PAK SAI MING v. J.V. FITNESS LTD

HCPI 1387/2014

[2019] HKCFI 2268

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 1387 OF 2014

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J U D G M E N T

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A. Undisputed background

1.  This is a claim for damages for personal injuries arising from a slip at a staircase during the course of work.  The primary facts in this section are not disputed.

2.  The defendant (“JV Fitness”) operated a number of fitness centres in Hong Kong.  This action concerns the one run at 11-16^th Floors, The L Place, 139 Queen’s Road Central, Hong Kong (“the Fitness Centre”).

3.  The plaintiff (“Mr Pak”) was employed at the Fitness Centre as a Fitness Manager immediately before the accident.

4.  There was a lift at the L Place specially reserved for customers of the Fitness Centre but staff members (including Mr Pak) could only use it during non-peak hours.

5.  During peak hours, ie from 12 noon to 2 pm and 7 pm to 9 pm on weekdays and 12 noon to 4 pm at weekends, staff members could only use the emergency fire escape staircase (“the Staircase”).

6.  At about 3:45 pm on 25 May 2013 (Saturday), when Mr Pak was returning to his office on 11/F, he slipped and fell 10 steps down a flight of stairs.

7.  Mr Pak claimed that the Staircase was wet and slippery because it had condensation and it had been raining that morning.  He asserted that it was not an unusual recurrence.  The Fitness Centre knew about it but was negligent in failing to maintain a safe place of work, a safe system of work and/or a safe means of access to and egress from the work place.  He claimed damages in the amount of $30 million in his Re-Revised Statement of Damages, but reduced them to $4.9 million by the time of the trial.

8.  JV Fitness denied that the Staircase was wet or slippery.  They also asserted contributory negligence on the part of Mr Pak.  As it had no witness, JV Fitness effectively put Mr Pak to strict proof of his case.

9.  Mr Pak has sued for employees’ compensation in the District Court (case no. DCEC 494/2014) and JV Fitness had admitted liability.  He was awarded $1,308,885.18 (inclusive of advance payment) plus interest.

10.  On liability, the issues are:

(1) Whether the slip was genuine;

(2) Whether the slip was caused by wetness of the Staircase;

(3) Whether JV Fitness had failed to provide safety measures; and

(4) If liability is established, was there contributory negligence on the part of Mr Pak?

B.  Legal principles

11.  The mere fact of the occurrence of an 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 was unusual and which, in the absence of explanation, was more consistent with fault on the part of the defendant than the absence of fault. Once that is proved, the evidential burden then shifts to the defendant to show, on a balance of probabilities, that the accident happened without negligence on its part:  So Wang Chun v Rainforce Limited & ors, HCPI 64/2006, 9 January 2008, Sakhrani J.

12.  An employer’s duty to provide a safe system of work is a personal and non-delegable duty.  It cannot be said that where an employer is under an obligation to provide a safe system of work, such a duty could be shifted to the employee so that the employee could be expected to discharge this duty of providing a safe system of work for the employer: Fong Yuet Ha v Success Employment Services Ltd [2012] HKCA 575; CACV 100/2012 (28 December 2012), Kwan JA; and Lai Chi Pon v Toto Steel & Iron Works Ltd & ors [1997] 2 HKC 195, Cheung J, 198I to 199C.

13.  In Fong Yuet Ha, Kwan JA relied on this passage in Charlesworth & Percy on Negligence, 12^th ed, para 11-67:

“It is a question of fact whether or not there is need for a system of work to be prescribed in any given circumstances. In deciding it, regard ought to be had to the nature of the work, that is whether properly it requires careful organisation and supervision, in the interests of safety of all those persons carrying it out; or it can be left by a prudent employer confidently to the care of the particular man on the spot to do it reasonably safely. There was no failure to provide a safe system where an employee was faced with a “one-off” task requiring the exercise of common sense and it was difficult to see what relevant instruction could have been given to him. But an employer is under a duty to prescribe a system of work, even where the operation is a single one, if it is necessary in the interests of safety.”

