WU KIN LEUNG v. INCORPORATED OWNERS OF FU TOR LOY SUN CHUEN STAGE 1

HCPI 684/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 684 OF 2002

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J U D G M E N T

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1. The plaintiff’s claim against the defendant is for damages for negligence and/or nuisance.

2. The plaintiff was born on 1 April 1952.  On 14 August 1999 he was 47 years old.  He is now 53 years old.

3. There is no dispute that on 14 August 1999 at about 8 a.m. the plaintiff was on his way to work whilst walking along the pavement under the multi-storeyed building known as 26-34 Cherry Street, Fu Tor Loy Sun Chuen Stage 1, Tai Kok Tsui, Kowloon (“the building”) when he was struck on his head by an object and sustained personal injuries.  However, liability and the quantum of damages are disputed.

Liability

4. At the time of the accident the plaintiff was a carpenter doing formwork at a construction site.  At about 8 a.m. on 14 August 1999 he was on his way to work.  He was walking on the pavement along Cherry Street and walked under the building when an object fell on his head.

5. The plaintiff marked in the photograph exhibit P1 the place that he was walking under the building when the object hit him.  He was walking in the direction away from the road sign “Mong Kok” that is, he was walking from right to left of the photograph.

6. The object that hit him on his head was a rusty metal object (“the object”).  The object was found on the ground and is shown in the photograph in the newspaper article in the agreed bundle.  It is also shown on top of a box in the bottom photograph at page 4 of exhibit P3, the photographs that were produced by Fung Wai Huen (“Fung”) the structural engineer from the Buildings Department who arrived at the scene at about 11:10 a.m. on 14 August 1999. 

7. The plaintiff said in evidence that he was hit on his forehead and when giving evidence he pointed to his forehead above his left eyebrow.  This is consistent with what Dr. Yu Yuk Ling (“Dr. Yu”) said in his report dated 12 November 2002 namely, that there was a faint scar in the plaintiff’s left forehead when he examined him on 7 November 2002.

8. The plaintiff did not lose consciousness after he was hit by the object.  He was taken to the Accident and Emergency Department of Kwong Wah Hospital on 14 August 1999 where he was treated and discharged.  He sustained a laceration of frontal scalp and had 3 stitches.  He did not need to be admitted into hospital.

9. The plaintiff’s case is that the object fell from the exterior of the building due to the dilapidated condition of the podium level and the building.  

10. In her opening submissions, Ms Yiu, for the plaintiff, relied also on an alternative case, namely, that the object came from renovation works that were being carried out on the building.  However, the alternative case was later abandoned by Ms Yiu.  She said that the plaintiff’s case rested on the fact that the object fell from the building and that would constitute prima facie evidence of negligence.  To escape liability it was for the defendant to show that the accident happened without negligence on its part.

11. The building is a multi-storeyed building.  The defendant is sued as the Incorporated Owners of the building.  However, the duties and powers of the defendant are not in relation to every part of the whole building.  S. 18(1) of the Building Management Ordinance Cap. 344 provides that :

“ Duties and powers of corporation
(1)	The corporation shall-
	(a)	maintain the common parts and the property of the corporation in a state of good and serviceable repair and clean condition;
	(b)	carry out such work as may be ordered or required in respect of the common parts by any public officer or public body in exercise of the powers conferred by any Ordinance;
	(c)	do all things reasonably necessary for the enforcement of the obligations contained in the deed of mutual covenant (if any) for the control, management and administration of the building.”

12. The “common parts” of the building are defined in S. 2 as :

“	(a)	the whole of a building, except such parts as have been specified or designated in an instrument registered in the Land Registry as being for the exclusive use, occupation or enjoyment of an owner; and
	(b)	unless so specified or designated, those parts specified in the First Schedule.”

13. By the First Schedule, the external walls of the building are included in the definition of the “common parts”.  However, windows and window frames of the individual flats or units in the building are not included.

