TSE SIN YEE v. WING WAH CAKE SHOP LTD

DCPI 1618/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO. 1618 OF 2010

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Transferred from the Court of First Instance of the
High Court Personal Injuries Action No. 302 of 2009
Pursuant to the Order of Master Ng of 20 September 2010

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JUDGMENT

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1.  The Plaintiff Miss Tse Sin Yee (“Miss Tse”) claims against the Defendant, her former employer, for damages incurred due to an injury to her right thigh and back sustained in the course of her employment on 16 April 2006. Her claim against the Defendant is based on the breach of common law duty of care and/or a breach of statutory duty of care and/or a breach of implied term in her employment contract.

2.  The Defendant Wing Wah Cake Shop Limited (“Wing Wah”) is a limited company incorporated under the laws of Hong Kong.

3.  Miss Tse was first employed by the Defendant as a shop assistant and cashier on 27 September 2004 to 31 March 2005 to work at Shop 1A Shatin Station of KCR East Rail Line.  On 1 September 2005, she was re-employed as a shop assistant and cashier; she was assigned to work at the East Tsim Sha Tsui Station, Shop 11 in Tsim Sha Tsui Kowloon (“the Shop”) on 1 November 2005.

4.  On 16 April 2006, at around 11 a.m., Miss Tse met with an accident at the Shop when shelving cakes from plastic trays delivered that morning to the Shop onto the display shelves and warming cabinets.

5.  The Defence accepted that Miss Tse sustained injuries by accident in the course of work on 16 April 2006, but it denied the accident happened in the way described by Miss Tse.

6.  Miss Tse lodged an employees’ compensation claim in 2008 under DCEC 250 of 2008 relating to the accident on 16 April 2006, she accepted the sanctioned payment into the Court from the Defendant on 17 August 2009.  The employees’ compensation claim concluded upon her acceptance of the payment in.  She lodged a second claim in respect of a second accident at work in August 2006 under DCEC 251 of 2008; the 2^nd ECC claim was dismissed on 7 June 2010 by His Honour Judge Leung.

7.  The Defendant denies it was negligent and/or in breach of statutory or contractual duties. Alternatively, the Defendant claims the Plaintiff was guilty of contributory negligence wholly or partly.  Furthermore, the Defendant claims the Plaintiff’s injury suffered at the accident was due to a pre-existing condition of the Plaintiff which should be taken into consideration in the award of damages.

The Issues

(1)  How did the accident happen on 16 April 2006? Was it at the front of Shop or inside the store room?

(2)  Was the accident caused by Wing Wah’s negligence and/or breach of statutory duty or contractual duty failing to provide a safe system of work, proper instructions, training and risks assessment?

(3)  Was Miss Tse guilty of contributory negligence?

(4)  Quantum and whether Miss Tse suffered from any residual disability as a result of the accident?  And whether Miss Tse suffered from any pre-existing conditions which affected her recovery from the injuries suffered in the accident?

The Plaintiff’s case

8.  Miss Tse reported for duty shortly before 10 a.m. on 16 April 2006.  Around 10 a.m., two of her colleagues left for a special workshop at the Chatham Road branch of the Defendant, leaving Miss Tse and another colleague Miss Lam to tend to the Shop.  Shortly after, Miss Lam went out to buy breakfast, leaving Miss Tse alone in the Shop.  Before Miss Lam returned to the Shop, trays and boxes of cakes were delivered to the Shop, they were deposited outside the Shop entrance.  So as not to block the entrance, Miss Tse single-handedly moved some of the cake trays into the storeroom and was shelving cakes at the Shop front when Miss Lam returned with her breakfast. Miss Lam went into the storeroom to finish her breakfast while Miss Tse continued shelving cakes by herself. As she was lifting 2 to 3 trays of ‘old lady cakes’ 「老婆餅」 from the floor, placing them onto the trolley of shopping baskets before loading them into the warming cabinets, she injured her back and right thigh.

9.  Feeling the pain on her back and right thigh, she went into the storeroom and told Miss Lam of the accident.  After she and Miss Lam finished shelving the cakes at the Shop, she called the Shop’s assistant head Miss Wu and Mr. Lau, the supervisor, to inform them of the accident.  She was told to take a rest at the storeroom.  When the pain deteriorated, she was taken by a colleague to Princess Margaret Hospital’s Accident and Emergency Department for treatment later that morning.  She was given one week’s sick leave by the doctor at the hospital.  She returned to work on 23 April 2006.

10.  While at work on 1 May 2006, she suddenly felt numbness on her leg and pain around the back of the waist.  After reporting the condition to her superior at the Shop, she was escorted by a colleague to the Accident and Emergency Department of Princess Margaret Hospital on the same day.  She was given sick leave up to 7 May 2006.  As the pain failed to subside, on 7 May 2006 she sought treatment at the Accident and Emergency Department of Prince of Wales Hospital (‘PWH’) in Shatin.  She was referred to and received physiotherapy treatments at the PWH.  She returned to work on 15 May 2006 while she was still being treated at the physiotherapy department of the PWH.  Because of the requirement of her duties at the Shop, she was not given leave to attend the physiotherapy treatments though she was able to continue with the follow-up treatments at the PWH.  She had also sought treatments at various clinics including Pok Oi Hospital in Yuen Long, Shatin Hospital, Shatin Lek Yuen Health Centre and Nethersole Hospital in Tai Po.  Furthermore, she attended private clinics including the Union Hospital, general medical practitioners and Chinese herbalists for treatments.  She was given 24 months of sick leave by the doctors after the accident between 16 April 2006 and 15 April 2008.

