SIU MAN HAI v. THE LINK MANAGEMENT LTD AND OTHERS

DCPI 2567/2012

IN THE DISTRICT COURT OF THEd

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 2567 OF 2012

-------------------------

-------------------------

-------------------------

JUDGMENT

-------------------------

INTRODUCTION

1.  On 11 April 2011, at around 4:46 pm, the plaintiff was riding his motorcycle in the Ap Lei Chau Estate multi-storey car park. 

2.  On his way out of the car park, when the plaintiff was driving downwards on a slope connecting the 5^th floor and 4^th floor, his motorcycle skidded.  He fell down from his motorcycle sustaining injuries (the “accident”). 

3.  He thus sued the 1^st, 2^nd and 3^rd defendants.

4.  The 1^st defendant is the owner of the car park.

5.  The 2^nd defendant is the management company of the car park.

6.  The 3^rd defendant is the cleaning company of the car park. It had a cleaning service agreement with the 1^st defendant.

THE PLAINTIFF’S CASE AND CLAIMS

7.  On 1 April 2011, he was employed as an assistant manager in a restaurant.

8.  The plaintiff avers that the accident on 11 April 2011 was caused by the loose sand on or the slippery surface of the slope.

9.  He contends that all defendants, in failing to ensure that the slope of the car park was safe (ie no sand and/or non slippery), were negligent at common law.

10.  He also contends that the defendants were in breach of the Occupiers’ Liability Ordinance (“OLO”), Cap 314. 

11.  Immediately after the accident, he was admitted to the hospital for treatment.

12.  The medical findings were:-

(a)  fracture-dislocations of the right 3^rd to 5^th tarso-metatarsal (TMT) joints (right mid foot);

(b)  closed fracture of the 1^st to 4^th metatarsal necks (on his right foot);

(c)  a weber C fracture at the right distal fibula.

13.  On 19 April 2011, he had to undergo an operation on his right foot.

14.  On 29 April 2011 he was discharged.

15.  On 8 July 2011, he was re-admitted to hospital because of swelling in his leg.

16.  On 12 July 2011, he received another operation for his leg.

17.  On 30 September 2011, he received his third operation.

18.  The plaintiff claims to be unable to be in any gainful employment even until now.

19.  Apart from claiming pain, suffering and loss of amenities (“PSLA”) of HK$ 350,000, he also claims, inter alia, for loss of earnings of HK$ 586,696.

DEFENCE OF THE 1^ST AND 2^ND DEFENDANTS

20.  They do not admit liability and have put the plaintiff to strict proof. They alternatively aver that the plaintiff was contributorily negligent in driving his motorcycle.

21.  They also state that their duties were fully discharged by the implementation of a safe system at the car park.

22.  They also pleaded that there was no credible evidence that the plaintiff was in employment at the time of the accident.

DEFENCE OF THE 3^RD DEFENDANT

23.  Its defence is basically the same as the one of the 1^st and 2^nd defendants.

MATTERS AND ISSUES AT TRIAL

24.  On the first day of trial, counsel for the plaintiff and both counsel for the defendants confirmed that the quantum of some of the items claimed by the plaintiff are agreed (although liability is still in dispute).  The agreed amounts of these items are:-

(a)  pain, suffering and loss of amenities (“PSLA”) being HK$200,000;

(b)  medical expenses being HK$1,274;

(c)  other special damages being HK$12,170;

(d)  traveling expenses being HK$1,000; and

(e)  expenses for tonic food being HK$5,000.

25.  I find the quantum of these items reasonable.  I endorse the same. Hence, no analysis of these agreed items will be made in this judgment.

26.  I was informed by all counsel that the alleged loss of earnings of HK$586,696 and loss of Mandatory Provident Fund (“MPF”) will be disputed as to both liability and quantum.

27.  I note “mitigation of loss” was not pleaded by the defendants.

28.  Both counsel for the defendants agree that apportionment of liability amongst the 1^st, 2^nd and 3^rd defendants is not necessary and that the defendants would not be relying on the exemption of liability notice placed at the entrance of the car park.

29.  Counsel for the 3^rd defendant informed me at the beginning of the trial that her client does not admit that it is an occupier under the OLO. However, in her final submissions, she agreed that in view of the common law negligence claim, whether the 3^rd defendant is an occupier under the OLO is rather academic.

30.  During the making of the final submissions, the plaintiff confirmed that he no longer relies on res ipsa loquitor.

31.  The undisputed evidence and facts in the trial are as follows:-

(a)  The plaintiff was injured on 11April 2011, when he was riding his motorcycle in the car park;

(b)  There was some sand on the slope where the accident happened (but the quantity of the sand is unknown);

(c)  The plaintiff was injured as a result of the accident and he received medical treatment; and

(d)  The plaintiff was granted sick leave from the day of the accident to 15December 2011. 

