FRANCES CHRISTINE KEELING v. THE HEBE HAVEN YACHT CLUB LTD

DCPI 579/2004

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO. 579 OF 2004

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JUDGMENT

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1. In this action, the Plaintiff claims against the Defendant for loss and damage suffered as a result of the negligent tender operation supplied by the Defendant to its members and visitors to the Defendant’s Club premises.  The Plaintiff further claims that the accident was caused by breach of statutory duty of the Defendant and its employees, servants or agents for which the Defendant is also vicariously liable.  In his final submission, Mr. Burke, solicitor acting for the Plaintiff conceded that the Merchant Shipping (Safety) (Means of Access) Regulations (Cap. 369 S.L.A.H.) do not apply to pleasure crafts as defined in the Regulations, a category the tender service by sampan belongs to.

Background

2. At 9 a.m. 1^st January 2000, the Plaintiff, Mrs. Keeling, went to a picnic with her family and friends organized by the Defendant which carried on business as Hebe Haven Yacht Club (“the Club”).  They were guests of a member of the Club, Mr. & Mrs. Braim.  After the picnic at about 4 p.m., she was invited to visit Mr. & Mrs. Braim’s new yacht ‘the Narnia of Hong Kong’ (“the Narnia”) at the Hebe Haven (Pak Sha Wan) marina at a mooring supplied and managed by the Club.

3. At around 6 p.m., Mrs. Keeling, her husband Mr. Keeling, her daughter and her daughter’s boyfriend together with two friends visiting from the U.K. intended to leave the Narnia and return to the Club premises.  Upon being summonsed by Mr. & Mrs. Braim, Mr. Cheng Kam Hei, the operator of the tender, sampan No. 6 (“the sampan”), came up to the stern of the Narnia to pick up passengers from the Narnia.  While descending the steps of the ladder at the stern of the Narnia to board the sampan, the Plaintiff fell into the sea injuring her right knee.  

The Incident

The Plaintiff’s Case

4. Mrs. Keeling claimed that she descended from the Narnia to the sampan after her husband Mr. Keeling boarded the sampan.  She said there was still daylight and the sampan’s starboard side was ‘tight’ against the stern of the Narnia.  She had both her hands on the ladder and she descended the Narnia with her back to the sampan.  She turned, putting her right foot onto the seat on the starboard side of the sampan with her left foot and left hand still on the ladder, at this juncture, the sampan started to drift away from the Narnia.  As the Narnia and the sampan drifted further apart, she fell into the sea.  

5. Mrs. Keeling claimed that there was another passenger on board the sampan when it came up to the Narnia.  The passenger was later known to her as Mr. Mason.  She alleged that Mr. Mason did not offer her any assistance until after she fell into the water.  She claimed that Mr. Mason was sitting on the bench seat on the starboard side of the sampan when it was coming up to the Narnia.  He had moved to the port side when she began to board the sampan.  She claimed also that the sampan operator, Mr. Cheng, had left his seat at the cockpit and moved up the sampan, and as the sampan was not tied up to the Narnia the sampan drifted away from the Narnia.

The Defendant’s Case

6. The sampan operator employed by the Club, Mr. Cheng Kam Hei, gave evidence on the Defendant’s behalf.  It was his evidence that, at 6 p.m. on 1 January 2000, he picked up Mr. Mason from his yacht at a mooring in the marina of Hebe Haven, he saw Mrs. Dawn Braim hailing his sampan from the Narnia.  He then sailed towards the stern of the Narnia and manoeuvred the sampan across the stern of the Narnia for passengers to board the sampan.  He remained at the cockpit and observed that Mrs. Keeling was the first person who boarded from the Narnia.  He said he saw Mrs. Keeling had descended onto the sampan with both feet on the deck of the Narnia, but both her hands remained on the ladder of the Narnia and she failed to let go of the ladder.  He said she continued to lean towards the Narnia which had the effect of pushing the sampan away from the Narnia.  As a result, she fell into the marina. 

7. Mr. Cheng claimed that while Mrs. Keeling was descending from the Narnia, Mr. Mason was sitting on the starboard side of the sampan.  He stood up and held onto the ladder of the Narnia to keep the two boats together.  However, under cross-examination at the trial, he admitted that Mr. Mason had remained sitting on the seat on the starboard side of the sampan when he held on to the ladder of the Narnia from the sampan. 

