LIU WAI SHAN v. TRIPLE LUCK LTD t/a GOLDEN JADE SEAFOOD CITY

HCPI 914/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 914 OF 2006

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J U D G M E N T

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1.  By 13 March 2004 Leung Kai Sun had reached 55 years of age.  He was the breadwinner in his family, which comprised himself, his wife and two children, and as well he supported a nephew who was part of their household.  Throughout his working life he had been a waiter.  By the date I have referred to, he had been employed by Ming Yuen Noodle Restaurant for about seven years.

2.  That evening the roles were reversed; he was then a guest at Golden Jade Seafood City, a restaurant in Cheung Sha Wan.  The occasion was a family reunion; a banquet to mark a visit to Hong Kong of his wife’s elder sister and her immediate family.  There were 24 in the party, and they occupied a private dining room, seated at two tables.  Mr Leung shared his table with his family, five of them in all, and seven other relatives.

3.  But what began as a joyous occasion ended horribly.

4.  Towards the end of the meal, nature called Mr Leung and he went off to use the men’s washroom.  Whilst in there he fell to the floor, hitting his head so badly that his skull was lacerated and he was knocked unconscious.  The resultant injury impaired him neurologically, and permanently.  He lost his job as a waiter and is no longer able to perform such work or indeed any other.  Had he not suffered the accident he would have expected to have remained active and in service for another ten years, by which time he would have reached 65 years.

5.  By this action Mr Leung is suing Triple Luck Limited, the company that owns the restaurant, in negligence and in breach of the common law duty of care it owed him as a visitor to its premises, by application of the Occupiers Liability Ordinance, Cap.314.  His pleaded case is that the tiled floor of the washroom was slippery and wet with dirty water, which caused him to slip and fall, and that is how he came to strike his head and thus suffer this, a severe head injury.

6.  However as a consequence of the injury Mr Leung has no memory of what took place on 13 March and how he came to fall over as he did.  For this reason, although he made a witness statement, he was not called to give evidence.  That was a role undertaken by his wife Kwong May and son Leung Wing Chung, both of whom were alerted to the accident and came to the washroom to find Mr Leung lying prone and unconscious.  Both testified that the floor was wet, dirty and slippery, and that Mr Leung’s trousers were also wet and, as will emerge, I have been invited to draw an inference and find that the instability of this surface caused him to slip and fall and suffer the injury.

7.  The defence pleaded is to concede nothing and to put Mr Leung’s case to strict proof.  But it did have an eyewitness, in the shape of one Kwok Wah Sun, then the majority shareholder of the restaurant’s owner Triple Luck Limited.  He was also its General Manager and on duty that evening. 

8.  As it happened, on his account, he had need to use the washroom at the same time as the guest who later turned out to be Mr Leung.  He was to say in evidence that the man seemed to be unsteady in the course of urinating, and then having completed the task, fell back from the urinal onto the floor, striking his head which caused a laceration.  His behaviour, his demeanour and the smell of his breath led him to believe that he was drunk.  This gave rise to a positive averment pleaded; namely, that Mr Leung was drunk and unable to keep to his feet and that this was the sole cause of the accident.

9.  I shall come shortly in more detail to the competing accounts of just how the accident happened; first however, to set the scene.

The Lead Up

10.  Madam Kwong having given details of the family’s circumstances then gave particulars of her husband’s employment and income.  He had been in good health, always in work and certainly ready and able to continue at what he knew best for 10 more years.

11.  She said that the banquet had been organized by one of the family members called Yu Chi Kin, a nephew.  He is known as Ah Kin.  Ah Kin was and remains a regular customer of Golden Jade, but it was the first visit for her and her immediate family.  The menu that was chosen included in the price a bottle of red wine and twelve cans of beer or soft drink for each of the two tables.  As far as their table was concerned, their waiter poured some red wine into the glasses of the adults so that they were half full.  These glasses were of the shape and size commonly used in restaurants for taking Chinese tea.  She said neither she nor her husband generally consumed alcohol.  However, given the occasion, she took a sip.  But she did not enjoy the experience and left the rest.  She knew that her husband began with a glass half full but could not be sure if he drank it all or if, like her, he left some in his glass.  What she is sure about is that there were no refills.  She is also sure that no beers were opened; the children drank soft drinks and there was Chinese tea for the adults.

