YAU TSZ HIN v. BROADWAY THEATRE CO LTD

HCPI 674/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 674 OF 2010

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J U D G M E N T

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INTRODUCTION

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

2.  The plaintiff is a young lady, 23 years old at the time.  On the evening of 1 July 2009, she was watching a movie with her boy friend in House 2 of Broadway Cinema, Mongkok, Kowloon.

3.  The cinema was situated in a building at 6–12 Sai Yeung Choi Street where the ground floor and first to third floors were shops.  On the upper levels were the five houses of the cinema.  The auditorium of House 1 occupied the fourth and fifth floors of the building, House 2 the sixth and seventh floors, House 3 the eighth and ninth floors, while Houses 4 and 5, which were much smaller, together occupied the tenth floor.

4.  Two staircases ran through the floors at the south-eastern and south-western corners of the building respectively.  The lavatories of the cinema were located immediately next to the staircases, on the fifth, seventh and ninth floors.  The female lavatories were accessed via the south-eastern staircase; the male lavatories via the south-western one.

5.  While there were escalators that carried cinema-goers from the ground floor up the building to their houses, they had to walk down the staircases for exit after the movies. 

6.  The movie the plaintiff watched started at 10:20 pm and was to last until 12:56 am. At about 11:45 pm, the plaintiff went to the lavatory.  In order to do so, she had to go to one of the exits of House 2 on the sixth floor, and walk up the staircase to the female lavatory for House 2 which was on the seventh floor. 

7.  The configuration of the staircase is significant because the location of the fall is in dispute. As one comes out of the female lavatory to return to House 2, one has to turn left, go down three steps to a landing, turn right and walk down ten steps to another landing, turn right and walk down three steps to a landing, turn right again and walk down another ten steps to the sixth floor level.

8.  After visiting the lavatory, at about 11:50 pm, when the plaintiff was coming down to the sixth floor, she slipped and fell on the stairs.  She felt pain in the lower back and particularly the coccygeal area.  The emergency services were called and the plaintiff was taken to Kwong Wah Hospital by an ambulance. After examination there, she decided to leave, as she wanted to go to a private hospital instead.  After going home, she went to Union Hospital at about 9 am on 2 July 2009.

9.  In issue at trial were how the accident happened and in particular whether it was caused by wet floor or wet stairs, and whether the defendant as occupier of the cinema breached the common duty of care owed to its patrons such as the plaintiff.  Assuming the defendant was liable there were also issues of contributory negligence and quantum of damages.

10.  That the plaintiff slipped and fell in the staircase is not in dispute.  But there is a stark conflict between the version of events advanced by the plaintiff and that advanced by the defendant.  Unfortunately, there is little contemporaneous record of what happened.  The “Occurrence Book” of the defendant contained a simple entry stating that at about 11:50 pm, a customer who was watching a 10:20 pm movie in House 2 fell in the staircase of the female washroom; the police was contacted and an ambulance took her to the hospital.

ISSUES ON LIABILITY

11.  The causes of action relied upon by the plaintiff are negligence and breach of the common duty of care under the Occupiers Liability Ordinance (Cap 314).  For present purposes there is no material distinction between the two.  Nor does the defendant dispute that it owed a duty to the plaintiff “to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which [she] is invited or permitted by the occupier to be there”: see section 3(2) of the Occupiers Liability Ordinance.

12.  As far as liability is concerned, the principal issues of primary fact, based on the pleaded allegations, seem to me to be:

(1)   whether the staircase was properly lit;

(2)   whether the floor of the female lavatory was wet;

(3)   where the plaintiff slipped and whether the relevant step of the staircase was wet; and

(4)   whether the plaintiff’s fall was caused by the wetness and dimness complained of.

13.  If the plaintiff fell because of the alleged wetness or dimness, the issue then arises whether the defendant was negligent and breached its duty to the plaintiff. 

THE WITNESSES

14.  The plaintiff gave evidence herself and called the friend who went with her to the cinema that evening, Jim Kwok Mun (“Jim”), as a witness.  For reasons that I explain below, I do not find their evidence reliable on a number of important matters.

15.  The witnesses called by the defendant were Siu Kit Ho – the manager of the cinema, Yim Wai Tak – the assistant supervisor of the cinema, Ng Chan Mei Wah – one of the cleaners at the time, and Yeung Bing Ying – a projectionist.  I accept that they were generally truthful witnesses but, as a matter of fact, because there was no earlier complaint from the plaintiff, they were only first asked around a year or more after the accident to recall what happened on the night of 1 July 2009.  I therefore consider that I must approach their recollection with caution.

