CHEUNG PONG CHUN v. JASMINE CUISINE LTD

DCPI 44/2022

[2024] HKDC 842

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO. 44 OF 2022

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JUDGMENT

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A.  INTRODUCTION

1.  This is a personal injuries (“PI”) claim brought by the plaintiff against her former employer for alleged injuries sustained by her in an accident happened at work.    

2.  The alleged accident took place on 4 May 2020 at a restaurant operated by the defendant situated on the 1^st Floor of Tin Yau Plaza, Tin Shui Wai, Yuen Long, New Territories, Hong Kong (“the Restaurant”). 

3.  Both the issues of liability and quantum are in dispute.

B.  BACKGROUND

B.1  The Accident

4.  The plaintiff’s pleaded case as contained in the statement of claim filed on 5 January 2022 (“SOC”) can be briefly summarized as follows.

5.  At all material times, the plaintiff was employed by the defendant as a public relation officer (「知客」) at the Restaurant.

6.  The Restaurant is a Chinese restaurant traded under the name of “Jasmine Cuisine” (「茶皇殿」) situated within a shopping mall in Tin Shui Wai. 

7.  The plaintiff’s duties include greeting customers, directing customers to their specific sitting locations, answering telephone calls and delivering food within the Restaurant[1].

8.  At about 0730 hours on the date of the Accident, while in the course of her employment with the defendant, “the Plaintiff was sitting on a chair (“the Chair”) in the Restaurant, the Chair suddenly collapsed and the Plaintiff fell onto the ground”. As a result, the plaintiff has allegedly sustained serious personal injuries (“the Accident”): §5 of SOC.

9.  It is to be noted here that her pleaded case on how the Accident took place under the SOC is very different from what she had told the doctors and different therapists at the public hospitals when she first sought treatments from them.  It is also very different from the 2 almost identical handwritten statements she wrote on 10 May 2020 (ie 6 days after the Accident) which later on being submitted to the Labour Department for the purpose of reporting the Accident.  The later statement was attached to the Form 2 dated 16 June 2020 and Amended Form 2 dated 18 February 2021 subsequently submitted by the defendant to the Labour Department.

10.  Significantly, the plaintiff’s pleaded case is also very different from the detailed descriptions she gave about the Accident under the witness statement filed by her in the present proceedings more than 2 years later on 29 August 2022 (“P’s WS”).  This is without mentioning the important fact that her account of the Accident given in court was a much more embellished (but convoluted) version of the one she gave under P’s WS.  

11.  The only identical account she gave in relation to the Accident as pleaded in the SOC is contained in the application of the parallel employees’ compensation (“EC”) proceedings under DCEC 2040/2000 filed on her behalf on 20 October 2020 (“the EC Application”) by the same legal aid assigned firm of solicitors which represents her in the present proceedings.  Exactly the same allegations regarding the Accident as pleaded in the SOC were made under the EC Application, namely, the Chair she was sitting on “suddenly collapsed” and the plaintiff (the applicant in the EC Application) “fell onto the ground”.       

12.  I shall come back to these matters when I discuss the issue of liability below.

13.  The plaintiff alleges that the Accident was caused by the negligence and/or breach of occupiers’ liability and/or breach of statutory duties on the part of the defendant.

14.  The defendant hotly disputes the Accident happened in the way as pleaded in the SOC or described by the plaintiff in her evidence in court. It also denies that the Accident was caused by the negligence and/or breaches of duties on its part. It puts the plaintiff to strict proof. 

15.  There is, however, no serious dispute between the parties that the plaintiff had sustained a L1 vertebrae fracture on the date of the Accident.       

C.  LIABILITY

C.1  Legal principles involved

16.  I agree with Ms Ann Lui (“Ms Lui”), the defendant’s counsel, that the following legal principles as set out in her closing submissions are relevant to this case.

C.1.1  Burden of proof

17.  As a matter of general legal principles for civil cases, the Plaintiff must clearly set out his case on pleadings. He also bears the burden to adduce satisfactory evidence to prove his pleaded case on balance of probabilities (Tsang Chung Ming v Caritas – Hong Kong [2019] HKCFI 1035, §15).  See also Wat Kwing Lok v The Kowloon Motor Bus Company (1933) Ltd, HCPI 936/2005 (20 November 2007) at §17:-

“The mere fact of the occurrence of the accident 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 accident happened without negligence on its part.”

18.  See also, to similar effect: Liu Cairong v Parker Cleaning Services Company Ltd, HCPI 189/2013 (23 February 2015) at §26.  The plaintiff has the burden of proving the particulars of negligence or breach of duty, on balance of probabilities.   If the court is uncertain as to why and how exactly the plaintiff injured himself, or if there is insufficient evidence pointing to negligence or breach of other relevant duties on the part of the defendants, the court should dismiss the plaintiff’s claims.

19.  The above principles were applied recently in Haider Awais v Intrafor Hong Kong Limited and anor, HCPI 295/2019 (6 October 2022).

C.1.2  Credibility of factual witnesses

20.  In the often cited case of Hui Cheung Fai v Daiwa Development Ltd, HCA 1734/2009 (8 April 2014) at §§77-82, DHCJ Eugene Fung set out some helpful principles on the approach to be adopted in assessing the credibility or reliability of evidence given by factual witnesses:-

“77. Generally speaking, contemporaneous written documents and documents which came into existence before the problems in question emerged are of the greatest importance in assessing credibility: Onassis v Vergottis [1968] 2 Lloyd’s Rep 403 at 431 (Lord Pearce)…

78. In deciding whether to accept a witness’ account, importance should also be attached to the inherent likelihood or unlikelihood of an event having happened, or the apparent logic of events: eg Lam Rogerio Sou Fung v Tan Soon Gin George (unreported, HCA 2576/2005, 5 May 2011) §39 (Chu J).

79. In determining a witness’ credibility, I have also attached importance to the consistency of the witness’ evidence with undisputed or indisputable evidence, and the internal consistency of the witness’ evidence. The latter type of consistency is often tested by a comparison between the witness’ oral testimony and his or her witness statement.

80. I have cautioned myself against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses (Ting Kwok Keung v Tam Dick Yuen (2002) 5 HKCFAR 336 at §§36 – 37 (Bokhary PJ))…

81. The practical approach to assessing credibility of witnesses in a case such as the present may have best been summarised by the words of Robert Goff LJ, as he then was, in The Ocean Frost [1985] 1 Lloyd’s Rep 1 at 57:

‘Speaking from my experience, I have found it essential in cases of fraud, when considering the credibility of witnesses, always to test their veracity by reference to the objective facts proved independently of their testimony,in particular by reference to the documents in the case,and also to pay particular regard to their motives and to the overall probabilities. It is frequently very difficult to tell whether a witness is telling the truth or not; and where there is a conflict of evidence such as there was in the present case, reference to the objective facts and documents, to the witnesses’ motives, and to the overall probabilities, can be of very great assistance to a judge in ascertaining the truth.’

82. Whilst these words were spoken in the context of a fraud case, I believe they are applicable to any case where a witness’credibility features prominently in the court’s determination. …”  

21.  These principles were also applied in Tsang Chung Ming, supra at §14.

22.  Where the plaintiff has put forward one version of event, which is different from a previous version of event also put forward by him, “the judge’s function was not to decide which of the Plaintiff’s versions of the incident was more preferable.  His role was to determine whether, on the balance of probabilities, the Plaintiff’s current version of the incident was correct.  That involved considering whether the Plaintiff’s previous versions undermined his current version to such an extent that it could not be said that the Plaintiff’s current version of the incident was probably correct…” (Chan Chi Shing v Tsang Fook Metal Engineering, CACV 238/1999 (21 December 1999) at p3, as applied in Liu Kin Pong v Kee Wah Food Production Limited, HCPI 632/2014 (6 July 2017)and Haider Awais, supra.

23.  In Liu Kin Pong, supra at §18, the court found that the plaintiff’s many different previous versions of the accident had clearly undermined his current version given at trial, and it was accordingly held that his description of the event was not credible nor reliable.

C.1.3  Negligence

24.  In Wai Mei Ling v Heep Hong Society, HCPI 393/2006 (9 September 2008), the plaintiff was employed as an enrolled nurse by the defendant at a special school for children with physical or mental disabilities.  The accident occurred when the plaintiff was instructed to assist a child who had cerebral palsy to exercise on a big therapy ball.  During the course of the exercise, the plaintiff suffered injuries to her back when she tried to stop the child from slipping down the left side of the therapy ball.  The judge in that case held that the defendant was not in breach of any of its duties owed to the plaintiff, and was therefore not liable for her injuries.  He explained that an employer should not be looked upon as an insurer for any injury arising to an employee in the course of employment. If the finger of blame was to be pointed at anyone, then it could only be at the plaintiff for failing to comply with the instructions given by the defendant to adopt the correct posture when carrying out the exercise with the therapy ball with the child (§§82-84).

