LEUNG SZE NOK v.TSUEN WAN PROPERTIES LTD t/a RIVIERA ICE CHALET

DCPI 1470/2007

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO. 1470 OF 2007

________________________

BETWEEN
	LEUNG SZE NOK a minor by next friend LEUNG YUEN FAT	Plaintiff
and
	TSUEN WAN PROPERTIES LIMITED trading as RIVIERA ICE CHALET	Defendant
________________________

Before: Her Honour Judge H C Wong in Chambers (Open to public)

Date of Hearing: 29 November 2010

Date of Decision: 29 November 2010

________________________

D E C I S I O N

________________________

 

1.  The plaintiff applied by summons for leave to appeal against my order on costs of 5 November 2010 awarding costs of that hearing to the defendant on the plaintiff’s application by letter of 27 July 2010. The dispute raised in the plaintiff’s letter of 27 July 2010 was on the issue of the plaintiff’s sanction offer served on the defendant’s solicitor on 7 December 2009 under Order 22 of the Rules of District Court.

2.  The plaintiff had enclosed in the letter of 27 July a reply by the defendant of 26 July 2010 to the plaintiff’s earlier letter to the defendant, in which the defendant agreed to the plaintiff’s proposal for the plaintiff’s costs to be taxed on a common fund basis, but refusing to agree to the plaintiff’s proposal of accrual of interests on the agreed sum of $160,000 from the date of the writ and for an enhanced rate of interest due to the plaintiff’s sanction offer of 7 December 2009.

3.  It was against this background that the parties came before me on 5 November 2010. The crux of the dispute and argument on 5 November was whether the interest should be enhanced and accrued from the date of writ or date of the plaintiff’s sanction offer.

4.  Since the defendant had agreed to the plaintiff’s request for costs to be taxed on common fund basis, at the end of that hearing on 5 November I ruled that the plaintiff’s sanction offer in these proceedings, where liability was in dispute and where the plaintiff is under disability as a minor, Order 22 rule 4 applies because a sanction offer only takes effect when the court’s approval has been given. 

5.  The plaintiff’s ground of appeal for the present hearing was that I have failed to take into account the practice of costs to follow the event, and it was my ruling on that application that the plaintiff, for enhanced interest and interest payable from date of writ to the date of sanction offer, had failed when the agreement on quantum, which was inclusive of interest, was reached on the first day of trial.

6.  On the plaintiff’s second ground of appeal, that I had failed to exercise my discretion judiciously and failed to explain the reasons for my discretion, it can be clearly answered by the plaintiff’s first ground of appeal.  Costs usually follow the event.  Since the plaintiff had failed in her application for interest to accrue from the date of the sanction offer or date of writ, it is reasonable and logical for costs to be awarded against the applicant.

7.  Further, I am well aware of the matters I should take into account in the exercise of my discretion on costs on 5 November 2010.  I had followed Order 62 rule 5, which set out the special matters to be taken into account in exercising discretion, in particular Order 62 rule 5(1)(e), and 62 rule 2, the conduct of the parties in the post-judgment period, in particular, that had led to the hearing on 5 November 2010.

8.  Parties could have reached an agreement over the matters amicably on the issues of interest and costs, since the defendant had already on 26 July 2010 agreed to taxation on common fund basis.  For the aforesaid reasons, I find the plaintiff’s application devoid of merit.

9.  Taking into consideration the Court of Appeal’s dicta in Choy Yee Chun, representative of Chan Pui Yiu’s estate v Bond Star Development Limited (date of judgment 23 September 1997) and Order 62 rule 2 in the Hong Kong Civil Practice, page 1093, 62/2/11, the approach of the appellate court is:

“The Court of Appeal will not interfere with the exercise of a judge’s discretion in the award of costs, unless it was shown that he failed to exercise the discretion, or exercised it upon a false principle, or did not exercise it judiciously, or the exercise of discretion was demonstrably flawed”.

10.  I am not convinced the Court of Appeal would replace the discretion I exercised in making the order for costs on 5 November this year by its own discretion.  I cannot see any merits in the Plaintiff’s grounds of appeal proposed orally at the hearing.  I, therefore, refuse the plaintiff’s application, with costs to be taxed if not agreed.

(H C Wong) District Court Judge

Ms Alison Liu, of Bough & Co., assigned by Director of Legal Aid, for the Plaintiff

Mr William W S Lee, instructed by W K To & Co., for the Defendant

DCPI1470/2007

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO. 1470 OF 2007

________________________

BETWEEN

	LEUNG SZE NOK a minor by next friend LEUNG YUEN FAT	Plaintiff
and
	TSUEN WAN PROPERTIES LIMITED trading as RIVIERA ICE CHALET	Defendant

________________________

Before: Her Honour Judge H C Wong in Chambers (Not open to public)

Date of Hearing: 5 November 2010

Date of Decision: 5 November 2010

________________________

D E C I S I O N

________________________

 

1.  At today’s hearing, the plaintiff sought the court’s approval for the compensation of $160,000 as the sum agreed by the parties on the first day of the trial to be approved.

2.  I approve the agreed sum as an appropriate award based on the condition of the minor which I have personally observed and I have also read the medical background on the infant, and based on the authorities cited by counsel for the plaintiff in his opening. 

3.  It is indeed fortunate that the minor had a complete recovery after the accident, I will accordingly make the order under Order 18 rule 11 that the sum of $160,000 be paid into court and to be invested by the Registrar of District Court, after deduction of the special damages of $13,455.50 to be paid to the minor’s father and next friend.  The balance will be invested by the Registrar of District Court until the minor reaches the age of 18 or further order. 

4.  The remaining issues for today’s hearing have been set out in the plaintiff solicitor’s letter of 27 July 2010 to my clerk drawing my attention to Order 22 on the plaintiff’s sanction offer served on the defendant’s solicitor on 7 December 2009.  In that letter, it referred to a cost order on a common fund basis.  The letter enclosed a letter from the defendant’s solicitor of 26 July 2010 agreeing to the plaintiff’s proposal for costs to be taxed on a common fund basis, but refusing to agree to the plaintiff’s proposal of accrual of interests on the agreed sum of $160,000 from the date of writ and for the interests to be at an enhanced rate due to the plaintiff’s sanction offer of 7 December 2009.

5.  Mr Li, counsel for the defendant, submitted that the agreed quantum of damages of $160,000 reached on the first day of trial was inclusive of interests, and the trial had proceeded on the issue of liability only.  Therefore, there is no legal basis for the plaintiff’s application for interests to commence from the date of writ of summons, because the defendant had agreed the plaintiff’s costs to be taxed on a common fund basis.  It is Mr Li’s contention that the only issue remaining for today’s hearing is the effect of the plaintiff’s sanction offer of 7 December 2009. 

6.  On the basis that the common fund taxation has been agreed on 26 July 2010 by the defendant’s solicitor, since 27 July this year, the matter as to costs to be taxed on a common fund basis is no longer contested or disputed. 

7.  Mr Li further argued that since the court’s award was based on the parties’ agreement of damages at $160,000, the plaintiff did not get more than the sanction offer, and Order 22 rule 24 only applied in cases where the defendant was held liable for more than the sanction offer that the court may order the defendant to pay interest above the judgment rate from the date the defendant could have accepted the plaintiff’s offer.   This is not the case here.

8.  Mr Li raised a further argument that the sanction offer date would not have any effect since the plaintiff is a minor and the acceptance of the sanction offer is subject to the court’s approval.  The date of the sanction offer therefore is irrelevant. 

9.  Ms Liu argued that this seems to be contrary to the intention of the Civil Justice Reform and Order 22 which encourage early settlement by means of sanction offers. 

10.  I am not surprised by the query raised by Ms Liu because it would seem to be contradictory to the incentive for an early settlement intended by the changes in the rules. The Civil Justice Reform’s introduction of sanction offers and sanction payments under Order 22 would have no effect if the claimant is a person under disability, because the acceptance of such an offer is subject to the court’s approval.  However, sanction offers under the CJR in a case where liability is not disputed, Order 22 applies to all persons under disability in the same way that it would apply to any other claimants and defendants. 

