TAM WING YAN v. SMART ELEGANT ENTERPRISES LTD t/a 小肥牛火鍋活魚專門店

DCPI 1104/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO. 1104 OF 2010

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J U D G M E N T

1.  28 December 2009 was the Monday after the Christmas holiday. In the course of dinner at the Defendant hotpot restaurant (“the Restaurant”) that evening, the Plaintiff (“Tam”) was burnt by a jar of hot tea that toppled next to her. Both her thighs suffered scald injuries. Tam filed this lawsuit against the Restaurant for damages. Both liability and quantum are in dispute.

The accident

2.  It was about 8:30 pm on the day in question, when the Restaurant was busy with a lot of customers.  Tam, together with her parents and boyfriend, were sitting around their table not far from the entrance of the Restaurant.  Foodstuff for hotpot and a plastic jar filled with hot tea had been brought to their table.  The table top was full and therefore Tam placed the jar of hot tea on the 2.5 feet tall plastic stand with decks provided by the Restaurant.  A couple of customers following a staff of the Restaurant passed by; and one of them hit against the stand on their way, causing the jar to topple.  The jar of about 1 litre of hot tea spilled over Tam.  This is the evidence of Tam.

3.  By pleading, the Restaurant denies knowledge that the accident happened in the above manner.  Wong, a manager of the Restaurant called by his employer to give evidence, said he heard someone shout and therefore realised the accident happened; but never reckoned that the accident happened the way Tam described.

4.  According to Tam, her family did complain about how the accident happened.  Her father even identified the person who caused the jar to topple in the first place; and an argument between him and Wong followed.

5.  There is indeed evidence of recent complaint about how the accident happened.  The letters from the police to the parties separately afterwards confirmed that the report received by the police as to how the accident happened was in line with what Tam described in her evidence.  As to that, Wong said in court that it was another manager surnamed Lai that summoned and talked to the police after the accident. The letters also revealed that it was this Mr Lai who made the report.

6.  In respect of how the accident happened, there is no evidence from the Restaurant to contradict the version of Tam.  Coupled with the evidence of recent complaint that the police received from the Restaurant’s own staff, I accept Tam’s evidence in this respect and find the accident happened the way she described.

Liability

7.  Tam’s claim is based on breach of occupier’s common duty of care on the part of the Restaurant towards Tam as a lawful visitor there at the material time; and negligence.  As far as the existence of the duty is concerned, there is no real dispute between the parties.  The dispute lies in the extent of the Restaurant’s duty and whether there was breach on the part of the Restaurant.

8.  Tam contends that the Restaurant:

(1)  failed to allow sufficient and clear passageway for customers to walk inside the Restaurant;

(2)  caused or allowed tables to be placed closely to each other without paying sufficient regard, if at all, to whether or not it would create hazard to customers;

(3)  caused or allowed jar of hot water to be placed on the plastic stand in a congested environment;

(4)  caused or allowed the plastic stand with the jar of hot water on it to be placed near to the customer;

(5)  failed to provide suitable and proper side table for customers to put jar of hot water on it.

9.  Occupier’s liability arises out of an accident due to the condition of the premises; or things done or omitted to be done that affect the condition of the premises.  In the circumstances of the present case, the matter complained of was apparently an activity tort.  Nevertheless, that does not affect the consideration of the issue of liability as the identical allegations are made in respect of the cause of action in negligence.

10.  The Restaurant’s pleaded case is that there was at least 3 metres between the entrance and Tam’s table.  Further Tam was sitting next to the aquarium which was allegedly the widest area in the Restaurant.  In support, the Restaurant disclosed a layout plan of the Restaurant.  It soon transpired that the plan is not to the scale so that it has little value in showing the exact relative position of the fixtures and tables or their sizes.  It is the photographs that give us a better idea of the interior of the Restaurant.

11.  As far as the photographs disclosed by the Restaurant show, it cannot be said that there is unreasonable room for traffic normally expected within a restaurant.    The photographs show all the tables, chairs and utensils were put together in an orderly fashion.  According to Wong, the tables were about 4 feet apart from each other and therefore there should be enough room for the traffic around them and that beside Tam’s table.

12.  But one has to be careful as the impression created by these photographs disclosed by the Restaurant could be deceptive.  I say this not so much because these photographs were taken after the accident and for the purpose of litigation; but because the Restaurant somehow chose to take these photographs before the dinner business hours.  Wong confirmed that in court.  Wong also confirmed that the handful of people depicted in the photographs was in fact staff of the Restaurant.  In terms of relevant evidential value, these photographs are simply self-serving.

