MO MEI KUK v. THE INCORPORATED OWNERS OF ON HONG BUILDING

HCPI 457/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 457 OF 2010

____________

____________

_______________

JUDGMENT
________________

Background

1.  In this case, the plaintiff (“Mdm Mo”) claims damages from the Incorporated Owners of On Hong Building (“IO”) in respect of an accident she sustained on 7 October 2009 (“Accident”). According to Mdm Mo, she was walking down a flight of 10 steps (“Staircase”) which led from the lift lobby of On Hong Building (“Building”) to the front entrance at the ground floor level of the Building, when she slipped on debris on the 2^nd step of the stairs, and fell down the Staircase, landing on the floor at the bottom of the stairs, in the entrance lobby.  As a result of the Accident, Mdm Mo suffered a fracture in the head of the left femur, close to the left hip.  She claims that the Accident was caused by the IO’s negligence and breach of statutory duty, under the Occupiers Liability Ordinance and the Building Management Ordinance, and in further breach of the IO’s duties under the Deed of Mutual Covenant of the Building.  It is claimed that the IO had failed to properly maintain, service and clean the Building and its common areas, or to maintain such areas in a clean and safe condition, and to devise and maintain a proper system of work to ensure that no debris would be left on the Staircase and the floor of the Building.  Mdm Mo’s pleaded case is that debris had been left on the steps of the Staircase by renovation or decoration workers who were transporting building materials or building waste into or out of the Building, as a result of renovation and/or decoration work going on in one or more of the residential units of the Building at the material time of the Accident.

2.  In its Defence, the IO admit that decoration work was carried out in a unit of the Building at the relevant time, but deny that Mdm Mo’s Accident was caused by any negligence or breach of duty on the part of the IO.  They claim that there was an established and implemented system of maintaining and cleaning the Staircase, which was maintained in a reasonably safe and clean condition, and that even if the Accident had been caused by any debris on the Staircase, it was caused by the negligence of the renovation or decoration independent contractor employed by the owner of the relevant unit or units in the Building, over which the IO had no control.  Further or alternatively, the IO claim that the Accident was caused or contributed by the negligence of Mdm Mo.  On the IO’s evidence, Mdm Mo had a stroke prior to the Accident, which resulted in her suffering from a significant degree of walking disability.  She was only able to move about with walking aids or in a wheelchair, but despite her disability and (on her claim) with knowledge of the presence of debris on the Staircase, Mdm Mo chose to descend the Staircase on her own, without proper support and without seeking assistance, and fell as a result by reason of the weakness in her limbs or for failure to take proper regard for her own safety.

3.  According to the Revised Statement of Damages, Mdm Mo claims $800,000 as general damages, $963,125 comprising costs of alternative accommodation and renovation, $518,200 as medical expenses, $2,106,795 as the value of the services rendered by her family members and domestic helper, $338,000 as costs of transportation, $187,516 as costs of future special equipment, recurrent extra household expenses of $144,000, $240,000 as the cost of holidays and social isolation, and $20,000 as the costs of tonic food, all totalling $5.3 million.

The issues

4.  The issues in dispute for determination at trial are:

(1) How did Mdm Mo fall down the Staircase?

(2) Was the Accident caused by the IO’s breach of duty?

(3) Did Mdm Mo contribute to the Accident?

(4) If the IO is liable for the Accident, what are the damages payable to Mdm Mo?

5.  In deciding factual disputes, the crucial considerations for the court include the inherent probability of the parties’ assertions, whether these assertions are consistent with the parties’ conduct and the contemporaneous documents (if any), and the credibility and demeanour of the witnesses.

6.  On assessment of the credibility of witnesses by reference to their demeanour, I have borne in mind the observations made by the courts in cases such as Ting Kwok Keung v Tam Dick Yuen (2002) 5 HKCFAR 336, where Bokhary PJ explained, at p 348:

“It is common to speak of a trial judge’s advantage of having ‘seen and heard’ the witnesses…. the words ‘seen and heard’ are perhaps capable of giving an exaggerated impression of the role which demeanour plays in the resolution of disputes of fact - demeanour being, as Lord Pearce put it in Onassis v Vergottis [1968] 2 Lloyd’s Rep 403 at p 431, ‘mostly concerned with whether the witness appears to be telling the truth as he now believes it to be’. (Emphasis supplied)

Having said that about demeanour, I should make it clear that I accept that trial judges are entitled to take demeanour into account when assessing testimony. In life what really happened is not always what afterwards seems objectively probable. So demeanour has a role to play. Of course trial judges must bear in mind that demeanour can be deceptive and is therefore to be approached with care. In general, I would trust them to do that. Unless good reason to think otherwise appears, trial judges should be taken to have considered demeanour with caution, doing so only in the context of such inherent probabilities as may exist and the whole of the evidence.

