SO WANG CHUN v. RAINFORCE LTD AND OTHERS

HCPI 64/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 64 OF 2006

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J U D G M E N T

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1. The plaintiff’s claim is for damages for personal injuries sustained by him in a slip and fall accident on 6 February 2003 at Podium Level 1 of the Uptown Plaza, 9, Nam Wan Road, Tai Po, New Territories (“the Plaza”).

2. The plaintiff’s causes of action are in negligence and the breach of the common duty of care owed by the defendants as occupiers of Podium Level 1 of the Plaza under the Occupiers Liability Ordinance, Cap. 314.  The standard of care is the same whether in negligence or the common duty of care owed by occupiers namely, to take reasonable care.

3. The Plaza included a commercial complex in a podium.  There were residential towers over the podium.  The commercial complex comprised of three floors.  A bus terminus was at the ground floor.  Podium Level 1 comprised of a shopping arcade with fast food outlets and restaurants.  Podium Level 2 had a carpark area, restaurants and a supermarket.

4. The 1^st, 2^nd and 3^rd defendants were the developers of the Plaza.  The plaintiff’s case is that the 4^th defendant was the manager of the Plaza under the relevant Deed of Mutual Covenant and Management Agreement dated 1 June 1991 in respect of the Plaza.  The 5^th defendant was the manager appointed to manage the commercial complex of the Plaza including Podium Level 1.  The 6^th defendant was the owner’s corporation incorporated under the Building Management Ordinance, Cap. 344 in respect of the Plaza.

5. At all material times the 5^th defendant engaged a cleaning contractor, Tsang Lik Services Ltd (“Tsang Lik”) to carry out cleaning work in the commercial complex.

6. The defendants dispute liability and quantum.

Liability

7. At the commencement of the trial, Mr Wong, acting for all the defendants, sensibly took the position that the Court should not be concerned with apportionment of liability between the defendants if liability were established against any of the defendants.  If liability were established by the plaintiff, then all the defendants would be liable and there would be no question of apportionment of liability between the defendants.

The witnesses

8. I heard evidence from the plaintiff.  He also called Anniesa Lo Wai Man (“Lo”) to give evidence on his behalf.

9. I also heard evidence from the witnesses called by the defendants.  They were Leung Yau (“Leung”), the cleaner employed by Tsang Lik at the material time, Wong Nga Ching, (“Wong”) a cleaning supervisor employed by Tsang Lik at the material time, and Tam Wai Yee (“Tam”) a security guard employed by the 5^th defendant at the material time.

10. I have no hesitation in accepting the evidence of Lo, Leung, Wong and Tam.  I found them to be honest witnesses.  They were in my view credible and reliable witnesses who told me the truth.  I believe them.   

11. As regards the plaintiff, he did not impress me as an honest witness who was trying to tell me the whole truth.  I did not believe parts of his evidence.  He was also not a reliable witness in my view.

The accident

12. The plaintiff’s case is that the accident occurred on 6 February 2003.  The defendants, however, were not notified of the accident until much later.  They were only informed of the same when they received the plaintiff’s solicitors’ letter before action dated 18 August 2005, about two and a half years later.

13. The defendants dispute that there was an accident on 6 February 2003 as alleged by the plaintiff.  They also dispute that the circumstances of the accident were as described by the plaintiff in evidence.

The applicable legal principles

14. The applicable legal principles are not disputed.

15. Both counsel relied on the principle set out in the judgment of Megaw LJ in Ward v. Tesco Stores Ltd [1976] 1 WLR 810 at 815 :

“	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.”

16. It was also not disputed that what I said at paragraph 17 of my judgment in Wat Kwing Lok v. The Kowloon Motor Bus Company (1933) Ltd (HCPI 936/2005, 20 November 2007) was applicable :

“

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.”

The issues

17. It seems to me that the issues on the question of liability are :

(1)	Has the plaintiff discharged his burden of proof 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 defendants than the absence of fault?
	If the answer is “no”, then the plaintiff’s claim fails.
	If the answer is “yes”, then :
(2)	Have the defendants discharged their evidential burden of showing, on a balance of probabilities, that the accident happened without negligence on their part?
	If the defendants are found to be liable, then :
(3)	Was the plaintiff guilty of contributory negligence?

