TANG WING PUI v. HO PUI LING t/a WING HING MEAT CO (PORK DEPT)

HCPI 364/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 364 OF 2001

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J U D G M E N T

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1.  On 7 April 1998 Tang Wing Pui, then an able-bodied man of 38 years, went to a shop in Nelson Street, Mongkok, whose sign signifies it is called Wing Hing Meat Company, to buy some pork.  Inside the shop he completed the purchase.  On his way out he lost his footing.  He slipped as he was on the point of walking down a flight of two steps at the entrance.  He fell backwards, landing on his back and hitting the back of his head.  He lost consciousness.  He was taken to hospital.  He was diagnosed to have fractured the transverse processes of the lumbar spine; he had fractured his back.  He claims to have permanent residual disability.  This is his claim founded in negligence against the occupier of the premises.

Background

2.  Mr Tang would describe himself as a sailor.  In 1993 he was a Second Deck Officer.  In 1995 he came to be employed by Hi Speed Ferries Limited.  His position was that of navigator.  In 1996 Hi Speed Ferries reduced its fleet and he was discharged.  He took that opportunity to take leave of absence from his career in order to look after his mother.  She was suffering from cancer with a limited time to live.  By 1996 her condition was critical.  Mr Tang from this time on lived off savings and part-time work.

3.  Mr Tang also went to night school, where he undertook an advanced navigation course, to further his career when the timing was right.

The Accident

4.  This took place in the afternoon of 7 April 1998.  Mr Tang went to the shop to buy some minced pork for his mother.  Having entered the shop he said he noticed that the floor was wet and somewhat slippery.  There were barrels containing ice and cold water, presumably used in the carriage of fresh produce.  He fell because he had stepped inadvertently into what he described as “snow or ice”, by which I take him to mean crushed ice that had spilled from the barrels.

5.  He was at the entrance.  He felt backwards and cracked his back on the corners of the top riser of the short flight of steps and the floor of the shop.  The shop floor did not have a corrugated or otherwise non-slip surface.  There was no sign, at least none that he could see, warning of the slippery floor.

6.  Mr Tang was found to have fractured his back bone.  He was put in a cast, and kept in hospital for 38 days.  After his release, notwithstanding recurrent back pain and weakness and further returns to hospital, he underestimated the extent of his injuries and his entitlement to seek recompense, and there was a delay when he sought assistance from the Director of Legal Aid.  So it was that his writ did not issue until April 2001, nearly 3 years after the accident.

The Shop

7.  This was a shop owned by Madam Ho Pui Ling and her husband.  For a time in the 80’s and 90’s she ran a business from the premises, selling fresh pork under the company name Wing Hing Meat Company, with the assistance of her husband.  This lasted until September 1994 when advancing years and ill-health caused them to retire.  But they kept on with the shop, renting it out as I now come to.

8.  At this time the shop was effectively subdivided into four areas: the pork department, from where Madam Ho sold pork, the beef department, from where beef was sold by another party, the fish department, from where fish was sold by another party again, and a warehouse or storeroom, which was used for storage.

9.  As from 1994 until after the date of the accident these various areas were let out by Madam Ho.  The pork department which she had hitherto been operating from occupied the majority of the floor space.  On 1 October she rented that out to Cheung Shek Yuen.  She also transferred to him her licence to sell fresh meat.  The tenancy expired in the year 1997 and was renewed for a further 3 years.  As at the time of the accident Mr Cheung was the tenant and proprietor of the pork department.  It was from his forkie, called Ng Bing Ming, that Mr Tang made his purchase.

10.  The tenancy then between the parties was not professionally drawn.  It did not define by plan the area leased, simply referring to it as the pork department.  By a term of it, the tenant was excluded from occupying “other area”.

11.  The beef department was also tenanted out, to one Hung Hon Ping.  This was a significantly smaller area, and the rent was much less.

