WONG CHING YAU v. GROUP YIELD INTERNATIONAL DEVELOPMENT LTD t/a FEDERAL RESTAURANT

   HCPI 637/2008

   IN THE HIGH COURT OF THE

   HONG KONG SPECIAL ADMINISTRATIVE REGION

   COURT OF FIRST INSTANCE

   PERSONAL INJURIES ACTION NO.637 OF 2008

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BETWEEN

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JUDGMENT

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1.  The plaintiff claims damages for an injury sustained in the course of her employment as a waitress in the “Federal Restaurant” in Hollywood Plaza, Diamond Hill.

2.  At about 11:00 p.m. on 11 September 2005 in the course of her duties she was cleaning the tables after a banquet. Many tables had a glass turntable on them which could spin around (known as a “lazy susan”). She was in the process of returning such a turntable into its storage cabinet when the accident occurred.

3.  The glass turntable was 30 inches in diameter, 3/4 inches thick and weighted 25 lbs. She was required to take it off the table and then roll it towards a storage cabinet, which she did (and which she had done over a hundred times before during the 2 previous years that she had worked for the defendant, albeit not always at the “Federal” restaurant).

4.  The storage cabinet was, at most, 20 feet away from the table. It was purpose built to store approximately 25 glass turntables in a vertical position. There were 25 slots into which a single turntable was put. Each slot was separated by a piece of wood. The space for each turntable was 1 to 2 inches wide.

5.  The cabinet was on wheels. According to a sketch in the trial bundles (which was not referred to in the course of evidence) the wheels were about 3 inches high and the floor of the cabinet was approximately another 4 inches above the wheels. Thus the cabinet floor was about 7 inches above the ground. In evidence however the plaintiff’s estimate was less, about 4 inches in total. I proceed on the basis that the sketch is the more accurate.

6.  In front of the cabinet were rubber mats, designed to assist in the rolling of a turntable into a slot inside the cabinet. The evidence concerning the rubber mats differed. There were two witnesses at trial, the plaintiff and, for the defendant, Mr Tsui Kwong Lam who was the restaurant’s business manager. He had held the position for 12 years and had 30 years’ experience in the restaurant business. He had been on duty on the evening of the accident but had not witnessed anything. Neither was the accident reported to him at the time it occurred.

7.  As to the mats the plaintiff said there were 2 soft mats in front of the middle part of the cabinet but which did not extend to the full width of the cabinet. She said that the only free slots in the cabinet were towards one end, not in the middle, and so she rolled the turntable up onto the mats, then onto the cabinet floor, then manoeuvred the turntable to one side to where there was a free slot and then she rolled the glass into the cabinet. Towards the end of this manoeuvre she felt a pain in her back which was the injury for which she claims compensation. Even if this version was true, she should have ensured that the mat or mats were in front of the slot into which she was about to roll the turntable before carrying out the operation.

8.  Mr Tsui’s evidence was that the restaurant only had one type of mat. It was a heavy duty rubber mat, about 2 inches thick which when placed in front of the cabinet acts as a ramp and extended to the full width of the cabinet. The mat was compared to the type of material used as a safety floor in a child’s playground. He said that whilst he had been the manager of the restaurant only one type of mat had been purchased, they had been bought in batches, they had been in use for some years before the accident and are still in use now. They have a life of about 4 years.

9.  Mr Tsui was a helpful and straightforward witness. I accept that this restaurant had only one type of mat and that the photographs showed the type of mat which was in front of the cabinet at the time of the accident. I also think it is more likely than not that the mat was the width of the cabinet. I accept also that the plaintiff, as she admits, used the mat to get the turntable rolled up to the floor of the cabinet. I believe that had she used the mat properly it would have acted as a ramp safely to enable her to roll the turntable directly into an empty slot.

10.  Mr Tsui added that in his 30 years’ experience he has never been aware of any injuries being sustained when glass turntables have been rolled into such purpose built cabinets. They remain in wide use across Hong Kong. Neither was there any evidence of any prior complaints about the equipment in issue or the method of storage, from the plaintiff or anybody else.

LIABILITY

11.  The plaintiff’s case is based on there being an unsafe system of work, namely the method of storage in the particular cabinets and various breaches of statutory duty.

12.  Ms Carmen Kei, counsel for the plaintiff cites and relies upon Part VII of the Occupational Safety and Health Regulations (Cap. 509A) which concern manual handling operations at work.

13.  However, I am not persuaded by the evidence or the submissions made on the plaintiff’s behalf that the defendant has been in breach of its statutory duty or has been negligent in this case.

14.  Section 24 provides that employees should not undertake manual handling operations which might create safety and health risks.

15.  Section 25 requires the employer to assess the risks involved in any given operation. It is submitted that in this case consideration should be given to how and where the turntable would be moved, are any unsatisfactory body movement involved, is the load unwieldy or difficult to hold, are the floors uneven or unstable, are there any space constraints?

