Chiu Yuen Yuen v Buckingham Banquet Ltd T/a Buckingham Restaurant

Judgment Date25 July 2019
Neutral Citation[2019] HKDC 929
Judgement NumberDCPI2856/2015
Subject MatterPersonal Injuries Action
CourtDistrict Court (Hong Kong)
DCPI2856/2015 CHIU YUEN YUEN v. BUCKINGHAM BANQUET LTD t/a BUCKINGHAM RESTAURANT

DCPI 2856/2015

[2019] HKDC 929

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 2856 OF 2015

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BETWEEN

CHIU YUEN YUEN Plaintiff
and
BUCKINGHAM BANQUET LIMITED Defendant
trading as BUCKINGHAM RESTAURANT

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Before: Deputy District Judge Barbara Wong in Court
Dates of Hearing: 14, 15, 26 and 27 March 2019
Date of Judgment: 25 July 2019

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JUDGMENT

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A. BACKGROUND

1. Madam Chiu Yuen Yuen (“Madam Chiu”) was a frequent patron of the Buckingham Restaurant (“the Restaurant”). As a housewife, she would usually do housework in the mornings and three times a week, she would join her son and husband for afternoon tea at the Restaurant where she would help her husband with his taxi rental business. At about 2:30 pm, 8 January 2015, upon entering the Restaurant and while proceeding to a table in the dining area, she tripped on the metallic leg of a screen put up near the entrance. She fell to the floor and was, unfortunately, injured. This case is about Madam Chiu’s claim against the owner and operator of the Restaurant for compensation for the injuries she suffered.

2. The owner and operator of the Restaurant was originally named as “Come Profit Limited”, but later company searches showed that the owner and operator at the time was actually Buckingham Banquet Limited. On the first day appointed for the hearing, the plaintiff was represented by Mr B Lau, Solicitor of Liu, Chan & Lam, Solicitors, who had taken over the case from another Solicitor firm since April 2018, and the defendant appeared by one of its directors, Mr Fung Ka Lok (馮嘉樂) (“Mr Fung”). After hearing submissions, I gave leave to the plaintiff to amend the Writ to name the defendant as Buckingham Banquet Limited (“Buckingham”) instead of “Come Profit Limited”. I ordered service of the Amended Writ to be dispensed with, and there be no order as to Costs.

3. The trial was adjourned to the following day, namely 15 March 2019 for Mr Fung, who was acting for the defendant, to contact the defendant’s insurers to see if legal representation would be assigned to the defendant, with the amended identity (Buckingham). Mr Fung informed the Court that the defendant was still awaiting reply from the Insurer, while he also made enquiry with the Court as to whether he needed to get another authorization from the newly named Defendant Company, as previously he was only authorized by Come Profit Limited. Mr Fung’s attention was drawn to Order 5A of the Rules of the District Court, whereby he needed to make another duly deposed affirmation to evidence that he was duly authorised to act for the defendant if it appeared in person.

4. The plaintiff’s Solicitor Mr Lau fairly informed the Court that since the Basic Law guarantees legal representation, he did not object to adjourning the case for a short while to allow the defendant more time to liaise with its insurer to see if legal representation would be assigned and also to see if amicable settlement could be reached.

5. The trial began on 26 March 2019, on the basis of the amended Writ and also the defendant’s production of a duly prepared board resolution authorising Mr Fung to act for the defendant in these proceedings. The proceedings went on for another full day, the following day.

6. Madam Chiu continued to be represented by Solicitor, Mr Lau, while Buckingham, having failed to have legal representation assigned to it, continued to be represented by Mr Fung. Madam Chiu and Mr Yeung Yun Fat (楊潤發), Manager of the Restaurant (“Mr Yeung”), gave oral evidence at the hearing, with their respective witness statements admitted as evidence-in-chief.

