YEN PETER PAK VAN v. NISILK LTD AND ANOTHER

DCPI 273/2021

[2023] HKDC 1445

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 273 OF 2021

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BETWEEN

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DECISION

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A. Introduction

1.  This is a personal injury claim brought by the plaintiff (“P”) concerning a slip and fall accident which happened on a flight of staircase consisting of 6 steps (not counting the lowest landing and the top landing) (“Staircase”) inside Place One, No 9 Cheung Yee Street Kowloon, Hong Kong (“Building”) on 6 October 2015 at about 1300 hours (“Accident”). The 1^st defendant (“D1”) was the registered owner, and the 2^nd defendant (“D2”) was the management company of the Building (D1 and D2 collectively as “Ds”). P’s case is that the Accident was caused by Ds’ negligence and/or breach of statutory duty under the Occupiers Liability Ordinance, Cap 314 (“OLO”).

2.  P was his only witness at the trial. On the other hand, Ds called Mr謝耀根 (“Mr Tse”), property management manager of the Building at the time of the Accident as their only witness.

3.  P was represented by Mr Victor Gidwani and Ms Jesse Shum while Ds were represented by Mr Simon Wong at the trial.

B. The Accident

4.  There is not much factual dispute in this case. The actual footage of P’s slip and fall was captured by CCTV recordings (from 3 cameras) disclosed by the Ds (“CCTV Recordings”). The main difference between the parties is what caused P to fall. P said it was because of the defective design of the Staircase. Ds said it was because of P’s misjudgment and carelessness.

5.  Mr Gidwani submits that the court should be cautious in placing too much weight on the CCTV Recordings when making factual findings on the cause of the Accident. It is submitted that the CCTV Recordings do not show the full picture of the cause of the Accident. It is pointed out that the CCTV cameras were not HD full colour cameras and that there were matters which each of the 3 cameras could not show. On the other hand, it is submitted that P’s own oral testimony on what he saw and did not see was probably best understood from P’s standpoint and field of vision.

6.  In my view, P’s perception of the Accident should certainly be considered. However, I think it is also important to bear in mind that the unanticipated fall happened in a split second, and before it happened, there appears to be no reason for P to pay particular attention to the details of how he had descended the Staircase. As such, I believe P had also heavily relied on the CCTV Recordings to reconstruct how he had taken each step before the Accident. Although the cameras do not appear to be full HD cameras, the CCTV Recordings are of reasonably good quality and have captured the whole incident from 3 different angles. All in all, despite Mr Gidwani’s criticisms, I think the CCTV Recordings can provide the court with an objective picture of how the Accident had happened on the material day.

7.  As can be seen from the CCTV recording, the Accident happened as follows[1]:-

7.1 At 12:45:11, P approached the Staircase. He used his right hand to hold the handrail.

7.2 At 12:45:12, P was standing still on the raised lift landing. P lifted his right leg towards the 1^st step and in the meantime looked down at the steps.

7.3 At 12:45:13, P’s right foot landed on the 1^st step uneventfully. Immediately thereafter, he no longer looked at the steps but looked to the front. In the meantime, he lifted his left foot off the top landing towards the 2^nd step. He was not looking down at the steps during this process.

7.4 At 12:45:14, P’s left foot landed on the 2^nd step. Meanwhile, he lifted his right foot off the 1^st step towards the 3^rd step.

7.5 However, within this second:-

7.5.1 when his left foot landed on the 2^nd step, only about half of his foot was on the step.

7.5.2 When his left foot landed on the 2^nd step, P lost balance and his upper body leaned backward. He looked down at the steps.

7.5.3 At this moment of time, his right foot just reached the 3^rd step. P immediately stabilised himself by leaning his upper body forward and with his right foot landed on the 3^rd step.

