CHAN WAI LUN ROBIN v. KAI SHING MANAGEMENT SERVICES LTD AND OTHERS

HCPI 153/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 153 OF 2003

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J U D G M E N T

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The claim

1. In this action the plaintiff claims damages for personal injuries sustained by him on 25 February 2000. At the time of the accident the plaintiff was 35 years old. At all material times he ran his own transportation business whereby he removed and delivered goods from place to place. On 25 February 2000 he was carrying out an order for the removal of display shelves and glass panels from a shop ("the K2 shop") at Level 3 of the New Town Commercial Plaza Complex at Shatin in the New Territories ("the Plaza"). In the course of moving some glass panels from the shop and whilst he was in the corridor outside the shop at the Plaza it is his case that he slipped and fell. He sustained injuries to his right wrist caused by broken glass. There was a 100% cut of the ulnar artery, nerve and other injuries as set out in the medical reports.

Liability

2. It is not disputed that the plaintiff sustained injuries in the corridor outside the K2 shop. However, there is a serious dispute between the parties as to how the plaintiff came to be injured. There is a marked difference in the version of the events described by the plaintiff and the defendants' witnesses. This is a serious and substantial dispute of fact between the parties.

The plaintiff's case

3. The plaintiff's case is that he was moving some glass panels wrapped in newspaper which he carried in his bare hands. He went outside the K2 shop at Level 3 of the Plaza turning right towards the cargo lift carrying the glass panels in his hands. The floor of the corridor outside the shop was wet and slippery and he fell down to the ground just outside the shop. The glass broke and the plaintiff sustained injuries to his right wrist caused by the broken glass.

4. It is the plaintiff's case that the floor of the corridor outside the shop was wet and slippery as it had been mopped by cleaners employed by the 3rd defendant just before the plaintiff stepped outside from the shop with the glass panels in his hands.

5. The agreed medical evidence shows that the plaintiff had a 100% cut of the ulnar artery, nerve, flexor digitorum superficialis to the little finger and flexor carpi ulnaris as well as the dorsal sensory branch of the ulnar nerve.

6. It is common ground that at all material times the 1st defendant was the manager of the Plaza, the 2nd defendant was the owner of the Plaza and the 3rd defendant was the sub-contractor of the 1st defendant providing cleaning services to the Plaza. The plaintiff alleges that the injuries were caused by the negligence and breach of statutory duty under the Occupiers Liability Ordinance Cap. 314 as pleaded and particularized in the statement of claim.

The defendants' case

7. The defendants' case is quite different. The defendants' case is that the injuries sustained by the plaintiff were caused because the plaintiff was transporting the glass panels in a supermarket trolley. Whilst the plaintiff was outside the K2 shop in the corridor the trolley toppled over causing the glass to break and causing injuries to the plaintiff. It is denied that the floor of the corridor was wet and slippery or that the floor had been mopped by a female cleaner shortly before the plaintiff stepped into the corridor outside the K2 shop. It is denied that there was any negligence or breach of statutory duty as alleged.

The issues

8. The issues on the question of liability have helpfully been summarized by Mr. Tam, counsel for the plaintiff, in the list of issues handed up to the court in the course of the trial. The issues are :

“ 1. Whether at the time of the accident, a female cleaner had just mopped the floor of the corridor.

2. Whether the female cleaner was a staff of the Defendants.

3. Whether at the time of the accident the floor of the corridor right outside the [K2 shop] was wet and slippery.

4. Whether the Plaintiff carried the glass panels with his bare hands or by means of a "Wellcome" Supermarket shopping trolley.

5. Whether the Plaintiff slipped and fell down as a result of wet and slippery floor or an overturning of the trolley or a combination of both.

6. Whether the Defendants are liable. If yes, whether the Plaintiff was guilty of contributory negligence."

9. It seems to me that the crucial issue between the parties is whether the plaintiff carried the glass panels along the corridor with his bare hands or whether he had used a supermarket trolley to transport the glass panels. This is a serious dispute of fact between the parties and the plaintiff's version of events and the defendants' version of events are markedly different.

The witnesses

10. I heard evidence from the plaintiff. I also heard evidence from Mr. Poon Tak Chung ("Mr. Poon"), an employee of the K2 shop at the material time and from Mr. Chan Fai Keung ("Mr. Chan"), an employee of the 1st defendant at the material time.