7. Mr Fung’s Written Opening cited a number of cases to support the defendant’s intended contentions at the trial. He obviously had the help of a backroom lawyer. Despite the Court’s decision to allow the amendment (ie to amend the Writ to name the defendant as Buckingham Banquet Limited (“Buckingham”) instead of “Come Profit Limited”), the defendant in its opening argued on the back of the Court of Final Appeal’s decision in Mak Kong Hoi v. Ho Yuk Wah (2007) 10 HKCFAR 552 that since the plaintiff had agreed in her pleadings that “Come Profit Limited” was the defendant, she must be bound by it and therefore the case against Buckingham Banquet Limited should be dismissed. This submission was misguided and constituted a complete misunderstanding of the Court of Final Appeal’s decision cited. Among the many points canvassed in that case, it dealt with a pleading point unlike that in our case. That case dealt with a court’s ability to ensure a fair trial if the Court had dealt with an un-pleaded point and the other party did not have a fair opportunity to meet the case against him. The facts of the case before this Court are far from the circumstances canvassed in the Court of Final Appeal case. Mr Fung did not come back to the point in final submissions. Although not explicitly abandoned, I believe that Mr Fung did finally realise that the point was a thoroughly unarguable one. For the avoidance of doubt, I rule this submission irrelevant to the present case and without legal merit in any event.

8. As is usual in a trial of this nature, the defendant denies liability, and contends that if liability be found, there should be a finding of contributory negligence. The defendant also contends that the amount of loss quantified by Madam Chiu, was excessive.

9. At the conclusion of the trial, Madam Chiu, through her legal representative (Mr Lau, Solicitor), quantified her claim as follows:-

(i) Pain, Suffering, and Loss of Amenity $230,000
(ii) Damages for deprivation of household services to family $39,690
(iii) Pre-trial medical, transportation and out of pocket Expenses $6,000

B. EVIDENCE

The Factual Evidence

10. It is not in dispute that the accident was the result of Madam Chiu having had her right foot caught by the metal leg of a screen placed near the entrance of the Restaurant, and losing her balance, she fell to the floor, thereby sustaining injury. The screens were placed to screen off repair works being undertaken to the air-conditioning system of the Restaurant. Mr Yeung said in evidence that it was not possible for the Restaurant to have these works undertaken and completed, outside of business hours.

11. It was agreed that the photographs of the layout of the Restaurant admitted into evidence, though taken after the accident, showed that the dining area was made up of three rows of individual tables. Looking in from the entrance, the central row was separated from each of the left and right rows by a passageway on each side. The width of each passageway was agreed to be about 150 cm (5 feet). A patron coming into the Restaurant had the choice of walking to any table in the dining area, by using either left or right passage. The carpeted floor had a purple and beige coloured swirling pattern. The dining area was well lit by fluorescent lighting.

12. On the day of the accident, it was not disputed that a set of screens were placed at the position of the front table of the right row of tables. The photographs, though taken after the accident, depicted that at the time of accident, 3 screens were deployed, one facing the right passageway of the dining area, one perpendicular to this screen, and one perpendicular to the previous screen in turn, forming a horseshoe shape, serving to screen off the repair works in progress from the dining area.

13. Each screen was supported by two sets of metallic arches, enabling the screen to stand firmly on the floor. Each arch was made up of two metallic feet, each resting on a rubber wheel. It is not in dispute that the distance between the two rubber wheels holding up each metallic arch was 30 cm, measured horizontally. This meant that the feet of each metallic arch supporting one of the screens would protrude 15 cm (6 ins) horizontally onto the floor of the passageway on each side of the screen. The screen at the right hand passage way of the dining area, therefore, had 15 cm or 6 ins of metallic feet protruding onto the passageway, creating an obstruction, albeit small, to the traffic using this passageway.

14. Madam Chiu in her oral testimony stated that prior to the accident, she had been a regular visitor to the Restaurant, and she acknowledged that she knew the layout of the Restaurant. On the day of the accident, she wore trainers or sports shoes. It was usual for her to go there for afternoon tea with her husband, who used the restaurant for collecting taxi rent from taxi drivers and also the afternoon tea was reasonably priced.

15. She noticed that on the day of the accident, that the restaurant was quite crowded (都幾多人). She also noticed that there were screens screening off what she thought were repair works from the dining area of the Restaurant. She estimated the width of the passage to be about 80 cm, contrary to the evidence of Mr Yeung, but in the end, there was agreement that the width of the passage was about 150 cm, 5 feet.

16. Madam Chiu also testified that at the time of the accident, she entered the restaurant and walked in the direction of the right passageway. While using this passageway[1], she saw that there was a trolley parked on the left side at a table in the middle row of tables[2], and there were two customers making their way out in this passageway, thus making the passageway even more narrow for her to walk. While the plaintiff’s solicitor Mr Lau in cross examining the Defence Witness Mr Yeung said that Madam Chiu could not tell what kind of trolley was involved, Madam...

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