8. According to Mr. Cheng, as Mrs. Keeling was pushing against the Narnia, he tried to come up to the bow of the sampan to give assistance and while he was moving up the sampan Mrs. Keeling fell into the sea.  He blamed the parting of the sampan from the Narnia on Mrs. Keeling’s pushing against the Narnia while standing on the bow deck of the sampan. 

Findings

9. There are clear discrepancies between Mrs. Keeling’s evidence and her husband Mr. Keeling’s witness statement.  Mr. Keeling withdrew the evidence in his witness statement that he was holding onto the Narnia onboard the sampan moments before Mrs. Keeling fell into the sea in his evidence in Court.  Since Mr. and Mrs. Keeling’s witness statements were made on 31 December 2002, two years after the incident, under normal circumstances, their recollections of the incident should be clearer at the time of the statement than the day of trial, 3 years 9 months after the incident.  These discrepancies contributed further to the gap in the evidence before me and failed to clarify Mr. Keeling’s role at the time when Mrs. Keeling was boarding the sampan.  The Defence, on the other hand, denied that Mr. Keeling was onboard the sampan at that time at all. 

10. The discrepancy between the witness statement of Mr. Cheng (DW1) of 29 April 2003 and his evidence in Court on the exact position of Mr. Mason in the sampan is remarkable.  According to Mr. Cheng’s evidence in Court, Mr. Mason was sitting on the starboard seating area when Mrs. Keeling descended onto the sampan.  He was holding onto the ladder with one hand while remaining in his seat close to the second fender of the sampan on the starboard side.  In his 29 April 2003 witness statement, Mr. Cheng claimed Mr. Mason who was ‘originally sitting at the front right side of the bow stood up and, held onto the ladder to keep the boats together’.  Was Mr. Mason sitting in the starboard area and holding on to the ladder of the Narnia from his seat or was he on his feet and holding onto the ladder of the Narnia?  Or was he merely sitting on the port side to keep the balance of the sampan as Mrs. Keeling claimed?

11. I have been informed that both parties relied on the documents in the agreed trial bundle.  However, these documents included unsworn statements of witnesses to the accident who were not called at the trial.  The unsworn statement of Mr. Roger Mason in particular was relied on by the Defendant.  The Defence served a hearsay notice to produce his statement at the trial without calling him. 

12. As the Plaintiff did not serve a counter notice to the hearsay notice, I shall consider Mr. Mason’s evidence as evidence from a witness who had not been tested in cross-examination. 

13. In Mr. Mason’s witness statement, he claimed he held the sampan up to the Narnia, but he did not mention whether he was on his feet or in the sitting position when he did so.  Nor did he mention which part of the Narnia he was holding on to. 

14. If, according to Mr. Cheng’s evidence in Court, Mr. Mason was holding on to the Narnia by its ladder at the stern from his seat close to the 2^nd fender on the starboard side, leaning out to keep the sampan close to the Narnia, Mrs. Keeling could not have landed her right foot on the deck of the bow of the sampan.  The lower photograph on p. 518 showed Mr. Mason holding onto the ladder of the Narnia while sitting on the edge of the sampan some 10-12 inches above the seats on the starboard side.  If Mr. Mason was sitting on the seating area rather than the edge of the sampan, Mr. Mason would have to lean out to reach out for the ladder of Narnia.  With the starboard side of the sampan held close to the stern of the Narnia, Mrs. Keeling would either be standing on the starboard edge of the sampan or, as she claimed, on the seat of the sampan.  The top photograph on p. 517 showed the seating area to be some 10-12 inches lower than the deck and the side of the sampan.  While the drop from the ladder of the Narnia to the bow deck of the sampan, as can be seen from the photographs on p. 517, was short, the drop to the seating bench was much longer.  This is particularly so if the sampan was tight against the stern and the ladder of the Narnia would have concealed the second rung of the ladder as shown in the lower photograph on p. 517.  If Mr. Mason was sitting on the edge of the starboard side of the sampan like that shown on the lower photograph on p. 517 and if he was holding onto the deck of the Narnia rather than the ladder, Mrs. Keeling would have been able to land her feet on the bow deck because it would then be much closer to the first rung of the ladder.  However, this was not the evidence of Mr. Cheng, the sampan operator, at the trial. 

