AMIN KHAN v. SECRETARY FOR JUSTICE sued for and on behalf of COMMISSIONER OF CORRECTIONAL SERVICES

DCPI 1929/2018

[2022] HKDC 488

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 1929 OF 2018

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JUDGMENT

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INTRODUCTION

1.  This is a personal injury claim brought by the plaintiff against the defendant for loss and damage arising out of a slip and fall incident (“Incident”). In his Revised Statement of Damages (“RSOD”) he claims a total sum of $414,000 representing pain, suffering and loss of amenities (“PSLA”), future loss of earnings and loss of earning capacity. Both liability and quantum are in dispute.

BACKGROUND

2.  The plaintiff is a Bangladeshi and is an asylum seeker in Hong Kong. At the time of the Incident, he was imprisoned at Tong Fuk Correctional Institution on Lantau Island (“TFCI”) for having been employed unlawfully in Hong Kong.

3.  On 1 November 2015 (“the Day”), the plaintiff was instructed to have a session for physical exercise at Football Field A (“FFA”). After he picked up a pair of sports shoes (“Shoes”), he went on to play football game in the football pitch (“Football Pitch”). He alleges that due to the slippery and uneven ground of the Football Pitch he slipped and fell[1]. He also said that the Shoes were thin and inappropriate for the purpose[2]. As a result of the fall his right wrist and right side of his back was injured. He was sent to the hospital within TFCI (“Centre Hospital”) and then to Queen Mary Hospital (“QMH”) where he was treated and discharged. He alleges negligence and also breach of common duty of care under the Occupiers Liability Ordinance against the defendant.

4.  The defendant denies all allegations made. Its case is basically that the plaintiff was not playing football when he fell; there was no water or wetness on the ground of FFA at the material time. In fact the plaintiff did not fall within the Football Pitch but outside of it where he was jogging. Further, the shoes handed out to the detainees had been checked and found to be fit and appropriate for the purpose before they were given out on the Day. The defendant also disagrees with the quantum of damages as claimed. Contributory negligence was pleaded as an alternative.

ISSUES IN DISPUTE

5.  Main issues between the parties include those set out below:-

(i)  How and where the Incident happened;

(a)  Whether the plaintiff had made a statement to say the Incident happened while he was jogging due to his own fault;

(b)  Whether the plaintiff was interviewed by Mr Wu and said that the Incident happened while he was jogging due to his own fault; and

(c)  How and where the Incident happened.

(ii)  Condition of the Shoes given to the plaintiff;

(iii)  Condition of the ground of FFA

(a)  Whether the Ground was wet; and

(b)  Whether the Ground was uneven;

(iv)  Whether there was contributory negligence on the part of the plaintiff if the defendant is found liable; and

(v)  Quantum.

6.  The plaintiff appeared before me in person at trial. Ms Siu, Government Counsel, appeared for the defendant. The plaintiff was the only factual witness who testified in support of his case. The defendant called 3 witnesses to testify. Mr Tan was the Physical Exercise Officer on duty on the Day and was at the scene. He gave evidence on how and where the Incident happened and the condition of FFA and the Shoes. Mr Wu, Principal Officer of TFCI, said he had interviewed the plaintiff after the Incident. Mr Chu, Chief Officer (Administration), told the court the procurement procedure for the shoes to be used by detainees and that they would be regularly checked.

(i) How and Where the Incident happen?

7.  Before I deal with the evidence of witnesses, I have to deal with two contemporaneous records produced by the defendant. One was a statement signed by the plaintiff (“Statement”), the other was an Injury Report returned by Mr Wu on same day stating that the plaintiff had been interviewed and told him that the Incident was due to his own carelessness. The plaintiff said he did not know the content of the Statement and there was no interview.

(i)(a) Whether the plaintiff was author the Statement

8.  The plaintiff denied he was author of the Statement which was produced by the defendant. The plaintiff said after he was sent to the Centre Hospital he was asked to sign on a blank statement form which turned out to be the Statement now produced[3]. In the Statement, the plaintiff has apparently said in gist that:-

(a)  the Incident happened due to his own carelessness with   no other people’s fault;

(b)  he had been given proper clothing and footwear for physical exercise;

(c)  FFA was dry, clean and with no obstacle; and

(d)  there was sufficient sunlight.

9.  In his witness statement the plaintiff said that as he could not understand English he did not know the content of the Statement. He signed as he wanted to get medical attention soonest. He found the pain in his right hand excruciating. He could only sign with his left hand at the time. After he signed, an air ambulance arrived to take him to QMH[4].

10.  During trial he maintained his position that he did not know the content of the Statement. He said someone told him if he did not sign he would not be sent to hospital for treatment. He therefore signed. He said he could not write in English at that level and as his wrist was injured, he could hardly write but barely sign.

11.  About the return of Statement by the plaintiff, in his witness statement, Mr Tan said he gave the plaintiff a blank statement form and asked him to write down how the Incident happened. After that, he went to the office of the Duty Officer to fill out his own statement to give an account of the Incident[5]. He returned to the Centre Hospital and collected the Statement from the plaintiff. The plaintiff confirmed to him that it was written and signed by him. He returned the Statement to the Duty Officer and went back to his work.

12.  When asked by Ms Siu to clarify his evidence, Mr Tan said he could not remember the exact time he collected the Statement from the plaintiff. He said it should be before the plaintiff was taken to the air-ambulance which arrived at 11:51 am. He did not see how the Statement was filled out but he saw that the Statement stated the course of Incident and there was signature of the plaintiff. He did not remember to whom he had passed the Statement. He put it back to the office and he went to attend to his duties. He said he did not ask the plaintiff to initial against the deletion on the 8^th line in the Statement[6]. He agreed he should have done so but he was in a rush.