16.  I should record that after producing the clinical notes from Kwong Wah Hospital and the ambulance record referred to in paragraphs 38 and 45 below on the last day of the trial, the plaintiff’s counsel applied for leave to call the ambulance staff to give evidence.  I refused the application then, because the staff could not realistically be expected to have any independent recollection of the incident and the application was in any event far too late.

THE EVIDENCE AND FINDINGS ON LIABILITY

Layout of the staircase and location of the lavatory

17.  The layout of the staircase, the location of House 2 and the position of the female lavatory in question as set out in paragraphs 3, 4 and 7 above were ultimately common ground in the trial.  But that was not the case when the trial started.

18.  At the beginning of the trial, because of the apparently conflicting evidence of where the plaintiff was after the fall, I sought an explanation of the configuration of the locus in quo and relevant plans or drawings as appropriate.  After the defendant’s counsel, with the aid of the photographs in the bundles, gave me a verbal explanation equivalent to that set out in paragraph 7 above, the plaintiff’s counsel said, expressly on instruction, that the plaintiff had come out from the lavatory and immediately descended a long flight of steps on which she fell.  In other words, her case was that there was not a short flight of three steps that one had to descend before making a turn on the landing to walk down the long flight of steps.  She denied that the configuration of the staircase was as described by the defendant’s counsel, and claimed that the layout might have been altered through major renovations after the accident.  She also said, through counsel, that House 2 was on the second floor and that there might have been a reshuffling of the numbers of the houses.

19.  The plaintiff’s stance was soon shown to be wrong upon the production by the defendant of the floor plans (which formed part of the building plans) on the first day of trial as a provisional defendant’s exhibit.  The plans bore out the configuration as explained by the defendant’s counsel and that House 2 was on the sixth and seventh floors.  They were eventually accepted by the plaintiff as an accurate representation of the scene.  To my mind, however, this needs to be taken into account in considering the reliability of the plaintiff’s version of events.

Lighting of the staircase

20.  Both the plaintiff and her witness Jim said that the staircase was very dim.  The plaintiff said it was so dim that there was not enough lighting for her to see the staircase to go down step by step.  Jim said it was so dim that things would appear blurred.

21.  I do not believe that evidence. While I would readily accept that the staircase was not very brightly lit, I find their evidence a gross exaggeration.  I find it incredible that it could have been so dim that the individual steps were not visible, which was the effect of the plaintiff’s evidence.  When asked whether she meant she had to grope her way along the staircase, she evaded the question.

22.  The same part of the staircase would be used by the patrons of all the houses above when they exited the cinema.  The plaintiff, who had been to that cinema a few times before the accident, admitted that the lighting in the staircase was the same when she went to the lavatory as when a movie ended and the patrons walked down it.

23.  In other words, the staircase was not a rear staircase that was rarely used by anyone.  It was the exit route used by a large number of people every day every time a movie ended.  If the lighting had been as dim as suggested by the plaintiff, it was doubtful that the defendant could have obtained a licence to operate the cinema under the Places of Public Entertainment Ordinance (Cap 172).

24.  I accept the evidence of Siu Kit Ho that there were a pair of fluorescent tubes installed under the structural beam on the ceiling outside the female lavatory and also outside the exit of House 2.  Each pair had a combined brightness equivalent to a 280-watt light.  In addition, there was a 100-watt light bulb above the landings between the sixth and seventh floors.

25.  It is true that the middle part of the long flight of steps would be half-way between these lights and therefore probably dimmer than the landings, but on the plaintiff’s own case she slipped on the first step of the long flight and fell down the stairs. So the state of illumination of the middle part of that flight of steps is quite irrelevant.

26.  I reject the allegation that the staircase was insufficiently lit.

Where and how the plaintiff slipped and fell

27.  In her oral evidence, the plaintiff said that as she came out from the lavatory, she felt the floor was wet and the soles of her shoes were wet.  It is not in dispute that she was wearing sandals with a Y‑shaped strap that passed between the first and second toes but no strap around the ankles.

28.  The plaintiff said as she thought the floor was wet, she held on to the left handrail quite firmly and walked down along the left side of the staircase slowly and very carefully.  After walking down the short flight of three steps, and when she was beginning to descend the first step of the long flight of ten steps, she slipped.  She could not recall whether her foot actually touched the first step of that flight of stairs.  She then fell (feet pointing downwards, like – in her own words – going down a slide) down the ten steps to the landing and continued to fall down the next short flight of three steps (which were at a right angle to the preceding ten steps) before she finally stopped on the next landing.  She found herself lying almost flat on that landing, in a supine position. 

29.  Jim also said that he saw the plaintiff lying on that landing.  He said that when he saw the plaintiff, she told him that she had fallen down a long flight of steps.