11.  The present case is a case where liability was in dispute, therefore, the issue for the trial was one of liability.  I have carefully studied Order 22 and found it stated clearly that once the sanction offer or sanction payment is accepted, the claim is stayed.  This is provided in Order 22(1).

12.  Order 22(4), however, provides:

“If the approval of the court is required before a settlement can be binding, any stay which would otherwise arise on the acceptance of a sanction offer or a sanction payment takes effect only when that approval has been given.”

13.  Order 22(4) is clear.  The sanction offer only takes effect when approval of the court is given.  This means, in these proceedings, the date of the judgment. The situation here is unlike the situation in the case of Law Ping Leung, referred to me by Mr Li, where Mr Recorder Yu referred to a sanction offer in that case of being an offer lower in sum than the judgment award.  The sanction offer was $1.3 million while the judgment award was $1.715 million. 

14.  The sanction offer here in this case was agreed at $160,000 on the first day of the trial.  The agreed sum was inclusive of interests, therefore, even though the sanction offer was made in December 2009, if the defendant had not contested or abandoned the issue of liability and accepted the plaintiff’s sanction offer, after December 2009, there may be an issue of interests arising after the expiry date of the sanction offer.   Or in a case where the sanction offer was only accepted the day before the trial, then there may be a case for consideration on interests and costs. 

15.  In the present case, the agreement was reached on the first day of trial and the agreement was for the sum of $160,000 to be inclusive of interests.  There is, therefore, in my view, no further room for any argument whether the agreed sum should carry further interests from the date of the sanction offer or from the date of the writ.

16.  Any claim for interests from the date of writ or the sanction offer cannot be a valid one.   I therefore order the costs of the action to be taxed on a common fund basis. 

17.  The costs of today’s hearing be to the defendant, to be taxed if not agreed, with certificate for counsel.  The Plaintiff’s own costs to be taxed in accordance with Legal Aid Regulations.

 

 

(H C Wong) District Court Judge

 

Ms Alison Liu, of Bough & Co., assigned by Director of Legal Aid for the Plaintiff

Mr Andrew S Y Li, instructed by W K To & Co., for the Defendant

 

DCPI 1470/2007

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO. 1470 OF 2007

------------------

BETWEEN

	LEUNG SZE NOK, a minor	Plaintiff
	by her next friend LEUNG YUEN FAT
and
	TSUEN WAN PROPERTIES LIMITED	Defendant
	trading as RIVIERA ICE CHALET

------------------

 

Coram : Her Honour Judge H.C. Wong in Court

Dates of Hearing :	25 – 29 January 2010, 12 March 2010,
	15 – 16 March 2010 and 27 April 2010

Date of Handing Down Judgment : 20 July 2010

JUDGMENT

1.  This case involves an unfortunate accident during an ice-skating lesson of the minor Plaintiff Leung Sze Nok (hereinafter referred as “Sze Nok) on Saturday 4 February 2006.

2.  The Defendant, Tsuen Wan properties Limited trading as Riviera Ice Chalet occupied and operated an ice skating rink and ice skating school at 3/F, Riviera Plaza, 28 Wing Shun Street, Tsuen Wan (hereinafter referring to as “the School”).

Background

3.  At about 9 a.m. on Saturday 4 February 2006 Sze Nok was taking a private ice skating lesson under the supervision of her coach Miss Samantha Ho Shum Yee (hereinafter referred to as “Samantha”).  Samantha was an employee of the School.  The 4 February 2006 lesson was Sze Nok’s 12^th lesson on figure skating with Samantha.  Just before the accident, Samantha was demonstrating a set of manoeuvres  known as the “right leg forward arabesque” to Sze Nok, Sze Nok was expected to follow and copy the movements.  “Forward Arabesque”, also known as “the Spiral”, is described as a gliding forward movement on one leg, leaning the upper body forward, arching the back and raising the free leg backward extending it high in the air.

4.  While demonstrating the right leg forward arabesque at the lesson, Samantha suddenly heard Sze Nok cried out behind her.  She turned and found Sze Nok kneeling on the ice holding her abdomen with both hands.  A male instructor, Vincent Yau Wing Shing (hereinafter referred to as “Vincent”) went over to Sze Nok and carried her off to the skate changing area outside the ice rink.  Sze Nok was found to be bleeding on the top left side of her head.  The ambulance was called, it took Sze Nok to Yan Chai Hospital for treatment.

5.  Hospital record showed when Sze Nok arrived at Yan Chai Hospital at 9:43 a.m. she was conscious and alert with no neurological deficit on admission.  A small 2 cm laceration was found over the left parietal region of the skull, X rays showed a 3 cm depressed skull fracture over the same site with contusion.  Photographs of Sze Nok’s head taken after the surgery indicated the injury was on the left centre top of her head.  Sze Nok was transferred to the Princess Margaret Hospital after medical staff at the Yan Chai Hospital stopped the bleeding on Sze Nok’s head.  She was admitted into the neurosurgical unit of Princess Margaret Hospital on the same day.

6.  The medical notes from Princess Margaret Hospital recorded that Sze Nok had sustained an open depressed fracture of the left parietal bone with formation of a collection of blood (extradural haematoma) under the skull.  It was a mild contusion of the underlying brain.  Emergency craniotomy was performed to evacuate the blood clot and repair the bone.  The contused area did not require surgical removal.  There were fractured bone ends jutting and piercing into the dura (outer membrane covering of the brain) causing a 1 cm long dural tear with the cortex (outer layer of the brain) with one vein exposed.  After the bone fragments were removed and the dura repaired, the wound was sutured.

7.  After the operation, Sze Nok remained in the intensive care unit for 3 days, she spent 6 more days in the general ward before she was discharged home.  Although the surgical scars were large and unsightly, she was able to walk unaided on the day of her discharge.  After a month’s rest at home, Sze Nok returned to school.  Even though her average marks dropped below 80% for the first time immediately following her injury, she gradually regained her previous performance level, she made a complete recovery and stayed in a band I class.  Her scar over the fracture site is permanent but fortunately it is covered by surrounding hair. There is an increase risk of post-traumatic epilepsy in future, the accumulated lifetime risk is 3.9%, but at present she has no residual disability.  Both parties agreed the quantum of damages to be $160,000.00 inclusive of interest at the start of the trial.  The only matter remained for the Court to decide is the issue of liability.

Issues on Liability

8.  According to Mr. Li, Counsel for the Defendant, in order for Sze Nok to succeed in this case she has to prove on a balance of probabilities that:

(1)               the accident happened as she alleged; and

(2)               the Defendant breached its duty of care under the common law and/or the Occupiers Liability Ordinance (Cap 314)(“OLO”)

9.  Mr. Li argued that:

(1)               Sze Nok has failed to prove how the accident happened;

(2)               even if Sze Nok has established her case, she has failed to prove that the School has breached its duty of care that caused the accident;

(3)               the School is not liable for the accident on the ground of volenti non fit injuria;

(4)               if the School is held liable, Sze Nok was guilty of contributory negligent.

How did the accident happened?

10.  The Plaintiff alleged the accident was caused by the School and/or its servants for:

(1)               failing to take any or any reasonable care to see that Sze Nok was reasonably safe as a student of the School;

(2)               instructing Sze Nok to follow behind Samantha in a manoeuvre which Samantha knew or ought to have known would expose Sze Nok to risk of injury by Samantha’s raised leg-skate descending from a flip up;

(3)               failing to ensure that there was sufficient distance at all times between herself and Sze Nok to prevent the injury;

(4)               failing to provide and/or carry out any or any adequate or effective reasonable supervision and care of Sze Nok during the lesson;

(5)               allowing the lesson to be conducted in an unsafe manner;

(6)               exposing Sze Nok to a risk of injury of which the Defendant knew or ought to have known;

(7)               failing to advise and ensure Sze Nok’s head would be protected by helmet.