14. Mr. Koo, for the defendant, submitted that it was incumbent for the plaintiff to prove that the object which fell on his head came from the common parts of the building or from a part of the building under the control of the defendant or which the defendant had a responsibility to repair.  Ms Yiu accepted that to be the case.

15. In the well known case of Scott v London and St Katherine Docks Co [1861-73] All E.R. Rep 246 it was held that the fact of the accident namely, the falling of a bag of sugar on the plaintiff’s head when he was lawfully passing a warehouse was prima facie evidence of negligence.  Erle C.J. said at page 248 :

“There must be reasonable evidence of negligence, but, where the thing is shown to be under the management of the defendant, or his servants, and the accident is such as, in the ordinary course of things, does not happen if those who have the management of the machinery use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care.”

16. In that case the warehouse was undoubtedly under the management of the defendant.

17. I accept Mr. Koo’s submission.  It seems to me that unless the plaintiff can prove that the object which fell on his head came from the common parts of the building or from a part of the building under the control of the defendant or which the defendant should be responsible to repair, the plaintiff will have failed to establish a prima facie case of negligence on the part of the defendant. 

18. To establish liability on its cause of action in nuisance, Ms Yiu also accepted that the plaintiff would have to prove that the object came from the common parts of the building or from a part of the building under the control of the defendant or which the defendant should be responsible.  

19. In her closing submissions, Ms Yiu submitted that the evidence showed that the object fell from the top of the podium level which is a common part of the building.  The podium level has also been described in evidence as the 1^st floor level.  The defendant denies that the object fell from the podium level or a part of the building which is a common part of the building or from a part of the building under the control of the defendant or which the defendant should be responsible.  This is the main dispute between the parties on the issue of liability. 

20. It seems clear from the evidence of Fung that the podium of the building was in want of repair.  He gave evidence that he went with his assistant to the scene on 14 August 1999.  He was called to the scene as he was told that someone was injured at the building.  He was responsible for inspecting buildings in the area where the building was.  

21. Efforts were made to identify the object which Fung said was approximately 50 mm in diameter and irregular in shape.  He arrived at the scene at about 11:10 a.m. and left the scene at 1:30 p.m.  Despite the efforts made for over 2 hours he was unable to discover the origin of the object.  He had inspected the building from the ground floor to the roof level including the podium level.  The photographs exhibit P3, which shows the units in the building from the Cherry Street side at page 1, are photographs taken at his inspection.  The object is shown on top of a box in the bottom photograph at page 4 of exhibit P3.

22. Fung also said that in the 1^st floor or podium level there was an opening at the top of the podium.  The opening is to the right of the 4 arcs in the podium as marked by him in the left photograph at page 2 of exhibit P3.  He also explained that the right photograph at page 2 of exhibit P3 shows a steel structure supporting the canopy of the 1^st floor.  The steel structure was also rusty metal at the time of his inspection.  He said that the opening at the top of the podium level was 1.5 m x 600 mm.

23. Fung also produced exhibit P4.  In the photograph at the top it shows the opening as it appeared in 1997 when it was a smaller opening.  He said that was the position on 23 April 1997 when someone from his office made an inspection of the building.  He confirmed that the photograph at the top of exhibit P4 showed the same opening as that shown in exhibit P3.  It is obvious that the opening had grown larger in time.  He gave evidence that the Buildings Department had issued a letter of advice to the defendant on 4 June 1997 advising it to repair and maintain the building.  It seems that no maintenance and repair works were carried out and the opening got larger in time.

24. Fung also gave evidence that on 14 August 1999 he told the Chairman of the defendant to erect a scaffolding near the area of the opening in the podium level and to put nylon mesh to cover the opening.  The main purpose for asking him to do so was to cover up the opening to prevent material from falling down thereby endangering the public’s safety.  As it was raining and windy when he was at the scene on 14 August 1999 he was worried that some stone fragments, concrete or rusty metal would fall to the street below so he requested the defendant to erect a scaffolding and cover it with nylon mesh.

