SO KAI WING v. SINO ESTATES MANAGEMENT LTD

DCPI 3443/2021

[2024] HKDC 1829

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 3443 OF 2021

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BETWEEN

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JUDGMENT

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INTRODUCTION

1.  This is an action for damages for personal injuries resulting from a slip and fall accident.

2.  At the material time, the plaintiff was 35 years old. He was a resident of a flat in Block 22 at Phase 3, Dynasty View, Classical Gardens, 11 Ma Wo Road, Tai Po (“Block 22”). He was in the business of selling frozen and live seafood. He operated two shops selling seafood and purchased his seafood from wet markets. He also sold and delivered seafood to restaurants.

3.  The defendant was and is the manager of Block 22.

4.  On 21 November 2018, at around 5:10 am, the plaintiff walked out from the lift to the lift lobby on G/F of Block 22 (the “Lift Lobby”) towards the entrance of Block 22 (the “Entrance”).

5.  The plaintiff soon realised that he had forgotten to bring his car key and had to return home to get them. At around 5:13 am, he re-entered the Lift Lobby from the Entrance and headed towards the lift. As the plaintiff was about to make a turn towards the lift, he fell on the ground (the “Accident”). He immediately got up and entered the lift.

6.  At around 5:17 am, the plaintiff walked out from the lift into the Lift Lobby again. He inspected the floor of the Lift Lobby and went to the control centre of Dynasty View to report the Accident to the security guard on duty.

7.  On 22 November 2018, the plaintiff’s pain aggravated and he went to the Emergency Medicine Centre of Union Hospital (the “Hospital”) for medical treatment.

8.  On 23 November 2018, the plaintiff was admitted to the Orthopaedic & Traumatology Department (“O&T”) of the Hospital. The Magnetic Resonance Imaging (“MRI”) scan performed on 23 November 2019 showed that the plaintiff suffered from prolapse intervertebral disc at L5/S1 region with compression at left S1 nerve root. The plaintiff was discharged on the next day.

9.  On 8 December 2018, the plaintiff was admitted to O&T of the Hospital for a surgery. He was discharged on 10 December 2018.

10.  In his Amended Revised Statement of Damages, the plaintiff claims that as a result of the Accident he suffers permanent disabilities including persistent back and leg pain, as well as numbness and weakness of back and leg.

11.  As a result of the Accident, the plaintiff was granted sick leave for the period from 22 November 2018 to 28 September 2019 intermittently, with a total of 80 days.

12.  The issues at trial were:

(1) how the Accident happened, and in particular whether it was caused by wet floor in the Lift Lobby;

(2) whether the defendant as occupier of the Lift Lobby breached the common duty of care owed to the plaintiff;

(3) assuming the defendant was liable, whether the plaintiff was contributorily negligent; and

(4) what is the quantum of damages.

13.  That the plaintiff slipped and fell in the Lift Lobby is not in dispute. But there is a dispute as to whether it was caused by wet floor.

ISSUES ON LIABILITY

14.  The plaintiff relies on the causes of action of negligence and breach of common duty of care under the Occupiers Liability Ordinance (Cap 314) (the “Ordinance”). There is no material distinction between the two for present purposes.

15.  Section 3(2) of the Ordinance provides that:

“The common duty of care is a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there.”

16.  The issues in dispute are:

(1) whether the floor of the Lift Lobby was wet;

(2) whether the plaintiff’s fall was caused by the wetness complained of.

17.  If the plaintiff fell because of the alleged wetness, then the court will have to decide whether the defendant was negligent and breached its duty to the plaintiff.

THE FACTUAL WITNESSES

The plaintiff’s witness

18.  The plaintiff himself gave evidence at the trial. As mentioned above, the plaintiff was in the seafood business. As part of his job duties, he had to go to wet markets to purchase seafood. That was why he would wear water boots to work to protect himself from slipping and falling.

19.  At the material time of the Accident, he was wearing a pair of water boots.

20.  For reasons explained below, I find that the plaintiff has been lying all along about his injuries sustained from the Accident.

21.  In his witness statement, the plaintiff alleged that on 22 November 2018, ie the day after the Accident, he started experiencing more pain. The pain on his back radiated to his left leg, and there was numbness in his left leg. He therefore did not go to work on that day and rested at home. In the evening on 22 November 2018, his back pain became very serious, and he went to the Emergency Medicine Centre of the Hospital. The doctor prescribed some painkillers for him and arranged for him to be admitted into the Hospital on 23 November 2018 for further treatment.

22.  However, the contemporaneous documents reveal that:

(1) According to the Out-patient Progress Notes taken by Dr Lee Ka Lok on 22 November 2018, the plaintiff experienced lower back pain on his right side, which radiated to his right lower limb. Dr Lee’s diagnosis was “Accident: right hip contusion, back sprain” (emphasis added).