11.  The School’s defence is as follows:

(1)               the ice surface of the ice rink at the time of the accident was even and smooth;

(2)               while performing left leg forward arabesque at the time of the accident, Sze Nok caused the toe pick to strike the ice surface, thereby causing herself to halt suddenly, lose balance and fall to the front;

(3)               at the time of the accident, the distance between Sze Nok and Samantha was more than 3 metres;

(4)               Samantha’s skate blade did not, and could not have hit Sze Nok;

(5)               it was not necessary for Sze Nok to wear a safety helmet in the light of:

(a)              the crucial requirement of balancing in freestyle ice skating;

(b)             its obstruction to the skater’s vision; and

(c)              the minimal risk of head injury in practicing freestyle ice skating.

The Burden of Proof

12.  According to the authors of Clerk & Lindsell on Torts 19^th edition, paragraph 8-149:

“The onus of proof, on the balance of probabilities, that the defendant has been careless falls upon the claimant. If the claimant’s evidence is equally consistent with the presence or absence of negligence in the defendant, his action will fail.”

13.  In paragraph 8-150, the learned authors stated:

“the question in every case is, what is the reasonable inference for unknown facts? ……… Courts approach matters of inference on the common sense basis and where the evidence relating to negligence is particularly within the control of the defendant, little affirmative evidence might be required from the claimant to establish a prima facie case which it will then be for the defendant to rebut.”

14.  In Snell v. Farrell (1990) 72 DLR (4^th) 289, Sopinka J. stressed that:

“The judge as a trier of fact, is entitled to draw inferences from the evidence and does not have to approach issues from the narrow view point of an expert witness. Hence, he was entitled to take into account the fact that in many medical negligent cases the facts would lie particularly within the knowledge of the defendant and in these circumstances little affirmative evidence on the part of the claimant would justify drawing an inference of causation in the absence of evidence to the contrary. Although these comments were made in the context of proof of causation, it is suggested that there are equally applicable to proof of negligence.”

Res ipsa loquitur

15.  The Court may in some circumstances infer carelessness on the part of the defendant where the claimant can show the nature of the accident suggests both negligence and the defendant’s responsibility.  Drawing the inference in such a circumstance is often described as an application of the doctrine of res ipsa loquitur.

“The doctrine which stems from the judgment of Erle C.J. in Scott v London and St. Katherine Docks, applies where (1) the occurrence is such that it would not have happened without negligence and (2) the thing that inflicted the damage was under the sole management and control of the defendant, or of someone for whom he is responsible or whom he has a right to control. If these two conditions are satisfied it follows, on a balance of probability, that the defendant, or the person for whom he is responsible, must have been negligent. There is, however, a further negative condition: (3) there must be no evidence as to why or how the occurrence took place. If there is, then appeal to res ipsa loquitur is inappropriate for the question of the defendant’s negligence must be determined on that evidence.”

(paragraph 8-152 Clerk & Lindsell on Torts page 497)

16.  In paragraph 8-155 the authors of Clerk & Lindsell on Torts said:

“Procedural effect of doctrine One view of the effect of the doctrine is that it simply raises an inference of negligence which requires the defendant to provide a reasonable explanation of how the accident could have occurred without his negligence. On this view, the defendant does not have to prove on the balance of probabilities that his explanation is the correct one. If it is equally as plausible as that of the claimant, the claimant will fail as he bears the burden of proof. ………….. Thus if the defendant provides an equally plausible explanation, this will redress the balance of probability, if it has tilted against him, and the claimant will be back where he started, namely, of having to establish his case by positive evidence.”

17.  In the Privy Council decision of Ng Chun Pui v Lee Chuen Tat [1988] 2 HKLR 425, the Privy Council held at page 427 H to I:

“Resort to the burden of proof is a poor way to decide a case; it is the duty of the judge to examine all the evidence at the end of the case and decide whether on the facts he finds to have been proved and on the inferences he is prepared to draw he is satisfied that negligence has been established. In so far as the resort is had to the burden of proof the burden remains at the end of the case as it was at the beginning upon the plaintiff to prove that his injury was caused by the negligence of the defendants.”

18.  In the present case, there were no eyewitnesses to the accident.  Mr. Li, Counsel for the School, suggested the theoretical possibility of Sze Nok’s toe pick hitting the ice surface causing her to fall to the front and she accidentally hit her own head.  As to how the injury which was a dent and a pointed fracture in the left centre of the crown of Sze Nok’s head could have been caused, Samantha and Mr. Gomes suggested that when Sze Nok lost balance, her legs could have flipped backwards and hit her own head with the pointed top of the blade of one of her skates.  In Court, Samantha claimed that Sze Nok had the flexibility of 5% of the population, therefore, it would not be surprising for her to be able to hit her own head with her own skates as she fell forward.

19.  The suggestion was countered by the evidence from Sze Nok’s mother who said in Court that she had consulted Sze Lok’s then ballet teacher, Sze Lok was not a child with particularly flexible limbs.

20.  Sze Lok was heard crying out in pain by Vincent who was coaching another boy at the ice rink at the time, Sze Nok was seen lying with her face down on the ice with her two hands holding her stomach and kneeling with her knees on the ice.  Sze Nok herself only remembered experiencing pain in the abdomen and falling to her knees.  No one else saw how the accident happened.  Sze Nok’s domestic helper Miss Canillo who was in the vicinity outside the ice rink did not witness the accident.  She claimed she had examined Sze Nok’s ice skates after they were removed from Sze Nok at the changing area, she found no evidence of blood or hair on the blades of Sze Nok’s skating boots.

21.  Mr. Leung Hok Cheung, the parent of a student at the School, was present outside the ice rink, did not witness the accident.  He said he heard a noise which drew his attention to the ice rink, he saw Sze Nok lying face down on the ice surface, her coach Samantha was not close to where Sze Nok was.  It is not disputed that a patch of blood was found on the ice surface after the accident and it is believed that the blood belonged to Sze Nok who was bleeding from the head after the accident.

22.  In spite of Mr. Leung Yuen Fat’s (Sze Nok’s father) efforts trying to ascertain the cause of the accident, no-one was able to give him an answer and he could not find anyone who witnessed the accident.  He and his wife Madam Chan tried unsuccessfully to obtain a taped record of the video cameras from the CCTV installed at a few locations around the ice rink.  He and Madam Chan were skeptical of the explanations given by Mr. Gomes, the ice rink manager and head coach, or the Riviera Plaza building management staff.

23.  At the Court’s site visit to the ice rink, the Court was shown the security room with a monitor depicting views from CCTV cameras at different areas of the Riviera Plaza including the ice rink and the School.  It was apparent that not all CCTV cameras were installed with recording tapes; furthermore, the guard at the security office would only be able to see views of some of the 16 CCTV cameras at any given time because the monitor at the security office on the date of the accident showed only views from 9 CCTV cameras in sequence, every few minutes views on the monitor at the security office would change to show views from different CCTV cameras installed at the Plaza.  Therefore, it is quite possible at the time of the accident, even if someone was sitting in front of the monitor at the security guard room, he would not have witnessed what happened even though one of the 16 CCTV cameras was monitoring the ice rink.  As no tape had ever been installed in the particular CCTV camera pointing at the ice rink, there was no recording of the accident.  Consequently, one has to rely on the surrounding circumstantial evidence to determine what happened at the time of the accident.

24.  The School did not dispute that as a general principle an ice skating school and occupier of the ice rink, the School owes a duty to take reasonable care to see that a student like Sze Nok would be reasonably safe while taking an ice skating lesson at the School.  It is Vincent and Samantha’s evidence that the ice surface of the ice rink at the material time was smooth and even.  According to Mr. Gomes, the ice surface would be smoothened several times a day with the smoothing machine at the ice rink.  There was no evidence there were any bumps on the surface of the ice on the morning of the accident.

25.  The School also accepted that a student like Sze Nok would be exposed to risks of injury should she come in contact with Samantha’s raised leg if she was skating too closely behind Samantha while performing the forward arabesque manoeuvres.  However, the School’s position was Samantha was 3 metres ahead of Sze Nok when she performed the forward arabesque manoeuvres.  It is not in dispute that Samantha is an experienced ice skater and a professional coach with many years of teaching experience.  She claimed she would from time to time watch the manoeuvres of her students from the reflective screen installed at the inside rim of the ice rink.  She admitted she would not turn around to watch her students, as she could see them from the reflective screen on the inside rim of the ice rink.