30.  In contrast, those of the defendant’s witnesses who claimed to have seen the plaintiff on the staircase, namely, Yim Wai Tak, Ng Chan Mei Wah and Yeung Bing Ying, said that they saw her at the short flight of steps immediately outside the female lavatory.

31.  The plaintiff’s oral evidence was different from her witness statement, which said that she began to fall when she was walking on the third step.  It was also different from the version that her counsel had put forward in opening, as described in paragraph 18 above, which was that she had slipped on the first flight of steps as she came out of the lavatory.  These discrepancies are in my view remarkable.

32.  The plaintiff’s version also struck me as being strange and improbable.  She was an able-bodied person of 23 years of age.  The steps were by no means particularly narrow.  The floor plan showed that the flight of ten steps measured 2520 millimetres in total, which means that each step was about 25 centimetres wide. On her case she was being very cautious as she believed the floor was wet.  She walked slowly, step by step, and held “quite firmly” on to the handrail.  In my view it is difficult to see how she could have slipped if this was all true.

33.  I also find it inexplicable that the plaintiff did not use her hands to try to stop herself from sliding further if she did slide down so many steps.  She said that her hands could not touch the floor.  I find that difficult to believe.

34.  Moreover, to start and end the fall as she described it would involve making a turn at the landing between the flight of ten steps and the following flight of three steps, even if she was sliding down the long flight diagonally from the top left to the bottom right as she said she did.  It is difficult to see how she would have made such a turn in an accidental slip and fall.

35.  During her evidence the plaintiff indicated on a photograph (exhibit “P1”) her final position after the fall, which showed her head pointing towards the wall and her feet pointing at an angle towards the next ten steps going down.  This would involve the plaintiff having made a further clockwise turn as she reached the landing where she came to rest.  It is again very difficult to see how this could have happened.

36.  I do not believe the plaintiff’s version of the incident.  I prefer the evidence of the defendant’s witnesses on where they saw her after the accident.  I believe they tried to tell the Court what they could remember.  They were familiar with the configuration of the staircase and their evidence as to the place where they saw the plaintiff was in my view reliable.  The evidence of Yim Wai Tak (who, the plaintiff accepted, was there at the time) was that she was on the landing below the three steps outside the lavatory.  Yeung Bing Ying, the projectionist, was going down from the eighth floor into the projection room which was located half-way between the seventh and eighth floors.  I accept his evidence that he saw the plaintiff in the staircase as he was entering the projection room.  He could not have seen the plaintiff from that position if the plaintiff had fallen in the way she said she did. 

37.  The evidence suggests, and I so find, that the plaintiff had slipped and fallen on the short flight of steps outside the female lavatory.

38.  The plaintiff’s counsel submitted that the defendant’s version was inconsistent with the clinical notes taken by Kwong Wah Hospital in the early hours of 2 July 2009, which were only produced by the plaintiff to the court at the beginning of the last day of the trial.  The notes stated under the heading “History & Examination” that the plaintiff complained of slip and fall “from stairs (4 step) tonight” [sic].

39.  I accept that this note would have been based on what the plaintiff told the medical staff of Kwong Wah Hospital at most a few hours after the accident.  It suggests that the plaintiff had told them that she had fallen four steps on the stairs.  If the defendant’s version was correct, the plaintiff’s counsel submitted, it should have been three steps, not four.

40.  However, on the plaintiff’s own evidence at trial, she had fallen some 12 or 13 steps. When I put that to him, the plaintiff’s counsel asked for a short adjournment to take instructions, and returned to suggest that the words “4 step” in the notes could have been a reference to the (approximately) four steps the plaintiff had walked down after leaving the lavatory and before the fall. 

41.  This explanation is in my view untenable.  Until the floor plans were produced, the plaintiff said in her statement she slipped on the third step and, as set out in paragraph 18 above, her counsel opened the case on the basis that she slipped on the first step in the staircase immediately after leaving the lavatory.  On that footing she could not have told the medical staff that she had walked down four steps before she slipped.  Furthermore, how many steps the plaintiff had walked before the fall was of no concern to the attending doctor.  What was noted down must in the context be a reference to the height of the fall, i.e. the steps the plaintiff had fallen down.

42.  In my view the clinical notes are not inconsistent with the defendant’s evidence.  The plaintiff could have remembered there were four steps in the short flight and told the medical staff accordingly.  If anything, the notes are more inconsistent with the plaintiff’s evidence.

43.  The plaintiff’s counsel submitted that the seriousness of the plaintiff’s injuries was more consistent with her having fallen down a long flight than just three or four steps.  I am unable to accept this submission as there is no evidence at all in support of that proposition. 

