MARLENE SUSANNE COURBET v. MANDARIN DIVERS MARINE SERVICES LTD. AND OTHERS

HCPI 677/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 677 OF 2000

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J U D G M E N T

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1. The plaintiff, a solicitor, brings this action for personal injuries as a result of an accident on 8 June 1997. At that time she was aged 50.

2. In the course of the previous month she had enrolled in a course to gain the Padi Open Water Diving Certificate. It was run by the 1st defendant, a well known local diving school.

3. At around 9:30 a.m. on the day of the accident, she arrived at the Clear Water Bay Country Club Marina with other students in order to continue the course. On arrival they were told by the 3rd defendant, the 20 year-old son of the 2nd defendant who was responsible for running the course that day, that the weather was not suitable for undertaking an open water dive. He suggested that those who wished to do so could go onto the diving school's boat, which was owned by the 2nd defendant and moored at the Marina, and take the written part of the examination. The plaintiff and a number of other students chose to do so.

4. After boarding the boat, the plaintiff left the bag containing her belongings on a bench which formed part of the boat's engine cover in a covered area at the centre of the lower deck (the "dry area"), and went with the other students to the upper deck where they filled in their answers as part of the written examination. After completing the paper, the plaintiff in common with the other students went down to the back of the lower deck (the "wet area") where her paper was marked.

5. After having it marked she intended to leave the boat. She went to the bench where she had left her bag only to find it had been moved into the saloon on the same deck. The saloon was a cabin directly adjacent to the "dry area" nearer the bow of the boat. Both the saloon and the another cabin containing bunk beds, still nearer the bow of the boat, were also areas where students habitually left their belongings when participating in the course.

6. On entering the saloon to retrieve her bag she fell into the hold of the boat through an open hatchway directly inside the doorway of the saloon. The hatch cover had been removed by the 3rd defendant earlier in order to dry out the hold. The hatch cover had been propped up on one side of the cabin. As she fell into the hold the plaintiff sustained a blow to the back part of her head.

7. None of these essential facts are the subject of any real dispute. Mr Gidwani at one stage suggested that the plaintiff might have been attempting to climb over the open hatchway and in doing so fell back into it, but this suggestion, which was based upon the fact that the plaintiff hit the back of her head, was contrary to the evidence of the plaintiff which I accepted.

8. It is also not in dispute that the 1st and 2nd defendants were occupiers of the boat for the purpose of the Occupiers Liability Ordinance Cap. 314 and that the 3rd defendant was in charge of the boat and responsible for running the course that day.

9. The plaintiff's case against the defendants has been pleaded in different ways, against the 1st defendant as a breach of an implied duty in contract, against the 1st and 2nd defendants as breach of their common duty of care under the Occupiers Liability Ordinance Cap. 314 and against all the defendants in negligence.

10. There can be no doubt that an open hatchway in the floor of the cabin of the boat was a hazard against which visitors to the boat should have been protected. Failure to take adequate steps to ensure that visitors were protected from such a hazard would amount to a breach of the duties to which I have referred on the part of the defendants.

No Physical Precautions

11. There has been no suggestion that the defendants placed any physical barrier which either might have prevented the plaintiff as a visitor to the boat from approaching the open hatchway or at least alerted her to its presence. The door to the saloon was not locked or even closed. Precautions as simple as a chair placed in front of the open hatchway, the hatch cover placed wholly or partially across the doorway to the saloon or a rope tied across the doorway might have alerted her to the potential danger. No such precautions were taken.

12. There was a white line around the edge of the hatchway, but I was informed that at the time of the accident the deck itself was painted a very light grey colour which I observed on other parts of the boat. The white line would have provided little contrast to the colour of the surrounding deck. It would have presented no greater warning to a person approaching the open hatchway than the contrast between these surrounding decking and the open hatchway.