It can of course happen that neither rival account is appreciably more inherently probable or improbable than the other, and there may be little or no evidence other than the testimony of the protagonists, each with an interest to serve.  In such a situation, there will be little or nothing for the fact-finding judge to go on apart from demeanour.”

7.  In EPI Environment Technologies Inc & Anor v Symphony Plastic Technologies plc & Anr [2005] 1 WLR 3456, 3470-3471 at para 74, Peter Smith J emphasized that it is essential to have regard to the entirety of a witness’s evidence.  As he observed, witnesses can make mistakes, but the mistakes do not necessarily affect other parts of their evidence.  Likewise, witnesses regularly lie.  However, lies themselves do not mean necessarily that the entirety of that witness’s evidence is to be rejected.  A witness may lie in a stupid attempt to bolster his case, but the actual case may nevertheless remain good irrespective of the lie.

8.  I acknowledge and bear in mind that a standard of proof commensurate with the seriousness of the allegation is required, and that evidence to a very high standard of cogency is necessary, before a court would be justified in finding that a document has been forged, or that a party has committed an act which is tantamount to a criminal offence.  Inferences of fraud and serious misconduct are not to be reached by conjecture, nor on a mere balance of probabilities.  The inherent greater improbability of serious misconduct has also to be factored in, such that a party bearing the burden of proving the allegation should be required to do so with evidence of a commensurate cogency.  (HKSAR v Lee Ming Tee & Securities and Futures Commission [2003] 6 HKCFAR 336, at paragraph 70-71)

9.  I also bear in mind the importance of any undisputed or indisputable facts, and such facts as are recorded in contemporary documents or spoken to by independent witnesses.

How did Mdm Mo fall down the Staircase?

10.  At the heart of the dispute of facts is whether there was construction debris, or “sand and stones” (as described by Mdm Mo), on the Staircase at the time of the Accident; and whether Mdm Mo was walking down the Staircase on her own, or with her Indonesian domestic helper by her side.  There is also dispute as to whether Mdm Mo slipped when she was walking down the Staircase, or whether she fell before she reached the top of the Staircase.

11.  According to the evidence of Mdm Mo, her left upper and lower limbs had become weak after a stroke in 2002, but she was still able to walk around at home with the support of a quadripod and the assistance of a domestic helper.  She was able to go out every day to have tea, and to walk up and down the 10 steps of the Staircase, with the assistance of her domestic helper, or members of her family when they were available.  On the day of the Accident, Mdm Mo claims that she took the lift from the 22^nd floor of the Building to the ground floor, in the company of her Indonesian domestic helper (“Helper”).  After they came out of the lift on the ground floor, the Helper put the wheelchair against the wall outside the lift, to assist Mdm Mo in going down the Staircase.  Mdm Mo claims that she saw that there was a lot of debris at the entrance of the lift and on the Staircase, and further, that there was some pushcart at the entrance of the lift, and 4 to 5 bags of construction material at the bottom of the Staircase.  She also saw 2 men, who appeared to her to be construction workers, at the lift lobby.  One of them helped Mdm Mo to take her wheelchair down to the bottom of the Staircase.  The Helper then went down the Staircase to open the wheelchair, before going back up to assist Mdm Mo in descending the Staircase.  According to Mdm Mo, she could see that the Staircase was full of sand and stones, and she was particularly careful, in trying to avoid stepping on the sand and stones.  However, when she reached the 2^nd step of the Staircase, she stepped on some debris, and consequently fell down the rest of the Staircase, landing on the floor of the entrance lobby where the wheelchair had been placed.  According to Mdm Mo, the Helper went down the Staircase to help her up, but was not able to do so, until 2 residents at the lift lobby came and, together with the Helper, they assisted Mdm Mo to her wheelchair. 