C.2  Issues in dispute on liability

25.  The issues on liability which the court needs to resolve in this case include:-

(1)  How did the Accident happen – in particular whether the Chair had moved, fallen or collapsed?

(2)  Was the Accident caused by the negligence, breach of occupiers’ liability and/or breach of statutory duties on the part of the defendant as alleged by the plaintiff under the SOC?

(3)  Whether res ipsa loquitur applies in this case?

(4)  If the defendant is found to be liable for the plaintiff’s injuries (which the defendant denies), should the plaintiff be held liable in contributory negligence? If so, to what extent?

D.    Evidence on Liability

D.1  Witnesses who gave evidence at the trial

26.  There were only 2 witnesses who gave evidence at the trial.

27.  The plaintiff gave evidence on both the issues of liability and quantum.  She did not call any witness to testify on her behalf.

28.  The defendant has called its regional manager Mr To Wai Man (杜偉文) (“Mr To”) to give evidence on its behalf.  His evidence confines to the issue of liability only. 

29.  Mr To became one of the managers (「經理」) of the Restaurant 4 months after the Accident in September 2020.  Hence, he did not have any direct or personal knowledge about the Accident itself.  However, he was promoted to the post of restaurant manager (「店長」) of the Restaurant about one month after he joined the defendant.  Then he was further promoted as the regional manager (「區域經理」) of the group about 1½ years later, overseeing the day-to-day operation of 6 restaurants of the defendant in the area, including the Restaurant itself.  He is therefore familiar with the operation of the Restaurant and its system of work. He has also consulted his colleagues and looked up the records of the defendant on matters he might not have personal knowledge on.

D.2  Overview of the plaintiff’s evidence

30.  Let me start by saying that I do not find the plaintiff a credible witness at all.  It is not so much about her “convoluted, evasive  and defensive responses” when she gave her evidence (as aptly described by Ms Lui in her closing submissions and of which I agree) that bothers me, it is the constant “evolving” of her story on the Accident itself, namely, from that of “falling from a chair”; to that of sitting on a “missing” chair; to that of a fallen chair; to that of a collapsed chair; to that of a chair with a loosen leg / loosen screws that makes the central plank of her case totally incapable of belief.

31.  More importantly, the account given by the plaintiff in her evidence is directly contradictory to the contemporaneous records kept by the medical personnel who had seen her in the initial days after the Accident.  It is also inconsistent with the 2 handwritten statements prepared by her for the purpose of submitting to the Labour Department 6 days after the Accident. 

32.  Last but not the least, her current version that a chair which she had been sitting on steadily and without any problem at all would suddenly collapse after she stood up and leaned over her body to get some toothpicks from the same table is so inherently improbable that it beggars belief.

D.2.1   The plaintiff’s ever “evolving” story   

33.  As mentioned, the plaintiff’s pleaded case is that at the material time of the Accident, she was “sitting on a chair (“the Chair”) in the Restaurant, the Chair suddenly collapsed and the Plaintiff fell onto the ground…”:§5 of SOC.  Nothing was mentioned about how the Chair had suddenly collapsed.  Further, no explanation or description was given about how a chair she was sitting on safely and steadily while having her breakfast in one moment would suddenly collapse on the next.  The closest the plaintiff came to describe there was something wrong with the Chair was under the “particulars of negligence and/or breach of the employment contract” when it stated that the Chair provided to her at work was “defective”.  As to in what way it was being “defective”, the plaintiff did not expand.  There was also no mention of her leaving her seat in order to try to get something before she fell onto the floor in the SOC.

34.  One has to bear in mind that the writ and SOC were issued and served on the defendant back in January 2022 (ie 20 months after the Accident), therefore, the plaintiff had had plenty of time to think over the matter and to give detailed instructions to her assigned solicitor about the Accident.  However, the plaintiff’s pleaded case was kept surprisingly brief and lacked of particulars. 

35.  As stated, in the EC Application filed for the parallel EC proceedings, the same description of the Accident was provided by the plaintiff.  That was filed in October 2020, just 5 months after the Accident. 

D.2.2  Inconsistent versions contained in the contemporaneous medical records 

36.  A closer examination of the contemporaneous documents which came into existence immediately after the Accident revealed that the pleaded version contained in the EC and common law actions was not what the plaintiff had told the doctors when she first went to seek treatments from both the public hospitals and private sector.  

37.  According to the medical records, the plaintiff first sought treatment at the Accident & Emergency Department (“A&E”) of the Tin Shui Wai Hospital (“TSWH”) in the same morning immediately after the Accident.  At 0806 on the same day, it was recorded by the triage nurse at the A&E that the chief complaint made by the plaintiff was “fall from chair today”.[2] The note made by the attending doctor at the A&E at 0900 was “accidentally sat on ground today landed on both buttocks”.  Nothing was said about a collapsed, fallen or defective chair.

38.  When the plaintiff was admitted to the ward of the Orthopaedics and Traumatology Department (“O&T”) at Pok Oi Hospital (“POH”) at 1224 on the same day, it has been recorded in the admission note that the plaintiff had “Accidental fall on ‘missing’ chair yesterday (sic) at workplace”, “Landed on buttock”; and “LBP afterwards”. The above history was taken by Dr Yung Siu Man, a resident doctor at the O&T.  Although the same history (including the mistake of recording that the Accident happened “yesterday”) was repeated by subsequent doctors in their notes / summaries at the O&T,[3] this is most likely caused by the “copy and paste” from the O&T’s own computer record.  However, there is nothing to suggest that the initial information of “Accidental fall on ‘missing’ chair” did not come from the plaintiff herself.  The plaintiff also could not offer any plausible explanation as to why the doctors would have put that in the record as “history of injury” if that information had not come from her.  

39.  2 days after the Accident, the plaintiff consulted a doctor in private practice by the name of Dr Chiu Chi Wan Ivan (“Dr Chiu”).  In the handwritten report of Dr Chiu dated 29 June 2021,[4] Dr Chiu recorded that the plaintiff attended his surgery on 6 May 2020 complaining of “Back injury after S/F[5] from a chair on 4/5/2020”.  Again, nothing was mentioned about the fact that her injury was caused by a collapsed, fallen or defective chair.

D.2.3  The plaintiff’s handwritten statements submitted to the Labour Department

40.  The next occasion the plaintiff had the chance to describe how the Accident happened was on 10 May 2020 (ie 6 days after the Accident). On that day, the plaintiff wrote a statement in Chinese in her own words to describe how the Accident had occurred.  It was written for the purpose of submitting a Notification of Accident (「工傷意外通知書」[6]) (“NoA”) to the Labour Department.  She claimed that she had to submit the NoA to the Labour Department when she realized that the defendant had not reported the Accident to them.  The NoA was received by the Labour Department on 25 May 2020. 

41.  The following statement prepared by the plaintiff in her own handwriting dated 10 May 2020 (“the 1^st Handwritten Statement”) was attached to the NoA:-

 

「本人5月4日早上6時40分左右返到公司，有好多同事都见到我，跟着去点心部拿早歺食，我主观是上星期是7時开工，放星期一返7時，但另外同事也要返7时，所以我让给她返7時，我唯有还8時30分，食完早歺在厅房等开工，因起身拿点东西在坐下，而所坐张椅子倒了我不知道，我直坐落地异致受伤，当時是7時了30分左右，我伤着在地上好痛，就坐了一会才慢慢起自走去跟经理：付双福先生讲，他叫我叫打999叫救护车，我当時以为没那么严重自己还能走，就同他说不用了，我自己叫个朋友坐的士去天水 围医院。」 [emphasis added]

42.  An almost identical handwritten statement as the 1^st Handwritten Statement was prepared by the plaintiff on the same day, ie 10 May 2020, and was attached to the Form 2 which was subsequently filed by the defendant with the Labour Department on 6 June 2020 (“the 2^nd Handwritten Statement”).  The only difference between the 1^st Handwritten Statement and the 2^nd Handwritten Statement is the absence of the 4 Chinese characters of 「我不知道」(“I do not know”) immediately after the phrase of 「而所坐张椅子倒了」 (“and the chair (I) was sitting had fallen”) and before the sentence of 「我直坐落地异致受伤」 (“I directly sat on the floor which caused the injuries”). One can see that the missing of these 4 key words 「我不知道」 (“I do not know”)  is not accidental as the plaintiff took the trouble of re-writing the whole statement by hand again, even though the contents, save from the missing of those 4 key words, were exactly the same. 

43.  Hence, reading from the contents of the above 2 Handwritten Statements, I think one can safely assume that the plaintiff was not sure how the Accident happened at the time.  She simply did not know (「我不知道」) how the Chair fell.  She did not see how it fell or what caused it to fall.  All she knew was that after she got up to fetch something and when she sat down, the Chair had fallen already (「椅子倒了」).  It is also significant to note that up to that moment, she did not make any allegation that the Chair had suddenly collapsed nor that the Chair was in any way defective.  They came a few months later when she issued the EC proceedings in October 2020 and after lawyers have been involved in the case.