26.  It was Samantha’s evidence that Sze Nok had learnt the forward arabesque manoeuvres sometime before the accident for the forward arabesque was required in the level 2 figure skating examination.  Samantha claimed Sze Nok was not strong on her strokes and she had told Sze Nok to improve on her strength of movements at the 12^th lesson.  Furthermore, at previous skating lessons Sze Nok had practiced the forward arabesque with Samantha.

27.  It is the Plaintiff’s case that the cause of accident was the close proximity between Samantha and Sze Nok.  Though Samantha insisted she had maintained a distance of 3 metres between herself and Sze Nok that morning while performing the forward arabesque manoeuvres, Sze Nok claimed she was only 1 metre away from Samantha before the accident.  If Sze Nok is correct, there are doubts as to whether Samantha did maintain a safe distance between herself and Sze Nok when she was demonstrating the manoeuvres to her student.  Samantha described in Court she was gliding at medium slow speed in front of Sze Nok and was at least 2 to 3 metres from her.  She heard a ‘pop’ sound and heard Sze Nok yelling ‘哎呀’.  At this juncture, Samantha had not yet completed the forward arabesque manoeuvres, her right leg was still raised behind her.  On hearing the ‘pop’ sound, Vincent turned and saw Sze Nok had fallen on the ice, he called out to Samantha who was gliding behind him on his right.  Samantha denied in cross-examination that she was only one metre away from her student Sze Nokduring the demonstration, she claimed further that if her raised leg had come into contact with Sze Nok she would have felt it.  And if her skated foot had come into contact with anyone she would have fallen down for the contact would have disturbed her balance.

28.  In paragraph 14 of Samantha’s witness statement she said the following:

“I guess that the Plaintiff fell forward and down at that time, possibly because the Plaintiff was a young girl, relatively more flexible, her leg bended backward and thus the top of her head was hit and injured by her own skate.”

29.  Her evidence in cross-examination is somewhat different when describing Sze Nok’s flexibility.  In Court, she claimed Sze Nok was unique for she was in the top 5% (of the population) in terms of flexibility of limbs.  She also said in re-examination that Sze Nok would before each lesson do a warm up by herself; on one or two occasions, Samantha had done it with her and helped her to push her leg up to reach her head.

The medical experts’ report

30.  Dr. Brian Choa and Dr. Edmund K.W. Woo jointly examined Sze Nok on 11 June 2008, 2 years after the accident when she was 11 years old.  Their findings were similar with no major disagreements.  Sze Nok told them that during the incident she had felt a sudden pain in her abdomen, she stooped but did not fall.  She could not recall any impact on her head but noticed blood dripping from her scalp.  Dr. Choa commented that Sze Nok must have sustained head injury even though she was unaware of it at the time.  The shape of the injured area was described as ‘a hole in her skull without a linear crack’, it was more likely caused by a small sharp or sharpish object rather than a fall on a flat surface.  Both doctors concluded that Sze Nok had made an excellent neurological recovery with no residual symptom or disability.  Dr. Choa concluded Sze Nok could resume normal sporting activities.  The two doctors carried out an experiment with Sze Nok at the clinic with Sze Nok adopting the forward arabesque posture.  Her head was 42 inches from the floor.  They also attempted to hyperextend Sze Nok’s legs while flexing the knees to bring one of her feet up to her head, Dr. Choa found they were many inches short of achieving such a result.  It was Dr. Choa’s opinion from the experiment conducted at the clinic that Sze Nok could not have inflicted the injury with her own skates.  Dr. Woo did not comment on the matter.

Analysis

31.  From the medical experts’ findings of Sze Nok’s injury, the hole in Sze Nok’s skull without a linear crack was more likely caused by a small sharp object rather than from a fall onto a flat surface.  Unless there was a sharp object on the surface of the ice which struck Sze Nok when she fell down, or she was hit by a sharp object before she fell down, the skull fracture could not be in the shape it was found.  The fact that the fracture was on top of her crown also indicated it is unlikely the fracture was caused by a sharp object on the ice surface.  On the cause of the small dented fracture to the head, the Plaintiff suggested Sze Nok was hit by the raised skated right foot of Samantha when she was performing the forward arabesque with her right leg raised behind her to her hip level when gliding forward on the ice.  In the School’s defence, Mr. Gomes, Samantha and Vincent suggested that Sze Nok had accidentally lost her balance when the toe pick at the front of her skates got stuck in the ice surface causing her to fall forward, that her legs fell backwards and the toe pick of the blade of one of her skates hit the top of her head causing the fracture on her head.

32.  Sze Nok’s mother, Madam Chan, claimed Sze Nok did not possess limbs so flexible that she could flip back her legs to her head and hit herself with her own blades.  At the doctor’s clinic two years after the accident, it was confirmed that she could not raise her foot up to the level of her head.  Samantha claimed in court that Sze Nok usually had a warm-up before the skating lesson and on a few occasions she had helped Sze Nok to push her leg up to her head.  Samantha used the words ‘I helped her to push’.  This indicated Sze Nok could not raise her leg to reach her head without assistance.  Samantha admitted she did not consider Sze Nok a strong skater, Sze Nok was told to strengthen her strokes and practice the forward arabesque manoeuvres more often even though Sze Nok had learned them before.  Is it then possible for Sze Nok to flip her legs back when she fell forward on the ice for one of her skated feet to hit the top of her head and fracture her own skull?  I find it unlikely that she should be able to do that after she lost balance on the ice particularly when she did not fall completely flat on the ice surface.  Vincent found her kneeling on the ice surface holding her stomach, Sze Nok said she stooped after she experienced stomach pain.  It is unlikely for her to have kicked herself on the head when she fell on both knees and knelt on the ice.  It is logical when one of the skater’s toe picks got caught in the ice, she would fall forward and flat on the ice rather than for one of her skated feet which got stuck in the ice to kick backward and hit her own head.  For this reason, I find the Defendant’s proposition implausible.  I reject it completely.

33.  This leaves the alternative proposition from the Plaintiff.  That Sze Nok was skating so quickly and strongly behind Samantha that the distance between herself and Samantha had narrowed to 1 meter and she caught up and collided with Samantha’s raised right skate as Samantha was completing the manoeuvres.

34.  According to Samantha, she instructed Sze Nok to follow her and perform the right leg forward arabesque manoeuvres and to put more strength in her strokes and to bend her back more.  According to Sze Nok, when Samantha began to demonstrate the manoeuvres to Sze Nok, the distance between herself and Samantha just before the accident was about 1 metre.  Samantha admitted she did not look back while demonstrating the manoeuvres to Sze Nok, though she claimed she could observe Sze Nok’s movements from the reflective perplex lining of the ice skating rink, it is not known if she made sure that Sze Nok was keeping a distance of 3 metres or more behind her at all times while she was demonstrating the manoeuvres.  She admitted she did not turn back to look at her student.

35.  At the Court’s site visit, the head coach at the School, Miss Linda Dean demonstrated the forward arabesque.  She performed a sequence of stroking to gather momentum before starting to gliding with the left foot on the ice, leaning the upper body forward, bending the face forward while arching the back, extending the right leg backward, raising it to the level of the hip and gliding on the ice for some distance before completion.  After observing the performance of the manoeuvres, I find it quite possible if Sze Nok was 1 metre or less from Samantha, as Samantha raised her right leg behind her, Sze Nok who was still stroking and gathering momentum, moved so fast behind Samantha that the distance between them had shortened and Samantha’s rising right leg collided with the top of her skull.  When Sze Nok was copying the manoeuvres, she had probably extended her upper body and her head forward, thus further narrowing the distance between Samantha and herself.  Samantha did not feel the impact probably because the movement when she was gliding forward with her free leg rising was so strong that she was able to move away from Sze Nok after the impact.  That was why when Vincent noticed Sze Nok had fallen on the ice surface holding her abdomen, Samantha was obliviously completing the forward arabesque manoeuvres and had moved behind Vincent on the ice rink.

The School’s Responsibility

36.  The question for consideration is whether the School had taken adequate care and supervision of Sze Nok.  Sze Nok was only 9 years old at the time of the accident, she belongs the class of vulnerable potential victims undertaking a sport that is inherently hazardous.