13.  Mr Tan said he had never said to the plaintiff that he had to sign the blank statement form before he would be sent to hospital for treatment. He said he did not know the plaintiff had to be taken away to a hospital outside TFCI when he gave the blank statement form to the plaintiff.

14.  Mr Tan said he did not know how it was turned into the Statement. He did not arrange for interpretation but believed that there should be someone of same nationality of the plaintiff in the Center Hospital to help out. It did not occur to him that the plaintiff might need help in writing due to his injury in the wrist because he did not know how bad he was injured. He left the plaintiff and went to the office because he did not know whether they had blank statement form in the Centre Hospital. He asked the plaintiff to fill out the blank statement form at a time before he received treatment as he saw he was stable and at that time he was waiting for a doctor in the Centre Hospital to see him. He said he checked the Statement and found that the content coincide with the course of the Incident, he took it and went back to the office.

15.  Further he did not remember but might have asked the plaintiff to write in the Statement what he was wearing for exercise on the Day. He could not remember whether he had asked the plaintiff to put down “the Incident was solely due to my fault”. He remembered he did not asked the plaintiff to write “not attribute to any other person” and he did not know the meaning of “attribute”. He said he had achieved Advance Diploma in English. He did not notice that the hand-writing in the body of the Statement was very different from the way the plaintiff signed.

16.  After hearing the evidence and reading relevant documents, I do not accept the defendant has proved that the plaintiff was the author of the Statement and he knew and understood the content of it when he signed. It does not take a hand-writing expert to tell the glaring difference between the hand-writing in the body of the Statement and the plaintiff’s signature. This however skipped the notice of Mr Tan who said he had read the Statement and found that the account reflected truly what had happened. Mr Tan’s evidence is vague and even if accepted, there was just no such evidence from him or any other witness of the defendant to tell how and by whom the Statement was filled out and whether the content had been read and explained to the plaintiff before he signed.

17.  I make it clear however that I do not accept plaintiff’s evidence that he was told if he refused to sign he would not receive medical treatment. This is not what he has said in the witness statement. He told a different story as to why he signed. In his witness statement he said “I did not understand what the document was about and I only signed it as I wanted to co-operate and get medical attention urgently because of [the] excruciating pain in my right hand.” He never mentioned that his signing off the Statement was a condition for being given medical treatment.

(i)(b)Whether the Plaintiff was interviewed by Mr Wu

18.  Mr Wu gave evidence for the defendant. He was the Day Orderly  Officer at the material time[7]. He compiled an Injury Report which was dated 1 November 2015[8]. In the Injury Report he said he had interviewed the plaintiff, Mr Tan and another detainee. He said during the interview the plaintiff had told him that the Incident happened while he was jogging due to his own carelessness and it did not involve any other person. He said the plaintiff had told him that the ground was dry and clean with sufficient sunlight. At the trial, he said he could not remember the time he interviewed the plaintiff or whether it was before or after he was taken to QMH for treatment. He could not remember where the interview took place. He remembered there was no interpretation provided. He could not remember whether Mr Tan did come to see him about the Incident and whether Mr Tan was there when he interviewed the plaintiff. He could not remember how he had got the statements of Mr Tan, the plaintiff and another detainee which he referred to in the Injury Report[9]. He confirmed no record of the interview had been made.

19.  In my view, Mr Wu’s evidence on the interview was not forthcoming. He was at least failed by his memory. I do not accept that Mr Wu has proved that an interview with the plaintiff had taken place. I therefore reject his saying that the plaintiff had told him that the Incident happened because of his own carelessness.

(i)(c) How and Where the Incident Happened

20.  After I have ruled out the Statement and rejected Mr Wu’s evidence about the interview, what remain before the court is the evidence of witnesses.

21.  In his witness statement the plaintiff said at the time of the Incident he was playing football game in the Football Pitch. He said on 1 November 2015 the time between 9:00 to 11:00 am he was instructed to do exercise at FFA. After doing some exercises he joined other detainees to play football from about 10:00am. In the course, he slipped and fell backwards due to slipperiness and unevenness on the ground. That was about 10:45 am. When he fell he landed on the ground with his right hand and as a result he suffered injuries to his right wrist and right side of his back. He said he became unconscious for fraction of a second after the fall. Soon afterwards as he gained consciousness he was helped to walk into the Centre Hospital by two other detainees and one officer who was on duty.

22.  The defendant produced photographs and a sketch which could show that FFA was fenced off for security reasons[10]. Within the fencings, there was the Football Pitch which took up most of the area of FFA. There is a trail between the sides of the Football Pitch and the fencings (“Trail”). It is the plaintiff’s case that the Incident happened while he was playing football in the Football Pitch. The defendant’s case is that the plaintiff was jogging on the trail surrounding the Football Pitch when he fell. The places where the Incident happened as alleged by the parties were marked with an “X” respectively at page 140 of the Trial Bundle. Now attached as Appendix 1. In the sketch there was one typed-“X” marked by the defendant and a pen-marked “X” made by the plaintiff’s solicitors indicating their respective case of where the plaintiff fell.

23.  At trial, the plaintiff said when he fell the football was with his team. He was in the middle of the Football Pitch. At that moment he wanted to move towards the goal which was not shown in the photograph at page 120 so that his teammate could pass him the ball. The ball was on his left hand or right hand side about 3-4 meters away. He was not running very fast. He did not see the water on the ground as he was watching the ball. When he slipped, he slipped on his right foot which was in front. He slipped when the middle part of his sole touched the ground. He marked a red circle with green highlights on PEx1 to say that this was the place where he fell. This is close to the marking made by Mr Tan later to show where the plaintiff fell. The two markings were on the same half of the Football Pitch, just that one marking was outside, the other marking was inside. The two spots are quite close if compared to the markings made on the sketch on page 140 where one typed-“X” marked by the defendant was outside the Football Pitch, the other pen-marked “X” made by the plaintiff’s solicitors was inside and on the other half of the Football Pitch. In short, the marking made by the plaintiff at trial was different from the one made by his solicitors before trial.