44.  In the amended Form 2 submitted by the defendant to the Labour Department on 18 February 2021, which was used to update the average earnings of the plaintiff for the 12-month period prior to the Accident and the sick leave period, the 2^nd Handwritten Statement was also attached to it. 

D.2.4  History of injury provided to the physiotherapists and occupational therapists 

45.  3 days after she wrote the 1^st & 2^nd Handwritten Statements, on 13 May 2020, when the plaintiff first consulted the Physiotherapy Department (“PTD”) at POH, the plaintiff told the physiotherapist a different version of how she had sustained her injuries.  It was recorded by the physiotherapist in the assessment form under “history of onset” that she “fall on missing chair at workplace… land on buttock…Received private physiotherapy”[7].

46.  It is apparent that the physiotherapist must have taken the “history of onset” from the plaintiff directly and did not “copy and paste” from the O&T records as the words she used were very different from those used by the doctors at the O&T.  Again, I note that the plaintiff had made no allegation of a collapsed or fallen or defective chair on that occasion.  As the phrase “missing chair” (「空凳」) in Chinese is very different from that of a broken, fallen or collapsed chair, I simply cannot see how the physiotherapist could get this wrong in her record.     

47.  On 16 October 2020, when the plaintiff first consulted the Occupational Therapy Department (“OTD”) at the Tuen Mun Hospital (“TMH”), the plaintiff apparently told the occupational therapist (“OT”) that she had “(A)ccidental fall on ‘missing’ chair and landed on buttock”. This was recorded by the OT as “Mode of Injury” under the “Occupational Therapy Work Rehabilitation Form”.[8] Given the fact that the information obtained by the OT at TMH and wordings used are very different from those appeared in the medical notes / summaries of the doctors at the O&T and the PTD at POH, it is reasonable to assume that the history of the injury was taken afresh from the plaintiff by the OT in TMH.  After all, they were therapists working at two different hospitals. 

48.  The same information had been repeated by the different OTs who saw the plaintiff during the subsequent 7 sessions attended by her between October and December 2020. Again, I simply cannot think of any reason why the OT would have put down “fall on ‘missing’ chair and landed on buttock” if this was not what the plaintiff had told them.           

D.2.5  Occasion when a collapsed chair was first mentioned    

49.  As stated, on 20 October 2020, when the Application in the EC proceedings was filed, the plaintiff (the applicant in the EC case) described the Accident happened “whilst the Applicant was sitting on a chair in the Restaurant (“the Chair”), the Chair suddenly collapsed and the Applicant fell onto the ground.”  This was only 4 days after the initial consultation with the OTD in TMH when she told the OT that she fell on a ‘missing’ chair.   

50.  In my view, this document is significant in the context of this case for several reasons:-

(1)  It was the first time the plaintiff mentioned that her injuries were caused by a “collapsed” chair (as contrast to a “fallen” chair (「椅子倒了」) stated in the 1^st and 2^nd Handwritten Statements or a “missing” chair to the doctors and therapists) since the Accident happened on 4 May 2020;

(2)  The choice of the word “collapsed” could not be an oversight or mistake as the Application was verified by the plaintiff by her statement of truth and the contents of the Application was translated to her by her solicitor;

(3)  The same exact allegations were made by the plaintiff under the SOC some 15 months later in January 2021;

(4)  There was no mention about the fact that she had left her seat to fetch something before she sat down and injured herself in both the EC Application and the SOC as compared with what she wrote in the 1^st and 2^nd Handwritten Statements and in P’s WS;

(5)  There was also no mention about falling from a “missing” chair at all which had been repeatedly recorded by different doctors and therapists at the public hospitals up to that date; and

(6)  There was no mention that the leg of the Chair was in any way loosen or defective which was later mentioned in P’s WS.

D.2.6  Version contained in the plaintiff’s witness statement 

51.  The plaintiff filed P’s WS on 29 August 2022 for the purpose of the present proceedings, the contents of which she has adopted as her evidence-in-chief when she gave evidence in court.  The following passage is how she described the Accident in P’s WS:-

「12. 意外發生當天,我本來是當第一更，即是早上7時正上班。我於大約早上6時40分回到酒樓，但有另一位同事以為她也是當第一更。經理向女士便叫我當早上8時30分開始第二更。我便在大家吃早餐的房間邊吃早餐邊等開工。

13. 大約7時30分左右，我起身拿點東西再坐下，而所坐椅子塌了我不知道，我坐下時以為椅子還在原位因此直接坐落地以致受傷。

14. 由於當時所有負責第一更的同事都在工作，而第二更的同事還未來，所以只有我一個人在房間內，除了我之外沒有其他人，所以沒有人目擊我的意外，沒有證人。

15. 發生意外後，我傷著坐在地上很痛，就做了一會兒才慢慢起身，去跟經理付双福先生口頭報告。付經理叫我打 9 9 9叫救護車，我當時還能走所以以為沒那麼嚴重，就跟他說不用了，我自己叫個朋友陪我坐的士去天水圍醫院。」

52.  What is very different in the account contained in P’s WS in regard to the Accident when compared with history given to the various medical personnel; her pleaded case in both the EC and PI proceedings; and her 2 Handwritten Statements can be highlighted as follows:-

(1)  It was the first time she used the word 「塌」 (“collapse”) in her own description of the Accident (as contrast to the word 「倒」 (“fallen”) in the 1^st and 2^nd Handwritten Statements;

(2)  It is clear that she did not know what had caused the Chair to collapse as she said “the chair I was sitting on collapsed I did not know” (「而所坐椅子塌了我不知道」); and

(3)  Significantly she admitted that when she was sitting down she thought that the Chair was still in its original position and “therefore she sat down directly onto the floor which caused the injuries”  (「我坐下時以為椅子還在原位因此直接坐落地以致受傷」).

53.  In the latter part of the same statement, the plaintiff tries to explain why she did not take any photograph immediately after the Accident and what she “estimates” (「估計」) as the cause of the leg of the Chair becoming loose:-

“我沒有意外時跌倒的椅子的照片。當時我很痛 只是擔心自己的身體，沒有想到那椅子原來這麼重要。我也沒有仔細留意椅子。但我印象中椅腳並沒有斷，估計是椅腳鬆了所以當我起身拿東西時就塌了，而我不知道，我再坐下去時以為椅子還在原位，所以就失去平衡直坐落地。如果椅腳只是鬆了，可能很容易可以修理，椅子未必需要丟掉。”:see §18 of P’s WS.

54.  It is apparent from the above passage that the plaintiff actually did not pay attention to the condition of the Chair after the Accident.  She did not have “the impression” that the leg of the Chair was broken.  She only guessed / estimated that “the leg of the Chair became loose and therefore when she got up to get something, it collapsed” (「估計是椅腳鬆了所以當我起身拿東西時就塌了」). Because she did not know that the Chair had collapsed, therefore, when she sat down she thought that the Chair was still in its original position; she sat on the floor instead.  It was also her personal opinion that if the leg had become loose, it can be fixed easily. 

55.  Another important matter contained in P’s WS is her purported explanation of why she did not mention anything about the Chair being broken in the 2 Handwritten Statements.  She states that “In these documents I did not mention the Chair was broken was because I did not want to say any bad words against my employer.  I was afraid that if I told the Labour Department that I was injured due to the broken chair provided by my employer, it would get him into trouble and might offend him.  That may cause me to lose my job”. (「在這些文件我沒有提到椅子破爛是因為我不想講我僱主壞話，我怕向勞工處說我因為僱主的破爛椅子受傷，會連累和開罪他。令我失去工作。」)  

56.  In my view, the above explanations are not convincing at all as the plaintiff’s apparent apprehension did not stop her from preparing to report the Accident to the Labour Department only a few days after its occurrence (the 2 Handwritten Statements were dated 10 May 2020 and were later received by the Labour Department on 25 May 2020).  It also did not stop her from instructing her lawyers to issue the EC proceedings only within 5 months from the Accident.  I do not see how if the plaintiff was so concerned about saying “bad words” against her employer and about losing her job, she would be so keen to write down the accounts in the Handwritten Statements and to issue the EC proceedings so soon after the Accident.  They simply do not sit well together.

57.  There are other peripheral matters contained in P’s WS which the plaintiff has embellished during her evidence.  I shall deal with them when I analyze her evidence given at the trial below.  For now, I wish to point out here that the above account given by her in P’s WS some 2 years 3 months after the Accident bears the closest resemblance to the account given by her in evidence in court.  They are, however, diametrically different from the contemporaneous records kept by the medical personnel and the 2 Handwritten Statements immediately after the Accident.  It is also important to bear in mind that the “collapsed” chair version (without providing any details thereof) was first mentioned by the plaintiff only after she had instructed her present solicitors to issue the EC proceedings, some 5 months after the Accident.  Even then, it had not been alleged that the Chair was defective or the leg became loose in any way.      