13.  Further, according to his clarification in court, when stating the 4-feet distance between tables, Wong was yet to take into account the chairs being occupied by the customers.  With the customers sitting in the chairs, the table-to-table distance has got to be much less than what Wong described.

14.  We are able to see what the situation could be like during the business hours of the Restaurant.  Tam disclosed photographs which, according to her in court, were taken at the Restaurant by her friend one night a few months after the accident.  It can be seen that when adjacent tables were fully sat with customers, the backs of the chairs of the different tables could be very close to each other.  In court, Tam described that she and the customer of the adjacent table were sitting almost back to back at the time of the accident.

15.  It is the Restaurant’s case that they had the system of disallowing customers from waiting for tables at the area just beside the entrance.  This is contrary to what Tam observed during more than 10 previous visits to the Restaurant for meals.  According to her, customers did wait around the entrance next to the bar.  In court, Wong confirmed that the counter top of the bar there actually doubles as the reception counter where the reservation book was also placed.

16.  Whether they would sit or stand waiting, I find that it is more probable than not that some customers, even if they had made reservations, would gather around that area waiting for their tables to be ready and to be led to their tables.  This was likely particularly when the Restaurant was busy like what happened in the present case.  Wong’s evidence that the Restaurant would insist on asking customers to register and disallowing them from waiting inside the Restaurant must be considered in the light of that situation and with caution.

17.  There is also much dispute as to the witnesses’ observation about the distance between Tam’s table and the nearby fixtures including the aquarium and the steel cupboard; and therefore the room for the traffic beside Tam’s table at the material time.

18.  According to Wong, the tables at the Restaurant consisted of 3 different sizes.  He identified Tam’s table as a small table that was supposed to sit 4 customers.  However, he did say that chairs could be added to a table at the customers’ request.  According to Tam, this did happen to her table at the material time.  Besides the 4 of them, another chair was added for them to place their jackets and belongings. Then there was also the plastic stand.

19.  Tam added that things such as plastic buckets, foam boxes and plastic rackets for containing glasses and bowls were placed on the floor in front of the aquarium and the steel cupboard. The suggestion is that the room for the traffic beside her table was not as spacious as the Restaurant alleges.  Tam’s evidence in this respect was much questioned.  Seeing her testify and considering her evidence, I consider Tam to be truthful in this respect and prefer her evidence to that of Wong.

20.  It is not a question of the accuracy of the witness’s measurement of the various spaces in question. The court has to take a realistic view of the case, taking into account the occupation of the tables and the things placed on the nearby floor.  The realistic view I take of the environment at the material time is that the space was not obstruction free and that one did have to manoeuvre to pass by or walk through.

21.  In the photographs disclosed by Tam, apart from the kind of plastic stand in question, the circular steel/glass stands on castor referred to by the Restaurant are also shown.  According to Wong, both kinds of stands would be provided for each table of customers. Drinks including the jar of tea were supposed to be put on the steel/glass stand, if the table was full of dishes of food.  He said there were enough steel/glass stands for every table.

22.  Speaking from her previous experience of dining at the Restaurant, Tam pointed out that the steel/glass stands on castor were provided if bottled beer was ordered.  More importantly, she was adamant that at the time of the accident, her table was provided with the plastic stand only.  Her table also did not order any beer then.  From the photographs disclosed by Tam, it can be seen that each table of customers consuming beer was invariably provided with a plastic ice bucket containing the bottled beer which was put on the steel/glass stand.

23.  If there is any point in the Restaurant’s emphasis on the provision of the steel/glass stands on castor for customers to put their drinks, the suggestion must be that they are believed to be relatively more suitable than the plastic stands for the purpose.  It may well be the case.  From the photographs, it can be seen that the ice bucket and tea jar on the steel/glass stand was surrounded by a rim that apparently prevents them from toppling or slipping out of the stand accidentally.

24.  However Wong is not in a position to contradict Tam’s evidence that only a plastic stand was provided to her table at the material time.  Nor is his evidence in line with what the objective evidence reveals.  The photographs disclosed by Tam show that more than one table of customers had their jars of hot tea put on the plastic stand, not any steel/glass stand.

25.  The reality was that whether the steel stand was provided, the customers could still put the jar of tea on the plastic stand.  Only that in Tam’s case, there was not even choice of stands for such purpose.  I find that it was reasonably expected or at least foreseeable that customers would put the jar of tea on the plastic stand.