37.  Paragraph 8-134 of Clerk & Lindsell on Torts page 484 stated:

Known vulnerability of potential victims        The likelihood of harm will also depend on any vulnerability of potential victims of which the defendant knew, or should have known.  For example, children are known to be less aware of threats to their safety.  Hence, if the defendant is felling a tree while children are watching him, it is not enough for him to warn them to go away before the tree falls; he should take more active steps to see that they are out of the way, for children are attracted by such operations and are too young to appreciate danger.

38.  At paragraph 8-135 the authors said:

“Degree of likelihood of harm           What is relevant is the degree of likelihood that harm may occur.  In Lord Dunedin’s words: “People must guard against reasonable probabilities, but they are not bound to guard against fantastic possibilities.”

                   At paragraph 8-136 the author continues:

“Severity of the harm   The degree of care also depends on the magnitude of the consequences that are likely to ensue.  As Lord Macmillan said: “Those who engage in operations inherently dangerous must take precautions which are not required of persons engaged in the ordinary routine of daily life.”  The more serious the consequences, the greater the degree of care which has to be shown.”

39.  The School has a responsibility to see that students learning the techniques and skills taught by the School should do so in a safe environment with procedures and methods of teaching that would ensure their safety.  It should provide adequate care to students of tender age taking part in a sport which is inherently dangerous.  Particularly when the teaching was conducted on a one on one basis, the teacher would be expected to devote his/her full attention on the student he/she was teaching at the time.  This is paramount for any institution specializes in sports where young children are involved.  An occasional glance at the reflective lining of the rim of the ice rink by the coach cannot be regarded as adequate attention.  Perhaps that was why Samantha did not notice Sze Nok’s proximity at a distance of 1 metre behind her.

Use of helmet

40.  Mr. Wright, Counsel for the Plaintiff, submitted that helmets should be used in the School for a sport like ice-skating.  I agree with him.  Figure skating though enjoyable and graceful to watch requires a great deal of strength, agility, technique and skill from the skater.  Even though Mr. Gomes insisted that in figure skating, only beginners would wear safety helmets because the helmet would affect the balance of the skater in performing freestyle ice-skating.  He claimed it is unlike ice hockey and speed skating where skaters are required to wear safety helmets at all times due to the risk of collision with other skaters or the ice or wall surface.  The fact that beginners in figure skating are required to wear safety helmets is evidence of the danger involved.  Ice skating is a sport of speed, thus, protective equipment worn by ice skaters whether they be figure skaters, ice hockey players or speed skatersshould be similar.  For students practising ice skating, there are potential dangers of collision and falls on the ice surface.  In my view, the wearing of safety helmets in an ice skating school should be mandatory for young students.

41.  Even though Sze Nok had her first skating lesson in June 2002 and had achieved level 2 in free-style skating, she was still a child of 9 years when the accident occurred.  Those in charge at the School including the coach and the School should make sure that no harm would come to the students and precautions should be taken for students taking lessons at the School.  There are nowadays many different types of helmets used in different sports such as, snow skiing helmets, bicycle helmets, ice hockey helmets and speed skating helmets, etc.  They are made with different types of materials.  Helmets such as bicycle helmets are light weight and would not affect either the skater’s vision or balance in practice sessions.

42.  Paragraph 8-174 of Clerk & Lindsell on Torts at page 514, stated:

“School responsibility A teacher is expected to show such care towards a child under his charge as would be exercised by a reasonably careful parent, taking into account the conditions of school life as distinct from home life, the number of children in the class and the nature of those children.”

43.  Clerk & Lindsell on Torts at page 516 paragraph 8-176 stated further:

“Failure to adequately supervise contact sports such as rugby may also give rise to liability. The same is true of potentially dangerous activities such as swimming.”

44.  If a non contact sport such as swimming is regarded as a potentially dangerous sport activity, so should ice skating be.  The School’s responsibility when the teacher and student are on a one on one basis is high.  In a fast sport like ice skating, it can be dangerous in a limited space such as the ice rink in question.  That is why careful and close supervision should have been given to the student under the care of the teacher and the School at all times.  Both the teacher and the School are in loco parentis for a 9 year old student such as Sze Nok.

Contributory Negligence

45.  The application of the doctrine of res ipsa loquitur may be drawn from circumstances in which the court may infer carelessness on the part of the Defendant where the claimant can show that the nature of the accident suggests both negligence and the Defendant’s responsibilities.

46.  Paragraph 3-54 of Clerk & Lindsell on Torts, page 183 stated:

“Contributory negligence of children Conduct on the part of a child which contributes to an accident will not necessarily be judged in the same light as similar conduct by an adult. What is negligence in an adult is not necessarily negligence in a child. The exercise of “ordinary care must mean that degree of care which may reasonably be expected of a person in the [claimant’s] situation”, which in the case of a very young child could be nil.………….

In considering whether a child has taken reasonable care for his own safety regard must be had to the age of the child, the circumstances of the case and the knowledge by the particular child of the dangers to which the defendant’s negligence has exposed him.  In Gough v Throne, Lord Denning M.R. said that a very young child cannot be guilty of contributory negligence; an older child may be, but it depends on the circumstances.  A judge should only find a child guilty of contributory negligence if he or she is of such an age as reasonably to be expected to take precautions for his or her own safety.  This is not an entirely subjective test, because the question is whether an “ordinary child” of the claimant’s age could be expected to have done any more than the claimant, and an ordinary child is neither “paragon of prudence” nor “scatter-brained”.  Theoretically, there is no age below which, as a matter of law, it can be said that a child cannot be guilty of contributory negligence, but in practice it is unreasonable to exact a high standard.”

47.  In this case, the School had suggested a possible cause of the accident, I do not find the proposition a plausible one for reasons referred to in paragraph 32 above.

48.  In measuring the weight on the scale, I find from the surrounding circumstances before and after the accident and from the evidence of Sze Nok, whom I find to be an honest witness who is timid and complaint, the most plausible explanation is that the distance between Samantha and Sze Nok had narrowed to 1 metre or below, when Samantha raised her right leg to hip level behind her, she failed to ascertain Sze Nok’s close proximity to herself, her raised leg accidentally collided with the head of Sze Nok thus causing the injury.

Volenti non fit injuria

49.  The latin maxim means ‘no wrong is done to one who consents’.  Mr. Li submitted that Sze Nok or her parents had agreed to the ice skating lessons and therefore the School is absolved from legal responsibility by conduct.  That Sze Nok or her parent should have full knowledge of the nature and extent of the risks Sze Nok had assumed.  As to this defence of consent, there is no better answer than the example given by the authors of Clerk & Lindsell on Torts Chapter 3 paragraph 3-73 at page 195:

“……….For example, a claimant can consent to an invasion of his personal integrity through, save, participation in a contact sport, but he does not thereby agree to accept the risk of negligently inflicted damage during the course of the game. A patient can consent to surgery, but she does not thereby assume the risk of the operation being performed negligently. The requirements for a successful plea of volenti non fit injuria are significantly more stringent than, for example, a simple consent to physical contact (whether socially, or in a sporting or medical context).”

50.  Lord Denning in the case of Nettleship v. Weston [1971] 2QB 691 at 701 said:

“Now that contributory negligence is not a complete defence, but only a ground for reducing the damages, the defence of volenti non fit injuria has been closely considered and in consequence, it has been severely limited. Knowledge of the risk of injury is not enough. Nor is the willingness to take the risk of injury. Nothing will suffice short of an agreement to waive any claim for negligence. The [claimant] must agree, expressly or impliedly to waive any claim or any injury that may befall him due to the lack of reasonable care by the defendant.”

In paragraph 3-80 at page 199 of Clerk & Lindsell on Torts the authors continued:

“On this approach there must be an agreement of some kind, express or implied, before the relevant act of negligence by the defendant occurs.  The claimant’s decision to run a known risk which had already been created by the defendant’s negligence could not constitute volenti.  Similarly, in Wooldridge v Sumner, Diplock L.J. said that: “The consent that is relevant is not consent to risk of injury but consent to the lack of reasonable care that may produce that risk.”  The claimant could not have agreed to run the risk that the defendant might be negligent because the claimant would only play his part after the defendant had been negligent.”

