RUTHANNA LAU SAU YEE v. HONG KONG BALLET LTD AND ANOTHER

CACV 171/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 171 OF 2002

(ON APPEAL FROM HCPI NO. 772 OF 1997)

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REASONS FOR JUDGMENT

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Hon Rogers VP:

1. I agree with the judgment of Le Pichon JA.

Hon Le Pichon JA:

2. This was an appeal by the plaintiff from the judgment dated 6 February 2002 of Deputy High Court Judge Woolley dismissing her claim for damages for personal injuries against the defendants. The appeal was in respect of liability against the 1st defendant only. At the hearing, the appeal was dismissed with reasons to be handed down later which we now do.

The proceedings below

3. The plaintiff is a ballet dancer who had an accident on 17 September 1994 during a practice session in rehearsal room GR2 at the Cultural Centre in Tsimshatsui. She was 23 years old at the time. The accident happened during a practice session with the rest of the ballet company. Those sessions took place every day between 10 am and 11:30 am before the rehearsal proper. Towards the end of the session in question, she was executing a step known as the grande cabriole ouverte which required the dancer to perform a jump, during which the feet are brought together, and then landing on one foot, in this case the left, and briefly holding the other leg at the horizontal. According to the plaintiff, it was in the course of landing from this movement or immediately after that her left foot slipped on a patch on the floor, causing her to fall, twisting her knee and damaging her anterior cruciate ligament. The plaintiff's case below was conducted on the basis that the cause of the slipperiness was wear and tear of the flooring by long use, and possibly overuse, creating slippery patches.

4. GR2 was one of the rehearsal rooms at the Cultural Centre leased to the 1st defendant as from 1 June 1992 which lease was renewed in June 1994. It gave the defendant sole use of GR2 from 9 am to 6 pm during weekdays and 9:30 to 1:30 pm on Saturdays. Outside those hours, other users could rent the rehearsal room for ballroom dancing or other dance activities.

5. The floor in GR2 was originally a plain wood surface. After numerous complaints by the dancers and a request by the 1st defendant for a proper dance floor, the 2nd defendant moved a sprung floor from the Grand Theatre to GR2. In June 1994 a demountable sprung floor was installed in GR2.

6. The judge found that in 1992, shortly after taking up the lease, the 1st defendant had arranged and paid for a flexible, padded, slip resistant flooring called Harlequin dance flooring which was mainly made of rubber, vinyl and woven fibres and was 1.3 mm thick. It was supplied in 2 m wide rolls which were then laid in strips with tape securing the joining edges. The manufacturer claimed a useful life of seven years. The evidence was that the flooring at the time of the accident in September 1994 was the same flooring that had been laid in 1992. Given the judge's finding as to the installation of a demountable sprung floor in June 1994, presumably the 1992 Harlequin flooring was re-used for that demountable sprung floor. The judge noted that there was no evidence as to whether the flooring was "new" when it was laid in 1992, but it would be somewhat unusual, to say the least, for the 1st defendant to pay for and have installed flooring that was not new.

7. Be that as it may, the question before the judge was whether the plaintiff fell because the movement was not executed by her correctly, or from a moments inattention, or whether she did land on a slippery part of the floor which caused her to lose her balance.

8. The judge considered the evidence relating to the state of the floor itself. The plaintiff's case was that where she fell was one of two or three slippery spots known to the dancers and that there had been complaints about them to the 1st defendant. Indeed, she asserted that other dancers had slipped but escaped serious injuries. The judge was not satisfied that there had been complaints about the floor nor that there had been any accidents caused by slipperiness. Nevertheless he said that that did not mean that the floor was not in fact "slippery". He explained that in the context of a dance floor, that meant that the Harlequin flooring which was designed for dancing has a surface which provides sufficient grip for jumps but also an appropriate amount of slip for other steps.

9. The judge considered the statements made in reports written after the accident which had mentioned the condition of the floor. There was a report by Mr Martin Lau, a member of the corps de ballet, written shortly after the accident and a written statement to the insurers made by Ms Serafinas the ballet mistress of the 1st defendant. After reviewing their evidence, both documentary and oral (to which reference will be made later), the judge did not consider Mr Lau's statement and his oral evidence to be of assistance. As regards Ms Serafinas's evidence, the judge came to the view that she did believe that there was a degree of slipperiness in the flooring.

