LO YIN FONG v. MAXIM'S CATERERS LTD

DCPI 1424/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO. 1424 OF 2009

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JUDGMENT

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Background

1.  This is an action instituted by the Plaintiff claiming against the Defendant for loss and damages resulting from her injury on 3 July 2006.  I would begin the Plaintiff’s case by a reference to the Endorsement of Claim on the Writ filed herein.  It reads :-

The Plaintiff’s claim is for damages (together with interest thereon and costs), for personal injury, loss and damage arising out of the Plaintiff was tripped by the anti-slip stripes and fell onto the Floor on or about the 3^rd day of July 2006 at Shop of Maxim’s Cakes of Kiosk no. 5 of Hang Fa Chuen MTR station, Hong Kong Island, Hong Kong S.A.R.

2.  The allegation that the Plaintiff was tripped by anti-slip stripes had been abandoned by the Plaintiff in her Statement of Claim.  I have also been confirmed by Mr. Ng, counsel for the Plaintiff,  that the Plaintiff would no longer rely on this contention.  According to the Statement of Claim, the Plaintiff said at about 9:20 a.m. on 3 July 2006, she went to the Defendant’s cake shop at Hang Fa Chuen MTR Station to purchase a bread.  The Plaintiff slipped, stumbled over the stair step and fell down. 

3.  It is the case of the Plaintiff that the accident has been caused by the negligence of the Defendant.  Details and particulars of the alleged negligence have been set out in paragraph 3 of the Statement of Claim.  In gist, the Plaintiff complains that the Defendant has caused or permitted water or other moist or slippery substance to be present upon the floor of the stair step at the entrance (“the Floor”), and/or for failing to clean up the water or moist or other substance and keep the Floor dry, and/or failing to keep any adequate system for the inspection and cleaning of the Floor.  I shall come back to the particulars when necessary in assessing the evidence.

4.  The Plaintiff also claims that the Defendant has been in breach of its statutory duties under the Occupiers Liabilities Ordinance; the particulars of breach are the same as the particulars of negligence.

5.  For damages, the Plaintiff claims damages for PSLA at HK$300,000.  She was an account manager before the accident.  On her pre-trial earning, it has been agreed at the closing to be HK$25,800 per month.  In the Revised Statement of Damages, the Plaintiff originally claims loss of earning for 477 days.  In her witness statement, she only claims the loss of earning for 62 days of sick leave.  Mr. Ng confirms at his closing that the Plaintiff is only claiming her loss of salary for 62 days as her pre-trial loss of earning.  There is no claim for future loss of earning but there is a claim for loss of earning capacity in a lump sum of HK$200,000.  There are further claims for medical expenses, travelling expenses and nourishing food expenses in the total sum of HK$17,160.

6.  The Defendant disputes the claims of the Plaintiff.  In its defence, the Defendant claims that the floor of the cake shop was dry with no presence of water or moist or slippery substance at the material time.  It denies that the Plaintiff’s slip took place within the area of its cake shop.  Miss Yang, counsel for the Defendant submits in closing that even if liability could be established, the damages claimed is excessive and the Plaintiff has been fully compensated by the award in her favour in the related DCEC action.  I shall come to this argument later. 

The Plaintiff’s Evidence

7.  The Plaintiff gives evidence in Court.  She adopts her witness statement dated 28 July 2010 as her evidence in chief.  It is set out in her witness statement that on 3 July 2006 at about 9:20 a.m., she went to the Maxim’s Cake Shop inside Hang Fa Chuen MTR Station to purchase a bread.  She slipped, stumbled over the stair step and fell down.  As a result, she sustained personal injuries.

8.  It is the evidence of the Plaintiff that on the day of accident, she was on her way to meet a client.  After the accident, though she felt painful all over the body, she continued with her journey to meet her client.  On the following day, the pain was so severe that she needed to seek consultation at Dr. Rex Wong’s clinic for treatment and it was diagnosed that she suffered from trauma, both shoulders, knees and right hip injuries.  And due to her persistent pain, she consulted Dr. William Chow, an orthopaedic specialist for further treatment. She was diagnosed to have soft tissue injury to both knees, right hip and tendon injury over both shoulders.  She was treated with medication and physiotherapy treatment.  She was granted intermittent sick leave until 22 October 2007 for a total of 62 days.