12.  Mdm Mo claimed that there was a watchman who sat outside the lift, but throughout the Accident, he had remained seated at his desk at the top of the Staircase, refused to come to her assistance and refused to call the ambulance despite her bidding.  After the fall, the Helper returned to the flat to fetch Mdm Mo’s husband.  Mdm Mo called the ambulance herself, and she was subsequently taken to the hospital, where she was treated. 

13.  The only witness who was present in the lift lobby at the time of the Accident, and who gave evidence at the trial, is Mr Wong Man But (“Caretaker”), the relief caretaker on duty at the relevant time.  He made a statement on behalf of the IO on 13 November 2012, in which he claimed that he saw Mdm Mo come out from the lift, with the Helper behind her, and that Mdm Mo fell down before she reached the Staircase, and then fell down the 10 steps.  According to the Caretaker, he saw that the Helper was not able to help Mdm Mo sit up, and so he went forward to lift Mdm Mo on to the wheelchair. The Caretaker claims that he had not seen any debris, rubbish or water on the ground or on the Staircase, and that Mdm Mo’s legs simply gave way and she had collapsed before she had even grasped the handrail of the Staircase.

14.  The Helper made a statement in these proceedings on 10 April 2010, but as she had left Mdm Mo’s employment, she was not called to give evidence at the trial.  Her statement repeats verbatim the contents of Mdm Mo’s own statement in relation to the circumstances of the Accident (paragraph 5 of their respective statements). Mdm Mo seeks to rely on the Helper’s statement as hearsay, and although admissible as evidence, in the absence of the Helper for cross-examination, I give no weight to her evidence on the facts of the Accident which are hotly disputed and are at the centre of the controversy.  As counsel for the IO rightly pointed out, no explanation has been offered by Mdm Mo as to why the Helper cannot be called, why no arrangements can be made for her to come to Hong Kong for the trial, or to give evidence by video link.

15.  Counsel for Mdm Mo submits that the Caretaker’s evidence is unreliable and can be ignored, since he confessed in court that the Accident had happened such a long time ago, he only had a very vague recollection on general matters, and that his memory would not generally extend to what had happened more than 3 days before. 

16.  The Caretaker is aged 73, is hard of hearing, and admits that his ear affects his memory.  Although he was not able to recall the small details of what he had seen when he was working in the Building over 6 years ago, he was nevertheless certain in various aspects of his testimony.  He could recount that Mdm Mo used one hand to hold onto the wall and to support herself, and that she generally descended the Staircase on the side where the mailboxes were (on the right).  He maintained that he had the impression of seeing her fall, that she “went soft”, fell down, and then rolled down the Staircase.  He also claimed that Mdm Mo generally went down the Staircase on her own, with one hand holding the handrail.  In particular, the Caretaker maintained that he could recall that after Mdm Mo fell, people had tried to hold her up, but were not successful, and that he had gone forward, and was able to lift Mdm Mo up by putting his hand under her thigh.

17.  Since the Accident had taken place more than 6 years ago, I would not expect either the Caretaker, or Mdm Mo (who is aged 67), to have a clear memory of the exact events as they occurred in 2009.

18.  The Caretaker made a witness statement in these proceedings in November 2012, 3 years after the accident, when his recollection would have been clearer.  There, he claimed that Mdm Mo had walked out of the lift, holding a cane, and that she had fallen down before reaching the Staircase.  It was suggested to him in cross-examination that he had no knowledge as to whether the contents of his witness statement were correct, or not, and counsel submitted that the entirety of the Caretaker’s evidence should be rejected, as unreliable.  I do not take the Caretaker’s testimony in court as accepting that his witness statement is inaccurate.  All he accepted was that even if he could recall the events when he made his statement in 2012, he could no longer recall such events now, in 2015.

19.  Even if I were to reject the Caretaker’s evidence, as to how Mdm Mo’s legs had somehow lost strength as she was making her way from the lift to the Staircase, and that she had fallen before she had reached the top of the Staircase, I have to be satisfied, on the balance of probabilities, that Mdm Mo’s account of the Accident is credible.  According to the witness statement made by Mdm Mo in November 2012, at a time when it can be expected that she would have a clever recollection of the events, she had walked out of the lift with the Helper holding her by one hand.  She claimed in court that as she descended the Staircase, the Helper held her on the left, and she used her right hand to hold the handrail on her right side.  The Helper used her right hand to hold on to Mdm Mo, and her left hand to carry the quadripod.  It was as Mdm Mo was stepping onto the 2^nd step, that she slipped on the debris, and fell all the way down the Staircase.

