OR BIK YUK v. MAXWAY CORPORATION LTD t/a CHEUNG HING FOODS MART

HCPI 621/2017

[2019] HKCFI 2783

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 621 OF 2017

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J U D G M E N T

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1.  This personal injury action arose from a slip and fall accident which occurred on 18 January 2015 at around 7:15 a.m. The Plaintiff was the victim of the accident which took place at the pavement immediately outside a store named Cheung Hing Foods Mart at G/F, 121 to 125 Dock Street, Phase I, Whampoa Estate (“Store”). The Store was owned and operated by the Defendant.

2.  Both liability and quantum of damages are in dispute.  On the issue of liability, the Plaintiff relies on the causes of action based on negligence and occupier’s liability.  The Defendant does not accept the Plaintiff’s case on the accident and says that it is a fabrication. However, it is not in dispute that the Plaintiff was walking on the pavement in question at the time of the alleged accident. 

3.  The Plaintiff gave evidence at the trial and called her husband, Mr Chan Kam Shing (“Chan”) as a witness.  Two witnesses testified for the Defendant, namely, the Store Supervisor (vegetables), Mr Wong Fat Keung (“Wong”), and the Store Manager, Mr Yeung Man Ning (“Yeung”).

The accident

4.  The facts of the accident are quite simple. According to the Plaintiff’s evidence, she was living across the road from the Store (from which she used to purchase vegetables) with her family.  At the material time, she was on her way to buy some food for breakfast.  The Store had just opened.  A lot of vegetables in a very wet state and other goods were placed outside the Store on the pavement by the Defendant.  Consequently, the pavement was narrowed, and it was wet, slippery and littered with pieces of vegetable and unwanted food.  She walked over to the Store to have a look at the vegetables on offer, and she slipped and fell at a location just outside the Store.  The weather was fine and dry on that day.  The Plaintiff says that she fell as a result of the slippery condition of the pavement.

5.  There are 2 photographs of the Store entrance (shop front) annexed to the witness statement of the Plaintiff.  They were taken in about March 2019.  It appears from the photos that the Store was located in a market.  The pavement in question was, according to the Plaintiff, wide enough to accommodate 5 to 6 pedestrians.  It had a concrete surface.  It can be seen from the photos that much of the vegetables being sold were placed at the shop front.  Judging from the photos, some of those vegetables were partly located on the pavement (a point agreed by Wong).  There was a corridor next to the Store, which was part of the building in which the Store was located.  One of the photos showed that much of the Defendant’s vegetables were left in the corridor. 

6.  It appears from the photos that at least part of the pavement near the Defendant’s goods was damp or wet.  Consistent with the Plaintiff’s evidence, the pavement outside the Store was littered with pieces of vegetable and rubbish.  Although the photos were taken some 4 years after the accident, anyone who had been to a market would find that the scene depicted in them was not uncommon.

7.  According to the Plaintiff, the 2 wet floor warning signs seen in 1 of the photos were not there at the time of the accident. Further, the condition of the pavement in question was worse than that shown in the photos because there were more goods placed on the pavement, and the pavement was wetter.

8.  The Plaintiff called her husband after the accident.  Chan arrived at the scene about 15 to 20 minutes later.  His description of the condition of the pavement is consistent with that of the Plaintiff.  Both of them said that a male staff of the Store told them that he had summoned for an ambulance. 

9.  The fact that the Plaintiff had suffered an accident is supported by the medical record.  She was taken to the Queen Elizabeth Hospital and was attended at the Accident and Emergency Department at 09:05 hour on the day of the accident.  She was found to have suffered a serious facture of the left femur and was admitted to the Hospital.

10.  In both the Patient Admission Notes and the Clinical Management Sheet of the Hospital, it was recorded “S/F today in market, by vegetable”. 

11.  With respect, I am surprised by the dispute whether the Plaintiff had suffered a slip and fall accident outside the Store on the day and time in question.  There is ample evidence in this regard, and there is no reason to doubt the evidence of the Plaintiff or her husband.

12.  Wong said that he was working at the Store at the time of the accident.  I find it difficult to accept his evidence that he was not aware of any ambulance appearing outside the Store.  Yeung was not at the Store at the material time and his evidence adds little to that of Wong. 