44.  Further, in her oral evidence the plaintiff claimed to have suffered bruises in both elbows and both knees, in addition to injury to her lower back.  When she was asked how her knees could have been hurt when she had slid down the stairs face-up, the plaintiff said that the bruises on her knee caps might have been from previous injuries, but that she did suffer bruises on the outer sides of her knees as a result of the accident.

45.  I reject that evidence.  Such injuries were asserted for the first time by the plaintiff at trial and never mentioned in any medical report before.  In fact, the nursing assessment of Union Hospital at 10:40 am on 2 July 2009 (i.e. only about eleven hours after the accident) specifically stated, in relation to skin integrity, that there was nil lesion, whether in the form of rash, bruise or wound.  Likewise, the ambulance record indicated no suspected injury at all in the knees or elbows.  The plaintiff might have thought that such bruises would be more consistent with her version of the fall and so added this to her evidence, suggesting that her evidence might not be a completely true account.

46.  The plaintiff also stated that much of the female lavatory floor was wet.  She said she noticed the wetness after she came out of the cubicle within the lavatory.  In the course of her evidence, she made numerous fine pencil marks on the floor plan (exhibit “D1”) to indicate in detail the wet areas in the lavatory. 

47.  The plaintiff also alleged that the steps of the staircase were wet.  According to her, she did not see any wetness, because it was too dark, but that she “took the view” it was wet.

48.  I do not believe that evidence. I find her to be an unreliable witness.  Before the accident the plaintiff had no reason to pay minute attention to the condition of the lavatory floor. After the accident she did not see the lavatory again.  I do not believe that she would be able to remember in such particular which areas of the lavatory were wet.

49.  The plaintiff said that a young woman saw her there immediately after the fall and she asked the young woman to help fetch Jim.  Jim said that a young man told him his friend had fallen in the staircase.  I do not take that as a discrepancy in the plaintiff’s evidence as the young man and young woman might have gone to the cinema together.

50.  I accept the evidence that Jim came out of House 2 and thereafter stayed with the plaintiff in the staircase.  They were dating and he would obviously be concerned for her when she did not return after going to the washroom.  The ambulance journey record showed that the plaintiff was escorted by a friend.

51.  Yim Wai Tak, Ng Chan Mei Wah and Yeung Bing Ying of the defendant said that there was no friend of the plaintiff present.  I think their recollection was faulty there.  I do not accept that evidence.

52.  There is no dispute that before the ambulance arrived, Yim Wai Tak, the assistant supervisor of the cinema, also came to the scene.  He, the plaintiff and Jim together waited for the ambulance to arrive.  Yet the plaintiff made no complaint or mention to him that the floor was wet and that she had slipped as a result.  The plaintiff claimed that they were too far apart because Yim Wai Tak was standing near the exit of House 2 while she was on the staircase landing between the sixth and seventh floors.  I do not believe her.  Jim admitted, and I accept, that Yim Wai Tak was standing nearby.

53.  The plaintiff claimed she had told the ambulance staff when they arrived that she had slipped because the floor was wet.  However, there was nothing to that effect in the ambulance record.  All that was written down there by way of remarks was “Patient was fall down on the floor, feel lower back pain” [sic].  I do not accept the plaintiff’s evidence.

54.  Nor was there any mention in all the clinical notes of Kwong Wah Hospital and Union Hospital that the plaintiff had slipped on wet floor.  The notes of Union Hospital recorded that the plaintiff had a slip and fall “on stairs in cinema” and that she “slipped & fell at cinema 1-7-09, 1 flight of stairs”.

55.  The plaintiff gave evidence that while they were waiting for the ambulance, she told Jim that she had slipped and fallen because the floor was wet and slippery.  Under cross-examination, however, Jim stated that she had only told him it was slippery, and did not tell him then it was wet.

56.  Both the plaintiff and Jim gave evidence that Jim then touched the bottom of the plaintiff’s shoes and found that they were wet.  I do not believe that evidence.  Quite apart from the fact that I find them unreliable on other parts of their version of events, Jim could not satisfactorily explain why he did such an odd thing even though the plaintiff did not mention to him there was wetness.  On his own admission he did not walk up a few steps to inspect the stairs.  Further, it is in my view significant that Jim made no mention at all to Yim Wai Tak that the floor was wet and that the plaintiff had fallen because the floor was wet.

57.  In conclusion, I find that there is no reliable evidence that the lavatory floor and the staircase were wet.  I cannot infer there was wetness as alleged simply from the fact that a slip and fall accident happened.  Accordingly, while I have every sympathy for the plaintiff having regard to her injuries, I have to conclude that she has failed to prove that she slipped and fell in the way she said she did because of the wetness and dimness she complained of in this action.