15. Given the position of Mr. Mason described by Mr. Cheng at the trial, I am satisfied that from Mr. Mason’s seated position, the starboard side of the sampan was tight against the stern of the Narnia and Mrs. Keeling’s foot/(feet) could only have landed on the seating area 10-12 inches lower than the bow deck of the sampan. 

16. As to whether both of Mrs. Keeling’s feet had landed onto the sampan before the accident took place or was it only her right foot that had landed on the seating area, after having considered all the evidence before me, and on a balance of probability, I found Mrs. Keeling’s version to be more probable.  For someone in her 60’s, who had been in the outdoors since 9 a.m. that day and who was not a regular sailor used to the rocking motions of a sampan and the swell in the marina, it is understandable that she would have been extremely cautious climbing down the ladder of the Narnia.  After she lowered her right foot onto the seating area of the sampan which was 10-12 inches lower than the bow deck of the sampan, she probably felt the sampan to be much less steady than the bigger and heavier Narnia.  It would not be surprising if she tried to steady herself and find her bearings at that stage.  It was due to this hesitation and delay and her reluctance to let go of the ladder of the Narnia, that the sampan, due to the swell in the marina and the weight of Mrs. Keeling who had her right foot on the sampan that caused the sampan to drift from the stern of the Narnia that in turn caused Mrs. Keeling’s subsequent fall into the sea.  As her right foot was already on the starboard seat of the sampan, it is likely that in her effort to keep herself from falling into the sea, with her left hand and foot still on the ladder of the Narnia, her legs were astride the two boats and she lacked the strength to pull the two boats together.  As the sampan drifted further apart from the Narnia, she tore the ligaments on her right knee and fell into the sea. 

17. Mr. Burke, solicitor for the Plaintiff, submitted that the Club should have ensured that the sampan was securely placed next to the Narnia which in his opinion would require the provision of:-

(a)                   assistance on the tender service to help passengers boarding the sampan;

(b)                  a rope to tie up or a boat hook to secure the sampan onto the Narnia when passengers board the sampan;

(c)                  handrails for passengers to hold onto while boarding the sampan.

Further, he submitted that Mr. Cheng, the sampan operator, should not have left the cockpit and should have kept the engine at forward gear so that the sampan would not have drifted from the stern of the Narnia.

18. Miss Molloy, Counsel for the Defendant, dismissed these suggestions to be unreasonable and unworkable.  Mr. Cheng’s evidence was that the sampan service was supplied free of charge to club members and their guests, passengers as a matter of practice would help each other to embark in and disembark from the sampan.  It was suggested that the installation of handrails on a sampan would obstruct passengers boarding the sampan.  Further, using ropes to secure the sampan at the bow and stern to the vessels in the marina to load and unload passengers would not work, for the sampans are smaller and lower than most yachts, consequently passengers would have a long climb down the side of the yachts without taking advantage of the ladder at the stern.  Furthermore, boat hooks are used only in larger pleasure crafts and not in sampans. 

19. I find Mr. Cheng’s explanation to be convincing on the whole.  It is a matter of public knowledge that the use of sampans in Hong Kong are unique, they are used in typhoon shelters and by local yacht clubs to ferry members to and from their yachts in the marina to the club premises.  This is probably because they are cheap to operate and easy to maneuver in the marina.  They are also usually manned by one person at the stern according to Mr. Cheng.  Mr. Burke’s suggestion that there should be handrails and deck-hands to secure and tie the sampans to the yachts to pick up passengers was dismissed as impractical by Mr. Cheng.

20. As no expert evidence on the use of tenders and boat safety had been adduced by the Plaintiff, the only witness at the trial who possessed boating operation experience was Mr. Cheng.  I am not in a position to accept the suggestion of the Plaintiff who adduced no expert evidence on the point as to what appropriate equipments the Defendant should have installed on the sampan.  The evidence of Mr. Cheng, a boat operator since the age of 14 year, was that the service was a safe one and he had never encountered an accident like this one before.  I accept his evidence that such an accident is rare.