12.  It was towards the end of the meal that her husband, who was sitting next to her, told her that he was going to use the washroom.  She had no reason especially to observe him or his demeanour as he left his seat and disappeared through the dining room door.  But he was in her line of sight and she was able to say he was quite steady on his feet and his demeanour was normal.  His conversation was clear and sensible.  It was of no surprise to her that he was not affected by liquor having taken at the most half a glass of wine.

13.  Their son Leung Wing Chun gave an account of events in this phase which matched his mother’s in all material respects.  He was sitting on the other side of his father and was also able to confirm that he had no more than half a glass of red wine, and no beer.  He too found his father to be behaving and speaking normally and coherently.  He was at the time a young adult but still a student.  So as not to confuse I shall designate him as Master Leung.

The Accident

14.  Moments after he had left the dining room heading for the washroom Madam Kwong heard news of his fall from one of the nephews, Wan Wing Kwong, who reported this to her.  Later he was to tell her what he knew, and she passed this information on in the witness statement she was to adopt as her evidence.  I repeat verbatim what he recounted to her:

“After the accident, I asked my nephew, who first saw Leung Kai Sun fell down, how the accident happened.  He said at the time of the accident he went to the toilet with his three odd years old son.  When he went into the toilet, he saw Leung Kai Sun standing at the urinal toilet close to the door and urinating.  He did not find anything strange about Leung Kai Sun.  He therefore walked towards other urinal toilets with his son when he was helping his son to urinate, he heard a loud “bang” sound.  When he turned around, he saw Leung Kai Sun lying on the floor.  At that time, there were no other people inside the toilet.  He then ran out to look for us.”

15.  I should mention at this point that this Mr Wan was not asked to make a statement and did not give evidence.  Thus whilst I can admit into evidence what Madam Kwong says he told her, I have to recognize that it did not come from him and he was not cross-examined about that.

16.  Before going further it is appropriate to describe the washroom in question.  Since the accident it has been redecorated, but the layout was the same then as it is now.  It is for males only.  It is rectangular.  Entrance is by a door that is in the middle of one of the longer sides.  If one were to stand at the entrance, to one’s right along the short wall one would be facing three stalls containing lavatories.  On the short wall to the left are three urinals.  For ease of reference I shall call these the first row.  There are three more standing at right angles along the wall housing the entrance door.  These I shall call the second row.  There are five basins along the wall opposite the entrance door.  The floor is tiled.

17.  The restaurant had begun operating in 1999, and as at the evening of the accident the décor of the washroom had remained unaltered.  In November 1995 there was a general redecoration of the restaurant and the washroom was a part of the makeover.  That included retiling of the floor.

18.  I come now to the evidence of the then owner of the restaurant, Mr Kwok.  He recounted that in his statement and from the witness box.

19.  During the course of the evening he had a meal in the main dining area with two other senior staff members, one of whom was a manager and also a shareholder, albeit a minor one, called Yip Wang Kwong.  It was after this meal that he had need of the washroom.

20.  As he entered he noted that:

“the toilet was clean and the floor dry”.

A man subsequently to be identified as Mr Leung was standing occupying the middle of the urinals in the first row.  Of this male, whose back would have been to him, he stated in his statement:

“He looked uneasy to me at that time as he was trying to steady(ing) himself by placing his right hand against the wall of the urinal”. 

He, Mr Kwok, then went to use one of the urinals in the second row.  From this position he said the man was still within his peripheral version and he could see what happened to him.  And what did happen he went on to describe as follows:

“Around 4 to 5 seconds later, I saw that person suddenly loosened his right hand and lost balance and then fell backward.  It happened quickly.  He just fell at his back.

…

After the incident took place, I immediately attended the injured person.  I saw his face red and smelt strong alcohol.  I also saw blood from the back of his head.  His eyes were closed and he did not respond to me even though I tried to talk to him.  I also heard him snoring.