(2) Dr Lee Ka Lok issued a Medical Certificate dated 22 November 2018 to the plaintiff, stating the same diagnosis of “Accident: right hip contusion, back sprain” (emphasis added) and recommending seven days of sick leave.

(3) Dr Lee Ka Lok also arranged for the plaintiff to be admitted into the Hospital on the next day. On the Admission Arrangement note prepared by Dr Lee Ka Lok on 22 November 2018 evening, the reason for admission was stated to be “R [right] hip & body injury” (emphasis added).

(4) On 23 November 2018, when the plaintiff arrived at the Hospital, he was first assessed by a nurse. According to the Nursing Assessment, the diagnosis was “Right hip contusion, back sprain”, and the chief complaint was stated to be “… Rt [right] side LBP [lower back pain], radiate to Rt LL [right lower limb]…” (emphases added).

(5) According to the Inpatient Progress and Treatment note dated 23 November 2018 prepared by Dr Lee On Bong (“Dr Lee”), a consultant in O&T in the Hospital, the plaintiff had “back pain after slip & fall”, “right sciatica” (emphasis added), “numbness”, and “no weakness”.

(6) According to the Thoracic / Lumbar Spine Assessment performed by the physiotherapist on 23 November 2018, the plaintiff had “right posterior thigh numbness”, “S/F [slip and fall] in residence lobby public area on 21/11/2918” and “pain radiate to Rt LL [right lower limb] after” (emphases added). The diagram on the said Thoracic / Lumbar Spine Assessment indicated that the plaintiff experienced pain on the right lower back and right leg.

(7) According to the Physiotherapy Progress Notes dated 23 November 2018, after the fall, “pain radiate to Rt [right] lower limb” (emphasis added) and treatment was performed on the right lower back area.

23.  It is clear from the abovementioned contemporaneous medical records that at no time on 22 and 23 November 2018, ie immediately after the Accident, did the plaintiff complain to anyone in the Hospital that his left leg, left lower back or left side of his body was painful or numb.

24.  By reason of the above, I find that the plaintiff was dishonest when he stated in his witness statement that his left leg was painful and numb after the Accident.

25.  I find it totally unbelievable that he would complain to the doctors and other medical practitioners in the Hospital that his right leg and right lower back was painful when it was in fact his left leg and left lower back that were painful and/or numb as alleged.

26.  During cross-examination, the plaintiff initially admitted that his witness statement was incorrect and that there was no pain nor numbness in his left leg. He then tried to explain the obvious inconsistencies between his witness statement and the medical records by saying that his pain at his waist radiated to both his left leg and right leg, but he could not tell which leg was numb. He also said that the main focus was that his waist was painful, an allegation which is not reflected in the contemporaneous medical records, and that he did not remember telling the doctors that there were problems with his legs even though both legs were painful.

27.  This is totally incredible because if his left leg was painful and/or numb, he must have told the medical practitioners about it; otherwise there would be no reason for him to go to the Emergency Medicine Centre of the Hospital to seek help from the doctor in the first place.

The defendant’s witness

28.  The defendant called Mr Fung, who is a Senior Building Supervisor of the defendant. He did not witness the Accident. According to his evidence, security guards would patrol the Lift Lobby four times every night, at respectively 8 to 9 pm, 11 pm to 12 am, 1 to 2 am and 5 to 6 am. Such arrangement was in place on 20 November 2018 night to 21 November 2018 early morning. This is consistent with and is supported by the patrolling record provided by the defendant. I accept such evidence.

29.  It is Mr Fung’s evidence that on 21 November 2018 at around 1:24 am, a security guard Mr Shek patrolled the Lift Lobby. This is supported by the CCTV recording. Mr Shek did not report about discovering any water or wetness in the Lift Lobby.

30.  As to the question of whether after the Accident the plaintiff had informed Mr Shek about there being water in the Lift Lobby. Mr Fung said in his witness statement that the plaintiff did inform Mr Shek about it. However, during cross-examination, Mr Fung said that the plaintiff did not inform Mr Shek about the water. During re-examination, Mr Fung said that his witness statement, which was prepared closer in time to the Accident, was probably right.

31.  Although there are inconsistencies in Mr Fung’s answers above, there is no dispute that after the plaintiff got up after his fall, he saw water on the floor. There is also no dispute that the plaintiff himself did not see any water on the floor before he fell down.

32.  I find that Mr Fung had tried his best to answer the questions, but he was unfocused at times and therefore gave confusing answers. Notwithstanding the above, I understand it is his evidence that he did not know whether there was water on the floor in the Lift Lobby immediately before the plaintiff’s fall, and he also did not know whether the plaintiff fell because of the alleged water on the floor.