7.6 At 12:45:15, P was able to stabilise himself. He looked up again. He did not stop but immediately continued descending the Staircase. With his right foot remaining on the 3^rd step, he lifted his left foot off the 2^nd step towards the 4^th step. His left foot reached the 4^th step. However, only about one-third of his foot (the back of his foot near the heel) landed on the 4^th step.

7.7 At 12:45:16, immediately after the landing of his left heel on the 4^th step, P lost balance and his left foot slipped from the 4^th step to the 5^th step and then the 6^th step. Meanwhile, his right foot also slipped through the 3^rd step to the 6^th step.

C. Liability

C1. P’s case

8.  In P’s case, the cause of the Accident was two-fold:-

8.1 The treads of the Staircase were too short; and

8.2 There was a lack of colour contrast between different treads of the Staircase so much so it was difficult for P to distinguish one tread from another.

9.  P submits that the “design, construction and/or maintenance” of the Staircase fell below a reasonable standard in the following 3 aspects:-

9.1 Non-compliance with sub-sections 25(1)-25(3) of Division 7, Part 2 of the Third Schedule of Building (Planning) Regulations (Cap 123F) (“B(P)R”);

9.2 Non-compliance with Division 7, Best Practice Section of the Design Manual: Barrier Free Access 2008 (“Design Manual”); and

9.3 Non-compliance with section 5.2.4, Stairs and Steps of Chapter 5 Design Consideration of the Universal Accessibility Best Practices and Guidelines (“Best Practices”).

10.  Regarding the length of the treads, P’s case is that although the statutory requirement is satisfied, the treads would be indeed “too short for P to use”. According to P, his shoes are 32 cm long – which is size 10 for men’s sports shoes. P argues that if P were to place the back of his heels tightly against the surface of the risers, the front of P’s shoes would protrude the tread by at least 7.8 cm or 9 cm, which is almost one fourth of P’s shoes’ length. P may be overweight, but his shoe is within normal person’s range.

11.  P argues that compliance with the B(P)R does not mean Ds had discharged their duty of care towards P in relation to the use of the Staircase on the material day.

12.  Regarding colour contrast, P said in his witness statement that the lack of colour contrast had weakened his ability to observe each step when he was descending the Staircase. It is argued that the lack of colour contrast had created an unreasonable hazard for visitors like P to descend the Staircase.

13.  P submits that to rectify the lack of colour contrast, there was a simple and cheap solution, i.e. the installation of anti-slippery strips. As agreed by Mr Tse under cross examination, the installation of the anti-slippery strips due to the splashing water festival in April 2018 clearly enhanced the contrast and the visibility of the treads of the Staircase.

C2. D’s case

14.  It is Ds’ case that the Staircase complies with the B(P)R and the design was certified safe by Architect (HK) Ltd and approved by the Buildings Department. Ds do not agree that the Design Manual and Best Practices (which set out more stringent requirements and standards) are applicable. Ds argue that the Design Manual and the Best Practices are only design considerations and recommendations to improve or enhance the provisions of access and facilities in a building. They have no statutory force.

15.  Ds submit that the question is whether taking into account the overall circumstances it is reasonable to require Ds to adopt the best practice than the required practice. Ds submit that the answer must be no. To require a commercial building occupier to comply with requirements more stringent than the statutory requirements would be unreasonable in the circumstances.

16.  Ds also submit that the law does not aim at perfection, and one must be cautious in considering the matter with the benefit of hindsight: Thapa Hari Bahadur v Paramount Engineering & Manpower & Anor (unreported, HCPI 408/2016, 31 January 2022), per Au-Yeung J at [57] citing Ng Kong v Golden Caterers Ltd (unreported, HCPI 206/2004, 3 February 2005), per Recorder Edward Chan SC at [24]:-

“In approaching the question of whether there was any negligence or breach of the statutory duties here, it is important to bear in mind that the law does not require perfection. The employer is not an insurer of his employee’s personal injury. There is hardly anything in the world which could not be better done with the benefit of hindsight. An employer who has exercised such care reasonably expected from a careful employer is not to be found liable to his injured employee for negligence simply because after the event someone is able to make some extravagant suggestions of how things could be better arranged to avoid this particular accident.”