14.  It is the duty of an employer to give such general safety instructions as a reasonably careful employer who has considered the problem presented by the work would give to his workmen.  In Yeung Sze Hoi v New Trade Good Food Centre Ltd, HCPI 568/2004, 22 April 2005, §§8-9, Nguyen J, following General Cleaning Contractors Ltd v Christmas [1953] AC 180, Lord Oaksey at p 189.

15.  Lord Oaksey also stated that it was well known to employers that workpeople are very frequently careless about the risks which their work may involve.  At p 189 he continued:

“It is, in my opinion, for that very reason that the common law demands that employers should take reasonable care to lay down a reasonably safe system of work. Employers are not exempted from this duty by the fact that their men are experienced and might, if they were in the position of an employer, be able to lay down a reasonably safe system of work themselves. Workmen are not in the position of employers. Their duties are not performed in the calm atmosphere of a Boardroom with the advice of experts. They have to make their decisions on narrow window sills and other places of danger and in circumstances in which the dangers are obscured by repetition.”

16.  At p 194, Lord Reid said:

“Where a practice of ignoring an obvious danger has grown up I do not think that it is reasonable to expect an individual workman to take the initiative in devising and using precautions. It is the duty of the employer to consider the situation, to devise a suitable system, to instruct his men what they must do and to supply any implements that may be required such as, in this case, wedges or objects to be put on the window sill to prevent the window from closing. No doubt he cannot be certain that his men will do as they are told when they are working alone. But if he does all that is reasonable to ensure that his safety system is operated he will have done what he is bound to do.”

C.  The evidence

17.  Only Mr Pak gave evidence about the accident.  The other crucial piece of evidence was a CCTV video of the Staircase which captured the occurrence of the accident. Cheng Shing Lung’s witness statement was disregarded because he has not been called.

D.  Was there a genuine slip?

18.  Mr Pak was cross-examined in detail about the slip.  Mr Ho, counsel for JV Fitness, analyzed each screenshot of the video to challenge the slip.  He described how Mr Pak first moved his right leg one step down the Staircase. Then his left foot slipped and he lost balance.  Mr Pak shortly grabbed the handrails on both sides with his hands.  His low back first came into contact with the Staircase with his hands already holding the handrails.  When his low back was touching the third step from the top of the Staircase, his feet were already around 7-8 steps from the top.  In other words, Mr Pak only slipped around 2‑3 steps before his feet came into contact with the landing.

19.  Under cross-examination, Mr Pak agreed that he held the handrails but lost the grip.  Mr Ho submits that there was no good explanation as to why Mr Pak lifted his right hand from the right handrail and then dropped his right arm below the right handrail.  He appeared also to have dropped his left arm below the left handrail.  It remained a “mystery” as to why Mr Pak would release his grip of the handrails.  It was also unbelievable that he could not break the fall with his arms since he had been a fitness trainer for 8 years. 

20.  With respect to Mr Ho, the accident lasted for less than 5 seconds. It was unrealistic to expect a person to place a firm grip on the handrails and remember why his lost his grip.  Having seen the short video, I am satisfied that there was a genuine slip on the part of Mr Pak and the movement of his arms were instinctive reactions to break his fall.

E.  Whether the slip was caused by wetness in the Staircase

21.  The Staircase was not air-conditioned.  According to Mr Pak, when staff opened the emergency exit doors to access the Staircase, cold, dry air escaping from the air-conditioning system of office premises combined with the warm humid air inside the emergency stairwell to form condensation or wetness on the Staircase. 

22.  Mr Ho criticized Mr Pak for not adducing expert evidence on this aspect: CV Ankergracht v Stemcor (2007) 240 ALR 704, §§159-161, 278 and 302.

23.  With respect, CV Ankergracht was a wholly distinguishable case on the facts.  Packaging of the goods was regarded as adequate and consistent with industry practice.  However, there was corrosion of the goods caused by contact with water before or during the voyage. As it was the cause of the corrosion that was in issue, expert evidence was required. 