58.  It is also important to note that the plaintiff has failed to explain any of the inconsistencies contained in the medical records (of “accidental fall on ‘missing’ chair”) and her own Handwritten Statements (of the “fallen” chair) in P’s WS.

D.2.7  Version stated in the plaintiff’s opening submissions

59.  In the opening submissions prepared by the plaintiff’s legal aid assigned counsel, Ms Alison Choy (“Ms Choy”) lodged with the court a week before the commencement of the trial (“P’s Opening”), the Accident was described very briefly as follows:-

“At about 0730 hours on the date of the Accident, P was sitting on a chair (“Chair”) in the Restaurant.  She stood up to retrieve something.  When she tried to sit back down, the Chair had already collapsed, and she fell onto the ground.”

60.  My Choy cited §5 of the SOC and §13 of P’s WS as reference for the above description she made.

61.  What troubles me is the immediate paragraph that follows the above description contained in P’s Opening where Ms Choy has stated the following:-

“Her pleaded case on how the Accident took place and her evidence as stated in P’s W/S are consistent with the written records[9] she made on 10.5.2020, which have since been submitted to D and the Labour Department[10], and was included in D’s Form 2 dated 11.6.2020 and Amended Form 2 dated 18.2.2021.[11]”

62.  As can be seen from my analysis of the 2 Handwritten Statements above, I do not think the descriptions contained therein are consistent with her pleaded case and P’s WS at all.  In fact, in the most material aspects of the Accident, namely, whether the Chair had fallen or collapsed, or whether she was aware that it had fallen or collapsed before she sat down, they are very different.  What is sorely missing in P’s Opening was any mention of the fact that the plaintiff’s present account of the Accident was very different from those she had told the various doctors and therapists immediately after the Accident.  Of course, those records, together with the 2 Handwritten Statements, are the most important contemporaneous records which came into existence immediately after the Accident.  They recorded how the plaintiff had described the Accident to different people in authority before she filed the EC Application.    

63.  Before I deal with the enhanced yet rather convoluted version of the Accident given by the plaintiff in the witness box, I would like to mention 2 related matters in order to put her evidence in context.  First, I would like to briefly deal with the evidence of the defendant’s only witness Mr To.  Second, I would like to deal with the dire lack of any photographic evidence produced by the plaintiff during the entire proceedings until the first day of trial.

D.2.8  Evidence given by Mr To, the defendant’s witness 

64.  As stated, Mr To was not an employee of the defendant at the time of the Accident but has only joined as a manager of the Restaurant a few months after that date.  However, given his relatively senior position in the defendant’s company and the fact that he had worked in the Restaurant for some time before overseeing 6 restaurants of the defendant, he is reasonably familiar with the system of work and the type of chairs provided at the Restaurant, thus, his evidence is helpful in giving context to this case. 

65.  Ms Lui for the defendant has very fairly summarized the evidence given by Mr To in her closing submissions.  I shall respectfully adopt her summary below:-

“Mr To gave evidence in a frank and straight-forward manner. His evidence can be summarised as follows:

(1) The photos at [B1/165(1)-(6)] were taken at the Restaurant by one of his staff on or about 22 March 2024. They show a chair which ought to be identical to the Chair that Plaintiff was sitting on prior to the Accident.

(2) He had checked with his boss, and confirmed that the Restaurant had used this type of chairs since its opening in or about December 2019. He has personal knowledge that the Restaurant is still using this type of chairs now.

(3) All the chairs for customers in the Restaurant, including the ones in the private dining room (“the Room”), are exactly the same. This makes it more convenient for their work, i.e. sometimes they would have to stack up 5 to 6 together when moving the chairs around, etc. There are at least 480 of this type of chairs at the Restaurant.

(4) In fact, all of the 6 Chinese restaurants under his management use exactly the same type of chairs. It was easier for the Defendant to purchase identical chairs for all its Chinese restaurants, and this promoted the brand image of the Defendant as well.

(5) The frame of each these chairs is made of metal, with no hinges, joints, or nails. Accordingly, all chair legs were made of metal as well. There would be some cushioning on the seat and back of the chair.

(6) Since working at the Restaurant from September 2020 onwards, he had never seen or heard of a broken chair, or a collapsed chair.

(7) There is carpeting at the dining area of the Restaurant, including inside the Room. However, at the entrance of the restaurant, the floor was covered by marble/marble-like material. The backdrop of photos at [B1/165(1)-(6)] show the area close to the entrance of the Restaurant.

(8) Since the start of the employment with the Defendant, he had never seen chairs of the type shown at [B1/165(7)] (i.e. the chair photo adduced by the Plaintiff, with wooden chair frame and legs) at the Restaurant.

(9) Under his management, he would not permit his staff to have meals inside the Room, but he has no knowledge as to whether they actually had the practice of doing so prior to his joining the Restaurant.

(10) To his knowledge and understanding, the Plaintiff as a receptionist would not be required to bring dishes to the customers from the kitchen or barbecue kiosk/counter.” 

66.  I have observed the fact that Mr To has given his evidence in a straightforward, direct and frank manner in the witness box.  However, that is not the most important factor of why I would prefer his evidence than that of the plaintiff’s when it comes to the type of chairs most likely made available to its customers and staff in the Restaurant on the date of the Accident.  It is the consistency with the contemporaneous evidence that came into existence before the Accident which is more important in this case.  In my view, it is indisputable that the only type of chairs that was made available to the patrons and staff of the Restaurant, including those placed inside the private dining room (“PDR”), are those shown in the photographs produced by Mr To at the trial.  The plaintiff has not produced any photograph showing the interior of the Restaurant to show otherwise.

D.2.9  Lack of contemporaneous photographic evidence produced by the plaintiff    

67.  Given the serious allegation made by the plaintiff in her evidence that the Chair which she had been sitting on while having breakfast suddenly collapsed without any particularly good reason, one would have thought that the plaintiff, who bears the burden of proof in this case, would at least try to produce some photographic evidence to show what the Chair in question would look like or made of.  However, that was not the case at all.

68.  As it turned out, the plaintiff has failed to produce any photos of the Chair in question as part of the discovery process in this action.  She tried to explain the reason for this in P’s WS. She said she did not take any photo immediately after the Accident as she was in great pain and was more concerned about her physical condition.  She also did not think that it was important at the time.  While I can understand her reason of not having taken a photo immediately after the Accident, I find it difficult to believe that she did not keep any written record about how the Accident occurred in any messaging apps like WhatsApp or Weibo as she stated in P’s WS.[12] She lived with her then 19 year old son (her husband having passed away) at the time and it was incredible that she had not mentioned anything about how the Accident happened to her son on the messaging apps immediately after the Accident.

69.  Even if one accepts that this may be true, what is rather astonishing to find in this case is that the plaintiff and her assigned solicitor have failed to make proper discovery of what the Chair at the Restaurant would look like throughout the proceedings.  Since the plaintiff is able to give a detailed description of what the Chair situated within the PDR looked like in P’s WS, including the fact that it was allegedly “one of those provided to the Restaurant’s patrons for use; made of wood; not fixed and foldable; and quite heavy” (「裡面的椅子是一般茶樓給客人坐的椅子，木製，固定不能摺，頗重」), it would not be difficult for the plaintiff to identify the same type of chairs at the Restaurant.

70.  However, the plaintiff and her solicitors did not attempt to discover what the Chair in the Restaurant might look like or whether the defendant actually possessed such a chair as depicted by the plaintiff in P’s WS throughout the entire course of the proceedings. According to the plaintiff, she only lived about 10 odd minutes bus ride away from the Restaurant.  Hence, there is no reason why she could not have either returned to the Restaurant herself or asked someone to go there to take a picture of the type of chairs which had allegedly collapsed on her in the Accident.  Perhaps what is more astonishing in this case is that the plaintiff, who has been represented by her assigned solicitor all along in this case (as was in the EC proceedings), had made no efforts to try to make discovery from the defendant of any photographs of the type of chairs used inside the restaurant. Had they done that, then no doubt it would be obvious to them that the type of chairs used by the defendant at the Restaurant did not remotely resemble the one described by the plaintiff in P’s WS or shown in the single photo belatedly produced by her on the first day of trial.     

71.  Having said that, the defendant was not entirely without blame on this matter.  Prior to the trial, the only photo discovered by the defendant was the one contained in the defendant’s supplemental list of documents dated 29 June 2023 which was subsequently produced as [B1/149] in the trial bundle.[13] This photograph shows some “stackable” chairs of the same style and make, taken in what looks like a Chinese restaurant.  The frame of those chairs appear to be made of shiny light metal materials (most likely aluminum) with a round cushioned back and a square cushioned seat made of fibers. They are of a champagne / golden colour.