24.  The plaintiff also agreed that they could choose what to do during the physical exercise session. They could sit around, do some stretching or play football. There were about 30-40 detainees brought to FFA. As to the football game, there were 14 to play, 7 against 7. He said he played football for the first hour from 9 am without doing any warm-up exercise. It was pointed out to him that in paragraph 4 of his witness statement he said he did some exercise before he played football at about 10 am. He said he did not do exercise but other detainees did. He said it was a long time after the Incident and what he said in the witness statement should be correct. He could not remember very clearly whether he took a break before he joined the football game again.

25.  The plaintiff was asked to tell more specifically the location where he fell. Referring to the marking on PEx1 showing where he fell he further said he fell at the same spot where there was water. The marking made by him shows that he fell not in the middle of the field but closer to the bottom corner of the Football Pitch. This is a place different from his earlier evidence that he was in the middle of the Football Pitch moving towards the goal. It was also different from the marking made by his lawyer emphasizing to the defendant the place the plaintiff fell[11].

26.  Mr Tan was Physical Exercise Instructor on duty on the day of Incident. He adopted his witness statement and also his staff statement returned immediately after the Incident[12]. He said both were true and correct. In his evidence in chief, he clarified that the Football Pitch was called 沙地 (sand ground) but actually it was cement paved. He said there was no sand on the Ground.

27.  He said in his witness statement that he made arrangement for the detainees in TFCI to do physical exercise if he was on duty. In accordance with protocol set down, he examined FFA to see that it was clean safe and secured. He also checked that the Ground of FFA to see it was dry and even, without water and obstacles. On the Day, there were 19 detainees brought to FFA. The detainees were free to choose their activities for exercise. At about 10:45 am, he saw the plaintiff fall while jogging. He said the plaintiff lost balance, fell and landed on his right hand. The plaintiff told him his right wrist was injured. He helped the plaintiff to go outside of FFA and examined him. He made a report to the duty officer and made arrangement for the plaintiff to go to the Centre Hospital for treatment[13].

28.  At trial he marked an “X” to show the same on a photograph at page 123 which was then produced and marked as DEx1. It was outside the Football Pitch but near the side-line, about 5-6 steps before turning the corner of the Football Pitch. His marking made at trial was consistent with what the defendant had put on the sketch at page 130 of the Trial Bundle.

29.  I notice after comparing PEx1, DEx1 and sketches at pages 130 and 140 that not only the plaintiff made a marking which was different from what his lawyers had done for him, the marking he made at trial was very close to where Mr Tan said he fell, the difference is whether it was inside the Football Pitch. Even if the court give him allowance on his not being very good in making markings on a photograph about where he fell, his oral evidence does not match with his marking. His marking showed that he was not in the middle of the Football Pitch but close to the bottom line. I do not accept the plaintiff’s evidence on where he fell.

30.  As to how the plaintiff fell, Mr Tan said he kicked his foot whilst jogging and fell. The plaintiff said he slipped.

31.  After hearing evidence on how the plaintiff fell, I find Mr Tan’s evidence not supported by medical evidence. According to Dr Cheung’s report, which was not challenged by the defendant, it was found that the plaintiff’s “[right] wrist was swollen and tender, with decreased range of movement. There was minor [right] elbow abrasion. XRay showed fracture on his [right] distal radius.”[14] Dr Lam and Dr Ho agreed that the medical evidence “was consistent with the mechanism of injury described it this did happen[15]”. I have hesitation in accepting Mr Tan’s evidence on how the plaintiff fall. I believe if he kicked his leg and fell, it was more likely that he fell forwards and not backwards. If he fell forwards, there would probably be abrasions on his knees and palms even if they were minor. There was no abrasions on his knees and palms. There were minor abrasions on his right elbow and they support his case that he slipped and fell backwards.   

32.  After considering all evidence in this regard, I find that the plaintiff has failed to prove where he fell. Since the burden is on him I do not find that he has proved that he fell inside the Football Pitch even if I reject the evidence of Mr Tan about how the plaintiff fell. As to how he fell, I reject the evidence of Mr Tan that he kicked his own foot/leg and fell. I find that it was more probable that the plaintiff slipped and fell.

(ii) Condition of the Shoes

33.  The fact that I find the plaintiff had probably slipped and fallen, it does not automatically mean that the defendant is liable. The plaintiff has to prove that it was the condition of the Shoes and the ground that made him slip and fall.

34.  About the Shoes, the plaintiff said in his witness statement that they were thin and inappropriate. Under cross examination he said that they were “not good”. He said that shoes were placed in a box on the ground for them to choose but all of them were old and not of good quality. When asked whether he had complained about the quality of the Shoes he said he told the officer in charge that the Shoes were not good. He said that on the Day and one or two weeks earlier he had made complaints about the quality of the shoes provided to them. On the Day he said to the officer in charge that it was dangerous to play in the Shoes after he picked them for the particular exercise session.

35.  The plaintiff said the detainees could choose and pick among the shoes but they checked with the size only. They could pick another pair if they want but all of them were old. On the Day, he had checked and tried with two to three pairs. The first two pairs did not fit his size. He emphasized and reiterated that all shoes were bad and some were very bad. Some were good and some were not good. Some were more worn out and became very thin at the bottom. He checked but could only get the Shoes which the soles were flat. When he picked the Shoes, he thought they were good for him. In fact the soles were not so good. They were thin. He knew the soles were thin when he tried them on, they however fitted his size. He could not find another pair which fitted his size so he took the Shoes.

36.  He agreed that he had been wearing the Shoes for 1 hour and 45 minutes and he did not feel uncomfortable with them. He agreed he did not have to stop playing because of the Shoes. He agreed that although he had complained to the officer it was dangerous to play in the Shoes after he picked the Shoes, he continued to wear them to play.