The Warning

13. The only step taken by the defendants to protect the plaintiff from the hazard posed by this open hatchway was an oral warning given by the 3rd defendant that he had or was about to open this particular hatchway.

14. It is common ground that the 3rd defendant did give such an oral warning. There is however conflicting evidence as to the precise terms of this warning, where the defendant was when she received this warning and how long elapsed between the time of the warning and the accident.

15. It was the evidence of the plaintiff that the only warning she received was shortly after finishing her examination paper and coming down to the "wet area" at the back of the boat. The 3rd defendant had approached her and some other students who were going through their answers with Christina Chang and Christina Brain, two dive master trainees who were assisting the 3rd defendant that day. The 3rd defendant had said that they should be careful because he had taken up the floor of the cabin whilst he was cleaning. He had added that the previous year his former girlfriend had fallen into the same hatchway and cracked her ribs. They had laughed and someone had suggested to the 3rd defendant that was probably why she was his ex-girlfriend. A period of about an hour had then elapsed during which time they had gone through the paper with the two dive master trainees and the 3rd defendant had then marked their papers. The Plaintiff had then gone to the saloon to collect her bag before leaving the boat and the accident had occurred.

16. The pleaded case of the defendants was that after handing out the examination papers to the students on the upper deck of the boat the 3rd defendant had warned the students (including the plaintiff) that he would be lifting the hatch cover on the lower deck and that in no circumstances were they to go onto the lower deck unless they were informed by him that they could do so. Each student had verbally acknowledged that they understood this warning.

17. This was the evidence of the 3rd defendant in court at first. Such evidence was in conflict with the evidence of the two diving master trainees. Both said that it was sometime after the students had started the examination that the 3rd defendant had initially warned them and then the students who were on the upper deck that he was about to remove the hatch. Christina Chang said that it was about half an hour after the examination had started. When Christina Chang's evidence about the timing of the warning was put to the 3rd defendant in cross examination he conceded that he thought that he had been incorrect when he had said that he had given the warning at the time he handed out the examination papers.

18. There was conflicting evidence between the defence witnesses as to the nature of the warning given. The 3rd defendant and Christina Brain said that the students had been warned to stay on the upper deck and that 3rd Defendant had asked each of them to confirm that they understood the warning. Christina Chang on the other hand said the 3rd defendant did not warn the students not to come down from the upper deck, but simply to stay away from the hatchway. Indeed she said he had specifically asked the students to come down to the lower deck after they had completed their examination papers. She did not say that she had heard the 3rd defendant ask each of them whether they understood the warning, although she does say that from her position on the lower deck she could hear some murmur of acknowledgement from at least some of the students.

19. I found Christina Chang to be the most impressive and reliable of the defence witnesses. The 3rd defendant appeared to me to have only a hazy recollection of what had occurred that day and appeared to be reconstructing what he believed must have happened. I did not find Christina Brain a totally open witness. Her recollection of events that day appeared to me to be selective. I believe that her recollection may have been coloured by her friendship with the family of the 2nd and 3rd defendants.

20. The plaintiff struck me as on an honest and straightforward witness doing her best to recall what had occurred today. She herself had first raised the matter of having being given a warning by the 3rd defendant in her Reply.

21. I accept her evidence that she did not hear any warning when on the upper deck of the boat. I found the 3rd defendant's evidence and that of Christina Brain that each student had been asked to acknowledge the warning as unlikely. Bearing in mind Christina Chang's evidence, which I accept, that the students were told to come down to the lower deck after they completed their paper, I consider it probable either that the plaintiff did not hear the warning if it was given to those on the upper deck while she was there or that she had already finished her paper and come down to lower deck by that stage, and so had heard the warning on the lower deck. In any event I think it is most improbable that any warning included the instruction not to come down from the upper deck. The fact that the 3rd defendant marked the students' papers in their presence on the lower deck, and that the plaintiff and one other student were the only students remaining on the boat at the time of the accident suggests that the warning was not an injunction not to come down from the upper deck.