72.  On 11 July 2023, the plaintiff’s solicitors wrote to the defendant’s solicitors and asked “when and by whom” the photo was taken.

73.  By a letter 19 July 2023, the defendant’s solicitors replied by stating that the photos was “taken on or about August 2021 by one of the Defendant’s former clerical member (sic) of staff at 茶皇殿(formerly known as 囍悅酒家), On Tat Estate, which was one of its Chinese Restaurant outlets”.  The letter went on to state that “the photo showed that the chairs were made of metal and fiber cloth and were usually stacked to 5 to 6 layers for storage and ease of movement.”                                               

74.  Despite the obvious fact the above reply has made it clear that the chairs shown in the photograph did not come from the Restaurant itself and the chairs shown therein were not necessary the same type of chairs provided to its customers at the Restaurant, the plaintiff and her assigned solicitor seemed to have been completely satisfied with the answer. This is because no further request for discovery of the exact type of chairs provided by the defendant to its customers in the Restaurant and in particular inside the PDR was made by the plaintiff.

75.  It was not until the week before the commencement of trial when Ms Lui lodged her opening submissions on 2 April 2024 that the 6 photos referred to by Mr To in his evidence were first disclosed and attached to the defendant’s opening.  They were subsequently included to the trial bundle as [B1/165(1) to (6)].  

76.  Ms Choy did not object to the defendant’s late production of the above 6 photos which purportedly show what the chairs provided to its customers in the Restaurant look like.  Instead, the plaintiff produced one single photo on the first day of the trial purportedly showing what the Chair which allegedly had suddenly collapsed on the date of the Accident, looks like.[14] Ms Choy has made it clear that the photo belatedly produced by the plaintiff was not taken at the Restaurant itself but was taken by the plaintiff at a restaurant near to where she lives.  It shows a few chairs with a light brown colour wooden frame and blue cushions on both its back and seat.  They are very different from those chairs shown in the 6 photos produced by the defendant and described by Mr To in his evidence as those provided to its customers in the Restaurant, including those inside the PDR.  Ms Lui confirmed that the defendant had only received that single photo from the plaintiff’s solicitors on 5 April 2024, 4 days before commencement of the trial.

77.  I shall return to this matter towards the end of the judgment.

D.2.10  Evidence given by the plaintiff in the witness box

78.  In evidence-in-chief, besides adopting the contents of P’s WS, the plaintiff confirmed that the single photo she has produced through her counsel on the first day of trial was taken in a restaurant near her home and not at the Restaurant.  When asked what she wanted to demonstrate through this photo, the plaintiff stated that she wanted to say that the Chair in question was similar but not exactly the same.  The Chair was dark blue in colour and the legs of the Chair were also deeper in colour.  She also stated that the frame of the Chair was made of wood and the colour of the cushion was different and of a darker colour.  When showed the 6 photos of the type of chairs that were made available to its customers at the Restaurant produced by the defendant, the plaintiff claimed that the Chair in question was not like that both in terms of colour and make.  She stated that the Chair she sat on was made of wood and the seat was square rather than a rectangular shape.

79.  Under cross-examination, the plaintiff’s case started to fall apart.

80.  While I accept that the plaintiff and her colleagues were allowed to use the PDR to have their breakfast (as contrast to the defendant’s original case that the staff was required to have their breakfast inside the changing room), I do not accept that the chairs inside the PDR would be any different from those available in the main dining room of the Restaurant.  As the plaintiff has agreed under cross-examination, all the dining chairs inside the Restaurant were the same.   This only makes sense as Mr To has related to the court in his evidence.  Not only the 480 chairs were purchased at the same time when the Restaurant was first opened in or around December 2019, they have been using the same type of chairs up to the present date.  Using the same type of chairs would have the advantage of easier management both in terms of movement and storage as they can be stacked up to 5-6 pieces at a time. It also can enhance the image of the Restaurant and the brand image of the defendant as they use the same type of chairs in all their restaurants in the group as stated by Mr To.

81.  Thus, the plaintiff’s claim that the Chair was made of a wooden frame simply does not have a ring of truth to it.  As Mr To has confirmed in his evidence, the defendant simply did not have any chairs which were made of wooden frame or legs (like the one shown in the single photo produced by the plaintiff on the first date of trial) available in the Restaurant.[15]   In my view, had the plaintiff’s solicitors made proper discovery from the defendant at an early stage of the proceedings of the type of chairs made available to its customers at the Restaurant, it would have become crystal clear to them that the plaintiff’s allegation that the Chair was made of a wooden frame could not be true at all.  The frame of all the chairs available at the Restaurant was made of metal, with no hinges, joints or nails.  Thus, it is highly unlikely that the legs of the chairs, which were made of metal (without any hinges, joints or nails), would suddenly collapse as alleged by the plaintiff in her evidence. 

82.  Under cross-examination, the plaintiff further admitted that she did not know or see how the Chair collapsed. While accepting that she did not feel that the Chair she was sitting on was unsteady or shaky in any way, she simply could not provide any plausible explanation as to why the Chair would suddenly collapse.  When asked what she meant by the chair having collapsed, she simply said she did not know and did not see.  However, she accepted that it seemed to her that none of the legs of the Chair was broken and the back of the Chair did not come off. 

83.  What is most telling is that when asked what she meant by saying that the Chair simply fell on the floor, the plaintiff’s answer was that 「我都唔係幾清楚，淨知道嗰張凳唔知點解係塌咗，我坐落去就受咗傷囉，嗰張凳令到我失去平衡啦……係呀我唔知道點解嗰張凳塌咗，所以我坐落去嗰時，我以為張凳仲喺原位嘛，就照坐囉，一坐落去就失去平衡跌落地下」 (“I am not very clear.  I only knew the Chair had collapsed but did not know the reason.  When I sat down (on the Chair) I sustained injuries, the Chair had caused me to loose balance… Yes, I do not know why the Chair had collapsed. When I sat down I thought the Chair was still in its original positon, thus I just sat down.  Once I sat down, I lost my balance and fell on the ground”).

84.  Judging from the above answers, there was simply no direct evidence coming from the plaintiff (who allegedly was the only person inside the PDR when the Accident happened) to say that she actually saw a “collapsed” or “fallen” chair.  It is clear also that she did not know the reason why the Chair had allegedly suddenly collapsed.  It was merely her speculation that the leg of the Chair somehow had become “loosened” or “the screws became loose”.    

85.  In my judgment, the above admissions of the plaintiff strongly point to a classic case of someone who had sat on a “missing” chair (「空凳」) as was recorded down by the different doctors and therapists in their records when the plaintiff first sought treatments at the public hospitals and before she commenced her EC and common law proceedings. They are also consistent with the plaintiff’s 2 Handwritten Statements made 6 days after the Accident when she stated that the Chair had “fallen” (「倒了」) and then she sat on the floor.  As stated in the 1^st Handwritten Statement, she simply “did not know” why the Chair had fallen (「我不知道」).  In my view, it was another way of saying that the Chair had fallen without her knowledge.  She simply sat on the empty space and fell directly onto the floor. 

86.  Further, under cross-examination, while accepting there was a difference between a “fallen” chair and a “collapsed” chair, the plaintiff could not explain why she had failed to use the word “collapse” (「塌」) in her 2 Handwritten Statements but instead used the word “fallen” (「倒」)  instead.  In my view, her excuse that it was due to the fact that she did not know how to write the word 「塌」 (“collapse”) in Chinese was a pathetic one.  There were many Chinese words which could describe the alleged condition of the Chair, whether it was “broken” (「破」) or “slanting” (「歪」) as was put to her during cross-examination.  She could have used any of those words or other words to describe the condition of the Chair. She also had plenty of time to prepare those statements and could have easily asked someone to teach her of how to write the word 「塌」 (“collapse”). 

87.  In my judgment, the truth of the matter must be as the plaintiff has answered repeatedly to Ms Lui’s questions under cross-examination: she did not know as she did not notice or see whether the Chair had collapsed, broken or fallen.  She was merely guessing and could not be sure what caused her to fall on the floor.  She could not even explain why she stated in the 2 Handwritten Statements that she “sat on the floor and injured herself”. As admitted by her, it could be the case that the Chair had fallen or moved and she sat on the “missing” chair.  She simply could not be sure. 

88.  The plaintiff also could not provide any convincing explanation as to why the doctors and the therapists would have put down the fact that she had sat on a “missing” chair in their records.  Her answer that she could not explain herself clearly to the doctors and therapists and that they did not know how to write it down simply are not believable.                   

89.  Further, she also could not explain why when she consulted a private doctor 2 days after the Accident, Dr Chiu would put down in his record that she had “back injury after S/F from a chair on 4/5/2020” when she told him that the chair had collapsed and fell.

90.  She also could not satisfactorily explain why she had not informed his employer or the Labour Department of the collapsed or defective chair at all prior to the issue of the EC and common law proceedings.