21. On the other hand, I find the accident could have been avoided had the Defendant given prior warnings to its members and their guests using the sampan pick-up service at the Club.  Club members and their guests should have been advised to board the sampan from the bow deck, to take care while boarding the sampan and to assist one another.  This is particularly so for older passengers, those who are physically challenged and small children using the sampan service, who may require the assistance of other able-bodied passengers.  It is clear that Mr. Cheng did not warn Mrs. Keeling when she boarded the sampan to watch her steps and to ask for assistance if she was not sure of her steps.  According to Mr. Cheng, Mr. Mason did not hold out his left hand to help Mrs. Keeling into the sampan.  It is incumbent upon the Defendant to warn its members and their guests of the hazards involved.  This may take the form of a notice at the Club premises, on the sampans or warnings from the sampan operators who are not supposed to leave the helm during pick-ups to assist passengers.

22. On the other hand, it is obvious that Mrs. Keeling herself was also to blame for she failed to wait for her husband, an abseiller, who is a fitter, taller and stronger person than herself to give her a hand.  She should have asked him to hold the two boats together before climbing onto the sampan.  She had also failed to check if the seating area of the sampan was safe for her to land her feet before she lowered her right foot into the sampan.  It is possible that after the day long outing, and after a few drinks, Mrs. Keeling was tired and vulnerable to the unfamiliar motions of the rocking sampan.  In which case, there were all the more reason for her to wait for assistance, to board the sampan on its bow deck, to keep a proper look out and to take care before she started to board the sampan.

23. It had been suggested that Mr. Mason was an agent of the Defendant.  Mr. Cheng’s evidence was that passengers often offered help to other passengers into the sampan.  This was said to be a common practice amongst members of the Club, however, Miss Molloy agreed this was not written in the Club by – laws or Club regulations requiring members making use of the free service to give assistance to other members boarding the sampan.  Even if Mr. Mason did hold the two boats together contrary to the evidence of Mrs. Keeling, that would in no way make him an agent of the Defendant, he was merely a volunteer helping a fellow passenger.

24. Mr. Cheng, an employee of the Defendant responsible for ferrying members and their guests to and from the Club to their yachts, was undisputedly a servant of the Defendant.  The Defendant is vicariously liable for the actions of Mr. Cheng.  Mr. Cheng’s evidence was that he had moved up from the cockpit after he saw Mrs. Keeling had difficulties completing the boarding and the two boats were starting to part and that he was amidship on his way to give assistance when she fell into the sea.  Therefore, the parting of the two boats was not caused by his leaving the helm, he left the helm after the boats started to part.  On the other hand, if someone on the Narnia had taken over the rope from the bow of the sampan to secure the sampan and to keep the sampan’s bow close to the Narnia’s stern or if someone from the Narnia had boarded the sampan first and held on to the railings or taken a rope from the Narnia, the accident could have been avoided.  Onboard of the Narnia were able-bodied men who could have helped to secure the sampan to the stern of the Narnia.  It is not known why such steps were not taken by someone from Mrs. Keeling’s party on the Narnia. 

25. I adopt the dictum of Lord Denning in Jones v. Livox Quarries Ltd. [1952] 2QB 608 where he held: “a person is guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable, prudent man, he might be hurt himself, and in his reckoning he must take into account the possibility of others being careless.”

26. In the case of Crockett v. Royal Mail Lines Ltd. [1954] 2 Lloyds Rep. 576, where the Plaintiff who was working on the ship sustained injuries while stepping from the companion ladder to the barge between the ship and the quayside.  He found at the bottom of the ladder a far greater distance than he expected.  He blamed the ship owners for providing a ladder that was 2 feet to 2½ feet from the top of the barge that it was dangerous.  Lynsky J. found that the gap did constitute an unusual danger, and the Plaintiff was equally negligent that having realised there was some danger in stepping off the ladder, he took no step to avoid the danger.

27. The present case is similar to Crockett, in that Mrs. Keeling could see the seating area of the sampan was lower than the bow deck but she nevertheless stepped onto the seating area.  As she was just 5 feet 2 inches tall, her legs of course were much shorter than her husband’s who preceded her and had boarded the sampan carrying the cool-box.  She should have waited for help from her husband or asked for help from the others.

28. For the aforesaid reasons, I find Mrs. Keeling to have contributed 70% to the accident.

Quantum of Damages

Post-accident Condition

29. Mrs. Keeling’s injuries at the 1 January 2000 accident resulted in the following:-

(1)                  grade 3 medial lateral ligament laxity;

(2)                  80% tear of the anterior cruxiate ligament; and

(3)                  minor incomplete tear of the lateral menicus. 