24.  In the present case, without disrespect, one does not need expert evidence on such common sense matter as warm air meets cold air to form condensation. The issue here is not whether condensation could be formed but whether it was formed and created such moisture/wetness as to have caused Mr Pak to slip.  Eye witness would suffice.

25.  There was incontrovertible evidence from the Hong Kong Observatory that there was rain at about 11 am on the day of the accident.  The temperature was 25-27ᵒC.

26.  Contrary to the submission of Mr Ho, because of the blur image, the video was not helpful in showing whether or not the surface of the steps was wet.  However, about 20 persons walked up and down the Staircase at different speed in the next 5 minutes after the accident.  None of them had, by conduct (eg slow descending or holding of handrails) shown that there was moisture/wetness on the staircase.  Notwithstanding someone had slipped, no one saw the need to mop or summon someone to mop the Staircase.

27.  Mr Pak himself had used the Staircase 4-5 times on that day before the accident.  On those occasions, he had not found the Staircase to be wet or slippery.  If it was condensation which had caused the wetness, it was difficult to see why the size of the water stain was less than his shoe (as described in his oral evidence) instead of a wider area.

28.  Mr Pak confirmed in his oral evidence that he did not notice wetness in the Staircase despite the rain but, after the slip, he felt wetness in his right hand and trousers.  However, this important piece of evidence was only mentioned for first time in the witness box, probably to bolster his case.  I doubt its truth. 

29.  The court cannot infer that there was wetness as alleged simply from the fact that a slip and fall had occurred: Yau Tsz Hin v Broadway Theatre Co Ltd, HCPI 674/2010, 3 April 2013, at §57, G Lam J.

30.  I am not satisfied on the balance of probabilities that there was wetness or such moisture in the Staircase as to cause Mr Pak to slip.  This claim should be dismissed.

F.  Failure to provide safety measures

31.  Assuming I am wrong in my finding under Section E, I shall consider if JV Fitness had failed to provide a safe place of work, a safe system of work and safe access to or egress from the Staircase.

32.  Requiring an employee to use a staircase instead of a lift was not in itself unreasonable, particularly to meet human traffic needs.  Walking up and down a staircase did not require onerous effort.  There was no inherent hazard in this system.

33.  Mr Pak claimed to have informed his superiors that the wet stairs were a safety hazard at a meeting but the Operation Manager said that air-conditioning could not be installed in the Staircase, so nothing was done to improve the situation.  He suggested that a number of measures could have been taken by JV Fitness to remove or reduce the risk of slipping but were not.  These included regular cleaning and drying, applying non-slip materials to the steps and laying carpets.

34.  I have taken into account the following factors.

35.  Firstly, Mr Pak could not give particulars of the meeting in which he had told his supervisors about the risk of slip except to state (under cross-examination) that it was in 2012.  

36.  Secondly, JV Fitness was one of the users of the Staircase but not its owner or tenant.  That was why Mr Pak did not rely on the Occupiers Liability Ordinance, Cap 314, at the trial.  The duty to provide a safe staircase (including putting non-slip materials or using carpets) was on the landlord.  Before making a definitive statement, had the Operation Manager referred Mr Pak’s views to the building management office/landlord? Mr Pak has not produced any corroborative evidence or explained why the Staircase could not have air conditioning installed.

37.  Thirdly, JV Fitness could not be expected to have an absolute duty to prevent condensation or ensure dryness in the Staircase and have a cleaner stationed there all the time to mop it up.  In So Wang Chun §§61-62, Sakhrani J so held,

“61. In Cheung Wai Mei v The Excelsior Hotel (Hong Kong) Ltd trading as The Excelsior [2000] HKCU 886 (CACV 38/2000, 22 November 2000, unreported), Rogers VP said at p 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.”