The defendant’s system

58.  Even if I had found that the lavatory floor or the steps of the staircase were wet, making the bottom of the plaintiff’s shoes wet and thereby causing her to slip, that would not mean the defendant was necessarily negligent or breached its duty.  The occupier’s duty is one “to take such care as … is reasonable to see that the visitor will be reasonably safe”.  The occupier does not guarantee the safety of his visitors.  He is not liable if he has in place a system to protect visitors against the type of damage in question that satisfies the standard of care expected of him.

59.  In Cheung Wai Mei v The Excelsior Hotel (Hong Kong) Limited trading as The Excelsior, CACV 38/2000, 22 November 2000, although the plaintiff there had slipped and fallen because she had stepped on water accumulated on a marble floor or in a mat near an entrance of the hotel, the Court of Appeal held that the hotel was not liable.  It was sufficient for the hotel to have a cleaner on duty in the lobby.  It could not be expected to post staff at every entrance to the hotel equipped with utensils to remove any liquid detected on the marble or matting at short notice.

60.  In the present case, the defendant led evidence on its patrolling and cleaning system.  I accept that evidence.  The staircase in question, which was paved with anti-slip tiles with grooves near the edges of the steps, was patrolled every 20 minutes during the opening hours of the cinema.  If the patroller saw that any steps were wet, he would ask for the cleaner.  He would stay there until the cleaner arrived.  The cleaner would use a dry mop to clean the stairs.  In addition, shortly after a movie ended and the patrons had exited via the staircase, the staff would check the staircase and pick up rubbish and remove any liquid they detected there.

61.  The defendant engaged a cleaning services company to carry out the cleaning tasks.  There would be two cleaners at the cinema at any one time.  The three female lavatories were the responsibility of one of the two cleaners, namely Ng Chan Mei Wah, who was instructed by the defendant to clean the lavatory every hour.  In addition, she gave evidence, which I accept, that when she passed the lavatories she would also go in and check and clean up if necessary, which meant that the female lavatories were checked about every half an hour.  She would also clean the lavatories after a movie ended.  The patrollers would also check the toilets. Further, members of the cinema staff used the same lavatories and if they found them in need of cleaning they would notify the cleaners.

62.  In my judgment this sufficiently discharged the duty on the defendant as occupier to take reasonable care to see that the lavatory floor and the steps of the stairs were kept reasonably safe and free from accumulation of water.  I do not consider that the defendant could reasonably be expected to station a cleaning worker in each of the lavatories to be ready to mop off any water on the floor.

63.  The plaintiff also alleged that the defendant was negligent and breached its duty by not having placed a floor mat inside or outside the lavatory, it being common ground that there was no mat there at the time.  But it seems to me that a mat could hold water and transfer moisture to otherwise dry soles.  Moreover, a mat placed in the staircase could present a different risk, namely the danger of tripping, especially when large crowds could be expected to come down the stairs immediately after a movie.  There was little investigation in the trial of the advantages and disadvantages of having a mat there.

64.  There is evidence that at some point after the accident and before January 2011, a mat was placed on the landing outside the female lavatory on the seventh floor.  As Counsel for the plaintiff fairly accepted, however, the fact that a mat was subsequently installed does not mean that there was negligence before arising from its absence.

65.  In conclusion, even if I had found that there was wetness on the lavatory floor or the steps of the staircase causing the plaintiff to slip and fall, I would not have held that the defendant was in breach of duty to the plaintiff.

CONTRIBUTORY NEGLIGENCE

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

67.  If I had accepted the plaintiff’s case that the lavatory floor and the steps outside were wet as she claimed, I would unhesitatingly have found that the plaintiff had not taken reasonable care for her own safety.  It seems to me that in all the circumstances she could not have taken the care which a reasonable person would take when walking down steps known to be wet and potentially slippery.

68.  On that basis, having regard to relative blameworthiness and causal potency, I would have held that the plaintiff had a 50% share in the responsibility for the damage and reduced the damages accordingly.

QUANTUM

69.  The amount of damages to which the plaintiff would be entitled if liability was established was also in dispute.  In this section I shall set out the injuries suffered by the plaintiff and the treatment received and her working history.  I shall then deal with the various categories of damages in turn.  I take the amounts claimed from the skeleton closing submissions of the plaintiff’s counsel.

Injuries and treatment

70.  The plaintiff was taken by an ambulance to Kwong Wah Hospital.  Her chief complaint was pain in the lower back and coccyx.  The pain increased upon movement.  There were two instances of urinary incontinence, once when the ambulance men had arrived at the scene and once in Kwong Wah Hospital.  X-rays of the lower spine and coccyx did not show any fracture.

