CHEUNG WAI MEI v. THE EXCELSIOR HOTEL (HONG KONG) LTD t/a THE EXCELSIOR

HCPI 1048/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1048 OF 1998

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J U D G M E N T

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Liability

1. The 1 October 1997 was the first National Day since the return of Hong Kong to China. The celebrations included fireworks in the evening. The weather was fine and dry. It was a busy time for hotels particularly for those which afforded a view across the harbour of the firework display. The Excelsior Hotel in Causeway Bay was no exception.

2. That evening, probably between 10:00 and 10:30 p.m., although she puts it earlier at about 9:30 p.m., the Plaintiff, Madam Cheung Wai Mei, mounted the marble steps of the side entrance to the hotel foyer or lobby, crossed part of the landing, and slipped, pitching forward to strike the glass side door, and then recoiled backwards, falling down the steps.

3. She said she was conscious of one of her feet slipping on the marble surface as if water was present. She undoubtedly struck the glass door with her face - a lipstick mark was left on the surface at a level approximately equivalent to her height. On the landing level was a coconut or hessian carpet which covered almost all the area leaving a margin of about six inches all round.

4. No one saw her fall but eventually she was seen and helped by a lady passer-by or hotel patron. In due course hotel staff came to her assistance. Undoubtedly she was shocked a little, in some pain, and unable to move for some time. An ambulance was sent for and she was taken to hospital accompanied by her friend with whom she was to meet up at the hotel.

5. Precisely what caused her to slip and fall remains, to some extent, a mystery. She did not see any liquid or water but then, after she had fallen, she was in no condition to go searching around and inspecting the area. That was a matter to be left to others. One item of her evidence, on which she was not challenged, was her comment to the effect that she was aware that her dress was wet. I regard this as a siginficant feature. She said that she pointed that out to her friend when she arrived. Her friend, Madam Qi did not give evidence.

6. The reaction of the hotel staff to this incident requires close consideration. One of the Security Officers on duty that night, Mr Yip-Fai, said that after being summoned and told what happened he was asked to accompany the Plaintiff to hospital. He said he checked the area where she was believed to have fallen, around the area of the door and the carpet. There was nothing on the carpet, nothing out of place as far as he could see and no water was present. It transpired that he stayed with the Plaintiff all the time at the street level and to the right of the lion, set back somewhat from the pavement. His "check" was nothing more than a cursory glance from this position. He did not in fact go over to the area concerned. His evidence was of no consequence on this material aspect.

7. Some of his other evidence was confused and in the event I found it of no assistance. Another former Security Officer of the Excelsior, Mr Wong Chi-Wai, said he was the first member of staff to arrive following the Plaintiff's fall. He found her sitting on a chair outside the hotel. Someone else must have arrived before him for the Plaintiff to be seated on a chair. According to him when he asked her what happened she said she lost her footing when listening to her mobile phone. The Plaintiff denies this. No mobile phone was found in the area. Later the Plaintiff produced her mobile phone from her handbag to contact the friend she was due to meet in the hotel. Had she dropped the phone when she fell someone would have recalled returning it to her to enable a phone call to be made later.

8. Although one frequently sees pedestrians in Hong Kong using mobile phones in the street and entering buildings to the apparent disregard for their own safety and other people's convenience, I am satisfied that this reference to her using a mobile phone so as to explain a collision with the door and a fall is a contrived version and I reject it. Mr Wong also said that he checked the area before the fireworks display and after the Plaintiff's fall to see if there was any substance which could cause her to slip. He said the Plaintiff made no mention of water and he found no substance of any kind on the carpet or steps. His check he added, included the side and main entrances. Given the perfunctory nature of the check made by his colleague Mr Yip-Fai, and other purported steps taken by staff, I would not be prepared to place any reliance upon his version at all. The incident report makes no mention of a number of matters, in particular there is no reference to the Plaintiff saying she was using a mobile phone at the time she fell.