16.  In my judgment, a common sense view of the matter is that the rolling of a 25-lb glass turntable, onto a rubber matter and then into a compartment of a purpose built cabinet does not create safety or health risks.

17.  It is further submitted that the defendant is under a statutory duty (section 30) to assess the plaintiff’s capability to perform such a task.

18.  The plaintiff had started work in this particular restaurant about 2 months before the “accident”. It is true that no specific assessment of her ability to roll glass turntables into the cabinet had been made. However, she had considerable experience as a waitress, this task was not new to her and it was reasonable to assume that she was capable of doing the job, which in any event I do not regard as an unsafe one or one which creates a health or safety risk.

19.  Ms Kei submits that the defendant has breached Part VII in a number of ways. Her submissions include complaints such as the task should have been performed by male members of staff, the turntables were heavy and unwieldy and should have been moved around on trolleys, mechanical aids or manual assistance should have been provided, no prior assessment of health risks had been made. She further submits that a “sliding platform” should have been provided at the base of the cabinet because it was “very difficult if not impossible” for the plaintiff to push the turntable into the cabinet from “a squatting position on the mat”.

20.  In my judgment, whilst it is of course regrettable that the plaintiff strained her back whilst working on 11 September 2005, the evidence cannot support any of the claims and submissions made against the defendant. The evidence, taken as a whole, fails to establish that it was foreseeable that the particular manual operation created a risk to an employee’s health or safety.

21.  Even if it did, on the most favourable view to the plaintiff, it was at the very lowest end of tasks which created such a risk and I am satisfied that for such a risk the defendant had complied with its statutory duty.

22.  The defendant knew that the plaintiff was an experienced waitress when she commenced work at this particular restaurant in about July 2005. She had worked as a waitress since 2001. The plaintiff had manoeuvredand stored similar turntables in her previous employment. She was given standard training when she first became a waitress. Each day there was a “briefing session” before work began and once a week, on Sundays, there was a staff meeting to evaluate and discuss all work related matters. Such meetings were the forum when safety matters could be discussed. The plaintiff was always given appropriate rest periods. Finally, and importantly, the task itself was a simple and straightforward operation. The plaintiff’s case depends, as pleaded, wholly on the operation of putting the turntable into the storage cabinet. It was correctly noted by counsel that the act of removing the turntable from the table was a more difficult task. However, the operation under scrutiny, on all the evidence, was one that the plaintiff was trained and able to do without foreseeable risk to herself. Her back (which as noted hereafter had pre-accident degeneration) was probably strained when storing the turntable however it has not been proved that the injury flowed from the defendant’s negligence or breach of statutory duty.

QUANTUM

23.  Although I find the defendant to be not liable I shall, for the sake of completeness, state my findings on the quantum issues, albeit somewhat more briefly than if I had found in the plaintiff’s favour.

24.  The plaintiff was 32 at the time of the accident. She is married with four children. A joint medical report was prepared by Dr Lau Hoi Kuen and Dr Chan Sai Keung. They agreed that the plaintiff had suffered a soft tissue injury to the lower back. The injury was consistent with the circumstance of the accident.

25.  Dr Lau assessed the injury as a 1% permanent impairment, Dr Chan 5%. An MRI scan was carried out in April 2006 which showed degenerative changes in the lower lumbar discs. The doctors agreed that such changes were pre-existing and that the incident on 11 September 2005 had probably rendered the asymptomatic degeneration to become painful.

26.  She suffered residual back pain. She tried to resume her work after several months but she found it too painful. She has attended a number of hospitals, clinics and doctors since 2005. The usual treatment has been analgesics and physiotherapy.

27.  She has worked since the accident but mostly in less physical jobs for less pay. Her case is based on the claim that her inability to resume her pre-accident job is permanent. Her present complaints are of back pain which disturbs her sleep and increases after 20 minutes sitting down or walking for a similar period or when climbing stairs. She also complains of numbness and weakness in her lower limbs.

28.  Both doctors agreed that certain test results suggested she was exaggerating her symptoms; Dr Lau more than Dr Chan. At trial five videos were watched which had been taken secretly by a surveillance company. Generally speaking (they were taken between 2006 and 2009) the plaintiff was seen to be walking and working normally. She was able to carry shopping bags and walk up and down steps without assistance. She was seen working as a waitress without difficulty. In her favour it could be said that her pace of movements generally may have been a little more cautious than that of the average person.

29.  I am satisfied that the plaintiff genuinely feels back pain and that the pain stems from the accident but that she suffered pre-existing degenerative changes in her lower spine.

30.  I think she has exaggerated her present symptoms when describing her condition to doctors. However I do not regard it as wild or dishonest exaggeration. She puts a pessimistic gloss on it which she hopes will improve the level of her compensation.