32.  The core issues of the trial were:-

(a)  Issue one: Whether the accident was caused, in part or in whole, by the sand on or slippery surface of the slope?

(b)  Issue two: Is a prima facie case is proven? Whether the defendants had discharged their duties as occupiers?  Whether they or anyone of them were negligent?

(c)  Issue three: If liability is established, whether the plaintiff was in contributory negligence in his driving manners? If so, what is the percentage? and 

(d)  Issue four: Whether the plaintiff is entitled to claim the loss of earnings and loss of MPF?  If so, how much?

EVIDENCE

33.  The plaintiff called 2 witnesses: himself and a Mr陳正峰(“Mr Chan”).

34.  The 1^st defendant called 2 witnesses: a Miss戴淑敏 (“Miss Tai”) and a Mr程一麟 (“Mr Ching”).

35.  The 2^nd defendant called a Mr李昀蔚 (“Mr Li”).

36.  The 3^rd defendant called a Mr 徐有才 (“Mr Chui”).

The plaintiff’s evidence

37.  He joined the police force in 1970.  He retired in 2006 as a sergeant.

38.  Since 2007 he has been a user of the car park.  However, he used to park his motorcycle on the 2^nd floor.  He only began to park his vehicle on the 6^th floor on 1 April 2011.

39.  At the time of the accident, he was an assistant manager of a restaurant managed by Mr Chan.  The accident happened at 4:46 pm on 11 April 2011. 

40.  When he was driving on the slope downwards from the 5^th floor to the 4^th floor, he was driving at a speed of about 15 to 20 km per hour.  Near the end of the slope and before he reached the 4^th floor, he braked to slow down only using the front brake of the motorcycle.

41.  When he was decelerating, his motorcycle skidded causing him to fall to his right.  The motorcycle toppled over him.  He thus suffered injuries and his motorcycle was damaged.

42.  He then immediately called Mr Chan.  Then Mr Chan, 2 policemen and 3 members of staff of the car park came to the accident scene.

43.  Mr Chan then told the plaintiff that there was a lot of sand on the ground where the accident occurred.  The plaintiff also saw the same.

44.  The plaintiff also referred to a police witness statement dated 20 April 2011 compiled by PC 9174 regarding the allegation that there was lots of sand on the slope.

45.  On 1 April 2011, he began to work as an assistant manager in a restaurant.  His hourly wage was HK$50.  He had to work 10 hours a day.  He worked for 8 days just before the accident and received a salary of HK$4,000 in cash.  He would also receive 3 free meals from the restaurant a day, which cost HK$90 in total.

46.  He denies ever noticing any speed limit signs of “8 km/h” inside the car park.

47.  He stated that only when a motorcycle is travelling at or over 40 km per hour would it require the motorcyclist to apply both front and rear brakes to slow down.

48.  His motorcycle has a 500 cc engine and is a rear-wheel-drive vehicle.

49.  He was travelling straight when his motorcycle skidded, because if he was in the course of making a turn at the car park, he would have slowed down to a speed of about 8 km per hour.

Mr Chan’s evidence

50.  Mr Chan’s father is the responsible person of a seafood restaurant in Ap Lei Chau.

51.  On 1 April 2011, the restaurant had hired the plaintiff to work as an assistant manager at an hourly rate of HK$50.  Between 1 and 10 April 2011, the plaintif worked for 10 hours each day for 8 days.  Three free meals a day were provided to the plaintiff.

52.  On 11 April 2011, after having received the telephone call from the plaintiff, he immediately went to the accident scene.  Mr Chan discovered that there was lots of sand on the slope and found the slope to be slippery.

Miss Tai’s evidence

53.  Miss Tai was the former employee of the 1^st defendant.  She was a senior property manager.

54.  Ap Lei Chau car park has 6 floors.  The slopes connecting the 6 floors were made of cement.  The slopes were of rough surface, having anti-slippery property.

55.  The daily management of the car park is contracted to the 2^nd defendant.

56.  The cleaning of the car park is contracted to the 3^rd defendant.

57.  The 1^st defendant had weekly meetings with the 2^nd defendant regarding the management of the car park.

58.  The 1^st defendant had monthly meetings with the 3^rd defendant regarding the cleaning of the car park.

59.  The security guard under the employ of the 2^nd defendant had just signed off the patrol books of the car park about 74 minutes before the accident took place.  The patrol books were placed near car park spaces numbered 326 and 329.  According to the patrol books, no entries akin to the description of sand were made.