9. On duty that night as the manager was Mr Michael Yau. When he saw the Plaintiff he recalled her saying that she slipped because of a pool of water. As a consequence, he said, he checked the marble floor, staircase and carpet but found no water. He was responsible for the incident report in the Register. That too bears close examination. The entry reads:

"Instructed by conc/Steve and mentioned there was a lady slipped down (as she kicked the carpet mat) on the staircase at our hotel side-entrance. Her knees were a bit bleeding and she mentioned her head was impacted to the marble floor near the marble lion."

The words in brackets were added later. The underlined words have been written over some other writing which has been tippexed out.

10. There is no mention in this record of the Plaintiff saying that a pool of water caused her fall, that she is supposed to have told the security man that she was using her mobile phone when she fell, or that Mr Yau checked the area for any trace of water or other liquid or substance. All of these would have been highly material matters as far as any responsibility of the hotel for the Plaintiff's fall is concerned, and are so fundamental to the proper record of such an incident that their omission is at least surprising. I have regretfully concluded that Mr Yau did not examine the area and perhaps the reason is that he was dismissive of the suggestion by the Plaintiff of the presence of water. He could not make an entry relating to her explanation for her fall without putting in that he had searched the area because that would have been expected of him. He may well have delegated that to someone else, or thought that he had. The omission of any mention of the Plaintiff having the mobile phone and walking into the door is explicable by the fact that this is a later concocted story.

11. The last area of evidence comes from the hotel housekeeper, Ms Charlene Liu, a forthright lady who struck one as knowledgeable and efficient. She, however, was not on duty on that night. She described the staffing of the hotel in the relevant area: a public area supervisor working in two shifts, the second running from 3:30 p.m. until 11:30 p.m. There was no evidence given by this person.

12. Because of the special occasion of this evening there were two cleaners on duty; one inside the lobby, and one outside, each on continual patrol of her area. We have not heard from either of them in this trial.

13. The method of cleaning and/or drying areas was mop, suction machine and cloth. If the coconut mat was wet the liquid would have to be absorbed by a cloth. It is not difficult to realise that a cloth is not likely to be able to absorb all such liquid and that the mat would remain damp. It would have to be dried out, cordoned off or replaced by a dry mat. Wetness could be picked up on a shoe and walked onto the marble surface. It was practice to place a warning sign on the area of marble floor affected. Using a cloth to mop an area of carpet is not an adequate system.

14. On a night such as this she expected there to be more to-ing and fro-ing of guests. There would be an increased risk of rubbish being dropped. One can reasonably assume that that may include liquid. Therefore the onus would be upon the hotel to be prepared to deal quickly with any material dropped which constituted a hazard for visitors. This is particularly the case in view of the marble floor. A small amount of liquid renders many marble floor surfaces treacherous. This marble surface tends to be somewhat slippery naturally to the leather shoe. Having visited that scene in the past and more recently, the surface is one on which the foot slides readily, and this Plaintiff was wearing leather-soled shoes of a sensible shape and heel.

15. I am satisfied that she did slip either on the wet marble surface, - it may only have been a small area - or her shoe was made wet by contact with a wet area of the coconut mat and she slipped on the transfer of the foot and shoe to the marble surface. I think the latter is more likely as this would account for her dress being wet when she fell backwards onto the mat on the landing, before falling down the stairs.

16. The evidence of Mr Yau, and the two security men, and the complete absence of evidence from the supervisor, cleaners and acting housekeeper on the night in question, indicate to me an inadequate system of cleaning and drying on the night in question. It was clearly an occasion when the risk of discarded liquid falling on the matting or marble tiles was greater and special measures were called for as the housekeeper Ms Liu indicated. The nature of the system actually in operation that night is unknown. None of the material witnesses to it has been called, and this confirms my reservations about the evidence of Mr Yau and the Security Officers about the inspection. Any inspection was perfunctory at best. The housekeeper made all the inquiries one would expect of an efficient housekeeper, as she is, the next day when she came on duty and heard of the incident. It seems that all she was provided with was the hotel incident report with its now apparent odd features. In my view the Plaintiff has established her case against the Defendant and is entitled to judgment on full liability.

QUANTUM

Pain, Suffering and Loss of amenity

17. This 42 years old lady, she was 40 at the time of the accident, was eventually taken to the Queen Mary Hospital, at which she had been treated on earlier occasions in circumstances which I shall deal with a little later.