The evidence and findings

18. The plaintiff gave evidence that at the material time, he was employed by Joseph Wong & Co. (HK) Ltd as a territory manager.  His employer was in the business of manufacturing and selling disposable wares for containing food including paper cups, paper dishes, plastic cutlery, paper towels, toilet tissues and liquid soap.  The plaintiff was responsible for contacting and liaising with customers of his employer.  One of his duties was to make frequent visits to customers for the sale and promotion of his company’s products.

19. The plaintiff said that on 4 February 2003 he went back to work after the Chinese New Year holidays.  Although he had informed his treating doctors that he had a slip and fall accident on 7 February 2003, he recalled that the accident happened on 6 February 2003.

20. He was also mistaken as to the date when giving details to his employer for the purpose of filling in Form 2 in respect of his claim for employees’ compensation (“the Form 2”).

21. He recalled that on the day of the accident he had an appointment scheduled for 4 p.m. with a customer of his employer namely, Macy’s Candies Ltd whose representative was Lo.  They were situated at Tai Ping Industrial Building in Tai Po.  After lunch the plaintiff took a train to Tai Po Market Station.  At about 3:30 p.m. he left the station.  He intended to take a taxi to Tai Po Industrial Building from there.  However, he wanted to go to the toilet and he went into the Plaza to find a toilet.  He went up the escalator to Podium Level 1.  There was a McDonald’s fast food restaurant (“McDonald’s”) on the right side of the escalator at Podium Level 1.  He went into McDonald’s but could not find a toilet there.  He then walked out of McDonald’s.  At that time in his left hand he was carrying two plastic bags containing several tens of student lunch boxes as well as a thin document envelope. 

22. In his witness statement dated 16 October 2006, the plaintiff said that when he was outside McDonald’s he called Lo with his mobile phone to tell her that he was on his way to her and would arrive after 15 to 20 minutes.  He said that he had just finished the telephone conversation with Lo when he suddenly slipped backwards.  His buttocks and right hand struck the ground surface.  He subsequently learnt that he had stepped on a pool of water and slipped.  His trousers, suit, shirt and right hand were wet.  He got up by himself and packed up the things that were scattered on the floor.  He felt embarrassed.  He walked to a toilet at the Plaza to wash up and to dry up the wet areas.  He quickly left the Plaza to keep his appointment with Lo.

23. In his supplemental witness statement dated 17 December 2007, however, the plaintiff said that he had recently received from his solicitors a copy of detailed telephone records in respect of the mobile phone number used by him in February 2003.  The records showed that at the material time he did not make a call to anyone.  He had instead received a call.  Hence, in his supplemental witness statement he said that he had made a mistake in his recollection when giving his earlier witness statement by saying that he had telephoned Lo just before the accident.  He was, however, adamant that he had finished the telephone conversation before he slipped and fell.

24. Lo gave evidence that on a day in early 2003, the exact date of which she could not recall, the plaintiff went to see her on business.  He told her that he had just fallen on a wet floor before going there and also showed her his wet clothes.  She also said that the plaintiff brought with him samples of lunch boxes on that occasion.

25. I accept the evidence of Lo who is an independent witness and whose evidence is unchallenged.

26. The plaintiff was adamant that he went to see a bonesetter the day after the accident.  However, according to the records kept by the Lo Ying Cheung Lo To Chinese Osteopathic Centre (“the bonesetter”) the plaintiff went to the bonesetter for treatment on 8 February 2003 for “sprain of lumbar spine”.  This date was recorded in the consultation records by means of a rubber date stamp.  The receipt issued by the bonesetter shows the same date of 8 February 2003 in manuscript.

27. It is highly unlikely, in my view, that in both the consultation records and the receipt the date would have been entered wrongly by the bonesetter.  I find that the plaintiff went to the bonesetter for treatment because of a sprain in the lumbar spine on 8 February 2003 and not on 7 February 2003 which would be the day after the accident.