22. Bearing in mind that the accident occurred 4 years ago, witnesses' recollections as to the time that elapsed between the students coming down to the lower deck and the accident occurring are bound to be inexact. Having taken into account the evidence of the plaintiff that she received the warning soon after coming down to the lower deck, that there then was a period during which Christina Chang and Christina Brian were running through the answers followed by the 3rd defendant marking their papers (the latter process taking 10 to 15 minutes per student) coupled with the evidence of the other timings that day in particular the time she arrived the boat and the time she attended the Accident Emergency Department at Tang Shiu Kin Hospital, I consider that it is probable that the accident occurred at least half an hour to an hour after she had received the warning from the 3rd defendant.

23. I find that having opened the hatchway it was negligent on the part of the 3rd defendant to take no further steps to protect the students from such a hazard other than to issue a verbal warning. It can be inferred that, having opened the hatchway, he must have left it unattended in order to go to the "wet area" at the back of the boat to mark the students' papers. It should have been apparent to him that the students who had come down to the lower deck to have their papers marked would then proceed to collect their belongings or use the toilet (which would have involved entering the saloon with the open hatchway). Students were likely to have left their belongings in the saloon or the cabin beyond it, and therefore likely enter the saloon where the open hatchway was situated. Sufficient time had elapsed between the time of warning and the time that the students would leave the boat to make it foreseeable that the students might be distracted or forget the warning. The accident was all the more foreseeable because his former girlfriend had fallen into the same hold the previous year. There were simple steps which could have been taken which could have averted this accident, such as those I have already mentioned namely propping the hatch cover against the doorway from the "dry area" to the saloon or placing a chair in front of the door or tying a rope across the entrance.

24. I find that the 1st and 2nd defendants are vicariously liable for the 3rd defendant's negligence. The 3rd defendant was their agent in running the course and maintaining the boat respectively.

25. I find that the 1st and 2nd defendants as occupiers of the boat on the day in question were in breach of their duty to take such care as was reasonable to see that the plaintiff, a visitor, would be reasonably safe in using the premises for the purpose for which she had been invited or permitted to be there. I find the oral warning was not in all the circumstances enough to enable her to be reasonably safe.

26. Furthermore, I find that the 1st defendant was in breach of an implied duty in contract to take reasonable care for the safety of the plaintiff while she was on board the boat attending that part of the Padi course that was being conducted that day.

Contributory Negligence

27. This is not a case however when no contributory negligence can be attributed to the plaintiff. I find that her conduct went beyond that excusable lack of care for her own safety that can be categorised as mere inadvertence. She was a fit and intelligent adult. She had received a specific warning from the 3rd defendant regarding that particular hatchway.

28. That warning had been reinforced by the 3rd defendant recounting what had happened to his former girlfriend the previous year in relation to the same hatchway. This would have emphasised that particular danger. She was in an unfamiliar environment, namely the boat when the warning should have had an added impact.

29. Although I believe the evidence of the plaintiff that she cannot recall now doing so, I accepted the evidence of Christina Chang that after the accident occurred the plaintiff did say words to the affect that she could not believe that she had had the accident after she had been warned.

30. In this particular case I put her contributory negligence at 20%. In making this finding, I have borne in mind that her attention was probably distracted at the crucial moment by her bag having been moved from the dry area into the saloon and seeing her bag in the saloon. I believe however that she is probably mistaken in saying that her attention was distracted by seeing Christina Chang at the doorway.

Quantum

PSLA

31. As a result of the accident, the plaintiff hit the back of her head against the open hatchway and hurt her neck, shoulders and upper back. She subsequently felt a lump at the back of her head and pain over her neck, shoulders and back. It is probable she temporarily lost consciousness. Having been helped out of the hold she was eventually assisted to leave the boat. She fell dizzy and nauseous and was taken to the shop at the Marina where she vomited. She was subsequently accompanied by a fellow student in a taxi to Tang Shiu Kin Hospital where she was treated and discharged.