Liability

13.  There is an issue of law raised by the Defendant whether the Plaintiff could be a visitor on a public pavement.  Appeared for the Defendant, Mr Yiu had referred this court to Clerk & Linsell on Torts, 12^th edn, rubric 12-20; Cheung Fung Yin v AG, unrep, HCA 2476/1975, 12 July 1977, pg 6; Yang Yee Man v Leung Hing Hung (No 3) [2014] 3 HKLRD 194, §§19, 21-22.  It is unnecessary to resolve this issue, which goes to occupier’s liability, because such liability overlaps with that of negligence.

14.  In my view, there is a convincing case that the Defendant had caused the pavement outside the Store to become hazardous by reason of the overflowing of its goods onto the pavement.  Plainly, the Defendant had no right to do so.  More importantly, there is no reason to doubt the Plaintiff’s evidence that the vegetables were wet and the pavement outside the Store was wet and littered with material which was liable to cause a slip and fall accident.  The photos served to fortify her case.

15.  According to the Defendant’s evidence, delivery of fresh vegetables was made to the Store in the morning between 5am to 7am. The delivery was made via the entrance of the Store.  The vegetables delivered had to be unpacked and put on display for sale.  Cleaning would be carried out after the delivery.  However, such cleaning would only start at 8am.  I have little doubt that the wetness of the pavement was the result of water being sprinkled on the vegetables.  I reject Wong’s evidence that the Defendant never wet the vegetables that it sold.  His evidence contradicted the case put to the Plaintiff in cross-examination that the Defendant used sprayers to wet the vegetables.

16.  The Defendant’s evidence was that warning signs were displayed in the Store to warn its customers of slippery floor.  Wong said that there was concern about the presence of water or oil or rubbish on the floor.  Although such evidence related to the condition of the Store premises, given the overflow of goods onto the pavement, there is good reason to believe that the pavement was liable to be contaminated in similar manner.  Indeed, the deployment of warning signs (after the accident) shown in the photos is consistent with the fact that the Defendant was aware of the hazardous condition of the pavement outside the Store.  Such awareness must have existed at the time of the accident.     

17.  In the premises, I find that the Defendant was in breach of its duty of care to the Plaintiff, and such breach had caused the accident.

Contributory negligence 

18.  The high point of the Defendant’s case on contributory negligence is that the Plaintiff was aware of the condition of the pavement when she walked over to the Store.  However, it was not explored in evidence as to how the Plaintiff had failed to exercise sufficient care whilst she was walking, and thereby caused in part her misfortune in falling. 

19.  According to the Plaintiff’s evidence, which I accept, the pavement outside the Store was frequently in a slippery condition. I do not therefore accept that walking over to the Store to look at what was on offer notwithstanding the condition of the pavement would, per se, constitute contributory negligence.

20.  In the premises, I find that the Defendant is wholly liable for the accident. 

Quantum of damages

21.  The Plaintiff was born on 26 September 1955. She was 59 years old at the time of the accident and is now 64.  At the time of the accident, she was a part-time cleaner working in a clinic earning on average HK$1,500 per month.

22.  The Plaintiff suffered a comminute fracture of the mid-shaft of the left femur with sizable butterfly fragments.  It was treated with closed reduction and fixation by intramedullary nail followed by fitting of orthotic device.

23.  The Plaintiff was discharged from Hospital on 26 January 2015 with advice of non-weight bearing walking for 6 weeks.  She attended 14 sessions of physiotherapy from 11 February to 20 May 2015. She was discharged from the Physiotherapy Department on 20 May 2015 with home exercises.

24.  On 28 May 2015, the Plaintiff was re-admitted to Hospital for 1 day for removal of one locking screw under local anaesthesia.  The Clinical Treatment Sheet recorded: “… delayed union L femur # x removal of locking screw for dynamization”.  She was referred for further physiotherapy from 5 to 12 June 2015 (3 sessions).  Upon discharge, the Plaintiff still required the use of an elbow crutch for support.

25.  The Plaintiff’s sick leave only covered the period from 18 January 2015 to 27 May 2015.  Her evidence was that such certificate was not relevant to her as a part-time worker.  In light of the continued treatment stated above, it was submitted by Mr Szeto, who appeared for the Plaintiff, that her condition would not have allowed her to return to work.

26.  It was at the final follow up on 25 May 2016 that the fracture was shown to be healed and the Plaintiff was discharged from the Department of Orthopaedics and Traumatology.  At that time, she still complained of residual pain over the fracture site.  On this evidence, it was submitted by Mr Szeto that the appropriate sick leave for the Plaintiff should at least continue up to 18 September 2016 (20 months from date of accident), allowing her 4 months to find work after the healing of the fracture.

