LEUNG YUN KEUNG v. CITYBASE PROPERTY MANAGEMENT LTD

   HCPI 457/2008

   IN THE HIGH COURT OF THE

   HONG KONG SPECIAL ADMINISTRATIVE REGION

   COURT OF FIRST INSTANCE

   PERSONAL INJURIES ACTION NO. 457 OF 2008

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BETWEEN

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J U D G M E N T

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1.  This is the defendant’s appeal against Master Kwan’s decision dismissing the defendant’s application to set aside a regular judgment obtained by the plaintiff after the defendant failed to file the endorsement of service within time.

2.  The case was very ably argued by Mr Jonathan Wong, counsel for the defendant. But in spite of that I am afraid the case is strongly in favour of the plaintiff who is represented by an equally able counsel Miss Elizabeth Cheung.

3.  There are two issues involved in this case. The first one is for the defendant to explain why it did not file the acknowledgment of service within time. Apparently that point is already gone by the time Mr Wong is on his feet; he frankly and honestly told me that he could not take the defendant’s case any further than what he had submitted.

4.  The point is simply this : the defendant was aware even before the writ was served that the insurers for the defendant’s independent contractor said categorically through their solicitors that they would not be responsible for this accident which happened on 12 April 2006. The insurers claimed that the insurance policy did not cover such an accident. Thus it is not open to the defendant to say that they believed the insurers would take up the defence after the writ was served on them. In fact the insurers was served or had been served with the writ before the defendant. I was told by counsel for the plaintiff that they were adopting the practice of a motor accident case.

5.  That being the case, the defendant has no explanation at all why they did not handle the defence expeditiously or at least within the prescribed time. According to the submission of Mr Wong, they just had a nebulous belief that since there were negotiations among the adjusters, insurers and the plaintiff in the past, they had mistakenly believed that the insurers would take up the defence. But as I have said, the defendant knew clearly the insurers would not take up the defence because they thought the policy did not cover such an accident.

6.  The second point is, assuming the defendant has explained why it had not filed the acknowledgment of service within time or in any event, the question is whether there is a real prospect of success with credible evidence from the defence. Potentially credible evidence means credible evidence with some degree of conviction (per Godfrey JA in Premier Fashion Wears Ltd v Chow Cheuk Man (Li Hing Chung, third party) [1994] 1 HKC 213 at 220). Here Mr Wong has strongly submitted that there is at least a real prospect of success by the defendant in establishing certain degree of contributory negligence. He submitted that there would at least be 10% contributory negligence on the part of the plaintiff.

7.  The circumstances of this case is that on 12 April 2006, shortly or at the time the plaintiff finished watching the 6:30 p.m. News, he started to move from his flat at 25A Block 6 of an estate called Villa Esplanada in Tsing Yi Island to the Club House where the swimming pool was. He then changed into his swimming gear, removed his glasses and put on his goggles, which according to him would accommodate his shortsightedness. He said he could see clearly with that goggles on. He then walked through a corridor in the male changing room to the end where he had to turn left.

8.  The photographs at pages 48 and 49 of the bundle show that the plaintiff would then have to walk through a corridor paced with a coarse red carpet with a wading pool at the end. It was placed there for the purpose of cleaning a patron’s feet before entering into the pool area. The wading pool was depressed such that a patron would have to step down and then step up again after passing through it. After leaving the wading pool, the patron would step on an area with two blue strips which were supposed to provide fiction. Immediately after the two steps, there was a rolling shutter gate. The rolling shutter gate was made up of metal rods, which were arranged in a net structure that resulted in a number of large rectangular spaces. Therefore a patron could easily see through the gate even if it was closed. At the bottom of the gate there was a thick, solid metal bar.

9.  Although the plaintiff could not recall if a mat was placed in front of the wading pool at the time of the accident, he remembered that the floor was always wet and slippery. The plaintiff said he was looking at the floor of the wading pool to avoid slipping on the floor while he was crossing the wading pool. When he was about to leave the wading pool by moving one of his feet onto the area with blue strips, he banged his head against the horizontal metal bar with his goggles on. At the time of accident the rolling shutter gate was half-closed. The injury turned out to be very serious. His retina in the right eye was detached and he is now blind in the right eye.

10.  The question now is : whether the defendant, being the occupier of the Club House including the swimming pool area, is negligent or in breach of statutory duty or otherwise liable under the Occupier’s Liability Ordinance, Cap.314.

11.  When this case was heard before Master Kwan, the defendant was represented by another counsel, Mr Kelvin Li who had conceded before Master Kwan on two material facts. I was told by Miss Cheung for the plaintiff that Master Kwan asked for the timing put down by the lifeguards in their statements. The record at page 53 is the record of the lifeguard who attended the plaintiff, that is another Mr Leung called梁嘉浩. He wrote down “12-4-06” for the date, and “1857” for the time in the Rescue/Accident case report. Now to me this is the time of reporting but apparently he is relying on that time as the time of the accident, because in the Rescue Action under paragraph 3 subparagraph (d) he said : “在2006 年4 月12 日18:57 分”. I then asked for the original of this report because there were certain corrections made by Mr Leung at the outset under the column of time. He crossed out certain things and he initialled it and put the time as 18:57, but the original was not available in court.