60.  She confirmed that neither the 1^st defendant nor the 2^nd defendant had received any complaints of sand during the 74 minutes and that no complaints similar to the one made by the plaintiff were ever received by the car park before.

61.  However, the patrol books were not produced at trial.

62.  She has personal knowledge of the car park in question.

63.  She had patrolled the car park about 24 times from July 2010 to April 2014 and had not seen similar occasions with the scattered sand as depicted in the photographs taken by the police on the day of the accident.

64.  She confirmed that the speed limit signs of 8 km per hour were posted on 2^nd floor and 4^th floor of the car park in July 2010 at conspicuous places.

65.  She was not involved in the execution or implementation of the patrol system in the car park.

Mr Ching’s evidence

66.  He began his employment with the 1^st defendant in October 2009.  However, he only began to station in the office of Ap Lei Chau in April 2013.

67.  There were no remedial works done in the car park from 11April 2011 to 7 November 2014 (ie the date of his making of witness statement).

68.  The 8 km per hour speed limit signs were posted on the 2^nd, 4^th and 6^th floors of the car park.

Mr Li’s evidence

69.  Mr Li was a former employee (compensation affairs officer) of the 2^nd defendant.

70.  Mr Li’s colleagues noticed substance like sand or dust on the slope after the accident.  

71.  Security guards would patrol the car park every 2 hours.

72.  According to the 2^nd defendant’s records, at the time of the accident, a Miss 鄧瑞金 (“Tang”) was the responsible security guard manning the car park.  Tang’s shift began at 3 pm and ended at 11 pm.  Tang’s duties included patrolling each floor of the car park and dealing with customers’ enquires. Tang left her employ on 30April 2013.

73.  According to the 2^nd defendant’s requirements, all security guards had to patrol the car park once every 2 hours.  During the patrols, the security guards were required to sign off the patrol books and make records thereto if special events occurred.  Security guards were also required to maintain the tidiness of the car park, by either picking up the small-sized garbage or debris themselves or obtain the assistance of the cleaners of the car park.

74.  According to the patrol books, at 3:20 pm on the day of the accident, Tang had patrolled past the accident spot.  Since Tang did not make any records on the patrol book, Mr Li believes that nothing special had happened.

75.  The 2^nd defendant had not received any complaints regarding the presence of sand before the accident.

76.  The sand did not come from the firefighting sand bucket.

77.  The patrol books were not produced at trial.

78.  In cross-examination, Mr Li admitted that he had no direct and personal knowledge of the records.  He was not involved in the implementation and in the execution of the patrol system.  He had not visited the car park during his employment with the 2^nd defendant (ie from July 2010 to August 2014).

Mr Chui’s evidence

79.  He was the assistant project manager of the 3^rd defendant. The 3^rd defendant was responsible for the cleaning of the car park.

80.  The slope was about 6 meters wide (for both lanes) and 15 meters long.

81.  There was sufficient lighting for the slope.

82.  The 3^rd defendant was only required to clean the car park, including the slope, once in the morning each day.

83.  The cleaning time was daily from 10:45 to 11:30 am by a Mr梁錦雄.

84.  He testified about the cleaning schedule on general terms.

85.  To his knowledge, the 3^rd defendant had not received any complaints on the day of the accident.

86.  The 3^rd defendant and the 1^st defendant had monthly meetings regarding cleaning inspection and procedures.  The 1^st defendant had not made any complaints regarding the uncleanliness of the car park and the slopes of the car park to the 3^rd defendant.

87.  The 3^rd defendant had abided by the requirements of the cleaning service agreement with the 1^st defendant.

88.  He was not aware of the accident until October 2012.

89.  He had not seen the car park with lots of sand.

ANALYSIS

90.  In determining the credibility of a witness, I bear in mind the words of DHCJ Thomas Au (as he then was) in Lee Fu Wing v Yan Po Ting Paul [2009] 5 HKLRD 513 where at paragraph 53 he stated:-

“(1)  Whether the party’s case is inherently plausible or implausible.

(2)  Whether the party’s case is, in a material way, contradicted by other evidence (documentary or otherwise) which is undisputed or indisputable.

(3)  Where it is shown that a witness has been discredited over one or more matters to which he has given evidence using the above tests. This is relevant to the assessment of his overall credibility.

(4)  The demeanour of the witness.”

