YUNG CHAU CHAU WENDY v. HONG KONG HOUSING AUTHORITY AND ANOTHER

HCPI 1113/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1113 OF 2002

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J U D G M E N T

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1. In this action the Plaintiff claims damages for personal injury resulting from an accident which allegedly occurred on 5 January 2002, inside a car park owned by the 1st Defendant and managed by the 2nd Defendant. This was the trial on liability.

2. The Plaintiff's case was that on the day of the accident, she was a front seat passenger in a private car driven by her husband. Her husband parked the car at a car park space, later found to be no. 52, in the underground car park at Wong Tin Sin Centre. She alighted and while walking towards the rear of the car to take something out of the boot, she tripped and fell beside the near-side rear wheel of the car. At that stage, she was sitting on the ground somewhere between car park spaces no. 51 and 52 and was unable to get up as she felt pain in her knee and could not walk. She waited there for an ambulance to come. The Plaintiff was admitted to hospital for treatment.

3. She claimed her fall was occasioned by an exposed, bent metallic rod, which originally had been underneath the concrete covering of the kerbstone between car spaces 51 and 52. The marking and the paint on the concrete kerb were faded; part of the concrete was broken. The lighting in the car park was insufficient and dim.

4. It was not disputed that the 1st Defendant was the owner and 2nd Defendant the manager, of the car park. The Defendants did not agree that any accident occurred, but contended that if such had occurred, it was not between spaces 51 and 52, but between car parking spaces no. 54 and 55, because the Plaintiff's husband's car was parked at space no. 54.

5. The Plaintiff's case was that as occupier and manager, the Defendants owed a duty of care to maintain the car park properly to make it safe for use by lawful visitors. If the car park was in a poor state of repair and dimly lit, there was a risk of injury to lawful visitors. It was reasonably foreseeable that people walking on a broken kerbstone, which exposed a metallic rod, might trip and fall and be likely to sustain injury. The Defendants were said to have failed to maintain the car park and the kerbstone was not properly maintained or repaired. Overall the Defendants were in breach of their common law duty of care and liability under the Occupiers' Liability Ordinance, Cap. 314. The Defendants denied any negligence and denied any accident had occurred at all, or, alternatively, that if any accident had occurred it was not at the place where the Plaintiff claimed it had. Contributory negligence was pleaded.

6. The Plaintiff, in support of her account, relied on remedial work having been carried out by the Defendants after her accident. The broken kerbstone between the car spaces 52 and 53 was roped off for repair in late January 2002 and reinstated on 30 January 2002. After the accident the car park was renovated generally, including repainting and much improved lighting.

7. The Plaintiff's evidence was that, at the time she went towards the boot, she was not carrying anything, except a small rucksack on her back, which held light, personal items of the type someone would carry in a handbag. She wore sports shoes with flat soles. The sole of her shoe caught on something as she approached the boot. She fell forward and as she did so used her arms so that her head did not touch the ground. When she fell she was next to the rear wheel on the near-side, her right leg hit the ground first. At that time her whole body faced the floor; she managed to stop her face hitting the ground by putting her hands in front of her. Her head was facing a wall and her feet were towards the rear of the car.

8. As she tried to stand up she felt severe pain in her left knee and told her husband that she thought she had hurt herself. He tried to pick her up, but she felt great pain and feared that by moving her, he would hurt her more. The Plaintiff had been working as a nurse in a hospital. She thought she might have a fracture of the left knee; that was later confirmed. Her husband went to get help from the shroff's office and the Plaintiff stayed where she was until an ambulance arrived. Her husband, using his mobile phone, telephoned her father, who lived nearby, to come to the car park to keep her company and he did so.

9. The Plaintiff saw the car space number where her husband's car was parked was 52, because it was painted on the wall behind the car. She denied she had mistaken the number. She said the car park was so dim that when the ambulance came, the ambulance men had to use torches while treating her. When, later, she visited the car park again, she saw there had been major renovation and re-painting; the walls, pillars and floor markings had been re-painted, the colours were sharper and the lighting much brighter.

10. In cross-examination, the Plaintiff said she had been unable to see what caught her foot, causing her to fall. At the time, she did not ask her husband to check what might have caused her fall. Since her accident she had seen photographs of the car park taken by her husband on various dates. The first batch which included photos B116 and 117, were taken on 7 January 2002; the accident was on 5 January 2002. She was referred to photograph B116, which showed the exposed, bent metallic rod, the underpinning of a concrete block used as a buffer to stop cars hitting the car park wall. All she knew when she fell was that the bottom of her shoe was caught by something at that position "like hooks", but could not say if it was the metallic rod, or broken concrete. She did not agree with defence counsel's suggestion that the exposed metallic rod was almost flush with the ground, saying it was higher. Defence counsel's point was that her foot could not have been trapped by, or caught under the rod.