38.  Fourthly, even if the employer had a duty to keep the Staircase dry and that duty could not be delegated to the landlord, Mr Pak’s own evidence was that there was a cleaner who would clean the Staircase once a day at about 9-10 am.  Mr Pak also claimed that if he saw water on the Staircase, he would inform the staff at the reception for them to arrange cleaners to mop it.  There was nothing to indicate that that system was not good enough. 

39.  Despite having used the Staircase 4-5 times and it had rained in the morning on the day of the accident, Mr Pak had not seen fit to inform the staff to arrange for cleaners to mop the Staircase.  Apparently, there was no hazard of slip and fall before the accident. 

40.  Mr Wright, counsel for Mr Pak, made no comment on this fourth point in his closing submission.

41.  Having considered the matters in section F, I am not satisfied on balance of probabilities that JV Fitness had failed to provide a safe system of work, a safe place of work or a safe means of access and egress.

G.  Contributory negligence

42.  In Yau Tsz Him, there was no evidence that the plaintiff was a frequent visitor to the accident scene, a cinema.  The court found the plaintiff’s contributory negligence to be 50% (at §§67-68 of the judgment).

43.  If liability could be established, I find Mr Pak’s contributory negligence to be 60%.  In contrast to Yau Tsz Him, Mr Pak was a frequent user who had to use the Staircase 15-20 times on each working day and for several years before the accident.  With the foresight of a risk of slip and fall, he had not taken the care as a reasonable person would have, most simply by holding the handrails when descending.

44.  I next deal with the injuries and quantum for the sake of completeness.

H.  Injuries arising out of the accident

45.  As a result of the accident, Mr Pak was admitted to the Queen Mary Hospital (“QMH”).  He suffered from lower back pain, left shoulder, knee and ankle pain, right leg numbness and neck pain.  Medical examination revealed mild neck tenderness and left acromion tenderness.  CT scan of the brain and X-ray of the cervical spine detected no fracture or dislocation.  He was discharged 2 days later and was admitted to the St Paul’s Hospital (“SPH”). The discharge summary of QMH showed full power in his upper and lower limbs, although there was complaint of numbness, pain and tenderness over various parts of his body.

46.  On 27 May 2013, MRI examination showed a desiccated disc with mild posterior disc bulging and an annular tear at L5/S1.  He was hospitalized for 5 days and was discharged on 30 May 2013.  Afterwards, he received regular physiotherapy and out-patient follow up at SPH until about 18 February 2014.

47.  Further MRI 3 months later showed no fracture or dislocation of his feet. 

48.  Mr Pak was admitted to hospital for the third time, to SPH, on 11 February 2014, in relation to his neck pain. Up to about August 2014, he had walked with a stick.

49.  Parties are agreed that Mr Pak was bound by the findings in DCEC 494/2014.  Counsel on both sides have drawn my attention to the following salient findings.  Paragraphs in brackets are those of the DCEC Judgment:

(1) As a Fitness Manager, Mr Pak only had to provide limited training sessions to clients.  For training to subordinates, he was only required to do demonstrations and it would not be strictly necessary for him to lift or move heavy weights. Physical exertion did form a relatively small yet integral part of Mr Pak’s employment as Fitness Manager. (§21) 

(2) Medical examination on 26 March 2014 showed, amongst others, back paraspinal muscle tightness. (§24(viii))

(3) The accident was the contributory cause of Mr Pak’s back pain (§39).  However, his neck problem was not caused, accelerated or aggravated by the accident. (§§39-40)

(4) Mr Pak had exaggerated his symptoms and disability at the joint examination and the need for walking aid.  However, Dr Chun did not exclude the possibility of Mr Pak still having mild residual pain from the injury. (§§45, 47)

(5) In the physiotherapy report dated 8 January 2014, Mr Pak described himself as having 80-85% improvement.  He probably did not require walking aid by late January 2014. (§48)