28. If the plaintiff went to the bonesetter the day after the accident as he maintained this would mean that he had had the accident on 7 February 2003.  This was also the date of the accident in the Form 2 filled in by his employer in respect of the employees’ compensation claim based on the information provided by the plaintiff.

29. The plaintiff was later reminded by his employer that he was on leave on 7 February 2003.  It was, therefore, unlikely that he had the accident on 7 February 2003 as he would not have been visiting a client with samples on his day off.  The plaintiff’s case is that he had the accident on 6 February 2003 and that he had wrongly recalled the date when he had informed some of his treating doctors that the date of the accident was 7 February 2003.  I accept that he had wrongly recalled the date of the accident as being 7 February 2003.

30. It seems to me that Lo’s evidence does corroborate the plaintiff’s evidence that he had a slip and fall accident on the day that he went to visit her.  I find that the plaintiff did have the accident on the day that he visited Lo and I am satisfied that this was on 6 February 2003 and not on 7 February 2003.

31. The circumstances surrounding the accident given by the plaintiff in evidence are also different than the account given by him previously. 

32. In the Form 2 the plaintiff’s employer recorded that the plaintiff passed by the vicinity of McDonald’s in the Plaza and “whilst about to take an escalator, stepped onto water stain on the surface of the floor and slipped”.

33. In the attachment to the Form 2 the details of the accident given are that the plaintiff was walking nearby McDonald’s and :

“

… was prepared to take an escalator.  As he was carrying two large bags of company samples and at the same time, he was holding a mobile phone and talking to the other side, he did not notice there was water stain on the surface of the floor of that place.  He did not know stepping onto the water stain and therefore slipped.”

34. Although the plaintiff gave evidence that he had finished talking on the phone when he slipped and fell, the above account given in the attachment to Form 2 suggests that he was still talking on the phone when he slipped and fell.  The plaintiff said in evidence that he had provided the information in Form 2 to his colleague and that he had said that he had finished talking on the phone at the time.  I do not believe him.

35. I would observe also that Dr Daniel K.H. Yip (“Dr Yip”) said in the second joint medical report of Dr Lee Po Chin (“Dr Lee”) and Dr Yip dated 13 February 2007 (“the second joint report”) that he recalled that :

“	… in the previous assessment, [the plaintiff] was talking on his mobile phone at the time of the injury.  He had just ridden up the escalator and was holding the phone in his right hand whilst his left hand was holding briefcase along with some light company products. …”

36. In the written answers dated 24 November 2003 given to the Labour Department and signed by the plaintiff, the plaintiff said that he was talking on the phone to a customer when he accidentally stepped onto a patch of water and slipped.  I do not believe the plaintiff when he said that before signing the written answers he only looked at the first few lines and not the whole document.  The plaintiff tried to distance himself from the written answers by saying that it was filled in by his colleague.  However, there was no reason in my view for his colleague to wrongly record what the plaintiff had said.

37. I do not believe the plaintiff when he said in evidence that he had finished talking on the phone before he slipped and fell.  His evidence was unreliable in the light of what is contained in the Form 2, his written answers to the Labour Department and also what he had told Dr Yip.  It is highly unlikely that both Dr Yip and the plaintiff’s colleague would have wrongly recorded what they were told by the plaintiff.

38. I would observe that from the time he made his witness statement on 16 October 2006 right up to the time he was shown telephone records by his solicitors as recently as 29 November 2007, his recollection was that he had telephoned Lo using his mobile phone and had finished his conversation with her before he had the accident.  That recollection was, as he admitted, wrong and is a further indication that his recollection of the circumstances surrounding the accident was faulty and unreliable.

39. It is also significant that when he was giving evidence in the morning session of the first day of trial the plaintiff said that he did not remember whom he had telephoned just before the accident.  He went on to say that he had made the call while he was still walking using his right hand.  He was in a hurry.  He said that he dialed the numbers with his hand and he was pressing the buttons while he was still walking.  Obviously, when he gave that evidence he must have forgotten about the telephone records which showed that he did not make a call at the material time but that he had received a call instead. 