10. In the light of that evidence, including "minutes" of a staff meeting held on 8 November 1994, from which it would appear that an item for discussion at the meeting was to consider the replacement of the worn out flooring, the judge reached the conclusion that there was a degree of slipperiness in the flooring of GR2 at the time of the accident. But he found that the floor was not old and worn out in the sense that it was past its useful life. He went on to say this:

"18. ... But the crucial question is the extent of that degree, whether it was within the limits which professional dancers accepted and allowed for, if necessary by the use of rosin, or whether it was such as to create a danger to the dancers of which the 1st defendant should be aware ... As I have found above, there were no complaints from [the dancers] that it was anything other than an appropriate surface to dance on, and while there had been the usual minor instances of dancers falling in practice, none can be attributed to abnormal slipperiness of the floor beyond that expected of such flooring. Indeed, there is no evidence of any other such accidents occurring after this, although the flooring was not renewed for a further 16 months. Had it been in such a condition of wear and tear as to create a danger in September 1994, it would be unusual if its condition had not worsened after that and given rise to other accidents ..."

He noted that during the practice session when the accident happened, the corps de ballet numbering over twenty members were all executing the same steps and movements in groups of four without other instances of falls or slipping. The judge observed:

"19. ... Experienced dancers such as these are well aware of the inherent dangers of their profession, and I do not find it credible that, were there a situation which made that danger greater, not one would at least draw it to the attention of the ballet mistress, or the management of the company. Yet no such complaint was made."

He dismissed the plaintiff's claim against the 1st defendant on liability, concluding that:

"... there was nothing about this flooring which made it dangerous to the dancers at that time. If any slipperiness existed, it was within acceptable limits for the purpose to which it was put, and which the dancers themselves accepted and allowed for in their dancing ..."

This appeal

11. Mr Wright who appeared for the plaintiff referred to the observations of Godfrey JA in Tang Kwok Ming v Daxprofit Scaffolding Ltd [1999] 1 HKC 657 at 663H-I to the effect that if it is necessary for an appellate court to disturb an adverse finding of primary fact, the appellant has to demonstrate either (1) that there is no evidence to support it; or (2) that it is contrary to documentary or other incontrovertible evidence which the judge overlooked. Mr Wright stated that he relied on both limbs of that statement.

12. As to the first limb, Mr Wright submitted that there was no evidence to support the judge's finding that the accident had "occurred through a mistake or momentary inattention on the part of the plaintiff". In my view, that was a misreading of what the judge was saying in paragraph 20 of his judgment. When properly read in context, all the judge was there saying was that he did not consider that the plaintiff had made out a case against the 1st defendant. In the circumstances, the judge did not have to make a finding as to the cause of the accident and he did not purport to do so in paragraph 20: he was merely opining that what had happened was an accident which was likely to have occurred "through a mistake or momentary inattention" on the part of the plaintiff.

13. As to the second limb, Mr Wright submitted that the judge was wrong in his approach in that he should have evaluated the oral evidence against the background of documentary evidence which was objective and collateral: that he should have judged the reliability of the oral evidence against such documentary evidence. The documentary evidence that Mr Wright put reliance upon consisted principally of (1) the minutes of a staff meeting on 8 November 1994, (2) a letter dated 20 January 1999 from Helen Ng, Acting Chief Executive Officer of Hong Kong Ballet to the Senior Manager (Venue) of the Hong Kong Cultural Centre ("the January 1999 letter"), (3) an accident injury report form dated 30 September 1994 and signed by Mr Lau as witness to the accident and (4) a statement provided by Ms Serafinas to the insurers on 5 July 1995, some nine months after the accident. Mr Wright's case was that taken at face value, these documents showed that the plaintiff had slipped on a slippery floor such that the 1st defendant should be liable for the injuries sustained. It is to be noted that the documentary evidence relied on had in fact been dealt with by the judge in his judgment. It was not a case of his having overlooked them.

Minutes of meeting of 8 November 1994

14. The so-called "minutes" read as follows:

They were more akin to an "agenda". Be that as it may, it would appear from the minutes that action was to be taken by "CE/TD". Initially, Mr Wright could not identify the persons referred to. He later informed the court that it was a reference to, respectively, the Chief Executive and Technical Director of the 1st defendant. No doubt, these persons as well as the others present at the meeting would have been able to throw some light as to what was discussed concerning the condition of the floor in GR2 and the action to be taken. However, not only was there no such evidence before the court, there was also no evidence as to what caused this item to be discussed at the meeting. In the circumstances, it is difficult to see what assistance Mr Wright could derive from the minutes.

