DCPI353/2012
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
PERSONAL INJURIES ACTION NO 353 OF 2012
--------------------
BETWEEN |
| | OU JIANPING | Plaintiff |
and |
| | HONG KONG HOUSING AUTHORITY | Defendant |
--------------------
| Before : HH Judge Wilson Chan in Court |
| Dates of Hearing : 14-16, 20 and 31 May 2013 |
| Dates of Further Written Submissions : 5 June 2013 (plaintiff) and 7 June 2013 (defendant) |
| Date of Judgment : 20 June 2013 |
---------------------
JUDGMENT
---------------------
Introduction
1. On 7 April 2010, the plaintiff in this action suffered an accident in a public residential estate known as the Tin Yuet Estate (the “Estate”), which is situated in Tin Shui Wai, Yuen Long. At the material time, the plaintiff was residing in one of the residential blocks of building in the Estate known as Yuet Fu House. As a result of the accident, the plaintiff sustained severe injury to her left knee.
2. In the present case, the defendant was at all material times the property manager of the Estate, who was responsible for, inter alia, the management of the Estate.
3. According to the plaintiff, she sustained bodily injuries by tripping over a nail protruding from the ground whilst she was walking back to her home in the Estate.
4. On such basis, the plaintiff commenced the present action against the defendant for damages.
5. According to the plaintiff, she was tripped by a protruding nail with a height of around 1.5 cm above the ground level at the concrete part of the ground near the ditch shown at the lower photograph on page 190 of the trial bundle (which was located closer to the fourth pillar and was in the space between the fourth and the fifth pillars of the covered walkway). The plaintiff was not aware of the existence of the nail at the time of the accident but was sure that she was tripped by a hard object. It was not until 21 April 2010 (the day after she was discharged from hospital) when she discovered the existence of the protruding nail on the ground. On 17 June 2010, she went to the defendant's office and lodged a complaint that she had been tripped by the nail. At that time, she copied a draft letter prepared by one of the defendant's officers without mentioning the nail. The plaintiff lodged another complaint on 28 June 2010 after receiving a letter from the loss adjuster which she thought contained a denial of liability. On this occasion, the plaintiff wrote another complaint letter which did mention the protruding nail.
Liability
6. Obviously, a crucial issue on the question of liability is whether the plaintiff tripped herself at the ditch between the fourth and the fifth pillars (as the plaintiff alleges) or slipped and fell between the fifth and the sixth pillars (as the defendant’s witnesses allege) of the covered walkway at the Estate, and whether the plaintiff was indeed tripped by the protruding nail between the fourth and fifth pillars.
Plaintiff’s evidence on the accident
7. The plaintiff adopted her Witness Statements as part of her evidence and gave oral evidence in court.
8. The plaintiff alleges that at the material time, she was on her way home after going to Shenzhen. She entered the covered walkway at a position somewhere between the fourth pillar and the fifth pillar counting from the Ancillary Facility Block. She alleges that it was dark and the ceiling of the covered walkway had only very dim lights.
9. When she walked past the ditch, her left leg was tripped by a protruding hard object. She lost her balance and fell onto the ground. Her knee bumped against the metal cover of the ditch.
10. After the fall, the plaintiff sat on the ground. She could not stand up. According to the plaintiff, her attention was focused on her injuries and did not find out what she had tripped. She repeated that the light was dim. At the time, she did not discover the protruding nail which she had tripped on.
11. In cross-examination, the plaintiff described that after the slip, she fell towards her left side. She sat on the floor with her body facing the Ancillary Facility Block. The evidence that the plaintiff could not stand up after the fall is very significant. It means that whatever position the plaintiff was found subsequently was likely to be the same location where the accident happened.
12. The plaintiff called her husband and son using her mobile telephone and waited for assistance.
13. A female security guard, later known to be Madam Wong Wai Kuen (“Madam Wong”) happened to walk past the location of the accident and made enquiries of the plaintiff's condition.