The plaintiff's evidence

11. The plaintiff gave evidence that on 25 February 2000 he went to the Plaza to carry out a transportation order. He was there to remove articles from the K2 shop at the Plaza on Level 3. He was adamant that the K2 shop was at 318 E-F as shown in the plan in the agreed bundle. It is, however, clear on the evidence of the defendants' witnesses that the K2 shop was at 318 G-H being the corner shop and not at 318 E-F as shown in the plan. It seems to me that nothing turns on the exact address of the shop. I believe that the plaintiff was mistaken as to the exact address of the shop. On this matter, I prefer the evidence of Mr. Poon and Mr. Chan to that of the plaintiff.

12. The plaintiff gave evidence that he had hired a lorry to carry out this particular job on that day. He explained that he owned at that time a light goods vehicle and operated the business on his own. However, if he received an order involving a large quantity of goods and if his goods vehicle was not large enough to carry the same, then he would hire a lorry for that particular job. On that occasion he had hired a lorry which was waiting for him at the loading area near the cargo lift at the Plaza. The loading area was at Level 1.

13. He gave evidence that at about 10:30 a.m. on 25 February 2000 he arrived at the K2 shop whilst the driver of the lorry was waiting for him at the loading area. He carried the display shelves first with his bare hands and made two trips to the lorry using the cargo lift. He marked the route that he took on the plan after he left the shop using the cargo lift to descend downstairs to Level 1 at the loading area.

14. It was the plaintiff's evidence that when he was moving the shelves from the K2 shop he saw a female cleaner mopping the floor of the corridor a few spaces away from the shop. After he had finished moving the shelves he carried the glass panels. He wrapped the glass panels in newspaper and tied the same with rope and carried them with his bare hands. He had made three trips carrying three to four glass panels each time. He said that he saw the female cleaner mopping the floor of the corridor on his second and third trips. She had a mop and a bucket and a yellow sign which read "Beware of Slippery Floor". When he returned to the shop after the third trip he did not see the cleaner there.

15. The plaintiff said that when he embarked on his fourth trip with the glass panels in his hands he walked out of the shop. He lost his balance on his right foot and fell to the ground together with the glass panels. The glass panels broke and when he got up he found that his right hand was bleeding profusely. He looked into the shop and shouted to the shop assistant, which must have been Mr. Poon, to dial 999. A female person also came to assist him with first-aid treatment to try to stop the bleeding whilst he was waiting for the ambulance. He felt dizzy and was taken to hospital by ambulance when it arrived.

16. The plaintiff's evidence was that the floor was very wet and slippery and he fell because of this although he was wearing rubber soled shoes at the time. He denied that he had used a "Wellcome" supermarket trolley to transport the glass panels. He also denied that the photograph A at page 210 of the agreed bundle, which shows an overturned trolley with broken glass, was a photograph of what occurred at the time that he fell outside the K2 shop. He also said that when he stepped out on the corridor outside the shop on his way to the cargo lift he did not see any cleaner or warning sign to warn him of the slippery floor. His evidence was that the female cleaner had been advancing her position from when he first saw her to a position nearer to the shop. He said that the glass panels were 3' X 1' in size and about 1 c.m. thick.

17. The plaintiff's complaint against the defendants is that when he was proceeding on his fourth trip with the glass panels the floor became wet and slippery which caused him to lose his balance and fall and the glass to break thereby causing his injuries. He said in evidence that when he was proceeding on his third trip the floor was not slippery and was dry.

18. The plaintiff also gave evidence that when he was in hospital he had mentioned to police officers who interviewed him that he had fallen because the floor had not dried out after mopping up by workers and that when he was carrying the glass panels he slipped on the floor and was cut by the glass. He also said in evidence that he had made a statement to the police about this. However, it is clear that he never mentioned this until he made his supplementary witness statement dated 15 October 2003. The alleged statement made to the police officers has not been disclosed.

Mr. Poon's evidence

19. Mr. Poon gave evidence that at the material time he was the assistant supervisor of the K2 shop at 318 G-H at Level 3 of the Plaza. He was adamant that the address was not 318 E-F as suggested by the plaintiff. As I have said, I am satisfied that the plaintiff was mistaken about this. However, nothing turns on this.

20. Although Mr. Poon said that the plaintiff came to remove goods from the shop at about 9:00 a.m., I think he was mistaken as to the time. In my view, it was more likely to have been at about 10:30 a.m. as the plaintiff said. Mr. Poon was, however, able to remember clearly that the plaintiff pushed a supermarket trolley and put the glass which he removed from the K2 shop onto the trolley. He could not remember exactly how many pieces were put into the trolley although at one stage of his evidence he said that it should have been three pieces of glass. He said that the glass panels were put upright and inserted into the trolley. The size of the glass panel was about 3' X 11/2' and the thickness about 1", although he did say later on in his evidence that the glass panel was less than half an inch thick. It was, in my view, more likely to have been about half an inch as Mr. Chan had said.