18. The details of the discharge record are important. She was complaining of neck pain radiating to right upper limb and lower limb (rt. arm and leg); back pain with no radiation. There was a dislocation of her right ring finger. On examination she was tender over her vertex and occiput (crown and back of head). There was no definite haematoma. There was diffuse pain in the neck with the range of movement reduced to two-thirds. Sensation to pin-prick and touch was reduced from C2 level downwards on the right side especially in C7, C8, and T1; and L5/S1. There was also diffuse pain in the lumbar region. Her painful nasal bridge was X-rayed but no fracture was seen, and she was referred to the ENT department. She also complained of diplopia with some on-and-off tinnitus. When she was discharged five days later her treatment was essentially painkillers, a neck collar and physiotherapy.

19. I have no doubt that her experience caused much pain and discomfort and was an experience which rendered her far more aware of pre-existing degenerative change which had taken place in her back over a long period of time. Understandably the Defendants have argued that her present state is part of an inevitable continuum independent of this traumatic experience. We have as a consequence considered in detail her medical history since an accident she suffered in 1976 when she sustained a whiplash injury to her neck in a traffic accident and a lumbar injury as well.

20. She had an operation on her lumbar/sacral spine in 1980. The Surgeon, Mr Chalmers, had carried it out with some reluctance. His detailed notes, an impeccable example, to all surgeons who are genuinely concerned that all who come after them, of what and why and how and when, give a good indication of the benefit derived by the Plaintiff from this surgical intervention. In the event she went for about fifteen years without any real problem.

21. In September 1995 she began to experience some neck and back pain and an MRI scan was carried out. We do not have that report but her own evidence was to the effect that between 1982 and 1995 she was able to carry out active work in her parents' restaurant in the United Kingdom having recovered well from the surgery. Apparently she strained her back moving a number of boxes. By that time she had returned to Hong Kong and to alleviate the problem she had some physiotherapy and treatment from bonesetters. In 1997, as a consequence of some extensive painting in her flat she developed or rather experienced increased neck and back pain. It is likely that there had been a degree of settlement of the problem since 1995 before this sudden exacerbation. That, we have been reminded by the medical experts in this case, is the normal course.

22. She received treatment in the Queen Mary Hospital for this condition over about twelve days. The medical history taken by the hospital is not entirely correct. For example, it was not a discectomy she underwent in 1980/81. Nonetheless the discharge record on 22 April 1997, some five months before her fall, is interesting:

"Physical Examination: No neck or back spasm, generalised tenderness over neck, most severe over C5/6. Slight decrease in flexion of [Cervical] Spine. No lower limb neurology straight leg raising full. X-ray (shows) osteoarthritic changes over C5-6."

When discharged home on 22 April 1997 she was to be followed up in 6 weeks at the Duchess of Kent Hospital and home traction was to be provided.

23. The picture is of a lady with a vulnerable cervical spine and degenerative change at that level. She continued with physiotherapy and treatment from bonesetters but was able to return to work as a part-time beautician and then from August of 1997 for a bank as a receptionist. She had aided her recovery by exercising in Tom Turk's gymnasium. She also worked as a beautician there to pay the fees.

24. The consequences of the fall were that she was unable to return to work and her employment was terminated. She has not been able to work since save for a training period for one month selling life assurance, and as a sales lady in a shop for three days in May and September 1998 respectively. Pain and discomfort put an end to these jobs.

25. I have heard evidence from two distinguished and experienced neurologists: Dr Falli Shroff of Hong Kong and Professor Swash from England who was given evidence in Hong Kong's Courts before.