9.  The Plaintiff also said on 1 September 2006, she had been referred to attend psychiatry consultant and was diagnosed to have depressive symptoms and depressive disorder. 

10.  On cross-examination, Miss Yang refers to the affirmation of the Plaintiff filed herein on 24 November 2010 in answer to interrogatories served by the Defendant.  The Plaintiff confirms that the contents in the affirmation are true and adopts those answers as part of her evidence.  As stated in her affirmation, and when asked “what caused you to slip, stumble over the stair step and fell down as stated in paragraph 3 of your witness statement”, she answered “I am unable to recall what exactly caused me to slip, stumble over the stair step and fell down, but all I can say is that, I felt everything surrounded me was spinning around me and that I was not able to balance.  I did not check with or ask from a person who assisted me to stand up from the ground.”

11.  The Plaintiff has also been asked in the interrogatories to draw a sketch to show where she got stumbled over and fell down.  She answered in the affirmation that she was not able to make a sketch due to the long lapse of time for over 4 years.  In fact, in cross-examination, she explained that she was not even sure if there was floor step in the cake shop.  She explains in evidence that she has slipped because she has stepped on something slippery.  She agrees with Miss Yang that she does not know if it is water or something slippery.  But later she said she felt something wet when she stepped onto it.

12.  Miss Yang cross-examined the Plaintiff on the Endorsement of Claim which mentioned that she was tripped on anti-slip stripes.  The Plaintiff explains that she has told her lawyer that she slipped.  She was not sure if she had been tripped by something.  Miss Yang also refers the Plaintiff to a letter from her solicitors dated 13 January 2010.  It was stated in the letter that “on the material day while [the Plaintiff] was walking into the shop at the entrance, she slipped upon water or some other wet, moist or slipping substance upon the floor”. 

13.  Miss Yang also refers to another earlier letter by her solicitors dated 3 July 2008 to the Defendant.  It was recorded in this letter that “on 3 July 2006, [the Plaintiff] was walking pass at the scene.  In the course of so doing, she was tripped by the anti-slip stripes and fell onto the floor.  As a result, [the Plaintiff] sustained multiple injuries.” 

14.  On cross-examination, the Plaintiff agrees that she had given instructions to her solicitors to issue these letters.  When being cross-examined as to the details of the instructions, Mr. Ng has objected and claims legal privilege on behalf of the witness.  There is no answer to the discrepancies between her evidence and the contents of these letters issued by her solicitors and Mr. Ng does not cover the point in re-examination.

15.  Miss Yang also comments that the Plaintiff could not be sure that she has stepped on some wet or watery substance.  In answer, the Plaintiff said it is a logical deduction. Miss Yang puts to her that the area she slipped was outside the area in the control of the Defendant.  To that the Plaintiff disagrees.

16.  The Plaintiff was then referred to a letter from Crawford International, Loss Adjuster for the MTR Station, dated 21 December 2006.  It was recorded that the Plaintiff complained or reported that she has been tripped by the anti-slip stripe on the entrance step of kiosk no. 5 of Hang Fa Chuen MTR Station.  The loss adjuster suggested that the anti-slip stripes was an appropriate fixture and under the maintenance of the Defendant’s Cake Shop.  Miss Yang again puts to the Plaintiff that she slipped outside the area of Defendant’s shop and the Plaintiff answers that she did not know.

17.  On the psychiatric report prepared by Miss Amanda Lim dated 16 October 2006, Miss Yang puts to the Plaintiff that the report while commenting on her psychiatric condition, made no reference to her injury on 3 July 2006.  The Plaintiff claims that she has informed Miss Lim that because of her shoulder pain and body pain, she has hot temper to her daughter. 