33.  This accords with common sense because Mr Fung was not at the scene. He would not be able to answer the question of what had caused the plaintiff’s fall, or whether there was water in the Lift Lobby before the plaintiff’s fall. The first person who went to the scene other than the plaintiff was Mr Shek, who unfortunately had passed away.

34.  Mr Shek only arrived six minutes after the Accident. Even Mr Shek would not be able to tell whether there was water on the floor six minutes ago, ie immediately before the plaintiff fell.

35.  By reason of the above, in particular the fact that there is no dispute that the plaintiff saw water on the floor after he had got up, I find that whether after the Accident the plaintiff had informed Mr Shek about there being water in the Lift Lobby is neither here nor there.

The evidence

36.  At the time of the Accident, the weather was good and there was no rain.

37.  There is no dispute that the Accident occurred. It is the plaintiff’s case that he slipped and fell towards his right side, and there was water mark on his pants in the right buttock area.

38.  Although the quality of the CCTV recording of the Lift Lobby is not high, one can see people walking into and out of the Lift Lobby and the plaintiff falling down in the Lift Lobby. One could also see eight other people and Mr Shek walking into or out of the lift in the Lift Lobby.

39.  That said, it is not possible to tell from the CCTV recording whether there was water in the Lift Lobby.

40.  Whilst it is not in dispute that after he got up from his fall, the plaintiff saw some water mark on the floor of the Lift Lobby and that there was also water stain on his pants, there is no evidence that there was any wetness on the floor of the Lift Lobby before the plaintiff stepped on it and fell.

41.  None of the other eight people seen in the Lift Lobby in the CCTV recording nor Mr Shek reported seeing any water in the Lift Lobby before the Accident.

42.  The plaintiff himself also did not notice any water on the floor of the Lift Lobby when he left the Lift Lobby for the first time at around 5:10 am.

43.  After the plaintiff came out of the lift at around 5:17 am, he complained to Mr Shek. Mr Shek then went to the Lift Lobby at around 5:19 am. According to the defendant’s evidence, Mr Shek had a mop with him, and he found a small accumulation of water in the Lift Lobby, but he did not know when it started appearing in the Lift Lobby.

44.  All that Mr Shek could tell was whether there was water when he arrived. In this regard, there is no dispute that he saw water on the floor of the Lift Lobby when he arrived.

45.  But that does not mean that there was water on the floor immediately before the plaintiff fell. In fact, no one could give evidence on that. Even the plaintiff was not saying that he saw any water on the floor before he slipped.

46.  The plaintiff’s witness statement simply said that after the Accident, he saw some water on the floor and some water marks on his pants.

47.  All in all, it cannot be disputed that there is no evidence as to whether the water on the floor of the Lift Lobby was there immediately before the plaintiff fell.

48.  The fact that there was a small accumulation of water at 5:19 am does not amount to evidence that there was water in the Lift Lobby before the plaintiff fell at around 5:13 am, nor does it amount to evidence that the plaintiff slipped and fell because of the water on the floor complained of in this action.

49.  The defendant’s case is that the water found on the floor of the Lift Lobby after the plaintiff fell could have come from the plaintiff’s water boots.

50.  Whilst the plaintiff alleged that he had four pairs of water boots for him to change and that his water boots were dry at the material time, there is no independent evidence of the same.

51.  It is the plaintiff’s evidence that his helper would wash his water boots when he returned home from work. Even if the outside of the boots was dry, it is possible that the inside of the boots was not completely dry, and there may still be some water inside the water boots, and such water could have fallen out of the water boots when the plaintiff fell on the floor. That may be why the plaintiff and Mr Shek found a small amount of water on the floor of the Lift Lobby after the Accident.

52.  That said, I do not need to make a finding as to why there was water on the floor of the Lift Lobby after the Accident.

53.  The plaintiff suggested that there may be water leakage in the Lift Lobby causing such wetness, but this is a mere speculation without a shred of evidence in support.

54.  Although there was a sign saying “beware of wet floor” in front of a lift that was shut down at midnight every day (known as lift no 38) to save electricity, I accept Mr Fung’s evidence that the sign was just there to inform people that that lift was not in use. It does not mean that the floor was actually wet.

55.  The plaintiff complained that the defendant did not produce the incident report in relation to the Accident mentioned by Mr Fung during his cross-examination and invited the court to draw adverse inference against the defendant.

56.  However, as mentioned above, the defendant does not dispute that there was water on the floor after the Accident. The incident report could not contain information as to whether the water was there immediately before the Accident. Indeed, no one could. It is unclear what adverse inference can be drawn against the defendant for failing to produce the incident report.