(See report of Dr. Cheng of United Christian Hospital on 24 July 2002 on p. 200C and 201 C and Dr. Chiang’s report on p. 3B).

30. Upon an arthroscopy of the right knee performed on 28 January 2000, open repair of the mid substance of the medial collateral ligament was performed followed by immobilization of the right knee in a hinged knee brace.  Upon discharge on 3 February 2000, she used a working frame with the hinged brace for 12 weeks.  3 months after the operation, the hinge was unlocked to allow for mid range knee movements.

Second Fall

31. During this period, Mrs. Keeling brought all her office work home and visited the physiotherapist 3 times a week.  She was in a wheelchair and used a pair of crutches for 4 months after the ligament repair.  According to Dr. Cheng, she did well and was walking unaided until her second fall on 10 September 2000 at the shower.  She was admitted into UCH between 11 and 15 September 2000.  Afterwards, she was put on another course of bracing for 6 weeks with good functioning outcome.  According to Dr. Chiang’s report and Mrs. Keeling’s evidence, she was put on the brace for 12 weeks and when she went to the United States to attend her daughter’s wedding in November, she was walking with two crutches and a knee brace.

Third Fall

32. While attending her daughter’s wedding in Florida, on the occasion while walking on the beach on 5 November 2000 wearing a full knee brace and one crutch for support, she experienced another episode of her right knee giving way under her.  An MRI was taken on 10 November 2000 at the Parrish Medical Centre in Florida (p. 202C) showed bony contusion of the lateral femoral condoyle with intact anterior cruxiate ligament and menisci.  At the UCH, she was put on a knee brace for another 12 weeks and advised to walk with crutches.  She had physiotherapy treatments and felt better.  Since then, she had been walking on and off with a pair of crutches.  Dr. Cheng in his 10 April 2002 report said that she was able to walk unaided and resumed almost full activities of daily living.  There was only grade 1/3 medial collateral ligament laxity at 30º flexion of the knee and no laxity noted in full extension of the knee.  Dr. Cheng recommended at least 6 months sick leave in view of her right knee injury had this happened to a working person.

Fourth Fall

33. On 17 November 2002, she experienced giving way of her right knee and fell down while stepping on the threshold of the patio door at home using her right leg.  She fractured her ankle as a result and her ankle was put in a brace for 6 weeks.  She attended a series of physiotherapy sessions prior to being examined by Dr. Chiang in August 2003. 

Medical Opinion

34. The jointly appointed medical expert Dr. Chiang’s findings of the physical condition of Mrs. Keeling’s right knee were:-

“…… there was only very mild laxity in the anterior cruciate ligament, and no laxity in the medial collateral ligament.  These findings corresponded well with the findings in the 2 MRIs performed at different stages.  The repair of the medial collateral ligament had likely acquired a good result.  The anterior cruciate ligament was also likely in a satisfactory condition and should not give rise to more significant laxity related problems, for example, rotatory instability.”

35. Dr. Chiang’s opinion was:-

“Generally, giving way feeling after knee injuries could arise from rotatory instability as related to lax ligaments, or some of the tears in the meniscus, in which the torn meniscal flap transiently displaces in between the contact surfaces between the femoral and tibial condyles.  Mild laxity in a single ligament is unlikely to give rise to rotatory instability.

“In Mrs. Keeling’s case, it was unlikely for rotatory instability to be present as the anterior cruciate ligament and the medial collateral ligament had acquired a satisfactory healing.  Therefore, rotatory instability would unlikely be the cause for the history of giving way.”

“It was noted that there was a moderate decrease in the muscle bulk of the right thigh and calf.  The weakness associated with the decrease in muscle bulk could contribute to the current symptom.”

36. Dr. Chiang did not think Mrs. Keeling required a total knee replacement operation in future.  He recommended arthroscopy surgery to confirm the diagnosis of meniscal tear and performing partial menisectomy, to be followed by 30 sessions of physiotherapy to improve the muscle bulk.  Coupled with reasonable capacity with daily activities of prolonged walking and standing, walking up slopes and stairs “the symptoms of giving way would have a high chance to subside”.

37. Dr. Chiang in his second report of 14 February 2004 considered that it is likely the medial meniscal tear was sustained in the 4^th fall.  This leaves the cause of the giving way feeling after the 4^th fall completely opened. 