37.  In the witness statement, Mr Tan said he checked the equipment to be given out to the detainees including the slippery-resistant canvass shoes. He said he saw that the shoes were of good condition. He saw that there was no damage or torn part on them. No detainees asked for change of shoes on the Day.

38.  At the trial Mr Tan said he wanted to clarify a point made in his witness statement when he was asked to confirm the truthfulness of his witness statement. He said apart from checking the shoes and equipment on the Day, he had checked the shoes thoroughly the day before. He said he checked the body of the shoes to see if any part was damaged. He also checked the bottom to see whether they were worn out. When asked for a reason for such arrangement, he said time for exercise started early in the morning. He said that on the Day, he made visual inspection to see that the body of the shoes were not damaged and the soles not worn out. He said he had to check again on the Day because something might have happened during the night. On the Day, he took out the shoes one by one and put them on the ground for the detainees to choose.

39.  He said there were about 20-30 pair of shoes for the detainees to choose from. If a detainee could not find a pair that fit him among those shown to them, he would get extra pairs from storage for him to try. If someone asked to change the shoes, he would ask him to show the pair he was wearing to check the problem as some shoes might break during the game.

40.  I do not find the plaintiff’s allegations about the Shoes believable. There was no evidence to show that the bottom was thin apart from his own assertion. Further, he had been wearing the Shoes for 1 hour and 45 minutes when he was either doing exercises or playing football. He did not find any problem with the Shoes for him to go back to the office for them to be changed. I do not accept his evidence that he found the soles thin at the time he tried them on. I do not accept that he asked for the Shoes to be changed but was refused at the time he was picking shoes. On this point I accept Mr Tan’s saying that if someone asked to change he would check and decide whether to give him another pair even if he had to go to the store to get some for him to choose.

41.  As mentioned there was no evidence to show how thin the bottom of the Shoes were in any event. Although the plaintiff could not be blamed for not producing the Shoes as exhibits as they had to be returned to the defendant after use, the fact remains that there was no evidence on the condition of the Shoes.

42.  Having said that I find Mr Tan’s evidence on the checking not reliable. He added another occasion for checking the shoes. He did not explain why this was not put into his witness statement nor was there any application for further witness statement filed on the point. He said the detainees were brought to FFA every day, he did not explain whether the alleged checking on the day before was a routine procedure. If so, why this was left out from his witness statement. If not, why he had to check them two times before giving them out. One thorough checking a day before and one cursory checking just before they were given out. Further it was not consistent with Mr Chu’s evidence on checking of the shoes to be set out below.

43.  There is also evidence from Mr Chu of the defendant. He told the court the protocol to follow by staff of the defendant. He referred to the Head of Institution Orders to regulate the operation of TFCI. He cited individual rules and orders to prove to the court that there is a good and sound system governing the operation of TFCI. He did not know what had happened in the present case and had no idea about the condition of the Shoes. He referred the court to read a quotation completed by a supplier called Fu Tat to see that the bidder had confirmed that the mandatory requirement of slip-resistance would be complied with (“Quotation”)[16]. A related laboratory report was produced to verify that that the required standard were complied with (“Laboratory Test Report”)[17]. The Quotation and the Laboratory Test Report were received by the defendant on 29 January 2014.

44.  For the routine duties of officers responsible for detainees’ physical exercise, he said the staff on duty would check the equipment including the sport shoes prior to commencement of the session. All the equipment in stock would be checked by senior officers to ensure that they were in good condition. The shoes would be changed before they were torn to maintain the quality.

45.  I find Mr Chu a reliable witness who knows his duty well. He was straight forward and gave evidence with no apparent inclination to the defendant. I accept that slip-resistance was one of the mandatory requirements when placing purchase orders for canvass shoes. I accept the conclusion of Laboratory Test Report that the batch of canvass shoes delivered under the quotation was in compliance with the requirements. That indicates there has been a prescribed protocol in the procurement of the canvass shoes and slip-resistance has been one of the mandatory requirements. I accept that there is a system in place that an officer is appointed to ensure the safety of detainees whilst they are taking part in physical exercise activities, make regular and careful checks of the relevant facilities and equipment. I also accept that upon finding any loss or damage such incident would have to be reported to the Day Orderly Officer.

46.  The evidence of Mr Chu however could not be accepted to prove the condition of the Shoes given to the plaintiff on the Day, it only shows the general background on procurement and checking before giving out the shoes.  

47.  The burden is on the plaintiff to prove that the sole was thin. I find his evidence vague and not probable. Having considered all evidence before me including my rejecting the evidence that he had made complaints about the shoes in general a week before and also specifically on the day and that he had been wearing them for almost 2 hours and did not feel the need to have them changed, I do not find that the plaintiff has proved that the fall was caused by the soles of the Shoes being worn out and the treads having disappeared.

(iii) Condition of the Ground in FFA

48.  Condition on the ground include whether there was (a) wetness and (b) unevenness.

(iii)(a) Wetness on the Ground

49.  In his witness statement, the plaintiff said that the ground of Football Pitch was slippery and uneven. Instead of being covered with grass, it was covered with of concrete[18]. The plaintiff showed to the court that the white-coloured part of the ground inside the Football Pitch was supposed to be in green colour[19].

50.  Under cross examination he said that he had stayed in TFIC for 4 months prior to the Incident. The detainees would be led to FFA every day for about 1 hour on weekdays and 2-3 hours on Sundays. He agreed that prior to the Day he had been brought to FFA many times. He said he could not remember well but there was rain in the morning at about 5 to 6 o’clock but there was no rain during the time he and the detainees were led to FFA. He said that if there was rain, they would not be brought to do outdoor exercise. They would stay inside the cells. Or sometimes, if the ground was wet, the detainees would be asked to get rid of the water.