15. The court was invited to draw an inference that as the meeting took place only some six weeks after the date of the accident, the flooring must have been defective at that time. But, as the judge noted in his judgment, the floor was not replaced until January 1996, some 14 months after the date of the accident. It is inconceivable that if the flooring was unsuitable for dance practice sessions, no further incident occurred during this period. In my view, the inference which the plaintiff sought to draw from the minutes is unwarranted.

The January 1999 letter

16. This letter, addressed to the Senior Manager of the Hong Kong Cultural Centre from the Hong Kong Ballet, drew the former's attention to "incidents and recorded injuries related to the floor" in GR2. There was reference in that letter to unevenness of the floor of the Grand Theatre, the cause being "the wearing of particular modules of the sprung floor". This condition was apparently noticed during performances that took place in the latter half of December 1998 and the letter contained suggestions as to what should be done to remedy that. The letter then went on to say this:

"Mr. HE Da Wei's injury also alerted us to evaluate the condition of the floor of the 2 rehearsal rooms - GR2 & GR3.

Since September 1998, there had been regular reports of injury in the 2 rehearsal rooms. Discussions with dancers induced examination of the floor. We found that the Sprung Floor in GR2 & GR3 had the same wearing problem as those of the Grand Theatre. The Sprung Floor needs levelling and repair.

The poor condition of the Sprung Floor was further magnified as the Marly Floor was not maintained properly.

1.	...
2.	Continuous use (over 8 hours a day, 7 days a week) and mopping shortens the life of the Marly Floor. The Marly Floor becomes stiff, loose its traction and is very slippery. We could not help on this issue but to suggest maintenance to rejuvenate or replace the Marly Floor."

17. The judge found on the evidence that the floor was cleaned regularly with water only and that there was no evidence that this accelerated the wear of the floor. He referred to the letter quoted above and observed that the writer had not been called to give evidence. In particular, he queried the source of the information and its accuracy. He remarked that it was but a statement in a letter and as such took the matter no further.

18. In my view, the judge's observations were unexceptionable. Even if that letter were to be taken at face value, it can shed no light on the condition of the flooring back in September 1994. It was dealing with events since September 1998 and does not form a valid basis for the inference that in September 1994, the condition of the floor was unsuitable for dance practice sessions.

Mr Martin Lau

19. A section of the accident and injury report form submitted by the plaintiff had to be completed by witness(es). That part had been completed by Mr Martin Lau. This read:

"	1.	Did you see the accident happen?
		Yes.
	2.	What happened?
		As Ruthanna came out of the specific jump in exercise, she slipped on her left leg and fell onto the floor.
	3.	What appeared to cause the accident?
		The particular place where she slipped was a very slippy area."

Mr Lau said that he saw the plaintiff fall but did not know if it was a slip. Whilst he had recorded that the place where she fell was "a very slippy area", he explained that that was what the plaintiff had told him and he believed it, but, to his knowledge, no one else had slipped in that area. He further added that he considered that completing the form was just a procedure that had to be gone through and that he did not take it sufficiently seriously at the time. The judge had accepted his explanation, finding it credible.

20. I do not see that that course was not open to the judge. Whether another court would have reached a different view is beside the point. In the circumstances, the judge cannot be criticised for not attaching weight to Mr Lau's statement.

Ms Serafinas

21. In her statement made in July 1995 relating to the plaintiff's claim for employee's compensation, there was this exchange:

"	Q.	What is the condition of the floor at room GR2 at the time of the accident?
	A.	The floor has become slippery due to wear & tear and there are some minor accidents before but not so serious as Ruthanna's case."

22. In the light of, inter alia, the evidence of Ms Serafinas, the judge found that there was a degree of slipperiness in the flooring. But the crucial question was whether it was within the limits which professional dancers accepted and allowed for or whether it was such as to create a danger to the dancers. In reaching his conclusion that it was the former, the judge did not disregard what Ms Serafinas had said in her statement. He made his assessment in the light of all relevant factors, including, for example, the fact that a new floor was not laid until some 14 months later and the fact that no other incident had occurred in the interval. Had the floor been dangerous, it would have been unlikely that there would not have been another incident. Moreover, there was nothing in that statement to point to a particular area of the floor to be particularly slippery, much less the place where the plaintiff had actually fallen. But, even taken at face value, I do not consider that the statement relied on supports the plaintiff's contention that the floor was not up to the standard to be expected, that it was uneven and slippery in different parts.

Conclusion

23. Whilst I have considered each of the documents relied on individually, taken collectively, they do not take matters further: the sum cannot be greater than its parts. In my view, the criticisms of the judge's treatment of those documents were lacking in merit. The appeal was accordingly dismissed.

Hon Barma J:

24. I agree.