31.  In her favour, however, she has tried to be gainfully employed. I do not regard her as being work shy or a malingerer. She has a bad back which was exacerbated on 11 September 2005 and which continues to cause her some distress and upset. I think Dr Lau is probably right when he said that the plaintiff “should be able to resume work as a waitress. She will suffer a mild degree of decreased efficiency at work mainly due to the degenerative disc disease in her lower back”. Dr Chan opined that she was fit for more sedentary jobs such as receptionist or cashier.

32.  I recognize that back pain is notoriously subjective and difficult to assess. This is highlighted in this case by the fact that counsel’s assessments of general damages for PSLA are $300,000 and $40,000 respectively.

(1)  PSLA

33.  Having seen the plaintiff, considered some similar cases (although for back pain it is difficult to know whether they are truly similar) and read the medical evidence, I consider $100,000 to be a proper figure.

(2)  Loss of earnings

34.  The conflict of evidence concerning her pre-accident salary was minor. I think $8,500 is a fair figure. I make no alteration upwards for the prospect of promotion. Such evidence as there was was speculative and anecdotal.

35.  The plaintiff claims 635 days sick leave. This is consistent with her exaggeration. It may be the number of days she has been off work in the last four years and four months but, in my judgment, the proper period for true sick leave is 18 months. This is a little more generous than Dr Lau. A reasonable figure for sick leave is therefore $153,000.

(3)  Earning capacity

36.  In round terms the employment she has undertaken since the accident has paid her about $3,000 a month less than before the accident. In the immediate future also her likely level of remuneration will remain the same.

37.  In my judgment her damages should include a figure for reduced wages up to trial and for a short period after trial. I would not assess her reduced earning capacity as permanent however. The exaggeration in her condition causes me to accept Dr Lau’s opinion that she will be able to be a full time waitress again, if not now then soon.

38.  Eighteen months sick leave would take the plaintiff to mid‑February 2007. I would compensate her by a sum of $3,000 a month for four further years.

39.  This would result in a further $144,000.

(4)  Loss of earning capacity

40.  In view of my comments thus far only a small sum can be awarded under this head. I award $20,000.

(5)  Medical expenses

41.  

(a)  Past : $22,500 ($10,000 claimed for tonic food is excessive. $5,000 is allowed).

(b)  Future : I allow $10,000.

(6)  Loss of MPF

42.  $153,000 X 5% = $7,650.

(7)  Discount due to pre-existing condition

43.  In the CACV58/1997, Chan Kam Hoi v Dragages et Travaux Publics the court cited with approval the trial judge’s approach to this issue :

“‘When considering the effect of a pre-existing condition on an award of damages there are three possible scenarios.  The first is where the Plaintiff was almost certain to have gone through life unaffected by the condition.  The second is where there is a strong possibility that some other event, or natural progression of the condition, would have brought about the Plaintiff’s present state.  The third is where this would certainly have occurred at some stage in any event.  In the first, the Defendant would be liable for all damage caused.  In the second it would be necessary to assess the degree of the possibility in deciding what reduction is appropriate, as in assessing the effect of other vicissitudes of life.  In the third, clearly an allowance has to be made, the extent of which depends on the evidence as to when the precipitating event would have occurred.

The existing condition of the Plaintiff’s spine here, and the nature of his employment, takes this case certainly into the second category and possibly into the third.  This type of spinal problem is not unusual, and orthopaedic surgeons are extremely familiar with it and the course that it will take, except in the most unlikely situations.  It was almost inevitable, that, assuming he continued his pre-accident employment, the Plaintiff would reach a stage similar to that he is in now, where he suffers a degree of pain and the only work available to him is light work or that of a sedentary nature.  The only truly unknown factor is when this would have occurred.  The only estimate we have of this is that it would have affected his working ability probable from the mid-50’s.’

The judge accepted that to reflect the presence of the pre-existing condition for which the defendant was not responsible, there should be a discount in the damages.”

44.  In the above case the judge applied a 45% reduction.

45.  In the present case the percentage should be lower. The reason for terminating her future entitlement to 2011 is that by my assessment, based on the medical and surveillance evidence, such pain that she is likely to experience after 2011 is pain that she probably would have felt in any event. The discount therefore is limited to the compensation payable from 2005 to 2011. The discount is to reflect the chances of her pre-existing condition causing her to earn less money between those years regardless of the accident.

46.  Bearing in mind her age I think the chance of that happening is quite low. I will adopt a percentage of 15%.

SUMMARY

47.	PSLA	$	120,000
	Sick leave	$	153,000
	Reduction in earnings	$	144,000
	Reduction in earnings capacity	$	20,000
	Medical expenses	$	32,500
	Loss of MPF	$	7,650
		$	477,150
	Less 15%	- $	71,572
		$	405,578
	Less ECC payment	- $	199,712
	Total	$	205,866

48.  As all matters of quantum are academic in view of my finding on liability it serves no useful purpose in addressing the question of contributory negligence or interest. The academic nature of the exercise also accounts for the broad brush approach.

49.  The plaintiff’s claim is dismissed with costs to the defendant, to be taxed if not agreed. This is a nisi order.