91.  I also bear in mind the words of Suffiad J’s observation in Chong Ha Kui Tai v Multicon Engineering Company Limited (in liquidation) and Others HCPI 1168 of 2002, where at paragraph 13, the learned Judge stated:-

“…… in a civil matter, where the standard of proof is on balance of probabilities, it is very seldom if at all that cross-examination alone showing up minor discrepancies and inconsistencies would be sufficient for a court to wholly reject and to disregard the evidence given by a witness short of some major concessions made by the witness.”

92.  I have also borne in mind the helpful submissions of all parties in the course of my analysis of the evidence and issues.

93.  At the end, regrettably, apart from the plaintiff himself, I find all witnesses to be truthful and honest.

ISSUE ONE: WHETHER THE ACCIDENT WAS CAUSED, IN WHOLE OR IN PART, BY THE SAND ON OR SLIPPERY SURFACE OF THE SLOPE

94.  In the Amended Statement of Claim dated 28 February 2013, bearing a statement of truth signed by the plaintiff, it was pleaded at paragraph 4:-

“On the 11^th April 2011 at about 4:46 p.m., the Plaintiff was driving the said motorcycle travelling on the said vehicular passageway.  When the Plaintiff slowed down the said motorcycle at the said vehicular passageway, the said motorcycle skidded and titled (sic, “titled” should be “tilted”) due to the sands scattered over and/or the slippery surface of the floor of the said vehicular passageway.  The Plaintiff thereby lost his balance and fell to the right with the said motorcycle (“the Accident”) ……”

95.  Paragraph 2 of the plaintiff’s witness statement dated 23^rd April 2013, for this trial, stated:-

“於2011年4月11日 (以下稱「意外當日」) 下午約4時46分，本人在鴨脷洲邨多層停車場 (以下稱「該停車場」) 駕駛電單車登記號碼 KS1116 (以下稱「該電單車」) 由5字樓落斜往4字樓 (以下稱「該斜路」) 打算離開該停車場。本人當時是以約15-20公里的時速行駛。從該斜路往下駛，所有車輛在該斜路的末端都要向右轉。在該電單車駛近該斜路末端前 (以下稱「意外位置」)，本人用前車轆剎車制減慢車速及望向左手邊觀察4字樓的交通情況。但在本人減速時，該電單車「跣胎」及向本人的右手邊跌。本人同時亦跌落右手邊地面並被該電單車壓著右腳 (以下稱「該意外」)。”

96.  Answer 1 of the cautioned statement dated 30June 2011 to the police, the plaintiff stated:-

“當日我由鴨脷洲西邨停車場6樓落地下，當由5樓落4樓期間就發生交通意 (sic)。當時我前面及後面無車，而我車速約15至20 km/h。當去到近4樓時，我就用頭煞車制拖一拖減速，眼就望向左邊睇下有無車駛嚟。但係我一拖頭煞車制期間就成架車跣胎向右跌，部車就壓到我右腳受傷，我嘗試起身但太痛，於是就報警及叫朋友幫手。”

97.  A hand drawn sketch signed by the plaintiff also dated 30 June 2011 was annexed to the cautioned statement.  The sketch showed that the plaintiff was travelling in a straight line and that his motorcycle was not travelling above the right turn marking of the slope.

98.  When the plaintiff was giving evidence at trial, not only did he maintain the same assertions, he further explained that if he were in the course of making a turn, he would have decreased his speed to 8 km per hour.

99.  From the above, it is clear that it is the plaintiff’s version of facts that he was not in the course of making a right turn, when his motorcycle skidded.  Thus, I find the plaintiff’s explanation for the accident caused by the presence of the sand inherently implausible, improbable and absurd for the following reasons:－

(a)  If he was not in the course of making a right turn but travelling in a straight direction and if he was only travelling at the speed of 15 to 20 km per hour, I doubt the amount of sand, as depicted in the photographs taken by the police, would have caused the plaintiff’s motorcycle to skid;

(b)  Furthermore, even if there was sand, it seems that the sand was only located in the middle of the “right turn marking” on the slope.  This is because according to the police photographs, a black pen was placed (subsequent to the accident) on the slope to mark the location of the sand;

(c)  Alternatively, it may be possible for the skidding to take place (even with no sand on the slope), if the plaintiff was travelling at a much higher speed, perhaps 2 to 3 times of what he asserted (i.e. at least 30 km/hour). But this has never been the plaintiff’s case; and

(d)  Only if he was in the course of making a sharp U-turn (as he had to leave the car park from 6^th floor, 5^th floor, 4^th floor, 3^rd floor etc. to the ground floor exit) at a very high speed, could his motorcycle skid with the amount of alleged sand (even assuming he was travelling on the right turn sign marking, contradictory to the police sketch) on the slope.  But this has never been the plaintiff’s case too.

