Wong Pou Yin Kennie v Maxim’s Caterers Limited (HCPI 753/2009)

In this recent slip and fall case, the Plaintiff failed to establish that the accident was caused by the wet and slippery floor and accordingly, no liability was found.

Nevertheless, the court went on to consider whether the occupier had discharged its duty of care in relation to the wet and slippery floor, assuming that was the cause of the accident. The court further commented on the correct approach in dealing with conflicting medical evidence regarding causation.

Duty of care

The court reiterates the principles regarding occupiers’ duty of care in relation to slip and fall cases. As stated by the Court of Appeal in Cheung Wai Mei and The Excelsior Hotel (Hong Kong) Limited trading as The Excelsior, Civil Appeal No 38 of 2000, such duty is not an absolute duty. The law does not require that there be a person present at all times to guard against spillages on the floor. It is sufficient to take reasonable care in all the circumstances to ensure the visitor is safe in using the premises. In the present case, the occupier had standing procedures in place to sweep the floor after the lunch session and to mop and clean the floor immediately as the circumstances required. The deputy manager inspected the condition of the floor at the time when the accident occurred. The court was satisfied that the duty was discharged.

Conflicting medical evidence

The Plaintiff alleged that she sustained injuries to her shoulder and other orthopaedic and psychiatric conditions in the accident. She however had a pre-existing condition of neck pain caused by degenerative changes in her cervical spine, cervical canal stenosis and a prolapsed cervical disc. One doctor was of the opinion that the Plaintiff’s symptoms were aggravated by the accident and apportioned 45 per cent to the pre-existing neck condition, while the other expert opined that the injuries were not caused by the accident but rather, they were the result of an on-going degenerative process of pre-existing cervical spondylosis.

In considering medical evidence regarding causation, the court referred to the guidelines set out in the Court of Appeal case Lee Kin-kai and Ocean Tramping Co Ltd t/a Ocean Tramping Workshop [1992] 2 HKLR 232. In essence, causation should be a matter for the judge and not doctors. The law and medicine apply different standards as regards to causation. Medical experts look for clinical cause or irrefutable chain of causation which is to be proved beyond reasonable doubt. But in law, there is causation if it is shown on a balance of probabilities that the accident was a substantial contributing cause of the injury. The judge will be assisted by medical evidence and should not be bound by it, and should exercise common sense to look for the substantial contributing cause.

In applying such approach in the present case, the court analysed the evidence and found that the injuries complained of were neither caused by the accident nor were they aggravated by it.

Comments

This case serves as a reminder of the standard of care required for slip and fall cases, and the correct approach of the court when deciding on causation. The credibility of the plaintiff also plays an important part in establishing liability and causation. The Plaintiff in this case was unable to prove her case in every aspect as she was found to be an exaggerating witness