32. She felt too ill to return to work that week. She suffered from headaches, sickness, pain over her neck and shoulders, dizziness and chronic tiredness. These symptoms persisted after she returned to work and affected her attention and concentration. She could not stand noise or crowds. She had to cut down her working hours and had to take whole days off sick.

33. From early July onwards she started to consult Dr Brian Choa. She exhibited a number of disabling symptoms including pain, depression and anxiety attacks. She continued to find it difficult to concentrate and absorb material and found difficulty in sleeping. Dr Choa diagnosed her as suffering from post-concussional syndrome and treated her accordingly. He advised her to reduce her workload. The defendant's expert Dr Wong Chi Keung does not argue with the diagnosis of post-concussional syndrome.

34. It is not in dispute that the plaintiff's mental symptoms which Dr Choa confirmed had given her much distress over a two year period have now subsided.

35. The symptoms that still persist are headaches, neuralgia and back pain. Both doctors called as experts agree that these symptoms persist. Both agree that some of the headaches are the result of damage to the greater occipital nerve (GON) occasioned by the accident, though Dr Wong said that in his experience the severity of such headaches should be minor. These headaches start at the back of her head and tend to spread over the left side of her head consistent with the branches of the occipital nerve.

36. The plaintiff also suffers from another type of more persistent headache occasioned by trauma to an already degenerated spine. X-rays taken of her spine on the date of the accident showed in particular wide-spread degenerative change in the cervical spine especially from C 3 to C 7 level. Some degeneration is inevitable in all adults of the plaintiff's age and the degeneration revealed by the x-rays is quite common in adults with the plaintiff's very active sporting interests. Without trauma they would not necessarily cause symptoms until much later in life and even then the symptoms might be mild.

37. There was a dispute between Dr Choa and Dr Wong as to whether these latter headaches were as a result of the accident. Dr Wong took the view that the plaintiff was not suffering from the symptoms of such an injury before she sustained two further accidents at Christmas 1997 and in the spring of 1998 which must have occasioned the onset of these headaches. Having heard the two doctors and having heard about the nature of the two subsequent accidents which were unrelated to the neck or spine, and bearing in mind that the plaintiff was being treated by Dr Choa during this period, I prefer Dr Choa's view that this latter type of headache was occasioned by the trauma of the accident on 8 June 1997.

38. I accept the plaintiff's evidence that she goes through good and bad patches with headaches. At best in a good patch she simply wakes with a mild background headache which lifts during the day if she avoids rush and stress. If she is under pressure or rushes the headache intensifies and remains throughout the day. She has had spells of severe headaches lasting several days. In order to avoid such headaches intensifying she comes to work later but if they do intensify it affects her concentration and temper and thereby her work. This was confirmed by her employer Mr Clement Tang. She may have to leave work early.

39. Prior to the accident the plaintiff was exceptionally keen sportswoman. Being single her social life centred around her sporting activities. These sporting activities have been considerably curtailed as a result of the accident. Tennis brings on bad headache so games have to be shortened and she plays less frequently. She now only plays low-grade hockey and not as often as before. She is unable to swim because the head movement that swimming entails brings on pain. Vigorous gym work also triggers headaches. Her quality of life has been affected by her symptoms.

40. Her professional life has also suffered. Although the quality of her work has not suffered she comes in later and often has to leave early if suffering from severe headache. She worries more and finds work generally harder. It does cause her to have thoughts from time to time of giving up her profession.

41. Dr Choa's evidence was to the effect that the plaintiff was stoical about her condition and did not exaggerate her symptoms. I accept this evidence.

42. Being a single person, her sporting interests and an enjoyment of her professional life are particularly important to her quality of life. I am satisfied that both have been seriously affected by the accident. Her injuries come within the category of "serious injuries". I award her $500,000.00 as damages for plain, suffering and loss of amenity.

