CHAN WAI HING, the administratrix of the Estate of LEE GUN, deceased v. MTR CORPORATION LTD

DCPI 1649/2015

[2018] HKDC 586

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 1649 OF 2015

-------------------------------------

-------------------------------------

------------------

DECISION

------------------

1.  This is the plaintiff’s application by Summons dated 9 March 2018 for leave to appeal to the Court of Appeal from my Judgment dated 9 February 2018. Unless otherwise stated, for the purpose of this Decision, I will adopt the abbreviations as defined in the Judgment.

2.  Leave to appeal shall not be granted under section 63A of the District Court Ordinance, Cap 336, unless this Court is satisfied that the appeal has a reasonable prospect of success or there is some other reason in the interests of justice that the appeal should be heard.  The plaintiff bears the burden of satisfying this court that her appeal has a reasonable prospect of success, which means an appeal with prospects that are more than fanciful but which do not need to be shown to be probable.  The Court of Appeal will not interfere with findings of facts unless the appellant can show that this court has misunderstood the evidence, or failed to appreciate its effects, or overlooked some other documentary evidence, or other indisputable evidence which should have compelled this court to a different conclusion.

3.  In the draft notice of appeal, the plaintiff sought to raise four grounds of appeal.

Ground 1

4.  In paragraphs 44 to 45 of the Judgment, I held or noted, inter alia, that (i) the plaintiff bore the legal and evidential burden in establishing her contention that the defendant has failed to place anti-slip carpet on the floor in the vicinity of the Entrance; (ii) other than Lee’s assertion in Lee’s Statement that the carpet as shown in the photograph taken in about June 2013 was not there at the time of the Accident, the plaintiff has adduced no other evidence in this regard; and (iii) I did not accept Lee’s aforesaid piece of evidence as being reliable or sufficient in proving that there was no anti-slip carpet placed at the Area at the time of the Accident.

5.  Mr Pun, counsel for the plaintiff, contended that I ought to have found, as a matter of inference, that there was no anti-slip carpet placed at the Area at the time of the Accident. 

6.  The location of the Accident was covered by CCTV.  In the letter dated 21 January 2015 from the loss adjuster appointed by the defendant’s insurer to the Legal Aid Department, it was stated, inter alia, that the defendant was “prepared to release a copy of the CCTV surveillance footage of the incident” subject to payment of charges.  However, no such CCTV footage has in fact been produced.  By letter dated 9 May 2016, the plaintiff’s solicitors requested for specific discovery of a copy of the relevant CCTV footage.  By letters dated 11 May and 19 July 2016, the defendant’s solicitors replied, inter alia, that the relevant CCTV footage was “not kept as Lee Gun told the security staff that he fell because his legs felt weak and no water / slippery substance was found on the floor upon inspection by the staff”.  By letter dated 20 December 2016, in reply to the plaintiff’s draft interrogatories,[1] the defendant’s solicitors stated that “the CCTV recording was automatically recycled 7 days after the date of the accident”.  Mr Pun contended that in the circumstances, I ought to have drawn an adverse inference against the defendant due to its failure to preserve and disclose the relevant CCTV footage without good reason, the inference being that it was probably recorded in the CCTV footage that there was no anti-slip carpet placed at the Area at the time of the Accident. 

7.  With respect, I do not agree. 

8.  In Wisniewski v Central Manchester Health Authority [1998] P.I.Q.R. P324, Brooke LJ set out, inter alia, the following principles which in my view are similarly applicable to the present context:-

“(1) In certain circumstances a court may be entitled to draw adverse inferences from the absence or silence of a witness who might be expected to have material evidence to give on an issue in an action.

…

(4) If the reason for the witness’s absence or silence satisfies the court, then no such adverse inference may be drawn.  If, on the other hand, there is some credible explanation given, even if it is not wholly satisfactory, the potentially detrimental effect of his/her absence or silence may be reduced or nullified.”

9.  In Earles v Barclays Bank Plc [2010] Bus L R 566, it was held that where the destruction of documents has occurred prior to the commencement of the litigation, there would have to be some “clear evidence of deliberate spoliation in anticipation of litigation” before one could legitimately draw evidential adverse inference in those circumstances.

10.  In the present case, as noted above, the defendant’s solicitors have given explanations as to why the CCTV footage had not been kept by the defendant but was automatically recycled 7 days after the date of the Accident.  Mr Pun submitted that such explanations were not satisfactory and could not stand given that I have rejected the defendant’s evidence to the effect that there was no water mark or stain on the floor and have instead found that there was rainwater on the floor surface of the Area (see paragraph 19 of the Judgment).  However, in my view, the explanations should be considered in light of the information made available to the defendant at the relevant time (bearing in mind that the CCTV recordings were automatically recycled in 7 days).  While I have found that Lee has not said that he fell down because of dizziness or weakness in his legs and insofar as Lau believed that this was the case (and hence reported to the others as such) he was mistaken (see paragraph 28 of the Judgment), the fact is that the information that was made available to the defendant at the relevant time was that contained in Lam’s 1^st Report (made on the date of the Accident) in which Lam reported that Lee told him that he felt dizzy and unwell and fell down, and in the Occurrence Book in which the relevant entry recorded that Lee indicated that he felt dizzy and unwell which caused him falling down.  Besides, while it was a rainy day, the fact is that on 26 March 2013, other than the Accident, no other accident of a similar nature had happened. In light of such information, one can readily understand why no steps had been taken to prevent the relevant CCTV footage from being automatically recycled within 7 days of the date of the Accident.