40. In the afternoon session of the first day of trial, however, the plaintiff changed his evidence and said that he recalled that the person he spoke to was Ng Wing Kan, the chief sales manager of his employer, who had called him and that he slipped and fell after he had finished talking on the phone with him.

41. In his witness statement the plaintiff said that he stepped on a pool of water.  However, prior to that time he had said that he stepped onto a patch of water (as stated in the letter before action dated 18 August 2005) or wet patch (as pleaded at paragraph 10 of the Statement of Claim) or water stain (as stated in the Form 2). 

42. The plaintiff’s recollection of the circumstances surrounding the accident was, in my view, faulty and unreliable.  He was an unreliable witness. 

43. I do not believe the plaintiff when he said that he stepped on a pool of water after he had finished his telephone conversation and that water splashed up.  In my view the plaintiff was trying to give the impression that the accident was more serious than it was by saying that he stepped on a pool of water and that water splashed up.

44. It seems to me, and I so find, that the plaintiff had received a call just before the accident and that he was talking on his mobile phone when he stepped on a patch of water rather than a pool of water in the area outside McDonald’s at Podium Level 1 of the Plaza.  At the time the plaintiff had received a call from his company’s chief sales manager and he was talking to him while he was walking hurriedly.  He was in a hurry as he wanted to go to the toilet before his scheduled appointment.  He fell backwards and landed on his buttocks and his right hand.  As a result of this he injured his lower back.

45. The plaintiff admitted in cross-examination that he had denied to Dr Lee and Dr Yip that he had had a previous back injury.  His evidence was that he had previously injured his lower back whilst helping an old lady.  From the consultation records of the bonesetter the plaintiff went to see the bonesetter for a sprain to the lumbar spine in September 2002.  It seems to me that this was the time that he had the previous injury to his lower back.

46. In evidence the plaintiff said that he was not trying to conceal the previous injury from the doctors but that because it happened so long ago he could not remember it.  I do not believe him.  It seems to me that the plaintiff was trying to conceal his previous back injury from Dr Lee and Dr Yip.  In the first joint medical report dated 19 October 2006 they said that the plaintiff denied any previous injury or problems to his back and neck.  In my view, the plaintiff was trying to give the impression to the doctors that the back injury that he had sustained from the accident was more serious than it was. 

47. I would also observe that in his written answers to the Labour Department dated 24 November 2003 it was also stated that he had no previous injury before the accident.  And the plaintiff also told Dr Arthur Yau that his past medical history was good as stated in his report dated 12 April 2005.

Issue (1)

48. There is no evidence that anyone saw the patch of water on the floor in the area outside McDonald’s before the plaintiff stepped on it and fell.

49. There was also no report or complaint to any of the defendants of the accident at the time.

50. I accept that slipping and falling on a patch of water on the floor in the area outside McDonald’s is an unusual event.  However, before the evidential burden of showing that the accident happened without negligence on their part is shifted to the defendants, the plaintiff must go on to prove, on a balance of probabilities, that in the absence of explanation, the unusual event is more consistent with fault on the part of the defendants than the absence of fault.

The cleaning system

51. The evidence of Leung which I unhesitatingly accept was that on 6 February 2003 she was on duty as a cleaner at the Plaza.  She was responsible for cleaning area A on Podium Level 1 which was the area in orange as shown in the plan at page 693 of the trial bundle.  This included the area outside McDonald’s.  Not surprisingly, she could not recall details of her work on that specific day.  She reported for duty on 6 February 2003 at 8 a.m. and finished at 6 p.m. as confirmed by the attendance records.  She had one hour off for lunch from 11 a.m. to noon.  There was no afternoon break from noon to 6 p.m.  To enable her to carry out her cleaning duties she had the use of a trolley with cleaning utensils which she pushed along area A.  Whenever she saw dirt or water on the floor, she would mop it up.  She would also clean up when instructed by Wong or a security guard.  She said that she went to the area outside McDonald’s about 3 to 4 times every hour with the cleaning trolley. 

52. I believe Leung and have no hesitation in accepting her evidence.  I find that at the material time she was on duty and was responsible for cleaning the area outside McDonald’s.  She went to that area about 3 to 4 times every hour in the afternoon of 6 February 2003.