The injured person appeared to be drunk and even slept on the floor.

…”

21.  Then he described how he left the washroom and called for help.  The man’s relatives arrived quickly and alerted the police.  Thereafter he stood back and waited as the ambulance men arrived and stretchered Mr Leung away.

22.  From the witness box he elaborated.  He said that what struck him about the man when he came in was that his hand was trembling, and he could smell alcohol as he came to the urinal he chose.  He said it was a strong smell from which he knew that he must have drunk a lot.

23.  Prior to the man falling he said he saw him zipping himself up, using he thought both hands.  He was able to observe this whilst he was urinating by looking over his right shoulder. 

24.  Then without warning the man fell back.  He had taken no step or other movement.  Mr Kwok said he wanted to put his leg back to break his fall, but it happened suddenly and he could not react in time.  And he lay where he fell, face up and with his feet at the urinal.  He appeared to be asleep, and snoring.

25.  A significant feature of this account is that he denied the presence anywhere in the washroom of a man helping a little boy to urinate.  Only Mr Leung the victim was there.  The nephew Wan had not made any reference to Madam Kwong about anyone else being present who might have been an eyewitness.  Of course he could not be tested on the point.  But if they were there together they could not have been unaware of the other’s presence.  But it was the nephew Wan who rushed back to the dining room to alert Madam Kwong of the accident. 

26.  I shall return to analyze this evidence and the extent to which Mr Kwok’s account as effectively the only eyewitness can be relied upon.

The Aftermath

27.  Mr Wan having raised the alarm Madam Kwong and her son dashed immediately to the scene.  I return to their accounts, Madam Kwong’s first.

28.  She saw her husband prone on the floor.  He was unconscious, with blood coming from a head wound.  As she approached him she was aware that the tiles were wet and slippery; so much so she nearly slipped herself.  She noticed that his trousers were wet.  She was to note this again when retrieving his clothes from the hospital where he was admitted.  They were still damp and smelt of urine.

29.  Mr Leung remained prone. His head was directly facing the middle urinal in the first row.

30.  Subsequently the police and ambulance came to take Mr Leung to hospital, in fact it was to Caritas Medical Centre.  She told the police, the ambulance men and then the doctor who attended her husband that he had drunk half a glass of wine.  She did not say that he was drunk, because he was not drunk.

31.  Master Leung’s account was consistent with his mother’s.  That included the direction his father was lying in and that his trousers were wet.  He said the floor was wet and dirty, a condition that he had noticed when using the washroom earlier that evening.  He said the tiles were not non-slip, so that with the dirt and wetness they were slippery.

32.  The remaining witness was Yip Wang Kwong, the manager and co-owner who had dined with Mr Kwok that evening.

33.  He was first alerted to there having been an accident when Mr Kwok emerged from the washroom and was instructing staff to lend a hand.  He went in; there were people standing around the prone, injured person.  He stood several feet away, but from that distance could see his face was red and he could smell alcohol on his breath.  He observed the floor was dry and clean.  He said Mr Leung was lying face up with his head away from the urinal.

The Injury and Consequences

34.  What was immediately apparent was that Mr Leung hit his head as he fell to the floor with a force which knocked him out cold and caused a wound laceration to his scalp.  By the time he got to Caritas he had partly regained consciousness, but could not respond to questions.  A CT scan undertaken revealed bilateral subdural haematoma and subarachnoid haemorrhage.  And so it became apparent how severe was the injury.  He was forthwith transferred to Kwong Wah Hospital for emergency neurological care.

35.  Extubation was carried out on the 6^th day following admission.

36.  On 26 March he was transferred again, this time to Queen Mary Hospital.  It was only about this time that he gained proper consciousness.

37.  He was suffering from severe weakness in both legs and one arm, and his GCS was 10/15.

38.  The next day surgeons performed a craniotomy for evacuation of haematoma.  Post-operatively he was noted to have a right 6^th nerve palsy.  But his GCS improved gradually.

39.  In May he began a course of rehabilitation including physiotherapy, occupational therapy and cognitive training.  With residual numbness, motor power was restored to all four limbs, and he could get around independently.