100.  It would have been a physical improbability for the accident to have occurred in the manner described by the plaintiff.  Indeed, the plaintiff had never confirmed the cause of the skidding and never explained (apart from the sand) why the slope was slippery.  He was only told by Mr Chan that the presence of the sand ought to be the cause.  Although the photographs taken by the police may also confirm the presence of the sand, whether the accident was caused by the sand is unknown and a mystery. 

101.  I am not satisfied that on the balance of probability the sand has caused or contributed to the accident.  There was no objective evidence linking the sand to the skidding.

102.  All in all and based on the above, I do not accept the plaintiff’s evidence in relation to his speed and his driving manners, in causing or contributing to the accident.  He may not have told the court the truth about why and how the accident happened and what his driving manners were.  The plaintiff has failed, on the balance of probabilities, to discharge the burden of proving that there was an accident which happened in the way he described.

103.  Moreover, I do not find the mere occurrence of the alleged slip and fall of the plaintiff is by itself an “unusual event, which, in the absence of explanation, is more consistent with fault on the part of the defendant than the absence of fault”.  See Ward v Tesco [1976] 1 WLR 810.  As I do not find a prima facie case of “negligence” or “fault” made out, it is not necessary for this court to consider the adequacy of the system of cleaning the car park by the defendants.

104.  I thus find no basis on which any of the defendants should be held liable in breach of the respective duties or in common law.  This was an accident having occurred in the absence of any actionable fault element on the part of the defendants.  Since the plaintiff has failed in proving causation and contribution, this should be the end of all claims of the plaintiff. 

105.  However, for completeness, I proceed to analyse other issues and the liability (if any) of the defendants and apportionment of the contributory negligence (if any) if I were wrong in my findings for issue one.  In other words, if the accident had happened due to the sand or slippery condition of the slope at the time as alleged, would any of the defendants be at fault?

ISSUE TWO: IS A PRIMA FACIE CASE IS PROVEN? WHETHER THE DEFENDANTS HAD DISCHARGED THEIR DUTIES AS OCCUPIERS? WHETHER THEY WERE NEGLIGENT?

106.  The principles stated in the landmark case of Ward v Tesco by Megaw LJ at p 815 are:-

"It is for the plaintiff to show that there has occurred an event which is unusual and which, in the absence of explanation, is more consistent with fault on the part of the defendants than the absence of fault; …… that the defendants knew or should have known that it was a not uncommon occurrence; and that if it should happen, and should not be promptly attended to, it created a serious risk that customers would fall and injure themselves. When the plaintiff has established that, the defendants can still escape from liability. They could escape from liability if they could show that the accident must have happened, or even on balance of probability would have been likely to have happened, even if there had been in existence a proper and adequate system, in relation to the circumstances, to provide for the safety of customers. But if the defendants wish to put forward such a case, it is for them to show that, on balance of probability, either by evidence or by inference from the evidence that is given or is not given, this accident would have been at least equally likely to have happened despite a proper system designed to give reasonable protection to customers…” (with emphasis added)

107.  The plaintiff also prayed in aid of two other recent English judgments of Dawkins v Carnival Plc (t/a P & O Cruises) [2012] 1 Lloyd’s Rep 1 and Hassan v Gill [2012] EWCA Civ 1291, which also applied the principles in Ward v Tesco.

108.  The defendants agreed with the principles in Ward v Tesco, but they referred to, inter alia, Wat Kwing Lok v Kowloon Motor Bus Co (1993) [2008] 1 HKC 168, So Yee Ling v MTR Corporation Limited DCPI 333 of 2010 and Fazal Ahmed v MTR Corporation Limited DCPI 29 of 2011 for the application of the principles.

109.  Whilst I accept the submission by counsel for the plaintiff that once it has been established that there has been a degree of negligence on the part of a defendant, the burden is shifted onto the defendant to show that reasonable steps have been taken.  However, I am not convinced that it was ever proven a prima facie case that any of the defendants had been guilty of negligence. 

110.  I do not agree that the mere existence of sand in a public car park or on its slope is an “unusual event”, as cars are expected to frequently come in and out.  It would be reasonable to expect surface of tyres of vehicles to carry sand or dirt.  One can also expect the sand or dirt on the tyres will fall behind the vehicles when they are in motion.  Although one may say photographs could be deceiving depending on their quality, angle and lighting, by looking at the photographs of the slope taken on the day of the accident, I do not find that there was so much sand or dirt to a level that is unusual, rendering it to be an “unusual event”.  The live evidence of the plaintiff and Mr Chan regarding the “quantity of sand” was not of much assistance too, as they just agreed with the photographs and said “lots of sand” (“好多沙”).  I find that the plaintiff, Mr Chan and PC 9174’s description of the quantity of the sand rather subjective and not much weight could be placed thereon.