21. Mr. Poon said that he turned back and worked in the shop after the plaintiff had put the glass panels on the trolley and left. Then a very short time afterwards he heard a loud noise or a bang. He turned back and saw that the glass had broken into pieces and the trolley had been overturned. He saw the plaintiff pressing his hand with the other hand and then walked into the shop. It was his impression that the plaintiff was standing outside the shop when he turned around and saw him and that the plaintiff was not on the ground. He asked the plaintiff if he was alright and was told to dial 999 which he did. He also confirmed that a passer-by claiming to be a nurse came to help the plaintiff stop the bleeding.

22. It was Mr. Poon's evidence that the plaintiff had placed the glass panels upright inside the trolley with the width of the glass at the bottom of the trolley. It was his evidence that the glass was tied by brown adhesive tape. He could not remember how many panels were tied together. He also gave evidence that it was his impression that the floor was probably not wet. He had no impression of anyone mopping the corridor outside the shop shortly before the plaintiff loaded the glass panels into the trolley.

23. He was cross-examined about his statement to loss adjusters, Pierre Leong & Co. Ltd. made on 12 March 2003. This was three years after the accident. Mr. Poon had ceased working at the K2 shop in April 2000. Mr. Poon was cross-examined about having told the adjusters that the accident occurred at Rooms 602-604 in Shatin. I am, however, satisfied that when Mr. Poon signed his statement he did not pay attention to the address stated there. There is no suggestion by anyone that the accident happened at or outside Rooms 602 to 604 and nothing turns on this.

24. Mr. Poon was unable to remember whether the glass was wrapped in newspaper. He was unable to remember how many trips the plaintiff made to remove the glass panels and he was not sure if the plaintiff was injured on his arm, elbow or hands. It seems to me that in view of the passage of time it is not surprising that Mr. Poon is unable to remember exactly where the plaintiff sustained his injuries or the details of how many trips the plaintiff had made to remove the glass panels. Mr. Poon was, however, adamant that the plaintiff had used the supermarket trolley to transport the glass panels. He saw the plaintiff put the glass panels into the supermarket trolley. He was also able to confirm that the photograph A at page 210 of the agreed bundle was a photograph showing the overturned trolley and the broken glass immediately after the accident. The said photograph A reflected what he saw.

Mr. Chan's evidence

25. Mr. Chan was an assistant customer services supervisor responsible for the Plaza. He was in charge of supervising security as well as management work for the Plaza. He was employed by the 1st defendant at the material time.

26. At about 11:50 a.m. on the morning of 25 February 2000 he received a report about an accident and he went to the scene. He arrived outside shop 318 G on Level 3 with two colleagues. Outside the shop he saw an overturned "Wellcome" supermarket trolley and glass fragments on the ground and he saw an injured person in the shop. This was in the K2 shop. There is no dispute that the injured person was the plaintiff although Mr. Chan was unable to recognize him. He also found Mr. Poon in the shop and Mr. Poon told them what had happened.

27. Mr. Chan also said that a colleague had taken photographs and the photograph A at page 210 depicted the scene of the accident showing the overturned trolley and the broken glass. The said photograph A showed what he saw on that day. Mr. Chan's evidence was that when he arrived at the corridor outside the shop the floor surface of the area was dry. He was able to confirm that the said photograph was taken by his colleague in his presence on 25 February 2000. He was unable to explain why the date "24.2.00" appears on the photograph. Although the date "24.2.00" appears on the photograph, I am satisfied that the date setting was wrongly set in the camera. Mr. Chan was adamant that the said photograph depicted the scene of the accident showing the overturned trolley and broken glass which he saw. He made a report to his supervisor on the same day which report he prepared at 3 p.m. in his handwriting. By that time the photograph was available to him and it was attached to his report.

28. It was Mr. Chan's evidence that the incident which he went to investigate on 25 February 2000 was the only accident that he had come across where there was an overturned trolley with broken glass. He also gave evidence that there were roughly 5 or 6 cleaners which used to clean Level 3 usually between 8 and 9 a.m. in the morning. The usual opening hours of the Plaza were from 9:00 a.m. to 10 p.m. and the cleaners used to mop the floor before the opening hours. He also said that there were cleaners on call to deal with situations where they might be required.

29. Mr. Chan also gave evidence that the loading area at Level 1 of the Plaza was for the parking of lorries and for workers to deliver goods in and out. He also said that the staff at the Plaza would also use the cargo lift. The Wellcome Supermarket was in fact at Level 2. He said that he had seen "Wellcome" supermarket trolleys scattered at the loading area at Level 1. He had seen "Wellcome" supermarket trolleys there and it was possible for anyone to pick up one of the trolleys and transfer it to Level 3 by means of the cargo lift.