20.  There are too many inconsistencies in Mdm Mo’s own evidence to render it reliable, and credible.

21.  First, she claimed in her testimony that as she walked out of the lift on the ground floor, she held the quadripod in her right hand for support, and the Helper held her on the left, as she walked to the right side of the Staircase to hold the handrail before descending.  However, when she was questioned further by counsel as to how she could have walked out of the lift, with the Helper on her side, walking abreast, Mdm Mo changed her testimony and claimed instead that she was sitting in the wheelchair, which was pushed by the Helper.  She proceeded to claim that she would never walk on her own across the lift lobby to the Staircase, and that it was only after they had approached the Staircase that she got up from the wheelchair with the assistance of the Helper.  This was probably also an attempt to deal with the Caretaker’s evidence that she had fallen whilst walking from the lift to the Staircase. 

22.  Yet, in her witness statement made in 2012, she had clearly stated that she and the Helper had walked out from the lift (in paragraph 4), and that as the door of the lift opened on reaching the ground floor, the Helper had used one hand to support her to walk out of the lift (paragraph 5).

23.  If it is true, as Mdm Mo claimed, that the Helper had been holding her hand or arm on the left, and walking with Mdm Mo down the Staircase - as she always did, as claimed in her evidence - it should have been possible for the Helper to seize hold of Mdm Mo, after she slipped on the 2^nd step, and to catch her and arrest her fall.  If the Helper had indeed been at Mdm Mo’s side, and holding Mdm Mo’s left hand or arm, even if Mdm Mo had slipped, it might not be impossible for Mdm Mo nevertheless to fall down the entire Staircase, but it is in my view much more improbable.

24.  In contrast to what Mdm Mo claimed, residents of the Building called by the IO claim that they had seen Mdm Mo in the lift lobby on different occasions, ascending or descending the Staircase on her own, with her right hand holding onto the handrail, but with no one by her side.  They claim that they had seen the Helper, or some other domestic helper, waiting for Mdm Mo at the top, or at the bottom, of the Staircase as she ascended, or descended.  All of these witnesses appear to me to be candid in their evidence.  None of them (except Mdm Lam to whom I refer below) claim that they had seen Mdm Mo going up, or down, the entire length of the Staircase, or that they had seen Mdm Mo every time that they had entered or exited from the Building.  However, they were all consistent in that when they did see Mdm Mo on the Staircase, she was either walking on her own, with one hand on the handrail, or that there was a domestic helper walking by her side, but not holding her.

25.  According to Mdm Wong Ho Chi (“Mdm Wong”), she had occasionally seen Mdm Mo in the lift lobby with a domestic helper.  Mdm Wong would walk slowly down the Staircase on her own.  The helper would carry the folded wheelchair down the Staircase, and would wait for Mdm Mo at the entrance lobby as she slowly made her way down the Staircase.  Mdm Wong’s evidence is that she had also seen Mdm Mo ascend the Staircase, also on her own.

26.  Mdm Lam Oi Ling (“Mdm Lam”) claimed that she saw Mdm Mo often in the lift lobby of the Building.  She candidly admitted that she had not seen Mdm Mo walking down the Staircase, but she was certain in her evidence that she had seen Mdm Mo going up the Staircase many, or a few, times.  Mdm Lam explained that she had watched Mdm Mo complete walking up the entire flight of the Staircase, whilst she was herself waiting for the lift, and waiting for Mdm Mo to enter the lift which they both used (both Mdm Lam and Mdm Mo used the same No 2 lift serving the even numbered floors of the Building).  According to Mdm Lam, she had even offered to help Mdm Mo, or had offered to hold the wheelchair so that the domestic helper could hold Mdm Mo, but Mdm Mo had insisted on walking up the Staircase on her own, without assistance, explaining that she required the exercise.  Mdm Lam described how Mdm Mo walked up the Staircase very slowly, keeping her stiff left hand close to the side of her body, holding the rail with the right hand, raising her right foot first, then slowly moving her left foot up, and waiting until both feet were on the same step, before raising her right foot again.  According to Mdm Lam, there was a domestic helper who was with Mdm Mo, but the helper either walked beside Mdm Mo holding the folded wheelchair, or waited for Mdm Mo at the bottom, or the top, of the Staircase, or just walked beside Mdm Mo on the Staircase, but without holding Mdm Mo, who walked on her own.  Mdm Lam claimed that since she could see that Mdm Mo looked strained walking up the Staircase with such difficulty, she (Mdm Lam) had asked the domestic helper once to hold and assist Mdm Mo, but Mdm Mo had declined and said that it was not necessary.