111.  I further do not agree that the sand could have come from the car park’s flower beds and/or the fire sand buckets as alleged by the plaintiff.  This is because by looking at the floor plan of the car park, the slope was at a distance from the flower beds and the buckets.  By looking at the photographs, walls were erected on the 2 sides of the slope.  Furthermore, since the car park was situated next to a building, it is unlikely that strong wind could have blown the sand from the flower beds and/or the buckets to the slope.  These alleged potential sources of the sand would be simple fallacies. 

112.  On balance, I find that the presence of sand on the slope was a normal occurrence of everyday life, just the same as pebbles, gravel, dirt, soil, earth or sand on public, private, indoor and/or outdoor roads.  One may also discover the same on the soles of a person’s shoes after a walk for a distance. 

113.  In Cheung Wai Mei v The Excelsior Hotel (Hong Kong) Ltd. Trading as the Excelsior CACV 38/2000, Mayo VP, after citing Ward v Tesco, stated at paragraphs 23 and 24:-

“23.  A deposit of yoghurt on the floor of a supermarket is very different from an accumulation of liquid which no one saw and which could only be inferred to exist as a consequence of a damp patch being found on the plaintiff's dress.

24.  What steps would it be necessary to take to obviate this risk.  It would appear that it would be necessary for staff to be posted at every entrance to the hotel and for them to be equipped with cleaning utensils capable of removing any liquid detected on either the marble or more likely coconut matting at short notice.  To state this proposition in this way is to virtually state that the hotel in the present case had an absolute duty to ensure the safety of the plaintiff.  Or to put the matter another way all the plaintiff would have to establish is that she slipped and fell and suffered injury for her to recover damages.  This is not the law.”

114.  I respectfully agree with Mayo VP.  The presence of sand on the slope was not an unusual event and it is rather more consistent with the absence of fault on the defendants.

115.  Alternatively, if the sand was of a “huge and large” quantity (for instance the sand was not left behind by tyres of cars, but was placed there by someone intentionally or unintentionally), this may nevertheless be an uncommon occurrence to the defendants, which they may not be able to foresee.  It may not even be a known hazard to them.

116.  Since I have found that the plaintiff has failed to demonstrate a prima facie case of negligence, the burden to show absence of negligence has not shifted to the defendants.

117.  For completeness, if the burden of proof had indeed shifted to the defendants, I would then agree with counsel for the plaintiff that the defendants had failed to prove on the balance of probabilities that they have properly implemented a safe system for the following reasons.

118.  Both Dawkins v Carnival Plc (t/a P & O Cruises) [2012] 1 Lloyd’s Rep 1 and Hassan v Gill [2012] EWCA Civ 1291concerned appeals regarding slip and fall victims.  The English Courts of Appeal commented that it was not enough to discharge the burden by merely calling evidence to show what the general system for safety is, without calling those persons, who actually manned the accident scene and physically implemented the safe system, to give evidence.  I agree with the views and reasoning of the English Courts.  These 2 cases fall squarely within the situation and evidence of the present case.

119.  It suffices to say that none of the defendants had called any witnesses who actually and physically manned, controlled, patrolled and cleaned the car park on the day of the accident.  The defence witnesses had no direct and personal knowledge of what was actually done on 11 April 2011, including what reasonable steps had been taken to ensure that the road surface was in a safe condition, what measures have been taken to effectively deal with or clean up after matters had been deposited on the slope surface and what system for daily inspection and cleaning of the car park was implemented.  They all relied on hearsay evidence which, although admissible, I would not attach much weight thereto.  For unknown reasons, the security guard Tang and the cleaner Leung were not called to testify.  The defendants did not even produce the very patrol log books and other primary evidence.  The defendants’ case was based on assumption and speculation that Tang and Leung had dutifully and faultlessly carried out their duties. 

120.  For these reasons, if the burden had indeed shifted to the defendants, they would not have discharged the burden.  I would have found all defendants (for the avoidance of doubt, including the 3^rd defendant) to be liable for negligence at common law and under the OLO.  See Wheat v E Lacon & Co Ltd [1996] AC 552 at pages 577 to 579, Clerk & Lindsel on Torts, 21^st Ed paragraphs 12-10 and Lau Shui Chun v Leung Tung Ping Metal Factory Limited & Others HCPI 75 of 1997.  They simply had the control and management of the car park and had a duty to ensure that the premises were a safe one.

