POON KWOK WING ERNEST v. AIRPORT AUTHORITY HONG KONG

CACV 385/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 385 OF 2008

(ON APPEAL FROM HCPI NO. 305 OF 2004)

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J U D G M E N T

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Hon Yeung JA (giving the judgment of the Court):

Background 

1.  At the material time, the appellant Mr. Poon Kwok Wing was an employee of the respondent the Airport Authority Hong Kong (“the Authority”). His position was Kerb Supervisor, responsible for directing traffic and enforcing the Bylaw of the Airport Authority Ordinance at the Chek Lap Kok Hong Kong International Airport. At that time his monthly salary was $19,124.

2.  Sometime between 1 and 2 p.m. on 9 April 2001, Mr. Poon was in the airport taking an escalator No. TIV2 down from level L5 to level L3. The escalator suddenly stopped, causing him to lose balance, fall and roll all the way down 20 odd steps to the bottom of the escalator and he, as a result, was injured. As Mr. Poon suffered injuries at work, he was awarded employees’ compensation in the sum of $180,358.70 and loss of wages between 9 April 2001 and 18 December 2002 in the sum of $284,774.58.

3.  Mr. Poon claimed that the accident was caused by the negligence and/or breach of statutory duty and occupier’s duty on the part of the Authority. So he instituted proceedings at the High Court to sue the Authority for damages under the common law. On 18 November 2008, Fung J of the Court of First Instance gave judgment against Mr. Poon, dismissed his claim and ordered him to pay costs.

4.  At the same time, the trial judge held that had Mr. Poon’s claim been successful, he would have awarded him $335,021 as the damages payable to him, including:

(1)	Pain, suffering and loss of amenities	$55,000
(2)	Pre-trial loss of earnings	$228,488
(3)	Loss of earning capacity and	$44,880
(4)	Special damages	$6,653
	Total:	$335,021

5.  As far as the damages payable to Mr. Poon is concerned, the evidence showed that after the accident, Mr. Poon was granted sick leave from 9 April 2001 to 18 December 2002. For this period, Mr. Poon was awarded sickness allowance pursuant to the Employment Ordinance in the total sum of $284,774.58.

6.  The trial judge refused to award damages to Mr. Poon for the loss of earnings for the whole of the sick leave period, which was about 20 months. The reason was that he thought that Mr. Poon should have received laminectomy decompression operation. The trial judge was of the view that if Mr. Poon had received this operation, his sick leave period would have been 9 to 12 months and that he could have returned to his pre-accident work after the operation. Therefore, the trial judge found that the loss suffered by Mr. Poon during the sick leave period should only be 12 months’ salary which should have been his earnings.

7.  After the accident, Mr. Poon returned to his post and stayed there until August 2003. He claimed that he could not remain in a standing position for a long time, so that he was unable to carry out his duties, including anti-taxi-touting and the duty to keep watch. For this reason, in August 2003 he decided to take early retirement. Mr. Poon said that after retirement he could only take up light jobs, with a monthly salary of only about $6,800.

8.  The trial judge found that Mr. Poon, by unreasonably refusing to undergo the operation, failed to diligently mitigate his loss. He therefore declined to award him any damages for loss of earnings after the sick leave period.

9.  The trial judge found that because of the pre-existing degeneration of Mr. Poon’s back and his corpulence, in any event Mr. Poon would have to switch to a lighter job 5½ years to 8½ years after the accident. Therefore, even if damages for loss of earnings were to be awarded in respect of any post-sick leave period, in calculating his future loss of earnings, the multiplier should only be 3. The trial judge did not specify whether 3 was 3 years or 3 months, but in his calculation of the damages, he used 3 months as the basis.

10.  As the trial judge found that Mr. Poon suffered no future loss of earnings, he did not award him any damages for loss of Mandatory Provident Fund either. It was agreed between the parties that if such damages should be payable to Mr. Poon, his loss of Mandatory Provident Fund should be $1,000 per month.

