant was vicariously liable, had done all that could have been expected of him in the circumstances.  It was also said that the provision of a tender service had a social value and the defendant could not reasonably be expected to have taken other preventative measures.  Ms Molloy made much of the fact that Mr Cheng’s method of operation was common practice and that he had picked up more than 754,880 passengers on his sampan since working for the defendant and he had never had nor come across such an accident.  Ms Molloy also referred to in paragraph 45 of the Tomlinson case where Lord Hoffmann opined that it would be extremely rare for an occupier of land to be under a duty to prevent people from taking risks which are inherent in the activities they freely choose to undertake upon the land.  It was said that the plaintiff chose to use the tender service and must accept responsibility for the obvious risk of injury she chose to run. 

13.  Pausing there, there appears to be an inconsistency in the submissions made: on the one hand it was said that the system used by the defendant in respect of its sampan operation was both reasonable and safe and on the other hand the plaintiff was said to be running an obvious risk in taking the sampan.  Be that as it may, the real question is whether the defendant, through Mr Cheng, had done all that it reasonably could in all the circumstances.

14.  It was part of the plaintiff’s case that the defendant was negligent in, inter alia, “failing to ensure that the sampan was securely placed next to the rear of the Narnia, before permitting the plaintiff to commence a boarding”.  Contrary to what Ms Molloy submitted, that question was specifically put to Mr Chang in cross-examination.  For example,

Q.	You’ve said that it’s not the practice for the sampan to tie up to the yacht or boat they’re collecting passengers from.
A.	That’s right.
Q.	Now, in the situation at the time of the accident, I would suggest to you that it would have been possible and practical for you to tie up to the rear of the “Narnia”.
A.	I do not agree.
(Tr. p. 132C-E)

15.  The plaintiff’s case was that it would have been possible and practicable for the sampan to be tied up to the rear of the Narnia by using a rope attached to what is known as the Samson post at the front of the boat and the rope attached to the middle of the starboard side of the sampan.  The position of the ropes in question is visible from the photograph of the sampan at page 160 of the core bundle.  It is apparent from the photographs of the back of the Narnia on page 182 of the same bundle that there is a cleat positioned at each of the two rear edges of the Narnia.  That Mr Cheng was cross-examined at length on this subject appears from pages 132C – 137O of the transcript.  Mr Cheng’s answers appear from the following passages:

Q.	But coming back to whether or not it’s possible to tie the sampan to the rear of the “Narnia”, can you think of how that could be done?
A.	I think that can be done, although we don’t normally use ropes.  But, the back of the boat would still swing, so it’s not so practical.
(Tr. p. 132J-K)
Q.	But, you do agree it’s possible to tie up using that rope?
A.	We’ve never used that rope to tie up that way.
Q.	But is it possible?
A.	It’s “possible”, but I have never done it.  Even now, we still do not tie up for people to board.
(Tr. p. 133G-H)

This line of cross-examination continued.  Although at one point (transcript page 133S-U) Mr Cheng appeared to say that it would not be possible to “tie two parts of the sampan to the rear of the Narnia”, his explanation was far from convincing. 

16.  In paragraph 15 of his witness statement, Mr Cheng had given the following explanation:

“I understand that the Plaintiff alleges that the accident was caused, inter alia, as a result of my failure to ensure that the sampan was tied up, securely or at all, to the rear of the Narnia.  In my view, in order to properly secure two boats together, the two boats have to be tied, parallel to each other, at two points, ie. at the bow and at the stern.  The reason for this is because, if only the front end of the sampan was tied to the rear of the Narnia as suggested by the Plaintiff, the whole of the sampan, save for the very front tip of it, would still be able to swing around from side to side, and, indeed, would do so quite freely, hence the accident would still have happened.  However, securing the sampan and the Narnia together by tying them up properly at two points is not only a difficult process, but is also labourious and time consuming, and in my view, totally excessive in the circumstances.”

