Slip and fall claim dismissed

Chan Wa Kun v Secretary for Justice for and on behalf of Correctional Services Department (CSD) HCPI 877/2012 [2019]

In this claim, it was not disputed that the Plaintiff fell on the staircase in question but CSD denied that the staircase was slippery and that such accident was caused by their negligence or breach of duty. They maintained that the staircase was clean, dry, unobstructed and in good and safe condition, and there was sufficient lighting and good ventilation. The court did not agree with the Plaintiff’s assertion that the staircase was wet or slippery although it did say that such an inference could have been made based on the fact that the Plaintiff fell and from the evidence of the cleaning exercise that had taken at the staircase that morning.

The court remarked that anecdotal evidence from UK suggested that 90% of slip cases happen because the floor is wet.  Even if a plaintiff is unable to give direct evidence on why he/she fell, the court may infer from the evidence of the state of the floor; the extent to which the accident was sheltered from the elements, the weather condition at the time, the activities taking place at or near the accident location and all other relevant facts and surrounding circumstances that more likely than not, the surface of the ground was slippery by reason of the presence of water or other slippery substance, and that the plaintiff slipped and fell because of the slippery surface. 

In the present case, the Court found that because the Plaintiff had a history of 12 slip and fall accidents, there was a high possibility that he fell because he missed a step and lost his balance and not because the staircase was moist from humidity. The court also placed great emphasis on one of CSD’s witnesses who said that he had passed the staircase three times that day, twice before the Plaintiff fell and once after the accident and on all occasions, he saw that the staircase was dry. Under such circumstances, CSD was found not be at fault in any way.

In case of any appeal, the Court assessed quantum at just a little over $4m inclusive of EC, of which about $2.1m was loss of housing benefits and pension given that the Plaintiff was a civil servant.  It is noteworthy that the amount awarded was very close to what the P had claimed. Even though the Court accepted CSD’s orthopaedic expert’s findings of pre-existing back degeneration, it only allowed 15% discount to PSLA and no discount for loss of earnings.

While this Judgment was in favour of the Defendant employer, it is quite fact specific due to the Plaintiff’s long history of previous accidents. Had the Plaintiff not been so accident prone in the past, he probably would have succeeded in this claim.

Click here for the Hong Kong Personal Injury Brief July 2019 Edition.