11.  She admitted she received sick leave payments from the Defendant up to April 2008.  The Defendant settled the Plaintiff‘s employees’ compensation claim under DCEC No. 250 of 2008 by a sanctioned payment of $171,313 which was accepted by the Plaintiff on 17 August 2009.

The Defendant’s case

12.  The Defendant adduced evidence from four witnesses who were co-workers and supervisors of Miss Tse.  It is not disputed that none of Miss Tse’s co-workers witnessed the accident on 16 April 2006. Miss Lam, who was working at the Shop on the morning of 16 April 2006 since 8 a.m. that day, had gone to buy breakfast sometime between 9.55 to 10.15 a.m. When she returned, she found a stack of trays with cakes had been delivered to the shop.  She admitted because Miss Tse had told her to finish her breakfast before unloading the cakes, she went into the storeroom to eat her breakfast.  By the time she returned to the shop front to work, Miss Tse had finished loading all the warming cabinets.  As there were ‘old lady cakes’ 「老婆餅」 left in the trays, these were pushed into the storeroom for storage after the trays were placed on the tray trolley.  While she was shelving tin biscuits onto the display shelves, Miss Tse came out of the storeroom, stood in front of the door, muttered a curse and told Miss Lam she had injured her leg. Miss Lam told her to take a rest, she saw as she looked inside the storeroom the tray trolley and trays inside the storeroom and that the storeroom floor was dry and flat.  Later, she overheard Miss Tse calling the shop head Miss Wu to report the accident.  A male colleague, Mr. Fong, later came to escort Miss Tse to seek medical treatment.

13.  According to the evidence of Mr. Lau Yat Ming, the supervisor in charge of the five Tsim Sha Tsui branches of the Wing Wah Cake Shop in 2006, he would take turn with the head of the shop「店長」 to man the Tsim Sha Tsui East Train Station shop. Together with the head, the assistant head, and two shop assistants, there were altogether 5 staff working three daily shifts at the Shop.  About 13 – 15 trays of fresh cakes and biscuits were delivered daily from Wing Wah’s Yuen Long factory to the Shop between 10 a.m. and 12 noon.  Trays of cakes and cartons of biscuits would be left at the entrance of the Shop and the shop staff would place the cakes on the shelves or into the warming cabinets, the remaining cakes would be stored in the storeroom.  On the day of the accident, 16 April 2006, a total of 13 trays of cakes and one carton box of biscuits were delivered to the Shop after 10 a.m.  They consisted of individual wrapped cakes and around 8 trays of unwrapped cakes including puff pastries such as「老婆餅」.  Each tray with 30 ‘old lady cakes’「老婆餅」has a total weight of 5.63 kg.  The staff at the Shop was responsible for taking delivery of the cakes and biscuits delivered.  The cakes would be pushed into the shop next to the warming cabinets and the Shop staff would take the trolley from the storeroom, put it next to the stack of cake trays, put the cakes from the trays onto the shelves before stacking the empty trays onto the trolley.  After filling the shelves and the warming cabinets in the Shop, the staff would put the remaining trays of cakes on the trolley and push the stack of trays into the storeroom for storage.

14.  It was Mr. Lau’s evidence that puff pastries such as the ‘old lady cakes’「老婆餅」are placed in the bottom trays of the stack delivered and shelving should begin from the top.  Consequently, the「老婆餅」and other puff pastries would only be placed in the warming cabinets after all the cakes were shelved.  During the course of the day, the Shop staff is required to replenish the warming cabinets from the storeroom and bring out trays of puff pastries such as「老婆餅」into the shop front.

15.  According to the evidence of Mr. Lau, Miss Leung, Miss Lau and Miss Lai, there was no need for any of the shop assistants to carry 2 to 3 trays of cakes and training was given to each new staff in the first month of their employment at all Wing Wah shops.  As each Wing Wah shop has a different size and layout, each staff upon entry at a new shop is required to learn from the head of the shop the daily routine of taking delivery, shelving and storage of cakes.

16.  It is the Defence case that Miss Tse had failed to follow the proper procedure explained to her when she first joined the Shop, it resulted in her injuries.

Findings

(1)  How did the accident happen on 16 April 2006? Was it at the front of the Shop or inside the storeroom?

17.  According to the evidence of Miss Tse, she was lifting 2 to 3 trays of puff pastries「老婆餅」from the floor, placing them on top of the trolley of shopping baskets to facilitate the transfer of cakes into the warming cabinets at the Shop front when she felt pain on her back and right thigh.  She went into the storeroom to inform Miss Lam who was having her breakfast.  She claimed she was doing exactly what the other colleagues were doing when she lifted 2 to 3 trays of cakes and she was never told she should only lift 1 tray of cakes at one time.  She also claimed there was no proper training at the Shop to speak of, she was merely shown how the Shop operated on her first day at the Shop and she followed what other colleagues were doing.

18.  Contrary to the evidence of Miss Tse, Miss Lam, Mr. Lau and Miss Leung claimed the way to load the warming cabinets was to take the base plate from the warming cabinet, clean it and place the cakes onto the plate before returning the plate of cakes into the warming cabinets.  Mr. Lau admitted he did not orally explain to Miss Tse what she should look out for when shelving cakes and replenishing the warming cabinets.  He claimed he did demonstrate to Miss Tse the proper way to lift weight and told her to ask for assistance when required.  He further claimed that he had never witnessed Miss Tse lifting 2 to 3 trays of cakes at the Shop.  According to Mr. Lau, the proper way to replenish the warming cabinets is to take the base plate from the warming cabinets into the storeroom, cleaned it before placing the cakes from the plastic trays in the storeroom and return the plate to the warming cabinets at the shop front.  He further said that puff pastries such as「老婆餅」and「蓮蓉酥」would be removed from the plastic trays into paper boxes inside the storeroom for storage in the warming cabinets.  According to the evidence of Miss Leung and Miss Lam who were staff at the Shop, they would remove the base plate from the warming cabinet and placed it on top of the plastic tray, fill the base plate with cakes then return the plate to the warming cabinet.  The empty plastic trays together with the remaining cakes would then be placed on the trolley and pushed into the storeroom for storage.

