YIN HONG v. BILCO COMPANY LTD t/a SCHNURRBART RESTAURANT

HCPI 1037/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1037 OF 2002

--------------------------

-------------------------------

-----------------------

J U D G M E N T

-----------------------

1. The plaintiff is suing the defendant for personal injury from a fall sustained at the defendant’s restaurant.  The trial is on both liability and quantum.

Liability

Background

2. The defendant operated the Schnurrbart Restaurant in Tsimshatsui (“Schnurrbart”).  The plaintiff is a regular customer of Schnurrbart.

3. Schnurrbart had a restaurant section and a bar area.  At the material time, the entire floor was carpeted.  At the bar area, there were bar stools of 2½ feet high, with foot rests on the four legs at 11½ inches above the ground level.

4. In the plaintiff’s pleaded case, it is alleged, inter alia, that the bar stool constituted a trap or danger.  Mr Fong for the plaintiff clarified that there is no allegation that the stool by itself was dangerous by reason of its design or construction.  It is only that the stool being placed on the floor which was slippery constituted a trap or danger to the user.

Plaintiff’s evidence

5. The plaintiff injured her left ankle when she was trying to sit on a bar stool between 1 a.m. to 2 a.m. on 30 November 1999. 

6. The plaintiff originally sat on a stool.  She went to the toilet at the other end of the restaurant.  She walked on the area to the right of her stool.  Both her feet felt a bit oily or slippery.  It was unusual but she did not pay much attention to it.

7. About five minutes later, she returned from the toilet.  She did not remember that there was a slippery spot she had just walked over.  She approached the stool on her left.  When she was about 1 to 1½ feet from the stool, she felt the floor was slippery.  She took two to three steps towards the stool.  Her left foot stepped on the foot rest of the stool.  Her right foot was planted firmly on the ground and did not move.  She tried to rest her left hip on the seat.  Her right hand was on the bar counter top to gain support.  She tried to step on the foot rest with her left foot, and had to use force on her right foot.  Suddenly, her right foot slipped and the left foot also slipped simultaneously.

8. The plaintiff said she had walked to and fro in the same spot earlier that night but she did not remember whether the floor was slippery.  The first time she felt it was slippery was when she walked to the toilet. 

9. She never saw what was the substance which made the floor slippery because she was painful after the fall.  She thought as it was slippery, it must have been oil or dirt.  She said the place was definitely slippery, otherwise she would not have fallen.  She later added that when she took her trousers in for dry cleaning, she noticed oil stain on the left hip area where she fell on.

10. The plaintiff said she had consumed alcohol that night but was sober.  She had one glass (0.33 litre) of beer at the bar at about 6:30 p.m.  She had dinner elsewhere but she did not have any alcohol at dinner.  At around mid-night, the plaintiff returned to Schnurrbart and she had two glasses of beer.  For about an hour before the accident, she only sat there and did not drink anything.

11. After the fall, the plaintiff did not complain to the staff at the scene that something oily or slippery caused her fall because she was painful.  After about a month, she complained to the proprietor that she had a fall in his place.  He had no reaction.

12. Mr Tan Mou Ieng (PW2) was with the plaintiff at Schnurrbart from about 6:30 p.m. onward.  Just before the accident, he was sitting on the left of the plaintiff.  He had also been to the toilet and walked on the area where the plaintiff felt slippery.  He did not feel anything wrong.  After the accident, he tried to help the plaintiff up, and his left hand touched the carpet and he felt something sticky and oily on the carpet.  He did not know what it was.  He rubbed it on his trousers.  He did not bother to complain to the staff at the time because he was too busy attending to the plaintiff. 

13. Mr Tan said the plaintiff only had juice before dinner.  At dinner, they did not order alcohol because two other friends were teetotal.  Upon return to Schnurrbart, the plaintiff had about one to two beers.  He said the plaintiff had a good stomach for alcohol.  She was definitely not drunk, as otherwise she would have left.

14. Mr Tan said he drank quite a lot that night, both beer and whisky.  One of the friends at dinner also joined them at Schnurrbart after dinner and he or she might have tried one beer.  He had also paid for other friends he met at the bar on his bill.

Defence evidence

15. Ms Josephine Gomez (DW3) is a bar tender at Schnurrbart since 1997.  She said no one had ever slipped before while trying to sit on a bar stool. 