18.  That is the Plaintiff’ case. 

The Defendant’s Evidence

19.  The Defendant calls one factual witness, Miss Yim Suk Ying.  Miss Yim adopts her witness statement dated 14 August 2010 as her evidence in chief.

20.  She was the area manager of the Defendant and at the material time, she was in charge of all the Maxim’s shops on the Hong Kong line of MTR Stations.  There were altogether 10 to 11 shops.  She agrees that she was not present at the shop at Hang Fa Chuen MTR Station on the day of the accident.  On cross-examination, she explained that there were two shopkeepers at the shop, one cashier and one to sell cakes.  The cleaning staff arrived at 11 a.m.  She agreed that 8:30 a.m. to 9:30 a.m. was the peak hour for business.  If some customers dropped some food onto the ground, the shopkeepers should clean it immediately.

21.  In her witness statement, she exhibited a witness statement/report from a staff Miss Lee Hoi Yan.  Miss Yim tells this Court that Miss Lee had left the employment of the Defendant few years ago.  She agrees that Miss Lee did not see how the Plaintiff fell down.  And Miss Yim had not investigated the correctness of the report.

22.  In her witness statement, Miss Yim exhibited three photographs.  According to her evidence, the first photograph was taken in 2007 to prepare for the said report by Miss Lee.  And the other two photographs were taken in 2010.  As a matter of fact, none of the photographs shows the entrance of the cake shop, because the shop has been changed to a Circle-K shop. 

23.  According to the statement by Miss Lee, when she saw the Plaintiff, she was sitting outside the shop, at a position circled in the first photograph.  The Plaintiff when being cross examined, has indeed commented on the same photograph and said she sat on the ground resting at a position closer to the shop, after the fall.  She has marked the position on a copy of the photograph.

24.  And Miss Yim also said in her witness statement that according to the second photograph, the shop front is behind a yellow line and that is the boundary of the shop area.  Comparing the two photographs, it shows that the resting position of the Plaintiff was outside the shop, even adopting the position marked by the Plaintiff.

25.  That is the Defendant’s case.

Discussion and Ruling

26.  By early direction of this Court, expert evidence was limited to one orthopaedic expert for each party.  The joint medical report by Dr. Peter Tio and Dr. David H.F. Cheng dated 19 April 2010 may be adduced without calling the makers. 

27.  It was recorded in the joint report that the Plaintiff complained that she slipped and fell in a MTR station, I could safely presume to be Hang Fa Chuen MTR Station. The Plaintiff said there was pain over her knees, right hip and both shoulders.  She was helped up by passers-by and then continued her journey to work. 

28.  At the examination by the experts, the Plaintiff complained of left shoulder pain. The doctors note that general movement is all right.  The Plaintiff complained of bilateral knee pain especially after walking for 25 minutes or on climbing stairs, up and down.

29.  It is noted by the doctors that the Plaintiff has good general health.  She could walk and stand normally.  For her shoulders, there is no deformity and no muscle wasting.  She enjoys full range of movement and has normal muscle power and sensation.  As for her knees, again there is no deformity and no swelling. She has full range of movement and no instability.  The experts observe that the Plaintiff has full muscle power and sensation.  The right hip is normal.

30.  In conclusion, the doctors said they found nothing physically wrong with the Plaintiff.  The shoulders, knees and hips are normal.  The Plaintiff’s complaints are fairly non-specific.  The doctors note that the Plaintiff is quite depressed.  She is under psychiatric treatment since 2005 for another incident.  They agree that the Plaintiff’s present condition is more mental than physical.

31.  The doctors agree that the Plaintiff has reached a stage of maximum medical impairment for the injuries.  As there is hardly any physical impairment, there is no need for any treatment.  Dr. Cheng opines that the effect of the injury on the Plaintiff is mild.  The injuries are simply contusions, without complications and of mild nature.  Dr. Cheng believes that the Plaintiff is able to resume her pre-injury occupation.  Dr. Tio opines that the Plaintiff suffers from soft tissue injury to her shoulders and knees with residual pain over her knees and her left shoulder.  He has not commented on her capacity to resume pre-accident work.