11.  Mr. Poon did not accept the judgment given by the trial judge and he appealed to this Court.

Grounds of appeal

12. Mr. Poon complained that at trial the judge was unfair to him, in that the judge did not give him the opportunity to present a closing submission, but he accepted in full the written closing submission submitted by counsel for the opposite party.  Mr. Poon pointed out that in the course of the trial, the judge did say that at the time of the accident he was holding onto the handrail, but in his judgment he came to a different conclusion.  Mr. Poon emphasized that according to the findings of fact made by the trial judge, the sudden unexplained stoppage of the escalator was not caused by someone having pressed the emergency stop button, but was a result of mechanical failure or oversensitivity of the sensor.  Mr. Poon submitted that the conclusion reached by the trial judge showed that the cause of the accident was negligence in carrying out the repair or the maintenance of the escalator.  Mr. Poon concluded that under these circumstances the Authority was negligent and/or in breach of the common duty of care imposed upon an occupier, and therefore should be liable for his injuries.

13. Mr. Poon also complained that the amount of damages awarded by the trial judge was too conservative and that he had not properly considered the relevant evidence given by the doctors or the content of the Certificate of Assessment made under the Employees’ Compensation Ordinance.  Mr. Poon maintained that his loss of earning capacity permanently caused by his injuries should be 14%.

14. Mr. Poon stressed that after the accident, Dr. Yeung Sai Hung, the doctor in charge of Mr. Poon’s case, advised him that he could undergo the operation or he could choose a more conservative method of treatment.  That being the case, the decision he made that the more conservative method of treatment should be preferred could not be regarded as unreasonable.  Mr. Poon said that only on 7 July 2004, which was a number of years after the accident, did the specialist of the Hospital Authority advise him that he should undergo the surgical treatment.

15. Mr. Poon protested that under the above-stated circumstances, the Court should not have reduced the loss he suffered during the sick leave period from 20 months’ salary to only 12 months’ salary, and should not have decided that there should be no more loss of earnings after the sick leave period was over.

16. Mr. Poon asserted that he should be awarded damages for loss of earnings during the whole of the sick leave period, as well as damages for loss of earnings subsequent to the sick leave period, and that the calculation should be based on the difference between the monthly salary he earned before the accident, i.e. $19,124 and the monthly salary he could reasonably earn after the accident, i.e. $6,800.

17. In view of the fact that he was about 47 years old at the time of the accident and that after the sick leave period was over, he was still under 50 years old, Mr. Poon considered that the multiplier for calculating his future loss of earnings should be no less than 8 years.  He submitted that his future loss of earnings should be ($19,124 - $6,800) x 12 x 8 = $1,183,104.

Legal basis of the trial judge’s findings

18. From the cases of Kam Wai Ming v MTR Corporation Ltd & another DCPI408/2002; Empire Co Ltd v Sheppard (2001) 103 ACWS (3d) 436; Naicken v Edmonton City [1997] ARLexis1507; 197 AR 331, the trial judge extracted the following legal principles:

(1) In view of the danger of mechanical malfunctioning of escalators, the owner and those responsible for repair and maintenance should operate and maintain the escalators with a reasonable standard of care;

(2) Escalators are designed to stop quickly in certain circumstances and it is a risk that users must assume;

(3) Users are under a duty to use escalators with care, caution and alert attention;

(4) The plaintiff must establish that the escalator had not been operated or maintained with reasonable care, which caused it to stop in an abnormal manner, e.g. there were jerks; it moved on-and-off; the stopping distance was too short etc;

(5) In the absence of direct evidence, the Court can draw an inference of negligence from common sense or circumstantial evidence.

19. The trial judge also set out the statutory duties laid down in the Lifts and Escalators (Safety) Ordinance, Cap. 327 of the Laws of Hong Kong, which the owner of every lift and escalator must fulfil, including to cause [the lift or escalator] to be inspected, cleaned, oiled and adjusted at least once every month; to cause [the lift] to be thoroughly examined by a registered lift engineer at least once every month and to cause [the escalator] to be thoroughly examined by a registered escalator engineer at least once every 6 months in order to determine whether the escalator and all machinery and equipment connected therewith is in safe working order.