16. Ms Gomez said the plaintiff was “drunk” before the accident.  By drunk, she meant the plaintiff acted differently from when she had no alcohol at all.  After the fall, the plaintiff accused Mr Tan of not helping her from falling and she wanted to slap him.  Mr Tan answered that she was drunk.  They spoke in Cantonese.

17. Ms Gomez produced two bar bills.  The bill before the dinner showed two beers, one whisky and one cola.  The bill after dinner showed seven whiskies, three beers and one orange juice.  She could not remember who drank what, nor whether Mr Tan had paid for other customers on his bill.

18. Ms Gomez said food were served at the bar counter, and it was not surprising to find food dropped on the carpet.  But they would clean it up straight away. 

19. Ms Narcisca Superable (DW2) is a cleaner at Schnurrbart since 1997.  She worked from 6 a.m. to 10 a.m.  At the time of the accident the floor was carpeted.  She would vacuum the carpet.  Rarely, the carpet would be wet with smell of alcohol, and she would dry it with a towel.  She never encountered any oily or sticky substance at the bar, because the bar tenders would clean it up right away.

Assessment of the evidence

20. In Laverton v. Kiapasha t/a Takeaway Supreme [2002] EWCA Civ 1656, Hale LJ (with whom Peter Gibson LJ agreed) said that :

“16.  The occupier’s duty of care is the same in all cases but its application depends, and depends crucially upon ‘all the circumstances’ of the particular case before the court.  He has to take ‘reasonable care’ to see that his visitor are ‘reasonable safe’.  He does not guarantee their safety.  The shop keeper’s duty was put this way by Lord Goddard CJ in Turner v. Arding & Hobbs Ltd [1949] 2 All ER 911 at 912 :

‘The duty of a shopkeeper in this class of case is well-established.  It may be said to use reasonable care to see that the shop floor, on which people are invited, is kept reasonable safe, and if an unusual danger is present which the injured person is unaware, and the danger is one which would not be expected and ought not to be present, the onus of proof is on the defendant to explain how it was that the accident happened.’”

21. Mr Fong submitted that the slippery carpet was the cause of the accident, and the slippery substance was permitted to remain on the carpet because the defendant did not maintain an effective system of cleaning.  Cleaning service between 6 a.m. and 10 a.m. would not be enough to avoid the accident.  Mr Fong pointed out that the cleaner was first asked to give her witness statement in March 2003 and could not really be expected to remember what was the state of the carpet on the morning after the accident. 

22. Mr Fong also submitted that even if the plaintiff had been drinking alcohol at the material time, by the nature of the premises, the defendant should have anticipated that the plaintiff would be less careful than otherwise have been.  He referred to Charlesworth & Percy on Negligence (10^th ed. 2001) at 3-35 :

“Having said that, there can be instances where a duty of care has arisen precisely because the defendant should have anticipated that the claimant would be the worse for drink and thereby less careful than he would otherwise have been, and in such a case any finding of contributory negligence must reflect the blameworthiness of each party, rather than the extent to which the claimant might be regarded as responsible for his own injuries.”

23. There is no complaint of the design or construction of the bar stool.  On each of the four foot rests, there was a metal strip.  The strip was not affixed to cover the surface of the foot rest, which would otherwise have reduced the friction of the foot rest.  It was planted vertically into the foot rest and jutting out for about ¼ inch (1 cm).  That should have increased rather than reduced its friction.

24. I shall first deal the issue of the so-called “drunkenness”.  Both parties have exaggerated their respective cases.  Ms Gomez said that Mr Tan told the plaintiff she was drunk when she tried to slap him.  Ms Gomez said she only knew Cantonese but not Putonghua, and she heard them converse in Cantonese.  She had spoken to both of them in Cantonese before.  However, I noted that both the plaintiff and Mr Tan are native Putonghua speakers.  I just wonder whether they would have used Cantonese instead of their native tongue if they were to have an argument after the accident? 

25. On the other hand, Mr Tan tried to understate the consumption of alcohol by the plaintiff.  He said the plaintiff did not have any beer before dinner, while the plaintiff admitted having one beer when shown the first bar bill.  For the second bill, there were a lot of alcoholic drinks, including three beers.  Mr Tan said one beer could have been consumed by their friend at dinner who was a teetotaler.  The plaintiff also said she stopped drinking and sat there for nearly an hour before the accident. 