11. After viewing photographs, the Plaintiff had concluded it must have been the exposed rod which caused her to trip and fall, because that was the spot at which she fell. She confirmed she had not complained, then or later, about the state of the car park, nor did she know whether anyone else had.

12. PW2, the Plaintiff's husband confirmed that he returned to take photographs on 7, 8 and 9 January 2002 and also in April and July 2003. He said the car park on 5 January 2002 was dim, the walls were dark and greyish. He had noted the difference with the re-painted walls and renovation done this year. When, after the fall, his wife told him she could not move, he wanted to call an ambulance, so he ran to the shroff's office and asked the attendant to call the ambulance. He had a mobile phone, but did not use it to summon the ambulance as the accident took place in the car park and he felt it was easier for the shroff to give the necessary directions.

13. He returned to check his wife's condition. At that time he telephoned his wife's father to keep her company. He said two car park staff came to look, but they came no closer than 5 to 6 feet from the front of the car, which was facing outward. The staff stayed 4 or 5 seconds and left.

14. PW2 said the place of the accident was between car spaces 51 and 52. He took a detailed look at the site after the accident. He noticed the paint of the block, shown in photograph B116, was faded, the concrete was broken, the iron rod underneath was exposed, the stone surface was very rough and what he described as an "iron nail" was sticking out. The nail was not level with the ground; it was raised almost one inch above. Although PW2 referred to what appears as a brownish dot on photograph B116 as a "nail", it appears more like a snapped-off piece of reinforcing steel, protruding above the ground.

15. In cross-examination, PW2 told the court he was familiar with the car park, as he went there 3 or 4 times a week. Although he did not know the car space number that day, he was sure it was car park no. 52. He denied suggestions from defence counsel that he failed to report the accident to the caretaker. He had asked to use the phone, but had been refused by the attendant. He did not make a complaint about the condition of the car park at the time, as he was in a hurry to take his wife to hospital. He had not seen the broken concrete on 5 January 2002.

16. The Plaintiff's father, confirmed that he received a telephone call and was asked by PW2 to come to keep his daughter company. He had noticed the number of the car park space was 52, when his son-in-law, at the ambulance-man's request, moved his car forward.

Defence Evidence

17. Madam Chan Lee Ching (DW1), who was employed by the 2nd Defendant, was the only defence witness. She was a car park attendant who was working on 5 January 2002. Her evidence was that the Plaintiff's position was at the pillar between car spaces 54 and 55. She knew that because she noted the number on paper and transferred it to the log-book kept for that car park. The log-book was produced. She had included the registration number of the car and the car park space in the entry. She did not make a further entry in the master log-book at Wong Tai Sin Centre, which was used for all 3 car parks in the Centre. When she learned, on 24 January 2002, that the Plaintiff was pursuing a claim, she took the small book in which she made the entry to the Adam's Car Park Office, in the Wong Tai Sin Centre.

18. In cross-examination, she said she was alone on duty and was responsible only for the basement car park; a fairly small car park of about 60 spaces. The book in which she made the entry about PW2's car was a temporary book. According to DW1, only matters of importance would be recorded in the main log book at the car park office, the most important being injuries caused by cars. She was not told what the Plaintiff's injury was; she thought it was a spasm in the leg. She seldom made entries in the master log book and had not thought this incident was important enough to do so.

19. The main log book was produced and in cross-examination she agreed that despite her saying only serious matters were entered in it, apparently trivial matters were included also. With hindsight she considered this incident involving the Plaintiff should have been recorded in the master log. She denied suggestions that she did not make any entry on that day, or that she made up the temporary log book only after the Defendants learned the Plaintiff would take legal action.

20. When referred to the photographs of car space 52 (B116, B117) she said she had not seen the broken kerb stone before it was cordoned off. If she had seen it was broken, she would have regarded it as dangerous and that she had a duty to report it. She denied PW2 had told her his wife had tripped and was injured. He only told her that the woman could not move and asked her to call an ambulance. She agreed that the incident should have been recorded in the master log book and that she should have reported it to her supervisor. However, as it did not involve a car accident she had regarded it as unimportant. According to her, PW2 had not asked to use the phone and she had gone over to the car herself, when she noticed PW2 lingering at the car space.