26.  There is no evidence that the Restaurant has done anything to ensure that the customers would use the steel/glass stand and not the plastic stand for placing the jar of tea.  But the Restaurant sought to excuse itself by pointing out that no accident like the present one had happened before.

27.  First, I find that the risk of such accident is fairly obvious.  Anyone hitting the stand, as what happened in the present case, or even the customers themselves could accidentally cause the jar next to them to topple.  Second, the fact that this was the first accident of this kind is but one factor to be taken into account in determining whether precaution should and could have been taken.

28.  By leaving a whole jar of hot tea with the customer while reasonably foreseeing that they would put the jar on the plastic stand and thus exposing it to the risk of toppling over, the Restaurant cannot escape blame for doing nothing about it.  The risk became aggravated by the busy environment and limited room for the traffic around the tables during business hours.  In the present case, the risk materialised and accident happened.

29.  Considering all the circumstances, including what is discussed above, I find the Restaurant liable.

Contributory negligence

30.  Apart from the fact that it was Tam who put the jar on the plastic stand, there is no suggestion or evidence of any other conduct on the part of Tam which was out of the ordinary.  The fact was that Tam just did what the customers were expected or reasonably foreseen to do.  The basis for contributory negligence is lacking. Mr Chan acknowledged that and conceded this defence in his submissions.

Quantum

31.  Tam was sent by ambulance to the hospital.  The scald injuries on both thighs were categorised as second degree burn involving 7% of skin surface.  The photographs taken of her thighs at the hospital show the extensive scald injuries.  Tam could walk unaided with steady gait.  No definite neuro-vascular deficit was elicited. After wound dressing, she was discharged with analgesic and antibiotics.  She attended follow up in the following 2 months.

32.  Tam was referred to the occupational therapy department in late January 2010.  By then the wounds had healed.  The skin on both thighs were red in colour, soft and flat; but hypersensitive to touch.  In view of the high potential in developing hypertrophic scar, tailor-made pressure garment was fitted in a week’s time. The pressure was monitored by monthly follow-up.  Sick leave was granted until 16 February 2010.

33.  On 11 November 2010, Tam was examined by Dr Ian H Nicolson, specialist in plastic surgery.  The doctor produced his expert report on the same day.  Dr Nicolson recorded Tam’s complaint about embarrassment due to the ugly scars on her legs.  She could no longer wear shorts, short dress or swimsuit.  The scars were itchy particularly when wearing the pressure tights at work.  There was a feeling of tightness and discomfort in the scars when she was at work and especially when she attempted to squat.  Tam repeated these complaints in her evidence.

34.  Dr Nicolson found readily noticeable well healed scars over both thighs.  Pigmented burn scar was evident over much of the middle and lower medial aspect of the thigh.  In respect of the left thigh, the same observation was made in respect of much of the anterior and medial aspect of the thigh and parts of the lateral aspect. Specifically, the scars were irregular in shape and pigmentation and much of the scar was light brown in colour.  They were otherwise soft and pliable with a normal skin texture.  No tenderness was evident.  No contractures or tightness was evident in the scar area.  There was no restriction of limb movement.  The photographs taken during this examination by the expert were before the court and they depict the apparent condition of the areas of the thighs so affected.

35.  According to Dr Nicolson, Tam has permanent cosmetic disability as a result of the scald injury.  The scars are well healed and the skin is soft and pliable and of normal texture.  The scars are noticeably hyper-pigmented but that will most likely become less obvious over this year or so.  It will always remain noticeable, though to be lesser degree after anticipated improvement.  The scars may continue to be a source of embarrassment to Tam and restrict her choice of clothing.  The itch and discomfort should diminish in time.  At present, this is exacerbated by the wearing of the pressing garment which Dr Nicolson recommended to be no longer necessary.  The disability is purely cosmetic without any loss of function or earning capacity.  The expert endorsed the sick leave granted.  Besides possible laser therapy in the future, the expert opined that no further treatment is necessary.

Pain, suffering and loss of amenities (PSLA)

36.  At the time of the accident, Tam was 27 years old and a registered nurse with about 5 years of experience.  In court, she described the pain at the wound sites particularly during the early stage and wound dressing.  She was given desk job during the first week of resumption of work after the sick leave.

37.  Tam admitted that even now, she is still wearing the pressure garment when she is on duty.  She explained that her daily duties included moving patients from and into the bed.  This causes her concern about the possible contact with her wound sites. She feels more secure with the pressure garment on.  The discomfort caused by the scar and the pressure garment also compromises her ability to squat during work.