19.  On the day of accident, Miss Tse said she did not make use of the tray trolley inside the storeroom because it had trays with cakes left over from the day before.  It was her practice to place 2 to 3 trays of old lady cakes on top of the shopping baskets when replenishing the warming cabinets.  As she was lifting the trays from the floor, she turned to put them on top of the shopping baskets when she injured her back and thigh.

20.  Miss Lam admitted she did not witness the accident. She was shelving tins of biscuits onto the shelves on the left side of the storeroom door when Miss Tse emerged from the storeroom after storing the stack of trays into the storeroom.  Miss Lam said she looked into the storeroom as Miss Tse talked to her with the door half opened and she could see through the half opened door that the floor of the storeroom was level and dry and there was no obstruction in the passageway.

21.  I find Miss Lam’s evidence on what she could see and notice inside the storeroom when Miss Tse told her of the accident contrived.  Judging from Exh. D5, the photograph of the area in front of the storeroom door and Exh. D3 (the sketch plan), it was impossible for Miss Lam to have seen the inside of the storeroom to ascertain if the storeroom floor was level or dry or whether there was any obstruction at the passageway through the half opened door from the spot Miss Lam indicated where she was standing.  She also said Miss Tse had told her she had ‘sprained her leg’ (扭傷隻腳).  It is possible Miss Lam had misheard what Miss Tse said or Miss Tse might have mentioned ‘leg’ when she meant the thigh, which is part of the leg.

22.  The Defence relied on Miss Lam’s version of how the accident must have happened, while Miss Tse claimed she was injured while lifting trays of cakes at the shop front, that she told Miss Lam about her injury when Miss Lam was still having her breakfast inside the storeroom.  Page 404 of the trial bundle is the Form 2 filed by the employer on the accident, it is dated 29 April 2006 and completed by the manager named Mr. Tse Chi Hang (謝志亨). At paragraph D, it stated: “員工想把貨物 (老婆餅) 搬運至貨架上，在搬運途中，扭傷腰部及大腿筋。”  The statement clearly indicated  the employer had accepted Miss Tse’s version of the accident that she had injured her waist and thigh while she was transferring cakes onto the shelves.  There was no explanation at the trial from the Defendant as to why it reversed its stance after filing Form 2 when it accepted Miss Tse’s version on how she had sustained her injuries.

23.  Miss Lam joined Wing Wah on 1 November 2005 while Miss Tse had worked at the Wing Wah Shatin shop for 6 months before she was re-employed on 1 September 2005.  Miss Tse being the more experienced staff had probably assumed a responsible role at the Shop at the time.

24.  It was the evidence of Miss Leung, the head of the shop, that Miss Tse was a responsible employee who was eager to do the work at the Shop.  She was hard working and had a good understanding of what she was shown and was able to pick up the work quickly while other staff may take longer to learn.  She said Miss Tse learned to do the work at the Shop within the first day of her transfer, while it might take three or more days for other staff to learn.

25.  Miss Tse claimed it was the practice of her colleagues to carry two or more trays in one go and she was told by her colleagues to do the same.  This was denied by the Defendant’s witnesses.  Both Mr. Lau and Miss Lai claimed that if they saw Miss Tse carrying more than one tray at a time, they would have told her not to do so, but both admitted they had never seen Miss Tse doing that.  The Shop staff operated in 3 daily shifts, the delivery time for the shop was between 10 a.m. and 12 noon each day, a time when the Shop was less busy and there were usually only two staff on duty.  It is therefore unlikely for Mr. Lau who was in charge of 5 to 6 shops in Tsim Sha Tsui or for Miss Leung to be present at the Shop at the same time when trays of cakes were unloaded at the Shop by Miss Tse.  Furthermore, the Defendant admitted there was no staff training manual informing the staff the proper method of handling cakes delivered to the shop.  Though there was training workshops given to the staff by the Defendant, according to the documents disclosed in the trial bundle, these related to customer relationships and knowledge on products rather than on safety procedure at work and the proper way to handle weighty merchandise at the shops.

26.  I noticed from the photographs exhibited, the Shop was fitted with a large number of wall shelves.  In the centre of the Shop, there were more cabinets and display shelves installed, thus leaving little room for staff and customer passage.  Miss Tse indicated she had wanted to dispose of the stack of cake trays delivered without waiting for Miss Lam to finish her breakfast to assist her. This is understandable when the stack of cakes delivered was blocking the entrance to the Shop.  She also claimed because of the narrow aisles in the Shop, removal of the stack of trays to the storeroom was difficult to manoeuvre.

27.  After assessing the evidence of both the Plaintiff’s and the Defendant’s witnesses, the lay-out and the dimension of the Shop, the quality of evidence given, I find Miss Tse to be a truthful witness and her evidence on the incident that she injured her thigh and her back while lifting trays of cakes at the shop front credible.  The Defendant’s objectivity was probably affected by Miss Tse’s second ECC claim on an accident in August 2006 and the dismissal of that claim by HH Judge Leung on 7 June 2010.  The two accidents are totally unrelated.

(2)  Was the accident caused by Wing Wah’s negligence and/or breach of statutory duty or contractual duty for failing to provide a safe system of work, proper instructions, training and risks assessment?