25. From the photograph exhibit P5 it seems that this was done.  Fung said that when he went to inspect the building on 16 August 1999 he found that bamboo scaffolding and nylon mesh had been put up.

26. Fung also gave evidence that at the time of his inspection on 14 August 1999 he did try to find the apparent origin of the fallen object in particular, from all units facing 32 Cherry Street.  In the course of his inspection he had also been to the 1^st floor, the open corridor facing Cherry Street.  As I have said, the 1^st floor has also been described as the podium level.  That corridor was part of the shopping mall in the building and open to the public.  It was a common part of the building.  He said that the metal frame as shown in exhibit P3 was above the corridor at the edge of the corridor.  It was not extending beyond the corridor.  There was a canopy extending out with a width of more than 1 m from the edge of the corridor. 

27. Fung also said that the opening had been repaired after the accident as can be seen by the photograph exhibit P1.  He confirmed that when he went to the building on 14 August 1999 he did not see any actual work being done on the podium and that it was not apparent that renovation works were in progress.  He was told by the Chairman of the defendant that improvement works were being carried out in the toilets and that they would also carry out repair works to the roof of the podium. 

28. Fung also said that notwithstanding his advice to the Chairman of the defendant to erect nylon mesh and scaffolding he did not think that the apparent origin of the object was from the rusty metal structure on the top of the podium level as shown in the photograph at page 2 of exhibit P3. 

29. Fung was unable to find any apparent origin of the object despite his extensive inspection of the building including the podium level.  The photographs in exhibit P3 shows the units facing 32 Cherry Street. He said that there was a possibility that the object could have fallen from any of the units as shown in the photographs.  He said that there was also the possibility that the object was from the window frame of any of the units as shown in the photographs.  He also said that there was a possibility that the object did not fall from the building.

30. I have no hesitation in accepting the evidence of Fung.  He was in my view a credible and reliable witness.

31. The plaintiff did not see where the object which hit him came from although he said that he had a feeling that it fell directly from above.

32. The plaintiff said in evidence that the object which fell on him broke into some smaller pieces or fragment when it hit the ground thereby suggesting that the object which hit him was larger than the one shown in the photograph in the newspaper article and at page 4 of exhibit P3.  It was, however, never mentioned in his witness statement or his supplemental witness statement that the object broke into smaller pieces or fragments when it hit the ground.

33. The plaintiff gave contradictory evidence about what he saw.  He said in cross-examination that he was walking on the pavement looking straight in front and did not look up.  He said that the object hit his forehead first and bounced on the ground.  He did not see it before it hit the ground.  He later said that when the object hit him on his forehead he looked up immediately and heard the noise of the metal hitting the ground.  He stepped back a few paces before falling down and the object hit the ground as well.  He said that although he was looking up immediately when he was hit he could see the object landing on the ground with one eye.  I do not believe him.  If he was looking up it seems to me to be highly unlikely that he was looking down at the same time with one eye and saw the object hitting the ground.  I do not believe that he saw pieces or fragments breaking off from the object when hitting the ground.  The plaintiff was, in my view, trying to give the impression to the Court that the object was much larger than that found and his evidence on this matter is neither credible nor reliable.

34. Ms Yiu submitted that the object came from the opening on the top of the podium level and hit the plaintiff on his head.  However, the plaintiff gave evidence and marked on exhibit P1 the spot he was in when he was hit on his forehead.  This was well past the place where the opening would have been on 14 August 1999 as shown in the photographs taken on 14 August 1999 at the time of the inspection by Fung. 

35. Ms Yiu suggested that even if the plaintiff was not directly underneath the opening when the object hit him the object could have fallen from the rusty metal structure on the top of the podium level and bounced off the canopy onto the pavement below hitting the plaintiff on his head.  That seems highly unlikely to me.  The object was a heavy metal object as described by Fung.  The plaintiff was, on his own evidence, walking away from the area underneath the opening when he was hit.  He said in evidence that when he was hit he was on the pavement, closer to the building.  There was a canopy extending over the podium floor of a width of over 1 m.  He also said that he was probably underneath the edge of the canopy.  I accept his evidence that he was probably underneath the edge of the canopy when he was hit.  It seems improbable to me that a heavy rusty metal object like the object would bounce off the canopy and hit the plaintiff on his left forehead when he was underneath the edge of the canopy at a spot well past the opening as marked by him in exhibit P1.  It seems improbable to me that he was hit by an object falling from the podium level.