51.  He said on the Day, he saw water on the ground but no detainees were asked to remove the same. It was wetness on the surface of the ground and not like ponds of water. The wetness was like more than pouring a cup of water on the ground. He said about 20% of the ground was covered with water. At the time he fell he did not know there was water at the spot he fell. He noticed that the ground was wet only after he fell. He said there was a thin layer of water. He also said that it might have been the first time he passed by that particular area in the Football Pitch. He said he was the first person who reached that area. He said he could not remember there were other areas covered with wetness inside FFA. He said the ground was a little bit less wet after he spent 1 hour and 45 minutes there. The ground covered by wetness reduced from 20% to 15%.

52.  It was put to him that he had never mentioned wetness or water on the ground in his entire witness statement. He said did not know. He denied he fell not because of wetness.

53.  Mr Tan said if it was a rainy day the detainees would be taken to areas under the canopies where they could play chess and ping-pong. Or they rest in the canteen. If it had rained, he would check whether the ground was dry. If there was wetness, no detainees would be sent there to do exercise. He would inform the duty officer if he found it not appropriate to have exercise. He remembered that it was fine on the Day. He did not call the duty officer to report any situation.

54.  I have read the pleadings, witness statements and considered the evidence given by the witnesses in court. There was no mention of “wetness” or “thin layer of water” in the Statement of Claim. The plaintiff’s pleaded case was that due to slippery and uneven ground, he slipped and fell[20]. It did not tell any reasons for the slippery ground and did not mention wetness. It only mentioned slipperiness without stating the cause of it. It did not say there was thin layer of water and wetness of the size of 0.5 meter of near circle shape as he told the court at trial.

55.  “Wetness” was first mentioned in the Reply. It stated therein that the ground “remained wet and slippery” because there was rain on 31 October 2015[21]. Again no particulars of the alleged wetness was pleaded.

56.  I do not find plaintiff’s evidence credible to prove that there was wetness or thin layers of water on FFA or the Football Pitch to the extent that it covered 20% of the area. Not only no particulars about the wetness were pleaded or mentioned in his witness statement, the plaintiff was unable to tell more specifically the location of the 20% area covered with wetness when asked by Ms Siu.

57.  Even if I accept that “wetness” was implied in the word “slippery”, which I could not agree, or to be inferred by making reference to the Reply, his evidence was not believable. As to how possible the wetness appeared on the ground, in the Reply he said there was rain on the day before, ie 30 October 2015[22]. At the trial he told the court that there was rain in the morning of the Day maybe at about 5 to 6 am. This is also what he told the doctors in his assessment[23].

58.  His evidence that he was the first person who reached the particular spot at the FFA is unbelievable. He said there were 14 people playing two sides, the FFA is a standard football field, he said he was in the middle of the Football Pitch moving towards the goal, it is hard to believe that in almost two hours’ time, that was the first time somebody reached that part of the Football Pitch. Further, he had said earlier in the witness box that some other players did go to the spot before he said he was the first person reaching that spot.

59.  In his witness statement he said that he fell unconscious for fraction of a second, then he was helped by two detainees and one officer to walk and left the FFA heading towards the clinic. He did not say he saw wetness or thin layer of water before or after he fell. At trial he said he saw the thin layer of water after he fell. There was no mention of falling unconscious.

60.  Mr Wu stated in his witness statement that site inspection had been done on FFA immediately after the Incident. At trial he said he himself did the inspection. In the Injury Report compiled by him, there was a photograph attached as appendix V[24]. He said he could not remember whether the photograph was taken by him but it was taken at the time. He confirmed that the condition of FFA was as shown, “ground surface was dry, clean and even… general condition was satisfactory”. The photograph was taken with long shot, details like wetness or unevenness could not be easily seen. I do not think the photograph should be given weight.

61.  The defendant also produced weather reports on 31 October 2015 and 1 November 2015. They showed that there was no rain on 1 November but there was a record of 0.5 mm rainfall on 31 October 2015. The rainfall recorded was for the whole of Hong Kong. There was no breakdown by districts where there was rain. In my view, it cannot be conclusive to say that there was no rain in Tong Fuk on 1 November 2015 even there was no record of rainfall. For the same reason, it could not be conclusive to say that there was rain in Tong Fuk on 31 October 2015 even there was rainfall of 0.5mm recorded.

62.  There was also produced through Mr Chu, another witness of the defendant, a daily report on the cleanliness of the TFCI including FFA. The purpose of the report was on cleanliness only. Further Mr Chu agreed that he could not tell the time FFA was inspected for compiling this report. I do not find the cleanliness report helpful to the parties.

63.  After considering all evidence in this regard, I find that the plaintiff has failed to prove that he fell because of wetness in FFA, be it inside or outside the Football Pitch. I do not find the evidence of Mr Tan believable. He modified and made additions to his witness statement at the witness box. I do not accept that the photograph taken at the site inspection could lend support to the defendant’s case that the ground was dry and even. The burden is however on the plaintiff to prove his case. The fact that I do not accept the evidence of the defendant, in this particular case, does not make the plaintiff’s case stronger.  

(iii)(b) Uneven Ground in FFA

64.  In the pleadings and in the witness statement, the plaintiff said that the ground of FFA was uneven[25]. He said that was why he slipped and fell. Again no particulars about the unevenness was pleaded. The plaintiff only mentioned in his witness statement that the ground was made of concrete[26]. At the trial, he said there was unevenness because FFA was built on a slope. He told the court that the green colour had faded and became white as the ground was worn out. He also pointed to a discoloured part near the bottom line of the Football Pitch in PEx1 to say that the surface was broken there. So from giving no particulars of the unevenness, he said the Football Pitch was uneven because it was built on a slope and there was broken surface on the ground. He said the slope was on the other side of the Football Pitch from where he fell. According to marking made on PEx1, he fell at a spot which was nowhere close to the part where there was, according to him, broken surface. Both Mr Tan and Mr Wu said that the condition of FFA was better in late 2015 as compared to the time the photograph was taken in December 2018. The green part of the Football Pitch was greener with less white spots.