(6) Having taken into account the fact that Mr Pak had exaggerated his conditions during the joint examination (§58), sick leave was held to be from 25 May 2013 to 31 August 2014, ie 15 months, as JV Fitness did not rebut the presumption in section 10(2) of the Employees’ Compensation Ordinance, Cap 282 (“ECO”).  On this issue, the learned judge held as follows (§58):

“As regards the sick leave granted after 22 January 2014, the issue is more complicated.  Had those leaves been granted solely on the basis of the applicant’s neck pain, I would have no difficulties disallowing them.  This is because of my earlier finding that the applicant’s neck pain was not caused by the accident.  However, the sick leaves were granted for “back and neck pain”.  As the treating doctors have not been asked to testify, there is no evidence before me as to whether they would still have granted the relevant sick leaves to the applicant solely on the basis of his back pain at the time.  I find that the respondent has failed to rebut the presumption in s 10(2) in relation to the sick leave issued between 22 January 2014 and 31 August 2014.  In making this finding, I have taken into account that the applicant had exaggerated his conditions during the joint examination.”

(7) By September 2014, Mr Pak had reached maximal medical improvement and no longer required any further treatment.  Dr Fu (expert on Mr Pak’s side) opined that Mr Pak “will have on and off pain that requires symptomatic treatment on a need to basis”.  Mr Pak had not in fact received any active treatment from Pamela Youde Nethersole Eastern Hospital (“EH”). He also decided not to attend any further consultation sessions at EH after a date had been fixed for his assessment by the Assessment Board.

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

50.  This head of damages should be assessed on the basis of back pain but not neck pain.  The authorities show that award under this head of damages for soft tissue injury at low back or sprained back not involving any fracture and structural damage at the spine ranged from $100,000 to $220,000.  Mr Wright and Mr Ho have provided summaries of the relevant authorities and I gratefully adopt them.

51.  In Chu Sio Iong v Cheung Ho Yin & anor, DCPI 580/2011, 7 May 2013, the plaintiff working as a part-time store assistant at a supermarket fell onto the ground (§§2, 5).  She suffered soft tissue injury to her back (§26), and continued to suffer from mild residual back pain (§46).  She claimed to have urological and psychiatric problems as well but HH Judge Yee found at §48 that they were not causally linked to the accident.  He awarded $100,000 (§§49-50).

52.  In Tamang Udas v Global Sunny Engineering Ltd & anor, HCPI 732/2011, 7 January 2013, the plaintiff was a general labourer who suffered low back injury while moving metal scaffolds on a construction site (§§3, 4).  He was awarded $100,000, reduced by the pre-existing degenerative condition of his spine, and his contributory negligence (§§67 and 75).

53.  In Ng Ning Fu, HCPI 173/2015, 12 October 2017, the plaintiff had back sprain, mild degeneration of L4/5, L5/S1 (§9).  He was unable to resume pre-accident work. Master Au-Yeung awarded him $220,000 (§30).  This case was distinguishable in that the plaintiff’s back injury caused him to have low back spasm (§6), a symptom that could not be feigned.  4 years after the accident, the plaintiff still had severe back pain associated with stiffness at times (§12(b)).  The expert commented that the plaintiff suffered from severe back sprain injury (§13(a)).  The Court found that the plaintiff only recovered quite substantially two years after the accident (§28).  The injuries were thus more serious than Mr Pak’s.

54.  In Tamang Rabichandra, HCPI 659/2007, 17 September 2008, the plaintiff suffered from L5 spondylolysis.  The accident accelerated pre-existing degenerative condition of spine.  Sick leave was 16½ months.  The plaintiff was able to return to pre-accident job. Deputy Judge Harris, SC (as he then was) awarded $150,000.

55.  In Singh Satnam, HCPI 786/2009, 27 April 2011, the plaintiff suffered from back contusion, normal alignment, no deformity, no swelling or muscle spasm and no muscle wasting.  He had some lower back tenderness & reduced spine movement, but no sign of lower limb neuro deficit (§8).  Master Woolley awarded him $150,000.