40.  He has become fully mobile but with cognitive impairment and has suffered epileptic seizures.

41.  Other problems have arisen, including hearing loss.

42.  From his family’s point of view, he is independent in taking food, personal hygiene and mobility for short walks.  His sense of direction is impaired and he takes longer to undertake conventional tasks.  They find he is quite deaf, is slow-witted with short term memory loss.  His personality has changed for the worse.  He becomes easily irritated. 

43.  He has some difficulty in verbally expressing himself.

44.  Dr Yu Yuk Ling, the Specialist in Neurology appointed by Mr Leung’s solicitors to advise on his condition, reported in January 2007 that for severe head injury cases such as this, the patient reaches maximum recovery within two years, so that Mr Leung by the date of his examination could not be expected to get any better.

45.  There was, he found and recorded, marked neurocognitive and neurobehavioral impairments.  He said Mr Leung would probably not be able to resume his duties as a waiter, nor indeed undertake any gainful employment, even something as mundane as cleaning duties.

46.  The Neurosurgeon appointed by the defence, Dr Kan Yiu Ting, acknowledged that Mr Leung suffered from an extremely severe head injury complicated by cerebral contusion and intracranial haematoma, with serious neurological consequences.  He found his total impairment to be in the region of 50%, with no prospect of improvement.

47.  On his job prospects, he found that he has totally lost his working capacity.

The Washroom’s Condition

48.  It is apparent that a material, perhaps crucial, factor in this case is the state of the washroom on the evening in question and, in particular, whether the floor was dangerously slippery.  Of course I have the dramatically opposing accounts of the victim’s wife and son on the one hand and the restaurant’s owners on the other.  No doubt there was a certain subjectivity in what they each claimed was the state of the floor, but having now read the witness statements and heard the live evidence, I am satisfied there was in respect of one of the two pairs a significant departure from the truth.

49.  In support of their account, Messrs Kwok and Yip told me what was the restaurant’s standard practice in the maintenance of the washroom.

50.  Mr Kwok said that ever since the restaurant began business the tiles of the floor have been non-slip.  That was before the redecoration as well as afterwards. 

51.  At the time of the accident they were intact and free from damage; had it been otherwise they could have faced the wrath of the Food and Environmental Hygiene Department, and possible closure.

52.  Mr Yip provided evidence in greater detail.  It is worth reproducing his statement verbatim:

“8. I would like to talk about the daily cleansing procedures in the toilets in the restaurant.

9.  The Defendant starts trading at 6 a.m. in the morning everyday.  Before the opening, the manager of the morning shift will patrol around the restaurant and check whether the toilets are clean so as to ensure that the toilets are tidy.  After the opening, the manager in charge or the supervisor will patrol and inspect the toilets every hour to ensure that the toilets are still clean. After each inspection, the manager or the supervisor will sign on the inspection form for verification.  The inspection forms will only be kept for a short period and will be disposed of.

10.    I confirm that in March 2004, the same system had been in place.  As I recall, the supervisors of the afternoon shift on 13^th March 2004 were Mr. Leung Tak Ming and Mr. Leung Kwok Fai.

11.    According to my knowledge, the inspection forms used on 13^th March 2004 have all been disposed of due to the lapse of time.  I can only attach copies of the inspection forms of the males’ toilet of March 2007 which are in same format as those being used in March 2004.

12.    I further recall that from 6 p.m. to 9:30 p.m. on 13^th March 2004, I had gone to the males’ toilet once and noted that the toilet was clean and the floor was dry.  If I found that the toilet was dirty or wet, I would ask the person in charge to follow up the situation.  However, I remember that I did not discover anything strange in respect of the conditions of the males’ toilet.

13.    Since I worked for the Defendant from December 1999 up to now, I have never heard of anyone falling on the floor of either the males’ or the females’ toilet.

…”

53.  He produced a sample of the forms he referred to.  There is one for each day, dated that day.  It is kept in a container on the door of the washroom.  Different features such as the state of the towels, soaps and toilet paper, condition of the urinals and other fixtures are designated for checking on the hour from 7 a.m. to midnight.  If all the checks are made faithfully and on time, there will be a tick in the appropriate box and room for the initials of the staff member responsible.