71.  After she went to Union Hospital on the morning of 2 July 2009, she was put under the charge of an orthopaedic surgeon, Dr Lee Wai Keung.  A magnetic resonance imaging study showed that she had an acute fracture of the fourth sacral vertebra but there was no direct compression on her nerves.  The plaintiff developed urination problem with retention of urine.  A urologist, Dr Cheng Chi Wai, was consulted.  Examination showed poor bladder compliance and bladder hypo-contractility.  She stayed in the hospital until 7 July 2009.

72.  The plaintiff had residual pain over her sacrum.  She attended orthopaedic follow-up in February 2010. A scan showed the sacral fracture had united.  In April 2010, Dr Lee reported that the prognosis for the plaintiff’s back pain was good.

73.  The joint orthopaedic expert report prepared for these proceedings based on an assessment in August 2011 stated that the plaintiff complained that she had paraesthesia in both legs, over both feet and front of legs up to the knees, which would occur after sitting for over an hour.  If she continued to sit, the paraesthesia would worsen and she would have back pain.  The paraesthesia was relieved by standing up and walking around for a few minutes, but the sacral back pain could persist for a few hours.  However, the report also stated that the plaintiff could tolerate the sitting duration to watch a movie in the cinema.  The plaintiff also reported lighter touch sensation over her right leg and foot.

74.  The orthopaedic surgeons concluded that the range of motion of the plaintiff’s lower back was normal and the lower limbs findings were essentially normal except the altered touch sensation in the right leg.  They opined that the lower limbs symptoms (i.e. paraesthesia) could not be explained with the normal background structural basis of the spinal nerves.  They took the view the plaintiff had no residual structure deformity over her sacrum, but that “a certain degree of residual pain on prolonged sitting is likely to persist in such sacral fracture”. 

75.  The experts also agreed that the plaintiff was independent and capable in her activities of daily living and required no further orthopaedic treatment.  They agreed that she probably could not resume her previous activities such as jogging and hiking due to residual sacral pain but swimming should not be affected.

76.  In her evidence the plaintiff said that the pain had intensified recently, so much so that she decided to quit her job in December 2012.  However, her counsel had opened the case on the basis that she had quit her job because she was getting married. There is no further medical evidence or any objective condition supporting the plaintiff’s claim that the pain had recently substantially intensified.  I do not accept her evidence in that regard.

77.  For her urinary problem the plaintiff had a follow-up study in October 2009 and was given a cholinergic drug to help initiate bladder contraction.  There was some improvement up to 2010 but the drug was discontinued in 2011 as there was no further improvement.

78.  The joint urological expert report prepared for the purpose of these proceedings based on an assessment in July 2011 stated that the plaintiff had a neurogenic hypo-contractile bladder resulting from contusion of sacral nerves to the bladder associated with the traumatic fracture of the fourth sacral vertebra. She had a weak urine stream, requiring the use of abdominal strain to void the bladder, and was unable to empty the bladder, with residual urine of around 30%.  Her bladder dysfunction was likely to be permanent. 

79.  The joint report also stated that the plaintiff had mild weakness at defaecation and needed to squat to effect bowel motion.  The experts agreed this was part and parcel of her residual neurological disabilities.

80.  In summary, I accept that the plaintiff continues to suffer:

(1)   residual pain in the lower back and sacral area and paraesthesia in her legs after prolonged sitting;

(2)   inability to enjoy more vigorous sports or activities such as jogging, hiking and go-karting, though she could still swim;

(3)   urinary dysfunction as described above;

(4)   mild weakness in defaecation as described above.

Working history

81.  The plaintiff is a university graduate and did her studies in product design.

82.  Before the accident, in 2008, she worked as a designer in Citizen, earning a salary of $13,000 per month.  She left this job in November 2008.

83.  From then onwards until the date of the accident, she did not have a full-time job.  Instead, she worked as a freelance designer and conducted on-line trading activities.  In her statement, she said that she created designs for products such as posters, postcards and greeting cards.  In her oral evidence, she said she designed watches and ornaments.  As for her on-line trading activities, which she started in May or June 2008, she explained that she bought goods on-line (mainly from a website called “taobao”) and then put the items on a Yahoo website for sale.  According to her statement, she earned about $2,000 to $3,000 per month during this period.

84.  In June 2009, the plaintiff was offered a job by Hobson Ltd as a jewellery designer with a salary of $13,000.  She was due to start this job at the beginning of July but postponed it to mid August 2009 because of her injuries.  She worked there until 28 November 2010.  She said the employer asked her to leave because they felt she could not concentrate as she had to go to the washroom frequently.