12.  It is Madam Ho’s case, and I accept that to be so, that at the material time the fish department was also tenanted, to one Madam Yip Kau Mui.  She said there was no written agreement between them because the rent was very small, about $2,000 per month.  The warehouse, or storeroom, attracted an even smaller rent, of a few hundred dollars, which she said was paid by someone called Ah Bing.  For the same reason there was nothing in writing.

13.  Madam Ho described the shop as also incorporating areas which one would refer to as common areas.  These included the single entrance to the various rented areas, and access to and from toilet facilities at the rear of the shop.

14.  Once she had rented out the various areas, Madam Ho did not return to the shop except for collecting the rent, and the tenants’ shares of the water rates, electricity and so on, which were charges shared amongst them.

The Pleadings

15.  By his claim as first pleaded, Mr Tang sued Madam Ho, trading as Wing Hing Meat Company, as being the occupier of the premises where he suffered his accident.  Subsequently those representing him came to learn of the tenancy to Mr Cheung who was then in control of the pork department, and he joined him as 2^nd defendant.  Then it was that Mr Cheung died and a notice of discontinuance was filed in respect of the action against him.

16.  In a re-amended claim of June 2005, the tenancy agreement with Mr Cheung was referred to, but by then it was alleged that the particular area of the premises where the accident occurred, namely at or in the immediate vicinity of the entrance, was part of the common area, under the control and occupation not of her tenant but of Madam Ho.

17.  By the defence pleaded, Madam Ho says that as at the date of the accident she was not the occupier, operator or person in charge of the Wing Hing Meat Company, by virtue of the tenancy with Mr Cheung, and she owed no duty of care to any customer.

The Issues on Liability

18.  Did the accident occurred at the place described, as claimed?  Was Madam Ho liable, in fact and law?  Did Mr Tang contribute by negligence to his mishap?

The Evidence

19.  I have already recounted Mr Tang’s version of events.  Madam Ho could add nothing to what happened given that she was not at the shop.  Indeed the first knowledge she had of the incident was when the writ was served some 3 years later.  She called Mr Ng, Mr Cheung’s forkie.  He recalled the incident and Mr Tang’s fall.  He said he seemed to have been in a hurry but otherwise did not take issue with his version of events.  It was he who called the ambulance.  As a long serving member of Mr Cheung’s staff he confirmed that the entrance to the shop comprised part of the area common to all those lawfully in the shop, whether doing business to buy pork, beef or fish.

20.  Late in the piece Madam Ho produced a photograph to refute a claim that there were no warning signs.  The photograph was taken in April 1995.  It depicted 3 men; one was Mr Cheung.  There was partly blocked a sign stencilled on a wall which she says read “Be careful.  The floor is slippery”.  This was written in English and Chinese.  I inspected the photograph.  One can depict in small letters the letter “y” and then the word “floor”, consistent with the expression “slippery floor”.  There were characters also.  It was not, to be colloquial, a sign whose message would hit you in the face.

21.  Madam Ho says the sign had been stencilled on the wall in three places; in the beef department, the pork department and on the rear wall as depicted in the photograph.  However, quite fairly she stated that she could not be sure that the signs were in place at the time of the accident 3 years later.  Mr Tang denied, with some firmness, the presence of such signs or anything similar.

22.  Following the engagement of the DLA, a representative took photographs of the scene which were reproduced in the trial bundle.  This was some time after the accident.  By this time Madam Ho had let the whole shop to one tenant and he had carried out alterations.  Nevertheless the layout was similar and one could ascertain the whereabouts of the various departments and form a view on the location of the entrance concerning the issue of what area it comprised.

23.  One can see also barrels and other containers carrying water, ice and produce and the floor is clearly wet consistent with the carrying on business of a wet market.

Findings on Liability

24.  There is no material dispute with Mr Tang’s account of how and why the accident happened.  I accept in the circumstances that he lost his grip on a slippery surface caused by spillage from casks carrying crushed ice or similar for the preservation of live produce.