30. Having heard and seen the witnesses, I have no hesitation in accepting Mr. Chan and Mr. Poon as witnesses of truth and in rejecting the evidence of the plaintiff where their evidence is at variance. Mr. Poon and Mr. Chan gave their evidence honestly and tried their best to tell me the truth. I find that they are honest, truthful and reliable witnesses. The said photograph A at page 210 of the agreed bundle clearly shows the overturned trolley and the broken glass and I am satisfied that this shows the scene of the accident where the plaintiff sustained his injuries.

31. The plaintiff was not a truthful witness. I have no hesitation in rejecting his evidence. Where his evidence is at variance with the evidence of Mr. Poon and Mr. Chan, I have no hesitation in preferring the evidence of Mr. Poon and Mr. Chan to that of the plaintiff.

32. On the crucial dispute of fact between the parties as to whether the plaintiff transported the glass panels with his bare hands as he claimed or whether he had used the supermarket trolley to transport the glass panels from the K2 shop at Level 3 to the loading area at Level 1, I have no hesitation in finding that the plaintiff did use the supermarket trolley for the purpose of transporting the glass panels. On this issue, I believe Mr. Poon and disbelieve the plaintiff.

33. As regards issue 4, I find that the plaintiff did not carry the glass panels with his bare hands. Instead he used the "Wellcome" supermarket trolley to transport the glass panels. I find that the plaintiff placed the glass panels, having wrapped them in newspaper, upright in the trolley with the width of the glass panels at the bottom. In the course of pushing the trolley it toppled over causing the glass to break. It seems to me, and I so find, that the plaintiff was trying to prevent the trolley from toppling over and got injured when the trolley toppled over and the glass panels broke. The plaintiff fell and was injured by the broken glass.

34. I reject the evidence of the plaintiff that he saw a female cleaner mopping the floor when he was moving the shelves and that he saw the same female cleaner moving closer to the area outside the shop. I find that the floor was not wet and slippery at the time that the plaintiff fell as there had been no mopping up of the corridor just before that. I disbelieve the plaintiff and reject his evidence. Issues 1 and 3 are resolved against the plaintiff. Issue 2 does not arise.

35. As to issue 5, I find that the plaintiff did not fall because the floor was wet and slippery. He fell because he was trying to prevent the trolley from toppling over. The trolley toppled over forcing the glass panels to break and the plaintiff sustained his injuries because of this. I also do not believe the plaintiff when he said that he had told police officers that he had fallen because the floor had not dried out after it had been mopped by cleaners. No such statement was produced or disclosed and it was only first mentioned by him in his supplementary statement. I do not believe the plaintiff.

36. The plaintiff was also evasive when giving evidence about his earnings in support of his claim for damages. This was also a matter which adversely affected his credibility as a witness. It was his evidence that the computer printouts which were subsequently disclosed and contained in the bundle from pages 151 to 201 were based on information in his computer which he input contemporaneously on a day-to-day basis. I do not believe the plaintiff. If the information had been input into his computer contemporaneously on a day-to-day basis such information should have been available to the plaintiff at all times and the letter dated 14 May 2003 from the plaintiff's solicitors to the defendants' solicitors would not, in my view, have contained the inaccurate information about the plaintiff's earnings and income. The information could easily have been obtained from his computer and supplied to the defendants' solicitors if indeed the information was already in his computer as he claimed. The plaintiff was unable to give any plausible explanation as to why the inaccurate information was provided at that time by the letter dated 14 May 2003. He maintained that all he had given to his solicitors at the time were rough figures. He was unable to satisfactorily explain why he did not give them the information that was already in his computer. He was evasive in his answers and I do not believe him. I do not believe that the computer printouts were based on information which he input contemporaneously on a day-to-day basis. In my view, the information in the printouts was compiled for the sole purpose of supporting the plaintiff's claim for damages and was only done shortly before the plaintiff's supplementary statement was made in October 2003.

37. As to issue 6, I find that the plaintiff has failed to establish liability as alleged against the defendants and the claim of the plaintiff against the defendants should be dismissed.

Quantum

38. In view of my decision on the issue of liability, the issue of the quantum of damages does not arise. However, in case this matter goes elsewhere and I am held to be wrong on the issue of liability, I go on to consider the question of damages.

39. Certain matters on quantum have been agreed. Pain and suffering and loss of amenities ("PSLA") has been agreed at $250,000. The multiplier for future loss of earnings is agreed at 11. However, the multiplicand and loss of earnings are not agreed. Special damages is also agreed at $10,000. Interest on PSLA is agreed in the sum of $5,625.