14. In the plaintiff's Witness Statement, she did not reveal that she had told Madam Wong of the previous operation on her left leg.
15. When she was cross-examined, the plaintiff spoke of the following conversation with Madam Wong:--
“Madam Wong: 小姐，咩事坐係度
plaintiff: 唔知自己做咩跌親
Madam Wong: 點解咁易跌親, 又無拎重野
plaintiff: 我20年前做過手術”
Translation
“Madam Wong: Miss, why are you seated here.
plaintiff: I do not know why I fell down.
Madam Wong: You are not carrying anything heavy, why did
you fall down so easily?
plaintiff: I had an operation 20 years ago.”
16. The plaintiff was cross-examined on why she did not tell Madam Wong that she had stepped on something hard and was tripped. The plaintiff said she did not say everything contained in her heart (無講所有心中話).
17. The plaintiff admitted that she had not told any treating doctors or medical practitioners at the Tuen Mun Hospital during her 14-days stay there that she had stepped on something hard and was tripped.
18. After discharge from hospital, she went to the covered walkway on 21 April 2010 together with her husband on a wheelchair. The purpose was to find out what had tripped her. She found the protruding nail. She alleged in her Witness Statement that the nail was protruding for 2 cm and its diameter was 1/2 cm.
19. The plaintiff complained that the nail was obviously very dangerous. The plaintiff said that the light was not bright enough for people or pedestrians to notice its existence. She repeated that if she had not been warned, she would not have seen the protruding nail as the light was dim.
Evidence of Madam Wong on the accident
20. Madam Wong frankly admitted that she did not witness how the plaintiff fell onto the ground.
21. However, Madam Wong said that there was no protruding nail near the position where the plaintiff was found (page 254 of the trial bundle).
22. She said the lighting condition at the covered walkway was sufficient.
23. She agreed that subsequent to the accident, a nail was found between the fourth and the fifth pillars of the covered walkway. However, the distance between where the plaintiff fell and the nail was around 20 feet.
24. The plaintiff never told her that the plaintiff was tripped by a nail.
Evidence of Madam Cheung Luk Mui (“Madam Cheung”) on the accident
25. Madam Cheung was the second security guard arriving at the scene of the accident. Her evidence is similar to that of Madam Wong.
26. When she arrived at the location of the accident, the plaintiff was already sitting on the ground. Madam Wong had already arrived at the scene.
27. She testified that the plaintiff had not told her that the plaintiff was tripped by a nail.
28. Madam Cheung recorded the incident in the occurrence book, a copy of the relevant page can be found at page 454 of the trial bundle.
Analysis of evidence
29. Obviously, the burden of proof is on the plaintiff to prove that the accident happened in the manner alleged by her. The standard of proof is on a balance of probabilities.
30. It is of course a question of fact for the court to determine whether the plaintiff fell at the location where there was a protruding nail or at the location alleged by Madam Wong and Madam Cheung. It is for the court to determine whether to accept the evidence of the plaintiff on the one hand, or the evidence of Madam Wong and Madam Cheung on the other.
31. The two security guards, Madam Wong and Madam Cheung, have no personal interest in the matter. There is no reason for them to tell lies to the courts.
32. It was suggested to them in cross-examination that they had made mistakes on the location where the plaintiff was found. However, both Madam Wong and Madam Cheung gave clear and unequivocal evidence that the plaintiff was found at the location between the fifth and the sixth pillars of the covered walkway. Having observed the manner in which they gave evidence in court, I find both Madam Wong and Madam Cheung to be honest and reliable witnesses. They said they could recall the location clearly as they had not encountered previously similar incidents before. They also said that the position where the plaintiff was found had a wall on her left (which would correspond to a location between the fifth and the sixth pillars of the covered walkway). There is a ring of truth to their testimony. I find it more likely than not that they have not been mistaken as to the location where the plaintiff was found immediately after the accident.