56.  In Gurung Devchandra, HCPI 138/2011, 14 July 2014, the plaintiff suffered from soft tissue injury.  He was able to return to pre-accident work with some reduction in efficiency.  He could no longer perform Taekwando to a high level.  Deputy Judge Sakhrai awarded him $160,000.

57.  I take into account the findings in the DCEC Judgment set out above.  Mr Pak slid down 10 steps.  He could do a leisure trip just 4 months after the accident (ie from September 2013).  Within 12 months thereafter until August 2014, he had had leisure trips to Japan, Korea, Macao and Taiwan for 7 times.  He claimed that it was upon medical advice, to reduce emotional set back. However, there was no medical finding that he had had any emotional set back arising out of the accident.

58.  His alleged pain, suffering and loss of amenities would have been small. I award damages for PSLA in the sum of $120,000.

J.  Pre-trial loss of earnings

59.  There is no dispute that the pre-accident average monthly earnings was $96,029.19 plus MPF.  JV Fitness did not rely on the allegation involving misconduct of Mr Pak which would have justified summary dismissal.

60.  In calculating loss of earnings, a plaintiff is only entitled to income net of tax: Poon Chung Fai v Leung Ka Sing & anor, HCPI 1050/1999, 8 December 2000, p 15.

61.  Adopting a salaries tax rate of 15% and MPF of $2,500 as suggested by JV Fitness, the multiplicand should be $84,124.81, ie $96,029.19 x 85% + $2,500.

62.  After the sick leave granted by doctors expired, Mr Pak tried to return to work on 26 March 2015.  However, JV Fitness did not give him work.  By 19 May 2015, the parties, terminated the employment, with JV Fitness paying Mr Pak a sum of $150,000.

63.  Mr Pak began working for Wifi Egg Co Ltd at a salary of $12,000 from 1 July 2015.  He now earns about $30,000 per month.  He appears to be a director of Wifi Egg now, together with his girlfriend.  Mr Wright suggest and I adopt a median income of $21,000 per month. 

64.  Mr Pak claims that he could not easily return to his pre-accident job as he could not obtain employment as a Fitness Manger but has to start afresh as a trainer.  He would have back pain by helping clients lift heavier weight.  He could only return after passing professional tests and renewed his practitioner’s certificate. 

65.  Mr Pak claims full loss of earnings for the full sick leave period and partial loss of earnings thereafter up to trial.  The DCEC Judgment (§§56-59) awarded sick leave only up to 31 August 2014.  JV Fitness seeks to re-open the issue of sick leave and invites the court to order pre-trial loss of earnings for around 7 months up to December 2013 but not thereafter.

66.  The determination of sick leave under Section 10 of ECO does not strictly apply to the present proceedings.  However, the medical experts were not called to give evidence.  There is not much before the court to persuade me not to adhere to HH Judge Lee’s finding on sick leave period.

67.  However, I would take into account Mr Pak’s attitude as regards medical treatment to see if he had genuine difficulty in returning to work for the full pre-trial period.

68.  I bear in mind the wise words of Master Leong in Singh Bal Winder v IWS Waste Management Co Ltd formerly known as Fook Woo Waste Paper Co Ltd [2018] HKCFI 1107, at §§25, 39 and 45.  A reasonable patient who had been from a long period of pain which prevented restful sleep and return to work would be very desperate.  He would have exhausted numerous means of medical treatment for pain control or even unconventional treatments so that he would be cured and return to a normal life to earn a good living as before.  It was unlikely that he would be contented to work on and off in a lower paid job.  A person might suffer pain for all sorts of reason but that would not prevent him from discharging his duty in full.  Employees do not go to work only when they are 100% fit and efficient.