91.  All in all, in my judgment, the evidence given by the plaintiff in the witness box is of such poor quality that it is simply incapable of being believed.

E.  Res Ipsa Loquitur

92.  In the P’s Opening, Ms Choy for the plaintiff has spent a great deal of passage to try to argue that res ipsa loquitur would apply in this case.

93.  The following is what has been set out in the plaintiff’s opening submissions on this matter:-

“34. P is only able to say that the Chair collapsed at the time when she stood up and before she tried to sit down again. It is not clear how and why the Chair had collapsed. Thus, exactly how the Accident was caused is not known to P.

35. In the circumstances, P relies on the doctrine of res ipsa loquitur.[16]

36. In Sanfield Building Contractors Ltd v. Li Kai Cheong (2003) 6 HKCFAR 207, Bokhary PJ explained the expression thus:

(1) Res ipsa loquitur is a ‘mode of inferential reasoning’ and may be relied upon to draw inference on liability.

(2) It is for the plaintiff to show that the cause of the accident is unknown, that the defendant was in control of all the circumstances, and that the accident is a kind that does not ordinarily happen if proper care has been taken.

(3) But it matters not that the immediate cause of an accident (eg brake failure or a burst tyre) is known. As long as the cause on which the issue of liability actually turns (eg why the brakes failed or the tyre burst) is unknown, the accident is regarded as one of unknown cause.

(4) The mode came into play where an accident of unknown cause was one that would not normally happen without negligence on the part of the defendant.

(5) In such a situation the court was able to infer negligence on the defendant’s part unless he offered an acceptable explanation consistent with his having taken reasonable care.

(6) The essence of this was “an event which in the ordinary course of things was more likely than not to have been caused by negligence was itself evidence of negligence.

(7) This however does not put the onus on the defendant to disprove negligence.

37. In Chan Kwok Ping v. Hop Yick Engineering Co (a firm) [1997] HKLRD 1390, it was held that where there was an unexplained occurrence which on the face of it was negligent then res ipsa loquitur would apply, giving rise to a presumption of negligence which could be rebutted only by express proof that the defendants exercised all reasonable care or that there was a likely explanation which did not connote negligence on their part.

38. P says that res ipsa loquitur applies in the present case. The cause of the Accident is not known. But it was D who was in control of the Restaurant, its equipment and furniture. If proper care had been taken by D to make sure that its equipment and furniture – including the Chair – were safe to use, the Accident would not have happened.

39. It is also relevant to mention that both Joint Experts opined that the injury was consistent with the mechanism of the Accident as described. Further, there is nothing suggesting that P had lied about the mode of injury”.

94.  Ms Lui for the defendant refers me further to the case of Yau Po Shan v The Express Lift Company Limited [2019] HKDC 1495 and the passages in Clerk & Lindsell on Torts (24^th edition) at [7-208] and [7-209] on the application of the maxim.

95.  With respect, in my judgment, the view taken by the plaintiff’s counsel to say that res ipsa loquitur would have any application in this case has been misconceived.

96.  As the above leading authorities have shown, res ipsa loquitur only applies in very rare situations where the cause of the accident is unknown and where the defendant was in control of all the circumstances, and that the accident is a kind that does not ordinarily happen if proper care has been taken.  Further, the plaintiff has to show that the accident of the unknown cause was one that would not normally happen without the negligence on the part of the defendant.  The burden of proof of showing the above is on the plaintiff.      

97.  In this case, there are plenty of explanations of why the plaintiff might have come to her injuries without involving the negligence of the defendant.  The most obvious one being that she sat on a “missing” chair as she had repeatedly told the treating doctors and therapists when she first sought medical treatments immediately after the Accident. Another one was as she had mentioned in the 2 Handwritten Statements written 6 days after the Accident when she said the Chair had fallen when she tried to sit on it after trying to fetch something.  The fact that she did not know or was not sure how the Chair was “missing” or “fallen” does not mean that the cause of the Accident was unknown.  It can be easily (and logically) explained that the plaintiff must have inadvertently moved the Chair backwards when she got up to get the toothpicks.  In either case, it did not involve the negligence of the defendant.  Hence, I find res ipsa loquitur not applicable in this case at all.  

F.  Conclusion on findings on the issue of liability

98.  In conclusion, I find the plaintiff has failed miserably to explain in her evidence of why the Chair she was sitting on steadily and normally while having her breakfast would have collapsed suddenly.  Common sense would tell us that chairs provided to their customers in a big Chinese restaurant would not collapse suddenly as otherwise it would cause danger and make the owner/operator liable in negligence and/or breach of various duties. 

99.  I also find that it is highly improbable or unlikely that a chair which she was happily sitting on while having breakfast without any problem would have suddenly collapsed after she got up and leaned over the table to get some toothpicks.  The inherent likelihood of that to happen in my view is almost next to zero. 

100.  In my judgment, the most simple and logical explanation of why the plaintiff had fallen on the floor and injured herself on that day was because she had sat on a “missing” chair as she had repeatedly told the doctors and therapists immediately after the Accident. The Chair had either been moved or caused to fall by her body movement when she got up.  When she sat down later, she either did not check or realize that the Chair was no longer in its original positon and hence she sat on the empty space, ended up on the floor and injured herself.             

101.  I further find the plaintiff’s description of the Chair in question is wholly contradictory to the photos produced by the defendant showing what the chairs provided to its customers looked like at the time when the Accident happened.  They are akin to contemporaneous documents which show what the 480 chairs provided to its customers at the Restaurant looked like on the date of the Accident.  Therefore, it is extremely unlikely that a chair of wooden frame with a broken / loosen leg as alleged by the plaintiff could have existed in the PDR of the Restaurant.    

102.  I therefore find that the Accident was entirely caused by the plaintiff’s own negligence by sitting on a “missing” chair.  It was not caused by any alleged defective or collapsed chair as claimed by her in evidence at all.  In my judgment, the cause of the Accident has nothing to do with the defendant. It was not caused by the negligence and/or breach of any duties on the part of the defendant.

103.  In the circumstances, I have no hesitation in dismissing the plaintiff’s claim in light of the very poor, inconsistent and contradictory evidence produced by the plaintiff.

104.  In light of my conclusion on liability above, the issue of contributory negligence does not arise in this case.

G.   Cases involving legal aid fund

105.  The plaintiff is on legal aid. Thus, legal aid fund was used to enable the plaintiff to take this case all the way to trial. A full-blown 3 day trial involving counsel on both sides was resulted.  Following my finding on liability, the plaintiff’s claim will be dismissed and she will be ordered to pay the costs of the defendant.  As she is on legal aid, this means her own costs, as well as that of the defendant’s costs, will have to be paid by the Director of Legal Aid (“DLA”) by using the legal aid fund.

106.  At the closing submission stage of this case, I have repeatedly asked the plaintiff’s assigned counsel of the following questions: why in the light of the contemporaneous records of the doctors and therapists that she had fell on a “missing” chair and in the absence of any plausible explanation from the plaintiff, the assigned lawyers still saw fit to bring the case to trial; why no proper discovery had been made by the plaintiff’s solicitors of what the Chair in question looks like prior to the trial; why in the light of her own inconsistent statements made to the authorities and the internal inconsistency of her own statements when compared with the contents of P’s WS, the plaintiff still thinks that she might have a reasonable chance to convince the court that it will decide the issue of fact in her favour; and what is the inherent probability or improbability of a chair which a person has been sitting on steadily and without any problem would suddenly collapse.

107.  Regrettably, I received no satisfactory answers from the plaintiff’s counsel on the above questions.       

108.  However, Ms Choy has informed the court that she was assigned by the DLA at an early stage of the proceedings.[17] She was instructed to provide her written advice by her instructing solicitors soon after she was assigned.  That was before the exchange of list of documents by the parties.  She informed the court that she had provided her written advice on the merits and quantum in this case in January 2023. Thereafter, she was not asked to advise on the matter again.  The next occasion she was asked to advise on the case was on the estimate length of trial but that was already quite close to the trial date itself.  She was not asked to review the state of the evidence after discovery has been completed and before the case was set down for trial.  Thus, prior to being instructed to conduct the trial, it seems that Ms Choy’s role was limited to the advice on the merits at the early stage of the proceedings only.       

109.  When asked by the court why the plaintiff’s assigned solicitor did not make any discovery from the defendant to find out what the chairs at the Restaurant might look like at the time of the Accident, I received the rather astounding answer from Ms Choy, after she took instructions from her solicitors who were sitting behind her in court that, “they did not think it is their duty to help the defendant to prove their case”.

110.  This has led me to ask the plaintiff’s counsel to remind me of the criteria for a legal aided plaintiff to bring a case to trial by using public funds. Perhaps such question was not expected by Ms Choy, hence, I did not receive a comprehensive answer from her.  I did not blame her for that.  Thus, I carried out some research on the topic myself after the case was adjourned.        