27.  Mr Wong Chung Man (“Mr Wong”) is another resident of the Building who gave evidence in these proceedings.  I find his testimony to be direct, and forthright.  Mr Wong and Mdm Mo were neighbors, living in adjacent flats on the same floor in the Building.  He had constantly seen Mdm Mo in the lift lobby on the 22^nd floor and on the ground floor.  Mr Wong candidly claimed that he had seen Mdm Mo, both in a wheelchair, and walking on her own, in the lift lobby and entrance lobby of the Building. When she walked, she walked very slowly with a cane or walking aid, like an invalid, and she would normally walk very carefully.  On holidays, Mr Wong had seen Mdm Mo’s daughter holding her when they walked out of the Building. However, Mr Wong was certain in his evidence that Mdm Mo would not let her domestic helper hold her.  Mr Wong’s evidence is that according to his observation, as Mdm Mo walked up the Staircase, the domestic helper would take the folded wheelchair up the Staircase, and wait for Mdm Mo at the top.  Mdm Mo would hold the handrail on the right, and advance very slowly up the Staircase, raising one foot with difficulty.  Mr Wong observed that there were times when Mdm Mo had to make two attempts before she could succeed in raising one foot.  Mr Wong also saw that Mdm Mo wore a plastic disposable glove on her right hand when she held the handrail.  He explained that since his wife had fallen ill, he had felt empathy towards patients and people with disabilities, which led him to suggest to Mdm Mo that she could use a special cotton glove, instead of a plastic one, but despite such a suggestion, he had never seen Mdm Mo using the glove he suggested.  Mr Wong readily admitted that he had never seen Mdm Mo complete walking up the entire Staircase, but he had seen her walking up 4 to 5 steps many times. 

28.  Mr Wong had also seen Mdm Mo going down the Staircase many times.  He observed that she did this with relatively more ease.  She could descend the Staircase faster, but she was very careful. Candidly, Mr Wong claims that he had seen Mdm Mo going down the Staircase with her daughter, and that there were occasions when Mdm Mo was held by her daughter, and occasions when she was not held by her daughter.  According to Mr Wong, when Mdm Mo went down the Staircase in the absence of her daughter, she would be accompanied by a domestic helper, who would take the wheelchair down the Staircase, then wait for Mdm Mo at the bottom of the Staircase, and Mdm Mo would descend on her own, one step at a time, holding the rail.  Mr Wong also accepted that there were occasions when he had seen Mdm Mo walking in the entrance lobby, and occasions when he had seen Mdm Mo sitting in the wheelchair and being pushed along the entrance lobby.

29.  Mr Wong explained in his testimony that he learned from his own domestic helper, that the Helper had informed her that Mdm Mo did not want the Helper to hold her, as she wanted to practise walking on her own, and also because she thought the Helper was dirty. 

30.  Despite cross-examination by Mdm Mo’s Counsel, I found the evidence of the IO’s witnesses, and in particular that of Mdm Lam and Mr Wong, to be honest, credible, and reliable in their account of their observation of how Mdm Mo made her way through the lift lobby, the Staircase and the entrance lobby.  I do not agree that it can be read from Mdm Wong’s testimony, that she walked at a slower pace down the Staircase on the morning of the Accident, that there must have been sand or debris on the floor and the Staircase that morning.  It was in response to Counsel’s suggestion, made to her in the course of cross-examination, that she was in a hurry to go out to do marketing on the day of the Accident, that Mdm Wong explained that she had not walked as fast as usual, because she saw Mdm Mo on the ground (after her fall), and she wanted to go forward to help Mdm Mo.

