WONG HIN CHUEN v. WANG ON MAJORLUCK LTD AND OTHERS

DCPI58/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 58 OF 2015

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DECISION

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Introduction

1.  By the Judgment (“the Judgment”) dated 5 December 2016, it is adjudged, inter alia, that:-

(a) The plaintiff’s claim against the 1^st and the 2^nd defendants be dismissed.

(b) the 3^rd defendant was solely liable for the Accident.

(c) the plaintiff was contributorily negligent to the extent of 15%.

(d) There be costs order nisi that the 3^rd defendant do pay costs, including reserved costs, to the plaintiff (including the plaintiff’s costs in pursuing against the 1^st and the 2^nd defendants), the 1^st defendant and the 2^nd defendant, with certificate for counsel, to be taxed if not agreed (the nisi costs orders were made absolute on 29 May 2017).

2.  By a summons dated 30 December 2016, the 3^rd defendant sought leave to appeal against the findings on liability, contributory negligence and the costs order.  For convenience purpose, I will adopt the abbreviations in the Judgment.

3.  The grounds of appeal are:-

(a) It is manifestly wrong to find that pork residues were disposed on the passageway in the manner described at paragraph 8 of the plaintiff’s witness statement, namely “我看到該員工在切除那些豬皮、碎骨、碎肉等時會把這些東西散佈在該豬肉檔肉枱附近的地上”;

(b) It is an error in law to find that the plaintiff slipped and fell because the 3^rd defendant’s staff washed the floor of the stall in the morning, because this case is not pleaded by any party;

(c) The learned Judge erred in the exercise of his discretion in finding that the plaintiff was contributorily negligent to the extent of 15% only; and

(d) The learned Judge erred in the exercise of his discretion in finding at paragraph 58 of the Judgment that the 3^rd defendant is liable for costs to the 1^st and the 2^nd defendants.

Ground 1: Wrong finding of fact

4.  Paragraph 8 of the plaintiff’s witness statement stated as follows:

“……. 我看到該員工在切除那些豬皮、碎骨、碎肉等時會把這些東西散佈在該豬肉檔肉枱附近的地上。”

5.  Mr Ho, counsel for the 3^rd defendant for the leave to appeal, submitted that “the Judgment did not explain why paragraph 8 of the plaintiff’s witness statement was accepted when the plaintiff repeatedly confirmed that he did not actually see that the pork substances were discarded by Cheung, the employee of the 3^rd defendant.  Further, the Judgment did not explain why paragraph 8 of the plaintiff’s witness statement is sufficient to find liability against the 3^rd defendant when the plaintiff also said at paragraph 6 of the witness statement that “我不知道我實在是踩到那些碎豬皮、豬骨和豬肉而跌下，又或是地下濕滑而失平衡的。”

6.  The full version of paragraph 6 of the plaintiff’s witness statement is “我不知道我實在是踩到那些碎豬皮、豬骨和豬肉而跌下，又或是地下濕滑而失平衡的。我相信兩者都是直接令我失平衡而跣倒的。”

7.  The plaintiff, in his examination in chief, clarified that he saw Cheung chopping the pork, and only after the Accident, he saw pork residues on the floor (page 38 of the transcript).

8.  The plaintiff stated in cross examination that it was his conjecture that when Cheung cut the pork, there would be pork residues bounced off on the floor.

9.  According to the oral evidence of the plaintiff at the trial, it is true that paragraph 8 of the plaintiff’s witness statement was modified.  It is a pity that such change or modification was not clearly brought to the court’s attention.  Instead, when dealing with the issue of contributory negligence in the closing submissions, Mr Chan, counsel for the 3^rd defendant at the trial, said that the plaintiff saw Cheung discarded the pork residues in the manner as described in paragraph 8 of the plaintiff’s witness statement.

10.  The record on page 283 of the transcript is appended as follows:-

“Court: Sorry. I beg your pardon?

Mr Chan: That is his evidence in testimony.

Court: You mean the plaintiff saw the 3^rd defendant’s witness…

Mr Chan: Yes.

Court: discarding the …

Mr Chan: Yes.

Court: …residue…

Mr Chan: Yes.