27.  The Plaintiff’s claim for loss of earnings is further supported by the evidence of her medial expert, Dr Andrew Miu.  According to the Joint Medical Report of Dr Miu and Dr Albert Wong (instructed on behalf of the Defendant), the Plaintiff was examined on 9 October 2018.  During examination, it was found that she had marked left gluteal muscle wasting, multiple scars, tenderness over the lateral hip and the greater trochanteric area, and 1 cm muscle wastage over the left thigh.

28.  Dr Miu opined that the muscle wasting observed more than 3 years after the accident indicated muscle disuse.  It was likely that the Plaintiff was suffering from left hip and thigh weakness which would affect her walking ability and tolerance.  Dr Miu advised that the Plaintiff would require frequent symptomatic treatment on a need basis, including physiotherapy from the private sector.

29.  Dr Wong’s view was that the Plaintiff had recovered well from accident. She is able to resume work as a part-time cleaner notwithstanding the possibility of mild residual left hip pain.  Both doctors assessed that the Plaintiff had 3% impairment of the whole person as a result of the accident.   

Pain, suffering and loss of amenities

30.  Mr Szeto contends that the appropriate general damage for pain, suffering and loss of amenities in this case should be in the region of HK$350,000 to HK$450,000.  Four comparable cases (with inflation adjustment) were cited in support: Ho Man Wa v Wong Shui Fun, DCPI 730/2009, §§11, 12 and 19; Wong Hing Chuen v Wang On Majorluck Ltd, DCPI 58/2015, §§45-49; Cheung Kwok Keung v Yip Man Buildings Materials Co Ltd, DCPI 2738/2009, §§104, 105, 113-119; and Cheung Yuet Har v Force Team Ltd, DCPI 44/2009, §§36-44. 

31.  In the light of the above comparable cases, I award HK$400,000 for such general damage in this case.

Loss of earnings

32.  I believe that the claim for pre-trial loss of earnings of 20 months at HK$1,500 per month is reasonable.  Accordingly, a sum of HK$30,000 is awarded.

33.  As for the post-trial loss, the Plaintiff’s claim is based on a retirement age of 70 and a partial loss of HK$300 per month (based on loss of 20% of HK$1,500).  The partial loss is supported by the medical evidence.  The Plaintiff said that she was in reasonable health but for the accident, which is consistent with her appearance in court.  She found it boring to stay at home and prefer to work and earn some money for the family. Given that evidence and the modesty of the claim, I allow it in full without discount on accelerated receipt (the income of HK$1,500 per month was not adjusted for inflation): HK$300 x 108 months = HK$32,400. 

Special damage

34.  I allow the claim for pre-trial cost of care by family in the sum of HK$25,000 in light of the evidence that the Plaintiff was looked after by her husband during her recovery.  As an example, Chan said that he had to take his wife to the toilet with a wheelchair in the middle of the night.

35.  I do not agree with the claim for loss of ability to render services.  It has not been adequately proved, and is inconsistent with the acceptance that the Plaintiff is able to return to her pre-accident occupation, albeit with reduced capability.  Further, to some extent, this claim overlaps with the preceding one given the evidence that Chan became responsible for the household chores during the time of his wife’s incapacity.

36.  There is a claim for medical expenditure (HK$30,000), tonic food (HK$18,000) and travelling expenses (HK$10,000), totalling HK$58,000.  The only challenge is that the expenses are not fully supported by the documents.  I believe that the lack of adequate documentary proof for such claim is not uncommon.  Unsophisticated people like the Plaintiff are not used to keeping a good record of the supporting documents. These are expected expenses, the quantum appears reasonable and I allow them in full. 

Future medical expenses

37.  Finally, there is a claim for future medical expenses of HK$50,000.  I am not satisfied that the Plaintiff will require any medication other than pain killer from time to time.  According to Dr Miu, she may have the need for physiotherapy.  However, the evidence does not adequately support the need for further surgery to remove any metal implants.  I believe that an award in the sum of HK$25,000 would be sufficient under this head.

Interest

38.  The claim for interest set out in paras 54 and 55 of the Revised Statement of Damages are not in dispute.

Disposition

39.  Judgment should be entered in favour of the Plaintiff against the Defendant in the sum of HK$570,400, with interest in accordance with para 38 above. 

40.  I make an order nisi that the costs of this action be paid by the Defendant.  The Plaintiff’s own costs be taxed in accordance with Legal Aid Regulations.

41.  I am grateful to counsel for their assistance.