17.  Ds emphasize that there are always better practices. However, the question is not whether it would be better if certain measures are taken. The proper question is whether it was reasonable for Ds to adopt what have been adopted, and not to adopt which have not been adopted. Reasonableness ought to be considered with reference to the overall factual circumstances.

18.  Ds also rely on the following features in the case:-

18.1 According to the lobby lighting design plan, the lobby was fitted with numerous pendant lights and fluorescent lights. Glass doors were used at the entrance. The lobby was sufficiently lit and bright for the purpose of using the Staircase;

18.2 This is a common commercial building. There is no evidence of any special circumstances (such as there was a nursing home or an organization for the disabled or the elderly in that building) which may necessitate special measures to be taken; and

18.3 Throughout the years, there is no evidence of any accident or complaints regarding the Staircase. There is no evidence that P himself made any complaint when he walked up the Staircase. Numerous visitors walked up and down the Staircase every day uneventfully.

C3. Analysis

The Length of the Treads

19.  According to the coloured pictures taken at the scent, the width of the treads was measured at about 24.2 cm. On the other hand, according to the Staircase design plan, the treads were measured at 23 cm. In any event, it is common ground that the width of the treads in this case complies with legal requirements.

20.  Mr Wong relies on Yvonne Ng v Royal Hong Kong Yacht Club (unreported, HCPI 1100/2016, 7 January 2021). In that case, while P was walking down a staircase going back to the restaurant from visiting the washroom, she slipped and skidded down for about 10 steps. The Plaintiff complained about the design of the staircase. One essential complaint was that the treads were too narrow. DHCJ To (as he then was) dismissed P’s claim. At [19]-[21], the learned Judge said:-

“19. The Plaintiff complained that the tread is too narrow and could not accommodate the length of her foot which is 250 mm. The step tread in the second flight is 230 mm which is 5 mm wider than the minimum requirement. The tread is narrow, but wider than statutory requirement. In fact, such tread width is very common, particularly in domestic premises. It is common experience that people walk up a staircase of narrow tread width with their heels off the step or walk down the staircase with between one-third to one-quarter of the sole outside the step. I do not think there is any substance in this complaint.

20. The Plaintiff also complained that the flight was too long and steep. The number of steps is three less than the permissible maximum. Steepness is a function of the step rise and step tread ie the elevation for each step. The maximum statutory permissible gradient is therefore 175/225, ie 0.77. The gradient in the second flight is 170/230, ie 0.73. As the step tread of the second flight is the narrowest, that flight is the steepest among the four flights. But it is well within the permissible gradient.

21. This flight of stairs may not be comparable with grand staircases in hotel lobbies, but its design is well within the requirements of the Building (Planning) Regulations. The Building Authority must have satisfied itself that the Clubhouse including this flight of stairs complied with all requirements under the Building Ordinance and subsidiary regulations before it issued occupation permit. … I do not think there is any substance in the Plaintiff’s complaint about the design of the Staircase…”

21.  The court ultimately found the cause of the Accident at [34] as follows:-

“...The probability is that she did not watch where she was going. Her right foot landed too near the edge of the step (much more than one third of her sole as she alleged) or not at all. Hence, she lost balance and her body weight dragged her down the Staircase, pulling her hand off the grip of the handrail, if she had held onto it. That was why everything happened so fast that she felt she “flew” down the Staircase. In the circumstances, it was an unfortunate accident. The Plaintiff has failed to prove negligence or breach of duty on the part of the Defendant.”

22.  Although, as submitted by Mr Gidwani, each case is fact sensitive, I find DHCJ To’s observations to be apposite to the present case. The Staircase was designed by architects, certified to be safe, and the design was well approved by the Building Authority. The treads might not be enough to accommodate the length of P’s feet. However, they are wider than the statutory requirement. I think it is a common experience that people are able to walk safely up and down a staircase with part of their soles outside the treads.