57.  To conclude, there is no reliable evidence that the Lift Lobby was wet before the Accident, in particular right before the plaintiff fell. I cannot infer there was wetness or water as alleged simply from the fact that a slip and fall accident happened or that there was some water on the floor after the Accident.

58.  I find that on the balance of probabilities the plaintiff has failed to prove that he slipped and fell because of the wetness complained of in this action.

59.  In other words, applying the principles in Ward v Tesco Stores Ltd [1976] 1 WLR 810 as explained by Sakhrani J in So Wang Chun v Rainforce Ltd & ors [2008] 3 HKC 196, at §§15-17, the plaintiff has failed to discharge his burden of proof to show, on a balance of probabilities, that there has occurred an event which was unusual and which, in the absence of explanation, was more consistent with fault on the part of the defendant than the absence of fault.

60.  The plaintiff’s claim therefore fails.

The defendant’s system

61.  Even if I had found that the Lift Lobby was wet and the alleged wetness had caused the plaintiff to slip and fall, that would not mean that the defendant was necessarily negligent or has breached its duty.

62.  It is trite that the occupier’s duty is one “to take such care as… is reasonable to see that the visitor will be reasonably safe”. The occupier does not guarantee the safety of his visitors and is not liable if he has in place a system to protect them against the type of damage in question that satisfies the standard of care expected of him: see Yau Tsz Hin v Broadway Theatre Company Limited (unrep, HCPI 674/2010, 3 April 2013), §§58-59.

63.  First, I accept the defendant’s evidence on its patrolling system mentioned in paragraph 28 above. This is supported by the patrolling record and CCTV recording.

64.  Secondly, it is not disputed that at the material time there was a blue plastic mat placed outside the Entrance. It served the purpose of absorbing wetness from the bottom of the shoes of people going into the Lift Lobby.

65.  Thirdly, according to Mr Fung, and I accept that, there are cleaners providing cleaning services to Block 22, including the Lift Lobby, at 7 am to 10 pm every day.

66.  After the cleaners finish their duties, the defendant’s staff and security guards would be responsible for patrolling as mentioned in paragraph 28 above and, if necessary, cleaning.

67.  Indeed, as mentioned above, after the plaintiff complained to the security guard, ie Mr Shek, after he came out of the lift at around 5:17 am, Mr Shek immediately came to the Lift Lobby at around 5:19 am. As can be seen from the CCTV recording, Mr Shek diligently and repeatedly mopped the floor a few times and used a floor dryer to dry the floor. He also touched the floor with his hand and appeared to be checking if the floor was completely dry.

68.  Although Mr Fung mentioned during cross-examination about certain random patrols by the four security guards on night duty, there is no evidence in support of the same, and I do not find that there were such random patrols at the material time.

69.  Notwithstanding the above, all in all, I find that the defendant has sufficiently discharged its duty as occupier to take reasonable care to see that the Lift Lobby were kept reasonably safe and free from wetness or water. I do not consider it reasonable to expect the defendant to station a cleaning worker in the Lift Lobby to be ready to mop off any water on the floor.

70.  By reason of the above, even if I had found that there was wetness in the Lift Lobby causing the plaintiff to slip and fall, I would not have held that the defendant was in breach of its duty to the plaintiff.

CONTRIBUTORY NEGLIGENCE

71.  In case I am held to be wrong on the issue of liability, I set out below my views on contributory negligence and quantum of damages.

72.  In his first witness statement, the plaintiff admitted that he was in a hurry to return to his home to fetch his car key. However, in his supplemental witness statement, he changed his evidence and said that he was not in a hurry and was not walking fast. During cross-examination and re-examination, the plaintiff did not deny that he was in the rush.

73.  I find it more likely than not that he was in a hurry and was walking hurriedly when he re-entered the Lift Lobby at 5:13 am as he stated in his first witness statement so that he could get his car key and go to work.

74.  Further, as mentioned above, eight other people and a security guard passed by the Lift Lobby prior to the Accident without reporting seeing any water. The plaintiff himself also walked out of the Lift Lobby without noticing any water on the floor before the Accident.

75.  After the Accident, the plaintiff was seen walking around the Lift Lobby for a few seconds to check the floor condition. Had the amount of water accumulated on the floor been large, first, other people as well as the plaintiff when he walked out of the lift at 5:10 am would likely have seen and reported it. Secondly, the plaintiff would also have seen it right away at around 5:17 am without having to walk around the Lift Lobby for few seconds.

76.  In the premises, even if, contrary to my finding, there was water on the floor immediately before the Accident as alleged, the amount would have been small.

77.  I have also considered the authorities cited by defendant’s counsel in this regard. Having regard to relative blameworthiness and causal potency, I would have held that the plaintiff had a 30% share in the responsibility for the damage and reduced the damages accordingly.