He was asked about what he had said in paragraph 15:

Q.	In the statement that you’ve signed, B-105, paragraph 15, I’d like to take you to the last part where you say, “However, securing the sampan and the ‘Narnia’ together by tying them up properly at two points is not only a difficult process, but is also laborious and time consuming.  “And”, in your view, “totally excessive in the circumstances.”
A.	That’s right.
Q.	Okay.  “Laborious and time consuming”; so does this mean you’re in a hurry?
A.	Not that we were “in a hurry”.  It’s the members; when we pick them up or send them to certain places, they are in a hurry.
Q.	Was anybody at the time of the accident in a hurry?
A.	Mason got down because he wanted to go back to the dock.
(Tr. p. 139O-S)

17.  Despite Mr Cheng’s efforts to suggest that it would not be possible to secure the sampan to the rear of the Narnia by tying them up properly at two points, it is clear that it could be done, although, in his view, it would be “laborious and time-consuming” and “totally excessive in the circumstances”.  His attitude to the method of operation put to him appears from the following passage:

A.	Normally, we do not tie the sampan to the “Narnia”, and we have not intended to do so.
Q.	Well, I understand that, Mr Cheng.  But I’m suggesting to you that there is a safer way to do this job, and that is tie up.  And I’m trying to find out whether or not it’s possible.
A.	All along, we don’t use ropes, and still it is very safe.  And it has been a few years now after her fall and, still, there has not been another accident.
(Tr. p. 134H-K)

18.  But whether or not the exercise would be “totally excessive” in the present case is the question.  That must depend on the circumstances pertaining.  In my view, regard must be had, inter alia, to the characteristics of the passenger in question.  Here he was picking up an expatriate lady passenger whom he thought was aged “about 60”, “about 5 feet” tall, of “medium” build, and “an elderly person who would move slowly”.  One would not describe the plaintiff as agile or confident when it came to physical manoeuvres.  It is quite obvious that the plaintiff was someone that one might expect would even need assistance in boarding the sampan.  Mr Cheng was asked about this:

Q.	Did you think that there might be any difficulty in her getting on to the sampan?
A.	That did not cross my mind, no.
(Tr. p. 143N-O)

19.  Although the evidence was that the sea was calm at the time, it has to be borne in mind that the sampan being a smaller vessel offered much less stability than the Narnia.  Even in the calmest of conditions, both the Narnia and the sampan would be affected by the slightest movement in the water.  In my view, given those circumstances, Mr Cheng should have secured the sampan to the rear of the Narnia before allowing the plaintiff to board.  Had he done so, the accident would not have happened.  The defendant as Mr Cheng’s employer is vicariously liable for his negligence. 

20.  In finding negligence, in the present case, my observations as to what should have been done are confined to the plaintiff and the circumstances of the accident.  What would constitute reasonable care or reasonable preventative measures would depend on the facts of the particular case.  Common sense has to be exercised on each occasion having regard to the passenger concerned, the conditions pertaining etc.  No general mode of operation can be laid down and certainly none is intended here. 

21.  I am also of the view that the plaintiff did contribute to the accident.  She must have been aware of her own lack of confidence in performing the manoeuvre required to board the sampan.  She should have waited until such time as the sampan had been secured to the back of the Narnia or assistance from her husband had been available.  In my view, the plaintiff and the defendant were equally to blame for the accident. 

Subsequent falls

22.  The defendant’s case was that it should not be responsible for the subsequent falls in view of the medical evidence before the court, namely, Dr Chiang’s report dated 18 August 2003 and a supplemental report dated 14 February 2004.  Those reports dealt with the medical aetiology of the plaintiff’s complaint of her right knee constantly giving way after the accident.  It was submitted that as there was no explanation from the medical point of view for the plaintiff’s complaint, the injuries sustained in the accident were not causative of the subsequent falls.

23.  Whether or not the plaintiff’s condition could be explained with certainty from a medical point of view, it is no more than common sense that after an injury of the kind sustained by the plaintiff, it is hardly surprising that there would be some resulting weakness in her right knee.  It is clear that the judge accepted the plaintiff’s evidence.  In other words, she found as a fact that the plaintiff’s right knee was constantly giving way under her after the accident.  Given that finding, it could not reasonably be argued that causation had not been established.

24.  So far as the second and third falls are concerned, no case has been made out by either party for disturbing the judge’s findings on liability.  It would follow that I would affirm the judge’s finding that the second fall was entirely attributable to the accident and that the plaintiff contributed to the third fall to the extent of 25%.

25.  But the same cannot be said in respect of the fourth fall.  The judge’s findings at paragraph 47 of her judgment are set out in paragraph 9 above.  She plainly thought that the plaintiff had stepped on an uneven surface.  The plaintiff’s evidence was as follows:

Q.	And then, some months later, you had a further fall.
A.	Yes.
Q.	What happened?
A.	I was at home, and I was stepping out from my living room onto my front patio.  And there’s a very very small -- well, it’s not a step, it’s where the window frame goes.  You have to step over that which is only like this.  And as I stepped over and put my weight on my bad leg, my knee just collapsed again.
(Tr. p. 20J-M)

She was cross-examined about it:

