Personal Injuries — Hong Kong Court finds plaintiff unable to prove liability in a residential premises slip-and-fall accident and illustrates the importance of perusing primary medical records

In So Kai Wing v Sino Estates Management Limited [2024] HKDC 1829, the Plaintiff alleged that he slipped and fell while walking in the lift lobby of a residential block. He claimed against the Defendant, who was the manager of the housing estate.   

Liability  

Under cross-examination, the Plaintiff admitted that he did not notice any water on the floor when he walked past the same spot around three minutes before the accident. Further, none of the nine other people who walked in the lift lobby in the hours leading up to the accident reported seeing any water there.  

The Court dismissed the Plaintiff’s claim despite undisputed evidence that there was water on the floor after the accident. The trial judge found that there is no reliable evidence that the floor was wet before the accident. There could not be an inference that there was wetness simply from the fact that a slip-and-fall accident happened or that there was water on the floor after the accident.  

Causation and quantum  

Although the learned Judge already found against the Plaintiff on liability, the learned Judge proceeded to discuss the issue of causation between the accident and the injuries allegedly sustained.  

MRI conducted two days after the accident showed the Plaintiff had a prolapsed intervertebral disc with compression at the left nerve root. Both experts preparing the Joint Medical Report opined that it is caused by the accident or at least compatible with it.  

The experts appeared to have relied upon a medical report prepared by the Plaintiff’s treating doctor almost two-and-a-half years after the accident stating that the Plaintiff noticed pain and numbness to his left leg after the accident.  

At trial, Simon Wong, acting for the Defendant, invited the learned Judge to consider the primary medical records made at the time of the treatment which showed that prior to the MRI, the Plaintiff had consistently complained about pain in his right hip, leg and back, and received physiotherapy treatments on the right side of his body. Only nine days after the MRI, did the Plaintiff make complaints in relation to the left side of his body for the first time.  

Accordingly, the Court found that it is more likely than not that the treating doctor had made a mistake in his report, and relied on the contemporaneous medical notes. The trial judge also found that the accident only caused a right hip contusion and sprained back, which radiated to the right leg. The prolapsed intervertebral disc with compression at the left nerve root was not caused by the accident.  

Proceeding on the above finding on causation, the trial judge disallowed medical expenses claimed for treating the prolapsed intervertebral disc. It was also not taken into account in assessing the damages for pain, suffering and loss of amenities.  

Take-away 

This case reinforces the principle that the Court cannot infer there was wetness simply from the fact that a slip and fall occurred. This case further illustrates the danger of solely relying on medical reports prepared by doctors years after the accident and the Joint Medical Report complied by experts. By inviting the Court to consider the contemporaneous clinical notes instead, the Defendant was able to successfully challenge the causation between the accident and the injuries allegedly suffered, hence substantially reducing the amount of damages.  

Simon Wong, instructed by Mayer Brown, acted for the successful Defendant. 

 

Simon Wong

“Simon is very meticulous and his advocacy is very good. His advice is practical and easy to follow whilst his preparation is unquestionable.” “Excellent communication skills with the ability to articulate arguments in a concise, professional and persuasive manner.”
Legal 500 Asia-Pacific 2024, Commercial Disputes, Labour and Employment — Leading Juniors

Simon is qualified to practise law both in Hong Kong and California USA. He specializes in personal injury litigation and commercial dispute resolution. In his personal injury practice, he has been instructed in more than 500 personal injury and medical negligence cases and has extensive experience in representing claimants as well as defendants.  Simon’s commercial litigation experience includes company matters, shareholders’ disputes, banking disputes, insolvency matter and contract claims.

Visit Simon’s profile for further details.

This article was first published on 19 November 2024.

Disclaimer: This article does not constitute legal advice and seeks to set out the general principles of the law. Detailed advice should therefore be sought from a legal professional relating to the individual merits and facts of a particular case. The photographs which appear in this article are included for decorative purposes only and should not be taken as a depiction of any matter to which the case is related. The views and opinions expressed in this article/material are solely those of the members authoring it and do not necessarily reflect the official policy or position of Denis Chang’s Chambers, or of any other member or members of Denis Chang’s Chambers.