69.  With those words in mind, I have taken into account the following matters in the DCEC Judgment:

(1)     From May 2013 to August, Mr Pak reported pain level of 6/10, then 3 to 4/10. The physiotherapy records stated back pain to be centralized at L4-S1.  In the physiotherapy report dated 8 January 2014, Mr Pak described himself as having a retrospective 80-85% improvement (§26(d)).  When Mr Pak was examined on 12 February 2014, his only relevant complaint was residual back pain.  However, by 28 February 2014, for no medical explanation, the back pain had increased to 6-7/10 and had allegedly spread to the rear side of the left leg down to the ankle.  If that pain was real, there was no reason why Mr Pak had not received any active treatment from EH since February 2014 although a date for assessment had been fixed for him, nor attended any physiotherapy or occupational therapy as suggested by treating doctors at EH (§59).

(2)     Mr Pak claimed on 8 January 2014 that his recovery was 80‑85% after physiotherapy at SPH but dropped to 10-20% on 28 February without physiotherapy.  If physio had such significant impact, one wondered why he had defaulted in physiotherapy treatment since March 2014. 

(3)     Dr Cheng recommended sick leave only up to the end of the year 2013.  Due weight should be given to Dr Cheng, who had the benefit of examining Mr Pak in early October 2013 while he was in rehabilitation.

(4)     Mr Pak went on a total of 7 trips during the sick leave period awarded in the DCEC Judgment.  It was difficult to accept that he was not fit to work for orthopaedic reason and yet fit to travel.

(5)     Mr Pak could afford a trip but claimed not to have money for physiotherapy.  The reality was that he had received $557,045.54 periodical payments from JV Fitness up to January 2014; and

(6)     Ultimately, HH Judge Lee did not consider the fact that Mr Pak was able to travel meant that he was also fit enough to work as a Fitness Manager.  As a result of the back injuries, Mr Pak would have some difficulty returning to his previous employment.  (§§62(a), 66)

70.  Plainly, Mr Pak did not behave like the reasonable patient described by Master Leong.  The findings of exaggeration of symptoms and disability in the DCEC Judgment, lack of keenness in seeking medical treatment pointed to him as a malingerer.

71.  I accept Mr Wright’s submission that a person would not start with being a fitness manager but had to be a fitness trainer first.  Mr Pak had tried to return to work at JV Fitness before 1 July 2015, but was terminated by agreement on 19 May 2015.  His licence as fitness trainer had expired in August 2013.  He applied for jobs related to fitness training but either he could not cope or the income was not much more compared to his job at Wifi Egg.

72.  It took Mr Pak about 6 years to move up from being a trainer to manager at JV Fitness.  He may need to spend a comparable number of years to try earning his previous income.

73.  Taking the most generous approach of adopting HH Judge Lee’s decision on sick leave period, I award damages for:

Full loss of earnings from 23 May 2013 to 31 August 2014:
	$84,124.81 x 15.25	$1,282,903.35
Partial loss of earnings from 1 September 2014 to 12 July 2016:
	($84,124.81 – $21,000) x 1012/31	$655,683.51

74.  Since the chain of causation was broken after JV Fitness had closed down, Mr Pak had to re-start as a trainer anyway.  His loss of earnings since then should not be borne by JV Fitness.

K.  Future loss of earnings

75.  Given the closure of JV Fitness in Hong Kong on about 12 July 2016, Mr Wright, rightly in my view, abandons this head of claim.

L.  Loss of earning capacity

76.  Mr Pak is relatively young, being about 35 at the time of trial.  He only had education up to secondary level.

77.  HH Judge Lee has found Mr Pak to have some difficulty returning to employment because even as a Fitness Manager, physical exertion was a small yet integral part of his job.  Judging from the level of income he had made as a trainer before his promotion, he had been a rather successful trainer as regards his ability to procure sales.  However, the work of a physical trainer would involve even more physical exertion than that of a Fitness Manager.  Also his own physical fitness may have a bearing on his ability to attract clients and his ability to assist them and to ensure their safety in training. HH Judge Lee found Mr Pak to have suffered a 5% loss of earning capacity (§§67-68 of the DCEC Judgment).