20. The trial judge held that the Lifts and Escalators (Safety) Ordinance imposed statutory duties on owners of escalators and that these duties were not wholly delegable. Therefore, the Authority could not simply rely on the fact that matters concerning the escalators had been entrusted to a qualified contractor and that the reports did not show that the escalators had any problem as their defence to refute the allegation that they had been negligent.

Findings of fact made by the trial judge

21. The trial judge accepted Mr. Poon’s evidence and found that at the time of the accident the escalator stopped by itself without anyone pressing the emergency button.  The trial judge found that 6 escalators in the airport for unknown reasons stopped 30 times within one year, 6 of which occurred in respect of T1V2, which was the escalator involved in the accident, and that the occurrences were rather frequent.  The trial judge was of the view that the contractor responsible for the maintenance should have ascertained the cause(s) of the stoppages and devised solutions thereto, instead of just sending someone to reactivate the escalator each time after an escalator stopped for unknown reason. The reason was that to handle the problem in the way they did was to take only stopgap measures that could not solve the problem.  The trial judge even commented that the engineer Ma Siu Lun, who was a staff member of CN1M, the contractor responsible for the maintenance of the escalators in the airport, was incompetent, since he did not even know how many unexplained escalator stoppages had happened.

22. However, the trial judge found that the fact that the escalator suddenly stopped in the absence of unusual circumstances could not give rise to the inference that the Authority was negligent. Nor could an inference of negligence be made against the Authority on the basis of the number of stoppages.  The trial judge further found that even if the examinations had been conducted negligently in that they failed to ascertain the reason(s) for the stoppages, such negligence was not the cause of Mr. Poon’s injuries.  The trial judge placed emphasis on the fact that Mr. Poon was not firmly holding the handrail at the time of the accident and found that he had failed to prove that the Authority was negligent, or was in breach of any duty of an employer and/or the common duty of care imposed on an occupier. The trial judge therefore dismissed Mr. Poon’s claim.

Discussion

23. In our judgment, the logical basis of the trial judge’s decision is open to question.

24. No doubt escalators are designed to stop quickly in certain circumstances and it is a risk that users must assume. But if an escalator suddenly came to an abrupt stop, that should have been due to a known cause.

25. If it is clear what caused an escalator to stop suddenly, then whether the Authority was negligent or was in breach of any statutory duty or occupier’s duty is to be determined by referring to the cause of the sudden stoppage.

26. In Kam Wai Ming v MTR Corporation Ltd & another (unreported, DCPI 408/2002), the Court held that neither the person who had the possession of the escalator in question, the occupier, nor the maintenance contractor of the escalator should be liable for the accident caused by the sudden stoppage of the escalator. The reason was that there was clear evidence accepted by the Court which showed that the escalator suddenly stopped because there was jumping action done by some very heavy object, thereby the sensor was engaged, resulting in the stopping of the escalator. Although the Court could not rule out the possibility that the sensor might be over-sensitive, the probability that that was the cause of the sudden stoppage of the escalator was not high. For this reason, there was no evidence that the sudden stoppage of the escalator was caused by any negligent conduct.

27. In Kam Wai Ming, the Court also found that the maintenance contractor had employed a substantial team of technicians to carry out service and maintenance work concerning the escalator in question, including yearly inspections, half-yearly inspections and weekly inspections. All inspections showed that the escalator was functioning properly in all respects, and nothing abnormal was found in any switch or controlling device. Furthermore, there was evidence that once the braking system was engaged, the escalator would slide on for only 1.31 feet before it came to a halt, which distance was a good deal shorter than the acceptable distance of 4.5 feet. There was also evidence that the speed at which the escalator was moving was just like a person walking, so provided that a user of the escalator had hold of the handrail, he would not fall. It was only an inattentive user who did not have a grip of the handrail would expose himself to the risk of a fall in case the escalator stopped under the above-stated circumstances.

28. Mr. Chung, counsel for the Authority, referred us to the Canadian case Naicken v Edmonton City [1997] A R Lexis 1507, 197 AR 331, in which guidelines were laid down concerning how to deal with an accident caused by the sudden stopping of an escalator. We set out below the relevant passages of that case:

“… no evidence as to why or how the occurrence took place.  If there is, then appeal to ‘res ipsa loquitur’ is inappropriate, for the question of the defendant’s negligence must be determined on that evidence…

The difficulty however arises with the remaining element dealing with the absence of evidence or the absence of an explanation.