ISSIE THREE: IF LIABILITY IS ESTABLISHED, WHETHER THE PLAINTIFF WAS IN CONTRIBUTORY NEGLIGENCE IN HIS DRIVING MANNERS?  IF SO, WHAT IS THE PERCENTAGE?

121.  The defence of contributory negligence shall be proved by the defence on a balance of probability.  Saied J in the judgment of Lee Chan Wing v Lee Wing Ping HCA 2475 of 1987 (which was upheld by the court of Appeal in CACV 143 of 1989) stated:-

“The burden of proving contributory negligence is on the defendant and it is not for the plaintiff to disprove it. It is for the defendant to prove first that the plaintiff failed to take ordinary care of himself …… I keep in mind also that in order to discharge his burden of proof it is not necessary for the defendant to give evidence about such matters, because contributory negligence can be inferred from the evidence adduced already on the plaintiff’s behalf or from primary facts, so found by the court on a balance of probabilities.”

122.  For further discussion on contributory negligence, see section 21(1) of the Law Amendment and Consolidation (Reform) Ordinance, Cap 23 and Chung Kei v So Yiu [1987] 1 HKC 373 at paragraph 16.

123.  If liability has been established (which is not the case), I would have held the plaintiff to be in contributory negligence, because of the following reasons:-

(a)  Insufficient lookout: If the sand was of a substantial amount (which was not substantiated by objective evidence) that could have caused his motorcycle to skid, he should have noticed it even if he had his helmet on.  A reasonable and prudent driver ought to have sufficient lookout and be aware of hazards and circumstances in front of him and around him.  Page 91 of the Road Users’ Code stated “Look out for danger from poor surfaces and potholes even in dry conditions.  Surfaces become slippery not only when they are wet but when they are covered with loose gravel or sand, mud or oil.”;

(b)  Improper control: He drove his motorcycle against the recommendations of the vehicle’s owner’s manual in braking solely with his front brake.  The manual stated “ride slowly down a hill, as braking downhill can be very difficult” and “apply both front and rear brakes simultaneously while gradually increasing the pressure”.  Common sense tells us that braking only with the front brake for a motorcycle, which is a rear-wheel drive, is dangerous and may cause the motorcycle to lose balance; and

(c)  Excessive speed: There was a speed limit sign of “8 km per hour”.  The plaintiff simply failed to pay heed to, or even notice, this recommended speed limit and  travelled at a speed at least double of that limit.

124.  The plaintiff was blameworthy and was the main author of his own misfortune.

125.  The plaintiff would have been in the region of 75% of contributory negligence.

ISSUE FOUR: WHETHER THE PLAINTIFF IS ENTITLED TO CLAIM THE LOSS OF EARNINGS AND LOSS OF MPF?  IF SO, HOW MUCH?

126.  Although I did not believe the plaintiff’s version about the slip and fall on the slope, and I found that the accident was not caused by or contributed to by the sand or slippery surface of the slope, on balance I accept that on 1 April 2011 he started to work on a part-time basis as an assistant manager at Mr Chan’s restaurant and that he was on probation for the month of April 2011.  Since Mr Chan gave evidence which supported the plaintiff’s claim that the plaintiff was in the restaurant’s employ, I simply accede to such a claim.  His case was that he had already received HK$4,000 in cash for his 8 days of employment.  According to the plaintiff’s oral contract with Mr Chan, he receives an hourly salary of HK$50 and he works 10 hours a day.  He receives 3 free meals, each of HK$30, whenever he works.  His monthly earnings was HK$12,980 (ie (HK$50 x 10 hours + HK$30 x 3 meals) x 22 days).

127.  I must say that my acceptance of the alleged employment is not without reservation, because documentary evidence (except the self-serving letter with typographical errors dated 1 September 2011) was lacking.  No supporting documents, for instance, salary payment receipts, clock-in and clock-out cards, accounting records for salary and name cards were produced.  Moreover, the evidence of the plaintiff and Mr Chan was  somewhat inconsistent with each other, because the plaintiff said he could take days off his work whenever he had personal matters to attend to, whereas Mr Chan said his restaurant is busy and would usually only allow 1 to 2 days off for leave for his members of staff.

128.  Having considered the Joint Medical Reports submitted by Drs Tio Man Kwan, Peter and Ko Put Shui, Peter, the orthopaedic experts, there are 4 different possible scenarios as to the quantum for the claim of loss of earnings and loss of MPF.

129.  Scenario One: if the plaintiff’s assertion about his employment is rejected, he would not receive anything.  Since I accepted that he was in the employ of the restaurant, this scenario is not applicable.