78.  After 12 July 2016, the loss of earning capacity would be caused by closure of JV Fitness.

79.  I award $150,000 under this head.

M.  Loss of congenial employment

80.  Mr Wright submits that because of the accident, Mr Pak could not return to the type of work which he greatly enjoyed and which gave him great satisfaction: Slater v Commissioner of Police [2018] 4 HKC 1, §87, Bharwaney J.  He asks for an award of $150,000.

81.  However, with respect, Mr Pak’s failure to return to a fitness training job between 1 September 2014 and 19 May 2015 was due to his own malingering.  I accept that his agreement to termination of employment was “involuntary”, not in the sense that there were vitiating factors surrounding that agreement but that he did not really want to give up his job.   

82.  It was not that no job opportunity in the fitness training field was open to Mr Pak.  Everlast did offer basic salary of $13,000 plus commission (similar to the scheme of JV Fitness). His decision not to return to that field was due to financial considerations (comparing the income to that from Wifi Egg) and exaggerated pain.  Loss of clientele 2 years after the accident was just an excuse to avoid spending effort to re‑build his career.  I am not satisfied that he should be entitled to this head of claim at all.

N.  Special damages

83.  Medical expenses should only be calculated up to the expiry of the sick leave period of 31 August 2014 and those amounted to $40,048.

84.  Given the exaggeration in symptoms and disability, I am not satisfied that the travelling expenses were as high as $17,000. Given the length of sick leave, I would award a sum of $10,000 if liability were established.

85.  Mr Ho does not dispute the sum of $5,000 for tonic food.

86.  In summary, if liability is established, with 60% contributory negligence, the amount of damages would be:

PSLA		$120,000
Pre-trial total loss of earnings		$1,282,903.35
Pre-trial partial loss of earnings		$655,683.51
Future loss of earnings		nil
Loss of earning capacity		150,000
Loss of congenial employment		nil
Medical expenses		40,048
Travelling expenses		10,000
Tonic food		5,000
		___________
	Sub-total	2,263,634.86
	(less 60% for contributory negligence)	(1,358,180.92)
	(less award in DCEC award)	(1,308,885.18)
		___________
Total		nil

O.  Conclusion

87.  Whilst the slip was genuine, I am not satisfied that it was caused by wetness/moisture in the Staircase or that JV Fitness failed to maintain a safe system of work, or safe place of work for employees or safe egress from or access to the Staircase.  Even if there was liability, it should be reduced by 60% due to contributory negligence by Mr Pak.  I therefore dismiss the claim.

88.  On costs, a plaintiff who made up a dishonest personal injuries claim should be penalized by costs on indemnity basis: Pak Siu Hin Simon v JV Fitness Ltd [2017] 6 HKC 110, §10.

89.  Mr Pak already had the benefit of about 2 years from the DCEC Judgment up to trial to enable him to assess the merits of his claim.  There were express findings of exaggeration and malingering in the DCEC Judgment, which this court adopts.  Mr Pak defaulted on medical treatment to go on pleasure trips. 

90.  By a letter dated 14 November 2018, solicitors for JV Fitness had already drawn the attention of Mr Pak’s solicitors to the case of Pak Siu Hin and invited Mr Pak to discontinue his claim to avoid a costs order on indemnity basis.

91.  Mr Pak re-revised his Statement of Damages after the DCEC Judgment to claim a staggering amount of $30 million of which $25 million concerned future loss of earnings.  The claim was reduced to $4 million at trial, still an unrealistic sum.  He had failed to do better than the DCEC award and wasted 5 years’ costs.

92.  I make an order nisi that he should bear costs on party and party basis up to and including 17 July 2016 (4 weeks after the DCEC Judgment and thereafter on indemnity basis.

93.  Mr Ho does not object to summary assessment.  I therefore order, nisi, that JV Fitness do provide a statement of costs by 2 October 2019 and Mr Pak do provide grounds in objection within 14 days thereafter.

94.  I thank Mr Wright and Mr Ho for their assistance.