21. The defence relied on the entry in the log book as very strong supporting evidence that the car was parked at car space 54, not car space 52. Further, as neither the Plaintiff, nor her husband, made any complaint to the car park attendant, on the day, about the safety of the car park, or that the owner of the car park should be responsible for the accident, it was submitted, Madam Chan had no reason to make a false entry about the car-space.

22. The temporary log book (B174) contained very few entries. It started on 1 January 2002 and there was one entry before the one on 5 January relating to the PW2's car. No entry was made between 6 January and 26 January. On 27 January 2002 the Plaintiff announced her intention to sue for negligence.

23. The defence relied on Madam Chan as an honest and reliable witness who gave evidence without exaggeration. She was also a witness, however, who, on her own admission, paid almost no attention to what was going on during this incident. It was only after she noticed PW2 waiting at the car space for around 10 minutes that she went over. Despite being told the Plaintiff was injured and could not move her legs, she remained incurious, made no proper enquiry about it and, only as a last resort, called the ambulance.

24. Madam Chan conceded that she should have made a full report, transferred it to the main log-book and reported the incident to her supervisor. She did none of those things, so I am somewhat sceptical as to her reliability as a witness, both as to the entry made and her memory of what happened. This witness also conceded that if she had seen a broken kerb stone, she should have reported it. The photographs taken on the 7, 8 and 9 January 2002 show that the broken kerbstone at car space 52 was not the only broken kerbstone and the rather dilapidated condition of the car park is obvious.

25. Madam Chan confirmed that car park 52 was cordoned off for a period from late January 2002 and it was repaired by 30 January 2002. She agreed that the car park in its present, renovated, condition is much brighter, better marked and better painted than it was when the incident occurred.

The letter from Fire Services

26. A letter dated 19 August 2003 from Fire Services Department was introduced by way of Hearsay Notice. In answer to questions put by the Plaintiff's solicitors, Fire Services replied on 15 September 2003 as follows:

"	(1)	The information in para 2 of my letter ... were the response which were provided by the concerned ambulance members to the enquiries made...,
	(2)	The only departmental record of the incident is the Ambulance Journey Record. The record can be made available upon receipt of the authorization in writing by the patients (to make a data access request on his/her behalf,
	(3)	the supervisor of the ambulance attended the incident had provided some details of the incident to the Department only for internal application but he indicated he was unwilling to be involved in any civil claim regarding the incident."

27. The answers provided which related to questions about the position of the car and the patient were as follow:

(1)	The patient was found lying at the rear between 2 private cars;
(2)	if one looks in the direction of the wall behind the private car, the private car on the left hand side belongs to patient's husband; and
(3)	under safe conditions the patient's husband was requested by the ambulance crew to move his private car forward for the purpose of treating the patient.

28. Even if one accepted the answers as correct, given that they were supplied some 20 months after the incident, it is difficult to see how the answers, reliably, take the Plaintiff's case any further, let alone confirm accurately the position of the vehicle from which the Plaintiff alighted, or the car park space at which she fell. Bearing in mind the strictures of section 49 of the Evidence Ordinance, as to when and for what purposes such evidence can be accepted, I choose not to rely on this particular document.

Conclusion

29. Having said that, I am satisfied on the balance of probabilities, that this accident happened in the manner and at the place described by the Plaintiff and her husband. The accident occurred when the Plaintiff's foot caught, either on a piece of protruding reinforcing steel, or by scraping against a curved piece of steel lying in a slightly raised position above a rough and broken surface, which was formerly part of the kerb stone. As a result she tripped and fell sustaining injury.

30. I am satisfied that the evidence supports the Plaintiff's contention that the lighting at the time of the accident was dim. The fact that the ambulance men needed to use a torch supports this. More importantly, it appears that the Defendants accepted some improvement to the car park was needed, because the lighting was improved when renovations were done.

31. I am satisfied that on the evidence before me, the Plaintiff has established that the 1st and 2nd Defendants are liable in respect of this accident. Although the issue of contributory negligence was raised, no evidence has been adduced to establish in what manner the Plaintiff was, or might have been, contributorily negligent. I do not find the Plaintiff was contributorily negligent. The Defendants have not discharged the burden on them to establish the defence.

32. Judgment on liability is entered for the Plaintiff with damages, to be assessed by a Master.

33. There will be an order nisi that costs of the action to date of judgment on liability, be to the Plaintiff; to be taxed if not agreed.

34. Liberty to apply.