130.  Scenario Two: since the plaintiff was only on probation, if he did not pass the probation or ceased to work immediately after the probation at the end of April 2011, he could only claim HK$8,980 (ie HK$12,980 monthly salary – HK$4,000 salary already received in cash).  MPF should not be applicable in this scenario.    

131.  Scenario Three: the plaintiff was unable to work for Mr Chan due to the accident.  The plaintiff could have resumed his duties at the restaurant at the expiration of his sick leave by the end of December 2011 as endorsed by the Joint Medical Reports.  The doctors indeed opined the intermittent sick leave received by the plaintiff from 11 April to 15 December 2011 was appropriate and reasonable, as the plaintiff had 90% improvement.  Assuming that the plaintiff had resumed his employment by 1 January 2012, the total loss of earnings and MPF would be HK$117,711 (ie HK$112,926 + HK$4,785).

132.  HK$117,711 is calculated as follows.

133.  The period from 12 April 2011 to 31 December 2011 is about 8.7 months. HK$12,980 of monthly earnings x 8.7 months = HK$112,926 (for loss of earnings).

134.  The plaintiff would have been entitled to MPF at 5% of his loss of earnings (excluding the value of the 3 meals).  Thus HK$500 as daily wage x 22 working days x 8.7 months x 5 % for MPF = HK$4,785.

135.  Scenario Four: the plaintiff works for the restaurant until he becomes 65 at the age of retirement.  He will reach 65 in April 2016.  If so his pre-trial and post trial loss of earnings will be approximately HK$783,992 (ie HK$12,980 monthly salary x 60.4 months (from 11 April 2011 to April 2016)).  His loss of MPF will be  HK$33,220 (ie HK$500 as daily wage x 22 working days x 60.4 months x 5% for MPF).

136.  On balance, I think scenario three is most probable, fair and reasonable. It appeared that Mr Chan was satisfied about the plaintiff’s performance for the 8 days employment in April 2011 prior to the accident and that according to Mr Chan, the plaintiff would have been hired as a permanent part-time member of staff.  If so, the plaintiff would likely have passed the probation and have continued to work at the restaurant, but for the accident.  However, according to the plaintiff’s evidence under cross-examination, he did not ask Mr Chan whether he could return to work even after the sick leave period.  In fact, the plaintiff never even tried to look for other employment, which may even have higher monthly earnings, such as working as a chauffeur, a security guard, a cashier, a taxi driver or a bus driver.  He was simply picky about his choice of jobs. Other than his self-serving assertions, the plaintiff failed to show his efforts in looking for employment in the pre-trial period in 2012, 2013, 2014, 2015 and 2016.  He also failed to secure or maintain gainful employment allegedly owing to his extant medical conditions, for example, he has pain in his right foot and toes. 

137.  Having said that, I have not lost sight of Dr Tio’s opinion that the plaintiff could be able to resume his original duty as a part time assistant manager in a restaurant “provided that he does not have to walk or stand for a continuous period of over 2 hours and does not have to be involved in heavy manual duty”.  Be that as it may, I opine that it is unreasonable for the plaintiff to rely on the accident as an explanation (or excuse) for not positively looking for employment after the sick leave period expired.  Indeed, both doctors’ opinions are accepted by this court.  The plaintiff was able to walk unaided with no pain after his recovery.

138.  In the circumstances, if the plaintiff had been successful in claiming loss of earnings and MPF, I would have allowed HK$112,926 for loss of earnings and HK$4,785 for loss of MPF.

SUMMARY

139.  If the plaintiff had been fully successful in claiming against the defendants (but he was not), the award (without taking into account the 75% contributory negligence) is summarised as follows:-

PSLA	(as agreed)	HK$200,000
Loss of earnings		HK$112,926
Loss of MPF		HK$4,785
Medical expenses	(as agreed)	HK$1,274
Other special damage	(as agreed)	HK$12,170
Travelling expenses	(as agreed)	HK$1,000
Expenses on tonic food	(as agreed)	HK$5,000
Total		HK$337,155

140.  Interest on general damages would have run at 2% per annum from the date of the writ until date of judgment.  Interest from the date of judgment would have run at the judgment rate until full payment.

141.  Interest on special damages would have run at half judgment rate from the date of accident until the date of judgment.  Interest from the date of judgment would have run at the judgment rate until full payment.

CONCLUSIONS

142.  Failing to show causation or contribution to the accident, I dismiss the plaintiff’s claims with costs of this action to the defendants, to be taxed if not agreed.  The plaintiff’s own costs shall be taxed in accordance with Legal Aid Regulations.

143.  I certify the engagement of counsel.

144.  This cost order nisi will become absolute in the absence of application within 14 days.

145.  Lastly, I thank all counsel for their assistance.