85.  However, the plaintiff managed to find a new job soon.  For about two years from 11 January 2011 to December 2012, the plaintiff worked in IAD Jewellery Ltd.  Her starting salary was $12,000.  On 27 May 2011 the employer increased her salary to $12,500 in view of her “satisfactory work performance”.  On 1 September 2011 the employer increased her salary further to $14,000 in view of her “outstanding performance”.

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

86.  The plaintiff’s counsel submitted that $700,000 should be awarded for PSLA.  He relied on Sze Sing Nin v Hip Hing Construction Co Ltd, HCPI 1108/1997, 8 December 1998, where the plaintiff fell from a height of 15 feet to the bottom of a tank, resulting in the fracture of his third lumbar vertebra with severe posterior displacement and a marked compression onto the nerve roots in his spinal canal.  The symptoms he continued to suffer included constant back pain radiating to the right thigh, inability to squat or lift heavy objects and pain on bending, pain in the left thigh with numbness, inability to pass urine smoothly and involuntary dripping of urine when he lifted heavy objects or coughed or felt unwell, and impaired sexual function with difficulty in having a normal erection.  The Court awarded him $485,000 for PSLA.

87.  Counsel for the defendant referred me to Lauw Ka Fong v Best City Ltd, HCPI 436/2004, 27 May 2005.  There the plaintiff fell from a ladder and suffered a fracture at the first and third sacral vertebrae.  She would feel persistent pain in the lower back after prolonged sitting or walking and lower back stiffness and right leg numbness on prolonged sitting.  She had difficulty in ascending or descending stairs, and was unable to squat.  She had pain on sleeping in certain positions.  She was also unable to have sexual intercourse, which resulted in her marriage break-up.  The Court awarded $300,000 for PSLA.

88.  In all the circumstances, having regard to the continuing urinary dysfunction and the residual pain suffered by the plaintiff, I consider that an appropriate award for PSLA would be $350,000.

Pre-trial loss of earnings

89.  Under this head the Plaintiff claims $5,500 per month for 45 months (July 2009 to March 2013).  A special feature of this claim is that it does not relate to any lost income from a full-time job, but to lost income from freelance design work and on-line trading activities.  I accept that the plaintiff had engaged in these two gainful activities prior to the accident.

90.  The plaintiff said that because of her injuries, she had been unable to do any freelance design work or conduct on-line trading.  She was unable to do freelance design work because she could not sit for any prolonged period.  I accept that in the first few months or so after the accident, there would have been much pain.  But the fracture had healed well by February 2010.  I also take account of the fact that by mid-August 2009 she was able to take up a full time job as a designer.  While her condition might require her to have more short rest, I am unable to accept that the injuries prevented her from doing freelance design work at home after the initial few months.  Nor does the medical evidence suggest that there was such inability.  Although the plaintiff might not have been in the mood to do any freelance work after the accident, I cannot award her damages for not receiving the income from such work.

91.  As for on-line trading, it was mainly conducted via a computer.  I accept that in the first few months after the accident, the sacral fracture and associated pain meant that the plaintiff could not reasonably be expected to conduct on-line trading even if she had wanted to.  But after that period I do not accept the residual effects of the injuries were such as to prevent the plaintiff from carrying on such trading.  It was something she could do on a computer while standing or sitting.

92.  The plaintiff might have to take photographs of the merchandise to post on the internet, and might have to make delivery of the goods to purchasers.  But according to the joint orthopaedic expert report, the plaintiff herself accepted that “endurance for ordinary walking is not affected and she can tolerate walking for about 3 to 4 hours”.

93.  On these facts, I find that there was loss of earnings from freelance design and on-line trading for eight months up to February 2010 when the fracture was shown to have completely united, but not afterwards.

94.  As for the amount of monthly loss, the figure of $5,500 claimed by the plaintiff appears to have been an average figure taken from the plaintiff’s answer in cross-examination that she had earned about $5,000 to $6,000 per month from the two activities combined during the period from November 2008 (after she ceased to work at Citizen) to June 2009.

95.  I appreciate that that was a period of time in which the plaintiff was unemployed and that for most of the time between the accident and the trial, the plaintiff had full-time employment.  It may be said that one should not use the average income during the former period to project her lost income from not being able to pursue the two activities in her spare time during the latter period.

96.  I am nevertheless satisfied that the plaintiff did derive real income from those activities and did suffer a real loss for eight months.  The evidence is not wholly satisfactory and although bank account records had been produced, no effort has been made to distill from them any concrete figures.  Doing the best I can and accepting the lower estimate of the plaintiff I would assess such loss at $5,000 per month.  I would therefore award $40,000 (i.e. $5,000 per month x 8 months) as pre-trial loss of earnings.