31.  On the other hand, Mdm Mo’s evidence is fraught with inconsistencies in her account of how she made her way from the lift to the bottom of the Staircase - as outlined in paragraphs 21 to 23 above.  Her evidence has also been shown to be exaggerated and unreliable, on the basis of the contemporaneous hospital records. 

32.  Mdm Mo claimed in her witness statement that despite her first stroke in 2002, she had never had a fall whilst ascending or descending the Staircase (“從未試過在上落樓梯時跌倒”).  The statements in paragraph 2 of Mdm Mo’s witness statement and paragraphs 6 and 14 of her daughters’ statements are, indeed, qualified but their effect is to suggest that Mdm Mo had never sustained a fall at home (“從未試過在家中跌倒要送醫院留醫”). However, it is apparent from the medical records disclosed by the public hospitals that between 2002 and the date of the Accident in 2009, Mdm Mo in fact had 8 falls, 2 of which resulted in Mdm Mo being treated in hospitals, and one of which caused a fracture.  She was recorded in the hospital notes to have fallen at home in October 2002, September 2004, May 2005, and April 2006, all of which caused her to receive treatment in the hospital.  There were other episodes of her falling while walking.  In respect of these falling accidents, Mdm Mo received medical treatment at the hospital and was discharged, and in relation to be falling accident which occurred at her home on 2 April 2006, she was admitted into the hospital after receiving treatment the next day, and was discharged on 4 April 2006. 

33.  When questioned about these accidents which were referred to in the hospital records, Mdm Mo’s excuse for not mentioning them in her witness statement was that they were minor incidents, that she had not felt any pain, that she had only slipped, and that she had only told the doctor that she had fallen while holding on to a quadripod whilst walking, in the hope that the doctor would be more concerned about her, and pay more attention to her. Despite the hospital records, she denied that there were falls in 2004 and 2005.

34.  Counsel for Mdm Mo also emphasized in his submissions that these falling incidents before the Accident were minor ones, from which Mdm Mo did not sustain any injury.  In my judgment, the issue is not whether Mdm Mo suffered serious injury as a result of these falls, or whether she had to receive medical treatment as a result, but whether she was prone to slipping or falling, and whether it was likely that her legs may give way, causing her to slip and fall.  On the evidence of her history, it appears to me that there was such a likelihood.

35.  When cross-examined on the medical notes, assessments and reports which recorded Mdm Mo as having only “limited mobility” in January 2008, and that in January 2009, she had to be assisted in her daily living, toileting, dressing and bathing, Mdm Mo explained that when she saw the doctors, she would express everything in her heart, and further, that she would describe her condition to be as serious as possible (“講到自己好差好差”).

36.  It is Mdm Mo’s claim in these proceedings that it was solely as a result of the Accident, that she developed depression and a fear of falling.  However, the hospital psychological report dated 5 December 2010 which recorded Mdm Mo’s consultations from 5 November 2009 to 18 April 2010 made no reference to her having suffered from depression.  In fact, according to the hospital records on Mdm Mo, on 5 November 2009, before Mdm Mo’s discharge from hospital, the clinical psychologist recorded that Mdm Mo’s depressive features were “impressed” to be related to the “deteriorated relationship” between Mdm Mo and her husband “since 3-4 years ago” (ie since 2005 or 2006), and were not found to be contributing to Mdm Mo’s depressive disorder in November 2009. 

37.  In the light of the medical records on Mdm Mo’s condition before and after the Accident, and Mdm Mo’s own evidence, I find that she had a tendency to exaggerate her complaints and her condition, which renders her evidence and claims made in these proceedings extremely unreliable.  I reject her account in court that she was pushed in the wheelchair from the lift to the top of the Staircase, and find it more probable that she had walked that distance.  Even if I should reject the Caretaker’s evidence that Mdm Mo fell before reaching the Staircase, and find that she had slipped on the 2^nd step of the Staircase, from the totality of the evidence adduced in this case, it is more probable than not that she had been walking on her own down the Staircase, without the Helper holding her.  As indicated in paragraph 23 above, I find it improbable that she would have fallen, and to have fallen down the Staircase from the 2^nd step to the entrance lobby, if the Helper had indeed been holding her hand or her elbow or arm, as she claimed.

Was the Accident caused by the IO’s breach of duty?