51.  I do not find Sze Nok had in any way contributed to the accident.  As a child, her conduct cannot be viewed in the same way as an adult.  It is the duty of her coach to look after her safety and to make sure that the student under her charge should learn in a safe manner.  Constant attention should have been paid to the student, that was why Sze Nok’s parents sent her to a private lesson rather than a group lesson.  The School owes a responsibility to all students of the School.  The School is liable not only as the employer of the teacher and as an occupier, but also for failing to provide sufficient protection to its students during ice skating lessons.  There should be safety equipment such as helmets, knee pads and guards to protect students from injury during lessons.  Students should be warned and given lessons on safety on the ice rink.  There should be safety manuals distributed to all students and posted up in the School area.  Further, coaches should ensure that students, with the exception of those performing or taking examinations in figure skating, have taken all precautions including the wearing of protective gear while skating on the ice rink.

Conclusion

52.  Based on the aforesaid reasons, I find the School negligent both under common law and occupier’s liability for the injury sustained by Sze Nok.  As the parties have agreed the quantum of damages at $160,000, the School is liable to pay to Sze Nok the sum of $160,000 as compensation for her injuries.

Interests

53.  Interests to be payable from the date of trial to the date of judgment at half judgment rate, thereafter at judgment rate until full payment.

Costs

54.  Costs should follow the event.  The Defendant shall pay the Plaintiff’s costs to be taxed if not agreed with certificate for Counsel.  Should there be no application within 14 days of the judgment, the cost nisi order will be made absolute.  The Plaintiff’s own costs to be taxed in accordance with Legal Aid Regulations.

( H.C. Wong ) District Court Judge

Parties :

Mr. John Wright instructed by Messrs. Bough & Co. assigned by Director of Legal Aid for the Plaintiff.

Mr. Andrew Li instructed by Messrs. W.K. To & Co. for the Defendant.

DCPI 1470/2007

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO. 1470 OF 2007

------------------------

BETWEEN

	LEUNG SZE NOK, a minor by next friend LEUNG YUEN FAT	Plaintiff
	and
	TSUEN WAN PROPERTIES LIMITED trading asRIVIERA ICE CHALET	Defendant

------------------------

Coram: Deputy District Judge Raymond Tsui in chambers (open to the public)

Date of Hearing: 21^st April 2009

Date of Handing Down Decision: 22^nd May 2009

 

------------------------

DECISION

------------------------

 

1.  This is an application by the Defendant by a summons (the “Summons”) dated and filed on 5^th September 2008 under Order 26 of the Rules of the District Court for leave to serve on the Plaintiff interrogatories attached thereto (the “Interrogatories”).  

Background 

2.  An accident happened on 4^th February 2006 to the Plaintiff who was aged about 9 at that time. She now sues by her next friend Mr Leung Yuen Fat, her father (“Mr Leung”).  

3.  The pleaded case of the Plaintiff is that the accident happened at the premises situate at 3/F, Riviera Plaza, 28 Wing Shun Street, Tsuen Wan which were operated by the Defendant as an ice skating rink (the “Skating Rink”) and that the Defendant was the occupier of the Skating Rink within the meaning of the Occupiers Liability Ordinance, Cap. 314. 

4.  In addition to operating the Skating Rink, the Defendant also provided coaches to give skating lessons to children. The Plaintiff was one of the children who had been receiving skating lessons from the coaches of the Defendant.

5.  On 4^th February 2006 at about 9 a.m., Ms Samantha Ho (“Ms Ho”) of the Defendant was conducting the Plaintiff’s private skating lesson. Paragraph 3 of the Statement of Claim reads as follows: 

“3.    (1)   On 4^th February 2006, at or about 9 a.m., the Defendant’s Samantha Ho was conducting the [Plaintiff’s] private lesson in the Defendant’s said premises; 

  (2) In the course of the lesson, Samantha Ho instructed the [Plaintiff] to follow behind her leading in front to teach, demonstrate and carry out a skating manoeuvre known as “左腳飛機”;

  (3) The [Plaintiff] accordingly pursuant to instruction and direction followed behind Samantha Ho in the manoeuvre when the [Plaintiff] felt blood flowing down her head.”

6.  The principle of res ipsa loquitur is also pleaded. 

7.  The Plaintiff was sent to hospital after the accident. Open depressed fracture of skull vault with cerebral contusion and epidural haematoma was confirmed. Craniotomy operation was required. 

8.  The accident was alleged to have been caused by the negligence and/or breach of statutory duty of the Defendant and/or its agents or servants. Particulars of the negligence and/or breaches of statutory duties are set out in the Statement of Claim. It is sufficient for me to say that those particulars do not set out how the accident happened.  

9.  Witness statements were exchanged. Discovery was also completed. There were CCTV tapes for the Skating Rink for the material times. According to Mr Anthony Gomes, the manager of the Skating Rink and who would be one of the witnesses of the Defendant, the images of the CCTV cameras were recorded in sequential manner. He had viewed the tapes and found that the accident was not recorded in the tapes which were then erased. 

10.  The Plaintiff also filed a very short witness statement. She said in the witness statement the translation of which is set out in full as follows:

“1.     At that time, I was taking an ice skating lesson and SAMANTHA was my coach. 

2.       At that time, only SAMANTHA and I were there. She taught and demonstrated to me the manoeuvre of left leg forward arabesque. She glided a few steps and I followed her manoeuvre.

3.       She was ahead of me and I was behind her.

4.       Suddenly, I had the kind of painful feeling that my abdomen was hit by something. And then, I found my head bleeding.

5.       I held my abdomen. My coach and another coach at the rink carried me away from the rink and laid me down on a bench. And then, ambulancemen took me to hospital.”  

11.  Mr Leung filed a witness statement. He was not at the Skating Rink when the accident happened. But attached to his witness statement is a chronology of events starting from the date of the accident. Paragraph 5 of the entry on 10^th April records the following:

“ … [the Plaintiff] was very frightened at that time, but she can remember that her head did not hit the ice surface and she did not feel cold on the head. [The Plaintiff] thinks that she may have been kicked by her coach (SAMANTHA HO) when SAMANTHA was raising or lowering her foot. The Plaintiff also thinks that it was not possible that she could have been kicked by her own skate …”

12.  It should be noted that the above extract from Mr Leung’s witness statement does not appear in the witness statement of the Plaintiff. Insofar as Mr Leung repeats what the Plaintiff thinks and remembers, the same is hearsay evidence. It could further be gathered from the witness statements filed on behalf of the Plaintiff that there is no direct evidence from all the Plaintiff’s witnesses as to how the accident actually happened. 

13.  Ms Ho also filed her witness statement for the Defendant. The relevant parts are extracted below: 

“3.     As I was demonstrating right leg forward arabesque, I heard a scream behind me. Therefore, I turned round to have a look behind me. And, I saw that the Plaintiff knelt down on the ice. Hence, I immediately went to the Plaintiff to see her condition. I saw that the Plaintiff knelt down on the ice surface with her hands holding her abdomen. At that time, I thought that the Plaintiff might be having a stomach ache. Therefore, Vincent … and I immediately carried the Plaintiff in our arms to the skate changing area of the said Rink and laid her down there. It was at that time that we found that the left side of the Plaintiff’s head was bleeding … (italics added) 

   …

9.       During the accident, I was gliding at a low to medium speed and was at a distance of more than 3 metres from the Plaintiff. While I was demonstrating right leg forward arabesque to the Plaintiff, my left leg which I extended backward and raised or the blade of my left skate did not come into contact with the Plaintiff or anything. If my left leg or the blade of my left skate had come into contact with anything (including the Plaintiff), I must have sensed that. With the Plaintiff’s skating skills, she should not have any difficulty at all in following my gliding speed at that time. Therefore, I believe that the plaintiff lost her balance and fell down while imitating the right leg forward arabesque which I was demonstrating.”   