54.  Several of these completed forms were included amongst the samples, for various dates in March 2007, which were full of ticks and initials, showing a conscientious adherence to stringent rules, to indicate that the washroom on the day in question was kept up to scratch in terms of cleanliness and hygiene.  Mr Yip said that this system had been in place and in force for years, and that would have included the day three years before when Mr Leung fell down. 

55.  In addition, said Mr Yip, there was a major clean at 4:30 p.m. and again at 9:45 p.m., when most customers would have left after a busy lunch or dinner trade.

56.  A cynic might respond well and good, but it would be easy to fill out these forms without regard for the physical state of the facilities in the washroom, and make up or exaggerate steps taken to keep it clean, hygienic and safe.

57.  So, is there a wanting in hygiene and safety in the reality, and what about during the evening back in March 2004?

58.  I come to rebuttal evidence on the issue, and the startling response of Mr Yip on the point next.

59.  Madam Kwong and her family returned to the restaurant on 17 March 2007 for the purpose of capturing some evidence in photographs.  The young men went into the male washroom between 2:00 p.m. and 2:30 p.m.  Master Leung reported that the floor was wet and slippery, and photos they took, eight in all, reveal the floor was spotted with water, there were stains, presumably urine stains, beneath the urinals, and scattered about were abandoned tissues and other detritus.  The boys reported that slippery though the floor was, it was not as slippery, nor as dirty, as it was back on the fateful day in 2004.

60.  There was more rebuttal evidence.  This emerged when Mr Leung’s representatives engaged the services of a private investigator called Take Result Limited to carry out a surveillance, in particular the condition of the floor in the male washroom, for extended periods during three days in September and October 2007.

61.  For the purpose David Sze, the firm’s manager, and a colleague, posing as customers, attended the restaurant on 22 and 29 September and 6 October, arriving at 7:45 p.m. and departing at 10:00 p.m. on each evening.

62.  On the first occasion, an early visit to the washroom revealed one of the urinals was leaking a continuous flow of water on to the floor, which was wet and slippery.  Further, a customer had vomited.  Staff members washed away the vomit at 8:20 p.m., sweeping the water and filth down a drain, but did not dry the floor which remained wet and slippery.

63.  On the second occasion, a visit to the washroom at 8 p.m. revealed water on the floor.  By 10 p.m. when the investigators left there had been no cleaning and no inspection undertaken.  On the third occasion, there was one visit by staff, and cleaning, at 8:10 p.m., but water was left on the floor.

64.  All this visual evidence was backed up by a video and still photographs produced for me to see. 

65.  What was compelling, and telling, was that on each of these three visits there was in place an inspection form as described by Mr Yip and presented as proof positive that the washroom was regularly inspected and checked to be clean, tidy and safe.  But on each occasion it carried the same date, 12 August 2007.

66.  Mr Yip was invited to comment on this revelation.  His response was “It should be the case that the accountant forgot to change the date”.

67.  In case he had misunderstood the question I interposed to this effect:  “Are you saying that on each of the days the surveillance was carried out there was a new record inserted but that the date had not been changed.  Are you asking me to believe that?”  His response was “Yes”.

Was Leung Kai Sun Drunk?

68.  I have already reproduced the competing versions on the level of alcohol taken by Mr Leung during the evening and the extent to which he was exhibiting signs of inebriation.  This included the defence evidence that in the washroom alcohol could be detected on his breath.

69.  Medical notes contemporaneously taken and reports therefrom add to the speculation.  For instance reports from Neurosurgery, QMH, begin:

“Mr Leung had sustained head injury after getting drunk and slipped and fell afterwards [perhaps backwards was meant?] on 13/3/04”. 

One from Kwong Wah Hospital began: 

“This patient was transferred from Caritas Medical Centre to Neurosurgical Unit of KWH on 13 March 2004.  Apparently he slipped and fell after drinking alcohol”.

70.  It is possible, indeed probable, that these commentaries emerged from a contemporaneous note taken at A&E Caritas:

“Drunk with L/W (laceration wound) over scalp after fall in toilet, drink ½ cup of red wine tonight”.