28.  An employer’s duty to the employee is set out in Clark & Linsell on Torts, 20^th Edition para. 13-03 at p.848-849:

“As Lord Hoffmann stated in White v. Chief Constable of South Yorkshire Police:  “The liability of an employer to his own employees for negligence … is not a separate tort with its own rules.  It is an aspect of the general law of negligence.”

“The employer’s control and the employee’s reliance is sufficient to justify an exception to the mere omission rule and justify a duty to take care to protect the employee from harm. Most obviously, the duty extends to persuading employees to use safety equipment……..”

“The primary purpose of the duty is to protect the health and safety of the employee. It extends to activities incidental to work such as using washroom facilities or leaving the workplace at the end of the work period.”

29.  The Plaintiff further claims under the Occupational Safety and Health Ordinance, Chapter 509 of the Laws of Hong Kong, Section 6(1), (2)(a), (b) and (c), that the employer is responsible for the safety and health of the employee at work, Section 6 provides:

6. Employers to ensure safety and health of employees

(1) Every employer must, so far as reasonably practicable, ensure the safety and health at work of all the employers’ employees.

(2) The cases in which an employer fails to comply with subsection (1) include (but are not limited to) the following –

(a) a failure to provide or maintain plant and systems of work that are, so far as reasonably practicable, safe and without risks to health;

(b) a failure to make arrangements for ensuring, so far as reasonably practicable, safety and absence of risks to health in connection with the use, handling, storage or transport of plant or substances;

(c) a failure to provide such information, instruction, training and supervision as may be necessary to ensure, so far as reasonably practicable, the safety and health at work of the employer’s employees;

……..”

30.  The Plaintiff accuses the Defendant for failing to discharge its duty of care as an employer exposing Miss Tse to the risk of injury because the Shop lacked:

(a) a safe system of work;

(b) proper training or instructions;

(c) sufficient man power;

(d) supervision; and

(e) risks assessment.

The aforesaid are the requirements under Section 6 of the Occupational Safety and Health Ordinance, Chapter 509.  An employer who failed to comply with Section 6(1) requiring the employer to ensure the safety and health at work of all the employees would have committed an offence and on conviction liable to a fine of $200,000; and if an employer intentionally or knowingly or recklessly committed the offence, he is liable on conviction to a fine of $200,000 and imprisonment for 6 months (Section 6(4)).

31.  On the question of whether the work process was unsafe, it relates also to proper adequate instructions, training, supervision, manpower and whether the employer had provided a safe system of work, and whether the employer had conducted risks assessment on the work process and the environment of the workplace.

Training and instructions

32.  All of the Defendant’s witnesses claimed they gave ‘on the job’ training after the training on the employee’s first day at the Shop.  Miss Tse denied there was any training given to her at all when she first joined Wing Wah at the Shatin shop or when she later returned to Wing Wah’s employment in September 2005 or on 1 November 2005 when she was transferred to the Tsim Sha Tsui East shop.  She specifically denied any of her supervisors had showed her the correct posture when lifting heavy goods; neither did Wing Wah put her on a training course on industrial safety.

33.  According to Miss Leung, the head of the Shop, because each of the Defendant’s shop has a different layout and size, each member of staff in their first month would be explained the daily routine of the work of the particular shop including shelving arrangements, checking of merchandise delivered, cleaning of shelves and equipments, performing cashier duties, replenishing merchandise, and the end of month inventory checking of the storeroom.

34.  All of the Defendant’s witnesses referred to the correct posture of lifting weight at the shop in their witness statements, all of them denied there was a need to carry more than one tray of cakes at a time at any of the shops.  This was denied by Miss Tse who claimed she was shown by other Wing Wah staff to carry more than one tray of cakes at a time to save time and no one had ever told her otherwise.

35.  Mr. Wong, counsel for the Defence, referred to the dictum of Lord Kilbrandon in Brown v. Allied Iron Founders [1974] 1 WLR 527 at p.533D-F:

“Employers are not required or expected to be on a constant watch to see that no one moves a weight which is too heavy for him, nor will such solicitude be well received, however kindly intention …….. Often it must be left to the employee to make up the load he is to move; if the work does not necessarily involve the moving of injuriously heavy weights, but it is quite compatible with the selection by the employee of a safe load for individual movement, the employer cannot be said to have employed him to move a weight which was not safe.”

36.  While it is true that the employer cannot be there to check if all his employees would move a weight they could manage, the employer should have given adequate warning, guidelines and instructions to the employee to ensure the safety of the employee at the workplace.

37.  All of the Defendant’s witnesses referred to a particular method of lifting heavy weights in their respective witness statements.  Their evidence on transferring trays of cakes, shelving cakes and lifting goods were remarkably similar and identical.  If it was not necessary to carry more than one tray of cakes when replenishing the warming cabinets or when cakes were transferred into the storeroom, there was no need for all of the Defendant’s witnesses to emphasize the correct way of lifting weights insisting it was what all employees were told on their first day of duty.  Such meticulous description of the correct posture to lift weights, I believe is a reaction to and an answer to Miss Tse’s claim in these proceedings.

38.  Upon examining carefully the layout plan of the Shop on page 2012 of bundle 2, with a scale of 1:50, the frontage and width of the shop should be about 10 feet.  Taking into account the warming cabinets on either side (of the Shop) and the movable display cabinets in the middle, the aisles on either side of the centre display cabinets measured less than 2½ feet (0.75 meters) wide.  As the stack of the 13-15 plastic trays delivered to the Shop daily by the factory (with a size of 55 mm x 48.4 mm with a height of 12.7 mm each) had to pass through one of the aisles into the storeroom, the staff pushing the stack of trays into the storeroom would find a space of 10 cm or less on either side of the stack as it was pushed into the store.  It is also noted that the left hand aisle beyond the warming cabinets and the cashier counter would be too narrow for the cake trays to pass through for the width of the aisle between the cashier counter and the central display cabinets in the Shop was even narrower.