14.  The only witness that allegedly had witnessed the accident is Mr Yau Wing Shing who was one of the coaches of the Defendant.  He is a witness of the Defendant. He says in his witness statement: 

“2 … At that time, I saw that SAMANTHA was demonstrating a series of manoeuvres to [the Plaintiff] … And, the Plaintiff was following SAMANTHA at a distance of about 10 feet, observing and imitating. Whilst SAMANTHA was demonstrating the manoeuvre of right leg forward arabesque to the Plaintiff and the Plaintiff was imitating the same manoeuvre, I saw that the Plaintiff fell down on the ice surface. Having seen the situation, I immediately told SAMANTHA about it and went forward to have a look at the Plaintiff’s condition. And, I saw that the left side of the Plaintiff’s head was bleeding. Therefore, SAMANTHA and I immediately carried the Plaintiff in our arms to the skate changing area of the said Rink and laid her down there and then called an ambulance …”   

15.  The paramount principles in relation to an application under Order 26 of the Rules of the District Court are that leave would only be granted “to such only of the interrogatories as it considers necessary either for disposing fairly of the cause or matter or for saving costs…”. 

16.  In deciding whether to give leave, the court shall “take into account any offer made by the party to be interrogated or to give particulars, make admission or produce documents relating to any matter in question.” (underling added) I note that there was no offer made by the Plaintiff. 

17.  A minor amendment to paragraph (2A) of Order 26 rule 1 was introduced under the Civil Justice Reform which took effect on 2^nd April 2009 in that the words “or to give” underlined above were replaced by the words “to give”. Both Ms Liu, solicitor appearing for the Plaintiff, and Mr Tam, solicitor appearing for the Defendant, agreed that the amendment did not alter the legal position. I agree. It appears that on a true and proper construction, the word “or” was redundant in the pre-amended version of the rule. 

18.  In Ascoba Company Limited v SAFCO Express Services (HK) Limited (DCCJ No. 6161/2003, 3^rd August 2005), HH Judge Ng had succinctly set out in paragraphs 18 to 20 of the Judgement the principles relating to administration of interrogatories. Ms Liu and Mr Tam did not dispute the principles applicable. I respectfully adopt in this application the same principles as set out by HH Judge Ng. 

19.  Attached to the Summons are eight interrogatories. At the hearing, Mr Tam informed the court that he would not pursue Interrogatories No. 7 and No. 8 to avoid unnecessary argument.

20.  The general thrust of the argument of Mr Tam was that as the pleadings and the witness statements filed by the Plaintiff now stood, the Defendant was totally in the dark as to what the case of the Plaintiff was in relation to how and under what circumstances the accident happened. Mr Tam argued that the Plaintiff even had not pleaded which part of the Plaintiff’s body was hit. From the witness statement of the Plaintiff, it appeared that the Plaintiff was suggesting that the Plaintiff’s abdomen was hurt. Yet it was her head that was bleeding. 

21.  Mr Tam also argued that the Defendant was entitled to know the case it had to meet. He further pointed out that the only way the Defendant could guess the Plaintiff’s possible case was from the alleged conversation between the Plaintiff and Mr Leung as shown from the extract from Mr Leung’s witness statement above.  

22.  In reply, Ms Liu argued that the Plaintiff was at the material time in the care of Ms Ho and the Plaintiff was following what she was instructed to do. The Plaintiff had set out all she knew about the accident. The dispute was whether Ms Ho was demonstrating right or left arabesque. She also pointed out that the various medical reports had recorded injury to the left parietal region of the Plaintiff.

23.  Ms Liu also drew my attention to the joint medical report of Dr Brian Chao and Dr Woo in which Dr Chao reported that the Plaintiff told him that she had stooped but not fallen and that she could not recall any impact to her head but notice blood dripping from her scalp. Dr Chao further ventured to suggest that “[f]rom the shape of the injured area, best described as a hole in her skull without a linear crack, it seems more likely that this was inflicted by a small sharp or sharpish object than a fall on to a flat surface.” He further suggested that from the measurements jointly taken, it was “possible for the skate of an adult to have inflicted the wound if the adult dropped her foot and [the Plaintiff] had got close to her.” Dr Chao also noted that from the experiment jointly carried out by the two doctors, the Plaintiff could not have inflicted the injury on herself with her own skate. Dr Woo confined his opinions to the medical conditions of the Plaintiff and made no comment on the possible cause of the accident.   

24.  The observations of Dr Chao are, of course, not conclusive and are subject to the weight to be accorded to them at the trial. 

25.  Ms Liu argued that the Plaintiff had already set out all she knew and that the witness statement of the Plaintiff and the various medical reports could help the court to draw an inference that the accident was caused by the negligence of Ms Ho. Ms Liu also pointed out that as a result of the witness statement of Mr Yau Wing Shing, the Defendant in fact knew better than the Plaintiff did. 

26.  In reply, Mr Tam pointed out some inconsistencies in the evidence of the Plaintiff. For example, the report of the A&E Department of Yan Chai Hospital shows that the injury was at the back of the head and thus the Plaintiff could not sustain such injury if both the Plaintiff and Ms Ho were doing the manoeuvre of forward arabesque. He also pointed out that if it was the case of the Plaintiff that she did not know what actually happened, there was no such evidence from the Plaintiff. 

27.  Mr Tam cited Tam Chun Pui v Hip Hing Engineering (Macau) Co Ltd & Ors (DCEC No. 628/2006, 14^th December 2006) in support. In Tam Chun Pui, the applicant sustained injury when he was installing anti-heating plates when one of the plates suddenly fell down and hit his left wrist. Particulars of the accident were not given in the Application or the witness statement. The respondents applied for leave to serve interrogatories which were related to the circumstances of the alleged accident. The applicant objected on the ground that the interrogatories were not relevant to the proceedings, the reason being that the interrogatories were directed to fault of the parties and that liability under the Employees’ Compensation Ordinance was not fault-based. HH Judge Ng ruled that the interrogatories were not necessarily directed to the issue of fault and that they were equally concerned with the issue of whether there was an accident and if so whether it arose out of and in the course of employment. They might thus form a step in resolving the question of liability. The interrogatories were allowed. The interrogatories, however, were not set out in the Judgement. It is trite law that objection against interrogatory must be judged in the context of the particular interrogatory and all the surrounding circumstances. As such, I do not think that the case Tam Chun Pui could be of much help to Mr Tam.  

28.  Mr Tam cited Hui Sui Hop v Ng Chiu Construction Co & Anr (CACV No. 108/1994, 16^th November 1994) for the proposition that where a party fails to apply to set aside the interrogatories, they ought to be answered. Mr Tam acknowledged that the principle did not apply in the present case as Order 26 under the Rules of the High Court and Order 26 under the Rules of the District Court were different. He said that the Defendant had been co-operative in providing information to the Plaintiff. He suggested that since the Plaintiff had failed to disclose material information, the court could draw an analogy between Hui Sui Hop and the present case.

29.  But a close reading of the judgement of Hui Sui Hop reveals that the proposition was premised on the fact that the interrogatories were proper (see paragraphs 11 and 12 of the judgement). In this application, however, whether the Interrogatories were proper was in dispute.  

30.  In any event, I do not see any analogy between these two cases. Whether the parties had been cooperative is neither here nor there. The ultimate consideration is always whether the interrogatories fall within the established principles. 

31.  Against these backgrounds and arguments, I proceed to examine the Interrogatories. 

Interrogatory 1

32.  Interrogatory 1 is in the following terms:

“Please describe with details, when, where and how Leung Sze Nok told her father Mr Leung Yuen Fat that she believed that it was her coach Samantha Ho Sum Yee (“Samantha Ho”) who hit her head when Samantha Ho raised or lowered her leg.”

33.  This Interrogatory relates to the chronology attached to the witness statement of Mr Leung mentioned above. 

34.  I do not see how this Interrogatory is relevant to any issue save that relating to the credibility of the Plaintiff. Mr Tam suggested that if the Plaintiff could tell her father, she could say so in her witness statement. This is clearly an attack on her credibility. It is not the case where the Plaintiff has chosen not to disclose their case but she has chosen, for her own reasons, to introduce the evidence through Mr Leung. It is a matter of weight to be accorded to such evidence. In any event, such matters could be elicited during cross-examination of the witnesses without the Defendant being caught by surprise. I do not see any prejudice being caused to the Defendant. I would not allow Interrogatory 1. 