Loss of Earnings and Loss of Chance

43. A significant part of the plaintiff's claim is based on the contention that had it not been for the accident she was likely to have changed employer and joined the firm of Munro, Claypole and Reeves at an increased salary as an assistant solicitor and would probably thereafter have become a salaried partner.

44. While the evidence, Mr Mark Reeves, a partner of Munro, Claypole and Reeves established that she was a good potential candidate for employment, I find that the evidence fell short of establishing that she would probably have been employed by that firm.

45. There had been a discussion between the plaintiff and Mr Reeves about the possibility of her joining the firm, at the end of a meeting in relation to a case they were both handling in about March 1997. However no further steps were taken by either party before the accident. Mr Reeves's evidence was that his firm was looking for someone to replace an existing senior lawyer who was still employed by the firm. While there was no time scale to replace this lawyer Mr Reeves' evidence was that the firm would not seek to do so until they had found a suitable replacement. Although the plaintiff may well have been a well qualified candidate for the position, the fact that Mr Reeves did not take the initiative actively to pursue the matter further with the plaintiff at that stage suggests that she was not so strong a candidate that he felt it necessary to take the matter further immediately.

46. The plaintiff's explanation for not pursuing the matter further at that stage was that she understood the vacancy would not arise until later in the year.

47. In around July or August 1997, Mr Munro, the senior partner of the firm, had professional dealings with another lady solicitor of whom he formed a very favourable impression. So much so that he was keen that she should join the firm. On 28 August 1997 she was offered the position with the firm which she accepted.

48. Mr Reeves mentioned that the plaintiff had telephoned him sometime after her accident when she had mentioned that she was having difficulty coping with her work. The subject of the plaintiff joining the firm was not mentioned. Mr Reeves was unable to say whether this conversation took place before the approach had been made to the other lady solicitor or not.

49. It appears to me significant that Mr Reeves did not say that the reason he agreed to the firm taking on the other solicitor rather than the plaintiff was because of the plaintiff's difficulties in coping after the accident, but rather because she had not come back to him about the job.

50. On the evidence before me I think the probabilities are that even if she had not had the accident the plaintiff would have missed out on the position at Munro, Claypole and Reeves because of her failure to take the matter further.

Loss of Opportunity to Earn Increased Salary

51. I do however accept the plaintiff's evidence that at the time of the accident she felt the time had come for a change from her existing firm. Although I did not get the impression that there was any urgency about the matter, I believe that she would probably have kept to look out for another employer. My impression is that she would not have moved to another firm simply because it paid a little more money. It would have depended on the nature of the firm and whether she would find her new colleagues congenial.

52. Bearing in mind the shortage of litigation lawyers in Hong Kong of her experience, I consider that she would have a favourable chance of ultimately finding another employer at the salary referred to by Mr Reeves (namely $65,000.00 per month plus 20% commission for introducing work) had she not had the accident. The plaintiff disclosed that she would have not wished to buy into a partnership. I consider that the prospects of her securing a salaried partnership are somewhat speculative. Indeed I formed the impression from her evidence that the plaintiff would not have necessarily wished for that commitment.

53. While the accident has not affected the quality of her work the effect of the resulting headaches on her working hours make it unlikely that a new employer would engage her at a higher salary than she is receiving with her present employer.

54. I place the loss of chance of finding higher paid employment as a result of the accident at 80%. In arriving at that figure, I have born in mind the fact that she is an expatriate, her age and an understandable selectivity on her part.

55. This loss of chance of higher paid employment existed prior to the trial. Bearing in mind my finding that she was less likely than not to have secured employment with Munro, Claypole and Reeves, I consider that appropriate starting point for the court to take into account this potential loss would be from 1 January 1998 which incidentally coincides with the time that she was under the impression that the vacancy with Munro, Claypole and Reeves would occur.