25.  I cannot be sure of the existence of the signs Madam Ho referred to.  But even if they were there at the time I could well imagine they could be missed because of size.  And the presence of a sign does not absolve the occupier of premises who owes his visitors a duty of care from compliance with that duty.

26.  There is nothing to suggest Mr Tang was careless as to render him liable in contributory negligence.

27.  So, who is liable?

28.  Madam Ho’s denial is based on the tenancy that she had with Mr Cheung; she cited excerpts from it in which he was required to meet utility charges and public liability insurance and to keep the facilities intact and the place clean.  She referred to a term in which he was to be liable for inter alia legal liabilities arising out of the operation of “that department”, presumably the pork department.

29.  The difficulty about that argument is that quite clearly Mr Cheung was tenant of only part of the premises, albeit more than half.  Although the boundaries of each part were not defined, and perhaps there were overlaps, it is quite apparent that on the facts of this case the entrance way was part of the common areas and was not leased to and under the control of any one of the four tenants.  It was the sole means of access to and egress from all four departments.  Though the tenancies did not spell this out I am satisfied that Madam Ho not having tenanted the area out gave her tenants and their lawful visitors the right to pass and repass across it.  But that was not a divesting of her interest which remained in her control.

30.  Did this render her an occupier?

31.  Lord Denning in Wheat and Lacon [1966] AC 552 defined occupier as used in the Occupiers Liability Act (the UK version of our Occupiers Liability Ordinance):

“to denote a person who had a sufficient degree of control over premises to put him under a duty of care towards those who came lawfully on to the premises …… in order to be an occupier it is not necessary for a person to have entire control over the premises.  He need not have exclusive occupation.”

32.  On the facts I am satisfied Madam Ho, even in absentia, was an occupant.

33.  To what extent did she owe a duty of care and to whom?

34.  That is statutorily dealt with by Section 3 of the Occupiers Liability Ordinance Cap 314 which states in part:

“3.	(1)	An occupier of premises owes the same duty, the “common duty of care”, to all his visitors, except in so far as he is free to and does extend, restrict, modify or exclude his duty to any visitor or visitors by agreement or otherwise.
	(2)	The common duty of care is a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there.”

35.  Madam Ho owed a duty of care to anybody entitled to enter or depart from her shop using the entrance.

36.  On the facts as I find Madam Ho failed to discharge the duty of care she owed Mr Tang and is thus liable in negligence.  There was no contributory negligence by Mr Tang.

Quantum of Damages

37.  Mr Tang stated in evidence that before he was laid off he was earning $20,000 per month as a navigator.  During the time he put a hold on his career to look after his mother, he was earning by part-time work on average $8,000 per month.  He was also undertaking a course to further his career.  It was not disclosed whether that course was successfully completed or what he might have been expected to earn as a result; it is likely it would have been no less than $20,000 per month.

38.  Following the accident he was treated in hospital for fractures of transverse processes of L1 and L2 before being discharged on 20 June 1998 some 38 days later.  From then on he was treated for persistent back pain.  MRI scans undertaken in 1999 and 2000 revealed mild lumbar spondylosis.  He returned to hospital periodically thereafter.  Now he claims to suffer back pain and weakness in his lower limbs and is easily tired.  He gets dizzy and looses his balance.  He is no longer able to work on ships, and lacks concentration to pursue his career in a clerical or similar role.

39.  Mr Tang’s mother died in October 1998.  Thereafter he would have resumed his career as a seaman.  But the accident prevented that and that has persisted.  Now he works for his brother, as before the accident.  Then he claimed to be earning $8,000 per month.

40.  Mr Tang has incurred medical and related expenses at a total of $20,069.  None of the items has been queried.

Joint Medical Report

41.  Mr Tang was examined by Dr Richard Lau, a specialist in Orthopaedics and Traumatology, engaged by the plaintiff, and Dr Lee Po Chin, also an O and T specialist appointed by the defendant.  As directed pre-trial they filed a joint report and were not called.