65.  In my view the plaintiff has failed to prove that he fell because of unevenness of the ground. The uneven part due to the presence of the slope was not where he fell. He fell nowhere close to the broken surface either.

Conclusion on liability

66.  In my judgement the plaintiff has failed to establish causation of his injury. He has failed to prove he fell inside the Football Pitch because of wetness and unevenness of the ground. Further, he has failed to establish that the Shoes given to him were worn out and the soles got thin and had no slip-resistant effect. The fact that he slipped does not necessarily mean that the defendant was to be liable.

67.  As held by Sakhrani J in Wat Kwing Lok v The Kowloon Motor Bus Company (1933) Ltd [2008] 1 HKC 168, at §17:-

“17. The mere fact of the occurrence of the Incident is not sufficient to give rise to a presumption of negligence on the part of the defendant. The burden of proof is on the plaintiff to show on a balance of probabilities that there has occurred an event which is unusual and which, in the absence of explanation, is more consistent with fault on the part of the defendant than the absence of fault. If, and only if, the plaintiff proves that the unusual event is more consistent with fault on the part of the defendant than the absence of fault, the evidential burden then shifts to the defendant to show, on a balance of probabilities, that the Incident happened without negligence on its part.”

68.  Hence, in order to succeed, a claimant in a slip and fall case has to first establish that there is an “unusual event” and that in the absence of explanation, the “unusual event” is more consistent with fault on the part of the defendant. In the present case, the “unusual event” the plaintiff relied on was that he slipped and fell because of wet and uneven ground and worn-out canvass shoes. From my above findings, he could only prove on balance of probability that he slipped and fell. He failed to prove the “unusual event”.

69.  There is illustration of “unusual event” in So Wang Chun v Rainforce Ltd & Others [2008] 3 HKC 196, Sakhrani J held at §§50, 61, and 62 that:-

“50. I accept that slipping and falling on a patch of water on the floor in the area outside McDonald’s is an unusual event. However, before the evidential burden of showing that the Incident happened without negligence on their part is shifted to the defendants, the plaintiff must go on to prove, on a balance of probabilities, that in the absence of explanation, the unusual event is more consistent with fault on the part of the defendants than the absence of fault.”

70.  As I find that the plaintiff has failed to prove the alleged conditions of the Shoes and the ground, he has failed to prove an “unusual event is more consistent with fault on the part of the defendants than the absence of fault”. The burden is therefore still on the plaintiff to prove his claim. Having considered his evidence, I find that he has failed to prove his claim. His claim is therefore dismissed.  

Contributory Negligence

71.  Had I found the defendant liable, that is, the plaintiff’s case was accepted, in my judgment, the plaintiff also has contributory negligence. According to the plaintiff, FAA was wet and 20% of it was covered with wetness. The detainees could do whatever exercise they liked or even doing nothing but sitting around. He however chose to play football game. Knowing that the ground was covered with wetness he did not watch the ground while he was moving towards the goal. He said he complained to the officer in charge that it would be dangerous to play wearing the Shoes before the exercise session commenced, he however chose to wear them and played not for a short period of time. In the circumstances, I agree with defendant that the plaintiff has exposed himself to unnecessary risk[27] and has failed to give sufficient regards for his own safety[28], thus contributed in causing the Incident due to his own negligence. I find 25% under this head appropriate after reading authorities submitted by Ms Siu.     

QUANTUM

Parties’ Respective position on quantum

72.  For the sake of completeness, I shall deal with the issue of quantum in case my finding on liability is found to be wrong.

73.  In the present proceedings, the plaintiff is seeking damages for pain, suffering and loss of amenity (“PSLA”), loss of earning capacity and special damages.

74.  The plaintiff’s position as stated in the Revised Statement of Damages (“RSOD”) and the defendant’s position in the Answer to the RSOD (“the Answer”) are summarized in the table below:-

		RSOD (HK$)	D’s Closing Submissions (HK$)
(1)	PSLA	200,000[29]	150,000
(2)	Future Loss of earning	192,000 (1,000 x 12 x16)[30]	nil
(3)	Loss of Earning Capacity	18,000 (3,000 x 6)[31]	nil
(4)	Special damages:
	(i) Travelling   (ii) Tonic food	2,000 2,000	500 nil
	Total:	414,000	150,500

Injuries and treatment

75.  The plaintiff was given initial attention by medical officers in Centre Hospital and was then taken to the A&E of QMH on the Day. On examination it was found that his [right] wrist was swollen, tender and with decreased range of movement. There was minor [right] elbow abrasion. X-ray showed fracture in his left distal radius. Closed reduction was performed with analgesics and sedatives. The post reduction X-ray showed satisfaction reduction. His [right] wrist was immobilized with Plaster or Paris[32].

76.  According to medical report dated 14 June 2018 prepared by Dr Tong, Resident of Department of Orthopedics and Traumatology of Queen Mary Hospital, The plaintiff was given a short arm slab for 4 weeks. The fracture united but there was still pain when he was seen in May 2016. During examination on 16 June 2016 he complained of some discomfort at wrist in the morning and inability to carry heavy weight. X-ray demonstrated complete healing of the fracture and no malalignment[33].

JOINT ORTHOPAEDIC EXAMINATION

77.  At the time of joint assessment, the plaintiff still complained of occasional pain when the right wrist is provoked by cold water. Such pain sometimes occurred early in the morning. This happened 2-5 times a month and each episode lasted about half an hour. On examination, there was local tenderness and mild stiffness in the right wrist.[34]

78.  According to findings of Dr Lam, X-ray examination revealed that the fracture had united with mild displacement[35].