Q.	…here.  Now, you say that going from your living room to the patio…
A.	Yes.
Q.	…there’s a little lip?
A.	It’s where the sliding patio doors track.
Q.	And I would suggest to you that, in fact, this is not a giving way.  Again, this is not a giving way incident.  This is just a case of you tripping over that little lip, is it not?
A.	You’re crazy.  It’s absolutely…
Q.	Well, why is that suggestion so “crazy”, Mrs Keeling?  If there is a lip…
A.	Because I know what my knee felt like…
Q.	If there is a lip…
A.	…when it…
Q.	… and if there is two years without a fall.
A.	I didn’t say there was two years without my knee giving way, did I?
Q.	No.  But we’re talking about a fall here.
A.	Yes.  Because I -- there, again, I had full weight on this as I stepped over the…
Q.	Yes.
A.	…track.  The full weight was on this, my knee just goes sideways.
(Tr. p. 52G-P)

26.  The judge’s finding (at paragraph 47) was based on a misconception of the plaintiff’s evidence.  The evidence did not support a finding that she had stepped on “uneven surfaces” i.e. the track itself which protruded from the floor; rather, the evidence was that she had “stepped over” it.  In my view, the judge was wrong in holding the plaintiff 75% liable for the fourth fall.  The evidence is clear that the plaintiff fell because her knee just went “sideways”.  There is no basis for holding the plaintiff responsible at all for the fourth fall.

Quantum

PSLA

27.  The basis of the judge’s award of $160,000 for pain, suffering, and loss of amenities appears at paragraph 52 of the judgment:

“In the present case, I take into consideration the period of hospitalisation of 5 days after the first fall and the arthroscopy operation on 28 January 2000, the period of physiotherapy sessions and the inconveniences caused by the need to use a brace and crutches for 6-8 months and the subsequent giving way of her right knee leading to the second, third and fourth falls, that the third and fourth falls were contributed by her negligence.  I also take into account that Dr. Chiang assessed she had grade I anterior laxity cruxiate ligament of 3%, mild residues in the medial collateral ligament of 1% and the partial menisectomy to be performed at 1% was caused by the fourth fall.  I award the sum of $160,000 under PSLA.  In reaching this award, I have taken into account that Mrs. Keeling is also partly to blame for the third and fourth falls.”

28.  Mr Wright who appeared for the plaintiff submitted that the award was too low.  Given my finding that the plaintiff is not at all to blame for the fourth fall, in any event, the award would need to be revised to reflect this.  The inquiries sustained in the fourth fall were far from minor.  Leaving that aside, I think Mr Wright is correct in submitting that the award, made on the basis of the matters set out in paragraph 52 of the judgment, was sufficiently low to warrant interference by this court.  Taking a global view of the matter, including the injuries suffered in the fourth fall, I would consider an award of $250,000 to be more appropriate.

Loss of earning capacity

29.  The judge had made an award under this head of $18,750 in respect of the rehabilitation period of 3 months for an operation to repair the medial meniscus which was torn in the fourth fall after taking into account the fact that she was found to have been 75% to blame for it.  The defendant challenged this award based on the plaintiff’s evidence that she would not undergo such an operation for as long as she continued to work.  Since it is meant to compensate for loss while not being able to work, I would agree that there was no basis for any award under that head and the award of $18,750 must be set aside.

Conclusion

30.  Based on the above, the damages are to be calculated as follows:

PSLA	$250,000.00
Loss of pre-trial earnings	36,472.15
Loss of earning capacity	-
Special Damages:
Medical expenses	12,031.75
Travelling expenses (hospital visits)	12,496.00
General traveling expenses	3,000.00
Care and attention	30,000.00
Other expenses	1,247.00
Future medical expenses	5,000.00
Sub-total	$350,246.90

31.  After discounting 50% for contributory negligence, the final amount of damages to which the plaintiff is entitled is $175,123.45.

Order

32.  I would dismiss the appeal on liability and affirm the judge’s finding of liability on other grounds.  I would allow the appeal on quantum so far as it related to the head of loss of earning capacity and allow the cross-appeal in respect of the extent of contributory negligence and for liability for the fourth fall and on the level of the award for PSLA.  I would therefore award damages in the sum of $175,123.45.  The order for interest remains unchanged.  I would also make an order nisi that the costs of the appeal and cross-appeal be to the plaintiff since she has substantially succeeded in both the appeal and cross-appeal.

Hon Cheung JA:

33.  I agree.

Hon Yuen JA:

34.  I agree and have nothing to add.

Hon Le Pichon JA:

35.  There will be an order as proposed in paragraph 32.