42.  They found on physical examination that he walked with a limping gait, that he could not squat or stand on the tips of his toes, that there was local tenderness in the lumbar region and a reduction from the normal of movements of the lumbar spine.  X rays showed non-union of the first lumbar vertebral fracture, but that of the second had healed.

43.  They noted he continues to complain of pain in the back and lower limbs.

44.  Dr Lau opined that with his back-pain persisting Mr Tang will have difficulty in resuming his pre-accident job as a sailor; that sedentary work such as security guard or shop-keeper would be more appropriate.

45.  Dr Lee was of the view that the back pain was unlikely to be significant, in the absence of clinical muscle spasms.  And a MRI scan failed to disclose changes that could explain Mr Tang’s weakness.  He said he should be able to return to work as a sailor as long as he did not have to undertake heavy lifting.

46.  No further treatment was deemed necessary.

The Extent of Disability

47.  The examining specialists are not ad litem on the level of disability with Dr Lee not ruling out the prospect of Mr Tang returning to his career at sea.  Weighed here however is the undisputed medical finding that Mr Tang has a back injury that is permanent and I accept his own account that he would not be able properly to fulfil the responsibilities of a deck officer.  I accept therefore that the accident has put a stop to his career and that he now has to settle for a less onerous workload.

48.  I come now to deal with the level of compensation to which he is entitled.

PSLA

49.  In Hong Kong injuries are categorised into 4 levels of severity.  The lowest is classified as a serious injury, and covers those cases where the injury becomes a disability which mars general activity and enjoyment of life but allows reasonable mobility, for example the loss of a limb replaced by a satisfactory artificial device, or bad fractures leaving recurrent pain; see Lee Ting Lam v Leung Kam Ming [1980] HKLR 657.

50.  Currently injuries which fall into this category attract awards for PSLA of $300,000.  Comparing with those awards given for injuries similar in seriousness it seems to me and I find that Mr Tang’s injury falls at a level below this category and I fix the award under this head at $200,000.

Pre-Trial Loss of Earnings

51.  Mr Tang had voluntarily given up work to look after his mother at the time of the accident and was thus earning a significantly lesser amount of money; namely $8,000 per month instead of $20,000.  He said he was planning to return to life as a seaman once his duty to his mother came to an end.  I accept that to be so; given as I find established that he was attending night classes to improve his qualifications.  His mother died in October 1998, about 6 months after the accident.  He had been away from the sea since 2 years prior.  It may have taken a little time for him to regain his career path after that break; I believe it would have been about 1999 that he could have achieved a like salary of $20,000.  The period of sick leave was from April 1998 to March 2001, say 3 years.  Loss of earnings pre-trial can be calculated as follows:

From April 1998 to March 1999 (12 months)		96,000
From April 1999 to October 2005 (78 months)	1,560,000
Less earnings April 2001 to October 2005 (54 months)	432,000	1,128,000
		1,224,000

Future Loss of Income

52.  Mr Tang is now 45.  I believe the appropriate multiplier should be 7.  His future loss of income is thus 7 x (20,000 – 8,000) x 12 = 1,008,000.

Special Damages

53.  The amounts claimed have not been challenged.  I fix these at $20,069.

Summary of Damages

PSLA	200,000
Pre-trial loss of earnings	1,224,000
Future loss of earnings	1,008,000
Special damages	20,069
	2,452,069

54.  There will be interest on the PSLA award at the rate of 2% per annum from the date of the writ to the date hereof, and on the award for special damages and pre-trial loss of earnings at the rate of 3% per annum from the date of the accident to the date hereof.

55.  Costs, nisi, are to the plaintiff.  With the Director of Legal Aid involved at some stage, there will be taxation of the parties’ own costs under Legal Aid Regulations.