33. Furthermore, I agree with Mr Wong Chi Kwong, counsel acting for the defendant at trial, that the plaintiff's evidence has to be viewed with caution for the following reasons:--
(1) It would indeed be strange that if the plaintiff was tripped by a hard object, she did not tell Madam Wong and Madam Cheung at the scene or anybody at the hospital before her discharge. Even if the plaintiff did not find the nail at the scene, one would have expected her to mention that she was tripped by a hard object;
(2) It is even more unreasonable that she told Madam Wong and Madam Cheung that she had a previous operation which was nearly 20 years before (see: paragraph 15 above) but did not tell them that she was tripped by some hard object, which she now alleges was the cause of the accident;
(3) It is also strange that she was not interested in trying to find out what had tripped her after she fell on the ground. Nevertheless, she was able to make telephone calls to her husband and her son. The plaintiff was at the location for over 10 minutes, yet she did not notice the presence of the nail. If she was not interested in finding out what had tripped her at the scene, why was she so keen to look for the nail after her discharge from hospital?
(4) The two orthopaedic experts, Dr Wong See Hoi (“Dr Wong”) for the plaintiff and Dr Lee Po Chin (“Dr Lee”) for the defendant, agreed that as the plaintiff had pre-existing poliomyelitis, she would walk less stable than an ordinary person. She was thus more prone to slip and fall even on flat surfaces;
(5) The plaintiff alleges that the nail tripped her left leg. Bearing in mind that her left leg was the weaker leg, if it was tripped, as a matter of common sense, she could rely on her stronger right leg for support. She would not have slipped and fell to cause the injuries to the left leg as in the present case. I agree with Mr Wong that it is more probable that she simply lost balance and fell.
Conclusion on liability
34. For the reasons set out above, on a balance of probabilities I am not satisfied that the plaintiff fell at the location as she now alleges or that she was tripped by the nail. Accordingly, the plaintiff has failed to prove her claim against the defendant. The plaintiff's claim should be dismissed as she has failed to discharge her burden to prove the causation of the accident.
Quantum
35. For the sake of completeness, I shall briefly consider the question of quantum should the defendant be held liable to the plaintiff's claims.
Pain, suffering and loss of amenities (“PSLA”)
36. Both parties agree that without the pre-existing poliomyelitis suffered by the plaintiff, the award of damages for PSLA should be around HK$350,000.
37. The Court of Appeal in Liu Chun Kow Joe v Lee Sau Wing [2008] 3 HKC 433 at 446C-H discussed the effect of pre-existing disability. At paragraph 36, Cheung JA stated as follows:
“There are three possible outcomes regarding pre-existing disability of a plaintiff:
1) The plaintiff would probably go through life without being affected by the disability. If this is the case the defendant would be liable for all damage caused by his wrongful act.
2) There is a strong possibility that some other event or natural progression of the condition would have brought about the plaintiff's present state. The court would then need to assess the degree of possibility in deciding what reduction is appropriate, as in assessing the effect of other vicissitudes of life.
3) The pre-existing condition would certainly lead to disability and loss in the future. In such case, an allowance has to be made, the extent of which depends on the evidence as to when the precipitating event would have occurred.”
38. In the present case, there is no dispute between Dr Wong and Dr Lee that theplaintiff had pre-existing poliomyelitis.
39. The CT scan taken on 8 April 2010 show osteopenia and muscle atrophy indicating chronic disuse.
40. The scars on the plaintiff showed that she had 5 scars from surgery in China in 1990 while she had 2 scars from the surgery after the accident.
41. Dr Lee opines that the pre-existing weakness and shortening of the plaintiff's left limb was due to poliomyelitis. The muscle weakness, limb discrepancy and ankle deformity are the result of the pre-existing poliomyelitis.
42. Dr Wong opines that the poliomyelitis of the left lower limb largely accounts for the chronic muscle disuse and leg discrepancy of her left lower limb.