G.1  Criterion for granting legal aid on merits ground

111.  It is trite that the criterion for granting legal aid on the merits ground is set out in s 10(3) of the Legal Aid Ordinance, Cap 91 as “reasonable grounds for taking, defending, opposing or continuing such proceedings or being a party thereto”.

112.  It has been stated that the court does not have to be satisfied that it is more probable than not that the issue of fact will be decided in the aided person’s favour; but it has to be satisfied that the aided person has shown that there is a “reasonable, as opposed to a fanciful, chance of the court at trial deciding that issue of fact in his favour”: Ngugen Trong Son v Director of Legal Aid, LAA No. 20/1999, (15 December 2000; Keith JA sitting as an additional Court of First Instance judge in chambers).

113.  Thus, the test of merits is not based on a test of “more than even chance of success”, a threshold which is higher than “reasonable, as opposed a fanciful, chance”.  Further, it has been held that the opinion in the legal aid handbook could not have precedence over the Hong Kong test in Nguyen Trong Son v Director of Legal Aid : See Chung Yuk Ying (鍾玉英) v The Registrar of High Court & Director of Legal Aid (2013), unreported, HCAL 127/2013 (Hon Au-Yeung J; 22 October 2013) at §17.

114.  While it is not necessary for me to deal with the question of whether there was reasonable (as opposed to a fanciful) chance of the court in deciding the issue of fact in regard to the Accident in the plaintiff’s favour in the present case, I think it may be useful to set out some guidelines when deciding such question in similar cases in future. There has been many PI cases which I have come across in recent years where it seems a plaintiff was able to make use of the legal aid fund to take a case all the way to trial when the evidence at best is questionable and at worst untenable.  

G.2  Matters to take into account in deciding whether there is a reasonable chance of success in a PI case

115.  In order to determine whether there is reasonable, as contrast to a fanciful, chance of the court in deciding the case in his favour, first and foremost, I think the assigned lawyers must not take the instructions given by their aided client at its face value.  In each case, it is not simply a question of “I believe in the aided client’s case” or “I believe the aided client’s has a reasonable chance of success”.  Worse still, “I believe in the aided client’s version in preference to the opposing party’s version.”      

116.  In my judgment, an assigned solicitor or counsel should at least go through the matters listed out by DHCJ Eugene Fung in Hui Cheung Fai, supra at §§77-82 (set out full in §19 above) in order to assess the credibility or reliability of their aided client’s case.  Put in the context of a PI case, these matters would in my view include the following:-

(1)  Whether the aided person’s case is consistent with the contemporaneous documents.  In a PI case, it is perhaps unlikely that there will be any pre-existing documents like that in a general civil or commercial case concerning the accident itself.  However, what the aided person has told the doctors or members of the medical profession immediately after the accident; the statements made to his employer, Labour Department, loss adjuster or the Police; the CCTV records which might have captured the accident in a work place; the dash camera records of the vehicles involved in a traffic accident; and the CCTV records on public transport like on a bus or in a public place like a shopping mall are all important contemporaneous documents / records which the assigned lawyers must go through carefully in order to determine whether the aided person’s current allegations are supported by or consistent with such evidence;

(2)  The inherent likelihood or unlikelihood of an event having happened, ie the apparent logic of events is another crucial matter to take into account.  Take our present case as an example, the inherent likelihood of that of a chair which someone has been sitting on steadily without any problem would suddenly collapse due to a suspected broken leg is so far-fetched that it simply defiles logic and common sense. This is where the assigned lawyers must apply their common sense and day-to-day experience to the situation and ask themselves the question of “what is the inherent likelihood or probability that such an accident could happen in everyday life?”  The more inherently improbable (and therefore fanciful) the accident is, the more unlikely that a plaintiff will able to convince the court at trial that the accident happened in the way as described by him; 

(3)  The consistency of an aided person’s evidence with the undisputed or indisputable evidence is equally important in a PI case. This is where proper discovery on undisputed or indisputable evidence before the case is set down for trial is so crucial in a PI case.  Often the discovery of photographic evidence of the scene of the accident or the subject in question (in this case the Chair or the type of chairs available in the Restaurant) will show up the apparent defects or inherent improbability in a party’s case.  As the plaintiff in a PI case bears the burden of proof to establish that the accident was caused by the fault of the defendant, it is therefore crucial that such undisputed or indisputable evidence should be discovered by the assigned solicitor as early as possible in order for them to make a proper assessment as to whether there is reasonable chance of success and for them to advise the DLA at an early stage;          

(4)  The internal consistency of an aided person’s evidence of his current version of event when compared with the version(s) given by him in previous statements made to the authorities, his employer or loss adjusters, etc. is another important matter that will help to determine whether his case is reasonable or fanciful.  In the absence of any plausible explanation, the general rule of thumb must be the more inconsistencies there are in his previous statements, the more unlikely that his current version will be accepted by the court.  It is incumbent for the assigned lawyers to point out such previous internal inconsistent statements to the DLA when advising whether there are “reasonable grounds” for taking the case to trial.  Where appropriate, such inconsistences must be fully explained in the plaintiff’s witness statement or by way of a supplemental witness statement before the case goes to trial;

(5)  Whether the plaintiff’s allegation / version of the accident is corroborated or supported by any independent witness or witnesses is another consideration which needs to be taken into account.  If they exist, whether the plaintiff’s account is consistent with the independent witness or witnesses’ account.  If the accident is claimed to have been not witnessed by any person who reasonably ought to be expected at the scene of the accident, like a co-worker at a work place or a passenger on a vehicle, then alarm bells should be set off and further investigations and/or discovery have to be made; and        

(6)  As a court will not likely draw any conclusions about the truthfulness and reliability of a witness’ case solely or mainly from his appearance or demeanor, the “belief” of the assigned lawyers on the aided client’s case should also not be based solely or mainly on his appearance, performance or even sincerely in presenting his case in conference.  In each case, reference must be made to the objective facts and documents, the aided person’s motives and the overall probabilities in order to determine whether he has a reasonable chance to convince the court at trial to accept his current version.

117.  While the above list is by no means exhaustive, they are, in my opinion, matters that the assigned lawyers should at least go through carefully before advising the DLA to issue a legal aid certificate to cover the trial. 

118.  I think the same considerations may also apply in a non-legally aided case before a plaintiff’s lawyer decides whether to take a case to trial.  

119.  There is perhaps one more practical matter that I would like to suggest in order to protect the legal aid fund from being misused for apparent unmeritorious cases in future.  If a counsel has been assigned to advise on a PI claim at an early stage of the proceedings, he or she in my view should be given the opportunity to provide an update advice on the merits and evidence after discovery has been completed and witness statements are exchanged but before the case is set down for trial.  In my experience, often at the early stage of the proceedings, a counsel will only have very limited evidence or information in order to form his or her opinion on the merits.  Those evidence or information often would come from the aided client’s side only.  Further, there may be indisputable or objective documents like photographs of the scene or subject in question or CCTV records that are yet to be discovered.  Thus, any preliminary view that the counsel formed on merits at an early stage of proceedings may not hold good once full discovery has been made.  Hence, I think it is only fair that the assigned counsel will be given the chance to review all the evidence disclosed and to advise whether, in the light of all the update evidence, the plaintiff may still has a reasonable case before the case is set down for trial.  I also consider that the assigned counsel should have an opportunity to meet the aided client in conference at least once before providing his or her updated advice in order to test the aided client’s case in view of the matters listed out above. 

120.  As public funds are involved, I consider it will be irresponsible for an assigned solicitor to simply rely on an old written advice of counsel, without making sure that proper discovery has been made and all the updated evidence are obtained, before advising the DLA to issue a certificate to cover the trial.

H.   QUANTUM

121.  In the unlikely event that I am wrong on my findings on the issue of liability, I shall very briefly deal with the issue of quantum here.

H.1  Injuries and treatments

122.  The plaintiff’s injuries and treatment have been summarized in the Revised Statement of Damages (“RSOD”) and are set out as follows.

123.  Immediately after the Accident, she went to the A&E of TSWH by taxi.  She was then transferred and admitted to the O&T of POH for further treatment.  On examination, there was tenderness over lumbar spine. X-ray and computerised tomography showed fracture of L1 vertebrae. The plaintiff was managed conservatively and was referred to PTD and OTD for rehabilitation.

124.  Upon referral, the plaintiff started to receive physiotherapy treatment at the PTD of POH since 13 May 2020 and the treatment period ended on 18 January 2021. Treatment included magnetic therapy, home hot pack application, trunk mobilization exercise and core strengthening exercise.  There was an overall 60-70% improvement in her lower back pain and she can walk independently on level ground with stiff trunk.