Interrogatory 2 

35.  Interrogatory 2, which is a follow-up question on Interrogatory 1, is in the following terms:

“Please state on what basis with reference to any facts or evidence relied upon by Leung Sze Nok such belief was held.”

36.  Strictly speaking, there is no direct evidence from the Plaintiff that she did hold this belief. The only evidence in this respect is that of Mr Leung who was told by the Plaintiff that she had such belief. Leaving that aside, the basis of the belief of the Plaintiff is a matter of evidence and cross-examination which again goes to the credibility of the Plaintiff. I would not allow this Interrogatory. 

Interrogatory 3 

37.  This Interrogatory is in the following terms:

“Please describe with particularity what the posture of “left-leg aeroplane’ (左腳飛機) composed of.”

38.  This Interrogatory clearly relates paragraph 2 of the witness statement of the Plaintiff and paragraph 3(2) of the Statement of Claim. Such being the case, the Defendant could have served a request for further and better particulars on the Statement of Claim on the Plaintiff. 

39.  I note that the information sought does not relate to how the accident happened. Thus the argument of Ms Liu that the Plaintiff did not know how the accident happened does not apply. Instead, the Interrogatory relates to the issue how the Plaintiff understood the manoeuvre of “left-leg aeroplane” was to be performed. This would show the posture of the Plaintiff at the material time as she was, as pleaded in the Statement of Claim, following the instructions to perform the manoeuvre. This may shed some light on how the accident happened. 

40.  One of the arguments against allowing this Interrogatory was that it should have been a subject matter of a request for further and better particulars. Mr Tam argued that to go back and prepare a request for further and better particulars would only increase costs. That may be true. But that does not detract from the fact that the information sought should have been in the form of a request for further and better particulars. In my view, the real test should be whether the Interrogatory is necessary either for fairly disposing of the cause or the matter or for save costs. 

41.  As far as this Interrogatory 3 is concerned, I am satisfied that a litigious purpose could be served in that the Defendant would be in a better position to understand what the probable posture of the Plaintiff was at the material time which would in turn have some bearing on the issue of liability. I would allow Interrogatory 3.

Interrogatory 4 

42.  Interrogatory 4 is in the following terms:

“Please state the distance between Samantha Ho and Leung Sze Nok before Samantha Ho demonstrated “left-leg aeroplane” (左腳飛機) and the distance between Samantha Ho and Leung Sze Nok when Leung Sze Nok started to follow Samantha Ho from behind.”

43.  This Interrogatory relates to paragraphs 3(2)and 3(3) of the Statement of Claim and paragraphs 2 and 3 of the witness statement of the Plaintiff. 

44.  Paragraph 26/4/12 of Hong Kong Civil Procedure 2009 reads as follows:

“ … Where the plaintiff is suing for damages for personal injuries sustained at work, an interrogatory seeking an admission by the defendant as to where the plaintiff was standing when he was injured will not usually be allowed. This applies especially when the answer is peculiarly within the plaintiff’s knowledge and not the defendant’s. In a running-down action, interrogatories will not usually be ordered as to facts relevant to the issue of negligence --- e.g. how far the plaintiff was when the defendant first saw him, what steps the defendant took to avoid him, at what speed the defendant was driving…”

45.  The above extract covers this Interrogatory which should not be allowed. 

46.  In support of his application, Mr Tam cited Griebart v Morris [1920] 1 KB 659 in which the plaintiff was hit by an omnibus. She could not locate any witnesses and she was so seriously injured that she might not be able to give a full account of the position when the accident happened. She thus applied for leave to administer the interrogatories on, inter alia, the relative positions of the parties. Leave was granted on appeal by the Court of Appeal.  

47.  Scrutton LJ commented at p. 666:

“The result is that there is a right to interrogate in order to obtain an admission if the interrogatory is considered necessary for disposing fairly of the action. In the present case the plaintiff, in the absence of witnesses on her behalf who saw the accident, desires to obtain admissions of fact from the defendant as to which she on account of the sudden nature of the occurrence and of the serious injuries which she sustained cannot herself give any satisfactory evidence.”

48.  I would regard Griebart v Morris as an exception to the general rule because of its special circumstances. The requesting party in Griebart v Morris was the plaintiff who bore the burden of proof. The circumstances were such that the defendant was the only party who could give the requested information. It would be unfair to the plaintiff if she were to be denied the information.  

49.  Our case is different. As could be gathered from the witness statements for the Defendant, Mr Yau Wing Shing saw the accident. Ms Ho says in her witness statement that she did not sense that her leg or the blade of the skate had come into contact with the Plaintiff. The burden of proof was on the Plaintiff, not the Defendant, to prove that the accident did happen. There is no unfairness to the Defendant if this Interrogatory is disallowed. I would not allow this Interrogatory 4.  

Interrogatory 5 

50.  Interrogatory 5 is in the following terms: 

“Please state in details whether Leung Sze Nok had fallen onto the ice surface at the moment when:- (1) she felt painful at her abdomen like being hit by something; and/or (2) she found that her head was bleeding.” 

51.  This Interrogatory relates to paragraph 4 of the witness statement of the Plaintiff. I note that there is no mention either in the Statement of Claim or the witness statements of the Plaintiff and her witnesses that the Plaintiff had fallen onto the surface of the Skating Rink at the time of the accident. As such, there is simply no basis for this Interrogatory. Furthermore, as I see it, the only purpose of this Interrogatory is to attack the credibility of the Plaintiff which could be attained in cross-examination. I would not allow Interrogatory 5. 

Interrogatory 6 

52.  Interrogatory 6 is in the following terms: 

“Please describe in details the full circumstances and sequence of events leading up to the alleged accident and injury to Leung Sze Nok from the stage when she started following Samantha Ho from behind to practise “left leg aeroplane” until she felt painful at her abdomen and found her head bleeding.”

53.  This Interrogatory relates to paragraph 3(3) of the Statement of Claim and paragraph 4 of the witness statement of the Plaintiff. Mr Tam suggested that these two paragraphs were inconsistent. Interrogatory 6 should be allowed so that the Defendant would know which version the Plaintiff would rely on at the trial. 

54.  I express no views on whether these two paragraphs are inconsistent. But it is clear that the purpose of this Interrogatory is to pin down the case of the Plaintiff. There is nothing wrong with this. But if there are already two inconsistent versions, this Interrogatory would not be necessary as it is an attack on the credibility of the Plaintiff and would only increase costs. It should also be noted that the Plaintiff has set out the events leading to the injury. They may not be sufficient from the Defendant’s perspective. But I think further information could be elicited during cross-examination and I do not see any prejudice being caused to the Defendant. 

55.  In any event, the extract from paragraph 26/4/12 of Hong Kong Civil Procedure 2009 mentioned above when Interrogatory 4 is discussed also covers this Interrogatory.

56.  I would not allow Interrogatory 6. 

57.  Both Ms Liu and Mr Tam agreed that Order 80 rule 9 applied to the present case so that Mr Leung, the next friend of the Plaintiff, could make an affirmation to answer Interrogatory 3. 

58.  The Orders I shall make are as follows:

(a)     Leave is granted to the Defendant to serve on the Plaintiff Interrogatory 3 attached to the Summons;

(b)     Service of Interrogatory 3 on the Plaintiff be dispensed with; 

(c)     Mr Leung Yuen Fat, being the next friend of the Plaintiff, shall file and serve an Answer to Interrogatory 3 by way of affirmation within 28 days from the date hereof;

(d)     Out of the six Interrogatories, the Plaintiff has successfully defended five. In the circumstances, she has substantially won the application. The fair cost order should be the Defendant shall pay 5/6 of the costs of the Summons to the Plaintiff, to be taxed if not agreed. This shall be the cost order nisi and shall become absolute in 14 days;     

(e)     the Plaintiff’s own costs be taxed according to Legal Aid Regulations. 

 

 

(Raymond Tsui) Deputy District Judge

Representation:

Ms Alison Liu of Messrs Bough & Co., assigned by the Director of Legal Aid,for the Plaintiff.

Mr. Wilson Tam Wai Kay of Messrs W. K. To & Co. for the Defendant.