36. The plaintiff also gave evidence that when he went back to the building on 16 August 1999 he found that the whole of the shopping arcade on the podium level was covered by nylon mesh.  This was, in my view, an exaggeration on the part of the plaintiff rather than a lapse in his memory of what the situation was on 16 August 1999.  It is contradicted by the evidence of Fung.  The exhibit P5 shows clearly that the bamboo scaffolding and nylon mesh were placed in the vicinity of the opening and not around the whole of the podium level as the plaintiff said.  

37. The plaintiff also said in evidence that he saw workers cutting rusty metal on the podium level of the building on 15 August 1999 the day following the accident.  This was never mentioned in his witness statement or his supplemental witness statement. I do not believe him.  Fung did not mention that any works involving the removal of rusty metal from the podium had taken place in the period from his inspection of the building on 14 August 1999 to his subsequent inspection on 16 August 1999.  It is clear from the documents produced by the defendant that the actual renovation works at the building did not commence until well after the accident.  I do not believe the plaintiff when he said that he saw workers removing rusty metal from the podium level on 15 August 1999.  In my view, his evidence on this matter is also neither credible nor reliable.

38. It is also important to bear in mind the evidence of Fung who, having inspected the building for over 2 hours including the podium level on 14 August 1999, did not think that the origin of the object was from the rusty metal structure on the top of the podium level.

39. The plaintiff in my judgment fails to establish that the object fell from the rusty metal structure on the top of the podium and onto the forehead of the plaintiff as he was walking along Cherry Street on 14 August 1999.  

40. I also heard evidence from Chow Hoi the secretary of the defendant at the material time.  I accept his evidence.  However, his evidence does not assist the plaintiff in showing that the object fell from the common parts of the building or from a part under the control of the defendant or which the defendant should be responsible.

41. I am unable to say where the object which hit the plaintiff came from. It is, however, incumbent on the plaintiff to prove that it did come from the common parts of the building or from a part of the building under the control of the defendant or which the defendant should be responsible.  In the circumstances no prima facie case of negligence has been established and the defendant is not liable to the plaintiff for the injuries he sustained.  The plaintiff has also failed to establish liability against the defendant for his claim in nuisance.

Quantum

42. In case this matter goes elsewhere and different views prevail, I go on to consider the issue of quantum.

43. The plaintiff was 47 years old at the time of the accident.  He is now 53 years old.  

44. He was employed as a carpenter doing formwork at a construction site at the time of the accident.

45. He was hit on his forehead by the object.  There was no loss of consciousness.

46. He was taken to Kwong Wah Hospital where he received treatment for his injury requiring 3 stitches.  He was not admitted into hospital but given 3 days sick leave. 

47. In his witness statement he said that upon expiry of his sick leave he returned to work on 17 August 1999 but was fired a few days later because of his bad memory and mental condition.  He said that he felt dizzy and could not work as a carpenter anymore.  In cross-examination, however, he contradicted this and said that he quit of his own accord on the same day that he resumed working as he could not finish even the day’s work because he had some headaches and felt very tired.  He could not go on with his work.

48. He went back to hospital to remove his stitches on 21 August 1999.  He did not see a doctor for his injuries after that until November 1999.

49. As mentioned in the medical report of Dr. David Chin Kim-fai (“Dr. Chin”) who treated him at St. Theresa’s Hospital, the plaintiff had since the accident complained of giddiness, headache and loss of memory.  A CT brain scan taken on 18 November 1999 was normal.  He was put on regular medication in August 2000 for Post Concussional Syndrome due to his head injury.  The neurological examination by Dr. Chin on the plaintiff showed no abnormality.  Short term memory was mildly impaired.