QUANTUM

78.  The parties are in dispute as to the amount of damages to which the plaintiff would be entitled if liability was established. I shall set out below the injuries suffered by the plaintiff and the treatment received. I shall then deal with the various categories of damages in turn.

Injuries and treatment

79.  As mentioned above, on 22 November 2018, the plaintiff’s pain aggravated and he went to the Emergency Medicine Centre of the Hospital for medical treatment.

80.  On 23 November 2018, the plaintiff was admitted to the Hospital. All along on 22 and 23 November 2018, the plaintiff only complained about pain in his right hip, right lower back and right leg. I refer to the contemporaneous medical records set out in paragraph 22 above.

81.  It is worth noting that Dr Lee’s medical report dated 3 May 2021, ie almost two and a half years after the Accident, stated that after the Accident the plaintiff “noticed back pain and left leg pain. There was numbness over left leg” (emphases added).

82.  Dr Lee is not a witness at the trial of these proceedings. I find it more likely than not that he had made a mistake in his report dated 3 May 2021 when he stated that the plaintiff’s left leg was painful and numb after the Accident. Such statement is inconsistent with all the contemporaneous medical notes between 22 and 23 November 2018 which recorded consistently that it was the right side of the plaintiff’s body, in particular, right hip, right lower back and right leg, that was painful and/or numb.

83.  Insofar as there is any inconsistencies between Dr Lee’s medical report dated 3 May 2021 and the contemporaneous medical notes between 22 November 2018 and 23 November 2018, I will rely on the latter.

84.  The plaintiff’s counsel relied on paragraph 2 of Dr Lee’s medical report dated 3 May 2021 which stated that “the straight leg raise test was 60 degree [sic] for left side” and submitted that there was indeed a problem in the left leg.

85.  Whilst there may be a problem with the left leg of the plaintiff, this is consistent with the result of the MRI scan mentioned above showing prolapse intervertebral disc with compression on the left side.

86.  It remains my finding, as supported by the contemporaneous medical records, that the plaintiff had never complained about any pain or numbness on the left leg or left side of the body on 22 and 23 November 2018.

87.  As mentioned above, on 23 November 2018 the plaintiff underwent a MRI scan of his lumbar spine.

88.  On 24 November 2018, Dr Lee explained the MRI report to the plaintiff. According to the MRI report, the plaintiff had “posterior annular tear at L5/S1” and “disc prolapse at L5/S1 with impingement of left S1 descending nerve root”.

89.  Dr Lee advised the plaintiff that he could go home after undergoing physiotherapy, which advice was not followed by the plaintiff. It is the plaintiff’s evidence that he wanted to go home to rest.

90.  According to the Discharge Letter/Summary Sheet dated 24 November 2018, the plaintiff’s “back pain decreased”.

91.  On 3 December 2018, the plaintiff went to see Dr Lee for follow-up. According to the Specialist Progress Notes prepared by Dr Lee on 3 December 2018, the plaintiff had left sciatica but suffered no numbness nor weakness. This is the first time when there was any complaint by the plaintiff in relation to the left side of his body, and it only happened after the plaintiff found out that he had prolapse intervertebral disc on the left side. This was eleven days after the Accident.

92.  It is the plaintiff’s case that the pain on his left leg was caused by the Accident. Given that in the two days after the Accident, the plaintiff had consistently complained about pain on his right leg and right side of his body only, I find it incredible and unbelievable that on the eleventh day after the Accident, all of a sudden, there would be pain on his left leg allegedly caused by the Accident.

93.  By reason of the above, I find it more likely than not that the Accident only caused right hip contusion and sprained back of the plaintiff, which radiated to the plaintiff’s right leg. This is consistent with:

(1) the contemporaneous medical records and various medical certificates issued by the doctors referred to in paragraph 22 above;

(2) the plaintiff’s counsel’s admission during closing submissions that the photo captured from the CCTV recording at the time of the Accident shows that the plaintiff fell on his right side; and

(3) the plaintiff’s evidence that after he fell, he noticed water stain on his pants in the right buttock area.

94.  I further find that it is more likely than not that the pain complained of in the left leg and the prolapse intervertebral disc at L5/S1 region with compression at left S1 nerve root were not caused by the Accident.

95.  After the follow-up session on 3 December 2018, Dr Lee arranged for the plaintiff to undergo an operation on 8 December 2018. The plaintiff was discharged on 10 December 2018.

96.  After the discharge, the plaintiff went back to Dr Lee for follow up on respectively 19 December 2018 and 9 January 2019. According to Dr Lee’s Specialist Progress Notes dated 9 January 2019, the plaintiff’s “leg pain decreased”. Dr Lee referred the plaintiff to undergo physiotherapy, which advice was again not followed by the plaintiff.