71.  Yet there seems to have been no forensic steps taken to determine the extent of this inebriation; in particular, there was no checking of his blood alcohol level, a simple and usual procedure where there are overt signs of inebriation.

72.  The two Neurologists Drs Yu and Kan whose examinations and reports on the injury suffered and consequential impairments I have recounted were, as an additional exercise, asked to comment on the supposition that Mr Leung may have been drunk.  Both said what hardly needs expert evaluation; that the evidence indicating consumption of no more than, possibly less than, 100ml of alcohol during a dinner, would not cause one to be drunk.  Without any overt signs, there would be no need to carry out any blood alcohol tests.

73.  Dr Yu’s view supported by Dr Kan, was that reference to the patient being drunk was probably an inaccurate description.

Are There Other Reasons for the Fall?

74.  In the absence of a direct, eyewitness account of how Mr Leung fell over, at least from his side of the litigation, the Neurologists were asked to proffer any alternative to the two prospective and possible causes, of a fall while drunk, or slipped and fell.

75.  Dr Kan proposed as an alternative micturition syncope.  He described this as a common phenomenon where a victim faints and collapses during or soon after passing water.

76.  Dr Yu said of this:

“Micturition syncope is a condition usually seen in the elderly during or after urination, particularly after arising from the recumbent position.  Hence it often occurs in the middle of the night when the elderly gets out of bed to pass water.  It is probably a special type of postural syncope.  It has been suggested that release of intravesicular pressure causes sudden vasodilation, augmented by standing, and that vagally mediated bradycardia is a contributory factor.  It tends to be recurrent.  Mr. Leung is not known to have such a history before and after the accident.  There is also no evidence that a small amount of alcohol would bring about micturition syncope.  Thus, the possibility of micturition syncope as a cause of the fall is low, and certainly far lower than that of slip and fall.”

The Law

77.  The root cause of Mr Leung’s injury, serious as it undoubtedly was, having to be established by an analysis of surrounding circumstances and a lack of an eyewitness, at least from his perspective, it is as well to go back to basics and record where the burden of determining fault and liability lies.

78.  Sakhrani J dealt with this succinctly in Wat Kwing Lok v The Kowloon Motor Bus Company (1933) Limited unreported, HCPI 936/2005, from paragraph 16:

“16.   It is also common ground that the principle set out in the judgment of Megaw LJ in Ward v Tesco Stores Ltd [1976] 1 WLR 810 at 815 was applicable, namely:

‘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.’

17. The mere fact of the occurrence of the accident is not sufficient to give rise to a presumption of negligence on the part of the defendant.  The burden of proof is on the plaintiff to show on a balance of probabilities 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 defendant than the absence of fault.  If, and only if, the plaintiff proves that the unusual event is more consistent with fault on the part of the defendant than the absence of fault, the evidential burden then shifts to the defendant to show, on a balance of probabilities, that the accident happened without negligence on its part.”

79.  With this in mind, I turn to the issues for determination.

The Issues

80.  Has Mr Leung through the evidence adduced been able to establish 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 restaurant’s owner?

81.  If so, has the restaurant’s owner been able to show that the accident happened without negligence on its part?

82.  The standard of proof in each case is on a balance of probabilities.

Analysis

83.  This is one of those cases where an overall evaluation of the credibility of the witnesses of fact called by both sides assists in establishing where, in a contest on matters of fact, the truth lies.

84.  First then, the evidence of Mr Kwok.  He held himself out to be an eyewitness of Mr Leung’s demeanour as he stood at the urinal, which caused him to pay particular attention until, without warning, he collapsed and fell.  And then as he attended to him, he was struck by his red face, his breath smelling strongly of alcohol, and that he seemed to be asleep and snoring.

85.  On this point Mr Yip proffered corroboration.  Having come in in response to the hue and cry, he observed the man to have a red face and to have the smell of liquor on his breath.

86.  Taking the evidence from the only eyewitness account of the incident at face value, corroborated by an onlooker moments later, one could not rule out an accident self-inflicted by virtue of inebriation.