23.  I agree with Mr Wong that there are always better or “best” practices. However, it is one thing to lay down better standards, but another thing to define what is reasonably safe in a particular case. In the circumstances of the case, there was nothing to suggest that Ds ought to have done something more to see that the visitor would be reasonably safe.

Colour Contrast

24.  P rely on the fact that black non-slippery stripes were added to the Staircase in April 2018 (2.5 years after the accident). They were added in response to the splashing water festival event in April 2018. On the other hand, Ds argue that P’s reliance on such modifications are misplaced because it is trite that precautions taken after the accident is not proof of negligence. In Cheung Yuen Ying v Integrated Display Technology Ltd (unreported, DCPI 2109/2013, 16 November 2015), DDJ MK Liu (as he then was) noted at [24]-[25]:-

“24. There is no doubt that DIT added the Yellow Strip and the Labels to the platform after the Accident. However, there is equally no doubt that precautions taken after the accident is not proof of negligence…

25. In order to establish liability by relying on the addition of the Yellow Strip and the Labels after the Accident, Madam Cheung has to prove the absence of the Yellow Strip and the Labels caused or contributed to the occurrence of the Accident. The burden of establishing this causation is on Madam Cheung…”

25.  As stated above, it was P’s evidence in his witness statement that the lack of colour contrast had weakened his ability to observe each step when he was descending the Staircase.

26.  Further, in the witness box, P agreed that he was stepping too close to the edge of the treads of the Staircase. He explained that he had no choice in placing his foot that way because the treads of the Staircase were too short and the colour contrast was such that he could not tell one tread from another. P then said the lack of colour contrast led him to his misjudgment, as the treads were too short that he put his feet too close to the edge of the treads.

27.  However, P accepted under cross-examination, and as shown from the CCTV footage, that:-

27.1 P did not look at the steps when his left foot moved from the 1^st step to the 3^rd step.

27.2 Similarly, P did not look at the steps when his left foot moved from the 3^rd step to the 5^th step. He said he looked to the front because that was an open area (“向前望，因為open area”).

28.  As such, I agree with Ds that P’s allegation that he was unable to see the treads clearly is a non-starter. P accepted that he did not even look at the steps when he moved his left foot. Hence, the presence or absence of colour contrast is irrelevant to his slip. As a matter of fact, he did not look at the steps before he fell.

C4. Findings

29.  I find on balance that the fall was an unfortunate accident, but not an accident caused by Ds’ negligence or breach of duty. I find that P had lost his balance because he had placed his left foot too close to the edge of the treads.

C5. Contributory Negligence

30.  For the sake of completeness, if I had found that D was negligent in causing the accident, given my above findings, I would have found a degree of contributory negligence to the extent of 75%.

D. Quantum

31.  Had I found D liable to P, I would have dealt with the amount of quantum as follows.

D1. Injuries and Treatments

32.  P was brought by ambulance to attend AED at Caritas Medical Centre (CMC). X ray was also carried out on P’s left ankle and showed a left ankle fracture, with the diagnosis as left ankle fracture.

33.  Then, he consulted private specialist, Dr Tang Yiu Kai and was admitted to Hong Kong Sanatorium & Hospital (“HKSH”). On 9 October 2015, P underwent an operation with open reduction and internal fixation.

34.  On 24 October 2015, P was discharged from the HKSH.

35.  Subsequently, P received physiotherapy at HKSH for about 3 to 4 months.

36.  In January 2017, P received another operation to remove the implant of his left ankle at HKSH.

37.  P continued to follow-up with Dr Tang Yiu Kai until late March and/or early April 2017 and thereafter, P received no other treatment elsewhere.