12.  Without granting an adjournment I just went on with the hearing. Mr Leung also said time of call of the ambulance under paragraph 5 is 19:02, subparagraph (b) time of arrival of the ambulance is 19:10 and time of departure is 19:33.

13.  There was another lifeguard called Mr Wong(王國英). He said in the Chinese statement : 接報時間 : 18:59, 到場時間 : 19:00, and the reporting of the lifeguard Mr Leung to him was : 18:59. No wonder Master Kwan asked for the reference to this time and whether they were referring to any clock within the swimming pool area or the standard time of the observatory, or whether anybody has a certain watch which had been synchronized. What are all these times?

14.  In answer to that, Mr Kevin Li of counsel for the defendant replied that firstly,during each interval, i.e. during each interval of closure of the swimming pool, the outdoor swimming pool would have its rolling gate closed to prevent any swimmer from entering into the same. That was, of course, Mr Yip’s 1^st affirmation at paragraph 5 for the defence. Mr Li then supplied the missing part on instructions and said before Master Kwan that the sole signal to patrons of whether the outdoor swimming pool was open was whether or not the rolling shutter gate itself was open. Therefore the defence relied on the fact that the rolling shutter gate itself was not open because the swimming pool was closed. That would be the indication that the outdoor swimming pool was not open, irrespective of the time, i.e. it may be seconds after 19:00 hours or it may be one or two minutes afterwards.

15.  It should be noted that there is not much evidence that points to the time of the accident. The ending time for the 18:30 news can be quite easily ascertained by asking the relevant channel, which probably has its time synchronised with the Hong Kong observatory. However there is still the uncertainty of how long the plaintiff took to walk to the swimming pool, change into his swimming gear, and arrive at the place of accident. Because of the concession, the defendant’s case did not rely on the time of accident. This is because even if the accident occurred before 7 p.m., the defendant asserted that the plaintiff should know the swimming pool was closed, from the position of the metal gate, which I found to be only half‑opened but not “closed”, as Mr Yip suggested.

16.  The second concession is that Mr Li on instructions conceded that the shutter was “around up to the shoulder or head of the plaintiff”. In other words it was not completely closed or substantially closed. It was not as suggested by Mr Yip for the defendant, who had put in an affirmation, and said that his information was the gate was substantially lower than 1.65 m. Mr Yip is at least not credible in this respect as far as his information is concerned. This is because if it were substantially lower than 1.65 m, then why would the plaintiff bang on the horizontal metal bar. If he did not bang into the horizontal bar but just bang against the net structure, why should he had such serious injury resulting in detached retina of his eye ball?

17.  Miss Cheung for the plaintiff submitted that by leaving the gate half open, it was an inherent danger. She submitted that as any swimmer would have to walk through the corridor, turn left, step on the red carpet, walk through the wading pool and step up again on the two steps, he would have to take extra care on the floor condition whether they were slippery, where the steps into the wading pool was, where the wading pool was, and the two steps. The fact that the gate was immediately after the second step as shown in the top photograph at page 49, means that there was a chance that a swimmer would still be looking at the steps and would not have noticed the gate was not fully opened. By leaving it at the height of the shoulder or head level of the plaintiff, the plaintiff as the case happened would have banged on the horizontal metal bar even though he was walking at a normal walking pace. In other words the practice of the lifeguard of leaving the gate half-opened or I should say half-closed at the closing time would create an inherent danger to any swimmer walking into the swimming pool area. The importance of whether it is an inherent danger is because the defendant had contracted P&A Engineering Ltd to manage the swimming pool area and provide swimming pool services at the clubhouse. The defendant therefore has a duty of monitoring the independent contractor in this respect.

18.  By reasons of the aforesaid matters, the defendant has no real prospect of success in establishing on contributory negligence on the part of the plaintiff.

19.  There is one incidental matter and that is the plaintiff has always been asking P&A Engineering Ltd and the defendant for the contract for service between the two of them. There were different contracts but the effective period of all of them was before the date of the accident. Miss Cheung accordingly submitted that there was no contract for service on the date of the accident between the two of them. Mr Wong told me from the bar table there was in fact an extension of time according to the provisions of the contract in writing but he could not explain why his client did not inform the other side or exhibiting the same in the affirmation. Whatever the reason was, since the half-opened gate constituted an inherent danger, the defendant still has the duty of monitoring the swimming pool.

20.  A further submission of Miss Cheung for the plaintiff is the plaintiff would have suffered certain degree of prejudice because the plaintiff had always been considering of suing P&A Engineering Ltd and this is the reason why they have been asking for the contract for service between the occupier and the independent contactor. Neither of them had given the plaintiff a satisfactory answer. In Mr Yip’s affirmation he only exhibited an expired contract. By now the 3 years limitation period has gone and therefore the plaintiff’s action against the independent contractor is now barred by the Limitation Ordinance.

21.  When I was reading through the correspondences which were not put in chronological order before me, I got an impression that the defendant, independent contractor, insurance adjusters and insurers were taking the plaintiff round and round in their enquiry. The bare fact was the plaintiff’s enquiry was not satisfactorily answered by way of letter and discovery by these parties and the plaintiff was told different things by different parties.

Conclusion

22.  In the end I come to the firm view that the defendant has no real prospect of success in establishing contributory negligence by way of adducing potentially credible evidence with some degree of conviction. Accordingly this appeal is dismissed with costs to the plaintiff, to be taxed, if not agreed, on gross sum assessment basis before a master.