38. Dr. Chiang considered after the aforementioned arthroscopic repair of the medial meniscus, the total impairment of the whole person after treatment is 5%.

Novus Actus Interveniens

39. Miss Molloy submitted that Mrs. Keeling’s 2^nd, 3^rd and 4^th falls were all novus actus interveniens.  Actions of Mrs. Keeling, namely, showering in the bath unaided; walking on Florida beach using only a full brace and one crutch; and two years later, tripping over the patio door lip were all caused by her own negligence.

40. Miss Molloy relied on the case of McKew v. Holland and Hannen and Cubitts (Scotland) Ltd. [1969] 3 All ER 1621, where the Plaintiff sustained injury to his leg due to the Defendant’s negligence and his injured leg had a tendency to give way under him.  Some days after the accident, he went to inspect a flat and descended steep stairs with no handrail.  He lost control of his leg, fell and fractured his ankle, the court held his actions were the sole cause of his subsequent injury. 

41. Miss Molloy also referred to the case of Jacob David Godkin v. Shivsons Corp. Ltd. HCA No. A996 of 1985 where Liu J. (as he then was) held that the two subsequent falls 3 and 6 months after the accident in the bath and on ice were due to the negligence of the Plaintiff.

Findings on the subsequent falls

42. The second fall took place about 9 months after the first fall and 8 months since the arthroscopy and open repair operation.  According to Dr. Cheng of UCH, she was doing well after treatment and was walking unaided until the second fall.  It is to be expected, therefore, that Mrs. Keeling should be able to take a shower by herself by then.  The fact that she had repeated episodes of her right knee giving way under her since the accident should be a warning to her that she should take particular care.  It also meant that her right knee had been weakened, therefore she would be proned to falling as a result.

43. The third fall on 5 November 2000, less than two months after the second fall, was sustained at a Florida beach when she switched from two crutches to one crutch and a full leg brace.  She admitted that was the first occasion she made the switch after the second fall.  It is understandable for her to forego the use of two crutches to attend her daughter’s wedding, it was, however, unwise to do so on the beach for her right knee gave way under her and her single crutch slipped in the sand. 

44. The fourth fall took place two years later on 17 November 2002 when she was at home walking form the living room to the patio.  She admitted she had put her weight on the right knee and it gave way from under her resulting in a broken left ankle and injuring the medial meniscus.  Mrs. Keeling admitted her right knee frequently gave way from under her, she should therefore have to take care not to put weight on her right foot if it has a tendency to give way from under her.  The cause of her weakened knee was of course the first fall. 

Contributory Negligence

Second Fall

45. After full consideration of the circumstances, I find that given the treatments Mrs. Keeling received after the first fall, the cause of the second fall was the first fall that had weakened her right knee.

Third Fall

46. Though Mrs. Keeling was told by the doctors at UCH that she could use a full brace with one crutch after treatments in November 2000, she failed to take into account the uneven sandy surface on the beach could cause her single crutch to slip.  Therefore, I find she had contributed to the fall by failing to use two crutches while walking on the beach.  I find she had contributed to the negligence at 25%. 

Fourth Fall

47. The cause of this fall 2 years later at her home according to Mrs. Keeling was her putting weight on her right knee which gave way under her as she stepped on the lip of the door on the threshold of the patio.  Though Miss Molloy questioned the cause of the fall and attributed it to her tripping over the door lip on the floor, we have only Mrs. Keeling’s evidence on what really happened.  Taking into consideration Mrs. Keeling’s evidence on this incident, it is obvious that she should know better than to place weight on her right knee when crossing uneven surfaces such as the door lip on the floor to the patio.  I find Mrs. Keeling contributed 75% to this fall by her failure to take care. 

Pain, Suffering, Loss of Amenities

48. Mr. Burke relied on the case of Liu Hung Fai v. Sandvik Hong Kong Ltd. & Anor (1997) HKLJ 443 where the 64 year old plaintiff injured her left knee at a road accident.  She had an operation and spent 5 months in a convalescent home.  At the trial 5 years later, she walked with a limp, could not squat or climb heights.  The sum of $400,000 was awarded. 

49. Mr. Burke further relied on Tsang Yuen Nam v. Hung Wai Metal Ware Co. Ltd. HCPI 602 of 2001, [2003] HKEC 175 where Deputy Judge Line awarded $400,000 to the 27 year old plaintiff who suffered front and back ruptured ligaments in his right knee in the accident.  The plaintiff received 3 arthroscopy operations involving removing donor ligament from his left knee that later caused trouble to his left knee.  He was given 37.5 months of sick leave. 