50. The plaintiff said in his witness statement that he had 2 attacks of epilepsy due to the accident.  In his evidence in chief he was asked a specific question by his counsel of how many epileptic attacks did he have after the accident.  He answered twice.  He was then asked when these took place and he said in April 2000 and in June 2000.  However, in cross-examination he said for the first time that after the attack in June 2000 he had had a further epileptic attack during which one of his teeth had come off but he forgot which year this occurred.  I do not believe the plaintiff.  I am convinced that he was exaggerating his injuries and he has exaggerated the number of epileptic attacks that he had.  I accept and find that he had 2 epileptic attacks due to the accident but he tried to exaggerate his injuries by claiming for the first time in cross-examination that he had had 3 epileptic attacks instead of 2 as he had said in chief and in his witness statement. 

51. Dr. Chin was of the opinion that the plaintiff suffered from Post Concussional Syndrome with mild memory impairment, personality change including easy loss of temper, irritability, depressive mood and somantic complaints such as headache, giddiness and epilepsy.  The CT brain scan was normal.  Dr. Chin said that with this kind of head injury, the neuronal damage was due to the shaking force of the head resulting in the psychosomatic complaints of the plaintiff.

52. He was also of the view that the plaintiff could not work on heights because of his epilepsy.

53. Dr. Yu in his report dated 12 November 2002 said that he examined the plaintiff on 7 November 2002.  The plaintiff’s complaints to Dr. Yu are contained at para. 8 of his report.  He complained of intermittent bitemporal and frontal headaches of a dragging character and mild intensity, intermittent dizziness of moderate intensity, difficulty in concentration and a deterioration in performance of mental tasks, change in personality, becoming easily irritable, frustrated and has interrupted sleep.  He was also no longer sociable.

54. Dr. Yu said that the plaintiff had a faint scar about 2 cm over the left forehead.  Dr. Yu was of the opinion that the plaintiff had sustained a minor head injury.  He said that the plaintiff has Post Concussional Syndrome as evidenced by the symptoms of headache,dizziness, impaired concentration, subjective impairment of cognition and memory irritability and insomnia.

55. He was of the view that his Post Concussional Syndrome was permanent.  He was unsure whether the 2 episodes in which the plaintiff passed out were epileptic in nature.  However, he was of the view that even if they were epileptic in nature and if the plaintiff has epilepsy, the epilepsy would be very mild because there is no structural brain lesion on CT scan and because there has been no recurrence since June 2000. 

56. I have found that the plaintiff had 2 epileptic attacks due to the accident.  It seems to me that although he did have 2 epileptic attacks as a result of the accident and hence he does have epilepsy, the epilepsy would be very mild as Dr. Yu has said and as I accept and find.

57. Dr. Yu said that with his Post Concussional Syndrome the plaintiff should be able to resume his pre-accident employment as a formwork carpenter with a mildly compromised work capacity.  He may need to avoid work at unprotected height in the initial stage.

58. It seems to me, as Dr. Chin said and as I accept, the plaintiff could not work on heights because of his epilepsy as a result of the accident.

Pain, suffering, and loss of amenities (PSLA)

59. I have considered the cases cited by Ms Yiu.  Each case, of course, depends on its own facts.  She submitted that the plaintiff should be awarded $300,000 for PSLA.  The plaintiff did not sustain a serious injury as shown in the medical reports.  He did suffer from Post Concussional Syndrome and has epilepsy although it was mild in nature and it has not recurred since 2000. In my view, a proper award for PSLA would be $200,000.

Pre-trial Loss of Earnings

60. Ms Yiu submitted that the plaintiff should be entitled to pre-trial loss of earnings from 14 August 1999 to date of trial on 22 Dec 2004.  It is agreed that the plaintiff earned $424 per day.  I accept that the plaintiff earned $10,600 per month ($424 x 25 days) at the time of the accident.

