Ip Wan Fung v Cheung Wing Hong T/a Billion Restaurant Co

DCPI 1671/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO. 1671 OF 2010

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BETWEEN

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JUDGMENT

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Introduction

1. This is a personal injury claim arising from a “slip and fall” accident.

Background

2. On 30 March 2009, the Plaintiff (“Mr. Ip”) visited a restaurant known as “仟億茶餐廳 “ situated at Ground Floor, Ngau Chi Wan Village, No. 5, Fu Chi Path, Ngau Chi Wan, Kowloon, Hong Kong (“the Restaurant”) to promote food products for Tsit Wing Coffee Company Limited (“Tsit Wing”), his employer.

3. The Defendant (“Mr. Cheung”) was the operator and occupier of the Restaurant.

4. While Mr. Ip was near at the cashier counter inside the Restaurant, he stepped on some greasy and/or unknown slippery substance. He slipped, fell and sustained personal injuries.

5. Mr. Cheung was legally represented until 27 April 2011. Thereafter he acted in person. In his Defence dated 23 December 2010, Mr. Cheung denied liability and quantum of damages.

6. Notwithstanding the Unless Order of the Court given on 8 November 2011, Mr. Cheung has failed to file any witness statement or Answer to Statement of Damages (for the Unless Order, see Bundle p30). Mr. Cheung was present when the Court granted the said Order.

The Plaintiff’s Case

7. Mr. Ip is the only witness.

8. At around 4:45pm to 5:00pm on 30 March 2009, Mr. Ip arrived at the Restaurant to promote the products of Tsit Wing. Having entered the Restaurant, he walked towards the cashier counter and introduced himself to a Ms. Cheung who was working thereat. After his work, Mr. Ip intended to leave. In the course and at the doorway (still inside the Restaurant), Mr. Ip stepped on some greasy and/or unknown slippery substance. He slipped and lost his balance. He hit his head against the glass door of the Restaurant and then fell to the ground and landed on his back. He sustained personal injuries at the back and the head (“the Accident”).

9. Under cross-examination, he denied the suggestion that he was in a hurry when he was leaving the Restaurant.

10. After the Accident, Mr. Ip was sent to Queen Elizabeth Hospital (“QEH”) for medical treatment. There was local tenderness over his low back. The clinical diagnosis was back contusion. He was admitted overnight for observation and was discharged on 31 March 2009.

11. Between 3 April 2009 and 17 April 2009, Mr. Ip had attended the Department of Family Medicine & General Outpatient Clinic at Fanling (“the GPOC”) for 4 times. He complained of persistent back pain which exacerbated on walking and prolonged standing.

12. Mr. Ip was referred to the Physiotherapy Department, North District Hospital, for treatment. In the initial assessment on 7 August 2009, Mr. Ip complained of back pain over his lateral aspect of left leg. The lumbar rotation was ³/₄ on the right side and ²/₃ on the left side. The Straight Leg Raising (SLR) range was 70° on the right and 60° on the left side with pain. The myotone of the L2 and S1 was grade 4, myotone of L3 to L4 was grade 4+ and myotone of L5 and S2 was grade 5-. His last session was on 16 September 2009. He defaulted treatment after 5 sessions as from 24 September 2009 due to work.

13. Mr. Ip had consulted Dr. Poon Kai Ming, Dr. Chang Shao, Dr. Yong Kong Fan and Dr. Hung Siu Lun, who are specialists in orthopaedics and traumatology in private practice, on divers occasions between April 2009 and August 2009 respectively.

14. Mr. Ip sought and is still seeking out-patient treatments at government clinics from time to time after the Accident. He was scheduled to receive physiotherapy treatment in September 2012.

15. Mr. Ip was examined by Dr. Wong See Hoi (“Dr. Wong”), the single joint medical expert, on 17 March 2011. He complained there were intermittent and daily attacks of low back pain that last for 2-3 minutes. There was pain after walking for 15 minutes while holding samples of food products or bending down to lift heavy objects.

16. Dr. Wong found there was tenderness from L2 downwards. There was decrease in back range of movement for extension and mild muscle waste at right calf. Dr. Wong opined that Mr. Ip could resume his pre-injury work as food product salesman with reduction in work efficiency on prolonged walking especially while carrying heavy food product samples.

17. Dr. Wong agreed that sick leave up to 23 September 2009 is appropriate.

The Defendant’s Case

18. Mr. Cheung is debarred from calling any witness as he has failed to comply with the Unless Order. There is thus no evidence from Mr. Cheung.

Discussion and Analysis

19. The issues here are (i) whether Mr. Cheung is liable for the Accident; and if so, (ii) the quantum of damages.

Liability

20. I have carefully considered the evidence of Mr. Ip. His evidence at the trial was clear, concise and consistent with his witness statement. In the absence of evidence to contradict his version, I see no reason why I should not accept his evidence.

21. It is my ruling that the Accident took place inside the Restaurant as described by Mr. Ip. As a result of the Accidents, he suffered personal injuries as complained and described by the medical doctors.

22. Since Mr. Cheung admitted in his Defence that he was the occupier of the Restaurant, there can be no dispute as to his duty under the Occupiers Liability Ordinance, Cap.314 (“the Ordinance”). He has to take reasonable care to ensure that the visitors of the Restaurant would be reasonable safe in the Restaurant.

23. Mr. Lau, solicitor for the Plaintiff, submitted that Mr. Cheung must not create danger himself. Further, he must take reasonable steps to protect his visitors from dangers which he did not create himself. I agree (see Clerk & Lindsell on Torts, 20th edition, para.12-25 at pp.811-812).

24. Mr. Cheung submitted that there was a warning notice affixed at the cashier counter. This notice can be seen in the photographs at p76 of the Bundle. Mr. Ip told the Court that he was not aware of this notice before the Accident.

25. Section 3(4) of the Ordinance provides that:-

“(4) In determining whether the occupier of premises has discharged the common duty of care to a visitor, regard is to be had to all the circumstances, so that (for example)-

(a) where damage is caused to a visitor by a danger of which he had been warned by the occupier, the warning is not to be treated without more as absolving the occupier from liability, unless in all the circumstances it was enough to enable the visitor to be reasonably safe …”

26. There is no evidence as to whether the warning notice was there at the time of the Accident. Even if it was, the question here is whether the warning is enough to enable Mr. Ip to be reasonably safe. A notice placed in an unsuitable place will not help to discharge the common duty of care. The notice is at the side of the cashier counter and at waist level. I accept the evidence of Mr. Ip that he was not aware of the notice. Further, it is my ruling that it is too small and not affixed at a conspicuous place to serve its purpose.

27. Mr. Cheung also submitted that there was another warning notice on the left glass door underneath the poster (see also p76 of the Bundle). There is also no evidence as to whether this warning notice was there at the time of the Accident. I had pointed out to Mr. Cheung that I cannot read the words of the notice because of the quality of the photograph. Mr. Cheung agreed...