97.  The last time the plaintiff saw Dr Lee was on 20 September 2019 when he complained of increased pain after carrying his baby (according to the plaintiff’s evidence, the pain complained of was back pain), but there was “no leg pain and no numbness”. Again, Dr Lee referred the plaintiff to undergo physiotherapy, which repeated advice was similarly not followed by the plaintiff.

98.  Although the plaintiff stated in paragraph 12 of his witness statement dated 11 January 2023 that he still had various symptoms including lower back pain which radiates to his left leg, he admitted during cross-examination that:

(1) He did not see any doctor or physiotherapist or undergo any treatment between 20 September 2019 (when he last saw Dr Lee in relation to his back pain) and January 2023 when he prepared his witness statement in these proceedings; and

(2) He is now recovered, and in fact he has been recovering in the past year.

99.  The parties rely on the Joint Medical Report dated 17 November 2022 (the “Joint Medical Report”) prepared for the purposes of these proceedings by Dr Henry Ho (for the defendant) and Dr Peter Ko (for the plaintiff) following a joint examination of the plaintiff on 24 October 2022. Both doctors were not called upon to give evidence at the trial.

100.  As accepted by the plaintiff, causation is a matter for the judge, not the doctors. In Lee Kin Kai & anor v Ocean Tramping Co Ltd t/a Ocean Tramping Workshop [1991] 2 HKLR 232, the Court of Appeal held, at 235I, that “… causation is essentially a matter for the judge not the doctors. It is a matter upon which the judge will no doubt be assisted by the medical evidence but he is not dictated to by it”.

101.  The Court of Appeal further held, at 236B, that “a judge when considering causation is not only entitled, he is bound, to use his common sense, to approach the question in the same way as would a juror.”

102.  According to the Joint Medical Report, the plaintiff complained about pain in his low back region and left lower paralumbar muscle area. He said he could not sit, drive or walk for more than 15 to 20 minutes without resting or stretching. However, he had sat through 25 minutes during the interview.

103.  The plaintiff also complained about on and off left posterior lower limb radiating numbness especially on exacerbation of his low back pain. He said he was taking painkillers two to three times per week.

104.  The doctors agreed that the sick leave period received by the plaintiff was appropriate and acceptable.

105.  Dr Ko opined that the Accident had resulted in “low back pain and left lower limb radiating pain and numbness, PID L5/S1 with disc prolapse L5/S1 impingement left S1 descending nerve root”.

106.  According to Dr Ho, “the MRI findings were compatible with the injury mechanism described by the patient…”

107.  In the Joint Medical Report, Dr Ho and Dr Ko referred to Dr Lee’s medical report dated 3 May 2021 referred to above, which stated that the plaintiff had complained of back pain and left leg pain after the Accident.

108.  Although the contemporaneous medical notes made on 22 and 23 November 2018 referred to above were made available to the two doctors when they prepared the Joint Medical Report, it is unclear whether Dr Ho and Dr Ko simply referred to Dr Lee’s medical report dated 3 May 2021, or had actually studied the contemporaneous medical notes made on 22 to 23 November 2018, when they stated that the plaintiff had complained of back pain and left leg pain after the Accident and gave their opinion mentioned above.

109.  As mentioned above, insofar as there is any inconsistencies between Dr Lee’s medical report dated 3 May 2021 and the contemporaneous medical notes made on 22 and 23 November 2018, I will rely on the latter. The same applies to any inconsistencies between the summary of Dr Lee’s medical report contained in paragraph 10.2 of the Joint Medical Report and the contemporaneous medical notes.

110.  By reason of the above, notwithstanding what is stated in the Joint Medical Report, and consistently with the contemporaneous medical notes made on 22 and 23 November 2018, I find that the Accident had only caused right hip contusion and sprained back of the plaintiff, which radiated to the plaintiff’s right leg.

111.  According to the Joint Medical Report, the prognosis was fairly satisfactory (according to Dr Ko) and good (according to Dr Ho).

112.  Whilst according to Dr Ho and Dr Ko, the plaintiff may continue experience mild residual back pain, as mentioned above, the plaintiff himself admitted that he has already recovered from the Accident and no longer experiences any pain.

Pain, suffering and loss of amenities (“PSLA”)

113.  Both doctors opined in the Joint Medical Report that the plaintiff should have no significant problem in managing his daily activities and caring for himself. Both doctors also agree that the plaintiff would be able to resume his pre-accident work as a self-employed seafood sales.

114.  As mentioned above, the plaintiff has in fact started recovering in the past year and considers himself recovered at the time of the trial.