61. As submitted by Ms Yiu, on the plaintiff’s evidence he earned an average of $3,000 per month since the accident.  She, therefore, submitted that the Court should award the sum of $496,736 for pre-trial loss of earnings for 65 months and 9 days from the accident to trial.  The plaintiff has, however, not produced any documentary evidence in support of the fact that he earned an average of $3,000 per month after the accident.  

62. Although I accept that the plaintiff’s work capacity has been limited by his injury and his Post Concussional Syndrome and that he cannot work on heights because of his epilepsy, I do not believe that he only earned $3,000 on average per month since the accident in the absence of any documentary evidence.  His work capacity has been mildly compromised.  In my view, he has exaggerated his injuries and his condition with a view to inflating his claim.  In my view he would have earned more than $3,000 on average per month although I accept that he would not have earned as much as pre-accident.  Doing the best I can and in the absence of any documentary evidence from the plaintiff, it would, in my view, be reasonable to assess pre-trial loss of earnings on the basis of full loss of earnings for 3 months after the accident and thereafter I consider that he would have been able to earn on average the sum of $5,000 per month.

63. The pre-trial loss of earnings would be as follows :

From 14 Aug 1999 to 14 Nov 1999 ($10,600 x 3)		$31,800
From 15 Nov 1999 to 15 March 2005
($10,600 - $5,000 x 64)		$358,400
	total	$390,200

Pre- trial Loss of MPF

64. I would assess pre-trial loss of MPF as follows :

From 14 Aug 1999 to 14 Nov 1999 ($10,600 x 5% 3)		$1,590
From 15 Nov 1999 to 15 March 2005
($10,600 - $5,000 x 5% x 64)		$17,920
	total	$19,510

Special Damages

65. There are receipts for medical expenses including medicines and medical consultations.  The total amount of $34,456 which is supported by the receipts is claimed.  I would allow this in full.

66. There is also a claim for Chinese herbal medicine which the plaintiff said he had been taking and which cost him about $1,500 per month. However, the plaintiff has failed to provide any receipts for this expenditure. I am of the view that the plaintiff has also exaggerated his expenditure in this regard.  I am only prepared to allow the sum of $5,000 as reasonable expenditure for this.

67. The total special damages amount to $39,456 and this is the sum I would assess.

Future loss of earnings

68. It seems to me that the plaintiff would suffer future loss of earnings.  I have said that he would have been able to earn $5,000 since the accident and his loss is, therefore, $5,600 per month ($10,600 – 5,000).  Ms Yiu submitted that I should adopt a multiplier of 7 whereas Mr. Koo suggested a multiplier of 6.  I think that an appropriate multiplier for the plaintiff who was aged 47 at the time of the accident and who is now 53 is 7.  The award for future loss of earnings is therefore $470,400 ($5,600x 12x 7).

Future loss of MPF

69. The future loss of MPF is assessed at $23,520 ($5,600 x 5% x 12 x 7).

Loss of earning capacity

70. A reasonable sum that I would assess under this head is $30,000.  This is on the basis of 6 months loss of earnings at $5,000 per month.

Future expenses

71. There is also a claim for future expenses for Chinese herbal medicine. There is no medical evidence that these are required.  I am not satisfied that these are required in future and I make no award in respect of the same.

72. The total damages that I would have awarded the plaintiff if liability had been established is as follows:

PSLA		$200,000
Pre-trial loss of earnings		$390,200
Pre-trial loss of MPF		$19,510
Special Damages		$39,456
Future loss of earnings		$470,400
Future loss of MPF		$23,520
Loss of earning capacity		$30,000
	TOTAL	$1,173,086

73. I would also have awarded interest on special damages at 4% p.a. from date of accident to judgment and on PSLA at 2% p.a. from date of writ to judgment.

Conclusion 

74. As I have found that the plaintiff has failed to establish liability on the part of the defendant on his causes of action in negligence and nuisance I dismiss the claims of the plaintiff.

75. I also make an order nisi that the plaintiff do pay the defendant its costs of the action.