38.  Whilst Mr Chan validly pointed out that it was Tam’s own choice to continue wearing the pressure garment contrary to the expert’s advice, I am prepared to understand her concern and circumstances as a whole, when considering the actual degree of PSLA.

39.  Miss Lau referred to these cases as comparables: (1) Leung Pui Yiu (an infant) v Wong Kin Kuen & Ors, HCPI 453/2000 (18 May 2001); (2) Susi Yanti & Anor v Chu Shiu Chuen, HCPI 176/2000 (2 November 2001); (3) Leung Yuk Kwan v Maple Professional Beauty Centre Limited, HCPI 274/2002 (4 December 2002); (4) Wong Po Kin v Hopewell Construction Company Limited & Ors, HCPI 406/2001 (15 January 2003); and (5) Man Kwok Ngai (an infant) v Fong Hok Wang formerly known as Yue King Restaurant and Anor, HCPI 1033/2001 (26 March 2003). Miss Lau submitted that the amount of HK$450,000 as claimed is fair.

40.  Mr Chan disagreed, citing these cases as comparables: (1) Leung Ka Yee v L & Y Beauty Centre Limited, DCPI 196/2003 (22 October 2003); (2) Mujiati v Chong Wai Kwan, DCPI 424/2003 (21 October 2004); and (3) Limbu Prya v Hei Yuet Palace Restaurant, DCPI 2273/2008 (11 June 2010); and (4) Leung Yuk Kwan (above).  He submitted that an appropriate award should be in the region of HK$75,000 and should in no event exceed HK$120,000.

41.  I have to consider Tam’s own circumstances including her gender, age, stage of life, the severity of the burns, the treatment received, the pain during treatment and recovery, the extent of recovery and the residual impact of the injury and scars on her daily life and amenities.  Often seen, as recorded in some of the cases cited by counsel, is the psychological and even psychiatric impact of the cosmetic impairment on the plaintiff.  But fortunately there is no suggestion or evidence of that in Tam’s case.  I am impressed that Tam is positive and manages to cope with life and work well, despite the injury.  I also give full weight to the expert’s positive opinion about the likely further improvement in Tam’s scar.

42.  Considering all the circumstances, I do not agree with Miss Lau that the present case is more serious than the cases that she cited.  Some of them are in my view relatively more serious.  Having said that, I do not find the award suggested by Mr Chan to be fair either, in view of the cases cited.  In my view, an award of HK$200,000 should be fair.

Loss of earning capacity

43.  After sick leave, Tam resumed work as a registered nurse.  As mentioned above, after the first week designated with desk work from 9 am to 5 pm, Tam has already resumed her pre-accident work on shift.  In court, she described the discomfort and inconvenience experienced during work as a result of the scar and the pressure garment.  She expressed her concern about loss of learning opportunities and exposure; hence slower than normal advance in career development.  She claims HK$100,000 for the alleged loss of competitiveness.

44.  Dr Nicolson opined that Tam suffers no loss of earning capacity as a result of her cosmetic impairment.  This however does not prevent me from considering whether her current condition has in fact compromised her ability to meet her actual pre-accident job demands.  The issue is whether Tam’s complaint could, as a matter of fact, be translated into loss of earning capacity warranting compensation.

45.  Conventionally, by loss of earning capacity, one refers to the chance of loss of employment or chance of longer period of under-employment.  In some cases, this may be definite loss of promotion prospect.  It is the plaintiff’s burden to prove a real risk of such handicap in the labour market as a result of his or her disability.

46.  I am not satisfied that Tam succeeds in discharging her burden of proof in this respect by concrete evidence.  For instance, there is no evidence of appraisal of her work performance by Hospital Authority or her superior for comparison.  Without even evidence of her income scale for any assessment purpose, the amount claimed is a figure pluck in the air.  I make no award under this head.

Special damages

47.  At various stages during the evidence, Mr Chan conceded in respect of the miscellaneous special damages.  They include miscellaneous expenses incurred in the sum of HK$14,100 and cost of future laser treatment in the sum of HK$40,000.

Summary

48.  In summary:

49.  Until today, interest on general damages (HK$200,000) shall run from the date of writ at 2% per annum; interest on special damages (HK$14,100) shall run from the date of accident at half judgment rate.

Order

50.  The Restaurant shall pay to Tam damages in the sum of HK$254,100 together with interest as aforesaid.  Interest from today shall run at the judgment rate until full payment. The Restaurant shall also pay Tam’s costs of this action, including any costs reserved.  Costs shall be taxed, if not agreed, with certificate for counsel (for the avoidance of doubt).  In the absence of application within 14 days to vary, the costs order shall become absolute.