Pre-trial loss of earnings

40. The pre-trial loss of earnings claimed is for the period from 25 February 2000 to the end of May 2000, i.e. for 3 months at the rate of $22,172 on average. This figure is supported by the said computer printouts. There is, however, no documentary evidence to support the plaintiff's loss of earnings and there are no documents to show the orders that he received from customers or the expenses incurred by him whether by way of employing workers or expenses for diesel. However, I am satisfied that the plaintiff was carrying on a business of his own despite the fact that there was no business registration. I am also satisfied on the evidence that he did own a light goods vehicle at the time of the accident and that after the accident he took delivery of a lorry which he had purchased before the accident.

41. On the medical evidence of Dr. Lau Hoi Kuen, which was agreed to by Dr. Danny Tsoi Chi-wah, the plaintiff has no difficulty in working as a driver. However, their evidence was that he would only be able to carry 20-30 kgs of weight as his upper limit. The plaintiff, however, said that he would have difficulty carrying a load of 10 lbs. which I am unable to accept on the medical evidence. However, I do accept that after the accident his earnings would have been affected to the extent that at times he had to employ an assistant to help him deliver goods when he was transporting loads weighing in excess of 20-30 kgs. It is, however, for the plaintiff to establish his loss of earnings and to provide cogent evidence of his loss of earnings.

42. His evidence was that he earned an average of $22,172 a month. This is taken from the 14 months' period of a gross income of $424,350 less the expenses of $113,930 leaving a net income of $310,420 for the 14 months' period before the accident until June 2003, arriving at a figure of $22,172 a month. The figures are taken from the said computer printouts. However, I do not believe that the computer printouts are a reliable source of his income and I place no reliance on the same. In his witness statement dated 28 June 2003 the plaintiff said that he earned $26,000 per month on average before the accident (para. 13). In his supplemental witness statement this was reduced. The plaintiff said that his average monthly income before the accident was $22,172 (para. 2). Apart from the computer printouts, the plaintiff has produced no documentary evidence to support his earnings and expenses. It is for the plaintiff to provide cogent evidence of his loss of earnings and he has failed to do so.

43. I accept that from the date of the accident to the end of May 2000 he did not work and received no income. He claims $22,172 per month for the 3 months' loss. I am satisfied that he must have suffered loss of income for the 3 months although I am unable to accept that the loss was $22,172 per month. A reasonable amount in the absence of any cogent evidence from the plaintiff would, in my view, be $10,000 per month or $30,000 for the 3 months' period.

44. Mr. Tam also submitted that on an alternative basis, the pre-trial loss of earnings from June 2000 to trial should be the average monthly expenses for employing a delivery worker. This was said to be at $7,940. Again, this is based on the unreliable computer printouts and I am unable to place any reliance on the same. Doing the best I can, however, it would, in my view, be reasonable to allow $5,000 per month as the expenses for employing a delivery worker for the pre-trial period. It was reasonable, in my view, for the plaintiff to have employed a worker to assist him and for that he should be compensated. On the alternative basis, the plaintiff's pre-trial loss of earnings would therefore be $30,000 + $230,000 ($5,000 X 46 months) amounting to the total sum $260,000. Interest on pre-trial loss of earnings and special damages have been agreed at 4% p.a. from date of accident to judgment.

Future loss of earnings

45. The multiplier is agreed at 11. I am unable to accept the plaintiff's figures again for his future loss of earnings for the reason that the computer printouts are not a reliable source of information of his income and expenses. It is, however, reasonable, in my view, to assess future loss of earnings on the alternative basis submitted by Mr. Tam. Taking $5,000 per month again as the reasonable expenses for employing a delivery worker to assist him, the future loss of earnings would amount to $660,000 ($5,000 X 12 X 11).

46. The claim for loss of earning capacity was abandoned at trial.

Summary of Quantum

47. The damages that would have been awarded to the plaintiff had he established liability against the defendants are set out as follows :

PSLA	$250,000
Pre-trial loss of earnings	$260,000
Special damages	$10,000
Future loss of earnings	$660,000
Interest on PSLA	$5,625
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	Total $1,185,625
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He would also have been entitled to interest on the pre-trial loss of earnings of $260,000 and special damages of $10,000 at 4% p.a. from date of accident to judgment.

Conclusion

48. As the plaintiff has failed to establish liability against the defendants, his claim against them is dismissed.

49. I also make an order nisi that the costs of the action are to be costs to the defendants and that the plaintiff's own costs are to be taxed in accordance with Legal Aid Regulations.