D2. Joint Medical Report

38.  P attended the joint medical examination (“JME”) held on 11 June 2021 by Dr Tio Man Kwun Peter, engaged by P (“Dr Tio”) and Dr Ko Put Shui, Peter engaged by Ds (“Dr Ko”). In their joint medical report (“JMR”) dated 8 September 2021, the experts did not have significant disagreement.

39.  At the time of the JRIE, P was still complaining of residual stiffness, swelling and weakness over his left ankle. There was no muscle wasting and there was no neurological deficit. There was non-union or fibrous union in the medial malleolus in the x-rays taken during this examination.

40.  As to the recovery progress, Dr Ko opined that the prognosis for P's left ankle injury should be good to excellent, whereas Dr Tio took the view that P attained a state of maximal medical improvement.

41.  As to the sick leave period, both experts concurred that the sick leave periods covering 6 October 2015 to 6 August 2016 and 18 January 2017 to 18 April 2017 were appropriate and acceptable.

42.  The experts agreed that P should have no problem in managing his usual activities of daily living and self-care activities.

43.  As to the ability of resumption of duty, Dr Ko opined that P should be able to resume his pre-accident duty with no significant impairment to his work efficiency, whereas Dr Tio the view that P would be able to resume his pre-accident duty with reduced capacity and efficiency, as P may need intermittent breaks of 15 minutes after each 1.5 hours' work.

D3. PSLA

44.  P claims a sum of $500,000 for PSLA and relies on the following cases for making this claim: Kwong Wan Kau v Yuen Wing Hong (unreported, HCPI 142/2002, 1 September 2006), Lam Kam Fai v Yau Shing Scaffolding Co Ltd [2014] 2 HKLRD 448 and Yuen Wai Chun v Chan Wing Pui (unreported, HCPI 110/2018, 21 June 2019).

45.  On the other hand, D submits that the damages for PSLA should be $200,000 to $250,000 and relies on the following cases: Hu Wan v Sanwo International Co Ltd (unreported, DCPI 3621/2019, 26 February 2021), Tsui Wai Ho v Pride Glory Limited t/a Ziti’s (unreported, DCEC 1791/2015 & DCPI 1699/2016, 23 May 2019), Chan Mok Yau v 黃吉利and Another (unreported, HCPI 913/2016, 25 May 2018), Li Chi Sing v Equal Link Limited (unreported, DCPI 1930/2011, 06 March 2013) and Cheng Muk Ping v Chan's Machine Engineering Company Limited (unreported, DCPI 932/2007, 20 October 2008).

46.  In this case, P has recovered well from the injury and his residual disabilities are relatively mild. I therefore consider that the injuries suffered by P in the present case are less serious than those suffered by the plaintiffs in the cases cited by P. In my judgment, damages for PSLA, if granted, would be at $250,000.

D4. Past Medical Expenses

47.  Ds only agree to the medical expenses incurred from Caritas Medical Centre and Dr Tang. As to HKSH charges, Ds challenge the necessity and reasonableness to stay in a top private hospital spending hundreds of thousands of dollars for a simple ankle fracture injury without complication.

48.  Bharwaney J explained in Wong Man Kin v Golden Wheel (C & HK) Transportation Co Ltd [2015] 5 HKC 570 that, absent good reasons, P should be awarded damages based on the cost of treatment from private doctors. His Lordship said at [64]:-

“64. If a plaintiff evinces a genuine intention to seek treatment from private doctors or from a private clinic or hospital, the court should award damages based on the cost of such treatment, unless there was good reason why he should obtain the reasonably needed treatment from the Hospital Authority. A good reason could include the unavailability of the needed treatment in the private sector. Another good reason could be the successful treatment received by the plaintiff in the past from the Hospital Authority which it would be beneficial for him to continue to receive; for example, a good rapport established with a treating psychiatrist at a facility run by the Hospital Authority ought to be continued. Absent good reason, the court should not transfer the liability of the tortfeasor to pay for such treatment onto the shoulders of the Hospital Authority which is already over burdened by the huge and ever growing demand for its services by the citizens of our good city. Indeed, the long period of time it would take to obtain the needed treatment from the Hospital Authority is a good reason to award damages based on the cost of the needed treatment in the private sector. Provided that the treatment is reasonably needed, the plaintiff’s choice to seek such treatment in the private sector cannot be equated with a failure on his part to mitigate his loss by seeking the needed treatment from the Hospital Authority ……”