32.  For completeness, I would also refer to the psychological report prepared by Miss Amanda Lim, Plaintiff’s treating psychologist.  The Plaintiff had been seen by the clinical psychologist on 19 September and 13 October 2006.  She had depressive symptoms.  I do not intend to go into details of the report, save that while Miss Lim goes into the cause of the Plaintiff’s psychological problem, nothing appears to be related to the alleged accident.  And Miss Lim does not mention that the condition of the Plaintiff is caused or related to the alleged accident.  And in October 2006, Miss Lim referred the Plaintiff for psychiatric assessment and/or treatment by the Department of Psychiatric of Pamela Youde Nethersole Eastern Hospital.  In giving evidence, the Plaintiff confirms that she has not attended treatment. 

33.  It is not disputed that the Plaintiff slipped and fell on 3 July 2006 inside the Hang Fa Chuen MTR Station.  The issues in dispute are whether the Plaintiff slipped inside the cake shop of the Defendant, and what was the cause of the slip and fall. 

34.  Miss Yang in her closing submits that the Plaintiff’s evidence on where she fell is incredible.  From the documentary record now produced in the trial bundle, it is at one time the allegation of the Plaintiff that the cause of her fall is that she being tripped by the anti-slip stripes.  This appears from the contents of Crawford Loss Adjuster’s letter I referred to above, the letter of the Plaintiff’s solicitors dated 3 July 2008 which I also referred to above, and the endorsement on the writ issued herein.  The Plaintiff has not explained why she made this allegation which conflicts with her case and her evidence in Court that she stepped on something slippery .

35.  It is also important to note that in the letter dated 3 July 2008, the Plaintiff’s solicitors said the Plaintiff was walking pass the cake shop.  There is no suggestion that she was walking into or out of the cake shop.  Again there is no explanation to this discrepancy in her evidence.

36.  When the Statement of Claim was filed on 19 October 2009, the Plaintiff said she slipped, stumbled over the stair step at the entrance of the cake shop.  And in the particulars about the Defendant’s negligence, the Plaintiff specifies that the Defendant has been negligent by causing or permitting water or other moist or slippery substance to be present on the floor of the stair step at the entrance and failed to clean up the water or moist or to give necessary warning.  No explanation has been given at the hearing why there is a change in the case of the Plaintiff.  There is no further evidence on the anti-slip stripes.

37.  In a letter dated 13 January 2010 by the Plaintiff’s solicitors to the Defendant’s solicitors, the same version was repeated with the added information that the Plaintiff was then walking into the shop. 

38.  And with reference to the answer given to the interrogatories as set out in an affirmation of the Plaintiff filed herein on 24 November 2010, the Plaintiff said she could not recall what exactly caused her to slip.  But today in box, the Plaintiff said she has stepped on something wet, slipped and fell.  But she agrees with counsel that she did not actually examine her shoes or her clothing or the floor area to ascertain whether it was wet, or what the wet substance was.  She said while she was wearing shoes, she could feel that the ground was wet. It is quite incredible for her to be able to feel that she stepped on something wet before she fell.  But more importantly, why, if she could recall so clearly that it was something wet that she stepped on and fell, she said in her affirmation that she could not recall what caused her to fall.

39.  And it remained unresolved why there are all these different versions of the accident.  I agree with Miss Yang that the Plaintiff is not a reliable witness and to say the least, I could not find which version of the accident is correct.

40.  I have to agree with Mr. Ng that the Defendant has not adduced any factual witness on what happened on that day.  But the burden rests on the Plaintiff to prove her case.  From the above analysis, the evidence of the Plaintiff is far from clear as to what exactly happened on that day which caused her to slip, and where she slipped.   