39.  According to Miss Tse, she had cleared the Shop front, moved the stack of trays of fresh cakes into the storeroom by herself and began replenishing the warming cabinets before the accident.  She was working by herself unsupervised as the senior staff had already left before 10 a.m. for the Chatham Road branch.  Because of the particular size and layout of the Shop, and the need to replenish the warming cabinets located in the lower cabinets, Miss Tse was handling the work by herself the best she could and as quickly as she could manage.  I am satisfied Miss Tse had been performing her duties largely unsupervised with inadequately training in a tight environment at the Shop.

40.  I further find, based on the evidence of the Defendant’s witnesses, contrary to Section 25 of the Occupational Safety and Health Regulation, Chapter 509, there was no risks assessment conducted by the Defendant at the workplace.  Section 25(1) provides:

“25. Responsible person to make further

Assessment of risks

(1) If it is not reasonably practicable for the person responsible for a workplace to avoid the need for employees employed at the workplace to undertake any manual handling operations which may create safety and health risks, that person must, before those manual handling operations are undertaken at the workplace, ensure that a further assessment is made of the risks to the safety and health of those employees having regard to the matters specified in column 1 of Schedule 3 and the questions relating to those matters specified in column 2 of that Schedule.”

41.  Furthermore, risks assessments should have been made in accordance with Schedule 3:

“SCHEDULE 3

MATTERS AND QUESTIONS TO BE CONSIDERED WHEN MAKING ASSESSMENT OF RISKS OF UNDERTAKING MANUAL HANDING OPERATIONS

	Column 1	Column2
	Matter	Question
	1. The tasks	Do they involve holding or manipulating loads at distance from the body’s trunk? Do they involve unsatisfactory bodily movement or posture, especially – (a) twisting the body’s trunk? (b) stooping? (c) reaching upwards? Do they involve excessive movement of loads, especially – (a) excessive lifting or lowering distances? (b) excessive carrying distances? Do they involve – (a) excessive pushing or pulling of loads? (b) risk of sudden movement of loads? (c) frequent or prolonged physical effort? (d) insufficient rest or recovery periods? (e) a rate of work imposed by a process?
	2. The loads	Are they – (a) heavy? (b) bulky or unwieldy? (c) difficult to grasp? (d) unstable, or with contents likely to shift? (e) sharp, hot or otherwise potentially damaging?
	3. The working environment	Are there space constraints that prevent good posture? Are there uneven, slippery or unstable floors? Are there variations in level of floors or work surfaces? Are there extremes of temperature or humidity? Are there conditions causing ventilation problems or gusts of wind? Are the lighting conditions poor?
	4.  Individual capability	Does the operation – (a) require unusual strength or height, or other abnormal physical characteristics? (b) create a hazard to persons who are pregnant or have a health problem? (c) require special information or training for its safe performance?”

42.  Not only was there no staff manual other than a one page document on uniform, tidiness and punctuality of staff, there was no specific manual on handling operations for goods delivered at the Shop and the transfer of heavy stacks of trays laden with cakes into the storeroom or on shelving of cakes and handling of weights in accordance with Schedule 3 above.

(3)     Was Miss Tse guilty of contributory negligence?

43.  Wing Wah had provided no staff manual, no proper supervision and risks assessment of the transfer of trays of cakes delivered at the Shop based on the size and the layout of the Shop or on the daily transfer of the stack of cake trays to the storeroom.  I am satisfied Miss Tse had tried to accomplish her tasks swiftly and efficiently when she moved trays of cakes onto the trolley to replenish the warming cabinets after moving a stack of cake trays out of the way from the Shop front when she met with her accident. 

44.  In the case of Ho Kwai Sang v. Yeung Ling Tsz & another HCPI 1300 of 2000, Mr. Justice Sakhrani held at para. 32:

“32. It is trite law that the duty of an employer to his employees is to take reasonable care for their safety. The duty is owed by the defendants to each of its employees including the plaintiff. It is important to bear in mind that the duty is personal to the employer and is non-delegable. The duty here was, inter alia, to provide a safe system of work. In planning a system of work, the defendants must take into account the fact that workers may become careless about the risks involved in their daily work (para. 5.80 pg. 139 Munkman on Employer’s Liability, 13^th Edn.). Lord Oaksey helpfully said in General Clearing Contractors Ltd. v. Christmas [1953] A.C. 180 at 189 that:

“It is … well known to employers … that their workpeople are very frequently, if not habitually, careless about the risks which their work may involve.  It is … for that very reason that the common law demands that employers should take reasonable care to lay down a reasonably safe system of work.  Employers are not exempted from this duty by the fact that their men are experienced and might, if they were in the position of an employer, be able to lay down a reasonably safe system of work themselves. Workmen are not in the position of employers.  Their duties are not performed in the calm atmosphere of a board-room with the advice of experts.  They have to make their decisions on narrow sills and other places of danger and in circumstances where the dangers are obscured by repetition.”