49.  No good reasons have been advanced by Ds. I would therefore have allowed the costs for P’s treatment in the private sector.

50.  However, I accept Ds’ submission that when P attended HKSH again in 2017 for removal of the implant, his stay in a single private room was unnecessary. In court, P agreed that hospital charges for medications, tests and equipment were much more expensive if he stayed in a single private room. He also told the court that he found it unnecessary to stay in a single room when he had the surgery in 2015, and hence he stayed in an ordinary room. There was therefore no reason why he had to stay in a single room for the removal of the implant in 2017.

51.  In these circumstances, the difference between the costs for a single private room and an ordinary room, together with the additional charges associated with the single private room should be deducted.

D5. Alternative Accommodation

52.  P claims $98,840.80 for costs of alternative accommodation at Harbour Grand Hotel, a five-star hotel.

53.  P’s case is that the Harbour Grand Hotel was a suitable option reasonably available. It was wheelchair friendly. However, he frankly admitted during cross-examination that he had not considered or explored the options outside the 4 candidates, including Shama, City Garden Hotel and L Hotel, which were near to his residence. P said he needed his domestic helper’s assistance in his daily activities, which constrained the spectrum of options in a geographical sense. P’s domestic helper would visit him to provide massage. P’s parents were also of advanced age, with one at 80 and the other one at 85 at the time.

54.  Ds argue that P has not sufficiently explained why he had not made enquiries with more hotels. He said his main consideration was that the hotel should be near his residence, but there were also many other options including those in Tin Hau district. Ds therefore contend that their concession of $45,000 is more reasonable in the circumstances.

55.  I agree with Ds that P should not be entitled to the costs of staying in a five-star hotel where there were probably other cheaper options. I would therefore have awarded damages only at the conceded amount of $45,000.

D6. Travelling Expenses

56.  P claims $5,000 as travelling expenses.

57.  As held in Lam Tak Wa v Everbest Port Services Ltd (in Liquidation) (unreported, HCPI 455/2016, 13 November 2018) at [88]-[89], the court is entitled to award reasonable sums for travelling expenses and tonic food, even in the absence of receipts. Considering the number of times P visited HKSH for treatments, despite the lack of receipts, an award at $5,000 for travelling expenses is not unreasonable and would have been awarded in full.

D7. Tonic Food Expenses

58.  P claims $20,000 under this head. However, he said in his witness statement that the total expenditure on tonic food was about $9,000 only. Further, P has failed to produce any receipts to show actual incurrence of loss.

59.  In the circumstances, I would only have allowed 5,000 for tonic food expenses.

D8. Future Medical Expenses

60.  P claims $20,000 to buy painkillers and/or ointments for relief of left ankle pain in future. I agree with Mr Wong that the claim is against evidence. P told the experts that he did not have ankle pain when walking on level ground. He only experienced pain when walking for more than 10 steps, but he did not take painkillers. P also confirmed under cross-examination that after the signing of his witness statement, he had not sought medical treatment or purchased any painkillers to relieve his knee pain.

61.  I would therefore make no award under this head.

E. Conclusion

62.  P has failed to prove liability against D. I therefore dismiss his claim.

63.  I further make an order nisi that costs of the action be to D to be taxed if not agreed, with certificate for counsel. Unless any of the parties applies to vary it, the order nisi would be made absolute 14 days from the date of this judgment.

64.  It remains for me to thank all counsel for their assistance.