50. Miss Molloy relied on the PSLA award in:-

(a)                   Yu Man Chiu v. Chow Chi Fan in HCA 2518/81 (1981) HKCJ 116, where the award of $20,000 (valued at $92,610 in 1998) was awarded to the 26 year old plaintiff who suffered from lateral and collateral ligaments of his right knee.  He was hospitalized for two weeks.  He was found to have unstable knees which affected his ability to lift weight.

(b)                  Chan Ping Nam v. Choi Kwai Kun (HCA 3926 of 1980) [1981] HKLJ 412 where the 68 year old plaintiff suffered contusion to both knees, he was hospitalized for 7 weeks.  $20,000 PSLA was awarded (valued at $102,690 in 1998).

(c)                  Chan Cheuk Yin v. Chan Ho Kwan HCPI 870/2000 [2001] HKLRD 447, where the plaintiff was found to have a fractured right wrist and 5 cm laceration at the antero-lateral joints on his right knee, but the cartilage and fibular collateral ligament were intact.  He spent 10 days in hospital.  The master awarded $145,00 under PSLA.

51. I was also referred to the case of Lam Sau Ying v. Shiu Yat Sang & Anor HCPI 892/2002 (judgment of Nguyen J. on 30 March 2004) where the 57 year old plaintiff sustained head injury and facture to the left tibia condyle and tibia spine.  She received an arthroscopic fixation of the left tibial spine and a left knee arthroscopic release on her left knee.  She complained of left knee pain, weakness to the left leg, unable to carry weight, to cycle and take prolonged walk.  She also walked with a limp.  She was found to suffer from 12% lower limb impairment equivalent to 5% whole person impairment.  She also suffered from post-concussional syndrome due to the head injury, assessed at between 1%-4% loss of earning capacity.  An PSLA award of $250,000 was ordered.

52. In the present case, I take into consideration the period of hospitalisation of 5 days after the first fall and the arthroscopy operation on 28 January 2000, the period of physiotherapy sessions and the inconveniences caused by the need to use a brace and crutches for 6-8 months and the subsequent giving way of her right knee leading to the second, third and fourth falls, that the third and fourth falls were contributed by her negligence.  I also take into account that Dr. Chiang assessed she had grade I anterior laxity cruxiate ligament of 3%, mild residues in the medial collateral ligament of 1% and the partial menisectomy to be performed at 1% was caused by the fourth fall.  I award the sum of $160,000 under PSLA.  In reaching this award, I have taken into account that Mrs. Keeling is also partly to blame for the third and fourth falls. 

Loss of Earnings

Pre-trial loss

53. The Plaintiff claims a loss of pre-trial earnings of 10% pay increase in the year 2000 due to her disability resulting in fewer business generated for that year.  I accept the submission of Miss Molloy that her boss had made up the lack of pay rise in 2000 by giving her an increased monthly salary of $25,000 in 2003.  Consequently, Miss Molloy’s calculations as follows are accepted:-

Loss in 2001: $(18,150 – 19,995)	=	$(1,845 x 12)	=	$22,140
Loss in 2002: $(19,995 – 21,961.50)	=	$(1,966.50 x 12)	=	$23,598
				______
		Sub-total		$45,780
$45,780 – [(24,157.65 – 25,000) x 12]	=	$36,472.15

54. I am satisfied that the Plaintiff had tried to adjust her life to her disability after the accident and did make special efforts to carry on with her work in spite of the injuries suffered.  I consider the aforesaid loss to be genuine.

Loss of Earning Capacity

55. It is clear that Mrs. Keeling had been extremely successful in keeping her work going in spite of the injury to her knee after the accident.  Her boss was understanding and had accepted the restrictions due to her disability in 2000 and the 4^th fall in 2002.  It is unlikely that she would lose her job because of her present physical condition.  She claimed her boss would continued to employ her until she have the arthroscopy operation on the medial meniscus.  According to Dr. Chiang, the rehabilitation period of the operation is estimated to be 3 months.  I do not see any reason why her boss should not keep her on if he had kept her on after the first fall and the arthroscopy operation in January 2000.