11.  Mr Pun referred to the correspondence from a District Councillor and the Legal Aid Department and submitted that the defendant must have known that there was a serious dispute as to the cause of Lee’s fall where for the defendant would be expected to have preserved the CCTV footage.  This argument presupposes that the relevant CCTV footage was still in existence when those correspondence were written. However, the first such correspondence came from the District Councillor which was dated 22 May 2013, ie after the aforesaid 7-day period.  In other words, the relevant CCTV footage would have already been automatically recycled by the time of receipt of the said letter.

12.  Mr Pun relied on the loss adjuster’s letter of 21 January 2015 and contended that the CCTV footage of the Accident was said to be available at that time, and that no explanation was given by the defendant for such a statement if in fact the CCTV footage has already been recycled within 7 days of the Accident as the defendant’s solicitors subsequently alleged.  He further contended that the defendant has failed to comply with Order 24 rule 5 as the said CCTV footage was not listed in the defendant’s list of documents.  However, the subsequent letters were written by the defendant’s solicitors having the conduct of these proceedings in response to the plaintiff’s request by letters for specific discovery and interrogatories, and the plaintiff has not pursued such requests further with any application thereafter.  Instead, after receiving the defendant’s solicitors’ letter of 20 December 2016 which stated, in answer to the plaintiff’s draft interrogatories, that “the CCTV recording was automatically recycled 7 days after the date of the accident”, the plaintiff’s solicitors proceeded to file the application to set the case down for trial on 29 December 2016. 

13.  In these circumstances, I do not see any good reason to reject the defendant’s solicitors’ answers and explanations, which for reasons set out above I accept to be credible and satisfactory.  The relevant CCTV footage ceased to exist long before the commencement of this action and there is no evidence, let alone clear evidence, of any deliberate spoliation in anticipation of litigation.

14.  In the premises, I do not consider that any adverse inference can or should be drawn against the defendant as Mr Pun contended. 

15.  Mr Pun also contended that based on my finding in paragraph 29 of the Judgment, I ought to have found as a matter of inference that there was no anti-slip carpet placed at the Area at the time of the Accident.

16.  In paragraph 29 of my Judgment, I found that there was rainwater on the floor surface at the Area, and Lee fell backward and down to the ground at the Area because he slipped when he was trying to pull open the glass door at the Entrance.  Mr Pun submitted that, in light of such findings, it would be “very surprising” if an anti-slip carpet has been placed at the Area at the time of the Accident, and that the possibility of there being such a carpet was “extremely low”. 

17.  Mr Pun’s contention is, in my view, tantamount to saying that no one could probably slip on an anti-slip carpet, such that if a person slipped on a surface with rainwater on it, it must follow that no anti-slip carpet has been placed at the area.  With respect, I do not agree.  In my view, this is the kind of assumption with conjecture which should be guarded against as I said in paragraph 45 of the Judgment.  Besides, as Mr Sakhrani submitted, there were gaps in the plaintiff’s evidence (see paragraph 49 of the Judgment).  Furthermore, people can slip for various reasons.  There is no evidential basis to suggest that no one could probably slip on an anti-slip carpet.  I do not consider that there is any valid basis to draw the inference as Mr Pun contended. 

18.  In paragraphs 44 to 45 of the Judgment, I have explained why I did not accept that Lee’s evidence regarding the carpet was reliable or sufficient in proving that there was no anti-slip carpet at the Area at the time of the Accident.  For reasons set out above, I do not consider that Ground 1 has any reasonable prospect of success.

Ground 2

19.  Mr Pun submitted that as it was not the defendant’s pleaded case that at the time of the Accident a carpet was placed at the Entrance as one of the precautionary measures, the defendant was not entitled to adduce evidence in this regard.  He submitted that the evidence given by Wong (DW3) under cross-examination (that there was water-absorbing carpet placed outside the Entrance on a long-term basis) should have been ruled inadmissible or alternatively attached no weight or otherwise the defendant would have been allowed to adduce the evidence through the back door, and that the question of admissibility of such piece of evidence should at least be left to the Court of Appeal to consider to set out clearer principles in this regard.