45.  In the CFA case of Cathy Pacific Airways Ltd. v. Wong Sau Lai (2006) 2 HKLRD 586, the head notes of the report provided a summary of the judgment:-

“(1) The duty of care owed by employers to employees at common law was a single duty to take reasonable care for his employees’ safety. This was so even though it was convenient to think of the duty as involving the provision of safe co-workers, a safe place of work, safe equipment, a safe system of work, proper instructions and supervision and, where called for, adequate training. A safe system of work was the most frequently invoked branch of the employer’s duty and also the most difficult to define. Judges and academics alike spoke in open-ended terms of the matters that the system included, and it was doubtful that any attempt to provide an exhaustive list of what the system included would prove successful (Cavanagh v Ulster Weaving Co Ltd [1960] AC 145, Speed v Thomas Swift & Co. Ltd [1943] KB 557 considered). (See pp.593A-I, 596C-G.) (paras. 13-15, 24)

………

(3) When considering whether an employer was in breach of his obligation to provide a safe system of work, it was relevant, although not a pre-condition, to see if the plaintiff managed to propose an acceptable alternative system of work. But even if the plaintiff did not do so, the court was by no means precluded from nevertheless finding the employer in breach of that obligation. Hence, here identifying an acceptable alternative system was not a pre-condition to finding that D failed to provide a safe system of work.

……….

(5)      The crucial issue of fact at trial was whether D failed to take reasonable care for P’s safety and there were concurrent findings of fact by the Trial Judge and the Court of Appeal, albeit by a majority, that it had failed to do so.  The broad circumstances proved or admitted permitted that view of the facts.  These were that P was a cabin attendant serving drinks to passengers under considerable time pressure; this involved getting a bottle from a drawer weighing up to 30 lbs by using one hand to support it; and the danger involved in that exercise was apt to be obscured by its repetitive nature and P was not immune from momentary lapses of attention. ……..”

46.  The issue is whether the employer has taken reasonable care for the employee’s safety or provided a safe system of work in the performance of her duties at the Shop.  The Defendant’s witness Miss Lam demonstrated how a plate from the warming cabinets would be taken out with a corner resting on the side of a stack of cake trays when replenishing the plates from the warming cabinets.  The cake display warming cabinets were located in the two lower cabinets.  The employee, after loading the cakes from the plastic trays, was required to squat down to insert plates of cakes into the warming cabinets.  On the day of the accident, Miss Tse placed 2 – 3 trays of cakes (weighing 11.26 kg – 16.89 kg) on top of the shopping basket trolley before the replenishing.  Whether she was using the trolley from the storeroom or the one holding shopping baskets is not the issue, the real issue is whether Miss Tse was working in a safe environment with sufficient room to manoeuvre when she carried one tray or 2 to 3 trays of cakes inside the Shop, and whether a safe system of work was provided by her employer when she was required to replenish the warming cabinets.

47.  The Defence witnesses gave two different versions of cake replenishing.  The first version came from Mr. Lau. He claimed the staff was required to fill the plates from the warming cabinets at the storeroom and return the plates full for cakes into the warming cabinets at the shop front.  The second version was to replenish the warming cabinets from cake trays delivered in the morning before they were stored in the storeroom; that was the version Miss Lam demonstrated in Court.  The first version is probably the safer of the two because the storeroom had more space for the staff to do her work.  The second version was presumably done upon the morning arrival of freshly baked cakes for the warming cabinet display before the remaining cakes were stored.  It is not disputed that the 13 to 15 trays of cakes arriving at the Shop each morning were simply pushed or slid into the Shop because, the Defendant claimed, the shop floor was smooth.  They were not loaded onto the tray trolley from the storeroom.  After some of the cakes were shelved, the remaining cakes would be stored at the storeroom on the tray trolley.  The two practices described both required the staff to lift trays of cakes for shelving and replenishing from the 13 or 15 trays of cakes delivered.  I find the system described either by the Defendant’s witnesses or Miss Tse simply inadequate to protect the safety of the staff at the Shop.  I am not convinced by the evidence of the Defendant’s witnesses that instructions on safety and a safe method of lifting weights formed part of the training given to Miss Tse either at the Shatin shop or at the shop at Tsim Sha Tsui East Station. I believe the Shop staff were left to deal with the delivery and replenishing of cakes in whatever manner they find convenient, and they could be as diverse as the two versions described by Mr. Lau and Miss Lam.  I find Miss Tse not guilty of contributory negligence.  The Defendant had failed in its duty to provide a safe system of work for its employees.  I am satisfied the Defendant is liable to compensate Miss Tse.

(4)  Quantum

Whether Miss Tse suffered from any residual disability as a result of the accident? And whether Miss Tse suffered from any pre-existing conditions which affected her recovery from the injuries suffered in the accident?

The Plaintiff’s injuries

48.  Miss Tse was admitted into the Accident and Emergency Department of Princess Margaret Hospital on 16 April 2006, she was diagnosed with a sprained back and right thigh.  Her present complaints included lower back pain, numbness over thigh and calf, depressive disorder and phobia. According to the joint expert orthopaedic report of Drs. Lam and Cheng, it was their opinion that:

(a)   Miss Tse probably suffered stress and strain and fatigue on 16 April 2006 from a mild sprain;

(b)  There may be occasionally fatigue of back discomfort, periodic systematic treatment may be required on a need to basis; and

(c)   Miss Tse has reached a stage of maximum medical improvement for the back sprain.

49.  According to the joint psychiatric report of Drs. Chung and Ho, it was their opinion that:

(a)   Miss Tse suffered from adjustment disorder with anxiety and depressive mood;

(b)  Miss Tse’s mental condition of adjustment disorder was precipitated by the accident;

(c)   Miss Tse’s adjustment disorder is caused by the stressors of the physical symptoms, the problematic relationship with her co-workers and the litigation;

(d)  Miss Tse’s psychiatric impairment at present is in a mild to very mild range; and

(e)   Miss Tse’s pre-existing panic disorder with agoraphobia was largely in remission before the accident.