53. Wong gave evidence that she was not on duty on 6 February 2003.  She was the cleaning supervisor.  Apart from her there was also the foreman Lee Yuk Keung who was on duty that day.  Wong said that it was Lee Yuk Keung who was the foreman supervising the cleaning workers including Leung on 6 February 2003. 

54. Wong also said that she had come across the situation where visitors to the Plaza had left liquid or water on the floor of Podium Level 1 but that this would be cleaned up by the cleaners very quickly.  She also said that Leung was very hardworking and that she always kept on patrolling area A as part of her cleaning duties.

55. I believe Wong and accept her evidence.  Apart from Leung who was the cleaner responsible for the area outside McDonald’s and who was in that area as part of her duties about 3 to 4 times every hour in the afternoon of 6 February 2003 there was also the foreman who was supervising her.

56. Tam was the security guard who was on duty in the security control room on 6 February 2003.  She said that the 5^th defendant had staff managing the commercial complex of the Plaza which included the team of security guards who were responsible for patrolling and security work at the Plaza.  She was on duty on 6 February 2003 in the control room.  Part of her duties included paying attention to the condition of the Plaza via CCTV.  She would also coordinate the work of her colleagues to deal with any special or emergency incident via the walkie talkie system.  She also said that if any matter arose in relation to the cleaning of the Plaza the operator would use the walkie talkie system to contact the responsible person of the cleaning contractor to get some workers to do the cleaning work.  Although the emphasis of the security guards was to be responsible for security in the Plaza and to pay attention to the maintenance conditions of the places and facilities of the shopping arcade, Tam said, and I accept, that the security guards also had the duty to pay attention to the cleaning conditions of the shopping arcade.

57. On her evidence, which I accept, it is clear that on Podium Level 1 logbooks were placed at various places where the security guard on duty would have to sign periodically.  The plan at page 373 of the trial bundle shows the position of the logbooks at numbers 1 to 9 with an orange circle.   Logbook 1 was at the area outside McDonald’s.  There was also a main registration book (“main book”) recording the activities of the security guards or any particular incident as shown in the main book.

58. I have no hesitation in accepting the evidence of Tam. 

59. It is clear from the evidence of Tam and the records of the main book and logbook 1 that the area outside McDonald’s was inspected at 15:01 hours and again at 16:04 hours on 6 February 2003.  There is no evidence that any of the security guards saw any water on the floor outside McDonald’s when they patrolled that area at those times.

60. It seems to me, and I so find, that the defendants and Tsang Lik had clearly adopted a reasonable system of cleaning the floor at Podium Level 1 including the area outside McDonald’s on 6 February 2003.

61. In Cheung Wai Mei v. The Excelsior Hotel (Hong Kong) Ltd trading as The Excelsior (CACV38/2000, 22 November 2000) Rogers VP said at page 17 :

“

It seems to me that the plaintiff is attempting to put far too high an onus on the defendant not merely to remove any spillages if and when they occur but in terms of stationing people, presumably at all corners of the hotel, at all times, to guard against spillages.  The evidence was that there was at least one cleaner on duty that night.  In my view that would have been sufficient.  Furthermore, in the absence of there being any evidence that anybody, at all, saw any water, moisture or any slippery substance at or near the scene of the accident, it cannot be said that there was a hazard which should have been seen and cleaned before the plaintiff arrived.”

62. It seems to me that what Rogers VP said in that case also applies here.  The defendants did not have an absolute duty to ensure that the floor was clean at all times.  The defendants cannot be expected to have a cleaner or staff stationed at all times in the area outside McDonald’s to watch out for any spillages and to clean it up immediately as it occurs.  What the defendants did provide was in my judgment a reasonable system of cleaning the floor of Podium Level 1 including the area outside McDonald’s.  I am satisfied that the defendants have taken reasonable care for the safety of visitors to the Plaza including the plaintiff.

63. The plaintiff has in my judgment failed to discharge its burden of showing that the unusual event, in the absence of explanation, was more consistent with fault on the part of the defendants than the absence of fault.