20.  I have dealt with this contention in paragraphs 42 to 43 of the Judgment.  I agree that the defendant should not be entitled to adduce evidence to prove affirmatively that a carpet (water-absorbing or otherwise) was placed at the Entrance at the time of the Accident.  However, Wong’s said evidence was not adduced by the defendant in examination in chief, but rather came out in the course of cross-examination. The said evidence was relevant to the issue whether any carpet was placed at the Entrance at the time of the Accident, and Mr Pun did not suggest otherwise.  Whether the defendant was entitled to rely on such piece of evidence in running a positive defence that a water-absorbing carpet was there is another matter, and I have held that it was not so entitled (see paragraph 43 of the Judgment).  As such, I do not see any legal basis to rule such evidence which came out in the course of cross-examination to be inadmissible.

21.  In the Judgment, I said that I attached little weight to Wong’s said evidence.  Mr Pun now contended that I ought to have attached no weight to it.  The weight to be attached to any piece of evidence is a matter for the trial judge, and Mr Pun has not demonstrated why I have erred in law in attaching little as opposed to no weight to Wong’s said evidence.  In any event, as Mr Sakhrani pointed out, I have made clear in paragraph 45 of the Judgment that I did not accept Lee’s evidence regarding the carpet as reliable or sufficient in proving that there was no anti-slip carpet placed at the Area at the time of the Accident and I came to that view without taking into account Wong’s said evidence at all, and I have not made any finding of fact that there was in fact a carpet there.  As such, whether I should have attached little or no weight to Wong’s said evidence is in any event immaterial to the determination of the case.

22.  In the premises, I do not consider that Ground 2 has any reasonable prospect of success. 

Ground 3

23.  Under this ground, it was said that I erred in law and in fact by holding that it would be imposing too high a standard of care in the circumstances of this case to expect the defendant to ensure that a cleaner would be stationed near the Entrance to mop dry the Area or to close off or place barrier around the Area for a period of time.

24.  Mr Pun submitted that, given that the defendant is a large business in Hong Kong, it should be expected to do something more, and stringent precautions at the Entrance, including to place mats or carpets large enough to absorb the moisture, to station a member of staff near the Entrance to mop up the Area, to keep the glass door open so that the customers needed not pull open it in order to enter the shopping centre, to close off or place barrier around the Area for a period of time, and/or to put electric fans near the Area to blow dry the floor, were not unreasonable. 

25.  The contentions about keeping the glass door open and putting electric fans near the Area to blow dry the floor were not raised at the trial and were raised for the first time in this application.  Besides, Mr Sakhrani submitted that neither of these contentions was pleaded as particulars of negligence in the plaintiff’s case and these contentions, if properly pleaded, would have an impact upon the evidence to be adduced.  Mr Pun submitted that it was not necessary for the plaintiff to plead every particular and it was for the defendant to plead what precautionary measures it has taken.  With respect, I disagree.  Particulars must always be given showing in what respects the defendant was negligent: Hong Kong Civil Procedures 2018, vol 1, 18/12/27.  The burden lies upon the plaintiff to plead the case with proper and adequate particulars.  Mr Pun sought to rely on paragraph 4(a) of the Statement of Claim (“failing to take any or any reasonable care to see that the plaintiff would be reasonably safe in using the Area as a lawful visitor”) and paragraph 4(i) of the Statement of Claim (“failing to provide a safe means of access from Telford Plaza”) in this regard, but I agree with Mr Sakhrani that neither of these two particulars was adequate to allow the plaintiff to run the two said contentions.  In light of the existing state of pleadings and the fact that neither of these two contentions has been raised at the trial, it is in my view not open to the plaintiff to run these two contentions at this stage.

26.  As to the remaining contentions, I refer to paragraphs 30 to 52 of the Judgment, and more particularly paragraphs 46 to 50 thereof.  As I said in paragraphs 32 and 48 of the Judgment, the question for the present case is what was reasonable to expect of the defendant in the particular circumstances of this case and whether anything else would have made a difference, and each case has to turn on its own facts, depending on all the circumstances of the case.  Mr Pun did not suggest that I have applied the wrong test or approach.  The plaintiff’s challenge is thus against the application of the test or approach to the facts of this case.  For reasons set out in the Judgment, having regard to all the circumstances of this case, I found that the defendant has not breached its duty of care to Lee whether as the plaintiff alleged or at all, and I do not consider that Ground 3 has any reasonable prospect of success.

Ground 4

27.  Under this last ground, it was said that I erred in holding that the defendant has not breached its duty of care to Lee and in dismissing the plaintiff’s claim.  This appears to be just a concluding remark from the previous three grounds of appeal, and Mr Pun confirmed that no additional point was relied upon in support of Ground 4. 

28.  In light of the aforesaid, I do not consider that Ground 4 has any reasonable prospect of success.

Conclusion

29.  In the premises, I do not consider that the plaintiff’s appeal has any reasonable prospect of success.  Nor do I consider that there is any reason in the interests of justice that the appeal should be heard.  The application is dismissed.

30.  I make an order nisi that the plaintiff shall pay the defendant’s costs to be taxed if not agreed, with certificate for Counsel, while the plaintiff’s own costs shall be taxed in accordance with the Legal Aid Regulations.