It was Dr. Chung’s opinion that the accident had exacerbated Miss Tse’s mental problems.  (Page 356 & 360 of Bundle 1).

Pain, Suffering and Loss of Amenities

50.  Mr. Kwok, Counsel for the plaintiff, relied on the case of Chan Chung Keung v. Greenroll Ltd. t/a Conrad Hong Kong HCPI 275 of 2005, where the plaintiff who fell on the wet floor on his buttocks was found to suffer from soft tissue contusion of the lower back.  The Court held that he was suffering no more than a soft tissue injury which exacerbated a pre-existing weakness caused by natural ageing process.  The condition had caused the plaintiff certain degree of psychological problems leading to depression.  The Court awarded $180,000 for PSLA.  The Court considered there was a real element of exaggeration of symptoms by the plaintiff in that case.

51.  In the case of Fung Lee Hung v. The Spastics Association of Hong Kong DCPI 1112 of 2005, the plaintiff was found to be suffering from a mild form of depression caused and exacerbated mainly by the pre-existing physical symptoms sustained from injury at the accident followed by social and financial problems since the accident.  The Court also found a slight element of exaggeration of her symptoms.  She was awarded $200,000 under PSLA.

52.  The third case relied on by the Plaintiff is Tam Kwok Man v. The Kowloon Motorbus Company (1993) Limited HCPI 775 of 2001.  The judge awarded the plaintiff $150,000 in PSLA after having found his injury was a minor contusion of the back leading to residual pain for some months, although there was no permanent or structural damage, bone or disc damage.  The Court accepted the plaintiff did suffer from depression from his inactivity rather than as a result of the accident.

53.  Mr. Wong, Counsel for the Defendant, relied on the surveillance video of Miss Tse in early April 2008 and early August 2008. These videos showed Miss Tse going out shopping and walking home, taking public transport carrying a number of bags of shopping, walking up and down staircases in the process.  I agree the videos showed Miss Tse to have appeared entirely normal while engaged in her daily activities.

54.  The joint orthopaedic report of Drs. Lam and Cheng of 1 June 2009 at paragraph 34 assessed for the purposes of employees’ compensation, stated that Miss Tse may be suffering from discomfort, fatigue or some pain during work and she suffered from 1% to 2% whole person impairment. They also considered her loss of earning capacity to be 1% to 2%. (Page 336 of Bundle 1)

55.  Mr. Wong relied on the case of Cheng Liu Nei Su v. Clare Environmental Services Limited DCPI 842 of 2008 (date of judgment 30 July 2009), one of my judgments where I awarded the plaintiff cleaner the sum of $175,000 under PSLA.  The plaintiff suffered from soft tissue contusion injury of the back with residual pain.  6 months after the accident, she developed mental depression which affected her sleep and well being.  The medical experts found she suffered from a mild form of adjustment disorder with depressed mood.

56.  The second case referred to by Mr. Wong is the case of Tam Kwok Man v. The Kowloon Motorbus Company (1993) Limited, a case also relied on by the Plaintiff.  In that case, the Court found the sick leave of 9 to 12 months to be reasonable and accepted the plaintiff had suffered from depression.

57.  Mr. Wong submitted that the award under PSLA to Miss Tse should not be more than $100,000 because the injury suffered by her was a minor back sprain with no trauma involved.  Furthermore, her psychiatric problems with residual impairment was said to be mild to very mild, it was expected to be resolved with a further 12 months course of therapy at the time of interview by the two psychiatric experts.

58.  I have taken into consideration the pre-existing condition of Miss Tse which was in remission before the accident on 16 April 2006 and the joint experts’ opinion that the accident was an exacerbation of her mental condition caused by the stressors of physical symptoms and the later problematic relationship with her co-workers and the litigation.  (Paragraph 35 at Page 356 of Bundle 1).  It is Dr. Chung’s opinion that Miss Tse’s mental complaints after the accident were compatible with an adjustment disorder with mixed anxiety and depressed mood.  It was characterized by the development of emotional or behavioural symptoms in response to identifiable stressors. At Paragraph 36, Page 356 of Bundle 1, the report stated:

“The symptoms that she has complained of consist of depressed mood, anxiety, irritability, self-harm behavior, feelings of worthlessness, anxiety of going out, pessimistic ideas, lack of interest in activities, suicidal idea, bad memory, and sleep problems.”

59.  At paragraph 37 of the report at page 357 Dr. Chung said:

“I believe the adjustment disorder with mixed anxiety and depressed mood is caused by the 1^st accident.”

And at paragraph 38.3 he said:

“The usual convalescent period for the 1^st accident from a psychiatric point of view is a few weeks to a few months. Miss Tse would take a longer time for recovery due to the pre-existing mental problems.”

60.  At paragraph 44,  Dr. Ho said:

“I concur with Dr. Chung’s opinion that Miss Tse has been suffering from an adjustment disorder with mixed anxiety and depressive mood.”

At paragraph 45, Dr. Ho agreed with Dr. Chung that the exacerbation of her symptoms of adjustment disorder was caused by the stressors of the physical symptoms after the accident, the problematic relationship with her co-workers and the litigation. Even though she had a past psychiatric history and a positive family history that her mother had also received psychiatric treatment which made her vulnerable to develop psychiatric problems upon stressors, Dr. Ho agreed her panic disorder with agoraphobia was largely in remission at the time of the accident on 16 April 2006.