26. Dr Shroff regarded her headaches and dizzy spells as indicative of post-concussional syndrome. Her main complaint was low back pain. The MRI scans showed considerable evidence of degenerative change in the lumbar spine. He regarded these changes as part of the ageing process. As he points out, trauma will accelerate and intensify such degenerative changes. Although she had had the operation in 1980 on her lower spine it was in the sacral region, rather than the lumbar. He thinks she does now suffer from sciatic nerve involvement hence the numbness at the back of the thigh. The operation in the sacral region is unlikely to have caused any problems in sitting, walking etc. That she has such problems is evident enough. I have been able to observe her on many occasions, having to adjust her sitting position, her posture and the position of her legs. She has also many times supported her head with her hands in different positions. I readily recognise the indication of lumbar and cervical discomfort and weakness. Dr Shroff regards her as genuine and I do not think any of the movements and adjustments which she has performed are other than spontaneous reactions to her clinical condition.

27. At the time of his report of March 1998 he thought she would be able to resume secretarial work within 4 to 6 months. As is known she tried in May 1998, and again in September, though not secretarial work, and was unable to sustain it. His current view is that she may not be able to fulfil the requirements of secretarial work - long periods of sitting and concentration would be difficult for her. When she has a reccurrence of symptoms she will need physiotherapy for two to three months, perhaps twice a year for three times a week. Her medication should continue but it needs to be monitored.

28. Professor Swash takes a more robust view of her condition and considers that there is a strong psychogenic element. He and Dr Shroff differ on the question of post-concussional syndrome though I think Professor Swash is taking a more circumscribed view of the condition. Loss of consciousness is not a pre-requisite in its current connotation. He accepts that she would have had neck pain after the fall with exacerbation of her neck and back condition but her current state he attributes to cervical spondylosis not to the fall. In other words her current symptoms are attributable to her pre-accident state not to the traumatic effect of the fall and its consequent injuries. By now, he says, that she should have made a full recovery.

29. Her main problem is not the cervical degenerative change however but in her lumbar region and I deduce that Professor Swash has concentrated too much on the state of the cervical spine. I doubt if he has been able to observe her sitting movements and posture to the extent that I have. I do not regard that as entirely psychogenic though there may well be a psychogenic element in view of the post-concussional syndrome, her lumbar discomfort, her intermittent neck pain and her inability to work as a consequence of all these.

30. Professor Swash also considered that the surgery in 1980 with her earlier history of back pain which led to that, is responsible essentially for her current neurological problems - together of course with the degenerative process in the lumbar region. However in the intervening 17 years there was no history of problems or discomfort in the lumbar region. Her 1995 and early 1997 trouble was confined to the cervical region, although there is some note of low back pain without neurological symptoms.

31. The emphasis since the fall on 1 October has been, from all the evidence, on the lumbar region. That undoubtedly was disturbed by the fall. She probably had a direct injury to it in view of the nature of her fall. Two years have elapsed and she is showing all the signs of a condition which is persistently limiting and uncomfortable. I cannot envisage her doing a secretarial job involving much sitting and working posture. She may be able at some future stage, she is only in her early 40's, to carry out some executive or supervisory work but much will depend on her general sense of well-being.

32. It is reasonable to assume that, in the light of the condition of her cervical and lumbar spine, she is likely to experience a number of occasions when a stumble, sudden braking of a vehicle in which she is travelling, or simply an awkward movement will trigger symptoms whose origins are in her pre-October 1st 1997 physical state. I accept that her current symptoms are the direct result of her fall, and as to the general picture of her physical problems and the effect of the fall I accept the evidence of Dr Falli Shroff. It is almost impossible to predict when other factors intervene so as to override the sequelae of that event of two years ago. I also accept however that areas of the spine which have pre-existing degenerative charge, but have been subject to a severe trauma short of fracture, and this was not a simple bones of soft tissue injuries, rarely revert to their pre-trauma state. Allowing for some degree of recovery when her general sense of well-being has improved the proper figure for general damages, pain and suffering is $250,000.

Loss of Earnings (Pre-trial)

33. But for the fall I think she would have held her employment with the bank in any event for some indeterminate period. Calculating net loss until the end of December 1999, and applying the uncontested figures in the Amended Statement of Damages, the figure is

$27,650	(to 31 December 1997)
$143,325	(to 31 December 1998)
$143,325	(to 31 December 1999)
$314,300

34. I do not accept that her wages would have increased by 10%. Most likely they would have been held at the 1998 level.

35. From that sum is to be deducted her modest earnings from the two short periods of employment in 1998 of $10,700. The net figure under this head is $303,600.