If an inference, in the absence of evidence, is properly drawn that the incident was caused by negligence, it is obvious that the plaintiff will succeed unless there is some evidence to displace the inference.  The evidence required of the defendant in such a situation must be consistent with the facts and must be viewed as a probable cause, not a theoretical possibility. In essence the test is that for circumstantial evidence, in that the court must be satisfied that the inference to be drawn is consistent with the act having taken place as the result of negligent conduct and it is inconsistent with any other rational conclusion.

The doctrine applies where the incident speaks of negligence and that negligence attaches to the defendant. No inference of negligence on the part of an operator of an escalator can be drawn from the fact alone that one is a passenger on such a device when an injury is suffered. To suggest otherwise would be tantamount to making the operator an insurer which is too high a standard of care. The plaintiff must show that an inference can be drawn from common experience or the facts disclosed, that reasonable care was not taken based on the incident which gave rise to the injury, not from the injury itself.”

29. In the present case, the trial judge found that escalator T1V2, the escalator involved in the accident, had for unknown reasons stopped many times within one year. The frequency of the stoppages was far higher than normal. The theory advanced by the Authority that the escalator stopped because someone pressed the emergency bottom was totally rejected by the trial judge.

30. The trial judge found that the only witness Mr. Ma called by the Authority in respect of matters concerning the repair and maintenance of the escalators was not a credible and/ or reliable witness.

31. Under these circumstances, there was no evidence at all which could be accepted by the Court to prove that the Authority or its escalator maintenance contractor had carried out reasonable inspections and maintenance for the elevators in the airport.

32. From the findings of fact made by the trial judge, it can be seen that escalator T1V2, the escalator involved in the accident, had for unknown reasons stopped many times, but neither the Authority nor its maintenance contractor found out what caused the stoppages. On each occasion, they just sent someone to reactivate the escalator. If the Authority and/or its escalator maintenance contractor had tried their best to find out what it was which caused the escalator to stop suddenly for no reason, they should have been able to ascertain the cause(s) and take remedial measures, so that the accident might have been avoided. If, after examination, they still could not ascertain what caused the unexplained stoppages, then caution might require that the escalator involved in the accident be shut down and not be used until the cause(s) of the stoppages was/were ascertained and proper remedial measures were taken.

33. We consider that from the facts of this case, particularly the fact that neither the Authority nor its escalator maintenance contractor could produce evidence accepted by the Court that repair and maintenance had been done at regular intervals to the escalator involved in this accident, the only reasonable inference that can be drawn is that the Authority and/or its elevator maintenance contractor was guilty of negligence. The Authority has to be liable for its negligent conduct.

34. As a result of the negligent conduct on the part of the Authority and/or its escalator maintenance contractor, the escalator involved in this accident suddenly stopped for no reason. The trial judge found that Mr. Poon was a part-time auxiliary police constable and should have a keen sense of what was going on around him. But the escalator stopped for no reason, causing Mr. Poon to lose balance, fall and roll all the way down 20 odd steps to the bottom of the escalator. This showed that the escalator stopped abruptly and the result was that Mr. Poon was injured. Under these circumstances, we do not understand why the trial judge held that “Even if the examinations had been conducted negligently in that they failed to ascertain the reason(s) for the stoppages, this would not necessarily have been the cause of the plaintiff (Mr Poon)’s injuries”.

35. Admittedly, if a person is negligent when he is riding an escalator in the sense that he is inattentive and did not hold onto the handrail, he may be guilty of contributory negligence and should be partially responsible for the damage done to him. But such conduct will not exonerate the person who has the possession of the escalator or the occupier from the liability which flows from their negligent conduct.

36. The trial judge found that at the time of the accident Mr. Poon was not “firmly holding” the handrail of the escalator. However, not “firmly holding” the handrail is not equal to not having hold or not having a grip of the handrail at all. If Mr. Poon did hold onto the handrail, then he might not have acted in any way that would render him guilty of contributory negligence and partially responsible for the damage done to him. In any event, in this appeal the Authority did not make any allegation that Mr. Poon had acted in any way which was contributorily negligent. We do not need to go any further into this area.