26. I reject Ms Gomez’s evidence that Mr Tan said the plaintiff was drunk when she accused him of not helping her from falling.  Be that as it may, the plaintiff did have some beer.  At any rate, the crucial issue is whether there was any oily and slippery substance on the floor.

27. I also reject the cleaner’s evidence that there was no food remains on the carpet in the morning after the accident.  She said she never found any food remains on the floor.  It is simply inconceivable given that the place is a restaurant.  

28. It is somewhat surprising that neither the plaintiff nor Mr Tan ever suggested what the sticky and oily substance was.  Miss Lee for the defendant submitted that this amongst other things tended to show that the plaintiff was not a credible witness and she had failed to prove her case.

29. Miss Lee pointed out that the plaintiff did not complain to the staff at the scene that it was something on the carpet that caused her slip.  Mr Fong submitted that was understandable as she was in severe pain.  But Miss Lee pointed out that even after a month when the plaintiff complained to the proprietor that she had a fall, she still did not mention there were slippery substance on the carpet. 

30. It is also noted that in the medical report dated 4 April 2001 of Dr Lau Hoi Kuen, the plaintiff’s own expert, it is recorded that “According to Madam Yin, she was walking inside the pub when her left leg was caught between the legs of a chair.  She fell and suffered twisting injury to her left ankle.”  There was no mention of falling due to slippery substance on the floor even then.

31. Mr Tan said he did not complain at the scene because he was too busy with helping the plaintiff.  But Miss Lee pointed out that he had to rub the oily and sticky substance on his trousers and it is unlikely that he would not complain about it.

32. Miss Lee also pointed out that in the Statement of Claim and the plaintiff’s witness statement, it was only mentioned that the floor was slippery.  There was no mention of what the substance was or likely to be.  Mr Tan only mentioned in his statement that there was an oil stain on the floor, and it was not until his evidence that he mentioned there was something sticky and oily.  Miss Lee said that it was never known whether the substance was food remains, or a film of oil, or other chemical substance, in relation to which the defendant’s duty might be different.  Be that as it may, Miss Lee’s emphasis was that the lack of complaint of the existence and type of slippery substance undermined the plaintiff’s credibility.

33. Miss Lee also pointed out that the plaintiff had given at least two versions of the condition of floor in evidence.  First, she said when she was walking to the toilet, she did not notice the floor was slippery.  She did not notice anything abnormal on the carpet, and if there were anything on the floor to make it slippery, she would have noticed.  She only noticed something slippery on the way back.  She stepped on the floor and felt it slippery on her feet and she had a fall.  The plaintiff’s explanation was that she missed it in the earlier part of her evidence.

34. The second version was that when she was walking to the toilet, she felt the floor a bit slippery, but not very slippery.  She could feel the difference between slippery and very slippery.  Then she developed it to the version mentioned above.

35. Miss Lee also submitted that the plaintiff’s description of her fall was contrary to common sense.  She said her left foot was on the foot rest, and she had to use force on her right foot in order to mount the stool, and then her right foot slip first on the slippery floor.  One would have thought that the plaintiff ought to exert force on her left foot in order to mount the bar stool, which was less likely to cause the right foot to slip.  In her demonstration with the bar stool in court, the plaintiff stepped with her left foot on the foot rest in order to lift herself up, and at that time her right foot was also lifted above the ground.  It is all the more unreal that the plaintiff took two to three steps on the one to one and a half feet stretch of slippery surface without slipping, but slipped on the right foot when her left foot was stepping the foot rest.  On this point, Mr Fong accepted that in the normal case, one would not be expected to exert force in both the feet when mounting a bar stool.

36. Miss Lee impugned the plaintiff’s credibility in exaggerating the claim of her loss of earnings and in claiming for treatment she could never have had in Shanghai.