125.  The plaintiff underwent MRI scan on 24 September 2020 on her lumbar spine at Hong Kong Advanced Imaging. There was L1 vertebral compression fracture with moderate loss of anterior vertebral body height and mild focal thoracolumbar kyphotic deformity.  Tarlov cyst measuring 1.6cm in size at S3 level and multiple perineural cysts are seen along bilateral sacral nerves were also revealed in this MRI scan which was unrelated to the Accident.

126.  The plaintiff first attended the OTD at POH for treatment on 16 October 2020 and treatment ended on 14 December 2020.  In the last assessment, her standing tolerance and walking tolerance were reported to be at 30 minutes and 45 minutes respectively. She demonstrated maximum bilateral carrying of 4.5 kg and performed frequent bilateral carrying of 3.2 kg for 10 minutes with short break.  There was found to be a mismatch between the plaintiff’s bodily condition and her job demand.

127.  In addition, the plaintiff attended Tin Shui Wai (Tin Yip Road) Community Health Centre and Dr Poon Tak Lun, an orthopeaedic specialist in private practice, for follow-up treatments.

128.  The plaintiff was granted sick leave from 4 May 2020 to 30 December 2022 continuously.  Further sick leave has been given intermittently until 10 March 2023.

H.2  The Joint Medical Report

129.  On 6 June 2022, the plaintiff was jointly examined by Dr Patrick Wong (“Dr Wong”) for the plaintiff and Dr Wilkie Ngai (“Dr Ngai”) for the defendant and a joint medical report dated 25 June 2022 was prepared by the experts.

130.    Both Dr Wong and Dr Ngai agree that that the plaintiff sustained fracture L1 vertebrae as a result of the Accident.

131.  Both experts opine that she might have overstated her perceived severity (5-8/10) of her residual back pain; comparing with  physiotherapy report recording subjective pain intensity of only 2/10 as at 18 January 2021.

132.  Both experts also agree that the plaintiff had reached maximal medical improvement at the time of the examination on 6 June 2022.

133.  Dr Ngai opines that the plaintiff should be able to resume her pre-accident occupation as a waitress, albeit with mildly reduced working efficiency, and that the reasonable sick leave period ought to be 9 months.

H.3     Pain & suffering and loss of amenities (“PSLA”)

134.  Ms Choy has fairly conceded that the plaintiff’s condition would not bring her within the category of “serious injury” in terms of PSLA awards.  Hence, she submits that an award which is lower than the minimum award for “serious injury” cases would be appropriate.  The following cases have been referred to in her submissions:-

(1)  Shek Kam Ching v Po Kee Construction Engineering Ltd & Anors [2002] 3 HKLRD 795;

(2)  Limbu Muni Parsad v Hyundai Engineering & Construction Company Limited (HCPI 1167/2003, unreported, 19 August 2004);

(3)  Razaq-Akhtar v Wang Hoi Transportation Ltd (HCPI 303/2007, unreported, 24 October 2008);

(4)  Khan Amir v Kwok Yui Chor and Mak Wah Cho t/a Chi Shing Environmental Protection and Recycling Company (HCPI 422/2009, unreported, 13 October 2010);

(5)  Lai Jianxing v Sakoma (HK) Limited & Anors [2011] 5 HKLRD 329;

(6)  Lee Luk Po v. Sin Sze trading as Ngai Lung Iron Ware Eng (HCPI 1085/2014, unreported, 7 August 2015);

(7)  Thapa Goma v Tina Global (HK) Ltd & Anor [2019] HKCFI 471; and

(8)  Fung Chi Hung v Yun Kwan Construction Engineering Limited & Anors [2022] HKCFI 2179

135.  Ms Choy submits that the plaintiff’s condition is comparable to the above cases, especially Limbu Muni Parsadi, Lai Jianxing and Fung Chi Hung.  She submits therefore that the appropriate PSLA award should be at $310,000.

136.  Ms Lui is prepared to accept the above sum as PSLA award in this case.

137.  Hence, I would award a sum of $310,000 under this head.

H.4  Pre-trial Loss of Earnings

138.  The plaintiff is now 53 years old and was 49 at the time of the Accident.

139.  She was earning $10,800 per month at the time of the Accident.  The average income of the 12-month period pre-accident was at $9,006.82.  This is not disputed by the defendant.

140.  As regards sick leave:-

(1)  It is accepted by the plaintiff that the trial judge is entitled to go behind any and all sick leave certificates and reach his own conclusions as to the appropriate length of sick leave: see Yeung Lai Ping v Secretary for Justice [2022] HKCA 689 (at §36 per Kwan VP);

(2)  Dr Wong endorses the sick leave up to 31 May 2021 (around 13 months) while Dr Ngai opines that sick leave for around 9 months would suffice; and

(3)  The plaintiff submits that there is nothing to suggest that Dr Wong’s opinion regarding sick leave (and in general) is not fair or should not be adopted.  Thus, the plaintiff claims loss of pre-trial earnings on the basis that sick leave up to 31 May 2021.

141.  The next question is whether she could have returned to her pre-accident job, or whether she had to switch to light duty jobs.

142.  Dr Wong opines that P is unable to return to her pre-injury work and had to resort to jobs that require lighter physical demands on low back.  Dr Ngai does not agree.  The defendant also argues that Dr Wong misunderstood the plaintiff’s job nature, namely, she did not need to lift heavy weight.  This has been confirmed by Mr To whose evidence I accept.

143.  However, Ms Choy has fairly accepted that the above issue does not have any real impact on quantum as light-duty jobs such as carpark attendants and security guards yield a similar salary.

144.  Thus, the plaintiff accepts that post sick leave, there is no loss of earnings.

145.  I prefer the view of Dr Ngai and consider that 9 months of sick leave in this case is more than reasonable, given the progress she made after receiving the physiotherapy and occupational therapy treatments at the public hospitals.  Hence, the pre-trial loss of earnings & MPF I would have awarded had the plaintiff been able to succeed on the issue of liability will be at:-

$9,006.82 x 9 months x 1.05

= $85,115

H.5  Post-trial loss of earnings

146.  It is accepted by the plaintiff at the opening stage of the case that whether she could return to her pre-accident job, there is no difference in her future earnings.  Thus, belatedly, the plaintiff agreed to make no claim under this head at the trial.  This is very different from what was pleaded in the ROSD where a sum of almost $390,000 has been claimed and maintained throughout the proceedings until the first day of trial.  This is most unfortunate and does not help the parties to achieve the underlying objectives of the Civil Justice Reform by bringing an early out of court settlement.  Unrealistic claims should not be pleaded in the first place if there is no credible evidence to support it.  If pleaded, they should not be maintained once the evidence reveals that they are no longer sustainable.

H.6  Loss of earning capacity

147.  In view of Dr Ngai’s opinion (which I prefer), there is no basis for the plaintiff to make a claim of any loss of earning capacity in this case.  I will therefore not award any damages under this head.

H.7  Special damages

148.  The plaintiff says that her claims for special damages are reasonable and should be allowed in full:-

(1)  a sum of $5,000 for tonic food;

(2)  a sum of $5,000 for travelling expenses incurred; and

(3)  a sum of $34,275 for medical expenses incurred.

149.  In the absence of any medical evidence as to suitability of any tonic food and any receipts to support the claim, I am prepared to award a nominal sum of $2,000 to represent such loss.

150.  Similarly, for travelling expenses, I am prepared to award a sum of $2,000.

151.  For medical expenses, although some of the bonesetter and traditional medical practitioners’ treatments are supported by receipts, given the fact that Dr Ngai considers that her sick leave should be confined to a period of 9 months, I would award a sum at $10,000.

H.8  Future medical expenses    

152.  The joint experts took the view that the plaintiff might need simple analgesics on a need-to basis in future.  The plaintiff claimed a sum of $10,000 in her RSOD under this head and the defendant agreed to pay a sum of $3,000 under its Answer.

153.  I would award a sum of $3,000 under this head.

H.9  Related EC settlement

154.  The related EC proceedings had been settled at $190,000 which the plaintiff will have to give credit for in the present case.

H.10.  Summary on quantum

a.	Damages for PSLA	$310,000
b.	Pre-trial loss of income & MPF	$85,115
c.	Loss of earning capacity	Nil
d.	Special damages	$14,000
e.	Future medical expenses	$3,000
		-------------
	Sub-total	$412,115
	Less EC compensation received	$190,000
		-------------
	Net total:	$222,115

155.  In summary, I would have awarded a sum of HK$222,115 (excluding interest) had the plaintiff been able to establish liability in this case.

I.  CONCLUSION

156.  In conclusion, given the woefully inadequate and manifestly unsatisfactory state of evidence on the issue of liability as analyzed above, the plaintiff’s claim is hereby dismissed with costs in favour of the defendant, such costs to be paid on a party and party basis, to be taxed if not agreed with certificate for counsel.  The plaintiff’s own costs to be taxed in accordance with the legal aid regulations.

157.  I will make the above costs order on a nisi basis.  In the absence of any application by the parties within 14 days, the costs order will become absolute.