37. We hold that the Authority should be responsible for the accident and should be 100% liable for the damage suffered by Mr. Poon.

Damage suffered by Mr. Poon

38. After the accident, Mr. Poon was granted sick leave from 9 April 2001 to 18 December 2002, a total of 20 months and 8 days. The total loss of earnings in respect this sick leave period is $19,124×20＋$19,124÷30×8＝$387,580.

39. The trial judge found that Mr. Poon could not return to his normal work earlier because he refused to undergo the operation and only agreed to receive conservative treatment.

40. The evidence showed that Dr. Yeung Sai Hung, who was the doctor in charge of Mr. Poon’s case at Princess Margaret Hospital, had explained to Mr. Poon the pros and cons of surgical treatment and conservative treatment and Mr. Poon preferred conservative treatment. It was only a number of years after the accident that Dr. Chiang Si Chung of the Authority examined Mr. Poon.

41. Dr. Chiang opined that the operation suggested by Dr. Yeung should be carried out, that the probability of success was high and that the chance of complications was slight. Notwithstanding that, we do not agree that Mr. Poon’s decision to receive conservative treatment after he was injured in 2001 was unreasonable.

42. What Mr. Poon did was only to choose one of the two viable methods of treatment suggested to him by a doctor. We consider that Mr. Poon’s choice should not affect his loss of earnings during his sick leave period.

43. After the sick leave period was over, Mr. Poon resumed the work which he did before until August 2003 when he resigned. Mr. Poon said that he could not remain in a standing position for a long time. He was assigned to do anti-taxi-touting work instead, but he still could not cope with the work because of his physical condition.

44. The trial judge thought that Mr. Poon was exaggerating his injuries. We have also taken into consideration Mr. Poon’s age, his normal age of retirement and the fact that before the accident he was already troubled by degeneration of his back and corpulence. Even if the accident had not happened, it is likely that Mr. Poon could not cope with his work at the Authority for a long period of time. We are of the view that it is reasonable to calculate Mr. Poon’s loss of future earnings after his resignation on the basis of a multiplier of 3 years. Such loss should be ($19,124－$6,800)×3×12＝$443,664.

45. In addition, Mr. Poon should be compensated for his future loss of Mandatory Provident Fund on the basis of the above-stated multiplier. Damages under this head should be $1,000×3×12＝$36,000.

46. Mr. Poon has already been awarded compensation for his future loss of earnings. Therefore he cannot additionally have compensation for loss of earning capacity.

47. Apart from the above heads of damages, we find that the $55,000 award for pain, suffering and loss of amenities and the $6,653 award for special damages made by the trial judge are well-founded and reasonable. No change should be made.

48. We find that the total damages payable to Mr. Poon should be:

(1)	Pain, suffering and loss of amenities	$55,000
(2)	Loss of earnings during sick leave period	$387,580
(3)	Loss of earnings after resignation	$443,664
(4)	Loss of Mandatory Provident Fund	$36,000
(5)	Special damages	$6,653————
	Total:	$928,897

49. During the sick leave period, Mr. Poon was granted sickness allowance $284,774.58. Later, Mr. Poon obtained an additional sum of $180,358.70 as employees’ compensation. The total of these two sums is $465,133.28. Mr. Poon agreed that this amount should be deducted from the total damages awarded to him. Thus, the damages payable to Mr. Poon is $928,897－$465,133.28＝$463,763.72.

Conclusion

50. We allow Mr. Poon’s appeal. The Authority shall pay to Mr. Poon the remainder of the damages, i.e. $463,763.72, plus interest at the rate of 5% per annum, calculated from the date of the Writ of Summons, i.e. 7 April 2004 to the date of the handing down of this judgment, and thereafter at judgment rate until the whole amount of the damages is paid.

51. We also order that the Authority shall pay Mr. Poon’s costs of the trial and this appeal. If the parties cannot agree on the amount of the costs, that shall be taxed by a Master on the District Court scale.

52. The above costs order is an order nisi, which shall become absolute 14 days after the handing down of this judgment.