Court: on the ground?

Mr Chan: Yes, because … allow me to spend some time to review the evidence.  And it’s in Bundle 1, it’s in the witness statement of the plaintiff starting at page 88.  And please look at page 91, and let us focus on paragraph 8.”

11.  Mr Chan then read out paragraph 8 of the plaintiff’s witness statement and said that the it was the plaintiff’s evidence “in witness statement as well as in testimony” (pages 283-284 of the transcript).

12.  It is admitted that in paragraph 18 of the Judgment, when paragraph 8 of the plaintiff’s witness statement was recited, the court failed to mention the modification aforesaid.  But I am not convinced that the 3^rd defendant was prejudiced by this.

13.  The Judgment only recited paragraph 8 of plaintiff’s witness statement.  The findings, as stated in paragraph 19 of the Judgment, that the plaintiff fell because he stepped on pork residues, such residues were left there by the 3^rd defendant’s staff, would not be affected.  It was never mentioned in the Judgment, nor was it the reasoning of the court, as submitted by Mr Ho that “paragraph 8 of the plaintiff’s witness statement is sufficient to find liability against the 3^rd defendant”.  Mr Ho’s submission is far-fetching.

14.  The honesty of the plaintiff was not substantially challenged at the trial.  The credibility of the plaintiff would not have been affected even if the court’s understanding of the meaning of paragraph 8 of the plaintiff’s witness statement had been incorrect.

15.  The findings had been based upon the conversation between the plaintiff and Cheung after the fall, and the fact that Cheung hurriedly cleaned up the floor after the Accident.

16.  I do not accept Mr Ho’s submission that the conversation was entirely consistent with Cheung not having discarded pork substances onto the passageway.  Right after the Accident, the plaintiff blamed Cheung for the fall.  Instead of denying the responsibility, Cheung said that he did not intend to cause the Accident and started to clean the floor despite the plaintiff’s objection.

17.  Paragraph 20 of the Judgment is relevant as it discredited Cheung’s evidence that he properly handled the pork residues.  The picture clearly showed that some pork residues were sticking to the bottom of the table, instead of being properly put inside the basket.  Paragraph 27 of Mr Ho’s submissions is not accepted.

Ground 2: Unpleaded case of washing the floor

18.  The issue needed not be dealt with for the reasons stated in paragraph 23 of the Judgement.

19.  Virtually, it is not accepted that the case was not pleaded.  The pleaded case of the plaintiff was that he stepped on pork residue which was discarded by the worker of the 3^rd defendant.  The particulars of negligence included discarding, disposing of or dropping the pork residues onto the floor; causing or allowing the pork residues to remain on the floor; failing to clean up, clear or remove the pork residues.

20.  The evidence was derived from Cheung, the witness of the 3^rd defendant.  Cheung was the second witness at the trial.  The 3^rd defendant had ample opportunities to take instructions, apply for adjournment or call another witness if Cheung’s evidence was to be disputed.  No such application was made.  No question was asked by counsel in the re-examination.

Ground 3: Contributory negligence

21.  It is not in dispute that only after the Accident, the plaintiff noticed the pork residues on the floor.  Ground 3 of the leave to appeal has no basis.

22.  Mr Ho did not identify any error in principle.  The percentage of contributory negligence is a matter primarily at the discretion of the trial judge.

Ground 4: Issue of costs

23.  Mr Ho submitted that the allegation of wet floor was only made when the plaintiff amended his statement of claim on 29 July 2016, therefore the plaintiff did not join the 1^st and the 2^nd defendants because of the wet floor.

24.  In paragraph 12 of the Decision on Costs dated 29 May 2017 (“the Costs Decision”), it was reiterated that the wet floor also contributed to the slippery floor and the fall of the plaintiff.  The fact that the plaintiff amended the statement of claim, although at a later stage, should be understood as the plaintiff wished to rely on such allegation at the trial.  The delay is not relevant to the question of whether it was reasonable to join the defendants.  Furthermore, the wet floor was only one of the reasons to join the 1^st and the 2^nd defendants.