115.  The plaintiff claims PSLA in the amount of HK$450,000. The defendant answers with HK$100,000.

116.  The plaintiff relies on the following authorities.

117.  In Luk Yee Lam v Orasa Livasiri (unrep, HCPI 394/2002, 27 November 2003), the plaintiff suffered the whiplash-type injury to his neck in a traffic accident, which caused damage to the disc at the C5/6 level with residual pain in the neck and back, numbness in the right arm and left wrist, weakness in his hands, some numbness and pain in his right leg and his feet and reduced sexual desire caused by the pain. The reasonable sick leave period was held to be around 17 months. PSLA was awarded at HK$400,000.

118.  In Tang Chi Keung v Mung Ka Wai [2018] HKCFI 1685, the plaintiff’s injuries were found to come below the “serious injury” category, ie injuries which leave a disability which mars general activities and enjoyment of life but allows reasonable mobility to the victim. PSLA was awarded at HK$400,000 (which was then reduced to HK$300,000 with a 25% discount for his pre-existing condition).

119.  The defendant relies on the following authorities.

120.  In Bin-Yamin v Chuen Ho Construction & Engineering Company & anor [2022] HKDC 747, the plaintiff suffered from soft tissue back contusion in an industrial accident. The court found that he should be able to resume working in no more than four months, but allowed an additional two months for him to find a job. PSLA was awarded at HK$80,000.

121.  In Tsue Lai Kee v Nanyang Commercial Bank, Limited [2021] HKDC 1415, the plaintiff suffered from head contusion, neck sprain, left elbow and left thumb contusion / sprain and back contusion in a slip and fall incident. There was tenderness at the lower back and occipital region. He was treated at the accident and emergency department of the hospital and was discharged on the same day. He had recovered well from his injuries. The reasonable sick leave period was held to be six months. PSLA was awarded at HK$100,000.

122.  In Yip Mau Kei v Wong Kam Tim (unrep, DCPI 1905/2013, 10 February 2015), the plaintiff suffered from soft tissue injury in his back from a traffic accident, with residual back symptoms. The sick leave period of 94 days was agreed, and the plaintiff resumed working after the sick leave period. PSLA was assessed at HK$90,000.

123.  In Tamang Udas v Global Sunny Engineering Limited & anor (unrep, HCPI 732/2011, 7 January 2013), the plaintiff suffered serious low back injuries from a construction accident. He was admitted to the hospital. The medical examination revealed that his pain radiated to left buttock and left thigh, and there was numbness over his left leg and foot. There was also local tenderness over lumbar spine and mild decrease of power over left lower limb. He was discharged after four to five days. He could not resume his pre-accident job as a general labourer. Around 8.5 months of sick leave was granted. PSLA was assessed at HK$100,000 (which was then reduced to HK$56,000 with a 30% discount for his pre-existing condition and a further 20% for contributory negligence).

124.  In So Chi Keung v Hospital Authority [2021] HKDC 1246, the plaintiff sprained his back at work and was admitted to the hospital on the day. He was found to be able to resume his pre-accident job, but with some reduction in work capacity and efficiency. The reasonable sick leave period was held to be eight months. PSLA was assessed at HK$130,000 (which was then reduced to HK$39,000 with a 70% discount for his pre-existing back condition).

125.  As explained above, I find that the Accident had caused right hip contusion and sprained back of the plaintiff, which radiated to the plaintiff’s right leg. The injuries sustained by the respective plaintiffs in the authorities cited by the plaintiff’s counsel are therefore much more serious.

126.  Considering, inter alia, the injuries sustained by the plaintiff, the sick leave period, the fact that he did not consider that any physiotherapy was required, and that he has fully recovered, I accept that a PSLA award in the sum of HK$100,000 is appropriate.

Pre-existing condition

127.  Given that I find that the prolapse intervertebral disc at L5/S1 region with compression at left S1 nerve root was not caused by the Accident, the discussion and disagreement in the Joint Medical Report in relation to whether the annular tear of the L5/S1 disc was pre-existing due to degeneration is irrelevant.

128.  I make no deduction for any pre-existing condition.

Special damages

129.  The plaintiff claims special damages in the amount of HK$458,101.80. Within this head the disputed items are:

(1) delivery expenses in the total amount of HK$319,500;

(2) medical expenses in the total amount of HK$128,601.80;

(3) travelling expenses in the amount of HK$5,000; and

(4) tonic food in the amount of $5,000.

(1) Delivery expenses

130.  The plaintiff claims that he was responsible for driving a manual gear 5.5-ton lorry for collecting and delivering seafood for his seafood business prior to the Accident. Since he could not drive it after the Accident, he had to pay another company for delivery services.

131.  He claims that the delivery expenses were HK$4,500 per day for 3 round trips to and fro the wet markets, and he had engaged such delivery services for a total of 71 days, incurring HK$319,500 in total.