64. In my judgment the plaintiff’s claim fails and should be dismissed.

65. The other issues do not arise.

66. In case this matter goes elsewhere and I am held to be wrong on the issue of liability on the part of the defendants, I go on to consider the question of contributory negligence and quantum briefly.

Contributory negligence

67. As I have found, the plaintiff was in a hurry walking in the area outside McDonald’s.  He was carrying two plastic bags containing samples in his left hand as well as an envelope.  He was talking on the phone which he held in his right hand and was walking hurriedly.  He failed to see the patch of water which he stepped on.  In the circumstances he failed to take care of his own safety.  In my view he should be held to be guilty of 50% contributory negligence.

Quantum of damages

68. Subject to the issue of liability, two items on the quantum of damages have been agreed.  The rest of the items have been disputed.

Pain, suffering and loss of amenities

69. The award for pain, suffering and loss of amenities (“PSLA”) has been agreed at $160,000.

Special damages

70. Special damages including medical expenses, travelling expenses and other expenses have been agreed at $55,000.

Pre-existing conditions

71. It appears from the medical evidence that the plaintiff was suffering from pre-existing conditions prior to the accident.

72. The plaintiff admitted that he had injured his lower back when helping out an old lady in or about September 2002.  For that injury he went to the bonesetter in October 2002 with diagnosis of “sprain of lumbar spine”.  Prior to that he had also been to the bonesetter with diagnosis of “lumbar spine wrong position”.

73. In his report dated 19 November 2005, Dr Soo Hon Pong (“Dr Soo”) confirmed that the plaintiff had a series of consultations with him from 2 October 2002 to 17 October 2002 in respect of his lumbar spine.  The plaintiff had complained of low back pain in respect of his fall about one month earlier which must have been the time he helped the old lady in September 2002 and injured his lower back.  An X-ray taken on 17 September 2002 showed degenerative changes like cervical and lumbar spondylosis over the cervical spine, at level C6 and C7 and over the lumbar spine at L4, L5 and S1.  However, no radiological evidence of intervertebral disc prolapse could be seen at that time.  He was advised to start physiotherapy and as treatment went on the symptoms were improving.

74. The plaintiff had the accident on 6 February 2003 but he only saw the bonesetter on 8 February 2003.  He did not see a doctor until 2 July 2003.  Dr Julian Chang examined him on 2 July 2003 and treated him as a case of lower back strain with anti-inflammatory medication, muscle relaxant and physiotherapy.  An MRI scan of the lumbar spine was taken on 4 August 2003.  This showed a right posterolateral prolapse at L4/L5 level.  I would observe that there were already degenerative changes at L4/L5 in the X-ray taken on 17 September 2002 as observed by Dr Soo.

75. The plaintiff consulted Dr Arthur Yau in November 2004.  According to Dr Yau’s report dated 12 April 2005, on examination of the lumbar spine, there was a decrease in flexion, which produced right sciata.  There was tenderness over the right side of lumbar 4 to sacral 1 and along the sciatic nerve.  MRI showed a prolapsed intervertebral disc at the right side of L4-L5.

76. The plaintiff agreed to a laminectomy which was carried out on 4 January 2005.

77. According to Dr Yau’s report dated 8 July 2005, on 14 April 2005 X-rays and MRI scans were taken which showed a prolapsed disc at C4-5.  His neck pain radiated to his upper back.  MRI of his thoracic spine was carried out which showed that it was normal.

78. On 9 May 2005, an operation of excision of the C4-C5 disc and fusion was carried out.

79. Dr Lee and Dr Yip were both of the view, and I so find, that the neck surgery performed by Dr Yau on 9 May 2005 was not related to the accident on 6 February 2003.

80. It is clear, therefore, from the medical evidence, and I so find, that before the accident there were already degenerative changes over the plaintiff’s cervical and lumbar spine.

The plaintiff’s complaints

81. The second joint report shows that at that examination the plaintiff still complained of pain in the low back together with numbness of the right lower limb.  There were also complaints of pain and tightness in the neck with limitation of movement in the neck.  Dr Lee and Dr Yip agreed on the physical findings they made as set out in the second joint report.  It is not necessary for me to set all these out here.  These, however, include a finding of patellofemoral arthritis over the left knee, slight limited voluntary lumbar spinal movements, limitation of voluntary movements of the neck with some discomfort, and walking with slight antalgic gait.