79.  Dr Lam opines that it is likely that the plaintiff:-

(a)  had a good recovery from the Injury;

(b)  still has mild residue pain and stiffness and possibly some weakness.

Agreed Expert Opinion

80.  Based on evidence reviewed and findings made at the joint examination which took place on 1 November 2015, both experts agreed that[36]:-

(a)  There was fracture in the plaintiff’s right distal radius. Both agreed that the diagnosis was consistent with the mechanism of injury described if this did happen;

(b)  There was no pre-existing condition in the right wrist/distal radius;

(c)  The treatment received was appropriate and that surgery was not required; and

(d)  The injury had reached maximal medical improvement.

81.  The experts had disagreements in the following areas:-

(a)  Dr Ho instructed by the defendant opined that the whole person impairment and loss of earning capacity is at most 1%. Dr Ho attached weight to the plaintiff’s possible magnifying of his disability by exerting submaximal effort. On examination he found that the plaintiff’s right forearm and arm circumferences were greater than those of the left. That indicates he has been using his right hand normally in his daily activities. Signs of inflammation such as increased temperature were also absent. The range of movement of his right wrist was also excellent. He should have no difficulty carrying out his daily activities. He is suitable for all jobs on the job market including manual occupations.

(b)  Dr Lam, instructed by the plaintiff, also noticed evidence of use of submaximal efforts and came to the conclusion that testing of grip strength was therefore not reliable. He estimated the Injury should carry 2% loss of earning capacity and 1.5% whole person impairment.

82.  Dr Lam opines that sick leave is not relevant in the present case because the plaintiff is an asylum seeker.

Pain, Suffering & Loss of Amenities (PSLA)

83.  The plaintiff complains that he is still suffering, inter alia, the following discomfort because of the Injury:-

(1)  The plaintiff still complained of occasional pain when the right wrist is provoked by cold water. Such pain sometimes occurred early in the morning. This happened 2-5 times a month and each episode lasted about half an hour. On examination, there was local tenderness and mild stiffness in the right wrist[37].

(2)  X-ray examination revealed that the fracture had united with mild displacement[38].

(3)  It is likely that he still has mild residue pain and stiffness, and possibly some weakness, but the assessment of weakness was not reliable due to the evidence of submaximal effort used in hand-grip test[39].

(4)  The overall degree of residue pain and impairment is estimated to be mild[40].

84.  The plaintiff who was acting in person at the trial has produced no authorities or decided case for the court to refer to. Ms Siu has referred the court to decide cases with similar injuries for purpose of assessing the appropriate award for PSLA in the present claim. Ms Siu submits that the appropriate amount for PSLA should be at HK$150,000:-

(1)  In Yu Yixin v Leung Chi Tin (unreported, DCPI 1306/2007, 13 March 2008), the plaintiff fell from a ladder and sustained a fracture of his right distal radius and ulnar styloid. He received closed reduction, a short arm Plaster of Paris cost as treatment, as well as physiotherapy and occasional therapy. The plaintiff has some residual pain/stiffness over his right wrist region, mild limitation of motions of his right wrist in flexion and extension movements and weakness of right hand grip. $170,000 was awarded for PSLA.

(2)  In Chan Nga Yin v MTR Corp Ltd (unreported, DCPI  1675/2012, 25 June 2014) the plaintiff slipped and fell inside a shopping mall and sustained a fracture of her left distal radius. She received operative treatment including open reduction and internal fixation under general anesthesia at the joint examination by experts the plaintiff had pain on movement upon exertion and lifting heavy objects and limited range of movement of left wrist both experts agree that the symptoms were justified. PSLA was assessed at HK$200,000.

85.  In her closing submissions, Ms Siu submits that as compared to the above cases, the plaintiff herein received closed reduction and not open reduction. He produced no evidence that he had gone through physiotherapy or occupational therapy and had recovered reasonably well in short period of time. X-ray taken on 3 May 2016 showed no fracture or malalignment. Dr Ho was of the opinion that the range of movement of the plaintiff’s right wrist was excellent and the plaintiff had been using his right hand normally in his daily activities. There was no acceptable evidence that the plaintiff is suffering from residual weakness as both Dr Ho and Dr Lam observed that the plaintiff had been asserting submaximal effort in preforming the hand grip test.

86.  In my judgment, the Injury was not very serious and he has recovered well from it. I also agree that the injuries suffered by the plaintiff in Yu Yixin v Leung Chi Tin is a good comparable. I however find that the plaintiff’s Injury was less serious because he did not have to go through physiotherapy and occupational therapy.

87.  Further he did not tell the truth in the court and magnified the Injury. In the witness statement he said he loved playing sports like cricket and football but he could not play after the Incident. At trial, he said he loved sports. He said although the Injury was in the right wrist, he did not do any sports. He said he was scared. He said he has not played football or jogging since. He however used to play volleyball and basketball before. He used to play 3-4 times a week. He played sports half an hour every 3-4 days. He agreed that volleyball and basketball are sports he played.

88.  He was referred to read the Joint-examination Report. It was reported that he was not a sporty person[41]. Upon reading the passage, the plaintiff said the he was not asked whether he played any sport during the assessment. He referred to paragraph 4 at page 93, he said he told the doctors that he could not play sports. He told them that he could not play and could not carry heavy weights. He had to do things with his left hand. I do not accept his evidence. I do not think both doctors would have omitted the point that he loved sports and used to play sports before the Injury. This is a crucial factor in their assessment.