132.  Although the delivery expenses were challenged by the defendant’s counsel during cross-examination, such expenses were supported by receipts and I accept that they have been incurred.

133.  That said, I agree with the defendant’s counsel that, firstly, it is the plaintiff’s evidence that even before the Accident, he would take one to two days off work each week, during which he would have engaged the same delivery services for his business. Thus, he should not be allowed to claim delivery expenses for the whole period of 71 days on the basis that he would have been driving the lorry every single day by himself in that period.

134.  Secondly, and more importantly, the delivery expenses are not his personal travelling expenses caused by the Accident. They in effect represent a claim for an increased operating cost of the plaintiff’s business, resulting in a loss of profits.

135.  The plaintiff however did not provide any evidence of his business’s account or any other evidence showing his business’s loss of profit during the relevant period. In fact, there is no evidence as to whether the increased operating cost had actually resulted in a loss of profits. See: Chan Tak Yim v Wong Tit Kin & anor (unrep, CACV 495/2001, 28 September 2001), §§42, 44. I find that the plaintiff has failed to prove any loss of profits.

136.  I therefore do not make any award in relation to the delivery expenses.

(2) Medical expenses

137.  The plaintiff claims HK$128,601.80 as medical expenses. The defendant disputes this item on the following basis:

(1) There is no medical need to stay in a semi-private room.

(2) Meal charges and companion bed charges (the latter only applies to the second admission on 8 to 10 December 2018) should not be recoverable.

138.  I agree with the defendant that the 30% increase in medical expenses due to the plaintiff’s personal decision to stay in semi-private room instead of standard room simply because, according to the plaintiff’s evidence, he wanted to have better rest, should not be allowed. In this regard, the plaintiff has a duty to mitigate his loss.

139.  Given my finding that the prolapse intervertebral disc at L5/S1 region with compression at left S1 nerve root was not caused by the Accident, the plaintiff should not be liable for the medical expenses incurred subsequent to 24 November 2018, including those for follow-ups and those incurred during the second hospital admission on 8 to 10 December 2018, for curing the said problem.

140.  In respect of the plaintiff’s hospitalization on 23 to 24 November 2018, I agree with the defendant that meal charges, ie HK$(265 + 53) = HK$318 in respect of the plaintiff’s hospitalization on 23 to 24 November 2018, were not caused by the Accident. The plaintiff would have taken meals regardless of the Accident.

141.  By reason of the above, I only allow the following medical expenses, totaling HK$10,796:

(1) Consultation fee with Dr Lee Ka Lok on 22 November 2018, ie HK$524; and

(2) Hospitalization fee for 23 to 24 November 2018 in a standard room, ie HK$(13,671 - 318) / 130% = HK$10,272.

(3) Travelling expenses

142.  Travelling expenses in the sum of only HK$791 is supported by receipts. The plaintiff agrees that each trip to the Hospital should costs slightly more than HK$100. I accept such evidence.

143.  In light of my finding that the prolapse intervertebral disc at L5/S1 region with compression at left S1 nerve root was not caused by the Accident, I will only award travelling expenses in the total sum of HK$500 for the four trips to and fro the Hospital between 22 and 24 November 2018.

(4) Tonic food

144.  The plaintiff is unable to produce a single receipt or any contemporaneous written record to support his claim for tonic food.

145.  In Lau Koon Loi v Wong Wai Sang (unrep, HCPI 445/2007, 28 June 2011), Suffiad J awarded an amount of HK$10,000 for tonic food even though no receipt had been produced.

146.  Considering the severity of the plaintiff’s injuries and recovery process, I find that the amount of HK$5,000 claimed by the plaintiff is excessive.

147.  In light of the above, the defendant’s offer of HK$100,000 is more than sufficient to represent special damages in this case, and I so award.

148.  The parties have agreed to give credit to a sum of HK$98,847.45 being compensation the plaintiff received from his personal medical insurance.

Summary on Quantum

149.  The total award should be HK$41,152.55, being the sum of the following, reduced by 30% on account of the plaintiff’s contributory negligence:

	HK$
(1) PSLA	100,000.00
(2) Special damages	100,000.00
Sub-total:	200,000.00
Less: Contributory negligence: 30%	(60,000.00)
Less: Compensation received from the plaintiff’s personal medical insurance	(98,847.45)
Total:	41,152.55

Interest

150.  I find that the plaintiff would be entitled to interest at 2% pa on the PSLA award from the date of writ, ie 11 November 2021, to judgment and on special damages at half judgment rate from the date of the Accident to the date of judgment.

CONCLUSION

151.  In view of my decision on the question of liability, the action is dismissed.

152.  I make an order nisi that the plaintiff do pay the defendant its costs of the action. Any application to vary the costs order nisi should be made within 14 days from the date of judgment.