43. On such state of the evidence, I agree with the defendant's counsel that there should be a discount of 40% from the agreed starting point for the pre-existing disability, making the final award of PSLA to be HK$210,000.
Pre-trial loss of earnings
44. The plaintiff claims that she earned HK$5,000 per month prior to the accident. Her tax returns and tax assessments do not support the claim.
45. She said she worked part-time and was paid in cash. This is not in accordance with her declaration to the Inland Revenue Department (see: page 481 of the trial bundle).
46. The plaintiff told the Occupation Therapist at the Tuen Mun Hospital that she had stopped working since December 2009 (more than 3 months before the accident); that she was a housewife and did not plan for resuming work (see: page 610 of the trial bundle). Previously, she worked as a security guard (on a temporary basis), home helper and a kitchen worker.
47. I agree with the defendant's counsel that with the above evidence, the plaintiff's claim that she earned on average HK$5,000 per month prior to the accident is not supported by objective evidence. As the plaintiff had not worked since December 2009 and had no plan for resuming work, she should not be entitled to any award for loss of earnings.
Loss of MPF
48. For the same reasons set out in paragraphs 44 to 47 above, the state of the evidence is not sufficient to show that the plaintiff has suffered a loss of MPF as a result of the accident.
Loss of earning capacity
49. The plaintiff claims HK$100,000 under this head. However, as the plaintiff did not intend to resume work (see: paragraph 46 above), she therefore would not suffer any disadvantage in the labour market. I agree with the defendant's counsel that the plaintiff is not entitled to an award under this head.
Other special damages
50. The plaintiff's claim for HK$7,940.80 under this head is agreed by the defendant and should be awarded.
Future medical expenses
51. Dr Wong suggests that the plaintiff should undergo an operation to remove the metal implant in her left leg. The cost of the surgery will be around HK$30,000 to HK$40,000 if performed in the private sector. Thereafter, she would require a sick leave period of some 3 to 4 months to ensure a good recovery. The rationale of implant removal is to avoid further disaster should the plaintiff encounter another episode of injury to her left lower limb, which is not uncommon among poliomyelitis patients. The plaintiff claims HK$60,000 under this head.
52. Whilst I would regard as reasonable that the plaintiff should undergo such an operation, it is the evidence of Dr Wong under cross-examination that if the operation has to be done, the best institute to carry out the operation will be the Tuen Mun Hospital which had performed the original operation after the accident.
53. The plaintiff has all along been under the care of the Tuen Mun Hospital. Indeed, she is still being given periodic consultations at the
Tuen Mun Hospital. I agree with the defendant's counsel that the treating doctors would be the best persons to carry out the operation.
54. Further, for the same reasons stated above, there should be no loss of earnings during the period when the plaintiff will be recovering from the operation.
55. In the circumstances, I am only prepared to award the sum of HK$2,000 under this head.
Interest
56. Interest should be awarded at 2% per annum on general damages for PSLA from the date of writ until judgment. Interest on special damages should be awarded at half the judgment rate from the date of the accident to the date of judgment.
Order
57. Failing on liability, I would dismiss the plaintiff's claim against the defendant in this action.
58. I see no reason why costs should not follow the event. Accordingly, the defendant shall have the costs of this action against the plaintiff, including any costs reserved (if any). Such costs shall be taxed, if not agreed (with a certificate for counsel for the trial). The plaintiff's own costs be taxed in accordance with the Legal Aid Regulations.
59. The above order as to costs is nisi and shall become absolute in the absence of any application within 14 days to vary the same.
60. Lastly, I thank counsel on both sides for their helpful assistance in this matter.
| | ( Wilson Chan ) |
| | District Judge |
Mr Steven Lau, instructed by KW Luk & Co, for the plaintiff
Mr Wong Chi Kwong, instructed by Deacons, for the defendant