82. His complaints are not confined to the lower back but also the neck and left knee pain.  Dr Lee was of the view, which I accept, that the left knee pain was probably not the result of the accident or the back symptom.  It was due to patellofemoral arthritis. 

83. The plaintiff walked with a stick into and out of the witness box when giving evidence.  However, as set out in the second joint report the plaintiff claimed that he needed the stick as recently as 2 months prior to the examination but not before.  Dr Yip was of the view, which I accept, that there is no medical explanation for the need of the plaintiff to use a walking stick.  It seems to me that the plaintiff was trying to exaggerate his condition by using a walking stick.

84. Dr Lee expressed the opinion that the degenerative changes in the lumbar spine at L4/5 were pre-existing and that the plaintiff had a history of back pain prior to October 2002.  He was of the view that the injury on 6 February 2003 was a definite injury to the low back and could be the precipitating cause of his symptom of back pain and right leg numbness.

85. Dr Yip, however, was of the view that the back injury in February 2003 only exacerbated but did not cause the low back pain.  He was of the view that the injury in February 2003 may have aggravated his neck and back problems that he was already suffering from at that time and brought it on earlier by a year or two.  His condition was naturally becoming more serious with age and he would need treatment in any event.

86. It seems to me, as Dr Lee said and as I accept, that there was a definite injury to the low back as a result of the accident on 6 February 2003.  As he only took two days sick leave up to the date of the Form 2 on 4 August 2003, it does not seem to me that the injury to the lower back as a result of the accident could have been very serious.  Also, he did not see a bonesetter until 8 February 2003 and he only saw Dr Julian Chang in July 2003 although the plaintiff said that because of SARS in Hong Kong he was apprehensive about going to a doctor’s clinic prior to July 2003.  It seems to me, however, that the injury from the fall on 6 February 2003 could not have been very serious.

87. Although the plaintiff had a definitive injury to the low back as a result of the accident, it is abundantly clear that the plaintiff already had degenerative changes to his cervical and lumbar spine.  That being so, the Court would have to take account of his pre-existing conditions in assessing damages.  His pre-existing conditions were likely, in my view, to lead to disability and loss of earnings even if it were not for the accident.                                                               

88. In Chan Kam Hoi v Dragages et Travaux Publics [1998] 2 HKLRD 958 it was held that where a pre-existing condition was likely to lead to disability and loss in the absence of the injury for which the plaintiff was entitled to recover, the usual method of assessing the recoverable loss was to take account of those risks by an appropriate assessment of general damages.  The pre-trial loss of earnings might also be reduced if the risks during the years concerned were sufficiently high.  It was also held that when calculating the damages for future loss of earnings, a reduced multiplier was usually the most accurate way of giving effect to the risk of disability due to a pre-existing injury, particularly where a plaintiff’s working life was likely to be limited by that pre-existing condition.

89. Mr Lee submitted that in view of the plaintiff’s pre-existing conditions a discount of at most 33% should be adopted.  In my view, however, a more appropriate discount of 45% should be adopted in view of his pre-existing degenerative changes to his neck and lumbar spine.  There was also patellofemoral arthritis in his left knee which accounted for his left knee pain and had nothing to do with the accident.

Pre-trial loss of earnings

90. The plaintiff said that as a territory manager prior to the accident he was required to contact and liaise with customers.  Part of his duties was to carry samples to customers which he said he could no longer do.  Dr Lee accepted that there may be some impairment in his ability to return to work as a manager selling utensils for fast food but that he can probably perform managerial work in an office.  Dr Yip was of the view that he could carry on his previous work as he was unlikely to do any regular heavy lifting as he was in a senior position.

91. I accept and find, as Dr Lee said, that there would be some impairment in his ability to return to work in his previous job where part of his duties was to visit clients and carry samples with him.  Mr Lee, for the plaintiff, submitted that the plaintiff should be able to earn $7,000 per month after termination of his employment.  However, this is not supported by any evidence.  In my view, he should have been able to earn much more than that.  It is, in my view, likely that after termination of his employment he would have been able to earn at least $12,000 per month.  I propose to adopt this figure as representing the amount that he could have earned rather than the figure of $7,000 as submitted by Mr Lee.