97.  The plaintiff also delayed the commencement of her employment after the accident for one and a half months.  Although this is not included in the plaintiff’s skeleton closing submissions, I think the damages ought to cover this loss, assessed at $19,500 (being $13,000 per month x 1.5 months).

Future loss of earnings

98.  Under this head the Plaintiff claims $5,500 per month with a multiplier of 15.  The total amount claimed is $990,000 ($5,500 x 12 x 15), representing compensation for lost income from freelance design and on-line trading for the rest of her entire working life.  It follows from my conclusion in paragraph 93 above that I am unable to give her such damages claimed.

99.  In any event I have difficulty with the approach adopted in the plaintiff’s calculation.  It assumes that she would be doing the same amount of freelance design work and on-line trading during her spare time in addition to full-time work for the rest of her life.  That assumption seems to me to be wholly unrealistic.

Loss of earning capacity

100.  The plaintiff claims $100,000 for loss of earning capacity.

101.  In Moeliker v A Reyrolle & Co Ltd [1977] 1 WLR 132, 142, Browne LJ stated the principle on this head as follows:

“The consideration of this head of damages should be made in two stages. 1. Is there a ‘substantial’ or ‘real’ risk that a plaintiff will lose his present job at some time before the estimated end of his working life? 2. If there is (but not otherwise), the court must assess and quantify the present value of the risk of the financial damage which the plaintiff will suffer if that risk materialises, having regard to the degree of risk, the time when it may materialise, and the factors, both favourable and unfavourable, which in a particular case will, or may, affect the plaintiff’s chances of getting a job at all, or an equally well paid job.”

102.  It seems to me that while the plaintiff’s injuries will continue to be a source of discomfort and inconvenience to her, the effect on her employment and work performance as a designer is minimal.  She has had no difficulty in finding a job after the accident and, to her credit, has achieved outstanding performance according to her most recent employer.  On that basis I do not think that damages for loss of earning capacity are warranted.

Special damages

103.  The plaintiff claims special damages of $90,663.  Within this head the two disputed items are the consultation fees of Chinese medicine practitioners and acupuncturists and the cost of Chinese medicine in the total amount of $37,230 and tonic food in the amount of $8,000.

104.  The plaintiff was unable to produce a single receipt or any contemporaneous written record she made for these claims.  When asked how she was able to state the exact amount of $37,230, she said she recalled the fees for each visit.  I am unable to accept that evidence.  While I am prepared to believe that the plaintiff did see a Chinese medicine practitioner and an acupuncturist, there is no evidence at all how many times she went and what the average cost per visit was.  The relevant period was September 2009 to December 2010, part of which post-dated the first demand issued to the defendant.  In these circumstances I would not be prepared to make an award in relation to this item.

105.  The amount of $8,000 for tonic food, however, seems to me to fall within reasonable and credible bounds.  As pointed out by the plaintiff’s counsel, in Lau Koon Loi v Wong Wai Sang, HCPI 445/2007, 28 June 2011, Suffiad J did award an amount of $10,000 for tonic food even though no receipts had been produced.  I accept that approximately $8,000 was spent on tonic food.

106.  I would therefore award the sum of $53,433 (i.e. $90,663 less $37,230) as special damages.

Future medical expenses

107.  The urologists were agreed that the plaintiff needed to have regular urological follow-up to monitor her progress and that the estimated cost was $10,000 per year.

108.  In the joint report the defendant’s urological expert mentioned using alpha-adrenergic blockers to try to increase urine flow rate and reduce residual urine.  This would cost an additional sum of $5,500 per year. 

109.  The plaintiff claims this as part of her future medical expenses.  However, her own expert stated in the joint report that a trial might be done and such treatment should be adopted only if objective response was demonstrated.  The evidence is that such treatment has not been adopted by the plaintiff’s treating doctor.  In these circumstances I do not think that the cost of this hypothetical treatment should be included in the plaintiff’s future medical expenses.

110.  Applying the undisputed multiplier of 19 (for medical expenses) to the annual sum of $10,000, the award on account of future medical expenses would be $190,000.

Summary on Quantum

111.  The total award should be $326,466.50, being the sum of the following, reduced by 50% on account of the plaintiff’s contributory negligence:

Interest

112.  There is no dispute that the plaintiff would be entitled to interest as claimed at 2% p.a. on the PSLA award from the date of writ (21 December 2010) to judgment and on all pre-trial special damages at half judgment rate from the date of the accident to the date of judgment.

CONCLUSION

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

114.  There will also be an order nisi that:

(1)   the plaintiff do pay the defendant its costs of the action; and

(2)   the plaintiff’s own costs be taxed in accordance with the Legal Aid Regulations.