56. The salary which I consider reasonably achievable by the plaintiff at that time was that mentioned by Mr Reeves, namely $65,000.00 per month plus 20% introductory commission. The plaintiff at that time was earning $58,000.00 per month plus one month salary bonus (which amounts to an average salary of $62,833.00 per month). While she was not entitled to introductory commission with her present employer until May 2000, the evidence of Mr Clement Tang of her present employers was to the effect that it was not until that time she was bringing in a significant amount of work which would have entitled her to such commission. Therefore it is reasonable to assume that she did not suffer a significant loss of commission by having to stay on with her existing employer.

57. I quantify her loss of opportunity to earn an increased salary pre-trial at $66,310.00.

58. I have arrived that figure by multiplying a monthly loss of $2,167.00 by 45 months (representing the period from 1 January 1998 until trial), discounting that first by 20% (representing the loss of chance of such higher paid employment) and then by 15% (representing tax).

59. I quantify her loss of opportunity to earn an increased salary post trial at $123,779.00

60. I have arrived that figure by multiplying the same monthly loss of $2,167.00 (in view of the fact that salaries are unlikely to have altered significantly since that time) by 84 months (representing a multiplier of 7 years) and discounting that sum first by 20% (representing the loss of chance of higher paid employment) and then by 15% (representing tax).

Loss of Capacity to Earn Existing Salary

61. I find that the accident has given rise to the possibility, albeit small, of a reduced capacity to earn her existing salary if she should lose her existing employment. I consider the chances of her losing her present employment are small. Indeed it has been her performance since the accident that has caused her present employer to improve her terms of employment to include commission. The remarks made to her by her employer at the time of the across the board pay cut as a result of the economic down turn indicated that her efforts on behalf of the firm are appreciated. The damages under this head would cover the possibility that she might take longer in finding further suitable employment than if she had not had the accident as well as the possibility of a reduced salary.

62. I quantify her loss at $250,000.00 under this head.

Loss of Commission

63. Although in her witness statement the plaintiff has referred to loss of commission resulting from working less hours at her existing firm, this matter was not raised in the course of oral evidence or in the submissions of counsel. In the absence of evidence that work has had to be turned away or given to another solicitor as a result of the plaintiff not working as many hours as before, I find that any assessment of the loss under this head as being speculative. It appears from the statement of Mr Clement Tang that it is not only the plaintiff's accident but also the down turn in the economy that has caused her to do less work.

64. It was the evidence of the plaintiff that she hoped to join Munro, Claypole and Reeves. That firm does not pay commission based upon work done on files but simply on the basis of work introduced to the firm. It could only be a matter of speculation as to whether other firms to which the plaintiff would have applied, would have paid commission for work on files. The sum award for loss of opportunity to earn increased salary in the future covers any losses under this head.

Special Damages

65. Special damages have been agreed in a sum of $40,890.00

Future Medical Expenses

66. The costs of future medical expenses is agreed at $42,000.00.

67. In summary, I assess the paintiff's damages as follows:

Pain, suffering and loss of amenities	$500,000.00
Losses pre-trial
(1) Special damages	$40,890.00
(2) Loss of opportunity to earn increased salary	$66,310.00
Losses post-trial
Loss of opportunity to earn increased salary	$123,779.00
Loss of capacity to earn existing salary	$250,000.00
Future medical expenses	$42,000.00
Total:	$1,022,979.00
80% thereof	= $818,383.00

68. There shall accordingly be judgment for the plaintiff in the sum of $818,383.00 plus interest at

(i) 2% on damages for pain, suffering and loss of amenities from the date of issue of writ until judgment;

(ii) 4.91% on special damages from the date of accident to judgment;

(iii) 4.91% on pre-trial loss of opportunity to earn increased salary from 1 January 1998 to judgment.

Thereafter interest to run at judgment rate until payment.

69. I make the following order nisi as to costs that unless either party applies to be heard on the question of costs within 14 days, the plaintiff's costs be taxed and paid by the defendants.