89.  Further there was evidence of his magnifying the Injury in the past. He visited the Caritas Medical Centre on 3 May 2016, probably after his release from custody as he said in court he walked over to Caritas and thus no travelling expenses had been incurred. He complained to the doctor on duty that he had right wrist and right 3^rd distal metacarpal pain. He said writing and using tooth brush were affected with increasing right forearm and palmar pain when brushing his teeth. On physical examination there was mild right radial wrist tenderness on palpation. Right forearm and hand range of movement was full but associated with mild pain. In addition, mild right 3^rd distal palmar metacarpal tenderness was detected on palpation. The range of movement of right 3^rd finger was full and not associated with pain. Radiological examination of right wrist & right forearm showed no fracture or mal-alignment. He was discharged with analgesic prescription[42].

90.  When he was seen by a doctor on duty at the Orthopedics and Traumatology of QMH on 16 June 2016, he complained of discomfort at wrist in the morning and inability to carry weight. X-ray examination on the occasion demonstrated complete healing of the fracture and no malalignment[43]. There was no record of his mentioning pain when writing and brushing teeth.

91.  There was observation by both doctors of his using submaximal efforts in the grip test and Dr Ho has explicitly commented that he was doing that to magnify the Injury. This has undermined the credibility of his evidence on how he was affected by the Injury.

92.  For the above reasons, I do not find complaints of the plaintiff reliable. I accept Dr. Lam’s opinion that it was likely that he still has mild residue pain and stiffness, such pain and stiffness however does not affect his daily living. I do not accept that he has been playing the type of sports, be it cricket, volleyball and football at the frequency before the Incident as he had said in court.

93.  After considering the above, I find $150,000 as suggested by the defendant appropriate as an award for PSLA.

Pre-trial Loss of Earnings

94.  The plaintiff is an asylum seeker and he has not made any claim under this head.

Loss of Future Earnings

95.  In the RSOD, the plaintiff asks for loss of earnings of $1,000 per month on a multiplier of 16 based on his age (30 years old at the time of Incident). The claim under this head amounted to HK$192,000 (HK$1,000 x 12 months x 16)[44]. The claim is made on the basis that his average monthly salary of workers in Bangladesh is estimated to be HK$3,000, the plaintiff will suffer notional loss of future earnings in the sum of HK$1,000 per month, and assuming that the plaintiff will work until the age of 65, a multiplier of 16 is therefore applied.

96.  Dr Lam opined that the plaintiff should be able to cope with light to medium labour. He assessed the whole person impairment is 1.5 and 2% of loss of earning capacity. Dr Ho is of the opinion that he is suitable for all jobs on the job market including manual occupations. He assessed 1% for both the whole person impairment and loss of earning capacity.

97.  Ms Siu relies on the opinion of Dr Ho and submits that the plaintiff is not entitled to any compensation under this head. She also says that the plaintiff has produced no evidence of the alleged monthly earnings in his home country. I agree with Ms Siu that the plaintiff has produced no evidence at all in support of his assertion on his earnings.

Loss of Earning Capacity

98.  Loss of earning capacity has been defined as the claim which is to cover the risk that, at some future date during the plaintiff's working life, he or she will lose his or her employment and will then suffer financial loss because of his or her disadvantage in the labour market: Chan Wai Tong & Anor v Li Ping Sum [1985] HKLR 176.

99.  There will be no loss of earning capacity if there is no substantial risk that the plaintiff will lose the present job or that he or she will have difficulty getting a similarly paid job: Moeliker v A Reyrolk & Co Ltd [1977] 1 WLR 132.

100.  In the RSOD, the plaintiff claimed a sum of 18,000 ((HK3,000.00 x 6 months). Ms Siu submits for same reason that he had not produced cogent evidence of his work history and income, the claim under this head must fail.

101.  I agree. In the circumstances, I am of the view no award should be made under this head.

Special damages

102.  Any needs or expenses claimed will only be compensated by way of special damages if they are found to be reasonable and if in the past, actually spent. What is reasonable will depend on the facts of each case and the particular expense which is claimed. The court will analyse these specific claims in the context of the reasonableness principle and whether they are reasonable is the burden on the plaintiff: Ho Lau Hing v Wu Ming Lok trading as Sun Tak Wah Plastic Manufactory (unreported, HCPI  464/1995, 21 December 1995).

103.  The plaintiff claims nourishing and tonic food for a total of HK$2,000 and like amount for travelling expenses. No supporting document has been adduced for both of these items. The court notes that it can allow nominal damages for both items in the amount as pleaded by the plaintiff even in the absence of supporting evidence: To Wei Kei & Ors v Vickcore Engineering Ltd & Anor [2003] HKLRD 69, at §41.

104.  There was evidence showing that he was taken to have follow-up medical examinations on three occasions[45]. There were two occasions where he went to QMH and Caritas respectively after his release. As an asylum seeker, there is no need for him to pay medical fees. There should be travelling expenses for 2 hospital visits after his release only. He said he walked over to the Caritas and hence no travel expenses would have incurred. I adopt the figure submitted by Ms Siu HK$500 and entirely agree that it should be sufficient to cover travel expenses for his visit to QMH.

Summary of Calculations on Quantum

105.  In summary, had the plaintiff been able to establish liability in this case, I would have made the following award for damages:-

		HK$
(a)	PSLA	$150,000
(b)	Future Loss of Earnings	Nil
(c)	Loss of earning capacity	Nil
(d)	Special damages	$500
	Total	$150,500

CONCLUSION

106.  On liability, I find the plaintiff has failed to establish his case.

107.  On quantum, had the plaintiff been able to establish liability in this case, there should be an award HK$150,500

108.  For reasons set out above, I order the plaintiff’s claim to be dismissed. I also make a costs order nisi that the plaintiff do pay the costs of the defendant, with certificate for counsel, such costs are to be taxed if not agreed. As the plaintiff’s legal aid certificate was discharged on 27 September 2021 his own costs up to the day of discharge are to be taxed in accordance with the Legal Aid Regulations. In the absence of any application by the parties to vary the same within 21 days, the costs order will become absolute.