41.  Mr. Ng submits that the Plaintiff could rely on the doctrine of res ipsa loquiter.  He refers me to a passage in the book of Clerk & Lindsel (2006) 19^th ed. at 8-152.  The doctrine is :-

“Only a convenient label to apply to a set of circumstances in which a complainant proved a case so as to call for a rebuttal from a Defendant, without having to allege and prove any specific act or omission on the part of the Defendant. It merely proves a result, not any particular act or omission producing the result.”

I have no disagreement with the learned author.  But what is the set of circumstances proved by the Plaintiff?  As I analysed above, her evidence is not credible.  The only undisputed fact is that she has fallen and slipped. But when one falls or one slips, it does not necessarily give rise to a case for some person, in this case the Defendant to rebut negligence. 

42.  It is also true that the Plaintiff could not identify the position where she fell.  The best she could show is a marking on a photograph showing the position that she sat on the floor for resting after she fell.  Mr. Ng invites me to draw the inference that she must slip inside the shop.  But given her evidence is not even clear as to whether she was walking into or out of the shop or that she was passing by, I just cannot draw any inference as to where she slipped.

43.  And one more thing, the Plaintiff has not adduced any evidence as to the boundary line of the Defendant’s cake shop if they claimed that the Plaintiff fell within the shop on area within the control of the Defendant.  The only evidence on boundary line came firstly from Miss Yim.  She said, and which was not disputed, the boundary line was the yellow line on the second photograph which would mean that the Plaintiff was resting outside the shop after the fall, even adopting the evidence of the Plaintiff.  The other evidence came from Crawford Loss Adjuster’s letter which mentioned about the anti-slip stripes.  But it is not stated where are the anti-slip stripes.

44.  To round up this part, I just refer to the judgment of Deputy High Court Judge To (as he then was) in Tam Yuen Hoi v. Chan Muk Shing & Others HCPI 983/2001:-

“Though there is no evidence from any of the Defendants to rebut the Plaintiff’s account as to how the action occurred, the burden of proving how it occurred rests on the shoulders of the Plaintiff.”

45.  That is exactly the burden which I found the Plaintiff has.  The Deputy Judge goes on to say:-

“This is not a case where the doctrine of res ipsa loquitur can assist the Plaintiff as the accident was the Plaintiff’s slipping and falling which could be caused by multiplicity of reasons in isolation or in combination, including the Plaintiff’s own carelessness in not watching where he was going, the existing weakness of his back, his failure to cope with the speed of the co-workers while descending the staircase, the presence of loose materials, such as sand or newspaper and other debris or as the Plaintiff alleged, the loosen plywood board.”

46.  And in our case, there could be many reasons why the Plaintiff fell.  It could be because of her health reason, some other by-passers, or slippery floor.  This is not a case when the Plaintiff may rely on the doctrine or res ipsa loquitur.

47.  Mr. Ng in his closing submission seems to suggest that even the Plaintiff was unable to recollect exactly what was the cause of her fall, this Court may find the Defendant is negligent in failing to prevent the accident from happening.  He refers me to matters such as no staff of the Defendant was on duty at the material time to perform cleaning work inside the shop, particularly at around 9 a.m. which was a very busy hour.  No warning sign was displayed to warn the Plaintiff of the danger of a slippery floor.  But an alleged act of negligence must be considered in the circumstances of the case to decide if the Defendant has been negligent, and whether that causes the damage to the Plaintiff.  I cannot assess when there is no evidence on what cause the fall of the Plaintiff. 

48.  With the above analysis, I found that the Plaintiff has not proven her case that the Defendant has been negligent as alleged or at all and such alleged negligence cause her to fall.

49.  And I further found that the Plaintiff failed to prove that the accident took place within the cake shop’s area or its controlled area.  Accordingly, the claims based on occupiers’ liability also failed. 

50.  In the circumstances, the Plaintiff’s case should be dismissed.  For completeness, if I were wrong and the Plaintiff could establish liability, I would also consider if the Plaintiff could not establish damages.