Future loss of earnings

36. The Plaintiff's solicitors contend for a multiplier of 12. This is unrealistic. It does not reflect the difficulties which this lady would have in the future in coping with the bank job regardless of the consequences of the accident but more importantly I think she will obtain some employment particularly as the economic situation in the Region improves. Inevitably this assessment must be arbitrary but I think a multiplier of about 4 would be reasonable. At the yearly figure of $143,325 this will produce $573,300. I think there is likely to be some modest wage increase in the private sector and I would round this figure up to $600,000 to allow for that.

Loss of earning capacity [Smith v. Manchester Corporation]

37. There is no sustainable claim under this head for the reasons implicit in my approach to the future loss of earnings claim.

Hospitalisation

38. Although she has been re-imbursed a sum of $4,813 from her own insurance cover she is entitled to claim this sum. She will have paid a premium against such an event and any accounting is a matter for her and her insurance company.

Out-Patient Treatment

39. The total of this in the Statement is $10,500. This sum appears to be understated. That is the fault of the Plaintiff's solicitors. I allow $10,500.

Physiotheraphy

40. This is claimed in the sum of $3,000. There is evidence in support. I will allow $3,000.

Bonesetters fees

41. These are claimed in the sum of $18,000. The tabulation of receipts shows a sum substantially in excess of that. The fact that this aspect of the claim has not been pleaded properly is not the fault of the Defendant. I will allow what is pleaded viz. $18,000.

Housekeeper sources

42. I accept that she needed domestic help. Her evidence was that she hired a maid for $1,600 monthly until June 1998 when she left for England. In view of her state I accept that that was a reasonable and necessary expense. I will allow eight months. This aspect is allowed at $1,600 x 8 = $12,800.

Travelling expenses

43. These seem reasonable sums and are allowed at $1,500 and ￡GBP 107 (@$12.5 to ￡) ($1,337.50) - Total allowed $2,737.

Tonic food

44. This is not fully supported by receipts but in any event was purchased before this accident - nothing is allowed.

Personal property

45. Her dress was damaged and has not been repaired and worn since. I accept that it will not be. It was purchased in Paris, I have been told, for $2,000. I will allow that sum.

46. The loss of shoes was claimed at $1,500. Not only are the shoes undamaged but have been in use ever since. There can be no claim for them.

Physiotherapy and Message

47. This is claimed at $10,000 though it is now suggested that the expenditure essentially in the United Kingdom was over ￡1,800 (Sterling) I will allow this at half the sum claimed i.e. $5,000. The Plaintiff's evidence is that she did not keep all the receipts. In view of the amount involved, her solicitors ought to have prepared her claim more carefully.

Health Club

48. I cannot allow this as a claimable expense. I consider anyone with the Plaintiff's history of back or neck trouble should enjoy such a facility as an effective therapy.

Future medical expenses

49. There is evidence from Dr Shroff of the likely need for this. It is claimed as $5,000. It is almost certainly likely to be more. But the pleaded sum is what the Defendants are entitled to argue, is the limit and I accept that argument. In yet another respect the Plaintiff's claim has not been properly prepared or pleaded.

50. There will be judgment for the Plaintiff for the total sum of $1,217,550 with interest at the appropriate rates for the relevant periods. The parties' solicitors are to agree this figure for interest. The Plaintiff will also have her costs of this action to be taxed if not agreed.

NOTE

51. A number of aspects of the Plaintiff's claim, as appears from the evidence, were either inadequately or badly pleaded, or not pleaded at all. As a consequence the likelihood is that this Plaintiff has failed to prove items of loss genuinely sustained by her. The Statement of Damages is a document which I have indicated earlier, was wholly inadequate. Defendants are entitled to know the case they are expected to meet and plead to in the necessary detail. The Court cannot be expected to compensate for the deficiencies of a Plaintiff's solicitors in the preparation and presentation of a case when they expect to be paid for professional services. If they seek to charge their client for any act or omission in the preparation of this case for which understandably the Defendants should not be expected to pay, they ought to consider their own professional obligations rather than charge their client.