38.  There is only evidence from Mdm Mo that there is construction debris, or sand and stones, on the 2^nd step where she slipped.  On her evidence, after coming out from the lift, she saw that there was a lot of debris at the entrance of the lift and on the Staircase.  She also saw a pushcart at the entrance of the lift, 4 to 5 bags of construction material at the bottom of the Staircase, and 2 men whom she identified as construction workers as they were bare-chested.  The Caretaker and Mdm Wong (who appeared in the lift lobby shortly after Mdm Mo had fallen) deny having seen any construction workers or bags of construction material.  Mdm Lam’s flat was being renovated at the material time.  On her evidence, renovation works started on 1 October 2009, but masonry work at her flat had been completed about 2 days prior to the day of the Accident on 7 October 2009, and construction debris had been removed about 2 days before 7 October 2009.

39.  In support of his argument that the presence of construction material, construction workers and debris was only alleged by Mdm Mo for the objective of boosting her claim, counsel for the IO highlighted the fact that Mdm Mo’s account of the Accident had evolved various changes.  The notes of the ambulance attendants record an account of a “sudden fall from the stairs”.  According to Mdm Mo’s witness statement, the Helper had truthfully related to the ambulance attendant how she had slipped and fallen down the Staircase.  In my judgment, a “sudden fall from the staircase” may not be inconsistent with Mdm Mo’s account, that she had slipped on debris on the steps.  Nor is any reference to “S/F” ie slip and fall so inconsistent.

40.  The medical report of Doctor Tsoi, dated 29 November 2010, referred to his attendance on and examination of Mdm Mo on 19 November 2010.  Doctor Tsoi stated in his report that Mdm Mo had “slipped and fell on wet staircase”.  Counsel for the IO argued that this could only have been based on the account given by Mdm Mo to Doctor Tsoi - although both Mdm Mo and her daughters denied ever mentioning wet staircase to Doctor Tsoi.

41.  However, as counsel for the IO Mr Chong also pointed out, the Revised Statement of Damages filed in these proceedings and dated 19 November 2013 also refer to Mdm Mo “slipping and falling on the wet staircase”.  This must have been prepared by Mdm Mo’s solicitors, on the basis of her instructions, and with her approval.  It is more difficult to believe that the wet Staircase was an invention by the lawyers, or that its similarity to Doctor Tsoi’s reference is a mere coincidence.  Mistakes are human, as Mdm Mo’s counsel submitted, but in my view, it is more improbable that if Mdm Mo had indeed observed the presence of sand and stone, and had indeed slipped on such debris (as she claimed), she would have failed to highlight this to her lawyers when they were preparing the documents to support these legal proceedings, and that the Revised Statement of Damages would have failed to mention such fact.  Mr Chong further highlighted that in the demand letter issued by solicitors for Mdm Mo on 13 October 2009, there was no mention of the cause of the Accident or the presence of debris. 

42.  The fact that the daughters had written to the Vice Chairman of the IO immediately after the Accident, to ask for details of the Caretaker and of the renovation or decoration company undertaking construction work in the Building (and that they were given same), and to request a copy of the CCTV footage, cannot be evidence of the fact that there was indeed construction debris, or sand and stones, on the Staircase.  Taken to the very highest, it may show that the daughters and/or Mdm Mo had suspected, or even believed, that there had been construction work being undertaken, and construction debris on the Staircase, and that Mdm Mo had slipped on construction debris.  That does not come close to proving that as a matter of fact, there was construction debris or sand and stone on the 2^nd step or any part of the lift lobby, and that Mdm Mo had slipped as a result of her stepping on such debris.  The cause of the Accident remained to be a matter of speculation by Mdm Mo and her daughters.