87.  However I do not take this account at face value.

88.  Mr Kwok’s version of what Mr Leung was doing in the moments before he fell does not hold up under scrutiny. 

89.  He stood at a urinal in a wall at right angles to the one where Mr Leung was standing.  Both occupants in the way these things are done would have been standing slightly back from the urinal.  This would have put Mr Leung directly behind Mr Kwok.  The action of passing water as a male when fully clothed requires a certain amount of personal activity, unzipping and so on, and attention to the job in hand to ensure the flow is properly directed, and so on and so forth.  Mr Kwok said Mr Leung was in his peripheral vision.  But in reality he would have had to have had eyes in the back of his head or, more realistically, to have turned around to have seen such activity as his zipping up his trousers.  That could not have been possible whilst urinating facing frontwards.

90.  So, his account leading to the fall is as I find a self-serving fabrication. 

91.  Mr Kwok’s attention to detail after that was to establish Mr Leung’s inebriation; for example that he was asleep and appeared to be snoring as if he had passed out in a state of extreme drunkenness.

92.  Turning now to the accounts of Madam Kwong and Master Leung on the matter of consumption of liquor; I am quite satisfied from these accounts that Mr Leung was not drunk, nor in any way was he effected by the modest amount of red wine drunk, over a period of some two hours with food.  I do not need to rehearse what they said; suffice I find it established with no competing account warranting any further analysis.

93.  The medical note about Mr Leung being drunk I am satisfied is a red herring; possibly a misinterpretation of what Madam Kwong may have said during the period Mr Leung was being attended to at the scene.  Were it to have been otherwise, those looking after him at the scene and later in hospital would have become aware of overt signs and would have tested for alcoholic content in the blood.  There were, of course, no such tests.

94.  That Mr Leung was lying on the floor motionless was because he was knocked out and uncoconscious. He would not have been asleep and snoring.  Whatever the colour of his face, there would have been no smell of alcohol on his breath.

95.  Mr Kwok’s account about this is once again a self-serving fabrication.  Quite frankly, the man has no business to put himself forward as a witness of the truth under affirmation.  His evidence was a tissue of lies.

96.  So, if Mr Leung was sober and steady, what caused him to fall?

97.  The inference I am asked to draw is that the floor was slippery and that caused him to lose his footing.

98.  Madam Kwong and Master Leung, rushing in to tend to their husband and father gave their own accounts of the state of floor.  More tellingly, Madam Kwong said she nearly slipped herself.

99.  What was the evidence to counter this? 

100.  Mr Kwok said the floor was clean and dry.  So did Mr Yip.  So who is to be believed?  Or is it not possible to form a view?

101.  If Mr Yip is to be believed, the restaurant has throughout had in place a system of checks and balances to ensure that throughout the duration of a day’s trading whatever the day and whenever during the lifespan of the restaurant, the washroom is fully stocked, clean, dry and hygienic, and above all safe.

102.  Observations later undertaken by Mr Leung’s family, augmented by photographic evidence, show that this was quite assuredly not so.  More compellingly, the surveillance undertaken revealed that only cursory lip service was paid to the obligation on any licensee to keep his toilet facilities pristine.

103.  Mr Yip’s explanation as to why over a period of two months the daily cleaning record behind the door had not been changed was utter nonsense, and I shall not grace it with further analysis.

104.  It is of course true that this subsequent investigating was some time after the incident and post a major makeover of the restaurant.  But the same management was in charge at both times, and I was assured the same systems were in place then and thereafter.  Ironically, though I pay scant heed to the obviously self-serving fabrications of Mr Yip’s account, at least I can rely on this.

105.  As a matter of fact, I find that at the time Mr Leung was engaged in the washroom, the floor was wet, dirty and slippery.

106.  Could there have been any other reason for Mr Leung’s fall?

107.  I note Dr Kan’s suggestion of micturition syncope.  I also note Dr Yu’s comments on this suggestion. 

108.  As I find it is entirely speculative.  Mr Leung was in good health, active, and at 55 getting on in years but not elderly.  There has been no other incident before or since his accident.