37. The plaintiff claimed that she worked as a consultant in the Winguide Garment Factory (Shenzhen) Co., Ltd. (“Winguide”), and her earnings were about ¥25,000 per month.  She produced eleven receipts for her fees from January to November 1999, in the amount between ¥20,000 to ¥28,000 per month.  The plaintiff said they were for her advice on design and fabrics, and also for introduction of business.  She did not know the basis of the calculation, nor did she care whether she was underpaid or not.  The boss was her long-term friend and there was an element of him “looking after” her.  All the receipts were written out by her on Winguide’s receipt book.  The receipts numbers were from 0049641 to 0049658, sometimes consecutively for consecutive months.  The plaintiff said she did not know whether the receipt book was also for other purposes.  She was not paid monthly.  Sometimes she went to Shenzhen to be paid, and she would then write out the receipt.  Alternatively, the staff of Winguide would take the money to her in Shanghai.  Sometimes they brought along the receipt book and she would write out a receipt.  Other times she wrote the receipt when she went back to Shenzhen.  She was always paid in cash, and had never paid any tax nor deposited the money into the bank.  All in all, I find that the receipts gave an impression of less than an arm’s length transaction.

38. The plaintiff produced the consultation record of the Shanghai Jing An District Centre Hospital.  They showed she attended the Orthopaedic Department on, inter alia, 1 March and 31 May 2000, whereas her travel record showed that she was in Hong Kong.

39. The plaintiff also claimed medical expenses at $1,500 per month for treatment in Shanghai for 33 months from January 2000 to September 2002.  However, the record failed to show such monthly treatment.

40. In the Revised Schedule of Damages dated 18 September 2003, the plaintiff claimed future loss of earnings of $2,857,142.86 and loss of earning capacity of $142,857.14, on the basis that but for the accident, she would be able to perform her job as consultant.  In the Further Revised Schedule of Damages dated 5 August 2004, the claim for future loss of earnings was withdrawn, and loss of earning capacity was amended to $315,000.  It is noted that in the medical report dated 11 October 2000 of Dr Yip Wai Chuen of Queen Elizabeth Hospital, Dr Yip stated that as at 15 March 2000, the plaintiff was capable of walking unaided with satisfactory range of motion at her left ankle, and she defaulted further follow up after that date.  And at the time of Dr Lau report in April 2001, the plaintiff had returned to her pre-accident job.  When cross-examined as to why there was a drop in the claim for future loss of earnings, the plaintiff said after discussing with her lawyers, it is fairer to “open” the claim at $1 million odd.  Miss Lee likened the plaintiff’s attitude in litigation as an opening gambit.  In any case, the plaintiff still maintains now that due to her ankle injury, she can no longer work as a garment consultant. 

41. It is disturbing to note the discrepancies in the plaintiff’s description of the condition of the floor as well as the way she fell, and the lack of early complaint of the slippery substance.  Her insistence that her condition makes it impossible for her to resume work as a garment consultant is also contrary to medical evidence and common sense.  In all the circumstances, I do not accept the plaintiff as a credible witness.  I also do not accept the evidence of Mr Tan.  Although I do not find positively the state of the plaintiff’s sobriety or otherwise, the fact that she had consumed alcohol could perhaps made the accident possible even without the slippery substance.  I hold that the plaintiff has failed to prove on a balance of probabilities the cause of the accident.

42. Miss Lee also submitted that even if the plaintiff were to prove there were sticky and slippery substance on the floor, the accident could have been avoided if she had told the bar tender to clean up the oily patch when she stepped on it for the first time when she went to the toilet.  The plaintiff’s reaction was that it was no big deal and she did not pay attention to it was totally unreasonable. 

43. On the other hand, Mr Fong submitted that if the occupier did not have in place an adequate system of cleaning, it could not rely on the visitor’s knowledge to absolve itself from liability.  At most, the visitor would be liable for contributory negligence in reducing the occupier’s liability.

44. I do not propose to deal with this point as it is unnecessary for me to do so, and also that the liability of the defendant is fact sensitive.  I have to make further findings on whether the plaintiff had really forgotten about the slippery patch on her way back, and whether Ms Gomez had come out from behind the bar counter to wait for the plaintiff and Mr Tan, the last two customers to leave so that she could close up, and hence in a position to clean up the floor.

Quantum

45. As I have found against the plaintiff on liability, it is not necessary for me to deal with quantum.

Costs

46.  I make an order nisi that the plaintiff do pay the costs of the action to the defendant, to be made absolute in 14 days.