43.  Mdm Mo’s physical condition after her 1^st stroke in 2002 and just before the Accident has been recorded in the medical documents produced at trial.  They show that the left side of her body was described by her treating doctors as “non functional” in February 2009, and that her movement on the left was limited to the left shoulder.  Earlier, in July 2002, her treatment or progress was recorded as walking with a quadripod with one assistant, going up staircases with one assistant, and going down staircases with one heavy assistant.  In fact, the hospital records show that in December 2006, the treating medical officer had explained to Mdm Mo that she had to consider “other placement” because of the presence of the Staircase in the Building, and that her bedroom was not accessible by wheelchair.  In January 2008, the consultation notes of the treating doctor recorded that Mdm Mo had to walk with a quadripod at home with assistance from her husband, that her basic self-care was dependent due to limited mobility, and in November 2008, that her toileting had to be assisted, and she was walking with a quadripod under supervision at home.  It may be true that there was no evidence of Mdm Mo sustaining more falls after 2006, but she was also more advanced in terms of age in late 2009.  As late as June 2009, she was still recorded to have been able to walk a few steps only with a quadripod, and that the power of her left lower limb was assessed at 1/5, and the power of her left upper limb assessed at 3/5.  Counsel accepts that Mdm Mo’s left limbs were weak since 2002, but on her case, she was able to walk short distances on level ground and to ascend and descend stairs: but with help and assistance.

44.  In these circumstances, it cannot be inferred from the mere fact that Mdm Mo had slipped on the 2^nd step of the Staircase that the Staircase was either wet, or that there was sand or debris present.  On the whole of the evidence, I consider that it is just as probable that Mdm Mo had simply slipped because of the weak condition of her left lower limb, and that she fell because the Helper was not holding her firmly, or at all, as was reasonable and necessary for a person in Mdm Mo’s condition who chose to go down 10 steps.

45.  In any event, the evidence of the IO is that they had a system of workers and the Caretaker on-duty cleaning the common areas including the Staircase and the lobby.  There is no evidence that such was inadequate.  Nor is there evidence from which I can conclude that the IO were negligent in having failed promptly to remove the sand and stone left either on the lift lobby or on the Staircase in the morning of the Accident - even if I were to accept that there was construction debris on the Staircase which had been left by the construction workers Mdm Mo alleged to have seen just before the Accident, after she came out of the lift.  I accept the submission made by Mr Chong that the IO’s duty of care to clean and remove any debris or sand and stone that may have been present in the lift lobby or the Staircase is not an absolute one (Cheung Wai Mei v The Excelsior Hotel (HK) Ltd, unreported, CACV 38/2000, 22 November 2000).

46.  I am not satisfied that Mdm Mo has established that the Accident was caused by any breach of duty on the part of the IO, in respect of any debris, sand or stone that may have been left in the lift lobby or the Staircase by any construction worker undertaking work within the Building on the morning of the Accident.

Did Mdm Mo contribute to the Accident?

47.  If I should be wrong, and the IO should be liable in respect of any debris having been left on the Staircase which led to Mdm Mo slipping and falling, I consider that Mdm Mo was herself largely responsible for the Accident.  On the evidence, I am satisfied that she had walked down the Staircase on her own, without ensuring that the Helper or someone else was at her side, to hold her arm or hand.  My finding of Mdm Mo being mainly responsible for her own fall is based on the evidence of her physical condition since the 1^st stroke, which had left her handicapped and extremely limited in mobility - as evidenced by the medical records, and as further evidenced by her history of falls and slippages.  On her case, she had observed before the Accident that the Staircase was full of sand and stones “見到樓梯當時佈滿沙石” (paragraph 7 of her 1^st witness statement).  Yet, she chose to walk down the Staircase, and did so without insisting and ensuring that the Helper should hold her firmly.  As Mr Chong rightly pointed out, Mdm Mo had options open to her.  She could have insisted that the Caretaker clean the Staircase before she descended.  She could have waited until the sand and stones she saw on the Staircase had been removed, before going down to have her morning tea.  If she chose to descend the Staircase immediately, she could have asked the Helper to go down the Staircase with her and to hold her more firmly than usual, or ask someone else to hold her right arm and the Helper to hold her left arm, and they descended the Staircase together to avoid slipping.  Her failing to do so and to take reasonable and appropriate precaution, with the knowledge of the risks of the presence of sand, stone and debris (as she claimed), is evidence of her lack of reasonable care for her own safety, and particularly in view of her own physical handicap.  In my judgment, she was at least 70% liable for slipping and falling.

What are the damages payable to Mdm Mo?

48.  Since I find that the IO is not in breach of any duty of care, under common law, contract, or any of the Ordinances relied upon, this issue does not have to be decided.

Conclusion and orders

49.  For all the above reasons, Mdm Mo’s claims made in this action are dismissed, with costs and certificate for one counsel.