109.  I am satisfied there can realistically be no justification for the theory that Mr Leung without warning fainted and fell because of that.

Preliminary Finding

110.  Mr Leung, sober, articulate and steady on his feet, unaffected in any way by the minimal amount of liquor he had consumed during an evening meal, attended a male only washroom to relieve himself after the meal, whose floor was wet, dirty and slippery.  Having completed the function, Mr Leung slipped and fell to the floor, striking his head with a force that has dramatically and permanently impaired him.

111.  The restaurant’s owner as keeper and guardian had the duty to provide a safe environment for its customers.  Prima facie it had failed to do so. 

112.  Has the owner been able to establish that there was a proper system in place to ensure that the customers were as far as could be foreseen safe?

113.  I come to this next.

The Secondary Finding

114.  The short answer, and one that must be all too apparent from the patently false account given by Mr Yip is ‘No’.

115.  There was no system in place during the surveillance in 2007, and I am satisfied that that culture of lack of care prevailed in March 2004.

116.  I need say or record no more, save that Golden Jade has failed to rebut the prima facie case against it of negligence and breach of its statutory duty under the Occupiers Liability Ordinance.

117.  There is no claim for contributory negligence.  I come next to the level of loss established.

Damages

118.  Whilst poles apart on the issue of liability, there is less of a contest on the quantum of Mr Leung’s loss.

PSLA

119.  Under this head both sides submitted cases which on a comparison basis they believed would assist.

120.  Of particular benefit to my analysis of a proper general damages award were the following cases Ms Lau handed up:

Cheung Wai Ping v Chan Yuen Yee, HCPI 668/2005, Deputy Judge Muttrie, in February 2007;

Chan Shui Ying v HYFCO Travel Agency, HCPI 1060/2005, Recorder Jat SC, in December 2007;

Chan Chin Shun v Yau Sin Cheung, HCPI 90/2005, Deputy Judge Longley, March 2006.

Mrs Gwilt’s useful contributions were Tse Wing Sum v Kowloon Motor Bus Co. (1981) HKLJ 265, Mr Registrar Cruden;

Tsung Wo Ha v Mak Sai Choi (1985) HKCL J36, Penlington J;

121.  Miss Lau submitted an award of not less than $850,000.  Mrs Gwilt’s proposal was $600,000.

122.  I believe $850,000 is the appropriate award.

Pre-Trial Loss of Earnings

123.  It is not disputed that Mr Leung earned a basic salary of $12,000 per month for 26 days in the month.  It is contended on his behalf that he was entitled to four meals per day when at work, assessed at $84 per day.  This notionally boosted his income to $14,184 per month.

124.  The defence response is that there was no contractual obligation for Mr Leung’s employers to provide him with meals.  Madam Kwong’s evidence on the point was that this is a general trade practice in operation throughout Hong Kong.  I accept that.

125.  The pre-trial loss of earnings are:

52 x $14,184 = $737,568.

MPF is $737,568 x 5% = $36,878.

Future Loss of Earnings

126.  The parties agree on a multiplier of 4. 

Future loss of earnings thus comes to:

4 x $14,184 x 12 = $680,832

MPF is $680,832 x 5% = $34,041

Loss of Earning Capacity

127.  None is sought.

Special Damages

128.  This is disputed; the claim is for $67,848.  The counter is that this should be $37,448.  I heard evidence from Madam Kwong who was unable to provide a full complement of receipts.  However I accept what she says she spent; under this head I award $67,848.

Future Medical Expenses

129.  These are agreed at $81,360.

Interest

130.  There shall be interest at 2% on the PSLA award for 22 months.  There shall be interest at 5% on pre-trial special damages for 52 months.

Summary of Damages

131. 

PSLA	$850,000
Pre-trial loss of earnings	774,446
Future loss of earnings	714,873
Special damages	67,848
Future medical expenses	81,360
Interest at 2% x $850,000 for 22 months	31,167
Interest at 5% x $842,294 for 52 months	182,497
	$2,702,191

Result

132.  There shall be judgment for the plaintiff in the sum of $2,702,191.

133.  Costs, nisi, are to the plaintiff.