92. The plaintiff’s case is that his monthly average earnings at the time of the accident on 6 February 2003 was $19,537.50.  That was the sum filled in by his employer in the Form 2 as representing the plaintiff’s average monthly earnings for the previous 12 months prior to the accident.  That sum includes his basic salary and commission earned.

93. I accept the plaintiff’s evidence as regards his earnings at the time of the accident.  I am satisfied that the plaintiff’s average monthly earnings including commissions at the time of the accident was $19,538.

94. I also accept the plaintiff’s evidence that in October 2005 he received an increase in his basic salary from $14,800 to $17,000 thereby increasing his basic salary by $2,200.  However, he no longer received any commission. 

95. The plaintiff’s employment was terminated by his employer in March 2006.

96. There is no dispute that between the date of the accident to March 2006 the plaintiff was given a total of $692,731 by his employer as basic salary, commission and travelling allowance.  The plaintiff is willing to give credit for the payments received. 

97. As submitted by Mr Lee, it seems to me that his pre-trial earnings should be broken up into two periods :

(1)	from the date of the accident until termination of his employment in March 2006 and
(2)	from termination of his employment in March 2006 until trial.

98. For the 58 months’ pre-trial period from February 2003 to December 2007 the pre-trial loss of earning should be the total sum of $250,073 made up as follows :

(1)	$45,575 for the 37 months’ period from February 2003 to March 2006 ($19,538 x 30 months + $21,738 x 7 months less $692,731 received ); and
(2)	$204,498 for the 21 months’ period from March 2006 to December 2007 ($21,738 - $12,000 x 21 months).

99. The total sum of $250,073 should be discounted by 45%.  Hence the award for pre-trial loss of earnings should be $137,540.

Pre-trial MPF loss

100. The pre-trial MPF loss should be the sum of $6,877 which is 5% of $137,540.

Future loss of earnings

101. The plaintiff was born in December 1957 and at trial he was 50 years old.  His retirement age with his former employer was 65 years.  Both counsel agreed that for a healthy person the appropriate multiplier would be 9.  I agree.

102. Mr Lee submitted that a reduced multiplier of 6 should be adopted.  In my view, however, a reduced multiplier of 5 and not 6 should be adopted.  

103. The award for future loss of earnings would therefore be the sum of $584,280 ($21,738 - $12,000 x 12 x 5).

Future MPF loss

104. The future MPF loss would be $29,214 being 5% of $584,280.

Loss of earning capacity

105. For loss of earning capacity, the sum of $84,000 is claimed ($7,000 x 12 months) with a discount of 33% reducing the claim to $56,000.

106. I am satisfied that the plaintiff would suffer some handicap in the labour market.  In my view the appropriate award should be the sum of  $72,000 ($12,000 x 6 months) which should be discounted by 45% thereby making the award for loss of earning capacity in the sum of $39,600.

Summary of quantum

107. The total award should be $1,012,511 made up as follows :

(1)	PSLA	$ 160,000
(2)	Special damages	$ 55,000
(3)	Pre-trial loss of earnings	$ 137,540
(4)	Pre-trial MPF loss	$ 6,877
(5)	Future loss of earnings	$ 584,280
(6)	Future MPF loss	$ 29,214
(7)	Loss of earning capacity	$ 39,600

Interest

108. The plaintiff would also be entitled to interest as claimed at 2% p.a. on the PSLA award from date of writ 21 January 2006 to judgment and on special damages at half judgment rate from date of accident to judgment.

109. The total amount of damages would have to be reduced by 50% because of the plaintiff’s contributory negligence.

Conclusion

110. In view of my decision on the question of liability, the plaintiff’s claim is dismissed.

111. I also make an order nisi that :

(1)	the plaintiff do pay the defendants their costs of the action; and
(2)	the plaintiff’s own costs be taxed in accordance with Legal Aid Regulations.