61.  Therefore, the conclusion I draw from the experts’ reports is that Miss Tse because of her pre-existing condition is more vulnerable to suffer from an adjustment disorder with mixed anxiety and depressive mood.  That the exacerbation of her symptoms of adjustment disorder is caused by the stressors of the physical symptoms after the accident.  Judging from the video surveillance tapes, if not for the stresses she encountered at work, Ms Tse obviously can and has been living a normal life. It is unfortunate that the Plaintiff had a pre-existing condition that could be triggered by stressors such as the accident on 16 April 2006 and the difficulties she faced after returning to work albeit as a part time employee. On the aforesaid basis, I award her under PSLA the sum of $175,000.

Pre-trial loss of Earnings

62.  Miss Tse claims a sick leave period of 609 days during the period 16 April 2006 to 15 April 2008.  She resigned on her own accord from the Defendant’s employment on 10 April 2009.  She claimed a monthly average earning of $7,300, consisting of a basic salary of $6,800 and an annual bonus of $5,500.  The Defendant disagreed the bonus of $5,500 per annum should be taken into account.

63.  On the basis that Ms Tse was granted sick leave by the doctors for 609 days between 16 April 2006 to 15 April 2008, and on the basis that she did try to return to work on a part time basis, it demonstrated she was conscientious and had wanted to resume working for the Defendant.  On the day of examination by psychiatrists Drs. Chung and Ho in July 2009, it was obvious Miss Tse had been consulting psychiatrists at the Hospital Authority. Both doctors agreed she would benefit from and should continue with her treatment.  Dr. Chung considered she would need long term psychiatric treatments for the pre-existing mental problem (Paragraph 43 at page 360 of Bundle 1); Dr. Ho, on the other hand, considered Miss Tse’s treatment for the mental problems caused by the accident required one year (Paragraph 54 at Page 364 of Bundle 1).  Dr. Chung considered the sick leave period granted by the HA psychiatric doctors to be appropriate, while Dr. Ho considered from a psychiatric perspective, she would require a total leave period of about four to five months during the more intense phase of her mental problem since the first incident (Paragraph 65 at page 366 of Bundle 1).  I accept the 609 days of sick leave given to Miss Tse by doctors at both the public and private sectors in the two years after the accident between 16 April 2006 to 15 April 2008 was appropriate. 

64.  On the dispute of the monthly wage she was earning before the accident, her basic monthly salary was $6,800, she claimed a bonus of $5,500 at the end of the year.  Mr. Wong, Counsel for the Defendant, referred to an agreement at the time of the ECC claim that her monthly wage was set at $6,800.  This is found at paragraph 63 of H.H. Judge Leung’s judgment of 7 June 2010 in DCEC 251 of 2008 (Page 741 of Bundle 2).

65.  In Miss Tse’s witness statement, paragraph 8 at page 145 of bundle 1, she claimed that her basic pay was $5,500 plus an allowance of $1,300 making a total monthly payment of $6,800.  She did not mention an annual bonus of $5,500. I cannot find any supporting evidence for the $7,300 per month claimed in her Statement of Damages.  My assessment is therefore based on the monthly salary of $6,800 as follows:

        $6,800 x 609 days ÷ 30 days = $138,040

        MPF 5% = $6,902

Future medical expenses

66.  Miss Tse asks for compensation on future psychiatric and psychological treatments recommended by Dr. Chung, it was estimated at $14,000 as an appropriate sum for medication and treatment for one year.  The Defence objects to the claim for private psychiatric care because Miss Tse had been receiving treatments at the Hospital Authority clinics.  The Defence further pointed out that the recommendation was for one year of treatments, it has been almost two years since Drs. Chung and Ho’s medical report in 2009, whether she had already received the 12 months treatment and medication is unknown.

67.  From records exhibited, Miss Tse had been followed-up at the Hospital Authority Prince of Wales Hospital clinic in Shatin.  Since the accident on 16 April 2006, she had also received treatments at the Orthopaedic and Traumatic Surgery Department of Princess Margaret Hospital, Prince of Wales Hospital, Union Hospital and the Lee Ka Shing Specialist Clinic as well as from private practitioners.  Some of these clinics and hospitals such as the Union Hospital are privately run and she was required to pay for these treatments.  I am well aware that it would be inconsistent and illogical if Miss Tse should give up the follow-up clinics at the Prince of Wales Hospital for her psychiatric problems.  However, taking into account the special needs of a person with a history of depression, that from time to time Ms Tse may require extra care as she had done before particularly when she was feeling depressed or not able to sleep and had to seek private medical care on an emergency and/or need-to basis, it is reasonable to make special allowances.  For this reason I award her the sum of $10,000.

Special damages

68.  Miss Tse claims special damages in the sum of $29,520.40.  The sum is supported by documentations including receipts from various clinics and hospitals, the sum also included travelling expenses.  They are set out in the Statement of Damages at pages 70 to 73 of bundle 1.  Expenses on the Hospital Authority treatments were not included because they had been waived by the Hospital Authority when Miss Tse was unemployed.  The Defence disputes the sum of hospitalization at Union Hospital of $10,335, I find the hospital expenses and other miscellaneous expenses were reasonably incurred by Miss Tse. I allow the sum of $29,520.40 in total. 

Summary

69.        

Interests

70.  Interests on general damages at 2% per annum from the date of writ to date of judgment, interests on special damages at half judgment rate from the date of accident to date of judgment, thereafter at full judgment rate until full payment.

Costs

71.  Costs to follow the event.  I make a cost nisi order that costs of the action shall be borne by the Defendant, to be taxed if not agreed, with certificate for counsel.  Plaintiff’s own costs to be taxed in accordance with Legal Aid Regulations. Should there be no application on costs within 14 days from the date of this judgment; the order will be made absolute.

Parties :