51.  The Plaintiff claims a sum of HK$300,000 for PSLA.  Mr. Ng in his opening refers to three cases which shows that the PSLA was in the region of HK$150,000.  It is at closing when he found a judgment of Mr. Justice Bharwaney given in Chan Yuet Keung v. Harmony (International) Knitting Factory Limited HCPI 144 of 2009, when PSLA for HK$300,000 was awarded for a slip and fall case.  It is sufficient for me to say that the injury of the plaintiff in that case is much more serious.  He has stiffness of low back.  He has disc extrusion at L5/S1 level resulting in his persistent pain in the low back area.

52.  In Ahmed Masood v. Chung Kau Engineering Co Ltd DCPI 517 of 2003, PSLA was awarded at HK$130,000.  But the plaintiff in that case could not return to his pre-accident job and can only do light duty due to the permanent residual symptom of back pain and discomfort.  And in Tam Kwok Man v. The Kowloon Motor Bus Co (1993) Ltd, HCPI 775/2001, the bus driver sustained back injury with nine months’ sick leave.  The Plaintiff also suffered from depression and was awarded HK$150,000.

53.  The Plaintiff could return to her pre-accident work.  While there were psychiatric problems, there is no evidence that the psychiatric problem was related to the injury or has been aggravated by the injury.  And I have no psychiatric expert evidence before me.  The Plaintiff said she had hot temper to her daughter because of the pain.  As I found earlier, she is not a credible witness and I do not believe her evidence.  And I see no reason why, if she has complained to Miss Yim, it would not be recorded in the medical report.  She has not established any psychiatric problem resulting from the injury.

54.  From the medical evidence, both orthopaedic experts considered her injury to be mild.  Dr. Cheng clearly stated that she could return to her pre-injury work. And from the evidence before me, she had indeed returned to her former work until 2009 when her employment was terminated.  In such circumstances, her pain, loss and suffering resulting from the injury must be mild.

55.  Miss Yang refers me to a number of cases when the injury was mild and the award of PSLA was lower.  I do not intend to repeat all of them.  I found that damages for the pain, loss and suffering of the Plaintiff would be HK$5 0,000.

56.  The Plaintiff is only claiming for 62 days of sick leave pay.  And parties have agreed to adopt her monthly salary at HK$25,800.  The pre-trial loss of earning would be HK$55,986.

57.  The Plaintiff also claims loss of earning capacity.  The award was a compensation for any disadvantage that an injured plaintiff suffered in the labour market. The Plaintiff returned to work as usual.  Dr. Cheng comments that she could return to her pre-accident work.  Any problem would be from her psychiatric illness.  All her shoulders, hip and knees are found to be functioning properly.

58.  The Plaintiff claims that after the injury, she could no longer be able to handle long working hours.  Her efficiency and capacity are hence reduced.  This is not supported by the medical evidence.  This is in conflict with her earning record.  It shows at least that up to 2009, her earning has been pretty stable.  In conclusion, I am not convinced that the injury affected the working capacity of the Plaintiff or that she suffered any detriment in the labour market.  I make no award under this head of the claim.

59.  As for her medical expenses, it has been clarified when she gave evidence that part of them were indeed covered by insurance policy.  I adopt the calculation of Miss Yang and assess medical expenses for Dr. Simon Leung at HK$3,260 and for Dr. William Chow at HK$3,340 (after deducting reimbursement by insurance company as appeared on the Plaintiff’s document).

60.  There is no receipt for travelling expenses and having heard the parties, I would allow a sum of HK$1,000.  For tonic food, I would allow a nominal sum of HK$1,000.

61.  It is not disputed that the Plaintiff has received employees’ compensation in the sum of HK$119,139.00.  It is not disputed that the same should be deducted from any award I might give herein.  In summing up, if liability was established, there is no further award of damages to the Plaintiff.

62.  In view of my above findings, I dismiss the Plaintiff’s claim.  There should be an order nisi in favour of the Defendant for costs of this action, to be taxed if not agreed with certificate for counsel.  The cost order nisi shall become absolute within 14 days from today.