56. Given that Mrs. Keeling is now 65 years old, it would be more likely that she would lose her job due to her age in future rather than the disability after the operation.  It is therefore understandable that she should decide not to have the operation at the present moment.

57. I would make an award based on her pay for the 3 months period for rehabilitation.  Since this operation was to repair the medial meniscus which was torn in the fourth fall that she was 75% to blame, I award the following sum:

                   $(25,000 x 3) x 25% = $18,750

Special Damages

Medical Expenses

58. The $884 hospital inpatient expenses has been agreed, so were the follow-up and physiotherapy treatments amounting to $3,843.  The Defence disputed the medical expenses from 17 November 2002 to the date of trial of $5,000.  As I found that the Plaintiff contributed 75% to the 4^th fall, I assess the Defendant to be liable for medical expenses at 25% $5,000 x 25% = $1,250.  As to the treatment and MRI scan in USA after the 3^rd fall, she was 25% to blame, $(86 + 751 + 198) x 75% x 7.8 = HK$6,054.75.

In-patient expenses	$884.00
Follow up & physiotherapy	$3,843.00
25% of expenses after 17/11/2002 to date	$1,250.000000
USA treatment & MRI scan at 75%	$6,054.75
	________
	$12,031.75

Travelling expenses

I accept that the Plaintiff had reduced her physiotherapy visits to 3 times a week after her first fall instead of daily visits.  Miss Molloy agreed that Plaintiff had a fixed brace for 3 months after her operation on 28 January 2000 and 12 weeks after that she could walk unaided.  On the basis that she attended physiotherapy treatments 3 times a week for those first 3 months, with gradually reduced visits in the next 3 months, and had monthly followed-up treatments at UCH during that time, she would have paid 83 visits to the UCH up to the end of 2000.  No medical chits or taxi receipts had been produced in support of these visits other than Mr. Keeling’s own record on p. 230D of the trial bundle.  I would nevertheless allow the 88 visits claimed for this period.  As there were no receipts produced for any hospital visits between 2001 to 17 November 2002 and to date to support such visits and the frequency of such visits, I am unable to make any assessment thereon.  I therefore make no award.

General travelling expenses by taxi

60. Again, no taxi or parking receipts have been produced, neither were there any evidence as to the taxi fare or parking fee charged for such activities, the Plaintiff asks for a flat fee of $500 per month.  As Dr. Cheng’s report of 24 July 2002 indicated the Plaintiff was able to walk unaided after she removed her brace in 2000 until the second fall in September 2000, I assess her extra traveling expenses caused by the accident to be 6 months in line with the sick leave period she would have been given at $500 per month $(500 x 6) = $3,000.

Visit to USA & Legal Aid Department

61. No evidence produced as to the costs of the upgrade to business class, nor the extra traveling costs in the USA.  No evidence or receipts have been produced on her visits to the Legal Aid Department or the number of such visits paid.  I am therefore unable to make any assessments thereon.

Care and Attention

62. The evidence on Mr. Keeling’s care and attention of his wife was that he did not give up his work as a building inspector.  He admitted that he had set up his own business using gondolas to inspect buildings but the business was not demanding on his time after 1999.  He said he mainly refrained from seeking out work in 2000 due to his wife’s condition.  I agree with Miss Molloy’s suggestion that the period he was required to care and attend to Mrs. Keeling and helped her in her job was in the first 3 months after the accident.  I therefore assess the loss to be $(10,000 x 3) = $30,000.

Other Expenses

63. Crutches, walking sticks, leg braces and exercise weights have been agreed at $1,247.

Future Medical Expenses

64. Mr. Burke asked for the sum of $20,000 to cover the future arthroscopy operation, follow up treatments and physiotherapy visits at the public hospital as opposed to the $40,000 required at the private sector.  I accept it is a reasonable estimate.  As these expenses were caused by the fourth fall, I would allow 25% of the sum claimed $20,000 x 25% = $5,000.

As I found the Plaintiff to have contributed 70% to the accident, the award is reduced by 70%: $278,996.90 x 30/100 = $83,699.07.

66. Interests – the interest on special damages is 2% p.a. from the date of accident to date of judgment.  Interest on general damages at half judgment rate from date of writ to date of judgment.  Thereafter, interest at judgment rate until full payment.

67. Costs nisi – costs to the Plaintiff to be taxed if not agreed.