25.  In paragraph 10 of Mr Ho’s Supplemental Submissions on Costs dated 26 June 2017 (“the Supplemental Submissions”), Mr Ho tried to use the findings of the court to justify that joining the 1^st and the 2^nd defendants was not reasonable.  This is a wrong approach.  The finding of the court after trial that “there is no duty to keep the floor of the market dry at all time” does not contradict the view that it is reasonable to join the 1^st and the 2^nd defendants.  It is only one of the reasons why they are found not liable.

26.  Mr Ho submitted in paragraph 11 of the Supplemental Submissions that “it is not said at paragraph 12 of the Costs Decision or at all why in considering whether it is reasonable to sue the 1^st and the 2^nd defendants, all that the court needed to consider is whether the floor of the market was wet.”

27.  Such submission is incorrect.  The court did mention in paragraph 12 of the Costs Decision that “in the present case, it was alleged that the floor of the market was wet and not clean.”  Mr Ho should have no reason to forget the plaintiff’s allegation that he slipped because he did step on pork residues.

28.  Mr Ho relied on Leung Cheuk Hin v The Hong Kong Polytechnic University DCPI 682/2010.  Each case turns on its own facts. In Leung Cheuk Hin case, the venue was a changing room, the dispute of fact in the case, as described in paragraph 57 of the judgment, is “whether the towelling area at the time of the accident was only covered with one anti-slip mat as opposed to most area being covered with anti-slip mats the usual condition as admitted by the plaintiff”.  The Judge found that most of the towelling area was covered with anti-slip mats.  The case is distinguished on facts.

29.  Mr Chan, counsel for the 3^rd defendant at the trial, in his closing submission, did comment on the design of the Stall (pages 336-337 of the transcript).  Mr Ho submitted in paragraph 16 of the Supplemental Submissions that the 3^rd defendant’s suggestion that the pork residues might have been left there by other stalls were not directed at the 1^st and the 2^nd defendants.  I do not agree.  If there were pork residues discarded by other parties, given the obligation to clean was on the 2^nd defendant, and the 1^st defendant was the occupier, some responsibilities would unavoidably be imposed on the 1^st and the 2^nd defendants.  It is wrong for Mr Ho to submit that they were not directed at the 1^st and the 2^nd defendants.

30.  As to paragraphs 21-25 of Mr Ho’s Supplemental Submissions, I agree with Mr Lim’s submission that the Faclon’s letter to the plaintiff’s solicitors dated 17 January 2013 was a denial of liability.  It impliedly shifted the blame onto other parties.

31.  As to paragraph 32 of Mr Ho’s Supplemental Submissions, paragraph 20 of the Costs Decision stated that “the indemnity and contribution notices served amongst the defendants in this case are evidence that they blamed each other”.  That would include the 3^rd defendant blaming the other defendants.  As stated in paragraph 11 of the Costs Decision, the court should consider whether the unsuccessful defendant blames the successful defendants.  The Costs Decision did not say that the court should consider whether the successful defendants blame the unsuccessful defendant.

32.  As to Mr Ho’s submission that the 3^rd defendant only issued the Notice of Contribution as a prudent step, I do not agree.  A lot of claims are issued as a prudent step, such step does not mean that it should not have any costs consequence.

33.  As to paragraphs 35-39 of Mr Ho’s Supplemental Submissions, the Calderbank Offer was mentioned on the issue of costs of the contribution proceedings among the defendants.  The 3^rd defendant, in his application for variation of costs order nisi, submitted that the plaintiff should be liable for the contribution proceedings.  The submissions raised by Mr Ho in paragraphs 35-39 are ill-conceived.

Conclusion

34.  Having considered the grounds of appeal raised by the 3^rd defendant, I find the 3^rd defendant fails to establish that the appeal has a reasonable prospect of success or there is some other reason in the interests of justice why the appeal should be heard.

35.  The application for leave to appeal is dismissed.  There be costs order nisi that the 3^rd defendant do pay the costs of this application to the plaintiff, with certificate for counsel, to be taxed if not agreed.  The plaintiff’s own costs to be taxed in accordance with the Legal Aid Regulations.  Such order shall be made absolute after 14 days unless application for variation is taken out within 14 days.